AB 90: Criminal gangs.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-10-12
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database 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. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would revise the definition of shared gang database for its purposes to mean any gang database that is accessed by an agency or person outside of the agency that created the database. The bill would also define gang database for its purposes as any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate. The bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang members. The bill would require the department to establish the Gang Database Technical Advisory Committee with specified members to advise the department in promulgating regulations governing the use, operation, and oversight of shared gang databases, as specified. The bill would require the department to develop and implement standardized periodic training for all persons with access to the CalGang database. The bill would require the department, by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would require the department, commencing February 15, 2018, to publish and post on the departments Internet Web site an annual report regarding specified information about the CalGang database and the periodic audits. The bill would impose a moratorium on the use of the CalGang database commencing January 1, 2018, until the Attorney General certifies that specified information has been purged from the CalGang database. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a shared gang database, and would make additional conforming changes.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database 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. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would revise the definition of shared gang database for its purposes to mean any gang database that is accessed by an agency or person outside of the agency that created the database. The bill would also define gang database for its purposes as any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate. The bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang members. The bill would require the department to establish the Gang Database Technical Advisory Committee with specified members to advise the department in promulgating regulations governing the use, operation, and oversight of shared gang databases, as specified. The bill would require the department to develop and implement standardized periodic training for all persons with access to the CalGang database. The bill would require the department, by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would require the department, commencing February 15, 2018, to publish and post on the departments Internet Web site an annual report regarding specified information about the CalGang database and the periodic audits. The bill would impose a moratorium on the use of the CalGang database commencing January 1, 2018, until the Attorney General certifies that specified information has been purged from the CalGang database. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a shared gang database, and would make additional conforming changes.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database 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. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would revise the definition of shared gang database for its purposes to mean any gang database that is accessed by an agency or person outside of the agency that created the database. The bill would also define gang database for its purposes as any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate. The bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang members. The bill would require the department to establish the Gang Database Technical Advisory Committee with specified members to advise the department in promulgating regulations governing the use, operation, and oversight of shared gang databases, as specified. The bill would require the department to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database. persons with access to the CalGang database. The bill would require the department, by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would require the department, commencing February 15, 2018, to publish and post on the departments Internet Web site an annual report regarding specified information about the CalGang database and the periodic audits. The bill would impose a moratorium on the use of the CalGang database commencing January 1, 2018, until specified regulations have been adopted and the Attorney General certifies that specified information has been purged from the CalGang database. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a shared gang database, and would make additional conforming changes. The bill would state findings and declarations of the Legislature regarding shared gang databases.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database 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. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would revise the definition of shared gang database for its purposes to mean any gang database that is accessed by an agency or person outside of the agency that created the database. The bill would also define gang database for its purposes as any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate. The bill would make the Department of Justice responsible for administering and overseeing any gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang members. The bill would require the department to establish the Gang Database Technical Advisory Committee with specified members to advise the department in promulgating regulations governing the use, operation, and oversight of gang databases, as specified. The bill would require the department to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database. The bill would require the department, by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would require the department, commencing February 15, 2018, to publish and post on the departments Internet Web site an annual report regarding specified information about the CalGang database and the periodic audits. The bill would impose a moratorium on the use of the CalGang database commencing January 1, 2018, until specified regulations have been adopted and specified information has been purged from the CalGang database. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a gang database, and would make additional conforming changes. The bill would state findings and declarations of the Legislature regarding shared gang databases.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database 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. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would revise the definition of shared gang database for its purposes to mean any gang database that is accessed by an agency or person outside of the agency that created the database. The bill would also define gang database for its purposes as any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate. The bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database or the shared gang databases that participate in the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang members, and the definitions of offenses consistent with gang activity. members. The bill would require the department to establish a technical advisory committee the Gang Database Technical Advisory Committee with specified members to advise on uses of shared gang databases. the department in promulgating regulations governing the use, operation, and oversight of gang databases, as specified. The bill would require the department to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database. The bill would require the department department, by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would require the department, commencing February 15, 2018, to publish and post on the departments Internet Web site an annual report regarding specified information about the CalGang database and the periodic audits. The bill would 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 have been met. until specified regulations have been adopted and specified information has been purged from the CalGang database. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a gang database, and would make additional conforming changes. The bill would state findings and declarations of the Legislature regarding shared gang databases.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database 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. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database or the shared gang databases that participate in the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, the criteria for identifying gang members, and the definitions of offenses consistent with gang activity. The bill would require the department to establish a technical advisory committee with specified members to advise on uses of shared gang databases. The bill would require the department to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database. The bill would require the department to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would 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 have been met. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a gang database, and would make additional conforming changes. The bill would 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. The bill would state findings and declarations of the Legislature regarding shared gang databases.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database as having various attributes, including, among others, that the database contains personal, 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. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database or the shared gang databases that participate in the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, the criteria for identifying gang members, and the definitions of offenses consistent with gang activity. The bill would require the department to establish a technical advisory committee with specified members to advise on uses of shared gang databases. The bill would require the department to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database. The bill would require the department to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would 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 have been met. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a gang database, and would make additional conforming changes. The bill would 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. The bill would state findings and declarations of the Legislature regarding shared gang databases.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a shared gang database 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 state the intent of the Legislature to enact legislation to ensure that CalGang and any other equivalent shared gang database has an oversight structure that supports accountability for proper database use and protection of individual rights.This bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database or the shared gang databases that participate in the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, the criteria for identifying gang members, and the definitions of offenses consistent with gang activity. The bill would require the department to establish a technical advisory committee with specified members to advise on uses of shared gang databases. The bill would require the department to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database. The bill would require the department to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would 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 have been met. The bill would 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. The bill would state findings and declarations of the Legislature regarding shared gang databases.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides 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 defines a shared gang database 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 state the intent of the Legislature to enact legislation to ensure that CalGang and any other equivalent shared gang database has an oversight structure that supports accountability for proper database use and protection of individual rights.
This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.Section 70615 of the Government Code is amended to read:70615.The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a)An appeal of a local agencys decision regarding an administrative fine or penalty under Section 53069.4.
(b)An appeal under Section 40230 of the Vehicle Code of an administrative agencys decision regarding a parking violation.
(c)An appeal under Section 99582 of the Public Utilities Code of a hearing officers determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d)A petition under Section 186.35 of the Penal Code challenging a law enforcement agencys inclusion of a persons information in a shared gang database.
SEC. 3.Section 186.34 of the Penal Code is repealed.SEC. 4.Section 186.34 is added to the Penal Code, to read:186.34.(a)For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:
(1)Criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of crimes enumerated in paragraphs (1) to (25), inclusive, and paragraphs (31) to (33), inclusive, of subdivision (e) of Section 186.22 who have a common identifying sign, symbol, or name, and whose members individually or collectively engage in or have engaged in a pattern of definable criminal activity.
(2)Gang database means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.
(3)Law enforcement agency means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.
(4)Shared gang database means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.
(b)Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:
(1)Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.
(2)Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
(c)(1)To the extent a local law enforcement agency elects to utilize a shared gang database prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.
(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the reason for his or her designation in the database.
(d)(1)(A)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency and the name of the law enforcement agency that made the designation. A request pursuant to this paragraph shall be in writing.
(B)If a person about whom information is requested pursuant to subparagraph (A) is designated as a suspected gang member, associate, or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (e).
(2)The law enforcement agency shall provide information requested under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age.
(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.
(e)Subsequent to the notice described in subdivision (c) or the law enforcement agencys response to an information request described in subdivision (d), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is under 18 years of age, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not a suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and, if the person is under 18 years of age, his or her parent or guardian, with written verification of the agencys decision within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. If the law enforcement agency does not provide a verification of the agencys decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian may petition the court to review the law enforcement agencys denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database pursuant to Section 186.35.
(f)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
SEC. 5.Section 186.35 of the Penal Code is repealed.SEC. 6.Section 186.35 is added to the Penal Code, to read:186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (e) of Section 186.34, may petition the court to review the law enforcement agencys denial of the request for removal and to order the law enforcement agency to remove the person from the shared gang database. The petition may be brought by the person or the persons attorney, or if the person is under 18 years of age, by his or her parent or guardian or an attorney on behalf of the parent or guardian.
(b)The petition shall be filed and served within 90 calendar days of the agencys mailing or personal service of the verification of the decision to deny the request for removal from the shared gang database or the date that the request is deemed denied under subdivision (e) of Section 186.34. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court of the county in which the local law enforcement agency is located or, if the person resides in California, in the county in which the person resides. A copy of the petition shall be served on the agency in person or by first-class mail. Proof of service of the petition on the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.
(c)The evidentiary record for the courts determination of the petition shall be limited to the agencys statement of the basis of its designation made pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the person contesting the designation pursuant to subdivision (e) of Section 186.34.
(d)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the persons active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.
(e)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 7.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for establishing regulations for shared gang databases. All shared gang databases shall comply with those regulations.
(b)The department shall administer and oversee the CalGang database. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database.
(c)The department shall establish the Gang Database Technical Advisory Committee.
(d)Each appointee to the committee, regardless of the appointing authority, shall have the following characteristics:
(1)Substantial prior knowledge of issues related to gang intervention, suppression, or prevention efforts.
(2)Decisionmaking authority for, or direct access to those who have decisionmaking authority for, the agency or organization he or she represents.
(3)A willingness to serve on the committee and a commitment to contribute to the committees work.
(e)The membership of the committee shall be as follows:
(1)The Attorney General, or his or her designee.
(2)The President of the California District Attorneys Association, or his or her designee.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang violence intervention, appointed by the Senate Committee on Rules.
(5)A representative of organizations that provide immigration services, appointed by the Senate Committee on Rules.
(6)The President of the California Gang Investigators Association, or his or her designee.
(7)A representative of community organizations that specialize in civil or human rights, appointed by the Speaker of the Assembly.
(8)A person who has personal experience with a shared gang database as someone who is or was impacted by gang labeling, appointed by the Speaker of the Assembly.
(9)The chairperson of the California Gang Node Advisory Committee, or his or her designee.
(10)The President of the California Police Chiefs Association, or his or her designee.
(11)The President of the California State Sheriffs Association, or his or her designee.
(f)The committee shall appoint a chairperson from among the members appointed pursuant to subdivision (e). The chairperson shall serve in that capacity at the pleasure of the committee.
(g)Each member of the committee who is appointed pursuant to this section shall serve without compensation.
(h)If a committee member is unable to adequately perform his or her duties, he or she is subject to removal from the board by a majority vote of the full committee.
(i)A vacancy on the committee as a result of the removal of a member shall be filled by the appointing authority of the removed member within 30 days of the vacancy.
(j)Committee meetings are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(k)The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of shared gang databases. The regulations issued by the department shall, at minimum, ensure the following:
(1)The system integrity of a shared gang database.
(2)All law enforcement agency and criminal justice agency personnel who access a shared gang database undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures.
(3)Proper criteria are established for supervisory reviews of all database entries and regular reviews of records entered into a shared gang database.
(4)Reasonable measures are taken to locate equipment related to the operation of a shared gang database in a secure area in order to preclude access by unauthorized personnel.
(5)Law enforcement agencies and criminal justice agencies notify the department of any missing equipment that could potentially compromise a shared gang database.
(6)Personnel authorized to access a shared gang database are limited to sworn law enforcement personnel, nonsworn law enforcement support personnel, or noncriminal justice technical or maintenance personnel, including information technology and information security staff and contract employees, who have been subject to character or security clearance and who have received approved training.
(7)Any records contained in a shared gang database are not disclosed for employment or military screening purposes.
(8)Any records contained in a shared gang database are not disclosed for purposes of enforcing federal immigration law, unless required by state or federal statute or regulation.
(9)The committee does not discuss or access individual records contained in a shared gang database.
(l)The regulations issued by the department shall include, but not be limited to, establishing the following:
(1)Policies and procedures for entering, reviewing, and purging documentation.
(2)Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership.
(3)Retention periods for information about a person in a shared gang database that is consistent with empirical research on the duration of gang membership.
(4)Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs.
(5)Policies and procedures for notice to a person in a shared gang database. This includes policies and procedures for when notification would compromise an active criminal investigation or the health or safety of a minor.
(6)Policies and procedures for responding to an information request, a request for removal, or a petition for removal under Sections 186.34 and 186.35, respectively. This includes policies and procedures for a request or petition that could compromise an active criminal investigation or the health or safety of a minor.
(7)Policies and procedures for sharing information from a shared gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access. This includes sharing of information with a partner in a joint task force.
(8)Implementation of supervisory review procedures and periodic record reviews by law enforcement agencies and criminal justice agencies, and reporting of the results of those reviews to the department.
(m)Shared gang databases shall be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines. These include Part 23 of Title 28 of the Code of Federal Regulations and the departments Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(n)The department, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database. The department shall mandate the purge of any information for which a user agency cannot establish adequate support.
(o)The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(p)Commencing February 15, 2018, and annually on February 15 thereafter, the department shall publish an annual report on the CalGang database.
(1)The report shall include, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information for each user agency:
(A)The number of persons included in the CalGang database on the day of reporting.
(B)The number of persons added to the CalGang database during the immediately preceding 12 months.
(C)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 received during the immediately preceding 12 months.
(D)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 that were granted during the immediately preceding 12 months.
(E)The number of petitions for removal of information about a person from the CalGang database pursuant to Section 186.35 adjudicated in the immediately preceding 12 months, including their dispositions.
(F)The number of persons whose information was removed from the CalGang database due to the expiration of a retention period during the immediately preceding 12 months.
(G)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months.
(H)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
(2)The report shall include the results from each user agencys periodic audit conducted pursuant to subdivision (n).
(3)The department shall post the report on the departments Internet Web site.
(4)The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(q)The department shall instruct all user agencies to review the records of criminal street gang members entered into a shared gang database to ensure the existence of proper support for each criterion for entry in the shared gang database.
(r)(1)The department shall instruct each CalGang node agency to purge from a shared gang database any record of a person entered into the database designated as a suspected gang member, associate, or affiliate that does not meet criteria for entry or whose entry was based upon the following criteria: jail classification, frequenting gang neighborhoods, or on the basis of an untested informant. Unsupported criteria shall be purged and the records of a person shall be purged if the remaining criteria are not sufficient to support the persons designation.
(2)After the purge is completed, the shared gang database shall be examined using a statistically valid sample, pursuant to professional auditing standards to ensure that all fields in the database are accurate.
(s)(1)Commencing January 1, 2018, any shared gang database operated by law enforcement in California including, but not limited to, the CalGang database, shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies that the purge required in subdivision (r) has been completed. After the purge has been completed and before the department adopts the regulations required by this section, new data may be entered, provided the new data meets the criteria established by the conditions of the purge.
(2)The department shall not use regulations developed pursuant to this section to invalidate data entries entered prior to the adoption of those regulations.
(t)The department shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines.
(u)The department may enforce a violation of a state or federal law or regulation with respect to a shared gang database, or a violation of regulation, policy, or procedure established by the department pursuant to this title by any of the following methods:
(1)Letter of censure.
(2)Temporary suspension of access privileges to the shared gang database system.
(3)Revocation of access privileges to the shared gang database system.
(v)The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for any individual who shares information from a shared gang database for employment or military screening purposes.
(w)The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for an individual who shares information from a shared gang database for federal immigration law purposes, unless required by state or federal statute or regulation.
(x)The department shall ensure that the shared gang database user account of an individual is disabled if the individual no longer has a need or right to access a shared gang database because he or she has separated from his or her employment with a user agency or for another reason.
This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.Section 70615 of the Government Code is amended to read:70615.The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a)An appeal of a local agencys decision regarding an administrative fine or penalty under Section 53069.4.
(b)An appeal under Section 40230 of the Vehicle Code of an administrative agencys decision regarding a parking violation.
(c)An appeal under Section 99582 of the Public Utilities Code of a hearing officers determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d)A petition under Section 186.35 of the Penal Code challenging a law enforcement agencys inclusion of a persons information in a shared gang database.
SEC. 3.Section 186.34 of the Penal Code is repealed.SEC. 4.Section 186.34 is added to the Penal Code, to read:186.34.(a)For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:
(1)Criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of crimes enumerated in paragraphs (1) to (25), inclusive, and paragraphs (31) to (33), inclusive, of subdivision (e) of Section 186.22 who have a common identifying sign, symbol, or name, and whose members individually or collectively engage in or have engaged in a pattern of definable criminal activity.
(2)Gang database means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.
(3)Law enforcement agency means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.
(4)Shared gang database means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.
(b)Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:
(1)Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.
(2)Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
(c)(1)To the extent a local law enforcement agency elects to utilize a shared gang database prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.
(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the reason for his or her designation in the database.
(d)(1)(A)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency and the name of the law enforcement agency that made the designation. A request pursuant to this paragraph shall be in writing.
(B)If a person about whom information is requested pursuant to subparagraph (A) is designated as a suspected gang member, associate, or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (e).
(2)The law enforcement agency shall provide information requested under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age.
(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.
(e)Subsequent to the notice described in subdivision (c) or the law enforcement agencys response to an information request described in subdivision (d), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is under 18 years of age, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not a suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and, if the person is under 18 years of age, his or her parent or guardian, with written verification of the agencys decision within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. If the law enforcement agency does not provide a verification of the agencys decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian may petition the court to review the law enforcement agencys denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database pursuant to Section 186.35.
(f)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
SEC. 5.Section 186.35 of the Penal Code is repealed.SEC. 6.Section 186.35 is added to the Penal Code, to read:186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (e) of Section 186.34, may petition the court to review the law enforcement agencys denial of the request for removal and to order the law enforcement agency to remove the person from the shared gang database. The petition may be brought by the person or the persons attorney, or if the person is under 18 years of age, by his or her parent or guardian or an attorney on behalf of the parent or guardian.
(b)The petition shall be filed and served within 90 calendar days of the agencys mailing or personal service of the verification of the decision to deny the request for removal from the shared gang database or the date that the request is deemed denied under subdivision (e) of Section 186.34. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court of the county in which the local law enforcement agency is located or, if the person resides in California, in the county in which the person resides. A copy of the petition shall be served on the agency in person or by first-class mail. Proof of service of the petition on the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.
(c)The evidentiary record for the courts determination of the petition shall be limited to the agencys statement of the basis of its designation made pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the person contesting the designation pursuant to subdivision (e) of Section 186.34.
(d)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the persons active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.
(e)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 7.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for establishing regulations for shared gang databases. All shared gang databases shall comply with those regulations.
(b)The department shall administer and oversee the CalGang database. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database.
(c)The department shall establish the Gang Database Technical Advisory Committee.
(d)Each appointee to the committee, regardless of the appointing authority, shall have the following characteristics:
(1)Substantial prior knowledge of issues related to gang intervention, suppression, or prevention efforts.
(2)Decisionmaking authority for, or direct access to those who have decisionmaking authority for, the agency or organization he or she represents.
(3)A willingness to serve on the committee and a commitment to contribute to the committees work.
(e)The membership of the committee shall be as follows:
(1)The Attorney General, or his or her designee.
(2)The President of the California District Attorneys Association, or his or her designee.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang violence intervention, appointed by the Senate Committee on Rules.
(5)A representative of organizations that provide immigration services, appointed by the Senate Committee on Rules.
(6)The President of the California Gang Investigators Association, or his or her designee.
(7)A representative of community organizations that specialize in civil or human rights, appointed by the Speaker of the Assembly.
(8)A person who has personal experience with a shared gang database as someone who is or was impacted by gang labeling, appointed by the Speaker of the Assembly.
(9)The chairperson of the California Gang Node Advisory Committee, or his or her designee.
(10)The President of the California Police Chiefs Association, or his or her designee.
(11)The President of the California State Sheriffs Association, or his or her designee.
(f)The committee shall appoint a chairperson from among the members appointed pursuant to subdivision (e). The chairperson shall serve in that capacity at the pleasure of the committee.
(g)Each member of the committee who is appointed pursuant to this section shall serve without compensation.
(h)If a committee member is unable to adequately perform his or her duties, he or she is subject to removal from the board by a majority vote of the full committee.
(i)A vacancy on the committee as a result of the removal of a member shall be filled by the appointing authority of the removed member within 30 days of the vacancy.
(j)Committee meetings are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(k)The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of shared gang databases. The regulations issued by the department shall, at minimum, ensure the following:
(1)The system integrity of a shared gang database.
(2)All law enforcement agency and criminal justice agency personnel who access a shared gang database undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures.
(3)Proper criteria are established for supervisory reviews of all database entries and regular reviews of records entered into a shared gang database.
(4)Reasonable measures are taken to locate equipment related to the operation of a shared gang database in a secure area in order to preclude access by unauthorized personnel.
(5)Law enforcement agencies and criminal justice agencies notify the department of any missing equipment that could potentially compromise a shared gang database.
(6)Personnel authorized to access a shared gang database are limited to sworn law enforcement personnel, nonsworn law enforcement support personnel, or noncriminal justice technical or maintenance personnel, including information technology and information security staff and contract employees, who have been subject to character or security clearance and who have received approved training.
(7)Any records contained in a shared gang database are not disclosed for employment or military screening purposes.
(8)Any records contained in a shared gang database are not disclosed for purposes of enforcing federal immigration law, unless required by state or federal statute or regulation.
(9)The committee does not discuss or access individual records contained in a shared gang database.
(l)The regulations issued by the department shall include, but not be limited to, establishing the following:
(1)Policies and procedures for entering, reviewing, and purging documentation.
(2)Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership.
(3)Retention periods for information about a person in a shared gang database that is consistent with empirical research on the duration of gang membership.
(4)Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs.
(5)Policies and procedures for notice to a person in a shared gang database. This includes policies and procedures for when notification would compromise an active criminal investigation or the health or safety of a minor.
(6)Policies and procedures for responding to an information request, a request for removal, or a petition for removal under Sections 186.34 and 186.35, respectively. This includes policies and procedures for a request or petition that could compromise an active criminal investigation or the health or safety of a minor.
(7)Policies and procedures for sharing information from a shared gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access. This includes sharing of information with a partner in a joint task force.
(8)Implementation of supervisory review procedures and periodic record reviews by law enforcement agencies and criminal justice agencies, and reporting of the results of those reviews to the department.
(m)Shared gang databases shall be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines. These include Part 23 of Title 28 of the Code of Federal Regulations and the departments Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(n)The department, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database. The department shall mandate the purge of any information for which a user agency cannot establish adequate support.
(o)The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(p)Commencing February 15, 2018, and annually on February 15 thereafter, the department shall publish an annual report on the CalGang database.
(1)The report shall include, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information for each user agency:
(A)The number of persons included in the CalGang database on the day of reporting.
(B)The number of persons added to the CalGang database during the immediately preceding 12 months.
(C)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 received during the immediately preceding 12 months.
(D)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 that were granted during the immediately preceding 12 months.
(E)The number of petitions for removal of information about a person from the CalGang database pursuant to Section 186.35 adjudicated in the immediately preceding 12 months, including their dispositions.
(F)The number of persons whose information was removed from the CalGang database due to the expiration of a retention period during the immediately preceding 12 months.
(G)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months.
(H)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
(2)The report shall include the results from each user agencys periodic audit conducted pursuant to subdivision (n).
(3)The department shall post the report on the departments Internet Web site.
(4)The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(q)The department shall instruct all user agencies to review the records of criminal street gang members entered into a shared gang database to ensure the existence of proper support for each criterion for entry in the shared gang database.
(r)(1)The department shall instruct each CalGang node agency to purge from a shared gang database any record of a person entered into the database designated as a suspected gang member, associate, or affiliate that does not meet criteria for entry or whose entry was based upon the following criteria: jail classification, frequenting gang neighborhoods, or on the basis of an untested informant. Unsupported criteria shall be purged and the records of a person shall be purged if the remaining criteria are not sufficient to support the persons designation.
(2)After the purge is completed, the shared gang database shall be examined using a statistically valid sample, pursuant to professional auditing standards to ensure that all fields in the database are accurate.
(s)(1)Commencing January 1, 2018, any shared gang database operated by law enforcement in California including, but not limited to, the CalGang database, shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies that the purge required in subdivision (r) has been completed. After the purge has been completed and before the department adopts the regulations required by this section, new data may be entered, provided the new data meets the criteria established by the conditions of the purge.
(2)The department shall not use regulations developed pursuant to this section to invalidate data entries entered prior to the adoption of those regulations.
(t)The department shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines.
(u)The department may enforce a violation of a state or federal law or regulation with respect to a shared gang database, or a violation of regulation, policy, or procedure established by the department pursuant to this title by any of the following methods:
(1)Letter of censure.
(2)Temporary suspension of access privileges to the shared gang database system.
(3)Revocation of access privileges to the shared gang database system.
(v)The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for any individual who shares information from a shared gang database for employment or military screening purposes.
(w)The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for an individual who shares information from a shared gang database for federal immigration law purposes, unless required by state or federal statute or regulation.
(x)The department shall ensure that the shared gang database user account of an individual is disabled if the individual no longer has a need or right to access a shared gang database because he or she has separated from his or her employment with a user agency or for another reason.
This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.The Legislature finds and declares the following:(a)Gang databases only provide value to law enforcement if they are accurate.(b)Law enforcement agencies use a variety of overlapping databases that include designations of persons as gang members or associates.(c)Databases of criminal intelligence information on gangs and gang members, including pointer systems and data integration and analysis solutions, continue to increase in their ability to search and analyze vast amounts of data. Due process and privacy protections must keep up with this advancing technology.(d)A recent audit by the California State Auditor of the CalGang database, a gang database shared by law enforcement agencies statewide, found serious and systemic problems. Among other things, the audit found the following:(1)The current oversight structure for the CalGang database does not ensure that user agencies collect and maintain records in a manner that preserves privacy rights. Although the Department of Justice funds a contract to maintain the CalGang database, the system is not established in statute.(2)The CalGang database is administered by the CalGang Executive Board, an executive board comprised of user agencies. These user entities function independently from the state and without transparency, outside accountability, or meaningful opportunities for public engagement.(3)In practice, there is little evidence that the CalGang Executive Board has ensured that user agencies comply with either the federal regulations or the California Attorney Generals Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.(4)A review of entries from four agencies revealed systemic problems with the data. Only one of the nine gangs reviewed met the requirements of the CalGang database policy to validate the organization as a gang before entry. Of the records reviewed, user agencies lacked adequate support to justify the inclusion of approximately 13 percent of persons designated as gang members or associates, and 25 percent of gang criteria used overall was unsubstantiated. Errors included source documentation that directly contradicted the stated evidence of gang membership in the CalGang database system.(5)While the CalGang database policy states that information in the system should not be used as a statement of fact in official reports or for any purposes unrelated to law enforcement, the audit found criminal cases where judges referred to the CalGang database as support for expert opinions that persons were or were not gang members. Law enforcement agencies admitted to using the CalGang database for employment or military-related screenings.(e)Although law enforcement officials told the California State Auditor that designation as a gang member or associate in the CalGang database is of little impact to persons because the CalGang database only points to source documentation, the system can have significant impacts on persons.(f)Though there are profound effects on a persons life as a result of a designation as a gang member or associate in a shared gang database, there are few safeguards against incorrect designations.(g)The overwhelming majority of persons designated as gang members or associates in a shared gang database have never received notice of their designation nor notice of their right to contest their designation.(h)Current criteria for designating a person as a gang member or associate in the CalGang database, including identification by an untested informant, or the frequenting of gang areas that are also the subjects residence, school, place of employment, or place of worship, are ambiguous, overbroad, and not based in empirical research on gangs or gang membership.(i)Shared gang databases information is shared with federal agencies, that are required by federal law to share this information with Immigration and Customs Enforcement (ICE) for the purpose of immigration enforcement. ICE may use a persons alleged gang membership as a reason to deny release on bond, to deny eligibility for discretionary immigration relief and benefits, to prioritize removal, or even to identify a person as a gang member to police in the country to which the person is deported.(j)In order to ensure trust between Californias immigrant community and state and local law enforcement agencies, access to gang databases must not be used for the purpose of enforcing immigration laws.(k)In order to ensure accuracy, support accountability, and protect fundamental rights, an oversight structure must be created for shared gang databases.SEC. 3.SEC. 2.Section 70615 of the Government Code is amended to read:70615.The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a)An appeal of a local agencys decision regarding an administrative fine or penalty under Section 53069.4.
