Existing law establishes the California Gang, Crime, and Violence Prevention Partnership Program to be administered by the Department of Justice for the purposes of reducing gang, criminal activity, and youth violence in communities with a high incidence of gang violence, as specified.

This bill would make a technical, nonsubstantive change to that provision.

Date of Hearing: April 28, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 829

Author:(Nazarian) – As Amended Ver:March 26, 2015

SUBJECT: GANGS: SHARED GANG DATABASES

KEY ISSUE: SHOULD LAW ENFORCEMENT AGENCIES BE REQUIRED TO NOTIFY AN ADULT WHOSE NAME IS ADDED TO OR DELETED FROM A SHARED GANG DATABASE AND SHOULD THERE BE A HEARING PROCESS FOR INDIVIDUALS WHO ARE DENIED A REQUEST TO HAVE THEIR NAMES REMOVED FROM THE DATABASE?

SYNOPSIS

Under existing law, law enforcement agencies may collect personal information and photographs of individuals and enter them into a shared gang database used statewide by law enforcement agencies. The largest shared gang database is CalGang and those persons entered in the system are designated as “gang members," although those individuals may have had no contact with law enforcement. A person may be entered in the database based on the pure suspicion of being a gang member, being associated with a gang or gang member, or being affiliated with a gang or gang member. Once a person is in the database, the procedure for getting out of the database is almost impossible. There is no standard procedural process for redress if a person discovers that he or she is in the database, requests to be removed from the database and the request is denied. This bill is a follow up to SB 458 (Wright) that was chaptered in 2013 and required law enforcement to notify minors and their parents if a minor was included in the CalGang database. SB 458 also provided for the right to contest inclusion in the database and to request the removal of a name from the CalGang database, but the bill’s provisions only applied to minors. This bill expands those provisions to cover all persons and seeks to establish a standard procedure for individuals in a shared gang database to object to the inclusion of their names in the database. It requires that persons entered in a gang database be notified of their inclusion in the database and be given the opportunity to contest that inclusion. The notification must specify the petition process to remove the name of the individual and requires law enforcement to respond to a person’s petition for removal within 60 days.

According to the sponsor of the bill, the Coalition for Humane Immigrant Rights of Los Angeles, immigrants often have no knowledge that they are in a gang database and only discover they are listed when they attempt to apply for the Deferred Action for Childhood Arrivals (DACA) or Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. By the time an immigrant realizes this designation has been applied and he or she is entered in the database as a “gang member,” the designation may have already caused the person to be flagged by Immigration and Customs Enforcement (ICE) for priority deportation. This bill does not prohibit or limit law enforcement’s use of gang databases. It does, however, grant individuals the basic right to clear their name if they are eligible. This bill is supported by numerous civil rights groups, immigration advocate organizations, defense attorneys and youth justice organizations who believe that gang databases and law enforcement agencies make it difficult for individuals to clear their names. Meanwhile, statewide law enforcement agencies oppose, arguing that this bill is an unnecessary and costly intrusion into the investigative process that could compromise gang intelligence operations. This bill passed the Assembly Committee on Public Safety on a 5-2 vote.

SUMMARY: Adds additional due process and removal procedures for individuals whose names are entered in law enforcement gang databases. Specifically, this bill:

1. Requires law enforcement agencies to provide written notice to an individual, or to the parent or guardian of a minor, prior to designating or submitting documentation to the Attorney General’s office to designate a person as a gang member, associate, or affiliate in a shared gang database.

2. Authorizes an individual, or the parent or guardian of a minor, to request information regarding the status of the person in a shared gang database, and requires the law enforcement agency to provide that information.

3. Authorizes an individual, or the parent or guardian of a minor, to contest the designation of being connected with a gang and to request the removal of gang designation information from the database in writing, on the ground that the person is not and has never been a gang member, associate, or affiliate.

4. Authorizes an individual whose written request for removal is denied to appeal the decision in an administrative hearing conducted by a hearing officer within a law enforcement agency.

5. Authorizes an individual to request a review of an unfavorable decision of the hearing officer by an additional member of the law enforcement agency, and allows the person to commence an action to seek review of an unfavorable decision in a court of competent jurisdiction.

6. Requires a local law enforcement agency to remove, or cause to be removed, a person designated in a shared gang database based on specified criteria or if the designation is successfully contested, and to notify the individual, or the parent or guardian of a minor, upon removal.

7. Requires the Department of Justice to annually report to the CalGang Executive Board and the Legislature specified information related to requests for removal and removal of persons from the CalGang shared gang database system. The report must include:

   1. The number of persons added to the CalGang system during the immediately preceding 12 months;

   2. The number of requests for removal of a person from the CalGang system received during the immediately preceding 12 months;

   3. The number of approved requests for removal from the CalGang system during the preceding 12 months; and

   4. The number of automatic removals from the CalGang system during the preceding 12 months.

8. Prohibits the California Victim Compensation and Government Claims Board from denying an application for compensation on the basis of the applicant’s membership in, association with, or affiliation with, a gang or on the basis of the applicant’s designation as a suspected gang member, associate, of affiliate in a shared gang database.

