Existing law, the California Street Terrorism Enforcement and Prevention Act (act) imposes specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. The act authorizes injunctions against specified gang activity, as provided. The act allows for the keeping of a shared gang database, defined as having various attributes, including, among others, that the database contains personal, identifying information in which a person may be designated as a suspected gang member, associate, or affiliate, or for which entry of a person in the database reflects a designation of that person as a suspected gang member, associate, or affiliate.

This bill would require the California Department of Justice to send a copy of all information it has access to pursuant to a shared gang database to the United States Department of Justice.

Date of Hearing:

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1409

Author:(Travis Allen) – As Introduced Ver:February 17, 2017

SUMMARY:

Requires the California Department of Justice (CalDOJ) to send a copy of all information it has access to pursuant to a shared gang database to the United States Department of Justice.

EXISTING LAW:

1. Defines “shared gang database” as any database that satisfies all of the following:
   
   1. Allows access for any local law enforcement agency;
      
   2. Contains personal, identifying information in which a person may be designated as a suspected gang member, associate, or affiliate or for which entry of a person in the database reflects a designation of that person as a suspected gang member, associate or affiliate; and,
   3. Is subject to federal regulation regarding criminal intelligence operating policies, if federal funding is still available to the database. (Pen. Code, § 186.34, subd. (a)(1)(A)-(C).)
      
2. Specifies that “shared gang database” includes the CalGang system, which is operated pursuant to federal regulations regarding criminal intelligence operating policies. (Pen. Code, § 186.34, subd. (a)(3).)
   
3. Mandates that information retained in the system must be reviewed and validated for continuing compliance with system submission criteria before the expiration of its retention period, which in no event shall be longer than five years. (Pen. Code, § 186.34, subd. (b).)
   
4. Requires local law enforcement to notify a person before designating him or her as a gang member, associate, or affiliate in a shared gang database and provide the basis for the designation. If the person is a minor, the notice and basis of designation must be provided to the parent or guardian. (Pen. Code, § 186.34, subd. (d)(1).)
   
5. Requires that the notice describe the process for contesting the designation and inform the person of the reason for his or her designation. If the person is a minor, the process must be described for the parent or guardian, or attorney working on the minor’s behalf. (Pen. Code, § 186.34, subd. (d)(2).)
   
6. Authorizes a person, his or her parent or guardian, or an attorney working on his or her behalf, to request information from any law enforcement agency regarding whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database which that agency can access and what agency made the designation. A person so designated may also request the basis of the designation. The law enforcement agency has 30 days to respond. (Pen. Code § 186.34 (e)(1)(A)-(B).)
   
7. Authorizes a person receiving notice, or his or her parent or guardian, to submit written documentation to local law enforcement contesting the designation. The law enforcement agency has 30 days to act on the request. If the law enforcement agency denies the request for removal from the database, the person may appeal. (Pen. Code § 186.34 (f).)
   
8. Requires local law enforcement, commencing January 15, 2018, and every January 15th thereafter to submit specified data pertaining to the database to the Department of Justice, and requires the Department of Justice, commencing February 15, 2018, and every February 15th thereafter, to post each agency’s report on the department’s Internet Web site. (Pen. Code § 186.34 (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the information provided by the author, “The Cal Gang Database, a valuable resource for local law enforcement and now held to an acceptable standard of oversight, is a focus of conflict in the context of the new Presidential Administration’s focus on gang members who are here illegaly [sic]. Advocacy groups are fighting to keep the database from being given to Federal Law Enforcement Agencies in the hopes of preventing its use in enforcing immigration laws.
   
   “After the passage of AB 2298, former complaints about the database’s inaccuracy had been settled. Now, with the enforcement of AB 2298, local law enforcement will have access to an accurate and properly vetted list of known gang accomplices with a record of criminal association or activity.
   
   Providing this list to Federal Law Enforcement, when requested, will give the Federal Agencies the resources they need to enforce the law with proper information and oversight. To confirm, this is intended to be used in order to cross reference criminals who commit heinous crimes such as assault, robbery, manslaughter etc. who are gang members.”
   
2. CalGang Database: According to the CalDOJ website,^[1] CalGang is a criminal intelligence system that specifically targets members and criminal associates of criminal street gangs. The goal is to provide an accurate, timely, and electronically generated database of statewide gang related intelligence information. Only specifically trained law enforcement officers and support staff may access CalGang.