(b)An appeal under Section 40230 of the Vehicle Code of an administrative agencys decision regarding a parking violation.
(c)An appeal under Section 99582 of the Public Utilities Code of a hearing officers determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d)A petition under Section 186.35 of the Penal Code challenging a law enforcement agencys inclusion of a persons information in a shared gang database.
SEC. 4.SEC. 3.Section 186.34 of the Penal Code is repealed.SEC. 5.Section 186.34 is added to the Penal Code, to read:186.34.(a)For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:(1)Access to a database means any of the following:(A)The creation of a user account or the possession of a username and password.(B)The ability to obtain, examine, search, or retrieve records.(C)The ability to input, update, or remove records.(D)Possession of bulk data from the database.(2)Bulk data means any electronic collection of data composed of information from multiple records, whose primary relationship to each other is their shared origin from a single or multiple databases.(3)Database means any searchable collection of electronically stored records.(4)Gang database means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.(5)Law enforcement agency means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.(6)Shared gang database means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.(b)Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:(1)Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.(2)Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.(c)(1)Prior to designating a person as a gang member or associate in a shared gang database, the designating agency shall provide written notice to the person of its designation, and shall, if the person is under 18 years of age, provide written notice of the designation to the persons parent or guardian.(2)The notice described in paragraph (1) shall provide documentation reflecting the factual basis for the designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.(3)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the persons parent or guardian to request the removal of the persons information from the shared gang database.(4)Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.(d)(1)A person, or, if the person is under 18 years of age, the persons parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a gang member or associate in a shared gang database accessible by that law enforcement agency. A request pursuant to this paragraph shall be in writing and shall identify the person who is the subject of the request by full name and date of birth.(2)If the responding agency has submitted information about the subject of the request to a shared gang database, the agency shall provide documentation reflecting the factual basis for the agencys designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.(3)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the persons parent or guardian, to request the removal of the persons information from the shared gang database.(4)If a shared gang database includes information about the subject of the request that was submitted by an agency other than the responding agency, the responding agency shall provide the name of that agency.(5)The agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request. If the agency does not provide a written response within the required 30-day period, the person may petition a court to order the agency to remove all information about the person from the shared gang database pursuant to Section 186.35.(6)Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.(e)(1)Subsequent to the notice described in subdivision (c) or the law enforcement agencys response to an information request described in subdivision (d), the person designated as a gang member or associate, or, if the person is under 18 years of age, the persons parent or guardian, may submit a written request to the law enforcement agency for removal of all information entered by that agency about the person from all shared gang databases, and shall include any documentation the person making the request wishes to submit to challenge the designation of the person.(2)The law enforcement agency shall review the documentation, and if the agency determines that the subject of the request is not an active gang member or associate as designated, or that the organization is not a criminal street gang, the agency shall remove all information entered by that agency about the subject of the request or the gang from all shared gang databases.(3)The law enforcement agency shall provide the person making the request with written confirmation that all information about the subject of the request has been removed from the database, or of the agencys decision to deny the request.(4)The law enforcement agency shall provide the confirmation that all information about the subject of the request has been removed from the database or the agencys decision to deny the request within 30 calendar days of receipt of request submitted pursuant to paragraph (1). If the law enforcement agency does not provide a confirmation that all information about the person has been removed from the database or the agencys decision to deny the request within the required 30-day period, the request shall be deemed denied.(f)This section does not require a law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.SEC. 4.Section 186.34 is added to the Penal Code, to read:186.34.(a)For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:
(1)Criminal street gang means an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of crimes enumerated in paragraphs (1) to (25), inclusive, and paragraphs (31) to (33), inclusive, of subdivision (e) of Section 186.22 who have a common identifying sign, symbol, or name, and whose members individually or collectively engage in or have engaged in a pattern of definable criminal activity.
(2)Gang database means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.
(3)Law enforcement agency means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.
(4)Shared gang database means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.
(b)Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:
(1)Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.
(2)Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
(c)(1)To the extent a local law enforcement agency elects to utilize a shared gang database prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.
(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the reason for his or her designation in the database.
(d)(1)(A)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency and the name of the law enforcement agency that made the designation. A request pursuant to this paragraph shall be in writing.
(B)If a person about whom information is requested pursuant to subparagraph (A) is designated as a suspected gang member, associate, or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (e).
(2)The law enforcement agency shall provide information requested under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age.
(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.
(e)Subsequent to the notice described in subdivision (c) or the law enforcement agencys response to an information request described in subdivision (d), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is under 18 years of age, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not a suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and, if the person is under 18 years of age, his or her parent or guardian, with written verification of the agencys decision within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. If the law enforcement agency does not provide a verification of the agencys decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian may petition the court to review the law enforcement agencys denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database pursuant to Section 186.35.
(f)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
SEC. 6.SEC. 5.Section 186.35 of the Penal Code is repealed.SEC. 7.Section 186.35 is added to the Penal Code, to read:186.35.(a)A person who is designated as a suspected gang member or associate by a law enforcement agency in a shared gang database and who has requested removal pursuant to subdivision (e) of Section 186.34 and whose request was denied, or a person who has requested information as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 and received no timely reply, may petition the court to order the agency to remove all information entered by that agency about the petitioner or gang from all shared gang databases.(b)The petition may be brought by the person, or, if the person is under 18 years of age, by the persons parent or guardian. A parent or guardian who petitions the court does not commit the unlawful practice of law by doing so, notwithstanding Section 6125 of the Business and Professions Code.(c)A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in the county in which the designating law enforcement agency is located, or, if the petitioner resides in California, in the county in which the petitioner resides. A copy of the petition shall be served in person or by first-class mail upon the agency by the petitioner. Proof of service of the petition upon the agency shall be filed in the superior court.(d)If more than one agency has designated the petitioner as a gang member or associate, or included information about the petitioner in the same shared gang database, the petitioner shall request removal from all agencies before petitioning the court. When petitioning the court, a copy of the petition shall be served in person or by first-class mail upon all agencies by the petitioner. Proof of service of the petition upon all agencies shall be filed in the superior court.(e)If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and was denied, the petition shall be filed and served within 90 calendar days of the petitioners receipt of the written denial. If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and no timely response to the request was received, the petition shall be filed and served within 120 calendar days of the written request for removal. If a petitioner requested information from a law enforcement agency as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 but received no timely reply, the petition shall be filed and served within 120 calendar days of the written information request. If multiple law enforcement agencies have designated the petitioner as a suspected gang member or associate, or included information on the petitioner in the same database, the time to file expires 120 calendar days after the latest deadline for an agencys response. For purposes of computing the 90-calendar-day period, or the 120-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.(f)The evidentiary record for the courts determination of the petition shall be limited to only documentation provided to the petitioner by the agency pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the petitioner pursuant to subdivision (e) of Section 186.34. If a petition is made following a law enforcement agencys failure to make a timely response to an information request pursuant to subdivision (d) of Section 186.34, the agency may not present any evidence of gang membership or affiliation in reply to the petition but may present evidence regarding receipt of the request.(g)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency or agencies have failed to establish by clear and convincing evidence the persons active gang membership or associate status as designated, or reasonable suspicion that the organization is a criminal street gang, the court shall order the law enforcement agency or agencies to remove all information about the petitioner entered by that agency or agencies from all shared gang databases.(h)A petitioner may file a new petition pursuant to this subdivision no sooner than 180 calendar days after a previous petition. For purposes of computing the 180-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.(i)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the petitioner of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.SEC. 6.Section 186.35 is added to the Penal Code, to read:186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (e) of Section 186.34, may petition the court to review the law enforcement agencys denial of the request for removal and to order the law enforcement agency to remove the person from the shared gang database. The petition may be brought by the person or the persons attorney, or if the person is under 18 years of age, by his or her parent or guardian or an attorney on behalf of the parent or guardian.
(b)The petition shall be filed and served within 90 calendar days of the agencys mailing or personal service of the verification of the decision to deny the request for removal from the shared gang database or the date that the request is deemed denied under subdivision (e) of Section 186.34. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court of the county in which the local law enforcement agency is located or, if the person resides in California, in the county in which the person resides. A copy of the petition shall be served on the agency in person or by first-class mail. Proof of service of the petition on the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.
(c)The evidentiary record for the courts determination of the petition shall be limited to the agencys statement of the basis of its designation made pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the person contesting the designation pursuant to subdivision (e) of Section 186.34.
(d)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the persons active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.
(e)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 8.SEC. 7.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for establishing regulations for shared gang databases. All shared gang databases shall comply with those regulations.
(b)The department shall administer and oversee the CalGang database. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database.
(c)The department shall establish the Gang Database Technical Advisory Committee. The membership of the committee shall be as follows:
(d)Each appointee to the committee, regardless of the appointing authority, shall have the following characteristics:
(1)Substantial prior knowledge of issues related to gang intervention, suppression, or prevention efforts.
(2)Decisionmaking authority for, or direct access to those who have decisionmaking authority for, the agency or organization he or she represents.
(3)A willingness to serve on the committee and a commitment to contribute to the committees work.
(e)The membership of the committee shall be as follows:
(1)The Attorney General, or his or her designee.
(2)The President of the California District Attorneys Association, or his or her designee.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang violence intervention, appointed by the Senate Committee on Rules.
(5)A representative of organizations that provide immigration services, appointed by the Senate Committee on Rules.
(6)The President of the California Gang Investigators Association, or his or her designee.
(7)A representative of community organizations that specialize in civil or human rights, appointed by the Speaker of the Assembly.
(8)A person who has personal experience with a shared gang database as someone who is or was impacted by gang labeling, appointed by the Speaker of the Assembly.
(9)A representative appointed by The chairperson of the California Gang Node Advisory Committee. Committee, or his or her designee.
(10)The President of the California Police Chiefs Association, or his or her designee.
(11)The President of the California State Sheriffs Association, or his or her designee.
(f)The committee shall appoint a chairperson from among the members appointed pursuant to subdivision (e). The chairperson shall serve in that capacity at the pleasure of the committee.
(g)Each member of the committee who is appointed pursuant to this section shall serve without compensation.
(h)If a committee member is unable to adequately perform his or her duties, he or she is subject to removal from the board by a majority vote of the full committee.
(i)A vacancy on the committee as a result of the removal of a member shall be filled by the appointing authority of the removed member within 30 days of the vacancy.
(d)(j)Committee meetings are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)(k)The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of shared gang databases, including, but not limited to, establishing the following: databases. The regulations issued by the department shall, at minimum, ensure the following:
(1)The system integrity of a shared gang database.
(2)All law enforcement agency and criminal justice agency personnel who access a shared gang database undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures.
(3)Proper criteria are established for supervisory reviews of all database entries and regular reviews of records entered into a shared gang database.
(4)Reasonable measures are taken to locate equipment related to the operation of a shared gang database in a secure area in order to preclude access by unauthorized personnel.
(5)Law enforcement agencies and criminal justice agencies notify the department of any missing equipment that could potentially compromise a shared gang database.
(6)Personnel authorized to access a shared gang database are limited to sworn law enforcement personnel, nonsworn law enforcement support personnel, or noncriminal justice technical or maintenance personnel, including information technology and information security staff and contract employees, who have been subject to character or security clearance and who have received approved training.
(7)Any records contained in a shared gang database are not disclosed for employment or military screening purposes.
(8)Any records contained in a shared gang database are not disclosed for purposes of enforcing federal immigration law, unless required by state or federal statute or regulation.
(9)The committee does not discuss or access individual records contained in a shared gang database.
(l)The regulations issued by the department shall include, but not be limited to, establishing the following:
(1)Policies and procedures for entering, reviewing, and purging documentation.
(2)Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership.
(3)Retention periods for information about a person in a shared gang database that is consistent with empirical research on the duration of gang membership.
(4)Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs.
(5)Policies and procedures for notice to a person in a shared gang database. This includes policies and procedures for when notification would compromise an active criminal investigation or the health or safety of a minor.
(6)Policies and procedures for responding to an information request, a request for removal, or a petition for removal under Sections 186.34 and 186.35, respectively. This includes policies and procedures for a request or petition that could compromise an active criminal investigation or the health or safety of a minor.
(7)Policies and procedures for sharing information from a shared gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access. This includes sharing of information with a partner in a joint task force.
(8)Implementation of supervisory review procedures and periodic record reviews by law enforcement agencies and criminal justice agencies, and reporting of the results of those reviews to the department.
(f)(m)Shared gang databases shall be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines. These include Part 23 of Title 28 of the Code of Federal Regulations and the departments Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(g)A state or local agency shall not allow any federal agency, multistate agency, or agency of another state to access a shared gang database. A state or local agency shall not provide bulk data from a shared gang database to any federal agency, multistate agency, or agency of another state. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.(h)Notwithstanding subdivision (g), a state or local agency may share information in response to an inquiry about a specific person, including a designation of gang membership or association, with a federal agency, multistate agency, or agency of another state, provided that database access is not granted to the federal, multistate, or other states agency, the information provided is not bulk data, and the inquiry is not for immigration enforcement purposes.(i)(n)The department, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database. The department shall mandate the purge of any information for which a user agency cannot establish adequate support.
(j)(o)The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(k)(p)Commencing February 15, 2018, and annually on February 15 thereafter, the department shall publish an annual report on the CalGang database.
(1)The report shall include, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information for each user agency:
(A)The number of persons included in the CalGang database on the day of reporting.
(B)The number of persons added to the CalGang database during the immediately preceding 12 months.
(C)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 received during the immediately preceding 12 months.
(D)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 that were granted during the immediately preceding 12 months.
(E)The number of petitions for removal of information about a person from the CalGang database pursuant to Section 186.35 adjudicated in the immediately preceding 12 months, including their dispositions.
(F)The number of persons whose information was removed from the CalGang database due to the expiration of a retention period during the immediately preceding 12 months.
(G)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months.
(H)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
(2)The report shall include the results from each user agencys periodic audit conducted pursuant to subdivision (i). (n).
(3)The department shall post the report on the departments Internet Web site.
(4)The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(l)Commencing January 1, 2018, the CalGang database shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium shall not be lifted until the requirements of subdivisions (e), (i), and (j) have been met.(q)The department shall instruct all user agencies to review the records of criminal street gang members entered into a shared gang database to ensure the existence of proper support for each criterion for entry in the shared gang database.
(r)(1)The department shall instruct each CalGang node agency to purge from a shared gang database any record of a person entered into the database designated as a suspected gang member, associate, or affiliate that does not meet criteria for entry or whose entry was based upon the following criteria: jail classification, frequenting gang neighborhoods, or on the basis of an untested informant. Unsupported criteria shall be purged and the records of a person shall be purged if the remaining criteria are not sufficient to support the persons designation.
(2)After the purge is completed, the shared gang database shall be examined using a statistically valid sample, pursuant to professional auditing standards to ensure that all fields in the database are accurate.
(s)(1)Commencing January 1, 2018, any shared gang database operated by law enforcement in California including, but not limited to, the CalGang database, shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies that the purge required in subdivision (r) has been completed. After the purge has been completed and before the department adopts the regulations required by this section, new data may be entered, provided the new data meets the criteria established by the conditions of the purge.
(2)The department shall not use regulations developed pursuant to this section to invalidate data entries entered prior to the adoption of those regulations.
(t)The department shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines.
(u)The department may enforce a violation of a state or federal law or regulation with respect to a shared gang database, or a violation of regulation, policy, or procedure established by the department pursuant to this title by any of the following methods:
(1)Letter of censure.
(2)Temporary suspension of access privileges to the shared gang database system.
(3)Revocation of access privileges to the shared gang database system.
(v)The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for any individual who shares information from a shared gang database for employment or military screening purposes.
(w)The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for an individual who shares information from a shared gang database for federal immigration law purposes, unless required by state or federal statute or regulation.
(x)The department shall ensure that the shared gang database user account of an individual is disabled if the individual no longer has a need or right to access a shared gang database because he or she has separated from his or her employment with a user agency or for another reason.
All matter omitted in this version of the bill appears in the bill as amended in the Senate, September 1, 2017. (JR11)This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.The Legislature finds and declares the following:
(a)Gang databases only provide value to law enforcement if they are accurate.
(b)Law enforcement agencies use a variety of overlapping databases that include designations of persons as gang members or associates.
(c)Databases of criminal intelligence information on gangs and gang members, including pointer systems and data integration and analysis solutions, continue to increase in their ability to search and analyze vast amounts of data. Due process and privacy protections must keep up with this advancing technology.
(d)A recent audit by the California State Auditor of the CalGang database, a gang database shared by law enforcement agencies statewide, found serious and systemic problems. Among other things, the audit found the following:
(1)The current oversight structure for the CalGang database does not ensure that user agencies collect and maintain records in a manner that preserves privacy rights. Although the Department of Justice funds a contract to maintain the CalGang database, the system is not established in statute.
(2)The CalGang database is administered by the CalGang Executive Board, an executive board comprised of user agencies. These user entities function independently from the state and without transparency, outside accountability, or meaningful opportunities for public engagement.
(3)In practice, there is little evidence that the CalGang Executive Board has ensured that user agencies comply with either the federal regulations or the California Attorney Generals Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(4)A review of entries from four agencies revealed systemic problems with the data. Only one of the nine gangs reviewed met the requirements of the CalGang database policy to validate the organization as a gang before entry. Of the records reviewed, user agencies lacked adequate support to justify the inclusion of approximately 13 percent of persons designated as gang members or associates, and 25 percent of gang criteria used overall was unsubstantiated. Errors included source documentation that directly contradicted the stated evidence of gang membership in the CalGang database system.
(5)While the CalGang database policy states that information in the system should not be used as a statement of fact in official reports or for any purposes unrelated to law enforcement, the audit found criminal cases where judges referred to the CalGang database as support for expert opinions that persons were or were not gang members. Law enforcement agencies admitted to using the CalGang database for employment or military-related screenings.
(e)Although law enforcement officials told the California State Auditor that designation as a gang member or associate in the CalGang database is of little impact to persons because the CalGang database only points to source documentation, the system can have significant impacts on persons.
(f)Though there are profound effects on a persons life as a result of a designation as a gang member or associate in a shared gang database, there are few safeguards against incorrect designations.
(g)The overwhelming majority of persons designated as gang members or associates in a shared gang database have never received notice of their designation nor notice of their right to contest their designation.
(h)Current criteria for designating a person as a gang member or associate in the CalGang database, including identification by an untested informant, or the frequenting of gang areas that are also the subjects residence, school, place of employment, or place of worship, are ambiguous, overbroad, and not based in empirical research on gangs or gang membership.
(i)Shared gang databases information is shared with federal agencies, that are required by federal law to share this information with Immigration and Customs Enforcement (ICE) for the purpose of immigration enforcement. ICE may use a persons alleged gang membership as a reason to deny release on bond, to deny eligibility for discretionary immigration relief and benefits, to prioritize removal, or even to identify a person as a gang member to police in the country to which the person is deported.
(j)In order to ensure trust between Californias immigrant community and state and local law enforcement agencies, access to gang databases must not be used for the purpose of enforcing immigration laws.
(k)In order to ensure accuracy, support accountability, and protect fundamental rights, an oversight structure must be created for shared gang databases.
SEC. 3.Section 70615 of the Government Code is amended to read:70615.The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a)An appeal of a local agencys decision regarding an administrative fine or penalty under Section 53069.4.
(b)An appeal under Section 40230 of the Vehicle Code of an administrative agencys decision regarding a parking violation.
(c)An appeal under Section 99582 of the Public Utilities Code of a hearing officers determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d)A petition under Section 186.35 of the Penal Code challenging a law enforcement agencys inclusion of a persons information in a shared gang database.
SEC. 4.Section 186.34 of the Penal Code is repealed.SEC. 5.Section 186.34 is added to the Penal Code, to read:186.34.(a)For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:
(1)Access to a database means any of the following:
(A)The creation of a user account or the possession of a username and password.
(B)The ability to obtain, examine, search, or retrieve records.
(C)The ability to input, update, or remove records.
(D)Possession of bulk data from the database.
(2)Bulk data means any electronic collection of data composed of information from multiple records, whose primary relationship to each other is their shared origin from a single or multiple databases.
(3)Database means any searchable collection of electronically stored records.
(4)Gang database means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.
(5)Law enforcement agency means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.
(6)Shared gang database means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.
(b)Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:
(1)Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.
(2)Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
(c)(1)Prior to designating a person as a gang member or associate in a shared gang database, the designating agency shall provide written notice to the person of its designation, and shall, if the person is under 18 years of age, provide written notice of the designation to the persons parent or guardian.
(2)The notice described in paragraph (1) shall provide documentation reflecting the factual basis for the designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.
(3)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the persons parent or guardian to request the removal of the persons information from the shared gang database.
(4)Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.
(d)(1)A person, or, if the person is under 18 years of age, the persons parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a gang member or associate in a shared gang database accessible by that law enforcement agency. A request pursuant to this paragraph shall be in writing and shall identify the person who is the subject of the request by full name and date of birth.
(2)If the responding agency has submitted information about the subject of the request to a shared gang database, the agency shall provide documentation reflecting the factual basis for the agencys designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.
(3)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the persons parent or guardian, to request the removal of the persons information from the shared gang database.
(4)If a shared gang database includes information about the subject of the request that was submitted by an agency other than the responding agency, the responding agency shall provide the name of that agency.
(5)The agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request. If the agency does not provide a written response within the required 30-day period, the person may petition a court to order the agency to remove all information about the person from the shared gang database pursuant to Section 186.35.
(6)Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.
(e)(1)Subsequent to the notice described in subdivision (c) or the law enforcement agencys response to an information request described in subdivision (d), the person designated as a gang member or associate, or, if the person is under 18 years of age, the persons parent or guardian, may submit a written request to the law enforcement agency for removal of all information entered by that agency about the person from all shared gang databases, and shall include any documentation the person making the request wishes to submit to challenge the designation of the person.
(2)The law enforcement agency shall review the documentation, and if the agency determines that the subject of the request is not an active gang member or associate as designated, or that the organization is not a criminal street gang, the agency shall remove all information entered by that agency about the subject of the request or the gang from all shared gang databases.
(3)The law enforcement agency shall provide the person making the request with written confirmation that all information about the subject of the request has been removed from the database, or of the agencys decision to deny the request.
(4)The law enforcement agency shall provide the confirmation that all information about the subject of the request has been removed from the database or the agencys decision to deny the request within 30 calendar days of receipt of request submitted pursuant to paragraph (1). If the law enforcement agency does not provide a confirmation that all information about the person has been removed from the database or the agencys decision to deny the request within the required 30-day period, the request shall be deemed denied.
(f)This section does not require a law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
SEC. 6.Section 186.35 of the Penal Code is repealed.SEC. 7.Section 186.35 is added to the Penal Code, to read:186.35.(a)A person who is designated as a suspected gang member or associate by a law enforcement agency in a shared gang database and who has requested removal pursuant to subdivision (e) of Section 186.34 and whose request was denied, or a person who has requested information as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 and received no timely reply, may petition the court to order the agency to remove all information entered by that agency about the petitioner or gang from all shared gang databases.
(b)The petition may be brought by the person, or, if the person is under 18 years of age, by the persons parent or guardian. A parent or guardian who petitions the court does not commit the unlawful practice of law by doing so, notwithstanding Section 6125 of the Business and Professions Code.
(c)A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in the county in which the designating law enforcement agency is located, or, if the petitioner resides in California, in the county in which the petitioner resides. A copy of the petition shall be served in person or by first-class mail upon the agency by the petitioner. Proof of service of the petition upon the agency shall be filed in the superior court.
(d)If more than one agency has designated the petitioner as a gang member or associate, or included information about the petitioner in the same shared gang database, the petitioner shall request removal from all agencies before petitioning the court. When petitioning the court, a copy of the petition shall be served in person or by first-class mail upon all agencies by the petitioner. Proof of service of the petition upon all agencies shall be filed in the superior court.
(e)If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and was denied, the petition shall be filed and served within 90 calendar days of the petitioners receipt of the written denial. If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and no timely response to the request was received, the petition shall be filed and served within 120 calendar days of the written request for removal. If a petitioner requested information from a law enforcement agency as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 but received no timely reply, the petition shall be filed and served within 120 calendar days of the written information request. If multiple law enforcement agencies have designated the petitioner as a suspected gang member or associate, or included information on the petitioner in the same database, the time to file expires 120 calendar days after the latest deadline for an agencys response. For purposes of computing the 90-calendar-day period, or the 120-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.
(f)The evidentiary record for the courts determination of the petition shall be limited to only documentation provided to the petitioner by the agency pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the petitioner pursuant to subdivision (e) of Section 186.34. If a petition is made following a law enforcement agencys failure to make a timely response to an information request pursuant to subdivision (d) of Section 186.34, the agency may not present any evidence of gang membership or affiliation in reply to the petition but may present evidence regarding receipt of the request.
(g)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency or agencies have failed to establish by clear and convincing evidence the persons active gang membership or associate status as designated, or reasonable suspicion that the organization is a criminal street gang, the court shall order the law enforcement agency or agencies to remove all information about the petitioner entered by that agency or agencies from all shared gang databases.
(h)A petitioner may file a new petition pursuant to this subdivision no sooner than 180 calendar days after a previous petition. For purposes of computing the 180-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.
(i)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the petitioner of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 8.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for establishing regulations for shared gang databases. All shared gang databases shall comply with those regulations.
(b)The department shall administer and oversee the CalGang database. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database.
(c)The department shall establish the Gang Database Technical Advisory Committee. The membership of the committee shall be as follows:
(1)The Attorney General, or his or her designee.
(2)The President of the California District Attorneys Association, or his or her designee.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang violence intervention, appointed by the Attorney General. Senate Committee on Rules.
(5)A representative of organizations that provide immigration services, appointed by the Attorney General. Senate Committee on Rules.
(6)A representative of organizations that specialize in privacy rights, appointed by the Governor.(6)The President of the California Gang Investigators Association, or his or her designee.
(7)A representative of community organizations that specialize in civil or human rights, appointed by the Attorney General. Speaker of the Assembly.
(8)A person who has personal experience with a shared gang database as someone who is or was impacted by gang labeling, appointed by the Attorney General. Speaker of the Assembly.
(9)A person who has personal experience with a shared gang database as someone who is the family member of a person who is or was impacted by gang labeling, appointed by the Attorney General.(9)A representative appointed by the California Gang Node Advisory Committee.
(10)The President of the California Police Chiefs Association, or his or her designee.
(11)The President of the California State Sheriffs Association, or his or her designee.
(d)Committee meetings are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of shared gang databases, including, but not limited to, establishing the following:
(1)Policies and procedures for entering, reviewing, and purging documentation.
(2)Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership.
(3)Retention periods for information about a person in a shared gang database that is consistent with empirical research on the duration of gang membership.
(4)Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs.
(5)Policies and procedures for notice to a person in a shared gang database. This includes policies and procedures for when notification would compromise an active criminal investigation or the health or safety of a minor.
(6)Policies and procedures for responding to an information request, a request for removal, or a petition for removal under Sections 186.34 and 186.35, respectively. This includes policies and procedures for a request or petition that could compromise an active criminal investigation or the health or safety of a minor.