EXISTING LAW:

1. Defines a “criminal street gang” as any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more enumerated offenses, having a common name or identifying sign or symbol, and whose members individually or collectively engage in a pattern of criminal gang activity. (Penal Code Section 186.22(f). All further statutory references are to the Penal Code, unless otherwise indicated. )

2. Defines “pattern of criminal gang activity” as the commission of two or more of enumerated offenses, as specified, and the offenses were committed on separate occasions, or by two or more persons. (Section 186.22(e).)

3. Requires local law enforcement to notify a minor and his or her parent or guardian before designating that minor as a gang member, associate, or affiliate in a shared gang database and the basis for the designation. A minor, or his or her parent or guardian has the right to contest the inclusion in a database by submitting written documentation and the law enforcement agency has 60 days to provide the minor and their parent or guardian with written verification of the agency’s decision. (Section 186.34(b)-(c).)

4. Requires any person convicted in a criminal court or who is the subject of a petition sustained in a juvenile court of one of the specified criminal street gang offenses or enhancements, to register with the local police chief or sheriff within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever is first. (Section 186.30(a) & (b).)

5. Provides that when a minor has been tried as an adult and convicted in a criminal court or has had been the subject of a petition sustained in a juvenile court for any of the specified criminal street gang offenses or enhancements, a law enforcement agency will notify the minor and his or her parent that the minor belongs to a gang whose members engage in, or have engaged in, a pattern of criminal activity as described. (Section 186.32(a)(1)(B).)

6. Requires the court, at the time of sentencing in adult court or dispositional hearing in juvenile court, to inform any person subject to registration detailed above of his or her duty to register and requires that the parole or probation officer assigned to that person to verify that the person has complied with the registration requirements. (Section 186.31.)

7. Provides that an individual’s application for eligibility of compensation from the Restitution Fund of the California Victim Compensation and Government Claims Board will be denied if the boards finds, among other things that the victim or derivative victim: 1) knowingly and willingly participated in the commission of the crime that resulted in the pecuniary loss for which compensation is being sought; or 2) failed to cooperate with law enforcement in the apprehension or conviction of a criminal committing the crime; or 3) was involved in events that lead to the crime, injury or death that gives rise to the application. (Government Code Section 13956.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Gang databases, as defined in Penal Code Section 186.34, are the collection of gang intelligence information collected by various law enforcement agencies and deposited in one central computerized location. The information deposited into a database is collected through various sources, such as field interviews, officer observations, informants, and questioning of suspects and other people. The database helps law enforcement agencies identify active gangs and gang members in various communities. The goal of a database is to assist law enforcement efforts in suppression of gang activities and for investigative purposes and strategies.

Shared gang databases are databases with collected information regarding gangs and gang members shared among law enforcement agencies. Because the information in the database is considered protected and confidential, it is only accessible by law enforcement personnel, including federal and immigration officials. (https://www.nationalgangcenter.gov)

In support of the bill, the author states:

Since the mid-1980s, law enforcement agencies throughout California have increasingly engaged in the collection of personal information to label and track people, overwhelmingly youth and young adults of color, as “gang members.” This process lacks oversight and transparency. The policies and procedures governing the CalGang Database and other local databases are not clear, not consistent in their application, not widely shared, and not standardized across laws enforcement departments and jurisdictions. AB 829 sheds light on including individuals in gang databases. This bill does not prohibit nor limit law enforcement’s use of a gang database. This bill simply ensures individuals are notifi[ed] and given the opportunity to clear their name.

Background of Shared Databases. Database and intelligence systems to track gang members have existed in many cities since the mid-1980s. Systems range from localized databases maintained by individual or metropolitan law enforcement agencies to statewide systems (such as the California Department of Justice’s CalGang database) to national databases maintained by the Regional Information Sharing Systems (RISS) Intelligence Centers. There is also the National Crime Information Center (NCIC) database. (https://www.nationalgangcenter.gov)

According to an in depth report on shared gang databases prepared by the Youth Justice Coalition’s REALSEARCH Action Research Center report titled, Tracked and Trapped- Youth of Color, Gang Databases and Gang Injunctions, in 1987 the Law Enforcement Communication Network and the Los Angeles County Sheriff’s Department developed a computerized database to collect, store, and analyze personal information of alleged gang members. By 1988, according to the report, Los Angeles County officials worked to implement their gang policies statewide by encouraging the state Legislature to pass the Street Terrorism Enforcement and Prevention Act (the STEP Act) which is codified in Section 186.20 of the Penal Code. The STEP Act is said to be the first law in the country’s history to define a gang. It also enumerates a list of the crimes that constituted “gang activity.” The STEP Act provides serious penalties for participation in a gang (Section 186.22) and requires alleged gang members to register with local law enforcement agencies (Section 186.30). The STEP Act provided both funding and power for Los Angeles County to expand its gang suppression efforts which included enlarging the gang database to a statewide system known as CalGang. The criteria for identifying a person as a gang member are broad and involvement in criminal gang activity is not a requirement. (Youth Justice Coalition, Tracked and Trapped- Youth of Color, Gang Databases and Gang Injunctions, December 2012.)