According to Policies and Procedure for the CalGang system, revised September 27, 2007,^[2] an individual can be entered into the CalGang database when two of the following criteria are found through investigation, combined with the officer’s training and expertise (the only single criteria allowing for entry is an in-custody jail classification interview):

• 1. The individual has admitted to being a gang member;
     
  2. The individual has been arrested with known gang members for offenses consistent with gang activity;
     
  3. The individual has been identified as a gang member by a reliable informant/source;
     
  4. The individual has been identified as a gang member by an untested informant;
     
  5. The subject has been seen affiliating with documented gang members;
     
  6. The individual has been seen displaying gang symbols and/or hand signs;
     
  7. The individual has been seen frequenting gang areas;
     
  8. The individual has been seen wearing gang dress;
     
  9. The individual is known to have gang tattoos; or,
     
  10. The individual is in custody and classified as a gang member pursuant to an interview.
      

There are two separate criteria for entering affiliates into the system: (a) When the individual is known to affiliate with active gang members and the law enforcement or criminal justice officer has established there is a reasonable suspicion the individual is involved in criminal activity or enterprise; and agencies entering the affiliate information into CalGang must maintain documentation, which adequately supports each entry.

1. California State Auditor Reported Concerns Regarding Accuracy of the CalGang Database: In August 2016, the California State Auditor presented a report concerning the CalGang Database to the Joint Legislative Audit Committee. The State Auditor concluded:
   
   “CalGang’s current oversight structure does not ensure that law enforcement agencies (user agencies) collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights. Although the California Department of Justice funds it, CalGang is not established in state statute and consequently receives no state oversight. Instead, the CalGang Executive Board and the California Gang Node Advisory Committee (CalGang’s governance) oversee CalGang and function independently from the State and without transparency or meaningful opportunities for public input.
   
   “Inadequate oversight contributed to the numerous instances in which the four user agencies we examined could not substantiate the validity of CalGang entries. Specifically, the agencies lacked adequate support for 13 of 100 people we reviewed in CalGang and for 131 of 563 (23 percent) of the CalGang criteria entries we reviewed. Although a person’s CalGang record must be purged after five years unless updated with subsequent criteria, we found more than 600 people in CalGang whose purge dates extended beyond the five-year limit, many of which were more than 100 years in the future. Finally, the user agencies have poorly implemented a 2014 state law requiring notifications before adding a juvenile to CalGang. Two agencies we reviewed did not provide juveniles and parents with enough information to reasonably contest the juveniles’ gang designations, thereby denying many people their right to contest a juvenile’s gang designation.
   
   “Although it asserts compliance with federal regulations and state guidelines—standards designed to protect privacy and other constitutional rights—little evidence exists that CalGang’s governance has ensured these standards are met. As a result, user agencies are tracking some people in CalGang without adequate justification, potentially violating their privacy rights. Further, by not reviewing information as required, CalGang’s governance and user agencies have diminished the system’s crime-fighting value. Although CalGang is not to be used for expert opinion or employment screenings, we found at least four appellate cases referencing expert opinions based on CalGang and three agencies we surveyed confirmed they use CalGang for employment screenings. Although these practices do not appear to be common place, they emphasize the effect CalGang can have on a person’s life.
   
   “We believe that CalGang needs an oversight structure that ensures that information is reliable and that users adhere to requirements that protect individuals’ rights. Thus, we recommend that the Legislature adopt state law assigning Justice the responsibility for CalGang oversight and specifying that CalGang must operate under defined requirements, such as supervisory and periodic record reviews.” (See The CalGang Criminal Intelligence System: As the Result of Its Weak Oversight Structure, It Contains Questionable Information That May Violate Individuals’ Privacy Rights, <https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf>.)
   
   Amidst the audit concerns, Kamala Harris, then California Attorney General, called on Sacramento lawmakers to give the CalDOJ full control over the CalGang database. (<http://www.sandiegouniontribune.com/news/immigration/sd-me-cal-gang-20170106-story.html > [as of March 28, 2017].)
   
   AB 2298 (Weber), Chapter 752, Statutes of 2016, imposed specified due process rights on California shared gang databases, including extending the requirements of providing notice and an opportunity to contest designation as a gang member or affiliate to adults, instead of just minors. Beginning in January of 2018, and annually thereafter, AB 2298 requires local law enforcement using a shared gang database to submit reports to the California Department of Justice regarding the number of persons included in the database, number of requests for removal from the database, and number of persons automatically removed. The Department of Justice must post these reports on their website. (Pen. Code, § 186.34.)
   
   AB 90 (Weber) would impose a moratorium on the use of the CalGang database commencing January 1, 2018, until, among other requirements, the Attorney General certifies that specified standardized periodic training and periodic audit regulation requirements have been met. AB 90 would also require removal from the database after two years in the absence of new information regarding gang membership. AB 90 would make the State Department of Justice responsible for oversight and administration of the CalGang database.
   
2. CalGang and Immigration Concerns: Subsequent to the state audit of CalGangs, then California Attorney General, Kamala Harris, expressed concern that federal immigration authorities could use inaccurate information in the database to take action against an individual. (http://voiceofoc.org/2016/12/state-ag-joins-effort-to-protect-gang-database-from-trump/ [as of March 30, 2016].)
   