(7)Policies and procedures for sharing information from a shared gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access. This includes sharing of information with a partner in a joint task force.
(f)Gang Shared gang databases shall be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines. These include Part 23 of Title 28 of the Code of Federal Regulations and the departments Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(g)A state or local agency shall not allow any federal agency, multistate agency, or agency of another state to access a shared gang database. A state or local agency shall not provide bulk data from a shared gang database to any federal agency, multistate agency, or agency of another state. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.
(h)Notwithstanding subdivision (g), a state or local agency may share information in response to an inquiry about a specific person, including a designation of gang membership or association, with a federal agency, multistate agency, or agency of another state, provided that database access is not granted to the federal, multistate, or other states agency, the information provided is not bulk data, and the inquiry is not for immigration enforcement purposes.
(i)The department, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database. The department shall mandate the purge of any information for which a user agency cannot establish adequate support.
(j)The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(k)Commencing February 15, 2018, and annually on February 15 thereafter, the department shall publish an annual report on the CalGang database.
(1)The report shall include, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information for each user agency:
(A)The number of persons included in the CalGang database on the day of reporting.
(B)The number of persons added to the CalGang database during the immediately preceding 12 months.
(C)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 received during the immediately preceding 12 months.
(D)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 that were granted during the immediately preceding 12 months.
(E)The number of petitions for removal of information about a person from the CalGang database pursuant to Section 186.35 adjudicated in the immediately preceding 12 months, including their dispositions.
(F)The number of persons whose information was removed from the CalGang database due to the expiration of a retention period during the immediately preceding 12 months.
(G)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months.
(H)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
(2)The report shall include the results from each user agencys periodic audit conducted pursuant to subdivision (i).
(3)The department shall post the report on the departments Internet Web site.
(4)The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(l)Commencing January 1, 2018, the CalGang database shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium shall not be lifted until the requirements of subdivisions (e), (i), and (j) have been met.
SEC. 9.Section 13519.4 of the Penal Code is amended to read:13519.4.(a)The commission shall develop and disseminate guidelines and training for all peace officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial, identity, and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a diverse racial, identity, and cultural environment.
(b)The course of basic training for peace officers shall include adequate instruction on racial, identity, and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial, identity, and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial, identity, and cultural awareness and diversity.
(c)For the purposes of this section the following shall apply:
(1)Disability, gender, nationality, religion, and sexual orientation have the same meaning as in Section 422.56.
(2)Culturally diverse and cultural diversity include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.
(3)Racial has the same meaning as race or ethnicity in Section 422.56.
(4)Stop has the same meaning as in paragraph (2) of subdivision (g) of Section 12525.5 of the Government Code.
(d)The Legislature finds and declares as follows:
(1)The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of peace officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.
(2)Racial or identity profiling is a practice that presents a great danger to the fundamental principles of our Constitution and a democratic society. It is abhorrent and cannot be tolerated.
(3)Racial or identity profiling alienates people from law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people whom law enforcement is sworn to protect and serve.
(4)Pedestrians, users of public transportation, and vehicular occupants who have been stopped, searched, interrogated, and subjected to a property seizure by a peace officer for no reason other than the color of their skin, national origin, religion, gender identity or expression, housing status, sexual orientation, or mental or physical disability are the victims of discriminatory practices.
(5)It is the intent of the Legislature in enacting the changes to this section made by the act that added this paragraph that additional training is required to address the pernicious practice of racial or identity profiling and that enactment of this section is in no way dispositive of the issue of how the state should deal with racial or identity profiling.
(e)Racial or identity profiling, for purposes of this section, is the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, or mental or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider or rely on characteristics listed in a specific suspect description. The activities include, but are not limited to, traffic or pedestrian stops, or actions during a stop, such as asking questions, frisks, consensual and nonconsensual searches of a person or any property, seizing any property, removing vehicle occupants during a traffic stop, issuing a citation, and making an arrest.
(f)A peace officer shall not engage in racial or identity profiling.
(g)Every peace officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.
(h)The curriculum shall be evidence-based and shall include and examine evidence-based patterns, practices, and protocols that make up racial or identity profiling, including implicit bias. This training shall prescribe evidence-based patterns, practices, and protocols that prevent racial or identity profiling. In developing the training, the commission shall consult with the Racial and Identity Profiling Advisory Board established pursuant to subdivision (j). The course of instruction shall include, but not be limited to, significant consideration of each of the following subjects:
(1)Identification of key indices and perspectives that make up racial, identity, and cultural differences among residents in a local community.
(2)Negative impact of intentional and implicit biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations and contributed to injury, death, disparities in arrest detention and incarceration rights, and wrongful convictions.
(3)The history and role of the civil and human rights movement and struggles and their impact on law enforcement.
(4)Specific obligations of peace officers in preventing, reporting, and responding to discriminatory or biased practices by fellow peace officers.
(5)Perspectives of diverse, local constituency groups and experts on particular racial, identity, and cultural and police-community relations issues in a local area.
(6)The prohibition against racial or identity profiling in subdivision (f).
(i)Once the initial basic training is completed, each peace officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial, identity, and cultural trends.
(j)(1)Beginning July 1, 2016, the Attorney General shall establish the Racial and Identity Profiling Advisory Board (RIPA) for the purpose of eliminating racial and identity profiling, and improving diversity and racial and identity sensitivity in law enforcement.
(2)RIPA shall include the following members:
(A)The Attorney General, or his or her designee.
(B)The President of the California Public Defenders Association, or his or her designee.
(C)The President of the California Police Chiefs Association, or his or her designee.
(D)The President of the California State Sheriffs Association, or his or her designee.
(E)The President of the Peace Officers Research Association of California, or his or her designee.
(F)The Commissioner of the California Highway Patrol, or his or her designee.
(G)A university professor who specializes in policing, and racial and identity equity.
(H)Two representatives of human or civil rights tax-exempt organizations who specialize in civil or human rights.
(I)Two representatives of community organizations who specialize in civil or human rights and criminal justice, and work with victims of racial and identity profiling. At least one representative shall be between 16 and 24 years of age.
(J)Two religious clergy members who specialize in addressing and reducing racial and identity bias toward individuals and groups.
(K)Up to two other members that the Governor may prescribe.
(L)Up to two other members that the President pro Tempore of the Senate may prescribe.
(M)Up to two other members that the Speaker of the Assembly may prescribe.
(3)Each year, on an annual basis, RIPA shall do the following:
(A)Analyze the data reported pursuant to Section 12525.5 of the Government Code and Section 13012 of this code.
(B)Analyze law enforcement training under this section.
(C)Work in partnership with state and local law enforcement agencies to review and analyze racial and identity profiling policies and practices across geographic areas in California.
(D)Conduct, and consult available, evidence-based research on intentional and implicit biases, and law enforcement stop, search, and seizure tactics.
(E)Issue a report that provides RIPAs analysis under subparagraphs (A) to (D), inclusive, and detailed findings on the past and current status of racial and identity profiling, and makes policy recommendations for eliminating racial and identity profiling. RIPA shall post the report on its Internet Web site. Each report shall include disaggregated statistical data for each reporting law enforcement agency. The report shall include, at minimum, each reporting law enforcement agencys total results for each data collection criterion under subdivision (b) of Section 12525.5 of the Government Code for each calendar year. The reports shall be retained and made available to the public by posting those reports on the Department of Justices OpenJustice Web portal. The first annual report shall be issued no later than January 1, 2018. The reports are public records within the meaning of Section 6252 of the Government Code and are open to public inspection pursuant to Sections 6253 and 6258 of the Government Code.
(F)Hold at least three public meetings annually to discuss racial and identity profiling, and potential reforms to prevent racial and identity profiling. Each year, one meeting shall be held in northern California, one in central California, and one in southern California. RIPA shall provide the public with notice of at least 60 days before each meeting.
(4)Pursuant to subdivision (e) of Section 12525.5 of the Government Code, RIPA shall advise the Attorney General in developing regulations for the collection and reporting of stop data, and ensuring uniform reporting practices across all reporting agencies.
(5)RIPA may, at its discretion, review operations of law enforcement agencies gang databases and make recommendations regarding operation of gang databases to the Department of Justice.(6)(5)Members of RIPA shall not receive compensation, nor per diem expenses, for their services as members of RIPA.
(7)(6)No action of RIPA shall be valid unless agreed to by a majority of its members.
(8)(7)The initial terms of RIPA members shall be four years.
(9)(8)Each year, RIPA shall elect two of its members as cochairpersons.
This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.The Legislature finds and declares the following:
(a)Shared gang Gang databases only provide value to law enforcement if they are accurate.
(b)Law enforcement agencies use a variety of overlapping databases that include designations of persons as gang members or associates.
(c)Databases of criminal intelligence information on gangs and gang members, including pointer systems and data integration and analysis solutions, continue to increase in their ability to search and analyze vast amounts of data. Due process and privacy protections must keep up with this advancing technology.
(b)(d)A recent audit by the California State Auditor of the CalGang database, a gang database shared by law enforcement agencies statewide, found serious and systemic problems with the CalGang database. problems. Among other things, the audit found the following:
(1)The current oversight structure for the CalGang database does not ensure that user agencies collect and maintain criminal intelligence records in a manner that preserves individuals privacy rights. Although the Department of Justice funds a contract to maintain the CalGang database, the system is not established in statute.
(2)The CalGang database is administered by the CalGang Executive Board, an executive board comprised of user agencies. These user entities function independently from the state and without transparency transparency, outside accountability, or meaningful opportunities for public engagement.
(3)In practice, there is little evidence that the CalGang Executive Board has ensured that user agencies comply with either the federal regulations or the state guidelines. California Attorney Generals Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(4)A review of entries from four agencies revealed systematic systemic problems with the data. Only one of the nine gangs reviewed met the requirements of the CalGang database policy to validate the organization as a gang before entry. User Of the records reviewed, user agencies lacked adequate support for including to justify the inclusion of approximately 13 percent of persons designated as gang members or associates, and 25 percent of gang criteria and 13 percent of individuals reviewed. used overall was unsubstantiated. Errors included source documentation that directly contradicted the stated evidence of gang membership in the CalGang database system.
(c)Although law enforcement officials told the California State Auditor that inclusion in the CalGang database is of little impact to individuals because the CalGang database only points to source documentation, the system can have significant impacts on individuals.(d)(5)While the CalGang database policy states that information in the system should not be used as a statement of fact in official reports or for any purposes unrelated to law enforcement, the audit found criminal cases where judges referred to the CalGang database as support for expert opinions that individuals persons were or were not gang members. Law enforcement agencies admitted to using the CalGang database for employment or military-related screenings.
(e)Although law enforcement officials told the California State Auditor that designation as a gang member or associate in the CalGang database is of little impact to persons because the CalGang database only points to source documentation, the system can have significant impacts on persons.
(f)Though there are profound effects on a persons life as a result of a designation as a gang member or associate in a shared gang database, there are few safeguards against incorrect designations.
(g)The overwhelming majority of persons designated as gang members or associates in a shared gang database have never received notice of their designation nor notice of their right to contest their designation.
(h)Current criteria for designating a person as a gang member or associate in the CalGang database, including identification by an untested informant, or the frequenting of gang areas that are also the subjects residence, school, place of employment, or place of worship, are ambiguous, overbroad, and not based in empirical research on gangs or gang membership.
(e)The CalGang database and other shared(i)Shared gang databases information is shared with federal agencies, which that are required by federal law to share this information with Immigration and Customs Enforcement (ICE) for the purpose of immigration enforcement. ICE may use a persons alleged gang membership as a reason to deny release on bond, to deny eligibility for discretionary immigration relief and benefits, to prioritize removal, or even to identify an individual a person as a gang member to police in the country to which the person is deported.
(f)The overwhelming majority of individuals listed in the CalGang database to date have been given no opportunity to contest their designation as gang members. In many cases, these individuals have never been told they have been placed in the CalGang database.(g)The effects of inclusion in the CalGang database on peoples lives are profound, but there are few safeguards against incorrect inclusion in the database.(h)If California continues to operate the CalGang database or other shared gang databases, it should require those databases to have an oversight structure that ensures accuracy, supports accountability for proper database use, and protects individuals rights.(i)If California continues to operate the CalGang database or other shared gang databases, it should require that sharing of those databases with agencies that enforce federal immigration law be limited to the greatest extent possible in order to maintain a relationship of trust between Californias immigrant community and state and local law enforcement agencies.(j)In order to ensure trust between Californias immigrant community and state and local law enforcement agencies, access to gang databases must not be used for the purpose of enforcing immigration laws.
(k)In order to ensure accuracy, support accountability, and protect fundamental rights, an oversight structure must be created for shared gang databases.
SEC. 3.Section 70615 of the Government Code is amended to read:70615.The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a)An appeal of a local agencys decision regarding an administrative fine or penalty under Section 53069.4.
(b)An appeal under Section 40230 of the Vehicle Code of an administrative agencys decision regarding a parking violation.
(c)An appeal under Section 99582 of the Public Utilities Code of a hearing officers determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d)A petition under Section 186.35 of the Penal Code challenging a law enforcement agencys determination regarding the placement of an individuals inclusion of a persons information in a shared gang database.
SEC. 4.Section 186.34 of the Penal Code is amended to read:186.34.(a)(1)For purposes of this section, shared gang database shall mean any database that satisfies all of the following:(A)Allows access for any local law enforcement agency.(B)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.(C)Is subject to Part 23 of Title 28 of the Code of Federal Regulations. If federal funding is no longer available to a database through the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to satisfy this subparagraph to meet the definition of a shared gang database.(2)A shared gang database does not include dispatch operator reports, criminal investigative reports, probation reports, or information required to be collected pursuant to Section 186.30.(3)Notwithstanding subparagraph (C) of paragraph (1), a shared gang database includes the CalGang system, operated pursuant to Part 23 of Title 28 of the Code of Federal Regulations.(b)Notwithstanding subparagraph (C) of paragraph (1) of subdivision (a), a shared gang database, as defined in this section, shall retain records related to the gang activity of the individuals in the database consistent with the provisions contained in Section 23.20(h) of Title 28 of the Code of Federal Regulations.(c)(1)Except as provided in subdivision (j) of Section 186.36, commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined in subdivision (a), shall submit a report to the Department of Justice, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:(A)The number of persons included in the database on the day of reporting.(B)The number of persons added to the database during the immediately preceding 12 months.(C)The number of requests for removal of a person from the database received during the immediately preceding 12 months.(D)The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months.(E)The number of persons automatically removed from the database during the immediately preceding 12 months.(2)Commencing February 15, 2018, and annually on February 15 thereafter, the Department of Justice shall post each law enforcement agencys report that contains the information collected pursuant to paragraph (1) on the departments Internet Web site.(d)(1)To the extent a local law enforcement agency elects to utilize a shared gang database, as defined in subdivision (a), prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation, the name of the designated gang, and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the name of the designated gang and the reason for his or her designation in the database.(e)(1)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a gang member, suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency. A request pursuant to this paragraph shall be in writing and shall identify the person who is the subject of the request by full name and date of birth.(2)The law enforcement agency shall provide information pursuant to a request made under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age. The information provided by the law enforcement agency shall include, at a minimum, whether the person is designated in the shared database, and if so, shall identify that designation as to a gang member, suspected gang member, associate or affiliate of a gang, the name of the designated gang, what law enforcement agency made the designation, the date the person was designated in the database, and the basis for the persons designation.(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.(f)Subsequent to the notice described in subdivision (d) or the law enforcement agencys response to an information request described in subdivision (e), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is under 18 years of age, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not an active gang member, suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and, if the person is under 18 years of age, his or her parent or guardian, with written confirmation that the person has been removed from the database, or of the agencys decision to deny the request for removal, within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. If the law enforcement agency does not provide a verification of the agencys decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian, may petition the court to review the law enforcement agencys denial of the request for the removal and the court may order the law enforcement agency to remove the person from the shared database pursuant to Section 186.35.(g)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.SEC. 5.Section 186.35 of the Penal Code is amended to read:186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (f) of Section 186.34, may petition the court to review the law enforcement agencys denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database. The petition may be brought by the person or the persons attorneys, or if the person is under 18 years of age, by his or her parent or guardian or an attorney on behalf of the parent or guardian.(b)The petition shall be filed and served within 90 calendar days of the agencys mailing or personal service of the verification of the decision to deny the request for removal from the shared gang database, or if no response was received from the law enforcement agency within the 30-day period, within 120 days of the written request for removal. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in the county in which the local law enforcement agency is located, or if the person resides in California, in the county in which the person resides. A copy of the petition shall be served in person or by first-class mail upon the agency by the person. Proof of service of the petition upon the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, or the 120-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.(c)The evidentiary record for the courts determination of the petition shall be limited to the agencys statement of the basis of its designation made pursuant to subdivision (d) or (e) of Section 186.34, and the documentation provided to the agency by the person contesting the designation pursuant to subdivision (f) of Section 186.34.(d)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the persons active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.(e)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.SEC. 6.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database or the shared gang databases that feed into it.(b)The department shall promulgate regulations governing the use, operation, and oversight of any shared gang database, including, but not limited to, establishing the following:(1)The requirements for entering and reviewing gang designations.(2)The retention period for listed gangs.(3)The criteria for identifying gang members.(4)The definitions of offenses consistent with gang activity.(5)The retention period for individuals listed in a shared gang database.(6)The specifications for user agencies operation of the shared gang database, including requirements for user agencies to implement supervisory review procedures and conduct periodic reviews of the records, and report those reviews to the department.(7)Standardized practices for compliance with notification and appeal requirements.(c)The department shall establish a technical advisory committee for all shared gang databases. The technical advisory committee shall include the following members:(1)The Attorney General, or his or her designee.(2)Representatives from participating law enforcement agencies.(3)The President of the California Public Defenders Association, or his or her designee.(4)A representative of organizations that specialize in gang and violence intervention.(5)A representative of organizations that provide immigration services.(6)A representative of organizations that specialize in privacy rights.(7)Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age.(8)One person who is or was placed on a shared gang database.(9)One parent of a person who is or was placed on a shared gang database as a juvenile.(d)The meetings of the technical advisory committee are subject to the Bagley-Keene Open Meeting Act.(e)The committee shall meet at least twice per year.(f)The department shall develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.(g)The department shall promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The department shall also promulgate regulations to provide for a comprehensive review by user agencies of the database records submitted to ensure the user agency has adequate support for the criteria associated with all the individuals they have entered as gang members.(h)If a user agency cannot establish adequate support for an entry or the accuracy of a data field, that entry or field shall be purged from the database.(i)User agencies shall report their review progress to the department every six months and upon completion.(j)The department shall publish an annual report on a shared gang database summarizing the results from periodic audits conducted pursuant to this section and including all reports presented to the department pursuant to subdivision (c) of Section 186.34. The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.(k)State and local law enforcement agencies shall not make any shared gang database available to any federal agency or entity. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.(l)Any shared gang database operated by law enforcement in California on January 1, 2018, including, but not limited to, the CalGang database, shall be placed under a moratorium. During the moratorium no data shall be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The Attorney General shall notify any state, local, or federal agencies that had access to data from the database in the previous five years that the data in the database has been deemed unreliable and inaccurate and shall request the agency delete or refrain from using or relying on the data until the moratorium has been lifted. The department shall train and recertify all users of the shared gang database pursuant to the training specified in subdivision (f) during the moratorium. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies and posts on the departments public Internet Web site that the requirements of subdivisions (f) and (g) have been met.SEC. 4.Section 186.34 of the Penal Code is repealed.186.34.(a)(1)For purposes of this section, shared gang database shall mean any database that satisfies all of the following:(A)Allows access for any local law enforcement agency.(B)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.(C)Is subject to Part 23 of Title 28 of the Code of Federal Regulations. If federal funding is no longer available to a database through the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to satisfy this subparagraph to meet the definition of a shared gang database.(2)A shared gang database does not include dispatch operator reports, information used for the administration of jail or custodial facilities, criminal investigative reports, probation reports, or information required to be collected pursuant to Section 186.30.(3)Notwithstanding subparagraph (C) of paragraph (1), a shared gang database includes the CalGang system, operated pursuant to Part 23 of Title 28 of the Code of Federal Regulations.(b)Notwithstanding subparagraph (C) of paragraph (1) of subdivision (a), a shared gang database, as defined in this section, shall retain records related to the gang activity of the individuals in the database consistent with the provisions contained in Section 23.20(h) of Title 28 of the Code of Federal Regulations.(c)(1)Commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined in subdivision (a), shall submit a report to the Department of Justice, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:(A)The number of persons included in the database on the day of reporting.(B)The number of persons added to the database during the immediately preceding 12 months.(C)The number of requests for removal of a person from the database received during the immediately preceding 12 months.(D)The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months.(E)The number of persons automatically removed from the database during the immediately preceding 12 months.(2)Commencing February 15, 2018, and annually on February 15 thereafter, the Department of Justice shall post each law enforcement agencys report that contains the information collected pursuant to paragraph (1) on the departments Internet Web site.(d)(1)To the extent a local law enforcement agency elects to utilize a shared gang database, as defined in subdivision (a), prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the reason for his or her designation in the database.(e)(1)(A)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person may request information of any law enforcement agency as to whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency and what law enforcement agency made the designation. A request pursuant to this paragraph shall be in writing.(B)If a person about whom information is requested pursuant to subparagraph (A) is designated as a suspected gang member, associate, or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (f).(2)The law enforcement agency shall provide information requested under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age.(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.(f)Subsequent to the notice described in subdivision (d), the person to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not a suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and his or her parent or guardian with written verification of the agencys decision within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. The person may appeal the denial pursuant to Section 186.35.(g)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.SEC. 5.Section 186.34 is added to the Penal Code, to read:186.34.(a)For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:
(1)Access to a database means any of the following:
(A)The creation of a user account or the possession of a username and password.
(B)The ability to obtain, examine, search, or retrieve records.
(C)The ability to input, update, or remove records.
(D)Possession of bulk data from the database.
(2)Bulk data means any electronic collection of data composed of information from multiple records, whose primary relationship to each other is their shared origin from a single or multiple databases.
(3)Database means any searchable collection of electronically stored records.
(4)Gang database means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.
(5)Law enforcement agency means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.
(6)Shared gang database means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.
(b)Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:
(1)Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.
(2)Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
(c)(1)Prior to designating a person as a gang member or associate in a shared gang database, the designating agency shall provide written notice to the person of its designation, and shall, if the person is under 18 years of age, provide written notice of the designation to the persons parent or guardian.
(2)The notice described in paragraph (1) shall provide documentation reflecting the factual basis for the designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.
(3)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the persons parent or guardian to request the removal of the persons information from the shared gang database.
(4)Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.
(d)(1)A person, or, if the person is under 18 years of age, the persons parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a gang member or associate in a shared gang database accessible by that law enforcement agency. A request pursuant to this paragraph shall be in writing and shall identify the person who is the subject of the request by full name and date of birth.
(2)If the responding agency has submitted information about the subject of the request to a shared gang database, the agency shall provide documentation reflecting the factual basis for the agencys designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.
(3)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the persons parent or guardian, to request the removal of the persons information from the shared gang database.
(4)If a shared gang database includes information about the subject of the request that was submitted by an agency other than the responding agency, the responding agency shall provide the name of that agency.
(5)The agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request. If the agency does not provide a written response within the required 30-day period, the person may petition a court to order the agency to remove all information about the person from the shared gang database pursuant to Section 186.35.
(6)Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.
(e)(1)Subsequent to the notice described in subdivision (c) or the law enforcement agencys response to an information request described in subdivision (d), the person designated as a gang member or associate, or, if the person is under 18 years of age, the persons parent or guardian, may submit a written request to the law enforcement agency for removal of all information entered by that agency about the person from all shared gang databases, and shall include any documentation the person making the request wishes to submit to challenge the designation of the person.
(2)The law enforcement agency shall review the documentation, and if the agency determines that the subject of the request is not an active gang member or associate as designated, or that the organization is not a criminal street gang, the agency shall remove all information entered by that agency about the subject of the request or the gang from all shared gang databases.
(3)The law enforcement agency shall provide the person making the request with written confirmation that all information about the subject of the request has been removed from the database, or of the agencys decision to deny the request.
(4)The law enforcement agency shall provide the confirmation that all information about the subject of the request has been removed from the database or the agencys decision to deny the request within 30 calendar days of receipt of request submitted pursuant to paragraph (1). If the law enforcement agency does not provide a confirmation that all information about the person has been removed from the database or the agencys decision to deny the request within the required 30-day period, the request shall be deemed denied.
(f)This section does not require a law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
SEC. 6.Section 186.35 of the Penal Code is repealed.186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (f) of Section 186.34, may seek review within 90 calendar days of the agencys mailing or personal service of the verification of the decision by filing an appeal to be heard by the superior court. A proceeding under this subdivision is a limited civil case. A copy of the notice of appeal shall be served in person or by first-class mail upon the agency by the person. For purposes of computing the 90-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.(b)The evidentiary record for the appeal shall be limited to the agencys statement of basis of its designation made pursuant to subdivision (e) of Section 186.34, and the documentation provided to the agency by the appellant pursuant to subdivision (f) of Section 186.34. If, upon de novo review and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the petitioners active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.(c)The fee for filing the notice of appeal is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the appeal. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.SEC. 7.Section 186.35 is added to the Penal Code, to read:186.35.(a)A person who is designated as a suspected gang member or associate by a law enforcement agency in a shared gang database and who has requested removal pursuant to subdivision (e) of Section 186.34 and whose request was denied, or a person who has requested information as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 and received no timely reply, may petition the court to order the agency to remove all information entered by that agency about the petitioner or gang from all shared gang databases.
(b)The petition may be brought by the person, or, if the person is under 18 years of age, by the persons parent or guardian. A parent or guardian who petitions the court does not commit the unlawful practice of law by doing so, notwithstanding Section 6125 of the Business and Professions Code.
(c)A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in the county in which the designating law enforcement agency is located, or, if the petitioner resides in California, in the county in which the petitioner resides. A copy of the petition shall be served in person or by first-class mail upon the agency by the petitioner. Proof of service of the petition upon the agency shall be filed in the superior court.
(d)If more than one agency has designated the petitioner as a gang member or associate, or included information about the petitioner in the same shared gang database, the petitioner shall request removal from all agencies before petitioning the court. When petitioning the court, a copy of the petition shall be served in person or by first-class mail upon all agencies by the petitioner. Proof of service of the petition upon all agencies shall be filed in the superior court.
(e)If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and was denied, the petition shall be filed and served within 90 calendar days of the petitioners receipt of the written denial. If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and no timely response to the request was received, the petition shall be filed and served within 120 calendar days of the written request for removal. If a petitioner requested information from a law enforcement agency as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 but received no timely reply, the petition shall be filed and served within 120 calendar days of the written information request. If multiple law enforcement agencies have designated the petitioner as a suspected gang member or associate, or included information on the petitioner in the same database, the time to file expires 120 calendar days after the latest deadline for an agencys response. For purposes of computing the 90-calendar-day period, or the 120-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.
(f)The evidentiary record for the courts determination of the petition shall be limited to only documentation provided to the petitioner by the agency pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the petitioner pursuant to subdivision (e) of Section 186.34. If a petition is made following a law enforcement agencys failure to make a timely response to an information request pursuant to subdivision (d) of Section 186.34, the agency may not present any evidence of gang membership or affiliation in reply to the petition but may present evidence regarding receipt of the request.
(g)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency or agencies have failed to establish by clear and convincing evidence the persons active gang membership or associate status as designated, or reasonable suspicion that the organization is a criminal street gang, the court shall order the law enforcement agency or agencies to remove all information about the petitioner entered by that agency or agencies from all shared gang databases.