CalGang is the most commonly utilized gang database in the state. According to the State Attorney General’s website, CalGang is funded by the state and is maintained and controlled by local law enforcement. It has been in operation for over ten years and it contains a collection of criminal intelligence information from local, state, federal and Tribal law enforcement agencies in the state. The system operates under the United Federal Code of Regulations, title 28, section 23, as a Criminal Intelligence System. It is classified by the State Attorney General as a “wide area, low cost, easy to use, securely networked, relational, intelligence database, targeting specifically members of criminal street gangs, tracking their descriptions, tattoos, criminal associates, locations, vehicles, field investigations, criminal histories and activities.” CalGang is now accessed by over 6,000 law enforcement officers in at least 58 counties. (https://oag.ca.gov/calgang)

The Implementation and Impact of CalGang and Other Shared Gang Databases. According to the Coalition’s report, the information in the CalGang database is entered in by “gang officers” that receive training in use of the system. The report explains the numerous ways information of alleged gang members in the database is gathered. The report states that most people are added to the database without ever having been arrested or accused of criminal activity. This data is collected through routine police stops or stop and frisk activities during which officers fill out Field Identification Cards (FI cards) and this information is added to the CalGang database if there is a suspicion that an individual is a gang member, may be associated with a gang member or is affiliated with a gang member. FI cards and accompanying photos also document clothing, tattoos, scars, and suspected or admitted neighborhood ties. FI cards are collected on children starting as early as their elementary school years, with officers gathering nicknames, family members and friends, and local hangouts that children in certain communities frequently visit.

When criminals are sentenced for involvement in gang-related crimes, they are ordered by the court to register as a gang member with their local law enforcement agency, these registrations are also added to the gang database. According to the Coalition’s report, CalGang also contains photographs taken both with and without the knowledge of the person depicted, obtained from mug shots, illegally taken by using long-range photo lenses, photos from investigatory observations and other means. Once information is entered in CalGang, that person becomes identified as a gang member, gang associate or gang affiliate. Many individuals identified in the CalGang database are not aware that they have been identified and designated by law enforcement as a gang member, associate or affiliate. CalGang is accessible to law enforcement anywhere in the state and can be accessed during traffic and investigatory stops of individuals. Being a shared database it is also accessible by the federal government, including Homeland Security. According to the CalGang website, the database has been collecting Criminal Intelligence Information from Local, State, Federal and Tribal Law Enforcement Agencies in California. (https://oag.ca.gov/calgang.)

Criminal Intelligence Systems. According to the United States Code of Federal Regulations, title 28, section 23, a Criminal Intelligence System is allowed to collect the names of individuals or organizations not reasonably suspected of involvement in criminal activity, as “noncriminal identifying information” if the information relates to the identification of a criminal subject or criminal activity. The broad definition of criminal activity allows the database to maintain identifying information of many people, whether or not they have been involved in gang activity. According to the Criminal Intelligence Systems website, the stated qualifications limit inclusion to “criminal activity that constitutes a significant and recognized threat to the community. In general, 28 CFR Part 23 views such criminal activity to be multijurisdictional and/or organized criminal activity that involves a significant degree of permanent criminal organization or is undertaken for the purpose of seeking illegal power or profits or poses a threat to the life and property of citizens. This would normally not include traffic or other misdemeanor violations.” (http://www.iir.com/Home/28CFR_Program/28CFR_FAQ/)

Due Process and the Actions of Law Enforcement Agencies. Due Process Clauses of the U.S. Constitution serve as protections from arbitrary denials of life, liberty, or property by the government, absent law. The protections at risk regarding shared gang databases are both procedural and substantive. Procedural due process protects individuals from the coercive power of the government, which is in this case law enforcement agencies, by ensuring there are processes in place that allow a fair and impartial adjudication of issues.

Article I of the State Constitution says a person may not be deprived of life, liberty, or property without due process of law or be denied equal protection of the laws. In the 9^th Circuit Court of Appeals case, Vasquez v. Rackauckas, the court stated that this due process clause provides greater procedural due process rights for private parties than does the federal Constitution. The defendants-appellants had been dismissed from a case to enforce a local gang injunction. The prosecution proceeded in the case and secured a gang injunction. When the injunction was being enforced, the police tried to apply the injunction to the two defendants who had been dismissed in the case. The defendant-appellants appealed the injunction on the basis that they were dismissed from the injunction case and were never afforded a due process hearing regarding the injunction. The court held that the defendant-appellants were entitled to a due process hearing prior to being subjected to the injunction order. (Vasquez v. Rackauckas, (2013) 734 F.3d 1025.)

The Existing Due Process Procedures Available In Existing Law are Very Limited. Currently, only minors and their parent or guardian, are allowed to be notified that the minor is being entered in the system. Adults have been totally omitted from the notification process even though they are affected by being included in the database. According to the report by the Coalition, these databases can be very harmful to anyone who is categorized as being connected to a gang, even if no such connection ever existed or they were part of a gang 20 years ago. There is no way today for an adult to find out if they have been “tagged” as a gang member by law enforcement and entered into this system. Even if that adult could discover that he or she were included in the database, there is no way today to challenge that inclusion. Finding out that you are in the system during contact with police or when you are applying for college, places the individual in an unfair position and there are not many opportunities for a person to refute the designation. Furthermore, there must also be a process for having a person’s name removed from the system if the individual is not connected with a gang. What happens to a person who has a family member or relative who is associated with a gang? Is that innocent person also entered into the database because they qualify as an associate or an affiliate? Suppression of criminal activity is the job of law enforcement and there are many tools that they use to perform their jobs. However, the use of these shared databases has to be reviewed to ensure that their use doesn’t destroy the constitutional rights of those who have been entered.

