Existing law, the California Street Terrorism Enforcement and Prevention Act, authorizes the keeping and utilization of shared gang databases, 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. Existing law provides that a shared gang database includes the CalGang system.

This bill would establish the California Gang Intelligence Executive Steering Committee in the Department of Justice, as specified, for the purpose of overseeing and administering the CalGang system, as specified, and assisting the department in developing regulations governing the use, operation, and oversight of shared gang databases operated in the state. The bill would require the committee to meet at least quarterly and to conduct public hearings at least annually to provide opportunities for gathering information and receiving input regarding the work of the committee from concerned stakeholders and the public. The bill would require the committee to post information related to its meetings and significant documents related to its work on an Internet Web site, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release. The bill would provide that the CalGang Executive Board is to cease to administer and oversee the CalGang system.

The bill would require the department, in consultation with the committee, to issue regulations governing the use, operation, and oversight of any shared gang database, and would specify minimum requirements for those regulations. The bill would require the department to oversee shared gang database system discipline, as specified. The bill would require the department to instruct user agencies to review individual records entered into a shared gang database system and to purge records that do not satisfy criteria for entry into the system. The bill would, commencing January 1, 2018, impose a moratorium on the use of the CalGang database and other shared gang databases until the Attorney General certifies that the purge of records has been completed. The bill would require the department to conduct periodic audits of shared gang databases and to publish summary results of those audits to its Internet Web site, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release. The bill would require the department to publish an annual report regarding key shared gang database statistics and summary results from those audits.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law, the California Street Terrorism Enforcement and Prevention Act, authorizes the keeping and utilization of shared gang databases, 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. Existing law provides that a shared gang database includes the CalGang system.

This bill would require the Department of Justice to administer or oversee any shared gang database, as defined, that is funded by the state and in which California law enforcement agencies participate, including, but not limited to, the CalGang system. The bill would provide that the CalGang Executive Board is to cease to administer and oversee the CalGang system and is required to transfer its responsibilities to the Department of Justice. establish the California Gang Intelligence Executive Steering Committee in the Department of Justice, as specified, for the purpose of overseeing and administering the CalGang system, as specified, and assisting the department in developing regulations governing the use, operation, and oversight of shared gang databases operated in the state. The bill would require the committee to meet at least quarterly and to conduct public hearings at least annually to provide opportunities for gathering information and receiving input regarding the work of the committee from concerned stakeholders and the public. The bill would require the committee to post information related to its meetings and significant documents related to its work on an Internet Web site, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release. The bill would provide that the CalGang Executive Board is to cease to administer and oversee the CalGang system.

Existing law, the California Street Terrorism Enforcement and Prevention Act, authorizes the keeping and utilization of shared gang databases, 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. Existing law provides that a shared gang database includes the CalGang system.

This bill would require the Department of Justice to administer or oversee any shared gang database, as defined, that is funded by the state and in which California law enforcement agencies participate, including, but not limited to, the CalGang system. The bill would provide that the CalGang Executive Board is to cease to administer and oversee the CalGang system and is required to transfer its responsibilities to the Department of Justice.

Date of Hearing: August 23, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 505

Author:(Mendoza) – As Amended Ver:May 3, 2017

Urgency: No State Mandated Local Program: No Reimbursable: Yes

SUMMARY:

This bill terminates the administration and oversight of CalGang database system by the CalGang Executive Board (Board); authorizes the administration, oversight, and development of regulations of shared gang databases in the state by the California Gang Intelligence Executive Steering Committee (Committee), under the authority of the Department of Justice (DOJ); and imposes a moratorium on shared gang databases, including CalGang, as specified. Specifically, this bill:

1. Creates the Committee, under the authority of DOJ, and shifts the administration and oversight of CalGang from the Board to the 11 member Committee that must meet at least quarterly, and hold public hearings at least once a year to receive input from concerned stakeholders and the public.
2. Requires DOJ, in consultation with the Committee and the California Gang Node Advisory Committee, to issue regulations governing the specific use, criteria, operation, record retention, and oversight of any shared database.
3. Requires DOJ to be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines.
4. Requires DOJ to instruct all agencies that use shared gang databases 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. All data entries that do not meet the criteria for a valid entry will be purged.
5. Requires DOJ to conduct periodic audits of the gang databases to ensure accuracy and reliability, and to publish statistical annual reports.
6. Requires all law enforcement and criminal justice personnel who access the shared gang database to undergo comprehensive and standardized training on the use of the database and related policies and procedures.