(h)A petitioner may file a new petition pursuant to this subdivision no sooner than 180 calendar days after a previous petition. For purposes of computing the 180-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.
(i)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the petitioner of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 8.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for establishing regulations for gang databases. All gang databases shall comply with those regulations.
(b)The department shall administer and oversee the CalGang database. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database.
(c)The department shall establish the Gang Database Technical Advisory Committee. The membership of the committee shall be as follows:
(1)The Attorney General, or his or her designee.
(2)The President of the California District Attorneys Association, or his or her designee.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang violence intervention, appointed by the Attorney General.
(5)A representative of organizations that provide immigration services, appointed by the Attorney General.
(6)A representative of organizations that specialize in privacy rights, appointed by the Governor.
(7)A representative of community organizations that specialize in civil or human rights, appointed by the Attorney General.
(8)A person who has personal experience with a shared gang database as someone who is or was impacted by gang labeling, appointed by the Attorney General.
(9)A person who has personal experience with a shared gang database as someone who is the family member of a person who is or was impacted by gang labeling, appointed by the Attorney General.
(10)The President of the California Police Chiefs Association, or his or her designee.
(11)The President of the California State Sheriffs Association, or his or her designee.
(d)Committee meetings are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of gang databases, including, but not limited to, establishing the following:
(1)Policies and procedures for entering, reviewing, and purging documentation.
(2)Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership.
(3)Retention periods for information about a person in a gang database that is consistent with empirical research on the duration of gang membership.
(4)Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs.
(5)Policies and procedures for notice to a person in a shared gang database. This includes policies and procedures for when notification would compromise an active criminal investigation or the health or safety of a minor.
(6)Policies and procedures for responding to an information request, a request for removal, or a petition for removal under Sections 186.34 and 186.35, respectively. This includes policies and procedures for a request or petition that could compromise an active criminal investigation or the health or safety of a minor.
(7)Policies and procedures for sharing information from a gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access. This includes sharing of information with a partner in a joint task force.
(f)Gang databases shall be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines. These include Part 23 of Title 28 of the Code of Federal Regulations and the departments Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(g)A state or local agency shall not allow any federal agency, multistate agency, or agency of another state to access a gang database. A state or local agency shall not provide bulk data from a gang database to any federal agency, multistate agency, or agency of another state. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.
(h)Notwithstanding subdivision (g), a state or local agency may share information in response to an inquiry about a specific person, including a designation of gang membership or association, with a federal agency, multistate agency, or agency of another state, provided that database access is not granted to the federal, multistate, or other states agency, the information provided is not bulk data, and the inquiry is not for immigration enforcement purposes.
(i)The department, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database. The department shall mandate the purge of any information for which a user agency cannot establish adequate support.
(j)The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(k)Commencing February 15, 2018, and annually on February 15 thereafter, the department shall publish an annual report on the CalGang database.
(1)The report shall include, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information for each user agency:
(A)The number of persons included in the CalGang database on the day of reporting.
(B)The number of persons added to the CalGang database during the immediately preceding 12 months.
(C)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 received during the immediately preceding 12 months.
(D)The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 that were granted during the immediately preceding 12 months.
(E)The number of petitions for removal of information about a person from the CalGang database pursuant to Section 186.35 adjudicated in the immediately preceding 12 months, including their dispositions.
(F)The number of persons whose information was removed from the CalGang database due to the expiration of a retention period during the immediately preceding 12 months.
(G)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months.
(H)The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
(2)The report shall include the results from each user agencys periodic audit conducted pursuant subdivision (i).
(3)The department shall post the report on the departments Internet Web site.
(4)The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(l)Commencing January 1, 2018, the CalGang database shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium shall not be lifted until the requirements of subdivisions (e), (i), and (j) have been met.
SEC. 7.SEC. 9.Section 13519.4 of the Penal Code is amended to read:13519.4.(a)The commission shall develop and disseminate guidelines and training for all peace officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial, identity, and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a diverse racial, identity, and cultural environment.
(b)The course of basic training for peace officers shall include adequate instruction on racial, identity, and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial, identity, and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial, identity, and cultural awareness and diversity.
(c)For the purposes of this section the following shall apply:
(1)Disability, gender, nationality, religion, and sexual orientation have the same meaning as in Section 422.56.
(2)Culturally diverse and cultural diversity include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.
(3)Racial has the same meaning as race or ethnicity in Section 422.56.
(4)Stop has the same meaning as in paragraph (2) of subdivision (g) of Section 12525.5 of the Government Code.
(d)The Legislature finds and declares as follows:
(1)The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of peace officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.
(2)Racial or identity profiling is a practice that presents a great danger to the fundamental principles of our Constitution and a democratic society. It is abhorrent and cannot be tolerated.
(3)Racial or identity profiling alienates people from law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people whom law enforcement is sworn to protect and serve.
(4)Pedestrians, users of public transportation, and vehicular occupants who have been stopped, searched, interrogated, and subjected to a property seizure by a peace officer for no reason other than the color of their skin, national origin, religion, gender identity or expression, housing status, sexual orientation, or mental or physical disability are the victims of discriminatory practices.
(5)It is the intent of the Legislature in enacting the changes to this section made by the act that added this paragraph that additional training is required to address the pernicious practice of racial or identity profiling and that enactment of this section is in no way dispositive of the issue of how the state should deal with racial or identity profiling.
(e)Racial or identity profiling, for purposes of this section, is the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, or mental or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider or rely on characteristics listed in a specific suspect description. The activities include, but are not limited to, traffic or pedestrian stops, or actions during a stop, such as asking questions, frisks, consensual and nonconsensual searches of a person or any property, seizing any property, removing vehicle occupants during a traffic stop, issuing a citation, and making an arrest.
(f)A peace officer shall not engage in racial or identity profiling.
(g)Every peace officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.
(h)The curriculum shall be evidence-based and shall include and examine evidence-based patterns, practices, and protocols that make up racial or identity profiling, including implicit bias. This training shall prescribe evidence-based patterns, practices, and protocols that prevent racial or identity profiling. In developing the training, the commission shall consult with the Racial and Identity Profiling Advisory Board established pursuant to subdivision (j). The course of instruction shall include, but not be limited to, significant consideration of each of the following subjects:
(1)Identification of key indices and perspectives that make up racial, identity, and cultural differences among residents in a local community.
(2)Negative impact of intentional and implicit biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations and contributed to injury, death, disparities in arrest detention and incarceration rights, and wrongful convictions.
(3)The history and role of the civil and human rights movement and struggles and their impact on law enforcement.
(4)Specific obligations of peace officers in preventing, reporting, and responding to discriminatory or biased practices by fellow peace officers.
(5)Perspectives of diverse, local constituency groups and experts on particular racial, identity, and cultural and police-community relations issues in a local area.
(6)The prohibition against racial or identity profiling in subdivision (f).
(i)Once the initial basic training is completed, each peace officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial, identity, and cultural trends.
(j)(1)Beginning July 1, 2016, the Attorney General shall establish the Racial and Identity Profiling Advisory Board (RIPA) for the purpose of eliminating racial and identity profiling, and improving diversity and racial and identity sensitivity in law enforcement.
(2)RIPA shall include the following members:
(A)The Attorney General, or his or her designee.
(B)The President of the California Public Defenders Association, or his or her designee.
(C)The President of the California Police Chiefs Association, or his or her designee.
(D)The President of the California State Sheriffs Association, or his or her designee.
(E)The President of the Peace Officers Research Association of California, or his or her designee.
(F)The Commissioner of the California Highway Patrol, or his or her designee.
(G)A university professor who specializes in policing, and racial and identity equity.
(H)Two representatives of human or civil rights tax-exempt organizations who specialize in civil or human rights.
(I)Two representatives of community organizations who specialize in civil or human rights and criminal justice, and work with victims of racial and identity profiling. At least one representative shall be between 16 and 24 years of age.
(J)Two religious clergy members who specialize in addressing and reducing racial and identity bias toward individuals and groups.
(K)Up to two other members that the Governor may prescribe.
(L)Up to two other members that the President pro Tempore of the Senate may prescribe.
(M)Up to two other members that the Speaker of the Assembly may prescribe.
(3)Each year, on an annual basis, RIPA shall do the following:
(A)Analyze the data reported pursuant to Section 12525.5 of the Government Code and Section 13012 of this code.
(B)Analyze law enforcement training under this section.
(C)Work in partnership with state and local law enforcement agencies to review and analyze racial and identity profiling policies and practices across geographic areas in California.
(D)Conduct, and consult available, evidence-based research on intentional and implicit biases, and law enforcement stop, search, and seizure tactics.
(E)Issue a report that provides RIPAs analysis under subparagraphs (A) to (D), inclusive, and detailed findings on the past and current status of racial and identity profiling, and makes policy recommendations for eliminating racial and identity profiling. RIPA shall post the report on its Internet Web site. Each report shall include disaggregated statistical data for each reporting law enforcement agency. The report shall include, at minimum, each reporting law enforcement agencys total results for each data collection criterion under subdivision (b) of Section 12525.5 of the Government Code for each calendar year. The reports shall be retained and made available to the public by posting those reports on the Department of Justices OpenJustice Web portal. The first annual report shall be issued no later than January 1, 2018. The reports are public records within the meaning of Section 6252 of the Government Code and are open to public inspection pursuant to Sections 6253 and 6258 of the Government Code.
(F)Hold at least three public meetings annually to discuss racial and identity profiling, and potential reforms to prevent racial and identity profiling. Each year, one meeting shall be held in northern California, one in central California, and one in southern California. RIPA shall provide the public with notice of at least 60 days before each meeting.
(4)Pursuant to subdivision (e) of Section 12525.5 of the Government Code, RIPA shall advise the Attorney General in developing regulations for the collection and reporting of stop data, and ensuring uniform reporting practices across all reporting agencies.
(5)RIPA may, at its discretion, review operations of shared law enforcement agencies gang databases and make recommendations regarding operation of those gang databases to the Department of Justice.
(6)Members of RIPA shall not receive compensation, nor per diem expenses, for their services as members of RIPA.
(7)No action of RIPA shall be valid unless agreed to by a majority of its members.
(8)The initial terms of RIPA members shall be four years.
(9)Each year, RIPA shall elect two of its members as cochairpersons.
This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.The Legislature finds and declares the following:
(a)Shared gang databases only provide value to law enforcement if they are accurate.
(b)A recent audit by the California State Auditor found serious and systemic problems with the CalGang database. Among other things, the audit found the following:
(1)The current oversight structure for the CalGang database does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals privacy rights. Although the Department of Justice funds a contract to maintain the CalGang database, the system is not established in statute.
(2)The CalGang database is administered by the CalGang Executive Board, an executive board comprised of user agencies. These user entities function independently from the state and without transparency or meaningful opportunities for public engagement.
(3)In practice, there is little evidence that the CalGang Executive Board has ensured that user agencies comply with either the federal regulations or the state guidelines.
(4)A review of entries from four agencies revealed systematic problems with the data. Only one of the nine gangs reviewed met the requirements of the CalGang database policy before entry. User agencies lacked adequate support for including approximately 25 percent of gang criteria and 13 percent of individuals reviewed. Errors included documentation that directly contradicted the stated evidence of gang membership in the CalGang database system.
(c)Although law enforcement officials told the California State Auditor that inclusion in the CalGang database is of little impact to individuals because the CalGang database only points to source documentation, the system can have significant impacts on individuals.
(d)While the CalGang database policy states that information in the system should not be used as a statement of fact in official reports or for any purposes unrelated to law enforcement, the audit found criminal cases where judges referred to the CalGang database as support for expert opinions that individuals were or were not gang members. Law enforcement agencies admitted to using the CalGang database for employment or military-related screenings.
(e)The CalGang database and other shared gang databases information is shared with federal agencies, which are required by federal law to share this information with Immigration and Customs Enforcement (ICE) for the purpose of immigration enforcement. ICE may use a persons alleged gang membership as a reason to deny release on bond, to deny eligibility for discretionary immigration relief and benefits, to prioritize removal, or even to identify an individual as a gang member to police in the country to which the person is deported.
(f)The overwhelming majority of individuals listed in the CalGang database to date have been given no opportunity to contest their designation as gang members. In many cases, these individuals have never been told they have been placed in the CalGang database.
(g)The effects of inclusion in the CalGang database on peoples lives are profound, but there are few safeguards against incorrect inclusion in the database.
(h)If California continues to operate the CalGang database or other shared gang databases, it should require those databases to have an oversight structure that ensures accuracy, supports accountability for proper database use, and protects individuals rights.
(i)If California continues to operate the CalGang database or other shared gang databases, it should require that sharing of those databases with agencies that enforce federal immigration law be limited to the greatest extent possible in order to maintain a relationship of trust between Californias immigrant community and state and local law enforcement agencies.
SEC. 3.Section 70615 of the Government Code is amended to read:70615.The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a)An appeal of a local agencys decision regarding an administrative fine or penalty under Section 53069.4.
(b)An appeal under Section 40230 of the Vehicle Code of an administrative agencys decision regarding a parking violation.
(c)An appeal under Section 99582 of the Public Utilities Code of a hearing officers determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d)A petition under Section 186.35 of the Penal Code challenging a law enforcement agencys determination regarding the placement of an individuals information in a shared gang database.
SEC. 4.Section 186.34 of the Penal Code is amended to read:186.34.(a)(1)For purposes of this section, shared gang database shall mean any database that satisfies all of the following:
(A)Allows access for any local law enforcement agency.
(B)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.
(C)Is subject to Part 23 of Title 28 of the Code of Federal Regulations. If federal funding is no longer available to a database through the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to satisfy this subparagraph to meet the definition of a shared gang database.
(2)A shared gang database does not include dispatch operator reports, criminal investigative reports, probation reports, or information required to be collected pursuant to Section 186.30.
(3)Notwithstanding subparagraph (C) of paragraph (1), a shared gang database includes the CalGang system, operated pursuant to Part 23 of Title 28 of the Code of Federal Regulations.
(b)Notwithstanding subparagraph (C) of paragraph (1) of subdivision (a), a shared gang database, as defined in this section, shall retain records related to the gang activity of the individuals in the database consistent with the provisions contained in Section 23.20(h) of Title 28 of the Code of Federal Regulations.
(c)(1)Except as provided in subdivision (j) of Section 186.36, commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined in subdivision (a), shall submit a report to the Department of Justice, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:
(A)The number of persons included in the database on the day of reporting.
(B)The number of persons added to the database during the immediately preceding 12 months.
(C)The number of requests for removal of a person from the database received during the immediately preceding 12 months.
(D)The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months.
(E)The number of persons automatically removed from the database during the immediately preceding 12 months.
(2)Commencing February 15, 2018, and annually on February 15 thereafter, the Department of Justice shall post each law enforcement agencys report that contains the information collected pursuant to paragraph (1) on the departments Internet Web site.
(d)(1)To the extent a local law enforcement agency elects to utilize a shared gang database, as defined in subdivision (a), prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation, the name of the designated gang, and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.
(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the name of the designated gang and the reason for his or her designation in the database.
(e)(1)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a gang member, suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency. A request pursuant to this paragraph shall be in writing and shall identify the person who is the subject of the request by full name and date of birth.
(2)The law enforcement agency shall provide information pursuant to a request made under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age. The information provided by the law enforcement agency shall include, at a minimum, whether the person is designated in the shared database, and if so, shall identify that designation as to a gang member, suspected gang member, associate or affiliate of a gang, the name of the designated gang, what law enforcement agency made the designation, the date the person was designated in the database, and the basis for the persons designation.
(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.
(f)Subsequent to the notice described in subdivision (d) or the law enforcement agencys response to an information request described in subdivision (e), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is under 18 years of age, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not an active gang member, suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and, if the person is under 18 years of age, his or her parent or guardian, with written confirmation that the person has been removed from the database, or of the agencys decision to deny the request for removal, within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. If the law enforcement agency does not provide a verification of the agencys decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian, may petition the court to review the law enforcement agencys denial of the request for the removal and the court may order the law enforcement agency to remove the person from the shared database pursuant to Section 186.35.
(g)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
(h)The Department of Justice shall 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 two years.SEC. 5.Section 186.35 of the Penal Code is amended to read:186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (f) of Section 186.34, may petition the court to review the law enforcement agencys denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database. The petition may be brought by the person or the persons attorneys, or if the person is under 18 years of age, by his or her parent or guardian or an attorney on behalf of the parent or guardian.
(b)The petition shall be filed and served within 90 calendar days of the agencys mailing or personal service of the verification of the decision to deny the request for removal from the shared gang database, or if no response was received from the law enforcement agency within the 30-day period, within 120 days of the written request for removal. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in the county in which the local law enforcement agency is located, or if the person resides in California, in the county in which the person resides. A copy of the petition shall be served in person or by first-class mail upon the agency by the person. Proof of service of the petition upon the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, or the 120-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.
(c)The evidentiary record for the courts determination of the petition shall be limited to the agencys statement of the basis of its designation made pursuant to subdivision (d) or (e) of Section 186.34, and the documentation provided to the agency by the person contesting the designation pursuant to subdivision (f) of Section 186.34.
(d)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the persons active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.
(e)The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 6.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database or the shared gang databases that feed into it.
(b)The department shall promulgate regulations governing the use, operation, and oversight of any shared gang database, including, but not limited to, establishing the following:
(1)The requirements for entering and reviewing gang designations.
(2)The retention period for listed gangs.
(3)The criteria for identifying gang members.
(4)The definitions of offenses consistent with gang activity.
(5)The retention period for individuals listed in a shared gang database.
(5)(6)The specifications for user agencies operation of the shared gang database, including requirements for user agencies to implement supervisory review procedures and conduct periodic reviews of the records, and report those reviews to the department.
(6)(7)Standardized practices for compliance with notification and appeal requirements.
(c)The department shall establish a technical advisory committee for all shared gang databases. The technical advisory committee shall include the following members:
(1)The Attorney General, or his or her designee.
(2)Representatives from participating law enforcement agencies.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang and violence intervention.
(5)A representative of organizations that provide immigration services.
(6)A representative of organizations that specialize in privacy rights.
(7)Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age.
(8)One person who is or was placed on a shared gang database.
(9)One parent of a person who is or was placed on a shared gang database as a juvenile.
(d)The meetings of the technical advisory committee are subject to the Bagley-Keene Open Meeting Act.
(e)The committee shall meet at least twice per year.
(f)The department shall develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.
(g)The department shall promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The department shall also promulgate regulations to provide for a comprehensive review by user agencies of the database records submitted to ensure the user agency has adequate support for the criteria associated with all the individuals they have entered as gang members.
(h)If a user agency cannot establish adequate support for an entry or the accuracy of a data field, that entry or field shall be purged from the database.
(i)User agencies shall report their review progress to the department every six months and upon completion.
(j)The department shall publish an annual report on a shared gang database summarizing the results from periodic audits conducted pursuant to this section and including all reports presented to the department pursuant to subdivision (c) of Section 186.34. The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(k)State and local law enforcement agencies shall not make any shared gang database available to any federal agency or entity. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.
(l)Any shared gang database operated by law enforcement in California on January 1, 2018, including, but not limited to, the CalGang database, shall be placed under a moratorium. During the moratorium no data shall be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The Attorney General shall notify any state, local, or federal agencies that had access to data from the database in the previous five years that the data in the database has been deemed unreliable and inaccurate and shall request the agency delete or refrain from using or relying on the data until the moratorium has been lifted. The department shall train and recertify all users of the shared gang database pursuant to the training specified in subdivision (f) during the moratorium. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies and posts on the departments public Internet Web site that the requirements of subdivisions (f) and (g) have been met.
SEC. 7.Section 13519.4 of the Penal Code is amended to read:13519.4.(a)The commission shall develop and disseminate guidelines and training for all peace officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial, identity, and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a diverse racial, identity, and cultural environment.
(b)The course of basic training for peace officers shall include adequate instruction on racial, identity, and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial, identity, and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial, identity, and cultural awareness and diversity.
(c)For the purposes of this section the following shall apply:
(1)Disability, gender, nationality, religion, and sexual orientation have the same meaning as in Section 422.56.
(2)Culturally diverse and cultural diversity include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.
(3)Racial has the same meaning as race or ethnicity in Section 422.56.
(4)Stop has the same meaning as in paragraph (2) of subdivision (g) of Section 12525.5 of the Government Code.
(d)The Legislature finds and declares as follows:
(1)The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of peace officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.
(2)Racial or identity profiling is a practice that presents a great danger to the fundamental principles of our Constitution and a democratic society. It is abhorrent and cannot be tolerated.
(3)Racial or identity profiling alienates people from law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people whom law enforcement is sworn to protect and serve.
(4)Pedestrians, users of public transportation, and vehicular occupants who have been stopped, searched, interrogated, and subjected to a property seizure by a peace officer for no reason other than the color of their skin, national origin, religion, gender identity or expression, housing status, sexual orientation, or mental or physical disability are the victims of discriminatory practices.
(5)It is the intent of the Legislature in enacting the changes to this section made by the act that added this paragraph that additional training is required to address the pernicious practice of racial or identity profiling and that enactment of this section is in no way dispositive of the issue of how the state should deal with racial or identity profiling.
(e)Racial or identity profiling, for purposes of this section, is the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, or mental or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider or rely on characteristics listed in a specific suspect description. The activities include, but are not limited to, traffic or pedestrian stops, or actions during a stop, such as asking questions, frisks, consensual and nonconsensual searches of a person or any property, seizing any property, removing vehicle occupants during a traffic stop, issuing a citation, and making an arrest.
(f)A peace officer shall not engage in racial or identity profiling.
(g)Every peace officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.
(h)The curriculum shall be evidence-based and shall include and examine evidence-based patterns, practices, and protocols that make up racial or identity profiling, including implicit bias. This training shall prescribe evidence-based patterns, practices, and protocols that prevent racial or identity profiling. In developing the training, the commission shall consult with the Racial and Identity Profiling Advisory Board established pursuant to subdivision (j). The course of instruction shall include, but not be limited to, significant consideration of each of the following subjects:
(1)Identification of key indices and perspectives that make up racial, identity, and cultural differences among residents in a local community.
(2)Negative impact of intentional and implicit biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations and contributed to injury, death, disparities in arrest detention and incarceration rights, and wrongful convictions.
(3)The history and role of the civil and human rights movement and struggles and their impact on law enforcement.
(4)Specific obligations of peace officers in preventing, reporting, and responding to discriminatory or biased practices by fellow peace officers.
(5)Perspectives of diverse, local constituency groups and experts on particular racial, identity, and cultural and police-community relations issues in a local area.
(6)The prohibition against racial or identity profiling in subdivision (f).
(i)Once the initial basic training is completed, each peace officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial, identity, and cultural trends.
(j)(1)Beginning July 1, 2016, the Attorney General shall establish the Racial and Identity Profiling Advisory Board (RIPA) for the purpose of eliminating racial and identity profiling, and improving diversity and racial and identity sensitivity in law enforcement.
(2)RIPA shall include the following members:
(A)The Attorney General, or his or her designee.
(B)The President of the California Public Defenders Association, or his or her designee.
(C)The President of the California Police Chiefs Association, or his or her designee.
(D)The President of the California State Sheriffs Association, or his or her designee.
(E)The President of the Peace Officers Research Association of California, or his or her designee.
(F)The Commissioner of the California Highway Patrol, or his or her designee.
(G)A university professor who specializes in policing, and racial and identity equity.
(H)Two representatives of human or civil rights tax-exempt organizations who specialize in civil or human rights.
(I)Two representatives of community organizations who specialize in civil or human rights and criminal justice, and work with victims of racial and identity profiling. At least one representative shall be between 16 and 24 years of age.
(J)Two religious clergy members who specialize in addressing and reducing racial and identity bias toward individuals and groups.
(K)Up to two other members that the Governor may prescribe.
(L)Up to two other members that the President pro Tempore of the Senate may prescribe.
(M)Up to two other members that the Speaker of the Assembly may prescribe.
(3)Each year, on an annual basis, RIPA shall do the following:
(A)Analyze the data reported pursuant to Section 12525.5 of the Government Code and Section 13012 of this code.
(B)Analyze law enforcement training under this section.
(C)Work in partnership with state and local law enforcement agencies to review and analyze racial and identity profiling policies and practices across geographic areas in California.
(D)Conduct, and consult available, evidence-based research on intentional and implicit biases, and law enforcement stop, search, and seizure tactics.
(E)Issue a report that provides RIPAs analysis under subparagraphs (A) to (D), inclusive, and detailed findings on the past and current status of racial and identity profiling, and makes policy recommendations for eliminating racial and identity profiling. RIPA shall post the report on its Internet Web site. Each report shall include disaggregated statistical data for each reporting law enforcement agency. The report shall include, at minimum, each reporting law enforcement agencys total results for each data collection criterion under subdivision (b) of Section 12525.5 of the Government Code for each calendar year. The reports shall be retained and made available to the public by posting those reports on the Department of Justices OpenJustice Web portal. The first annual report shall be issued no later than January 1, 2018. The reports are public records within the meaning of Section 6252 of the Government Code and are open to public inspection pursuant to Sections 6253 and 6258 of the Government Code.
(F)Hold at least three public meetings annually to discuss racial and identity profiling, and potential reforms to prevent racial and identity profiling. Each year, one meeting shall be held in northern California, one in central California, and one in southern California. RIPA shall provide the public with notice of at least 60 days before each meeting.
(4)Pursuant to subdivision (e) of Section 12525.5 of the Government Code, RIPA shall advise the Attorney General in developing regulations for the collection and reporting of stop data, and ensuring uniform reporting practices across all reporting agencies.
(5)RIPA may, at its discretion, review operations of shared gang databases and make recommendations regarding operation of those databases to the Department of Justice.
(6)Members of RIPA shall not receive compensation, nor per diem expenses, for their services as members of RIPA.
(7)No action of RIPA shall be valid unless agreed to by a majority of its members.
(8)The initial terms of RIPA members shall be four years.
(9)Each year, RIPA shall elect two of its members as cochairpersons.
This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.The Legislature finds and declares the following:
(a)Shared gang databases only provide value to law enforcement if they are accurate.
(b)A recent audit by the California State Auditor found serious and systemic problems with the CalGang database. Among other things, the audit found the following:
(1)The current oversight structure for the CalGang database does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals privacy rights. Although the Department of Justice funds a contract to maintain the CalGang database, the system is not established in statute.
(2)The CalGang database is administered by the CalGang Executive Board, an executive board comprised of user agencies. These user entities function independently from the state and without transparency or meaningful opportunities for public engagement.
(3)In practice, there is little evidence that the CalGang Executive Board has ensured that user agencies comply with either the federal regulations or the state guidelines.
(4)A review of entries from four agencies revealed systematic problems with the data. Only one of the nine gangs reviewed met the requirements of the CalGang database policy before entry. User agencies lacked adequate support for including approximately 25 percent of gang criteria and 13 percent of individuals reviewed. Errors included documentation that directly contradicted the stated evidence of gang membership in the CalGang database system.
(c)Although law enforcement officials told the California State Auditor that inclusion in the CalGang database is of little impact to individuals because the CalGang database only points to source documentation, the system can have significant impacts on individuals.
(d)While the CalGang database policy states that information in the system should not be used as a statement of fact in official reports or for any purposes unrelated to law enforcement, the audit found criminal cases where judges referred to the CalGang database as support for expert opinions that individuals were or were not gang members. Law enforcement agencies admitted to using the CalGang database for employment or military-related screenings.