Requirements of This Bill. This bill requires that law enforcement agencies provide written notice to a person or if a minor, to the parent or guardian, prior to making a gang designation. It also authorizes a person, or a parent or guardian of a minor to request information regarding their status in a shared gang database and requires a law enforcement agency to provide this information upon receiving such a request.

This bill allows a person, or the parent or guardian of a minor, to contest a gang designation and to request to have the designation removed from the database. If the request is denied, this bill allows a person to appeal that decision though an administrative hearing process. If the hearing results in an unfavorable result, this bill allows for a review of the administrative hearing results by a different law enforcement officer. If the results are unfavorable, this bill authorizes the person to seek a review of that decision by a court of competent jurisdiction.

Besides the review and appeal processes outlined above, this bill provides other avenues for securing removal from a gang database. This bill requires local law enforcement to remove a person designated in a shared gang database based upon the criteria outlined below, or if the person has successfully contested the designation. The law enforcement agency must remove the individual from the database and must also notify the person or if a minor, the parent or guardian upon removal from the database.

The additional criteria this bill provides for removal are:

1. The person is designated in the shared gang database, but has not been arrested, charged with, or convicted of a crime in the five-year period after initial entry in the database;

2. The person is designated in the database, and was subsequently arrested for, but not charged with or convicted of, a crime in the five-year period after arrest;

3. The person is designated in the database as the result of an arrest, but was not charged with or convicted of a crime in the five-year period after the arrest; or

4. The person is designated in the database and is subsequently arrested and charged with a crime, but is not convicted of a crime within the five-year period after the arrest.

5. The bill’s provisions for procedures to force removal under specified conditions, will restore the liberty of a person denied this constitutional right by being included in a gang database.

DACA and DAPA Considerations. According to the sponsor of this bill, the Coalition for Humane Immigrant Rights of Los Angeles and an article by Haya El Nasser, Gang or No Gang, Many Immigrants Legally Stymied by Injunctions, including immigrants in a shared gang database is having harmful effects on those seeking to apply for benefits under the most current federal immigration programs, Deferred Action for Childhood Arrival Deferred (DACA) and Deferred Action for Parents (DAPA). According to the above sources, immigrants attempting to apply for either of these programs, while being in a gang database, can lead to being flagged by Immigration and Customs Enforcement (ICE) as a priority for deportation. Since many people in these databases are unaware of this gang designation status, they can be sabotaged by the immigration programs’ application process. Even if the individual can escape being detained by ICE, their inclusion in a gang database can lead to an elimination of the person and their family’s access to public housing and the Section 8 program; can limit access to employment and educational opportunities; and can lead to increased penalties, such as gang enhancements in court. (http://america.aljazeera.com/articles/2015/1/2/immigrant-gang-connection.html)

Eligibility for Restitution from California Victim Compensation and Government Claims Board. This bill prohibits the board from denying an applicant for recovery from the Board’s restitution fund based on two classifications: 1) membership in, association with, or affiliation with a gang; or 2) designated as a suspected gang member, associate, or affiliate in a shared gang database. According to existing law, neither of these classifications are a basis upon which the Board denies claims. Further, the Board has explained that it does not deny restitution to a person based on any gang association, affiliation, or membership. A person connected to a gang is as eligible for restitution as any other person who applies. However if the person’s gang connections have caused the harm for which the applicant is seeking restitution, the Board will deny restitution to the applicant as it would any applicant involved in criminal activity that led to the harm he or she suffered for which he or she is seeking restitution. Gang members, affiliates, or associates and persons with such designations in a shared gang database are not treated any differently than a person who has no connections in a gang.

Additional Concerns. According to the Attorney’s General’s CalGang website, the CalGang database is only accessible to specifically trained law enforcement officers and support staff. The site goes on to say that the release of CalGang criminal intelligence information is on a “Right-to Know”(a law enforcement officer) and “Need to Know”(legitimate law enforcement purpose) basis only. So law enforcement agencies exercise total control of the information that is entered into these shared databases and they limit who may have access to the information contained in the database. This information conflicts with the information contained in the Coalition’s report. According to the report by the Youth Justice Coalition’s REALSEARCH Action Research Center, the database information is shared with all segments of law enforcement including the federal government. If ICE, Section 8 and educational institutions have access to the information contained in the databases, it raises several questions and concerns of whom else may have access and the ability to use this information.

ARGUMENTS IN SUPPORT: This bill enjoys support from a wide range of groups, including human rights organizations, immigration advocates, civil rights organizations and defense attorneys. According to the American Civil Liberties Union of California:

There are currently more than 200,000 individuals classified as gang members on the CalGang statewide database. Significant privacy issues are implicated by the use and creation of government databases such as CalGang, which includes individuals who have neither been arrested nor convicted of any crime and who may not even be suspected of engaging in criminal activity. AB 829 follows-up on legislation enacted in 2013 which required law enforcement to notify persons under the age of 18 and their parents if the minor was included in the CalGang database and provided a right to appeal and to remove a name from CalGang. AB 829 provides similar protections regardless of the age of the person. It is crucial that prior to inclusion in these databases that all persons be notified and granted the opportunity to contest or appeal the gang designation. These basic due process protections will enhance the reliability and utility of the information in the system.