FISCAL EFFECT:

1. First year costs of $1.2 million (GF) in 2017-18, second year costs of $3.5 million in 2018-19, and annual ongoing costs of $2.1 million thereafter for DOJ to comply with the provisions of this bill.
2. Unknown, but significant reimbursable state mandated costs to local agencies to undergo staff training, review existing entries for street gang members, and purge the database as necessary.

COMMENTS:

1. Purpose. According to the author, "Although this system [CalGang] has been helpful to law enforcement agencies, CalGang has not been consistently vetted to ensure the information inputted is accurate. Further, the inaccurate data within CalGang may violate the privacy rights of individuals whose information appears in CalGang records but who do not actually meet the criteria for inclusion in the system. SB 505 will address these issues by providing oversight and accountability to the CalGang database system.”
2. Background. 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.”

Amidst concerns raised by recent audit, Kamala Harris, then California Attorney General, called on Sacramento lawmakers to give the DOJ full control over the CalGang database.

1. Support. According to the San Diego County Office of the District Attorney, “The Changes proffered in SB 505 advance the goals of the Auditor’s recommendations while ensuring that law enforcement is not deprived of a useful investigative tool.”
2. Opposition. The Urban Peace Institute (Institute), believes SB 505 lacks several provisions that are needed: a) effective limits on sharing unproven gang allegations with federal immigration enforcement agencies, b) transparency in oversight; c) inclusion of a person formerly included in a shared gang database on the oversight committee, and d) “clean-up” language to existing law as recommended by the Judicial Council. The Institute writes, “In contrast to SB 505, Assembly Bill 90 (Weber) enacts the reforms outlined by the 2016 audit and also includes provisions regarding immigration, transparency, community expertise in oversight, and clarifying language.”
3. Related Legislation. AB 90 (Weber) imposes a moratorium on the use of the CalGang database commencing January 1, 2018, until, among other requirements, the Attorney General certifies that standardized periodic training and periodic audit regulation requirements, as specified, have been met. AB 90 makes the DOJ, with the assistance of a technical advisory committee, responsible for administering and overseeing any shared gang database. Requires DOJ to develop regulations governing the use, operation, and oversight of any shared gang database. AB 90 is awaiting hearing in the Senate Appropriations Committee.
4. Prior Legislation. AB 2298 (Weber), Chapter 752, Statutes of 2016, imposed specified due process rights on California shared gang databases.

AB 458 (Wright) Chapter 797, Statutes of 2013, defined “shared gang database” and required local law enforcement to notify a minor and his or her parent or guardian and provide an opportunity to contest before designating that minor as a gang member, associate, or affiliate in a shared gang database, except as specified.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: June 27, 2017

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 505

Author:(Mendoza) – As Amended Ver:May 3, 2017

SUMMARY: Terminates the administration and oversight of CalGang database system by the CalGang Executive Board. Authorizes the administration, oversight, and development of regulations of shared gang databases in the state by the California Gang Intelligence Executive Steering Committee, under the authority of the Department of Justice (DOJ). Imposes a moratorium on shared gang databases, including Cal Gang, as specified. Specifically, this bill:

1. Creates the California Gang Intelligence Executive Steering Committee (Committee), under the authority of the Department of Justice (DOJ), and shifts the administration and oversight of CalGang from the CalGang Executive Board to the Committee.
2. Requires that the Committee consist of 11 members that, to the extent possible, reflect representation of northern, central, and southern California, as well as urban and rural areas.
3. Specifies that each of the Committee members demonstrate the following attributes, at minimum:
   1. Substantial prior knowledge of issues related to gang intervention, suppression, and prevention efforts;
      
   2. Decision making authority for, or direct access to, those who have decision making authority for the agency or constituency he or she represents; and
      
   3. A willingness to serve on the Committee and a commitment to contribute to the Committee’s work.
      
4. Specifies that the membership of the Committee shall consist of the following persons, all of which shall serve without compensation:
   1. The Attorney General or his or her designee;
      