(e)The CalGang database and other shared gang databases information is shared with federal agencies, who which are required by federal law to share this information with Immigration and Customs Enforcement (ICE) for the purpose of immigration enforcement. ICE may use a persons alleged gang membership as a reason to deny release on bond, to deny eligibility for discretionary immigration relief and benefits, to prioritize removal, or even to identify an individual as a gang member to police in the country to which the person is deported.
(f)The overwhelming majority of individuals listed in the CalGang database to date have been given no opportunity to contest their designation as gang members. In many cases, these individuals have never been told they have been placed in the CalGang database.
(g)The effects of inclusion in the CalGang database on peoples lives are profound, but there are few safeguards against incorrect inclusion in the database.
(h)If California continues to operate the CalGang database or other shared gang databases, it should require those databases to have an oversight structure that ensures accuracy, supports accountability for proper database use, and protects individuals rights.
(i)If California continues to operate the CalGang database or other shared gang databases, it should require that sharing of those databases with agencies that enforce federal immigration law be limited to the greatest extent possible in order to maintain a relationship of trust between Californias immigrant community and state and local law enforcement agencies.
SEC. 3.Section 70615 of the Government Code is amended to read:70615.The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a)An appeal of a local agencys decision regarding an administrative fine or penalty under Section 53069.4.
(b)An appeal under Section 40230 of the Vehicle Code of an administrative agencys decision regarding a parking violation.
(c)An appeal under Section 99582 of the Public Utilities Code of a hearing officers determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d)An appeal A petition under Section 186.35 of the Penal Code of challenging a law enforcement agencys determination regarding the placement of an individuals information in a shared gang database.
SEC. 3.SEC. 4.Section 186.34 of the Penal Code is amended to read:186.34.(a)(1)For purposes of this section, shared gang database shall mean any database that satisfies all of the following:
(A)Allows access for any local law enforcement agency.
(B)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.
(C)Is subject to Part 23 of Title 28 of the Code of Federal Regulations. If federal funding is no longer available to a database through the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to satisfy this subparagraph to meet the definition of a shared gang database.
(2)A shared gang database does not include dispatch operator reports, criminal investigative reports, probation reports, or information required to be collected pursuant to Section 186.30.
(3)Notwithstanding subparagraph (C) of paragraph (1), a shared gang database includes the CalGang system, operated pursuant to Part 23 of Title 28 of the Code of Federal Regulations.
(b)Notwithstanding subparagraph (C) of paragraph (1) of subdivision (a), a shared gang database, as defined in this section, shall retain records related to the gang activity of the individuals in the database consistent with the provisions contained in Section 23.20(h) of Title 28 of the Code of Federal Regulations.
(c)(1)Except as provided in subdivision (j) of Section 186.36, commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined in subdivision (a), shall submit a report to the Department of Justice, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:
(A)The number of persons included in the database on the day of reporting.
(B)The number of persons added to the database during the immediately preceding 12 months.
(C)The number of requests for removal of a person from the database received during the immediately preceding 12 months.
(D)The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months.
(E)The number of persons automatically removed from the database during the immediately preceding 12 months.
(2)Commencing February 15, 2018, and annually on February 15 thereafter, the Department of Justice shall post each law enforcement agencys report that contains the information collected pursuant to paragraph (1) on the departments Internet Web site.
(d)(1)To the extent a local law enforcement agency elects to utilize a shared gang database, as defined in subdivision (a), prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation designation, the name of the designated gang, and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.
(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the name of the designated gang and the reason for his or her designation in the database.
(e)(1)(A)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person, may request information of any law enforcement agency as to whether the person is designated as a gang member, suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency and what law enforcement agency made the designation. agency. A request pursuant to this paragraph shall be in writing. writing and shall identify the person who is the subject of the request by full name and date of birth.
(B)If a person about whom information is requested pursuant to subparagraph (A) is designated as a suspected gang member, associate, or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (f).(2)The law enforcement agency shall provide information requested pursuant to a request made under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age. The information provided by the law enforcement agency shall include, at a minimum, whether the person is designated in the shared database, and if so, shall identify that designation as to a gang member, suspected gang member, associate or affiliate of a gang, the name of the designated gang, what law enforcement agency made the designation, the date the person was designated in the database, and the basis for the persons designation.
(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.
(f)Subsequent to the notice described in subdivision (d) or the law enforcement agencys response to an information request described in subdivision (e), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is a minor, under 18 years of age, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not a suspected an active gang member, suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and, if the person is under 18 years of age, his or her parent or guardian, with written verification confirmation that the person has been removed from the database, or of the agencys decision to deny the request for removal, within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. The person may appeal the denial If the law enforcement agency does not provide a verification of the agencys decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian, may petition the court to review the law enforcement agencys denial of the request for the removal and the court may order the law enforcement agency to remove the person from the shared database pursuant to Section 186.35.
(g)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
(h)The Department of Justice shall 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 two years.
SEC. 4.SEC. 5.Section 186.35 of the Penal Code is amended to read:186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (f) of Section 186.34, may seek review within petition the court to review the law enforcement agencys denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database. The petition may be brought by the person or the persons attorneys, or if the person is under 18 years of age, by his or her parent or guardian or an attorney on behalf of the parent or guardian.
(b)The petition shall be filed and served within 90 calendar days of the agencys mailing or personal service of the verification of the decision by filing an appeal to be heard by the superior court. A proceeding under this subdivision is a limited civil case. to deny the request for removal from the shared gang database, or if no response was received from the law enforcement agency within the 30-day period, within 120 days of the written request for removal. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in the county in which the local law enforcement agency is located, or if the person resides in California, in the county in which the person resides. A copy of the notice of appeal petition shall be served in person or by first-class mail upon the agency by the person. Proof of service of the petition upon the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, or the 120-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.
(b)(c)The evidentiary record for the appeal courts determination of the petition shall be limited to the agencys statement of the basis of its designation made pursuant to subdivision (d) or (e) of Section 186.34, and the documentation provided to the agency by the appellant person contesting the designation pursuant to subdivision (f) of Section 186.34. If,
(d)If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the appellants persons active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.
(c)(e)The fee for filing the notice of appeal petition is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the appeal. petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 5.SEC. 6.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database or the shared gang databases that feed into it.
(b)The department shall promulgate regulations governing the use, operation, and oversight of any shared gang database, including, but not limited to, establishing the following:
(1)The requirements for entering and reviewing gang designations.
(2)The retention period for listed gangs.
(3)The criteria for identifying gang members.
(4)The definitions of offenses consistent with gang activity.
(5)The specifications for user agencies agencies operation of the shared gang database, including requirements for user agencies to implement supervisory review procedures and conduct periodic reviews of the records, and report those reviews to the department.
(6)Standardized practices for compliance with notification and appeal requirements.
(c)The department shall establish a technical advisory committee for all shared gang databases. The technical advisory committee shall include the following members:
(1)The Attorney General, or his or her designee.
(2)Representatives from participating law enforcement agencies.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang and violence intervention.
(5)A representative of organizations that provide immigration services.
(6)A representative of organizations that specialize in privacy rights.
(7)Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age.
(8)One person who is or was placed on a shared gang database.
(9)One parent of a person who is or was placed on a shared gang database as a juvenile.
(d)The meetings of the technical advisory committee are subject to the Bagley-Keene Open Meeting Act.
(e)The committee shall meet at least twice per year.
(f)The department shall develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.
(g)The department shall promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The department shall also promulgate regulations to provide for a comprehensive review by user agencies of the database records submitted to ensure the user agency has adequate support for the criteria associated with all the individuals they have entered as gang members.
(h)If a user agency cannot establish adequate support for an entry or the accuracy of a data field, that entry or field shall be purged from the database.
(i)User agencies shall report their review progress to the department every six months and upon completion.
(j)The department shall publish an annual report on a shared gang database summarizing the results from periodic audits conducted pursuant to this section and including all reports presented to the department pursuant to subdivision (c) of Section 186.34. The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(k)State and local law enforcement agencies shall not make any shared gang database available to any federal agency or entity. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.
(l)Any shared gang database operated by law enforcement in California on January 1, 2018, including, but not limited to, the CalGang database, shall be placed under a moratorium. During the moratorium no data shall be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The Attorney General shall notify any state, local, or federal agencies that had access to data from the database in the previous five years that the data in the database has been deemed unreliable and inaccurate and shall request the agency delete or refrain from using or relying on the data until the moratorium has been lifted. The department shall train and recertify all users of the shared gang database pursuant to the training specified in subdivision (f) during the moratorium. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies and posts on the departments public Internet Web site that the requirements of subdivisions (f) and (g) have been met.
SEC. 6.SEC. 7.Section 13519.4 of the Penal Code is amended to read:13519.4.(a)The commission shall develop and disseminate guidelines and training for all peace officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial, identity, and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a diverse racial, identity, and cultural environment.
(b)The course of basic training for peace officers shall include adequate instruction on racial, identity, and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial, identity, and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial, identity, and cultural awareness and diversity.
(c)For the purposes of this section the following shall apply:
(1)Disability, gender, nationality, religion, and sexual orientation have the same meaning as in Section 422.56.
(2)Culturally diverse and cultural diversity include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.
(3)Racial has the same meaning as race or ethnicity in Section 422.56.
(4)Stop has the same meaning as in paragraph (2) of subdivision (g) of Section 12525.5 of the Government Code.
(d)The Legislature finds and declares as follows:
(1)The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of peace officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.
(2)Racial or identity profiling is a practice that presents a great danger to the fundamental principles of our Constitution and a democratic society. It is abhorrent and cannot be tolerated.
(3)Racial or identity profiling alienates people from law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people whom law enforcement is sworn to protect and serve.
(4)Pedestrians, users of public transportation, and vehicular occupants who have been stopped, searched, interrogated, and subjected to a property seizure by a peace officer for no reason other than the color of their skin, national origin, religion, gender identity or expression, housing status, sexual orientation, or mental or physical disability are the victims of discriminatory practices.
(5)It is the intent of the Legislature in enacting the changes to this section made by the act that added this paragraph that additional training is required to address the pernicious practice of racial or identity profiling and that enactment of this section is in no way dispositive of the issue of how the state should deal with racial or identity profiling.
(e)Racial or identity profiling, for purposes of this section, is the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, or mental or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider or rely on characteristics listed in a specific suspect description. The activities include, but are not limited to, traffic or pedestrian stops, or actions during a stop, such as asking questions, frisks, consensual and nonconsensual searches of a person or any property, seizing any property, removing vehicle occupants during a traffic stop, issuing a citation, and making an arrest.
(f)A peace officer shall not engage in racial or identity profiling.
(g)Every peace officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.
(h)The curriculum shall be evidence-based and shall include and examine evidence-based patterns, practices, and protocols that make up racial or identity profiling, including implicit bias. This training shall prescribe evidence-based patterns, practices, and protocols that prevent racial or identity profiling. In developing the training, the commission shall consult with the Racial and Identity Profiling Advisory Board established pursuant to subdivision (j). The course of instruction shall include, but not be limited to, significant consideration of each of the following subjects:
(1)Identification of key indices and perspectives that make up racial, identity, and cultural differences among residents in a local community.
(2)Negative impact of intentional and implicit biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations and contributed to injury, death, disparities in arrest detention and incarceration rights, and wrongful convictions.
(3)The history and role of the civil and human rights movement and struggles and their impact on law enforcement.
(4)Specific obligations of peace officers in preventing, reporting, and responding to discriminatory or biased practices by fellow peace officers.
(5)Perspectives of diverse, local constituency groups and experts on particular racial, identity, and cultural and police-community relations issues in a local area.
(6)The prohibition against racial or identity profiling in subdivision (f).
(i)Once the initial basic training is completed, each peace officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial, identity, and cultural trends.
(j)(1)Beginning July 1, 2016, the Attorney General shall establish the Racial and Identity Profiling Advisory Board (RIPA) for the purpose of eliminating racial and identity profiling, and improving diversity and racial and identity sensitivity in law enforcement.
(2)RIPA shall include the following members:
(A)The Attorney General, or his or her designee.
(B)The President of the California Public Defenders Association, or his or her designee.
(C)The President of the California Police Chiefs Association, or his or her designee.
(D)The President of the California State Sheriffs Association, or his or her designee.
(E)The President of the Peace Officers Research Association of California, or his or her designee.
(F)The Commissioner of the California Highway Patrol, or his or her designee.
(G)A university professor who specializes in policing, and racial and identity equity.
(H)Two representatives of human or civil rights tax-exempt organizations who specialize in civil or human rights.
(I)Two representatives of community organizations who specialize in civil or human rights and criminal justice, and work with victims of racial and identity profiling. At least one representative shall be between 16 and 24 years of age.
(J)Two religious clergy members who specialize in addressing and reducing racial and identity bias toward individuals and groups.
(K)Up to two other members that the Governor may prescribe.
(L)Up to two other members that the President pro Tempore of the Senate may prescribe.
(M)Up to two other members that the Speaker of the Assembly may prescribe.
(3)Each year, on an annual basis, RIPA shall do the following:
(A)Analyze the data reported pursuant to Section 12525.5 of the Government Code and Section 13012 of this code.
(B)Analyze law enforcement training under this section.
(C)Work in partnership with state and local law enforcement agencies to review and analyze racial and identity profiling policies and practices across geographic areas in California.
(D)Conduct, and consult available, evidence-based research on intentional and implicit biases, and law enforcement stop, search, and seizure tactics.
(E)Issue a report that provides RIPAs analysis under subparagraphs (A) to (D), inclusive, and detailed findings on the past and current status of racial and identity profiling, and makes policy recommendations for eliminating racial and identity profiling. RIPA shall post the report on its Internet Web site. Each report shall include disaggregated statistical data for each reporting law enforcement agency. The report shall include, at minimum, each reporting law enforcement agencys total results for each data collection criterion under subdivision (b) of Section 12525.5 of the Government Code for each calendar year. The reports shall be retained and made available to the public by posting those reports on the Department of Justices OpenJustice Web portal. The first annual report shall be issued no later than January 1, 2018. The reports are public records within the meaning of Section 6252 of the Government Code and are open to public inspection pursuant to Sections 6253 and 6258 of the Government Code.
(F)Hold at least three public meetings annually to discuss racial and identity profiling, and potential reforms to prevent racial and identity profiling. Each year, one meeting shall be held in northern California, one in central California, and one in southern California. RIPA shall provide the public with notice of at least 60 days before each meeting.
(4)Pursuant to subdivision (e) of Section 12525.5 of the Government Code, RIPA shall advise the Attorney General in developing regulations for the collection and reporting of stop data, and ensuring uniform reporting practices across all reporting agencies.
(5)RIPA may, at its discretion, review operations of shared gang databases and make recommendations regarding operation of those databases to the Department of Justice.
(6)Members of RIPA shall not receive compensation, nor per diem expenses, for their services as members of RIPA.
(7)No action of RIPA shall be valid unless agreed to by a majority of its members.
(8)The initial terms of RIPA members shall be four years.
(9)Each year, RIPA shall elect two of its members as cochairpersons.
This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.
SEC. 2.The Legislature finds and declares the following:
(a)Shared gang databases only provide value to law enforcement if they are accurate.
(b)A recent audit by the California State Auditor found serious and systemic problems with the CalGang database. Among other things, the audit found the following:
(1)The current oversight structure for the CalGang database does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals privacy rights. Although the Department of Justice funds a contract to maintain the CalGang database, the system is not established in statute.
(2)The CalGang database is administered by the CalGang Executive Board, an executive board comprised of user agencies. These user entities function independently from the state and without transparency or meaningful opportunities for public engagement.
(3)In practice, there is little evidence that the CalGang Executive Board has ensured that user agencies comply with either the federal regulations or the state guidelines.
(4)A review of entries from four agencies revealed systematic problems with the data. Only one of the nine gangs reviewed met the requirements of the CalGang database policy before entry. User agencies lacked adequate support for including approximately 25 percent of gang criteria and 13 percent of individuals reviewed. Errors included documentation that directly contradicted the stated evidence of gang membership in the CalGang database system.
(c)Although law enforcement officials told the California State Auditor that inclusion in the CalGang database is of little impact to individuals because the CalGang database only points to source documentation, the system can have significant impacts on individuals.
(d)While the CalGang database policy states that information in the system should not be used as a statement of fact in official reports or for any purposes unrelated to law enforcement, the audit found criminal cases where judges referred to the CalGang database as support for expert opinions that individuals were or were not gang members. Law enforcement agencies admitted to using the CalGang database for employment or military-related screenings.
(e)The CalGang database and other shared gang databases information is shared with federal agencies, who are required by federal law to share this information with Immigration and Customs Enforcement (ICE) for the purpose of immigration enforcement. ICE may use a persons alleged gang membership as a reason to deny release on bond, to deny eligibility for discretionary immigration relief and benefits, to prioritize removal, or even to identify an individual as a gang member to police in the country to which the person is deported.
(f)The overwhelming majority of individuals listed in the CalGang database to date have been given no opportunity to contest their designation as gang members. In many cases, these individuals have never been told they have been placed in the CalGang database.
(g)The effects of inclusion in the CalGang database on peoples lives are profound, but there are few safeguards against incorrect inclusion in the database.
(h)If California continues to operate the CalGang database or other shared gang databases, it should require those databases to have an oversight structure that ensures accuracy, supports accountability for proper database use, and protects individuals rights.
(i)If California continues to operate the CalGang database or other shared gang databases, it should require that sharing of those databases with agencies that enforce federal immigration law be limited to the greatest extent possible in order to maintain a relationship of trust between Californias immigrant community and state and local law enforcement agencies.
SEC. 3.Section 186.34 of the Penal Code is amended to read:186.34.(a)(1)For purposes of this section, shared gang database shall mean any database that satisfies all of the following:
(A)Allows access for any local law enforcement agency.
(B)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.
(C)Is subject to Part 23 of Title 28 of the Code of Federal Regulations. If federal funding is no longer available to a database through the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to satisfy this subparagraph to meet the definition of a shared gang database.
(2)A shared gang database does not include dispatch operator reports, information used for the administration of jail or custodial facilities, criminal investigative reports, probation reports, or information required to be collected pursuant to Section 186.30.
(3)Notwithstanding subparagraph (C) of paragraph (1), a shared gang database includes the CalGang system, operated pursuant to Part 23 of Title 28 of the Code of Federal Regulations.
(b)Notwithstanding subparagraph (C) of paragraph (1) of subdivision (a), a shared gang database, as defined in this section, shall retain records related to the gang activity of the individuals in the database consistent with the provisions contained in Section 23.20(h) of Title 28 of the Code of Federal Regulations.
(c)(1)Commencing Except as provided in subdivision (j) of Section 186.36, commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined in subdivision (a), shall submit a report to the Department of Justice, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:
(A)The number of persons included in the database on the day of reporting.
(B)The number of persons added to the database during the immediately preceding 12 months.
(C)The number of requests for removal of a person from the database received during the immediately preceding 12 months.
(D)The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months.
(E)The number of persons automatically removed from the database during the immediately preceding 12 months.
(2)Commencing February 15, 2018, and annually on February 15 thereafter, the Department of Justice shall post each law enforcement agencys report that contains the information collected pursuant to paragraph (1) on the departments Internet Web site.
(d)(1)To the extent a local law enforcement agency elects to utilize a shared gang database, as defined in subdivision (a), prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney Generals office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.
(2)The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the reason for his or her designation in the database.
(e)(1)(A)A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person person, may request information of any law enforcement agency as to whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency and what law enforcement agency made the designation. A request pursuant to this paragraph shall be in writing.
(B)If a person about whom information is requested pursuant to subparagraph (A) is designated as a suspected gang member, associate, or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (f).
(2)The law enforcement agency shall provide information requested under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age.
(3)The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.
(f)Subsequent to the notice described in subdivision (d), (d) or an information request described in subdivision (e), the person to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian, guardian if the person is a minor, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not a suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and and, if the person is under 18 years of age, his or her parent or guardian guardian, with written verification of the agencys decision within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. The person may appeal the denial pursuant to Section 186.35.
(g)Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.
(h)The Department of Justice shall 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 two years.
SEC. 4.Section 186.35 of the Penal Code is amended to read:186.35.(a)A person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation pursuant to subdivision (f) of Section 186.34, may seek review within 90 calendar days of the agencys mailing or personal service of the verification of the decision by filing an appeal to be heard by the superior court. A proceeding under this subdivision is a limited civil case. A copy of the notice of appeal shall be served in person or by first-class mail upon the agency by the person. For purposes of computing the 90-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.
(b)The evidentiary record for the appeal shall be limited to the agencys statement of basis of its designation made pursuant to subdivision (d) or (e) of Section 186.34, and the documentation provided to the agency by the appellant pursuant to subdivision (f) of Section 186.34. If, upon de novo review and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the petitioners appellants active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.
(c)The fee for filing the notice of appeal is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the appeal. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.
SEC. 5.Section 186.36 is added to the Penal Code, to read:186.36.(a)The Department of Justice is responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database or the shared gang databases that feed into it.
(b)The department shall promulgate regulations governing the use, operation, and oversight of any shared gang database, including, but not limited to, establishing the following:
(1)The requirements for entering and reviewing gang designations.
(2)The retention period for listed gangs.
(3)The criteria for identifying gang members.
(4)The definitions of offenses consistent with gang activity.
(5)The specifications for user agencies operation of the shared gang database, including requirements for user agencies to implement supervisory review procedures and conduct periodic reviews of the records, and report those reviews to the department.
(6)Standardized practices for compliance with notification and appeal requirements.
(c)The department shall establish a technical advisory committee for all shared gang databases. The technical advisory committee shall include the following members:
(1)The Attorney General, or his or her designee.
(2)Representatives from participating law enforcement agencies.
(3)The President of the California Public Defenders Association, or his or her designee.
(4)A representative of organizations that specialize in gang and violence intervention.
(5)A representative of organizations that provide immigration services.
(6)A representative of organizations that specialize in privacy rights.
(7)Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age.
(8)One person who is or was placed on a shared gang database.
(9)One parent of a person who is or was placed on a shared gang database as a juvenile.
(d)The meetings of the technical advisory committee are subject to the Bagley-Keene Open Meeting Act.
(e)The committee shall meet at least twice per year.
(f)The department shall develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.
(g)The department shall promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The department shall also promulgate regulations to provide for a comprehensive review by user agencies of the database records submitted to ensure the user agency has adequate support for the criteria associated with all the individuals they have entered as gang members.
(h)If a user agency cannot establish adequate support for an entry or the accuracy of a data field, that entry or field shall be purged from the database.
(i)User agencies shall report their review progress to the department every six months and upon completion.
(j)The department shall publish an annual report on a shared gang database summarizing the results from periodic audits conducted pursuant to this section and including all reports presented to the department pursuant to subdivision (c) of Section 186.34. The department shall invite and assess public comments following the reports release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(k)State and local law enforcement agencies shall not make any shared gang database available to any federal agency or entity. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.
(l)Any shared gang database operated by law enforcement in California on January 1, 2018, including, but not limited to, the CalGang database, shall be placed under a moratorium. During the moratorium no data shall be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The Attorney General shall notify any state, local, or federal agencies that had access to data from the database in the previous five years that the data in the database has been deemed unreliable and inaccurate and shall request the agency delete or refrain from using or relying on the data until the moratorium has been lifted. The department shall train and recertify all users of the shared gang database pursuant to the training specified in subdivision (f) during the moratorium. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies and posts on the departments public Internet Web site that the requirements of subdivisions (f) and (g) have been met.
SEC. 6.Section 13519.4 of the Penal Code is amended to read:13519.4.(a)The commission shall develop and disseminate guidelines and training for all peace officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial, identity, and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a diverse racial, identity, and cultural environment.
(b)The course of basic training for peace officers shall include adequate instruction on racial, identity, and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial, identity, and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial, identity, and cultural awareness and diversity.
(c)For the purposes of this section the following shall apply:
(1)Disability, gender, nationality, religion, and sexual orientation have the same meaning as in Section 422.55. 422.56.
(2)Culturally diverse and cultural diversity include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.
(3)Racial has the same meaning as race or ethnicity in Section 422.55. 422.56.
(4)Stop has the same meaning as in paragraph (2) of subdivision (g) of Section 12525.5 of the Government Code.
(d)The Legislature finds and declares as follows:
(1)The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of peace officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.
(2)Racial or identity profiling is a practice that presents a great danger to the fundamental principles of our Constitution and a democratic society. It is abhorrent and cannot be tolerated.
(3)Racial or identity profiling alienates people from law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people whom law enforcement is sworn to protect and serve.
(4)Pedestrians, users of public transportation, and vehicular occupants who have been stopped, searched, interrogated, and subjected to a property seizure by a peace officer for no reason other than the color of their skin, national origin, religion, gender identity or expression, housing status, sexual orientation, or mental or physical disability are the victims of discriminatory practices.
(5)It is the intent of the Legislature in enacting the changes to this section made by the act that added this paragraph that additional training is required to address the pernicious practice of racial or identity profiling and that enactment of this section is in no way dispositive of the issue of how the state should deal with racial or identity profiling.
(e)Racial or identity profiling, for purposes of this section, is the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, or mental or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider or rely on characteristics listed in a specific suspect description. The activities include, but are not limited to, traffic or pedestrian stops, or actions during a stop, such as asking questions, frisks, consensual and nonconsensual searches of a person or any property, seizing any property, removing vehicle occupants during a traffic stop, issuing a citation, and making an arrest.
(f)A peace officer shall not engage in racial or identity profiling.
(g)Every peace officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.
(h)The curriculum shall be evidence-based and shall include and examine evidence-based patterns, practices, and protocols that make up racial or identity profiling, including implicit bias. This training shall prescribe evidence-based patterns, practices, and protocols that prevent racial or identity profiling. In developing the training, the commission shall consult with the Racial and Identity Profiling Advisory Board established pursuant to subdivision (j). The course of instruction shall include, but not be limited to, significant consideration of each of the following subjects:
(1)Identification of key indices and perspectives that make up racial, identity, and cultural differences among residents in a local community.
(2)Negative impact of intentional and implicit biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations and contributed to injury, death, disparities in arrest detention and incarceration rights, and wrongful convictions.
(3)The history and role of the civil and human rights movement and struggles and their impact on law enforcement.
(4)Specific obligations of peace officers in preventing, reporting, and responding to discriminatory or biased practices by fellow peace officers.
(5)Perspectives of diverse, local constituency groups and experts on particular racial, identity, and cultural and police-community relations issues in a local area.
(6)The prohibition against racial or identity profiling in subdivision (f).
(i)Once the initial basic training is completed, each peace officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial, identity, and cultural trends.
(j)(1)Beginning July 1, 2016, the Attorney General shall establish the Racial and Identity Profiling Advisory Board (RIPA) for the purpose of eliminating racial and identity profiling, and improving diversity and racial and identity sensitivity in law enforcement.
(2)RIPA shall include the following members:
(A)The Attorney General, or his or her designee.
(B)The President of the California Public Defenders Association, or his or her designee.
(C)The President of the California Police Chiefs Association, or his or her designee.
(D)The President of the California State Sheriffs Association, or his or her designee.
(E)The President of the Peace Officers Research Association of California, or his or her designee.
(F)The Commissioner of the California Highway Patrol, or his or her designee.
(G)A university professor who specializes in policing, and racial and identity equity.
(H)Two representatives of human or civil rights tax-exempt organizations who specialize in civil or human rights.
(I)Two representatives of community organizations who specialize in civil or human rights and criminal justice, and work with victims of racial and identity profiling. At least one representative shall be between 16 and 24 years of age.
(J)Two religious clergy members who specialize in addressing and reducing racial and identity bias toward individuals and groups.