ARGUMENTS IN OPPOSITION: Opponents of the bill include local and state law enforcement agencies. The Los Angeles Deputy Sheriffs, among others, writes:

Under AB 829, once a suspected gang member is notified of his or her placement in a shared gang database, they can contest the designation. If the law enforcement agency denies the request, they must state the reasons for the suspect’s inclusion in the database. This is tantamount to allowing a suspect to view sensitive intelligence that the law enforcement agency has collected. The suspect would then be able to request an administrative hearing, which the law enforcement agency would be required to grant. During that hearing (which could be considerably delayed in light of the two continuances that the agency would be required to grant), the suspect may subpoena officers, documents, and other sensitive information. If the hearing officer finds that the suspect should not be removed from the database, the suspect may request another review of that decision, which the law enforcement agency is again required to grant.

Previous Legislation. SB 458 (Wright), Chapter 797, Statutes 2013, required local law enforcement to notify a minor and his or her parent or guardian before designating that minor as a gang member, associate, or affiliate in a shared gang database and the basis for the designation.

SB 296 (Wright), 2011, created a process whereby a person subject to a gang injunction could petition for injunctive relief if the person met certain criteria. SB 296 was vetoed by the Governor.

AB 2562 (Fuller), 2008, increased the penalty from a misdemeanor to a felony punishable in the state prison for failing to register as a member of a criminal street gang under specified circumstances. AB 2562 failed in Assembly Public Safety Committee.

AB 1630 (Runner), 2007, required those who are convicted of a street gang crime to annually register and re-register upon changing his or her residence. AB 1630 failed in Assembly Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Coalition for Humane Immigrant Rights of Los Angeles (co-sponsor)

Youth Justice Coalition (co-sponsor)

American Civil Liberties Union of California

API Equality-LA

Asian American Advancing Justice-Los Angeles

California Immigrant Policy Center

California Public Defenders Association

Immigrant Legal Resource Center

Immigrant Youth Coalition

Korean Resource Center

Legal Services for Prisoners with Children

Los Angeles Center for Law and Justice

National Day Laborer Organizing Network

National Immigration Law Center

Native Hawaiian & Pacific Islander Alliance

Public Counsel

Opposition

Association for Los Angeles Deputy Sheriffs

Association of Deputy District Attorneys

California Association of Code Enforcement Officers

California College & University Police Chiefs Association

California Correctional Supervisors Organization

California District Attorneys Association

California Narcotic Officers Association

California State Sheriffs’ Association

Los Angeles Police Protective League

Riverside Sheriffs Association

San Bernardino County Sheriff’s Department

Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334

Date of Hearing: April 14, 2015

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 829

Author:(Nazarian) – As Amended Ver:March 26, 2015

SUMMARY:

Outlines procedural due process rights for persons designated for inclusion in a shared gang database. Specifically, this bill:

1. Require a local law enforcement agency to provide written notice to a person, or if the person is under 18 years of age, his or her parent or guardian, prior to making the gang designation.

2. Authorizes a person or his or her parent or guardian, as applicable, to request information regarding the status of the person in a shared gang database, and would require the law enforcement agency to provide that information, subject to specified exceptions.

3. Provides that a person, or his or her parent or guardian, as applicable, may contest a gang designation and request removal of information from the database in writing, on the ground that the person is not and has never been a gang member, associate, or affiliate.

4. Authorizes a person whose written request for removal is denied to appeal the decision at an administrative hearing conducted by a hearing officer, as specified.

5. Permits a person to request a review of an unfavorable decision of the hearing officer, and would authorize that person to commence an action to seek review of an unfavorable decision after review by a court of competent jurisdiction, as specified.

6. Requires a local law enforcement agency remove a person designated in a shared gang database based on specified criteria, or if the designation is successfully contested, and to notify the person and his or her parent or guardian, as applicable, upon removal. The grounds for removal are the following:

   1. The person is designated in the shared gang database, but has not been arrested, charged with, or convicted of a crime in the five-year period after initial entry in the database;

   2. The person is designated in the database, and was subsequently arrested for, but not charged with or convicted of, a crime in the five-year period after the date of arrest;

   3. The person is designated in the database as the result of an arrest, but was not charged with or convicted of a crime in the five-year period after the date of the arrest; or

   4. The person is designated in the database and is subsequently arrested and charged with a crime, but is not convicted of a crime within the five-year period after the date of the arrest.

7. States that a law enforcement agency shall remove or cause to be removed a person who is designated as a suspected gang member, associate, or affiliate, and who is subsequently arrested for, charged with, and convicted of a crime, if the person successfully completes his or her probation or parole and more than five years have passed since the date of the last modification to his or her entry in the database.