   Practical Considerations: This bill would mandate that the CalDOJ send a copy of all information it has access to pursuant to a shared gang database – e.g., the CalGang database – to the United States Department of Justice. The CalDOJ has informed this Committee that CalGang is not actually their database. It is a series of local databases which, although connected, are not unified. The CalDOJ funds the infrastructure by which these regionally maintained databases interconnect and share data; it administers the electronic pointer system.^[3] Granting access to the database is currently up to each of the regional databases. This raises concern regarding how the CalDOJ would implement this bill. CalDOJ does maintain a local backup of all data shared over the individual systems.
   
3. Argument in Opposition: According to the Youth Justice Coalition, “…AB 1409 …will mandate that the State Department of Justice share all data it has pursuant to a shared gang database (including CalGang) to the federal Department of Justice. This would further risk detention and deportation for thousands of individuals based on their alleged membership, association or affiliation with a gang, including many who have never been arrested.
   
   “Instead, we urge you to support stronger protections for Californians against unwarranted federal investigation and access to data, as well as limiting local law enforcement’s collaboration with federal law enforcement by supporting AB 90 (Weber).
   
   “Law enforcement agencies throughout California collect personal information to label and track hundreds of thousands of people suspected of gang membership in order to target them for gang suppression. The vast majority of this documentation occurs outside any ongoing investigation of specific crimes. The largest system for accessing this information is the CalGang system, which is now used by over 6,000 law enforcement officers in at least 56 counties. Two recently passed state laws – SB 458 (Wright) and AB 2298 (Weber) – began the process of addressing the accuracy, consistency, and transparency in regards to shared gang databases by guaranteeing all people the right to be notified if they are designated a gang associate, affiliate, or member; the right to challenge their designation at the agency level; the right to appeal an unfavorable decision to the civil court; the right to be notified if they are removed; and the right to have annual data released to the public each year delineating the numbers and demographics (race, gender, age, location) of people added and removed from shared gang databases. AB 90 will enact several additional changes aimed at improving accuracy and fairness in the designation and sharing of gang allegations.”
   
4. Related Legislation:
   
   1. AB 90 (Weber) would, in part, impose a moratorium on the use of the CalGang database commencing January 1, 2018, until, among other requirements, the Attorney General certifies that standardized periodic training and periodic audit regulation requirements, as specified, have been met. The bill would also require the department to oversee removal of all data related to a person designated as a suspected gang member, associate, or affiliate in a shared gang database if no new records indicating gang membership have been entered during the previous 2 years. AB 90 passed in this Committee and was re-referred to the Assembly Committee on Appropriations.
      
   2. SB 54 (De Leon) would, among other things, prohibit state and local law enforcement agencies and agencies, including school police and security departments, from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified. SB 54 was held at the Desk in the Assembly.
      
5. Prior Legislation:
   
   1. AB 2298 (Weber), Chapter 752, Statutes of 2016, imposed specified due process rights on California shared gang databases.
      
   2. AB 2792 (Bonta) Chapter 768, Statutes of 2016, requires local law enforcement agencies, prior to an interview between the United States Immigration and Customs Enforcement (ICE) and an individual in custody, to provide the individual a written consent form, as specified, that would include information describing the purpose of the interview, that it is voluntary, and that the individual may decline to be interviewed. Requires local law enforcement agencies to provide copies of specified documentation received from ICE to the individual and to notify the individual regarding the intent of the agency to comply with ICE requests.
      
   3. AB 829 (Nazarian), of the 2015-2016 Legislative Session, would have outlined procedural due process rights for persons designated for inclusion in a shared gang database. AB 829 failed passage in the Assembly Judiciary Committee.
      
   4. AB 458 (Wright) Chapter 797, Statutes of 2013, defined “shared gang database” and required local law enforcement to notify a minor and his or her parent or guardian and provide an opportunity to contest before designating that minor as a gang member, associate, or affiliate in a shared gang database, except as specified.
      

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

All of Us or None

Alliance for Boys and Men of Color

American Civil Liberties Union

American Friends Service Committee

Amity Foundation

California Immigrant Policy Center

California Immigrant Youth Justice Alliance

California Public Defenders Association

Communities United for Restorative Youth Justice

Courage Campaign

Electronic Frontier Foundation

Fathers and Families of San Joaquin

Homeboy Industries

Housing and Economic Rights Advocates

Immigrant Legal Resource Center

Immigration Youth Coalition

Legal Services for Prisoners with Children

Loyola Law School Immigrant Rights Clinic

National Day Laborer Organizing Network

National Immigration Law Center

Pillars of the Community

Policy Link

Silicon Valley DeBug

Urban Peace Institute

Youth Justice Coalition

Analysis Prepared by:

Cheryl Anderson / PUB. S. /

1. < https://oag.ca.gov/calgang> [as of March 28, 2017]
   ↑

2. <https://oag.ca.gov/sites/all/files/agweb/pdfs/calgang/policy_procedure.pdf?> [as of March 28, 2017]
   ↑

3. (http://www.auditor.ca.gov/pdfs/reports/2015-130.pdf [as of March 30,2017] [“CalGang is what is called a pointer system; the records within it point—or refer—to documents outside of CalGang that contain information about suspected gang members and their affiliates….”].) ↑