(K)Up to two other members that the Governor may prescribe.
(L)Up to two other members that the President pro Tempore of the Senate may prescribe.
(M)Up to two other members that the Speaker of the Assembly may prescribe.
(3)Each year, on an annual basis, RIPA shall do the following:
(A)Analyze the data reported pursuant to Section 12525.5 of the Government Code and Section 13012 of this code.
(B)Analyze law enforcement training under this section.
(C)Work in partnership with state and local law enforcement agencies to review and analyze racial and identity profiling policies and practices across geographic areas in California.
(D)Conduct, and consult available, evidence-based research on intentional and implicit biases, and law enforcement stop, search, and seizure tactics.
(E)Issue a report that provides RIPAs analysis under subparagraphs (A) to (D), inclusive, and detailed findings on the past and current status of racial and identity profiling, and makes policy recommendations for eliminating racial and identity profiling. RIPA shall post the report on its Internet Web site. Each report shall include disaggregated statistical data for each reporting law enforcement agency. The report shall include, at minimum, each reporting law enforcement agencys total results for each data collection criterion under subdivision (b) of Section 12525.5 of the Government Code for each calendar year. The reports shall be retained and made available to the public by posting those reports on the Department of Justices OpenJustice Web portal. The first annual report shall be issued no later than January 1, 2018. The reports are public records within the meaning of subdivision (d) of Section 6252 of the Government Code and are open to public inspection pursuant to Sections 6253, 6256, 6257, 6253 and 6258 of the Government Code.
(F)Hold at least three public meetings annually to discuss racial and identity profiling, and potential reforms to prevent racial and identity profiling. Each year, one meeting shall be held in northern California, one in central California, and one in southern California. RIPA shall provide the public with notice of at least 60 days before each meeting.
(4)Pursuant to subdivision (e) of Section 12525.5 of the Government Code, RIPA shall advise the Attorney General in developing regulations for the collection and reporting of stop data, and ensuring uniform reporting practices across all reporting agencies.
(5)RIPA may, at its discretion, review operations of shared gang databases and make recommendations regarding operation of those databases to the Department of Justice.
(5)(6)Members of RIPA shall not receive compensation, nor per diem expenses, for their services as members of RIPA.
(6)(7)No action of RIPA shall be valid unless agreed to by a majority of its members.
(7)(8)The initial terms of RIPA members shall be four years.
(8)(9)Each year, RIPA shall elect two of its members as cochairpersons.
SECTION 1.It is the intent of the Legislature to enact legislation to ensure that CalGang and any other equivalent shared gang database has an oversight structure that supports accountability for proper database use and protection of individual rights.It is the intent of the Legislature to enact legislation to ensure that CalGang and any other equivalent shared gang database has an oversight structure that supports accountability for proper database use and protection of individual rights.
|
Date
|
Status
|
|---|---|
| Oct 12, 2017 | Chaptered by Secretary of State - Chapter 695, Statutes of 2017. |
| Oct 12, 2017 | Approved by the Governor. |
| Sep 25, 2017 | Enrolled and presented to the Governor at 12 p.m. |
| Sep 14, 2017 | In Assembly. Concurrence in Senate amendments pending. |
| Sep 13, 2017 | Read third time. Passed. Ordered to the Assembly. |
| Sep 11, 2017 | Read second time. Ordered to third reading. |
| Sep 8, 2017 | Read third time and amended. Ordered to second reading. |
| Sep 5, 2017 | Read second time. Ordered to third reading. |
| Sep 1, 2017 | Read second time and amended. Ordered returned to second reading. |
| Aug 21, 2017 | In committee: Referred to APPR. suspense file. |
| Jul 13, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 12, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (July 11). |
| Jun 14, 2017 | Referred to Com. on PUB. S. |
| Jun 5, 2017 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Jun 1, 2017 | Read third time. Passed. Ordered to the Senate. (Ayes 42. Noes 36. Page 2070.) |
| May 30, 2017 | Read second time. Ordered to third reading. |
| May 26, 2017 | From committee: Do pass. (Ayes 10. Noes 6.) (May 26). |
| May 17, 2017 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 19, 2017 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (April 18). Re-referred to Com. on APPR. |
| Apr 18, 2017 | Re-referred to Com. on PUB. S. |
| Apr 17, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 13, 2017 | Re-referred to Com. on PUB. S. |
| Mar 9, 2017 | Referred to Com. on PUB. S. |
| Jan 10, 2017 | From printer. May be heard in committee February 9. |
| Jan 9, 2017 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 14, 2017 | AB 90 Weber Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Sep 13, 2017 | Assembly 3rd Reading AB90 Weber et al. By Mitchell | Senate Floor |
Passed |
|
| Sep 1, 2017 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 21, 2017 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| Jun 1, 2017 | AB 90 WEBER Assembly Third Reading | Assembly Floor |
Passed |
|
| May 26, 2017 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 18, 2017 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| A New Way of Life Reentry Project | ** Support | Sep 9, 2017 |
| Alliance for Boys and Men of Color | ** Support | Sep 9, 2017 |
| American Civil Liberties Union of California | ** Support | Sep 9, 2017 |
| Anti-Recidivism Coalition | ** Support | Sep 9, 2017 |
| Asian-Americans Advancing Justice - California | ** Support | Sep 9, 2017 |
| Assembly Floor Vote: 42 - 36 | ** Against | Jul 10, 2017 |
| Association For Los Angeles Deputy Sheriffs | ** Against | Sep 9, 2017 |
| Association of Deputy District Attorneys | ** Against | Sep 9, 2017 |
| California Association Of Code Enforcement Officers | ** Against | Sep 9, 2017 |
| California Attorneys For Criminal Justice | ** Support | Sep 9, 2017 |
| California Civil Liberties Advocacy | * Support | Jul 11, 2017 |
| California College And University Police Chiefs Association | ** Against | Sep 9, 2017 |
| California District Attorneys Association | ** Against | Sep 2, 2017 |
| California Immigrant Policy Center | ** Support | Sep 9, 2017 |
| California Immigrant Youth Justice Alliance | ** Support | Apr 17, 2017 |
| California Immigrant Youth Justice Alliance Center | ** Support | Sep 9, 2017 |
| California Narcotic Officers Association | ** Against | Sep 9, 2017 |
| california peace officers' association | ** Against | Sep 9, 2017 |
| California Police Chiefs Association | ** Against | Sep 2, 2017 |
| California Public Defenders Association | ** Support | Sep 9, 2017 |
| California State Sheriffs' Association | ** Against | Sep 9, 2017 |
| Californians United for a Responsible Budget | ** Support | Sep 9, 2017 |
| Central American Resource Center | ** Support | Sep 9, 2017 |
| Coalition for Humane Immigrant Rights | ** Support | Sep 9, 2017 |
| Consumer Attorneys Of California | ** Support | Sep 9, 2017 |
| County of Orange | ** Against | Sep 9, 2017 |
| Courage Campaign Electronic Frontier Foundation | ** Support | Apr 17, 2017 |
| Electronic Frontier Foundation | ** Support | Sep 9, 2017 |
| Ella Baker Center For Human Rights | ** Support | Sep 9, 2017 |
| Escondido City Of | * Support | Jul 11, 2017 |
| Fair Chance Project | ** Support | Apr 17, 2017 |
| Fathers and Families of San Joaquin | ** Support | Sep 9, 2017 |
| Homeboy Industries; Journey House | ** Support | Sep 9, 2017 |
| Human Immigrant Rights | * Support | Jul 11, 2017 |
| Journey House | ** Support | Sep 2, 2017 |
| LA Voice | ** Support | Sep 9, 2017 |
| Latino Coalition for a Healthy California | ** Support | Sep 9, 2017 |
| Los Angeles County Deputy Sheriffs | ** Against | Sep 9, 2017 |
| Los Angeles County District Attorney'S Office | ** Against | Sep 9, 2017 |
| Los Angeles County Professional Peace Officers Association | ** Against | Sep 9, 2017 |
| Los Angeles Police Protective League | ** Against | Sep 9, 2017 |
| Loyola Law School'S Immigrant Justice Clinic | ** Support | Sep 9, 2017 |
| National Association Of Social Workers, California Chapter | ** Support | Sep 9, 2017 |
| National Day Laborer Organizing Network | ** Support | Sep 9, 2017 |
| National Immigration Law Center | ** Support | Sep 9, 2017 |
| NSAW | * Support | Apr 18, 2017 |
| Oakland Privacy | ** Support | Sep 9, 2017 |
| Orange County Board of Supervisors | ** Against | Sep 9, 2017 |
| Pillars of the Community | * Support | Jul 11, 2017 |
| Policy Link | ** Support | Sep 9, 2017 |
| PolicyLink, Alliance for Boys and Men of Color | * Support | Apr 18, 2017 |
| PURPOSE | ** Against | Jul 10, 2017 |
| Resilience Orange County | ** Support | Sep 9, 2017 |
| Riverside Sheriffs' Association | ** Against | Sep 9, 2017 |
| San Diego County District Attorney's Office | ** Against | Sep 9, 2017 |
| San Diego Pillars of the Community | * Support | Jul 11, 2017 |
| San Marcos | * Support | Jul 11, 2017 |
| Second Samoan Congregational Church | ** Support | Apr 17, 2017 |
| Silicon Calley De-Bug | ** Support | Apr 17, 2017 |
| Silicon Valley De-Bug | ** Support | Sep 9, 2017 |
| The Greenling Institute | * Support | Apr 18, 2017 |
| Urban Peace Institute | ** Support | Sep 9, 2017 |
| W. Hawood Burns Institute | ** Support | Apr 17, 2017 |
| W. Haywood Burns Institute | ** Support | Sep 9, 2017 |
| Western Center On Law And Poverty Inc. | * Support | Apr 18, 2017 |
| witness | * Support | Jul 11, 2017 |
| Women's Foundation of California | ** Support | Sep 9, 2017 |
| Youth Justice Alliance Youth Justice Coalition | * Support | Jul 11, 2017 |
| Youth Justice Coalition | ** Support | Sep 9, 2017 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 90
Author:(Weber)
As Amended Ver:September 8, 2017
Majority vote
ASSEMBLY: | 42-36 | (June 1, 2017) | SENATE: | 25-14 | (September 13, 2017) |
Original Committee Reference: PUB. S.
SUMMARY: Shifts responsibilities for shared gang databases from the CalGang Executive Board to the Department of Justice (DOJ) and sets policies, procedures, and oversight for the future use of shared gang databases.
The Senate amendments
- Clarify the process for an individual to petition the court for removal from a gang database.
- State that if a petition for removal from a shared gang database is made following a law enforcement agency's failure to make a timely response to an information request regarding inclusion in a shared gang database, the agency may not present any evidence of gang membership or affiliation in reply to the petition, but may present evidence regarding whether they received the request.
- Specify that a petition for removal from a shared gang database must be filed and served within 90 calendar days of the agency's mailing or personal service of the verification of denial or the date the request is deemed denied.
- Delete the requirement that a person file a petition with all law enforcement agencies for removal a shared gang database before petitioning the court, if more than one agency has included a person in the same gang database.
- Specify that an individual cannot file a new petition for removal from a shared gang database until 180 days after a previous petition.
- Specify that DOJ is responsible for establishing regulations for gang databases and requires all gang databases to comply with those regulations.
- State that the moratorium on shared gang databases shall not be lifted until the Attorney General certifies the purge of persons that do not meet the criteria for entry in a shared gang database has been completed.
- Specify that DOJ may enforce a violation of law or regulations regarding shared gang databases may be enforced by the following:
- Letter of censure;
- Temporary suspension of access privileges to the shared gang database system; or
- Revocation of access privileges to the shared gang database system.
- Modify the composition of the technical advisory committee for all shared gang databases.
- Specify that each appointee to the technical advisory committee shall have the following characteristics:
- Substantial prior knowledge of issues related to gang intervention, suppression, or prevention efforts;
- Decision making authority for, or direct access to those who have decision making authority for, the agency or organization he or she represents; and
- A willingness to serve on the committee and a commitment to contribute to the committee's work.
- State that the committee shall appoint a chairperson from among the members appointed to the committee.
- Specify that a vacancy on the committee as a result of the removal of a member shall be filled within 30 days of the vacancy.
- Delete language which would have prohibited access to shared gang databases by federal authorities, except as specified.
- Add language which require that the regulations issued by DOJ ensure the following:
- The system integrity of a shared gang database;
- All law enforcement agency and criminal justice agency personnel who access a shared gang database undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures;
- Proper criteria are established for supervisory reviews of all database entries and regular reviews of records entered into a shared gang database;
- Reasonable measures are taken to locate equipment related to the operation of a shared gang database in a secure area;
- Law enforcement agencies notify DOJ of any missing equipment that could compromise a shared gang database;
- Personnel authorized to access a shared gang database are limited to specified individual;
- Any records contained in a shared gang database are not disclosed for purposes of enforcing federal immigration law, unless required by state or federal statute or regulation;
- The committee does not discuss or access individual records contained in a shared gang database; and
- Implementation of supervisory review procedures and period record reviews by law enforcement agencies which are reported to DOJ.
- Direct DOJ, in consultation with the technical advisory committee, establish policies and procedures for sharing information from a gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access.
- Set a date of January 1, 2020, for DOJ to put forth regulations to provide for regular audits of each CalGang node and user agency.
- Specify information to be included in DOJ's annual report on the CalGang Database.
- Modify the criteria that must be met to lift a moratorium on the use of the CalGang database.
- Delete language allowing the Racial and Identity Profiling Advisory Board discretion to review operations of law enforcement agencies' gang databases and make recommendations regarding the operation of gang databases to DOJ.
- Define terms for purposes of this bill.
- Revise the definition of "shared gang database."
- Delete the findings and declarations of the Legislature.
- Make technical changes.
EXISTING LAW:
- 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.
- 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.
- 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.
- 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 one, two, or three years in state prison.
- 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.
- 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.
AS PASSED BY THE ASSEMBLY, this bill:
- Shifted the responsibility for administering and overseeing the shared gang database to the Department of Justice (DOJ), and provides that commencing January 1, 2018 the CalGang Executive Board will no longer administer or oversee the CalGang database or the shared gang databases that participate in the CalGang database.
- Required that the DOJ creates regulations regarding the use, operation, and oversight of any shared gang database, including the following:
- Establishing the requirements for entering and reviewing gang designations;
- The retention period for listed gangs;
- The criteria for identifying gang members; and
- Definitions of offenses consistent with gang activity.
- The retention period for individuals listed in a shared gang database.
- Required the DOJ to establish a technical advisory committee with the following members to advise on the uses of the shared gang databases:
- The Attorney General, or his or her designee;
- Representatives from participating law enforcement agencies;
- The President of the California Public Defenders Association, or his or her designee;
- A representative of organizations that specialize in gang and violence intervention;
- A representative of organizations that provide immigration services;
- A representative of organizations that specialize in privacy rights;
- Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age;
- One person who is or was placed on a shared gang database; and
- One parent of a person who is or was placed on a shared gang database as a juvenile.
- Required the DOJ to implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.
- Required that DOJ to create regulations to provide for periodic audits by law enforcement agencies and DOJ staff to ensure accuracy, reliability, and proper use of any shared gang database, and to report the results of audits to the public.
- Imposed a moratorium on the use of the CalGang database commencing on January 1, 2018, until the Attorney General certifies that the standardized periodic training and periodic audit regulation requirements have been met.
FISCAL EFFECT: According to the Senate Appropriations Committee:
- Initial one-time personnel and operational costs of $3.3 million (General Fund) to the Department of Justice (DOJ) and ongoing costs of between $2.2 million and $2.5 million (General Fund) annually.
- The department anticipates that the Bureau of Criminal Identification and Investigative Services will need 3.0 Associate Governmental Program Analysts, 1.0 Research Analyst II, and 1.0 Staff Services Manager I – Specialist to undertake the level of responsibility in the areas of administration and governance imposed by this bill. These duties include drafting regulations to establish parameters for usage, data governance, providing administrative support to the technical advisory committee, overseeing the review of the more than 150,000 individual records currently in the system, developing marketing materials such as Information Bulletins to increase both agency usage, knowledge, and understanding of regulations, developing, implementing, and maintaining training and audits, conducting system user outreach to discuss enhancements and additional features to better meet agency needs, creating and publishing quarterly and annual reports and ensuring implementation of audit recommendations and legislative mandates.
- The Criminal Justice Information Technology Services Bureau anticipates that it will need 1.0 Senior Programmer Analyst, 1.0 Senior Information Systems Analyst, 1.0 Staff Programmer Analyst, and 1.0 Systems Software Specialist III to assist with the systematic changes needed to address the findings from the audit conducted by the California State Auditor in 2016 as well as the requirements outlined in this bill. These staff would oversee the consultant developers in the analysis, design, development, and implementation of the enhancements, perform unit and system integration testing and interface with the California Gang Node Advisory Committee, the technical advisory committee, and the business team to develop and facilitate the technical needs related to audit requirements, data governance, and system user outreach.
- Additionally, DOJ would need to build an infrastructure capable of supporting the CalGang system. As the current CalGang system is decentralized across multiple nodes, AB 90 would require DOJ to construct a centralized network using new hardware, storage, and software. Pursuant to both the audit and AB 90, the system would need to include and account for disaster recovery as well.
- The Technology Support Bureau anticipates that it will need 2.0 Systems Software Specialist III to implement and maintain the infrastructure necessary for the requirements of this bill. These specialists would be responsible for the initial implementation and management of hardware and storage environments, as well as the ongoing support and maintenance for the CalGang environments.
- The IT Procurements and Project Office anticipates the requirement of overtime for the Staff Information Systems Analyst in order to provide project oversight for the duration of the project development.
COMMENTS: According to the author, "Assembly Bill 90 will address accuracy and fairness in the collection and accessing of gang allegations through CalGang and other shared gang databases, including enacting reforms outlined in the 2016 audit of shared gang databases released by the California State Auditor.
"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 used by over 6,000 law enforcement officers in at least 56 counties. Two recently passed state laws – SB 458 (Wright) [Chapter 797, Statutes of 2013] and AB 2298 (Weber) [Chapter 752, Statutes of 2016] – began the process of addressing 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 which will provide protections for Californians. These changes will also benefit our law enforcement agencies by providing greater access to useful crime prevention and investigative tools by increasing the accuracy of shared gang databases."
Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0002263
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 90
: 9/8/17
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 7/11/17
AYES: Skinner, Bradford, Jackson, Mitchell, Wiener
NOES: Anderson, Stone
ASSEMBLY FLOOR: 42-36, 6/1/17 - See last page for vote
SOURCE: Youth Justice Coalition
Coalition for Humane Immigrant Rights
National Immigration Law Center
Policy Link
Urban Peace Institute
Alliance for Boys and Men of Color
DIGEST:
This bill shifts responsibilities for the CalGang database from the CalGang Executive Board to the California Department of Justice (DOJ).
Senate Floor Amendments of 9/8/17 clarify characteristics of the members appointed to the Gang Database Technical Advisory Committee and provide minimum guidelines for the regulations that Department of Justice is required to issue pursuant to the provisions in this bill.
Existing law:
- 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).)
- 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).)
- 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).)
- 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).)
- Defines “pattern of criminal gang activity” as the commission of, attempted commission of, conspiracy to commit, or solicitation of, or conviction of two or more enumerated offenses, provided at least one of the offenses occurred after the effective date of the statute and that 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).)
- Requires registration in a shared gang database with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area for any person described immediately below. (Pen. Code §186.30, subd. (a).)
- Any person who has who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who willfully promotes, furthers, or assists, in any felonious conduct by members of that gang. (Pen. Code §186.30, subd. (b)(1).)
- Any person who has been found convicted a crime which triggers a sentencing enhancement, as specified in Penal Code §186.22, subdivision (b). (Pen. Code §186.30, subd. (b)(2).)
- Any crime that the court finds is gang related at the time of sentencing or disposition. (Pen. Code §186.30, subd. (b)(2).)
- Qualifies the “CalGang system” as a “shared gang database.” (Pen. Code, §186.34, subd. (c)(3).)
- Provides that commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined, shall submit a report to the DOJ, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:
- The number of persons included in the database on the day of reporting;
- The number of persons added to the database during the immediately preceding 12 months;
- The number of requests for removal of a person from the database received during the immediately preceding 12 months;
- The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months; and
- The number of persons automatically removed from the database during the immediately preceding 12 months. (Pen. Code, § 186.34, subd. (c).)
- Provides that commencing February 15, 2018, and annually on February 15 thereafter, the DOJ shall post each law enforcement agency’s report that contains the information collected on DOJ’s website. (Id.)
This bill:
- Defines a “shared gang database” as “a gang database that is accessed by any agency or person outside the agency that created the records that populate the database.
- Exempts the following from the definition of a “shared gang database”:
- Databases that designate persons as gang members or associates using only criminal offender record information or information collected from the gang registry; and,
- Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
- Makes DOJ responsible for administering and overseeing the CalGang database, and provides that commencing January 1, 2018, the CalGang Executive Board will no longer administer or oversee the CalGang database.
- Requires DOJ to establish a Gang Database Technical Advisory Committee (committee) and requires each appointee to the committee to possess specified characteristics.
- Specifies the following membership on the committee and requires the committee to appoint a chairperson from among the members:
- The Attorney General (AG), or his or her designee;
- The President of the California District Attorneys Association, or his or her designee;
- The President of the California Public Defenders Association, or his or her designee;
- A representative of organizations that specialize in gang violence intervention, appointed by the Senate Rules Committee;
- The President of the California Gang Investigators Association, or his or her designee;
- A representative of community organizations that specialize in civil or human rights, appointed by the Speaker of the Assembly;
- A person who has personal experience with a shared gang database as someone who is impacted by gang labeling, appointed by the Speaker of the Assembly;
- The chairperson of the California Gang Node Advisory Committee, or his or her designee;
- The President of the California Police Chiefs Association, or his or her designee; and,
- The President of the California State Sheriff’s Association, or his or her designee.
- Specifies that the meetings of the committee are subject to the Bagley-Keene Open Meeting Act which generally requires public notice of meetings and conducting meetings in public unless specifically authorized to meet in closed session.
- Requires DOJ, with the advice of the committee, to promulgate regulations governing the use, operation, and oversight of shared gang databases and specifies minimum guidelines for those regulations.
- Provides that records contained in a shared gang database shall not be disclosed for employment or military screening purposes or for enforcement of federal immigration law unless required by state or federal law.
- Requires shared gang databases to be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines.
- Clarify the enforcement powers of DOJ for a violation of the regulations.
- Provides that DOJ, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure accuracy, reliability, and proper use of CalGang and states that DOJ shall mandate the purge of any information for which a user agency cannot establish adequate support.
- Imposes a moratorium on the use of the CalGang database commencing January 1, 2018, until the Attorney General certifies that the required purge of records has been completed.
- Requires DOJ to instruct all user agencies to review the records of criminal street gang members entered into a gang database to ensure the existence of proper support for each criterion of entry into the database.
- States that DOK shall instruct each CalGang node agency to purge from a shared gang database any record that does not meet the criteria for entry.
- Requires DOJ, commencing February 15, 2018, and annually thereafter, to publish an annual report on CalGang that contains specified information.
- Modifies existing provisions of law related to requests for information from law enforcement and petitions to the court regarding a person’s designation as a gang member or associate.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee:
Initial one-time personnel and operational costs of $3.3 million (General Fund) to the Department of Justice (DOJ) and ongoing costs of between $2.2 million and $2.5 million (General Fund) annually.
The department anticipates that the Bureau of Criminal Identification and Investigative Services will need 3.0 Associate Governmental Program Analysts, 1.0 Research Analyst II, and 1.0 Staff Services Manager I – Specialist to undertake the level of responsibility in the areas of administration and governance imposed by this bill. These duties include drafting regulations to establish parameters for usage, data governance, providing administrative support to the technical advisory committee, overseeing the review of the more than 150,000 individual records currently in the system, developing marketing materials such as Information Bulletins to increase both agency usage, knowledge, and understanding of regulations, developing, implementing, and maintaining training and audits, conducting system user outreach to discuss enhancements and additional features to better meet agency needs, creating and publishing quarterly and annual reports and ensuring implementation of audit recommendations and legislative mandates.
The Criminal Justice Information Technology Services Bureau anticipates that it will need 1.0 Senior Programmer Analyst, 1.0 Senior Information Systems Analyst, 1.0 Staff Programmer Analyst, and 1.0 Systems Software Specialist III to assist with the systematic changes needed to address the findings from the audit conducted by the California State Auditor in 2016 as well as the requirements outlined in this bill. These staff would oversee the consultant developers in the analysis, design, development, and implementation of the enhancements, perform unit and system integration testing and interface with the California Gang Node Advisory Committee, the technical advisory committee, and the business team to develop and facilitate the technical needs related to audit requirements, data governance, and system user outreach.
Additionally, DOJ would need to build an infrastructure capable of supporting the CalGang system. As the current CalGang system is decentralized across multiple nodes, AB 90 would require DOJ to construct a centralized network using new hardware, storage, and software. Pursuant to both the audit and AB 90, the system would need to include and account for disaster recovery as well.
The Technology Support Bureau anticipates that it will need 2.0 Systems Software Specialist III to implement and maintain the infrastructure necessary for the requirements of this bill. These specialists would be responsible for the initial implementation and management of hardware and storage environments, as well as the ongoing support and maintenance for the CalGang environments.
The IT Procurements and Project Office anticipates the requirement of overtime for the Staff Information Systems Analyst in order to provide project oversight for the duration of the project development.
Youth Justice Coalition (co-source)
Coalition for Humane Immigrant Rights (co-source)
National Immigration Law Center (co-source)
Policy Link (co-source)
Urban Peace Institute (co-source)
Alliance for Boys and Men of Color (co-source)
A New Way of Life Reentry Project
American Civil Liberties Union of California
Anti-Recidivism Coalition
Asian-Americans Advancing Justice – California
California Attorneys for Criminal Justice
California Immigrant Policy Center
California Immigrant Youth Justice Alliance Center
California Public Defenders Association
Californians United for a Responsible Budget
Central American Resource Center
Consumer Attorneys of California
Electronic Frontier Foundation
Ella Baker Center for Human Rights
Fathers and Families of San Joaquin
Homeboy Industries; Journey House
LA Voice
Latino Coalition for a Healthy California
Loyola Law School’s Immigrant Justice Clinic
National Association of Social Workers, California Chapter
National Day Laborer Organizing Network
National Immigration Law Center
Oakland Privacy
Resilience Orange County
Silicon Valley De-Bug
Women’s Foundation of California
W. Haywood Burns Institute
Three private individuals
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
Association of Deputy District Attorneys
Association of Orange County Deputy District Attorneys Civic Action Committee
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
California Peace Officers’ Association
California State Sheriffs’ Association
County of Orange
Los Angeles County Deputy Sheriffs
Los Angeles County District Attorney’s Office
Los Angeles County Probation Officers Union AFSCME Local 685
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Orange County Board of Supervisors
Riverside Sheriffs’ Association
San Diego County District Attorney’s Office
ASSEMBLY FLOOR: 42-36, 6/1/17
AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Chau, Chiu, Chu, Eggman, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Holden, Jones-Sawyer, Kalra, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, Quirk, Reyes, Ridley-Thomas, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon
NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Cervantes, Chávez, Chen, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Flora, Fong, Frazier, Gallagher, Grayson, Harper, Irwin, Kiley, Lackey, Maienschein, Mathis, Mayes, Melendez, Muratsuchi, Obernolte, O'Donnell, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron
NO VOTE RECORDED: Choi, Rodriguez
9/9/17 15:38:44
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 90
Amended: 9/1/17 in Senate
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 7/11/17
AYES: Skinner, Bradford, Jackson, Mitchell, Wiener
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/17
AYES: Lara, Beall, Bradford, Hill, Wiener
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 42-36, 6/1/17 - See last page for vote
SOURCE: Youth Justice Coalition
Coalition for Humane Immigrant Rights
National Immigration Law Center
Policy Link
Urban Peace Institute
Alliance for Boys and Men of Color
DIGEST:
This bill shifts responsibilities for the CalGang database from the CalGang Executive Board to the California Department of Justice (DOJ).