8. Requires the Department of Justice (DOJ) annually report specified information relating to requests for removal and removal of persons from the CalGang shared gang database system. The report shall include:

   1. The number of persons added to the CalGang system during the immediately preceding 12 months;

   2. The number of requests for removal of a person from the CalGang system received during the immediately preceding 12 months;

   3. The number of approved requests for removal from the CalGang system during the preceding 12 months; and

   4. The number of automatic removals from the CalGang system during the preceding 12 months.

9. Prohibits the Victims Compensation and Government Claims Board from denying an application for compensation on the basis of the applicant’s membership in, association with, or affiliation with, a gang, or on the basis of the applicant’s designation as a suspected gang member, associate, or affiliate in a shared gang database, as defined.

EXISTING LAW:

1. Defines a “criminal street gang” as any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more enumerated offenses, having a common name or identifying sign or symbol, and whose members individually or collectively engage in a pattern of criminal gang activity. (Pen. Code, § 186.22, subd. (f).)

2. Provides that any person who actively participates in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who promotes, furthers, or assists in any felonious conduct by members of the gang is guilty of an alternate felony-misdemeanor. (Pen. Code, § 186.22, subd. (a).)

3. Provides that any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall receive a sentence enhancement, as specified. (Pen. Code, § 186.22, subd. (b).)

4. Provides that any person who is convicted of either a felony or misdemeanor that is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail for up to one year or by 1, 2, or 3 years in state prison.  (Pen. Code, § 186.22, subd. (d).)

5. Defines “pattern of criminal gang activity” as the commission of two or more of enumerated offenses, provided at least one of the offenses occurred after the effective date of the statute and the last of the offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. (Pen. Code, § 186.22, subd. (e).)

6. Requires any person who is convicted in criminal court or who has a petition sustained in a juvenile court of one of the specified criminal street gang offenses or enhancements to register with the local Police Chief or Sheriff within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever is first. (Pen. Code, § 186.30, subds. (a) & (b).)

7. Provides that when a minor has been tried as an adult and convicted in a criminal court or has had a petition sustained in a juvenile court for any of the specified criminal street gang offenses or enhancements, a law enforcement agency shall notify the minor and his or her parent that the minor belongs to a gang whose members engage in or have engaged in a pattern of criminal activity as described. (Pen. Code, § 186.32 (a)(1)(B).)

8. Requires the court, at the time of sentencing in adult court or dispositional hearing in juvenile court, to inform any person subject to registration detailed above of his or her duty to register and requires that the parole or probation officer assigned to that person to verify that the person has complied with the registration requirements. (Pen. Code, § 186.31.)

9. Requires local law enforcement to notify a minor and his or her parent or guardian before designating that minor as a gang member, associate, or affiliate in a shared gang database and the basis for the designation. (Pen. Code § 186.34.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Since the mid-1980s, law enforcement agencies, throughout California, have increasingly engaged in the collection of personal information to label and track people, overwhelmingly youth and young adults of color, as 'gang members.' This process lacks oversight and transparency. The policies and procedures governing the CalGang Database and other local databases are not clear, not consistent in their application, not widely shared, and not standardized across law enforcement departments and jurisdictions. AB 829 sheds light on the process of including individuals in gang databases. This bill does not prohibit nor limit law enforcement’s use of a gang database. This bill simply ensures individuals are notifying and given the opportunity to clear their name.

"Once information is captured by local law enforcement and entered onto either local and/or the statewide CalGang database, a person is considered to be 'known as an active gang member.' Since the databases are used as an internal surveillance tool, information about who is in the database is not shared. Persons under the age of 18 and their parents only won the right to notification, appeal, and removal with SB 458, Chapter 797, Statute of 2013. However, individuals over the age of 17 who are added to CalGang, and individuals of any age, including minors, who are added to other gang databases have no legal right to be notified, and have no opportunity to appeal their designation.

"AB 829 sheds light on the process of including individuals in gang databases. This does not prohibit nor limit law enforcement’s use of a gang database. This bill simply conforms to the due process afforded, to individuals, by the 14th and 5th Amendments by notifying and granting individuals the opportunity to clear their name.

"Placement in a gang database can have drastic immigration consequences, including limiting a person’s ability to adjust immigration status for residency or citizenship. Specifically, when applying for DACA and the newly created DAPA program. Additionally, those in a gang databases face obstacles obtaining employment and social service benefits. One example of this occurs when a person is a victim of a crime such as robbery, sexual assault, child abuse and domestic violence. The victim would likely be denied the ability to access California’s Victim Compensation Program because of their inclusion in the gang database, keeping them from getting the care they need."

2. General Effects of this Bill are to Include Due Process Rights for those Designated: In general this bill will do the following things as applied to persons who are being added to a CalGang database:
   
   

   1. This bill will provide written notice, to people who are being designated and added to a CalGang database. Under existing law, the notification is only provided to minors.
      
      

   2. This bill permits persons to request information regarding their status, or the status of their dependents, subject to specified public safety exceptions.
      
      

   3. This bill authorizes people to submit written requests for removal from a gang database.
      
      

   4. This bill permits a person to request administrative review of a denied request, and an appeal to a court of competent jurisdiction.
      
      

   5. This bill outlines the process for grounds for removal from a gang database.
      
      

   6. This bill requires that DOJ conduct an annual report on specified statistics related to who is included in gang databases, numbers or requests for removal, and statistics related to those removed.
      
      

   7. This bill additionally specifies that the Victims Compensation and Government Claims Board cannot deny an application on the basis of the person being included on a gang database.
      