Existing law:
- 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).)
- 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).)
- 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).)
- 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).)
- Defines “pattern of criminal gang activity” as the commission of, attempted commission of, conspiracy to commit, or solicitation of, or conviction of two or more enumerated offenses, provided at least one of the offenses occurred after the effective date of the statute and that 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).)
- Requires registration in a shared gang database with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area for any person described immediately below. (Pen. Code §186.30, subd. (a).)
- Any person who has who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who willfully promotes, furthers, or assists, in any felonious conduct by members of that gang. (Pen. Code §186.30, subd. (b)(1).)
- Any person who has been found convicted a crime which triggers a sentencing enhancement, as specified in Penal Code §186.22, subdivision (b). (Pen. Code §186.30, subd. (b)(2).)
- Any crime that the court finds is gang related at the time of sentencing or disposition. (Pen. Code §186.30, subd. (b)(2).)
- Qualifies the “CalGang system” as a “shared gang database.” (Pen. Code, §186.34, subd. (c)(3).)
- Provides that commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined, shall submit a report to the DOJ, in a format developed by the DOJ, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:
- The number of persons included in the database on the day of reporting;
- The number of persons added to the database during the immediately preceding 12 months;
- The number of requests for removal of a person from the database received during the immediately preceding 12 months;
- The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months; and
- The number of persons automatically removed from the database during the immediately preceding 12 months.(Pen. Code, § 186.34, subd. (c).)
- Provides that commencing February 15, 2018, and annually on February 15 thereafter, the DOJ shall post each law enforcement agency’s report that contains the information collected on DOJ’s Web site. (Id.)
This bill:
- Defines a “shared gang database” as “a gang database that is accessed by any agency or person outside the agency that created the records that populate the database.”
- Exempts the following from the definition of a “shared gang database”:
- Databases that designate persons as gang members or associates using only criminal offender record information or information collected from the gang registry; and,
- Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
- Makes DOJ responsible for administering and overseeing the CalGang database, and provides that commencing January 1, 2018, the CalGang Executive Board will no longer administer or oversee the CalGang database.
- Requires DOJ to establish a Gang Database Technical Advisory Committee (committee) and specifies the following membership on the committee:
- The Attorney General (AG), or his or her designee;
- The President of the California District Attorneys Association, or his or her designee;
- The President of the California Public Defenders Association, or his or her designee;
- A representative of organizations that specialize in gang violence intervention, appointed by the Senate Rules Committee;
- The President of the California Gang Investigators Association, or his or her designee;
- A representative of community organizations that specialize in civil or human rights, appointed by the Speaker of the Assembly;
- A person who has personal experience with a shared gang database as someone who is impacted by gang labeling, appointed by the Speaker of the Assembly;
- A representative appointed by the California Gang Node Advisory Committee;
- The President of the California Police Chiefs Association, or his or her designee; and,
- The President of the California State Sheriff’s Association, or his or her designee.
- Specifies that the meetings of the committee are subject to the Bagley-Keene Open Meeting Act which generally requires public notice of meetings and conducting meetings in public unless specifically authorized to meet in closed session.
- Requires DOJ, with the advice of the committee, to promulgate regulations governing the use, operation, and oversight of shared gang databases, including, among other things, establishing the requirements for the following:
- Policy and procedures for entering, reviewing, and purging documents;
- Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership;
- Retention periods for information about a person in a gang database that is consistent with empirical research on the duration of gang membership;
- Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs;
- Policy and procedures for notice to a person in a shared gang database, including when notification would compromise an active criminal investigation or compromise the health and safety of a minor;
- Policy and procedures for responding to an information request, a request for removal, or a petition for removal including when a request or petition could compromise an active criminal investigation or compromise the health or safety of a minor; and,
- Policy and procedures for sharing information from a shared gang database with a federal agency, multi-state agency, or agency of another state who otherwise does not have access, including sharing of information with a partner in a joint task force.
- Requires shared gang databases to be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines.
- Prohibits state and local agencies from allowing any federal agency, multi-state agency, or agency of another state to access a shared gang database, and from providing bulk data from a shared gang database to any federal agency, multi-state agency, or agency of another state, except as provided. Any agreements in existence on January 1, 2018, that conflict with the terms of this provision are terminated on that date.
- States that a state or local agency may share information in response to an inquiry about a specific person, including a designation of gang membership or association, with a federal agency, multi-state agency, or agency of another state, so long as database access is not granted to the other agency, the information provided is not bulk data, and the inquiry is not for immigration purposes.
- Provides that DOJ, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure accuracy, reliability, and proper use of CalGang.
- States that DOJ shall mandate the purge of any information for which a user agency cannot establish adequate support.
- Imposes a moratorium on the use of the CalGang database commencing January 1, 2018, until the regulations and training required by this bill have been developed.
- Requires DOJ, commencing February 15, 2018, and annually thereafter, to publish an annual report on CalGang that contains specified information.
- Modifies existing provisions of law related to requests for information from law enforcement and petitions to the court regarding a person’s designation as a gang member or associate.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee:
Initial one-time personnel and operational costs of $3.3 million (General Fund) to the DOJ and ongoing costs of between $2.2 million and $2.5 million (General Fund) annually.
The DOJ anticipates that the Bureau of Criminal Identification and Investigative Services will need 3.0 Associate Governmental Program Analysts, 1.0 Research Analyst II, and 1.0 Staff Services Manager I – Specialist to undertake the level of responsibility in the areas of administration and governance imposed by this bill. These duties include drafting regulations to establish parameters for usage, data governance, providing administrative support to the technical advisory committee, overseeing the review of the more than 150,000 individual records currently in the system, developing marketing materials such as Information Bulletins to increase both agency usage, knowledge, and understanding of regulations, developing, implementing, and maintaining training and audits, conducting system user outreach to discuss enhancements and additional features to better meet agency needs, creating and publishing quarterly and annual reports and ensuring implementation of audit recommendations and legislative mandates.
The Criminal Justice Information Technology Services Bureau anticipates that it will need 1.0 Senior Programmer Analyst, 1.0 Senior Information Systems Analyst, 1.0 Staff Programmer Analyst, and 1.0 Systems Software Specialist III to assist with the systematic changes needed to address the findings from the audit conducted by the California State Auditor in 2016 as well as the requirements outlined in this bill. These staff would oversee the consultant developers in the analysis, design, development, and implementation of the enhancements, perform unit and system integration testing and interface with the California Gang Node Advisory Committee, the technical advisory committee, and the business team to develop and facilitate the technical needs related to audit requirements, data governance, and system user outreach.
Additionally, DOJ would need to build an infrastructure capable of supporting the CalGang system. As the current CalGang system is decentralized across multiple nodes, AB 90 would require DOJ to construct a centralized network using new hardware, storage, and software. Pursuant to both the audit and AB 90, the system would need to include and account for disaster recovery as well.
The Technology Support Bureau anticipates that it will need 2.0 Systems Software Specialist III to implement and maintain the infrastructure necessary for the requirements of this bill. These specialists would be responsible for the initial implementation and management of hardware and storage environments, as well as the ongoing support and maintenance for the CalGang environments.
The IT Procurements and Project Office anticipates the requirement of overtime for the Staff Information Systems Analyst in order to provide project oversight for the duration of the project development.
Youth Justice Coalition (co-source)
Coalition for Humane Immigrant Rights (co-source)
National Immigration Law Center (co-source)
Policy Link (co-source)
Urban Peace Institute (co-source)
Alliance for Boys and Men of Color (co-source)
A New Way of Life Reentry Project
American Civil Liberties Union of California
Anti-Recidivism Coalition
Asian-Americans Advancing Justice – California
California Attorneys for Criminal Justice
California Immigrant Policy Center
California Immigrant Youth Justice Alliance Center
California Public Defenders Association
Californians United for a Responsible Budget
Central American Resource Center
Consumer Attorneys of California
Electronic Frontier Foundation
Ella Baker Center for Human Rights
Fathers and Families of San Joaquin
Homeboy Industries
Journey House
LA Voice
Latino Coalition for a Healthy California
Loyola Law School’s Immigrant Justice Clinic
National Association of Social Workers, California Chapter
National Day Laborer Organizing Network
National Immigration Law Center
Oakland Privacy
Resilience Orange County
Silicon Valley De-Bug
Women’s Foundation of California
W. Haywood Burns Institute
Three private individuals
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
Association of Deputy District Attorneys
Association of Orange County Deputy District Attorneys Civic Action Committee
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California District Attorneys Association
California Narcotic Officers Association
California Peace Officers’ Association
California Police Chiefs Association
California State Sheriffs’ Association
County of Orange
Los Angeles County Deputy Sheriffs
Los Angeles County District Attorney’s Office
Los Angeles County Probation Officers Union AFSCME Local 685
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Orange County Board of Supervisors
Riverside Sheriffs’ Association
San Diego County District Attorney’s Office
ASSEMBLY FLOOR: 42-36, 6/1/17
AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Chau, Chiu, Chu, Eggman, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Holden, Jones-Sawyer, Kalra, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, Quirk, Reyes, Ridley-Thomas, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon
NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Cervantes, Chávez, Chen, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Flora, Fong, Frazier, Gallagher, Grayson, Harper, Irwin, Kiley, Lackey, Maienschein, Mathis, Mayes, Melendez, Muratsuchi, Obernolte, O'Donnell, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron
NO VOTE RECORDED: Choi, Rodriguez
Prepared by: Stella Choe / PUB. S. /
9/2/17 16:31:19
**** END ****
SENATE COMMITTEE ON
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
AB 90 (Weber) - Criminal gangs
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
AB 90 would reform the administration and oversight of gang databases, as specified.
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on September 1, 2017
Fiscal Impact:
Initial one-time personnel and operational costs of $3.3 million (General Fund) to the Department of Justice (DOJ) and ongoing costs of between $2.2 million and $2.5 million (General Fund) annually.
The department anticipates that the Bureau of Criminal Identification and Investigative Services will need 3.0 Associate Governmental Program Analysts, 1.0 Research Analyst II, and 1.0 Staff Services Manager I – Specialist to undertake the level of responsibility in the areas of administration and governance imposed by this bill. These duties include drafting regulations to establish parameters for usage, data governance, providing administrative support to the technical advisory committee, overseeing the review of the more than 150,000 individual records currently in the system, developing marketing materials such as Information Bulletins to increase both agency usage, knowledge, and understanding of regulations, developing, implementing, and maintaining training and audits, conducting system user outreach to discuss enhancements and additional features to better meet agency needs, creating and publishing quarterly and annual reports and ensuring implementation of audit recommendations and legislative mandates.
The Criminal Justice Information Technology Services Bureau anticipates that it will need 1.0 Senior Programmer Analyst, 1.0 Senior Information Systems Analyst, 1.0 Staff Programmer Analyst, and 1.0 Systems Software Specialist III to assist with the systematic changes needed to address the findings from the audit conducted by the California State Auditor in 2016 as well as the requirements outlined in this bill. These staff would oversee the consultant developers in the analysis, design, development, and implementation of the enhancements, perform unit and system integration testing and interface with the California Gang Node Advisory Committee, the technical advisory committee, and the business team to develop and facilitate the technical needs related to audit requirements, data governance, and system user outreach.
Additionally, DOJ would need to build an infrastructure capable of supporting the CalGang system. As the current CalGang system is decentralized across multiple nodes, AB 90 would require DOJ to construct a centralized network using new hardware, storage, and software. Pursuant to both the audit and AB 90, the system would need to include and account for disaster recovery as well.
The Technology Support Bureau anticipates that it will need 2.0 Systems Software Specialist III to implement and maintain the infrastructure necessary for the requirements of this bill. These specialists would be responsible for the initial implementation and management of hardware and storage environments, as well as the ongoing support and maintenance for the CalGang environments.
The IT Procurements and Project Office anticipates the requirement of overtime for the Staff Information Systems Analyst in order to provide project oversight for the duration of the project development.
Author Amendments:
Limit DOJ regulations and oversight to shared databases, reform the advisory committee makeup, and strike the discretionary review provision.
-- END --
SENATE COMMITTEE ON
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
AB 90 (Weber) - Criminal gangs
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 90 would reform the administration and oversight of gang databases, as specified.
Fiscal Impact:
Major initial costs in the millions of dollars (General Fund) to the Department of Justice (DOJ) in programming and personnel costs. The department would be required to update its current IT infrastructure and hire new personnel to assist the department and the executive steering committee in promulgating regulations for the database and convene and hold public hearings at least annually. Significant ongoing workload costs (General Fund) to provide oversight to ensure participant compliance with all applicable state and federal regulations, statutes, and guidelines and to enforce violations.
In the Budget Act of 2017, the Legislature appropriated $3.281 million to DOJ for system enhancements and automation of the CalGang database. The scope of this bill would encompass more than updates to the CalGang database, as it requires DOJ to perform specified duties related to other shared (and internal) gang databases.
Background:
Existing law authorizes law enforcement agencies to keep and use shared gang databases, including the CalGang system. These databases are 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.
Proposed Law:
This bill would:
- Revise the definition of “shared gang database” for its purposes to mean any gang database that is accessed by an agency or person outside of the agency that created the database. It also would define “gang database” for its purposes as any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.
- Make DOJ responsible for administering and overseeing any gang database in which California law enforcement agencies participate and would provide that, starting on January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database.
- Require DOJ to promulgate regulations governing the use, operation, and oversight of any gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang
- Require DOJ to establish the Gang Database Technical Advisory Committee with specified members to advise the department in promulgating regulations governing the use, operation, and oversight of gang databases.
- Require DOJ to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.
- Require DOJ, by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public.
- Require DOJ, starting on February 15, 2018, to publish and post on the department’s website an annual report regarding specified information about the CalGang database and the periodic audits.
- Impose a moratorium on the use of the CalGang database commencing January 1, 2018 until specified regulations have been adopted and specified information has been purged from the CalGang database.
- Recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a gang database, and would make additional conforming changes.
Related Legislation:
SB 505 (Mendoza, 2017) would reform the administration and oversight of shared gang databases. SB 505 is pending in the Assembly Committee on Appropriations.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Nancy Skinner, Chair
2017 - 2018 Regular
Bill No: AB 90 Hearing Date: July 11, 2017
Author: | Weber | ||
Version: | May 30, 2017 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | SC | ||
Subject: Criminal Gangs
HISTORY
Source: Youth Justice Coalition
Coalition for Humane Immigrant Rights
National Immigration Law Center
Policy Link
Urban Peace Institute
Alliance for Boys and Men of Color
Prior Legislation: AB 2298 (Weber), Ch. 752, Stats. 2016
SB 458 (Wright), Ch. 797, Stats. 2013
Support: A New Way of Life Reentry Project; American Civil Liberties Union of California; Anti-Recidivism Coalition; Asian-Americans Advancing Justice - California; California Attorneys for Criminal Justice; California Immigrant Policy Center; California Immigrant Youth Justice Alliance Center; California Public Defenders Association; Californians United for a Responsible Budget; Central American Resource Center (CARECEN-LA); Consumer Attorneys of California; Electronic Frontier Foundation; Ella Baker Center for Human Rights; Fathers and Families of San Joaquin; Homeboy Industries; Journey House; LA Voice; Latino Coalition for a Healthy California; Loyola Law School’s Immigrant Justice Clinic; National Association of Social Workers, California Chapter; National Day Laborer Organizing Network (NDLON); National Immigration Law Center; Resilience Orange County; Silicon Valley De-Bug; Women’s Foundation of California; W. Haywood Burns Institute; three private individuals
Opposition: Association for Los Angeles Deputy Sheriffs; California Association of Code Enforcement Officers; Association of Deputy District Attorneys; Association of Orange County Deputy District Attorneys Civic Action Committee; California College and University Police Chiefs Association; California District Attorneys Association; California Narcotic Officers Association; California Police Chiefs Association; California State Sheriffs’ Association; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Orange County Board of Supervisors; Riverside Sheriffs’ Association; San Diego County District Attorney’s Office
Assembly Floor Vote: 42 - 36
ANALYSIS REFLECTS AUTHOR’S AMENDMENTS TO BE OFFERED IN COMMITTEE
PURPOSE
The purpose of this bill is to shift responsibilities for the CalGang database from the CalGang Executive Board to the Department of Justice (DOJ) and to modify existing provisions of law related to requests for information from law enforcement and petitions to the court regarding a person’s designation as a gang member or associate.
Existing law 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).)
Existing law 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).)
Existing law 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).)
Existing law 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).)
Existing law defines “pattern of criminal gang activity” as the commission of, attempted commission of, conspiracy to commit, or solicitation of, or conviction of two or more enumerated offenses, provided at least one of the offenses occurred after the effective date of the statute and that 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).)
Existing law requires the registration a shared gang database with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area for any person described immediately below. (Pen. Code §186.30, subd. (a).)
- Any person who has who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who willfully promotes, furthers, or assists, in any felonious conduct by members of that gang. (Pen. Code §186.30, subd. (b)(1).)
- Any person who has been found convicted a crime which triggers a sentencing enhancement, as specified in Penal Code §186.22, subdivision (b). (Pen. Code §186.30, subd. (b)(2).)
- Any crime that the court finds is gang related at the time of sentencing or disposition. (Pen. Code §186.30, subd. (b)(2).)
Existing law qualifies the “CalGang system” as a “shared gang database.” (Pen. Code, §186.34, subd. (c)(3).)
Existing law provides that commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined, shall submit a report to the DOJ, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:
- The number of persons included in the database on the day of reporting;
- The number of persons added to the database during the immediately preceding 12 months;
- The number of requests for removal of a person from the database received during the immediately preceding 12 months;
- The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months; and
- The number of persons automatically removed from the database during the immediately preceding 12 months.
(Pen. Code, § 186.34, subd. (c).)
Existing law provides that commencing February 15, 2018, and annually on February 15 thereafter, the DOJ shall post each law enforcement agency’s report that contains the information collected on DOJ’s website. (Ibid.)
This bill makes DOJ responsible for administering and overseeing the CalGang database, and provides that commencing January 1, 2018, the CalGang Executive Board will no longer administer or oversee the CalGang database.
This bill requires DOJ to establish a Gang Technical Advisory Committee (committee) and specifies the following membership on the committee:
- The Attorney General (AG), or his or her designee;
- The President of the California District Attorneys Association, or his or her designee;
- The President of the California Public Defenders Association, or his or her designee;
- A representative of organizations that specialize in gang violence intervention, appointed by the AG;
- A representative of organizations that provide immigration services, appointed by the AG;
- A representative of organizations that specialize in privacy rights, appointed by the AG;
- One representative of community organizations that specialize in civil or human rights appointed by the AG;
- One person who is or was placed on a gang database;
- One person who is the family member of a person who is or was placed on a gang database;
- The President of the California Police Chiefs Association, or his or her designee; and,
- The President of the California State Sheriff’s Association, or his or her designee.
This bill specifies that the meetings of the committee are subject to the Bagley-Keene Open Meeting Act which generally requires public notice of meetings and conducting meetings in public unless specifically authorized to meet in closed session.
This bill requires DOJ, with the advice of the committee, to promulgate regulations governing the use, operation, and oversight of shared gang databases, including, among other things, establishing the requirements for the following:
- Policy and procedures for entering, reviewing, and purging documents;
- Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership;
- Retention periods for information about a person in a gang database that is consistent with empirical research on the duration of gang membership;
- Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs;
- Policy and procedures for notice to a person in a shared gang database, including when notification would compromise an active criminal investigation or compromise the health and safety of a minor;
- Policy and procedures for responding to an information request, a request for removal, or a petition for removal including when a request or petition could compromise an active criminal investigation or compromise the health or safety of a minor; and,
- Policy and procedures for sharing information from gang database with a federal agency, multi-state agency, or agency of another state who otherwise does not have access, including sharing of information with a partner in a joint task force.
This bill requires all gang databases to be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines.
This bill prohibits state and local agencies from allowing any federal agency, multi-state agency, or agency of another state to access a gang database, and from providing bulk data from a gang database to any federal agency, multi-state agency, or agency of another state, except as provided. Any agreements in existence on January 1, 2018, that conflict with the terms of this provision are terminated on that date.
This bill states that a state or local agency may share information in response to an inquiry about a specific person, including a designation of gang membership or association, with a federal agency, multi-state agency, or agency of another state, so long as database access is not granted to the other agency, the information provided is not bulk data, and the inquiry is not for immigration purposes.
This bill provides that DOJ, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure accuracy, reliability, and proper use of CalGang.
This bill states that DOJ shall mandate the purge of any information for which a user agency cannot establish adequate support.
This bill requires DOJ, with the advice of the committee, to develop and implement standardized periodic training for all users authorized to access to CalGang.
This bill requires DOJ, commencing February 15, 2018, and annually thereafter, to publish an annual report on CalGang that contains, by ZIP Code, referring agency, race, gender, and age, the following information for each user agency:
- The number of persons included in CalGang on the day of reporting;
- The number of persons added to CalGang during the immediately preceding 12 months;
- The number of requests for removal of information about a person from CalGang received during the immediately preceding 12 months;
- The number of requests for removal of information about a person from CalGang that were granted during the immediately preceding 12 months;
- The number of petitions for removal of information about a person from CalGang adjudicated in the immediately preceding 12 months, including their dispositions;
- The number of persons whose information was removed from CalGang due to the expiration of a retention period during the immediately preceding 12 months;
- The number of times an agency did not provide notice or documentation as requested because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months; and,
- The number of times an agency did not provide notice or documentation as requested because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
This bill requires DOJ to post the report on its website.
This bill provides that DOJ shall invite and assess public comments following the report’s release, and each report shall summarize public comments received on prior reports and any actions taken in response to comments.
This bill imposes a moratorium on the use of the CalGang database commencing January 1, 2018, until the regulations and training required by this bill have been developed.
This bill states findings and declarations of the Legislature regarding the CalGang database.
Existing law defines “shared gang database” to include all of the following:
- Allows access for any local law enforcement agency;
- 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,
- Is subject to federal regulations related to criminal intelligence gathering, unless funding is no longer available.
This bill modifies the definition of “shared gang database” to mean any gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.
This bill exempts the following from the definition of a “shared gang database”:
- Databases that designate persons as gang members or associates using only criminal offender record information or information collected from the gang registry; and,
- Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
This bill defines a “gang database” to mean “any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.”
Existing law 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, subd. (d)(1).)
This bill clarifies that the notice to a person or a minor’s parent or guardian prior to an agency designating a person as a gang member or associate must include a factual basis for the designation.
Existing law states that a person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person may request, in writing, information of any law enforcement agency as to whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency and what law enforcement agency made the designation. (Pen. Code, § 186.34, subd. (e)(1)(A).)
This bill requires the responding agency to provide documentation reflecting the factual basis for the agency’s designation, the name of the designated gang, and the documentation reflecting the factual basis for designating the organization as a criminal street gang.
This bill provides that if a shared gang database includes information about the subject of the request that was submitted by an agency other than the responding agency, the responding agency shall provide the name of that agency.
Existing law provides that a law enforcement agency must respond to a valid request for information regarding a person’s designation as a gang member, associate, or affiliate by that agency within 30 days. (Pen. Code, § 186.34, subd. (e)(1)(B)(3).)
This bill provides that if an agency does not provide a written response to the request within the existing 30-day deadline, the person may petition a court to order the agency to remove all information about the person from the shared gang database.
This bill states that if a law enforcement agency determines a person is not an active gang member, the agency shall provide confirmation that all information about that person has been removed from the shared database.
Existing law provides that a person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation may seek review within 90 calendar days of the agency’s mailing or personal service of the verification of the decision by filing an appeal to be heard by the superior court. A proceeding under this subdivision is a limited civil case. A copy of the notice of appeal shall be served in person or by first-class mail upon the agency by the person. (Pen. Code, § 186.35.)
This bill clarifies that a person whose request for removal from a shared database has been denied, or if a timely response to the request was not received may petition the court under existing removal procedures of that person’s name from the gang database.
This bill provides that if more than one agency designates the petitioner as a gang member or associate, or included information about the petitioner in the same shared gang database, the petitioner must request removal from all agencies before petitioning the court.
This bill specifies timelines for filing the petition with the court.
This bill provides that if a petition is made following a law enforcement agency’s failure to make a timely response to an information request, the agency may not present any evidence of gang membership or affiliation in reply to the petition but may present evidence regarding receipt of the request.
This bill clarifies that if a court grants the petitioner’s request for removal, the court shall order the law enforcement agency or agencies to remove all information about the petitioner entered by that agency or agencies from all shared gang databases.
This bill provides that a petitioner may file a new petition no later than 180 calendar days after a previous petition.
Existing law establishes the Racial and Identity Profiling Advisory Board (RIPA), among other duties, to investigate and analyze state and local law enforcement agencies’ racial and identity profiling policies and practices across geographic areas in California, to annually make publicly available its findings and policy recommendations, to hold public meetings annually, as specified, and to issue the board’s first annual report no later than January 1, 2018. (Pen. Code, § 13519.4.)
This bill expands RIPA’s authority by allowing the board, at its discretion, to review operations of law enforcement agencies’ gang databases and make recommendations to DOJ.
COMMENTS
1. Need for this Bill
According to the author:
Local gang databases as well as the CalGang database have existed for nearly 30 years without accountability, consistency or transparency. Outside of the data received through [Public Records Act] PRA requests, there has been no release of information or data to the public or policy makers, and no internal or independent evaluations as to databases’ effectiveness. AB 2298 passed last year is the first law ever to require that data added to shared databases be collected and shared.
Once information is captured by local police and entered onto the statewide CalGang database, a person is considered to be “known by law enforcement” as an active gang member, associate or affiliate. But, since their creation, the policies and procedures governing the CalGang Database and local databases have not been clear, not consistent in their application, not widely shared, and not standardized across law enforcement departments and jurisdictions.
Because it is a secret surveillance tool, people labeled as a gang member originally have had no legal right to be notified. It wasn’t until the passing of SB 458 (Wright), effective as state law January 1, 2014, that youth under 18 and their parent or guardian had the right to be notified if they were added to the file and to challenge their designation. And, people 18 and older didn’t gain those rights until the passing of AB 2298.
In August of 2016, the California State Auditor released findings of the first ever investigation into the workings and impact of CalGang and the other shared gang databases that feed into it across the state. The audit revealed many concerns, including that: 1. CalGang’s oversight structure is inadequate and does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights; 2. The governing entities act without statutory authority, transparency, or public input; 3. There is “little evidence” that the governing entities have ensured user agencies to comply with federal regulations regarding databases; 4. Only 0.2 percent of CalGang’s statewide individual records are reviewed each year; 5. The investigators could not substantiate the validity of numerous CalGang entries; 6. Gang databases were “tracking people who do not appear to justifiably belong in the system;” 7. User agencies that responded to the auditor’s statewide survey admitted that they use CalGang for employment or military-related screenings which is prohibited; 8. User agencies have not ensured that CalGang records are added, removed, and shared in ways that maintain system accuracy and safeguard individuals’ rights; 9. The programming underlying CalGang did not purge all records within the required five-year time frame — some records were not scheduled to be purged for more than 100 years; and 10. Despite the enactment of SB 458 in 2013, many youth and their parents were not properly notified of their designation prior to adding them to CalGang nor afforded the right to contest gang designations.
2. 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.) 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.” (Pen. Code, § 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. (Leyton, supra, at 113, citing Patrick Thibodeau, Cops Wield Database in War on Street Gangs, Computerworld, Sept. 1, 1997, at 4; and Ray Dassault, GangNet: A New Tool in the War on Gangs, California Computer News, January 1997 <http://www.govtech.com/magazines/gt/GangNet-A-New-Tool-in-the.html?page=3>.) 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.” (Criminal Intelligence Systems, Operating Policies, 28 CFR Part 23.)
3. CalGang Database
According to the DOJ Web site, 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. (See <https://oag.ca.gov/calgang>.)
According to Policies and Procedure for the CalGang System, 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):
- The individual has admitted to being a gang member;
- The individual has been arrested with known gang members for offenses consistent with gang activity;
- The individual has been identified as a gang member by a reliable informant/source;
- The individual has been identified as a gang member by an untested informant;
- The subject has been seen affiliating with documented gang members;
- The individual has been seen displaying gang symbols and/or hand signs;
- The individual has been seen frequenting gang areas;
- The individual has been seen wearing gang dress;
- The individual is known to have gang tattoos; or,
- The individual is in custody and classified as a gang member pursuant to an interview.
- The individual has admitted to being a gang member;
(California Gang Node Advisory Committee, Policy and Procedures for the CalGang System, rev. Sept. 2007, <https://oag.ca.gov/sites/all/files/agweb/pdfs/calgang/policy_procedure.pdf?>.)
An individual can be entered into the database as a gang affiliate when the individual is known to affiliate with active gang members and the law enforcement officer has established there is a reasonable suspicion the individual is involved in criminal activity or enterprise. Agencies entering the affiliate information into CalGang must maintain documentation, which adequately supports each entry. (Id.)
4. 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.
(Cal. State Auditor, The CalGang Criminal Intelligence System: As the Result of Its Weak Oversight Structure, It Contains Questionable Information That May Violate Individuals’ Privacy Rights (Aug. 2016), <https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf> [as of June 28, 2017].)
5. Similar Legislation
SB 505 (Mendoza) and this bill both seek to address issues regarding the CalGang database that were raised by the State Auditor. Both this bill and SB 505 were introduced this year in response to the findings by the State Auditor. Both bills share the following elements:
- Designate DOJ as the state agency responsible for administering and overseeing CalGang or any equivalent statewide shared gang database;
- Specify that the DOJ’s oversight responsibilities include developing and implementing standardized periodic training as well as conducting periodic audits of CalGang; and,
- Specify the standards to which DOJ, in consultation with a proposed advisory committee, will regulate the use, operation, and oversight of CalGang.
SB 505 and this bill also have some differences related to the administration and oversight of the CalGang database which include:
- Membership of the proposed committees: Both bills specify an 11-member advisory committee, however the make-up of those committees specified by each bill are different.
- Moratorium: Both bills impose a moratorium on access to and adding to shared gang databases, but contains differing provisions of when the moratorium shall be lifted. This bill provides that the moratorium shall not be lifted until the regulations and training required by this bill have been developed by DOJ. The deadline set by this bill is January 1, 2020. SB 505 provides that the moratorium shall not be lifted until the AG has certified that the shared gang databases have been purged of any records for a criminal street gang member that does not meet criteria for entry.
- Sharing of data with outside agencies: This bill generally prohibits all sharing of data in CalGang with outside agencies, except data may be shared in response to an inquiry about a specific person, including a designation of gang membership or association, with a federal agency, multi-state agency, or agency of another state, so long as database access is not granted to the federal, multi-state, or other state’s agency, the information provided is not bulk data, and the inquiry is not for immigration enforcement purposes. SB 505 states that records in a shared gang database shall not be disclosed for purpose of enforcing federal immigration law, unless required by state or federal statute or regulation.
6. Changes to Existing Procedures Related to Requests for Information from Law Enforcement Agencies and Petitions to the Court Regarding a Person’s Designation as a Gang Member or Associate
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. (Pen. Code, § 186.34.) 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.
This bill makes modifications to the laws implemented by AB 2298 and SB 458. Specifically, this bill requires the notice prior to designating a person as a gang member or affiliate to include a factual basis for the designation of the organization as a gang. This bill also provides a remedy if the law enforcement agency fails to respond to a valid request for information within the required 30-day timeline. The bill provides that a person may petition the court under existing provisions that authorize a person to appeal his or her designation as a gang member in a shared gang database if the law enforcement agency fails to respond. However, when there are multiple law enforcement agencies involved, this bill requires the person to first request information from all of the agencies prior to petitioning the court. This bill also provides specified timelines for when the petition must be filed.
This bill also provides that if a law enforcement agency has failed to respond to the request, at a hearing on the petition for appeal of a person’s designation as a gang member, the only evidence that may be introduced is whether the agency had received the request and whether their response, if any, was timely. The bill prohibits the agency that failed to respond to the request from presenting evidence of gang membership or affiliation at the hearing. The sponsors of this legislation state that the purpose of this limitation is both fairness (the petitioner should have all documentation supporting the designation prior to the hearing) and court efficiency (new information that the petitioner could not have considered prior to the hearing could lead to motions to continue the hearing or motions to exclude the information which would take up additional court time). The bill also provides that a second petition may not be filed for 180 calendar days.
This bill also contains changes to make the language consistent between existing statutes.
7. Argument in Support
Urban Peace Institute, a sponsor of this bill, writes in support:
Urban Peace Institute is a non-profit organization, and our mission is to develop policy, practice, and systems solutions to reduce violence, achieve safety, and improve community health so that families can thrive. To that end we provide technical assistance to cities and police departments, train community intervention workers, and provide direct legal services to individuals for whom false gang allegations are a barrier to successful social integration. We currently represent approximately 25 clients seeking removal from shared gang databases. These clients are among the first in the state to take advantage of the reforms enacted by AB 2298. As part of that representation, we have been in close communication with nine different law enforcement agencies as they enact local policies to carry out AB 2298. We consulted with the Judicial Council when the council drafted the new Rules of Court to effectuate the implementation of AB 2298. We have also advised public defender offices, law school clinics, legal aid foundations, and private attorneys on how their clients can take advantage of the new law. Based on this experience, we believe that AB 90 will improve the effectiveness and efficiency of the due process provided by AB 2298. AB 90 will do this by providing clarity to some ambiguous language in the current law.
AB 90 will also enact new reforms to shared gang databases based on the shortcomings found in the recent audit of CalGang. The state auditor published the CalGang report after AB 2298’s introduction and revealed shortcomings that could only be properly addressed through a new bill. To this end, AB 90 will enact the following reforms:
- Provide for oversight of CalGang by the Department of Justice and for an advisory committee that includes a diversity of voices;
- Place a moratorium on CalGang until DOJ certifies the audit recommendations have been implemented;
- Shorten the length of time a person may remain on a shared gang database without new evidence, thereby better reflecting the length of time most gang members are actually active;
- Allow for the Racial and Identity Profiling Board to consider the role of racial profiling in the use of gang databases;
- Improve reporting of data.
8. Argument in Opposition
The California State Sheriffs’ Association writes in opposition to this bill:
Our first concern is the bill’s moratorium on the use of CalGang. This bill provides that no data may be added or accessed until training protocols on the use of CalGang are developed and implemented and regulations are promulgated to provide for periodic audits of shared gang databases. While changes to CalGang administration might be necessary, this bill will eliminate the use of an important gang intelligence tool for a period of at least several months, if not longer. The moratorium on CalGang access will jeopardize public safety.
Additionally, the membership of the technical advisory committee created by this bill is required to include a person who is or was on a shared gang database. We believe it is inappropriate to include a person who may well be currently involved in gang activity in a position to influence the recommendations made by a body charged with providing advice on gang databases. We are also concerned about statutorily allowing the Racial and Identity Profiling Advisory (RIPA) Board to review operations of shared gang databases as this expands RIPA Board’s purview.
-- END –
ASSEMBLY THIRD READING
ATR Bill Id:AB 90
Author:(Weber)
As Amended Ver:May 30, 2017
Majority vote
Committee | Votes | Ayes | Noes |
Public Safety | 5-2 | Jones-Sawyer, Gonzalez Fletcher, Quirk, Rubio, Santiago | Lackey, Flora |
Appropriations | 10-6 | Gonzalez Fletcher, Bloom, Bocanegra, Bonta, Calderon, McCarty, Quirk, Friedman, Eduardo Garcia, Reyes | Bigelow, Brough, Fong, Gallagher, Gray, Obernolte |
SUMMARY: Shifts responsibilities for shared gang databases from the CalGang Executive Board to the Department of Justice (DOJ) and sets policies, procedures, and oversight for the future use of the CalGang database. Specifically, this bill:
- Shifts the responsibility for administering and overseeing the shared gang database to the Department of Justice (DOJ), and provides that commencing January 1, 2018 the CalGang Executive Board will no longer administer or oversee the CalGang database or the shared gang databases that participate in the CalGang database.
- Requires that the DOJ creates regulations regarding the use, operation, and oversight of any shared gang database, including the following:
- Establishing the requirements for entering and reviewing gang designations;
- The retention period for listed gangs;
- The criteria for identifying gang members; and
- Definitions of offenses consistent with gang activity.
- The retention period for individuals listed in a shared gang database.
- Requires the DOJ to establish a technical advisory committee with the following members to advise on the uses of the shared gang databases:
- The Attorney General, or his or her designee;
- Representatives from participating law enforcement agencies;
- The President of the California Public Defenders Association, or his or her designee;
- A representative of organizations that specialize in gang and violence intervention;
- A representative of organizations that provide immigration services;
- A representative of organizations that specialize in privacy rights;
- Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age;
- One person who is or was placed on a shared gang database; and
- One parent of a person who is or was placed on a shared gang database as a juvenile.
- Requires the DOJ to implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.
- Requires that DOJ to create regulations to provide for periodic audits by law enforcement agencies and DOJ staff to ensure accuracy, reliability, and proper use of any shared gang database, and to report the results of audits to the public.
- Imposes a moratorium on the use of the CalGang database commencing on January 1, 2018, until the Attorney General certifies that the standardized periodic training and periodic audit regulation requirements have been met.
EXISTING LAW:
- 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.
- 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.
- 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.
- 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 one, two, or three years in state prison.
- 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.
- 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.
FISCAL EFFECT: According to the Assembly Appropriations Committee, unknown but significant General Fund costs in excess of $1 million for the DOJ to comply with the provisions of this bill.
COMMENTS: According to the author, "Assembly Bill 90 will address accuracy and fairness in the collection and accessing of gang allegations through CalGang and other shared gang databases, including enacting reforms outlined in the 2016 audit of shared gang databases released by the California State Auditor.
"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 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 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 which will provide protections for Californians. These changes will also benefit our law enforcement agencies by providing greater access to useful crime prevention and investigative tools by increasing the accuracy of shared gang databases."
Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0000838
Date of Hearing: May 17, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 90
Author:(Weber) – As Amended Ver:April 17, 2017
Policy Committee: | Public Safety | Vote: | 5 - 2 |
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill shifts responsibilities for shared gang databases from the CalGang Executive Board to the Department of Justice (DOJ) and sets policies, procedures, and oversight for the future use of the CalGang database. This bill imposes a moratorium on the use of the CalGang database commencing on January 1, 2018, until the Attorney General certifies that the standardized periodic training and periodic audit regulation requirements have been met. Specifically, this bill requires the DOJ to:
- Create regulations regarding the use, operation, and oversight of any shared gang database, including the following:
- Establishing the requirements for entering and reviewing gang designations;
- The retention period for listed gangs;
- The criteria for identifying gang members; and
- Definitions of offenses consistent with gang activity.
- Establish a technical advisory committee with specified membership to advise on the uses of the shared gang databases.
- Implement standardized periodic training for all users authorized to enter and access data in a shared gang database.
- Create regulations to provide for periodic audits by law enforcement agencies and DOJ staff to ensure accuracy, reliability, and the proper use of any shared gang database, and to report the results of audits to the public.
- Oversee the 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 two years.
FISCAL EFFECT:
Unknown but significant GF costs in excess of $1 million for the DOJ to comply with the provisions of this bill.
COMMENTS:
- Purpose. According to the author, "Assembly Bill 90 will address accuracy and fairness in the collection and accessing of gang allegations through CalGang and other shared gang databases, including enacting reforms outlined in the 2016 audit of shared gang databases released by the California State Auditor.”
SB 458 (Wright), Chapter 797, Statutes of 2013, and AB 2298 (Weber), Chapter 752, Statutes of 2016, began the process of addressing 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.
The author indicates the additional changes in this bill will also benefit law enforcement agencies by providing access to useful crime prevention and investigative tools by increasing the accuracy of the information in CalGang.
- Background. The CalGANG is an information database that was developed in 1997 to track anyone considered a gang member or associate in the state of California. There is a central database connected to the Department of Justice (DOJ) and almost 12 regional databases located throughout the state. The Regional Node Agency serves the region's criminal justice community including, federal, state, and local; by providing a computerized database of criminal justice intelligence and investigation information on gang activity to authorized users demonstrating a right and need to know. The goal is to improve the effectiveness of the regional law enforcement and criminal justice agencies through the efficient handling and exchange of criminal justice intelligence and investigative information on gangs and gang activity. The idea seems to be to allow for faster and more dependable access by providing multiple avenues to the information one wants. While the central CalGANG database is housed at DOJ, it is not managed by DOJ.
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. 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. 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.”
- Support. In support, the California Immigrant Policy Center points out that the vast majority of this documentation occurs outside any ongoing investigation of specific crimes. They also point out that the California State Auditor released findings of the first ever investigation into the workings and impact of CalGang and the other shared gang databases that feed into it across the state, and the audit revealed many concerns with CalGang.
- Opposition. In opposition, the California District Attorneys Association states, “We acknowledge that wholesale changes to CalGang must be made, including the transfer of oversight to the Department of Justice. In fact, we would support legislation that simply codifies the recommendations of the State Auditor. Unfortunately, as AB 90 exceeds those recommendations in a way that will burden law enforcement and negatively impact gang investigations, we must respectfully oppose this bill."
- Related Legislation. SB 505 (Mendoza) establishes the California Gang Intelligence Executive Steering Committee in the DOJ, for the purpose of overseeing and administering the CalGang system, and assisting the DOJ in developing regulations governing the use, operation, and oversight of shared gang databases operated in the state. SB 505 is pending in the Senate Appropriations Committee.
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
Date of Hearing: April 18, 2017
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:
Author:() – As Ver:
SUMMARY:
Shifts responsibilities for shared gang databases from the CalGang Executive Board to the Department of Justice (DOJ) and sets policies, procedures, and oversight for the future use of the CalGang database. Specifically, this bill:
- Shifts the responsibility for administering and overseeing the shared gang database to the Department of Justice (DOJ), and provides that commencing January 1, 2018 the CalGang Executive Board will no longer administer or oversee the CalGang database or the shared gang databases that participate in the CalGang database.
- Requires that the DOJ creates regulations regarding the use, operation, and oversight of any shared gang database, including the following:
- Establishing the requirements for entering and reviewing gang designations;
- The retention period for listed gangs;
- The criteria for identifying gang members; and
- Definitions of offenses consistent with gang activity.
- Establishing the requirements for entering and reviewing gang designations;
- Requires the DOJ to establish a technical advisory committee with the following members to advise on the uses of the shared gang databases:
- The Attorney General, or his or her designee;
- Representatives from participating law enforcement agencies;
- The President of the California Public Defenders Association, or his or her designee;
- A representative of organizations that specialize in gang and violence intervention;
- A representative of organizations that provide immigration services;
- A representative of organizations that specialize in privacy rights;
- Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age;
- One person who is or was placed on a shared gang database; and
- One parent of a person who is or was placed on a shared gang database as a juvenile.
- The Attorney General, or his or her designee;
- Requires the DOJ to implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.
- Requires that DOJ to create regulations to provide for periodic audits by law enforcement agencies and DOJ staff to ensure accuracy, reliability, and proper use of any shared gang database, and to report the results of audits to the public.
- Imposes a moratorium on the use of the CalGang database commencing on January 1, 2018, until the Attorney General certifies that the standardized periodic training and periodic audit regulation requirements have been met.
- Requires that the DOJ oversees the 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 two years.
- Expands the information that a person may request from law enforcement and that must be disclosed if doing so would not compromise an active criminal investigation or compromise the health or safety of a minor. The additional information that would now be disclosed by law enforcement would include:
- Whether the person is designated in the shared database;
- The name of the designated gang; and
- The date the person was designated in the database.
- Whether the person is designated in the shared database;
- Eliminates the right of a person to request information as to the basis for the designation for the purpose of contesting the designation.
- Specifies that if a law enforcement agency does not provide verification of an agency's decision to remove or not remove a person from a database within a 30-day period, the request shall be deemed denied, and the person may then petition a court to review the agency's denial.
EXISTING LAW:
- 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).)
- 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).)
- 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).)
- 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).)
- 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).)
- 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).)
- 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).)
- 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.)
- 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.)
- Provides that commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined, shall submit a report to the DOJ, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information: (Pen. Code, § 186.34, subd. (c).)
- The number of persons included in the database on the day of reporting;
- The number of persons added to the database during the immediately preceding 12 months;
- The number of requests for removal of a person from the database received during the immediately preceding 12 months;
- The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months; and
- The number of persons automatically removed from the database during the immediately preceding 12 months.
- The number of persons included in the database on the day of reporting;
- Provides that commencing February 15, 2018, and annually on February 15 thereafter, the DOJ shall post each law enforcement agency’s report that contains the information collected on the department’s website. (Pen. Code, § 186.34, subd. (c).)
- Provides that a person who is listed by a law enforcement agency in a shared gang database as a gang member, suspected gang member, associate, or affiliate and who has contested his or her designation may seek review within 90 calendar days of the agency’s mailing or personal service of the verification of the decision by filing an appeal to be heard by the superior court. A proceeding under this subdivision is a limited civil case. A copy of the notice of appeal shall be served in person or by first-class mail upon the agency by the person. (Pen. Code, § 286.35.)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, "Assembly Bill 90 will address accuracy and fairness in the collection and accessing of gang allegations through CalGang and other shared gang databases, including enacting reforms outlined in the 2016 audit of shared gang databases released by the California State Auditor.
"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 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 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 which will provide protections for Californians. These changes will also benefit our law enforcement agencies by providing greater access to useful crime prevention and investigative tools by increasing the accuracy of shared gang databases."
- 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.” (Pen. Code, § 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]
- 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.
- 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, or a young-adult, 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.
- 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 9th 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.)
- 2016 State Auditor's Report on California's Shared Gang Databases: In August of 2016, the California State Auditor released findings of the first ever investigation into the workings and impact of CalGang and the other shared gang databases that feed into it across the state.[5] The audit was a scathing review of the current CalGang database system. A review of the entries into the database found that only 13% of the entries into the system had adequate support for entry. Additionally, the audit found that the CalGang database received no state oversight and the CalGang Executive Board and the California Gang Node Advisory Committee oversee the database's function independently from state oversight and without transparency or meaningful opportunities for public input. Law enforcement agencies the audit reviewed were not complying with state law requiring informing juveniles and parents of gang designations. The audit revealed many concerns, including that:
- CalGang’s oversight structure is inadequate and does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights;
- The governing entities act without statutory authority, transparency, or public input;
- There is “little evidence” that the governing entities have ensured user agencies to comply with federal regulations regarding databases;
- Only 0.2 percent of CalGang’s statewide individual records are reviewed each year;
- The investigators could not substantiate the validity of numerous CalGang entries;
- Gang databases were “tracking people who do not appear to justifiably belong in the system;”
- User agencies that responded to the auditor’s statewide survey admitted that they use CalGang for employment or military-related screenings which is prohibited;
- User agencies have not ensured that CalGang records are added, removed, and shared in ways that maintain system accuracy and safeguard individuals’ rights;
- The programming underlying CalGang did not purge all records within the required five-year time frame — some records were not scheduled to be purged for more than 100 years; and
- Despite the enactment of SB 458 in 2013, many youth and their parents were not properly notified of their designation prior to adding them to CalGang nor afforded the right to contest gang designations.
- Due Process Procedures Added to the Shared Gang Database System by AB 2298 (Weber): Partially in response to the State Auditor's report, last session AB 2298 (Weber), Chapter 752, statutes of 2016 added a number of procedural safeguards to the CalGang system that were not present prior to that bill's passage. Specifically, AB 2298:
- Extended to adults the right to be notified of inclusion in a shared gang database, as defined and including CalGang, and to seek removal of a person’s name and identifying information from the database;
- Required that database operators comply with federal privacy and data accuracy rules;
- Established a civil court procedure for seeking removal from a gang database;
- Required any agency that utilizes a shared gang database to annually report to the Department of Justice (DOJ) on the number of persons in the database, the number of people in each of the following categories in the previous year - those added to the database, who sought removal, who were granted removal and those automatically removed; and
- Requires DOJ to annually publish the information on its Web site, as specified.
- Argument in Support: According to the California Immigrant Policy Center, "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 accuracy, consistency and transparency in regards to shared gang databases by guaranteeing the right to all people 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.
"In August of 2016, the California State Auditor released findings of the first ever investigation into the workings and impact of CalGang and the other shared gang databases that feed into it across the state. The audit revealed many concerns, including that: 1. CalGang’s oversight structure is inadequate and does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights; 2. The governing entities act without statutory authority, transparency, or public input; 3. There is “little evidence” that the governing entities have ensured user agencies to comply with federal regulations regarding databases; 4. Only 0.2 percent of CalGang’s statewide individual records are reviewed each year; 5. The investigators could not substantiate the validity of numerous CalGang entries; 6. Gang databases were “tracking people who do not appear to justifiably belong in the system;” 7. User agencies that responded to the auditor’s statewide survey admitted that they use CalGang for employment or military-related screenings, which is prohibited; 8. User agencies have not ensured that CalGang records are added, removed, and shared in ways that maintain system accuracy and safeguard individuals’ rights; 9. The programming underlying CalGang did not purge all records within the required five-year time frame — some records were not scheduled to be purged for more than 100 years; and 10. Despite the enactment of SB 458 in 2013, many youth and their parents were not properly notified of their designation prior to adding them to CalGang nor afforded the right to contest gang designations.
"AB 90 will:
- "Provide law enforcement greater access to useful crime prevention and investigation tools by increasing the accuracy of shared gang databases.
- Move oversight and administration of the CalGang Database to the State Department of Justice (DOJ).
- Prohibit the sharing of CalGang with any federal agencies.
- Place a moratorium on the use of CalGang (including accessing or adding to the database) until the concerns raised by the state audit (released in August, 2016) are resolved.
- Ensure that a two-year automatic purge of CalGang will be implemented for individuals who do not have contact with law enforcement leading to the updating of their designation.
- Require that law enforcement in custodial settings follow California law when they participate in shared gang databases.
"Noncitizen immigrants are particularly harmed by being placed on a shared gang database, as such an allegation could prioritize someone for deportation regardless of whether or not that allegation is true. In addition, many immigrants are people of color and also live in neighborhoods with gang injunctions or where gang activity may be high. This places these individuals at greater risk of being placed on a shared gang database solely for where they live. As revealed through the 2016 state audit finding of 42 individuals in CalGang who were younger than one year of age when entered into the database, it demonstrates that many individuals put on these databases are done so without substantial evidence and heavily rely on the racial profiling of communities."
- Argument in Opposition: According to the California District Attorneys Association, "As you know, last August, the California State Auditor released a scathing audit on 'The CalGang Criminal Intelligence System' which highlighted deficiencies that plagued the CalGang system and its oversight structure. The audit made very clear that changes to CalGang must be made. Fortunately, the audit also included a number of recommendations for improving the accuracy and effectiveness of CalGang.
"While AB 90 incorporates many of those suggested changes, it also goes far beyond the Auditor’s recommendations. For example, while the audit recommends ensuring that CalGang will automatically purge all individuals whose records have not been updated by user agencies for five years, this bill would require that records be purged after just two years. Whereas the audit recommends establishing a technical advisory committee to include representatives from local and state agencies that use the database, this bill expands that technical advisory committee to include public defenders, immigration attorneys, and even gang members themselves.
"We acknowledge that wholesale changes to CalGang must be made, including the transfer of oversight to the Department of Justice. In fact, we would support legislation that simply codifies the recommendations of the State Auditor. Unfortunately, as AB 90 exceeds those recommendations in a way that will burden law enforcement and negatively impact gang investigations, we must respectfully oppose this bill."
- Related Legislation: SB 505 (Mendoza) establishes the California Gang Intelligence Executive Steering Committee in the DOJ, for the purpose of overseeing and administering the CalGang system, and assisting the DOJ in developing regulations governing the use, operation, and oversight of shared gang databases operated in the state. SB 505 is set for hearing in the Senate Public Safety Committee on April 25, 2017.
- Prior Legislation:
- AB 2298 (Weber), Chapter 752, Statutes of 2016, imposed specified due process rights on California Shared Gang Databases.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- AB 2298 (Weber), Chapter 752, Statutes of 2016, imposed specified due process rights on California Shared Gang Databases.
REGISTERED SUPPORT / OPPOSITION:
Support
Youth Justice Coalition (Sponsor)
Alliance for Boys and Men of Color
American Civil Liberties Union
Anti-Recidivism Coalition
Asian Americans Advancing Justice-California
California Attorneys for Criminal Justice
California Immigrant Policy Center
California Immigrant Youth Justice Alliance
California Public Defenders Association
Californians United for a Responsible Budget
Central American Resource Center
Coalition for Humane Immigrant Rights
Courage Campaign
Electronic Frontier Foundation
Ella Baker Center for Human Rights
Fair Chance Project
Fathers and Families of San Joaquin
Homeboy Industries
Journey House
Latino Coalition for a Healthy California
National Association of Social Workers-California Chapter
National Immigration Law Center
PolicyLink
Second Samoan Congregational Church
Silicon Calley De-Bug
Urban Peace Institute
W. Hawood Burns Institute
Women's Foundation of California
2 private individuals
Opposition
Association of Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
California District Attorneys Association
Los Angeles Police Protective League
Riverside Sheriffs' Association
San Diego District Attorney
Analysis Prepared by:
<http://testaae.greenwood.com/doc_print.aspx?fileID=GM0790E&chapterID=GM0790E-643&path=chunkbook>, citing GREAT System Overview, The Eighth Annual Organized Crime and Criminal Intelligence Training Conference, August 23-26, 1994.) ↑
(Leyton, supra, at 113, citing Patrick Thibodeau, Cops Wield Database in War on Street Gangs, Computerworld, Sept. 1, 1997, at 4; and Ray Dassault, GangNet: A New Tool in the War on Gangs, California Computer News, January 1997 <http://www.govtech.com/magazines/gt/GangNet-A-New-Tool-in-the.html?page=3>.) ↑
(Criminal Intelligence Systems, Operating Policies, 28 CFR Part 23, <http://www.iir.com/28CFR_Program/28CFR_Resources/ExecOrder12291_28CFRPart23.pdf/>.) ↑
(See Ana Muniz and Kim McGill, Tracked and Trapped: Youth of Color, Gang Databases and Gang Injunctions, Youth Justice Coalition, Dec. 2012 <http://www.youth4justice.org/wp-content/uploads/2012/12/TrackedandTrapped.pdf>.) ↑
Discussed in Hearing
4MIN
Assembly Floor
6MIN
Senate Floor
1H
Senate Standing Committee on Appropriations
35MIN
Senate Standing Committee on Public Safety
11MIN
Assembly Floor
1H
Assembly Standing Committee on Appropriations
16MIN
Assembly Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):