      

3. History of Shared Gang Databases: In 1987, the Los Angeles County Sheriff’s Department developed the Gang Reporting, Evaluation and Tracking System (GREAT), the nation’s first gang database. “Before GREAT existed, police departments collected information on gang members in locally maintained files, but could not access information that had been collected by other law enforcement agencies.” (Stacey Leyton, The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases (a chapter in Crime Control and Social Justice: The Delicate Balance, edited by Darnell F. Hawkins, Samuel L. Myers Jr. and Randolph N. Stone, Westport, CT, 2003. The African American Experience, Greenwood Publishing Group, Mar. 27, 2013.¹ Using GREAT, local law enforcement could collect, store, centralize, analyze, and disperse information about alleged gang members.

In 1988, the Legislature passed the Street Terrorism Enforcement and Prevention (STEP) Act, asserting California to be “in a state of crisis… caused by violent street gangs whose members threaten, terrorize and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” (Penal Code Section 186.21 (1988).) The STEP Act established the nation’s first definitions of “criminal street gang,” “pattern of criminal gang activity,” and codified penalties for participation in a criminal street gang.

In 1997, less than a decade after the regional GREAT database was first created, the regional GREAT databases were integrated into a new unified statewide database, CalGang, with the goals of making the database easier to use and less expensive to access.² CalGang operates pursuant to the 1968 Omnibus Crime Control and Safe Streets Act, which requires that “all criminal intelligence systems … are utilized in conformance with the privacy and constitutional rights of individuals.”³

4. Required Parental Notification of a Minor’s Duty to Register as a Gang Member: Prior to 2013, if a minor is convicted when tried as an adult, or had a petition sustained in a juvenile court, his or her parent or guardian was required to be notified of a requirement to register with a local sheriff’s office upon release from custody or moving to a new city or county. (Pen. Code, § 186.32, subd. (a)(1)(B).) Parents were notified when a minor was designated in the CalGang database as a suspected gang member, associate, or affiliate. Although a conviction or declaration of wardship was not required for a minor to be placed in the CalGang database, serious consequences to the minor could flow from that action.

AB 458 (Wright), Chapter 797, Statutes of 2013 required a local law enforcement agency to notify any person under 18 years of age and his or her parent or guardian of the minor’s designation in a shared gang database and the basis for the designation before the minor was designated as a suspected gang member, associate or affiliate in a shared gang database, regardless of conviction status.

5. Application of Shared Gang Databases: Today, the CalGang system is accessed by over 6,000 law enforcement officers in 58 counties. The database tracks 200 data fields including name, address, physical information, social security number, and racial makeup and records all encounters police have with the individual. (Leyton, supra, at 113.) CalGang is a web-based intranet system accessible by police departments by way of computer, telephone, and web browser that allows law enforcement to check an individual’s record in real time. (Ibid.) For example, qualified law enforcement personnel may sign on to the CalGang database from a laptop in their patrol car and locate a source document regarding a specific individual about whom law enforcement seeks information.

Concerns have been raised regarding the secrecy of the CalGang database and the accuracy of records entered into CalGang. For example, in 1999, then-Attorney General Bill Lockyer described the database as “mix[ing] verified criminal history and gang affiliations with unverified intelligence and hearsay evidence, including reports on persons who have committed no crime.” “This database,” he went on “cannot and should not be used, in California or elsewhere, to decide whether or not a person is dangerous or should be detained.” (Ibid.) Moreover, with 201,094 people currently listed on CalGang, community groups have expressed concern about transparency, accountability, notification, release of information to policy makers and the public, and independent evaluations regarding the effectiveness of such shared databases in reducing crime.⁴

Youth Justice Coalition states that CalGang “dramatically expands the criminalization of individuals and communities” noting that the database is used routinely to determine who should be served with civil gang injunctions, given gang enhancements during sentencing and targeted for saturation policing. With no notification system, community members say, CalGang has become a “secret surveillance tool,” for monitoring children. This system dramatically impacts the way those children are seen and treated by law enforcement without notifying families who may wish to intervene, move to a new neighborhood or place their child into an intervention program. (Id.) Although the exact number of minors designated is unknown, approximately 10% of those listed on the CalGang database are 19 years of age or younger. (Id.)

Law enforcement representatives, however, have emphasized that any records which are not modified by the addition of new criteria for five years will be purged. Thus, a person need only avoid gang-qualifying criteria for five years to ensure that he or she will be stricken from the database.

However, as a practical matter, it may be difficult for a minor living in a gang-heavy community to avoid qualifying criteria when the list of behaviors includes items such as “is in a photograph with known gang members,” “name is on a gang document, hit list or gang-related graffiti” or “corresponds with known gang members or writes and/or receives correspondence.” In a media-heavy environment, replete with camera phones and social network comments, it may be challenging for a teenager aware of the exact parameters to avoid such criteria, let alone a teenager unaware of he or she is being held to such standards.

6. Argument in Support: According to Asian Americans Advancing Justice, "Asian Law Caucus (AAAJ-ALC) strongly supports AB 829, which sheds light on the process of including individuals in gang databases. This bill does not prohibit nor limit law enforcement’s use of a gang database. We thank you for introducing this proposal. The mission of AAAJ-ALC is to promote, advance, and represent the legal and civil rights of Asian and Pacific Islander communities. Recognizing that social, economic, political and racial inequalities continue to exist in the United States, AAAJ-ALC is committed to the pursuit of equality and justice for all sectors of our society with a specific focus directed toward addressing the needs of low-income, immigrant, and underserved APIs.

"Since the mid-1980s, law enforcement agencies throughout California have increasingly engaged in the collection of personal information to label and track people – overwhelmingly youth and young adults of color – as 'gang members.' This process lacks oversight and transparency. AB 829 is a follow-up to SB 458, Chapter 797, Statute of 2013, which required law enforcement to notify persons under the age of 18 and their parents if the minor was included in the CalGang database. SB 458 also provides for the right to appeal and to remove a name from CalGang. However, people over the age of 17 who are added to CalGang, and individuals of any age, including minors, who are added to local gang databases have no legal right to be notified, and have no opportunity to appeal their designation.

"Specifically, AB 829 accomplishes the following:

• Requires that all persons entered into the gang database be notified of their inclusion in the database.

• Allows individuals the opportunity to contest their inclusion in the database.

• Requires the notification to specify the petition process to remove the name of the individual, if he or she feels they have been wrongly identified.

• Requires law enforcement agencies to respond to all petitions within 60 days.

• Requires the state to report, by county, on the number of names added to the gang database each year, how many requests to remove were received and how many requests were approved.

"AB 829 grants individuals the basic fundamental right to clear their name. Placement in a gang database can have drastic immigration consequences, including limiting a person’s ability to adjust immigration status for residency or citizenship; can eliminate a person’s and even their family’s access to public housing and Section 8; can limit access to employment and educational opportunities; and can lead to increased penalties, such as gang enhancements in court."

7. Argument in Opposition: According to the California District Attorneys Association, "This bill would create a notification process for anyone whose name is placed in a law enforcement shared gang database, as well as three opportunities for appeal, during which law enforcement agencies would be required to share sensitive information with the suspected gang member.

"Under AB 829, once a suspected gang member is notified of his or her placement in a shared gang database, they can contest the designation (new PC 186.44). If the law enforcement agency denies that request, they must state the reasons for the suspect's inclusion in the database. This is tantamount to allowing a suspect to view sensitive intelligence that the law enforcement agency has collected. The subject would then be able to request an administrative hearing (new PC 186.460), which the law enforcement agency would be required to grant. During that hearing (which would be considerably delayed in light of the two continuances that the agency would be required to grant), the suspect may subpoena officers, documents, and other sensitive information. If the hearing officer finds that the suspect should not be removed from the database, the suspect may request another review of that decision (new PC 186.472), which the law enforcement agency is again required to grant.

"In addition to the policy concerns that AB 829 raises, the cost of preparing and staffing these hearings would be overwhelming.

""It's hard to imagine any other instance in which we would let a suspect, during an investigation, invade police deliberations with a hearing (or, in this case, three) on whether he or she should continue to be a suspect."

8. Prior Legislation:
   
   

   1. SB 458 (Wright), Chapter 797, Statutes of 2013, required local law enforcement to notify a minor and his or her parent or guardian before designating that minor as a gang member, associate, or affiliate in a shared gang database and the basis for the designation.
      
      

   2. AB 177 (Mendoza), Chapter 258, Statutes of 2011, expanded the authority of the juvenile court to order the parent or guardian of a minor to attend anti-gang violence parenting classes.
      
      

   3. SB 296 (Wright), of the 2011-12 Legislative Session, would have created a process whereby a person subject to a gang injunction could petition for injunctive relief if the person met certain criteria. SB 296 was vetoed by the Governor.
      
      

   4. AB 1392 (Tran), of the 2009-10 Legislative Session, would have established the Graffiti and Gang Technology Fund, in which vandalism fines were to be deposited, to be continuously appropriated to the Department of Justice exclusively for the costs of technological advancements for law enforcement in the identification and apprehension of vandals and gang members, as specified. AB 1392 was held on the suspense file of the Assembly Committee on Appropriations.
      
      

   5. AB 1291 (Mendoza), Chapter 457, Statutes of 2007, authorized anti-gang violence classes for parents of juveniles found in violation of specified gang-related offenses.
      
      

   6. AB 1630 (Runner), of the 2007-08 Legislative Session, would have required those who are convicted of a street gang crime and to annually register and re-register upon changing his or her residence. AB 1630 failed passage in this committee.
      
      

   7. AB 2562 (Fuller), of the 2007-08 Legislative Session, would have increased the penalty from a misdemeanor to a felony punishable by 16 months or two or three years in the state prison for failing to register as a member of a criminal street gang under specified circumstances. AB 2562 failed passage in this committee.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union

Asian Americans Advancing Justice

California Attorneys for Criminal Justice

California Immigrant Policy Center

California Public Defenders Association

Immigrant Legal Resource Center

Immigrant Youth Coalition

Korean Resource Center

Legal Services for Prisoners with Children

National Day Laborer Organizing Network

National Immigration Law Center

Native Hawaiian and Pacific Islander Alliance

Youth Justice Coalition

Opposition

California District Attorneys Association

Analysis Prepared by:

Gabriel Caswell / PUB. S. / (916) 319-3744