   2. A representative appointed by the California Police Chiefs Association;
      
   3. A representative appointed by the California State Sheriff’s Association;
      
   4. A representative appointed by the California District Attorneys Association;
      
   5. A representative appointed by the CalGang Node Advisory Committee;
      
   6. A representative appointed by the California Gang Investigators Association;
      
   7. A representative appointed by the California Public Defenders Association;
      
   8. A representative appointed from a community-based organization that specializes in immigration services;
      
   9. A representative appointed by the Speaker of the Assembly from an organization that specializes in privacy rights;
      
   10. A representative appointed by the Senate Committee on Rules from an organization that specializes in gang intervention and prevention; and
       
   11. A representative appointed by the Governor with expertise in management and operations of database systems.
       
5. Requires the Committee to appoint a chairperson from among the appointed committee members, who shall serve in that capacity at the pleasure of the Committee.
   
6. Provides that if a Committee member is unable to adequately perform his or her duties, or is unable to attend more than three meetings in a single 12-month period, he or she is subject to removal from the committee by a majority vote of the full committee. 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.
   
7. Provides that the Committee may create, at its discretion, subcommittees or task forces to address specific issues. These may include Committee members as well as invited experts and other participants.
   
8. Provides that staff support services for the Committee shall be provided by the staff of DOJ.

9) Provides that the Committee shall meet at least quarterly and shall make public attachments for all future board and Committee meetings, as well as all other documents of significance such as letters, memoranda, and agreements, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release.

10) Requires that the Committee, at least annually, conduct public hearings to provide opportunities for gathering information and receiving input regarding the work of the Committee from concerned stakeholders and the public.

11) Provides that DOJ shall, in consultation with the Committee and the California Gang Node Advisory Committee, issue regulations governing the use, operation, and oversight of any shared database that ensure, at a minimum, the following:

• 1. The system integrity of a shared gang database;
     
  2. Shared gang databases shall be used and operated in compliance with applicable state and federal regulations, statutes, and guidelines;
     
  3. All law enforcement agency and criminal justice agency personnel who access a shared gang database shall undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures;
     
  4. Proper criteria are established for supervisory reviews of all databases and regular reviews of records entered into a shared gang database;
     
  5. Reasonable measures shall be 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;
     
  6. Law enforcement agencies and criminal justice agencies shall notify DOJ of any missing equipment that could potentially compromise a shared gang database;
  7. 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;
     
  8. Any records contained in a shared gang database shall not be disclosed for employment or military screening purposes; and
     
  9. Any records contained 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.
     

1. Requires that the regulations issued by DOJ shall, in consultation with the Committee and the California Gang Node Advisory Committee include requirements regarding the following:
   1. Entering and review of gang designations;
      
   2. Criteria for identifying criminal street gang members;
      
   3. Implementation of supervisory review procedures and periodic records review by law enforcement agencies and criminal justice agencies, and reporting of the results of those to DOJ;
      
   4. Standardize practices to ensure adherence to adult and juvenile notifications requirements; and
      
   5. Retention periods for entries in a shared gang database.
      
2. Provides that DOJ shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines. Further, DOJ 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 DOJ pursuant to the provisions of this bill.
   
3. Requires DOJ to instruct all agencies that use shared gang databases 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. All data entries that do not meet the criteria for a valid entry will be purged.
   
4. Requires, commencing January 1, 2018, that 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 has been completed.
   
5. Requires DOJ to conduct, or hire an external entity to conduct, periodic audits of shared gang databases to ensure the accuracy, reliability, and proper use of any shared gang database. DOJ shall post summary results from these audits to its publicly accessible Internet Web site, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release.
   
6. Requires DOJ to publish and release a public annual report with key shared gang database statistics and summary results from periodic audits conducted by DOJ or an external entity. These annual reports shall invite and assess public comments on the report. Subsequent annual reports shall summarize any public comment DOJ received and any action taken by DOJ in response.
   
7. Defines terms for the purposes of this bill.
   
8. Makes changes to the process for an individual to challenge their inclusion in a shared gang database.

EXISTING LAW:

1. Defines a “criminal street gang” as any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more enumerated offenses, having a common name or identifying sign or symbol, and whose members individually or collectively engage in a pattern of criminal gang activity. (Pen. Code, § 186.22, subd. (f).)
   
2. Defines “shared gang database” as any database that satisfies all of the following:
   
   1. Allows access for any local law enforcement agency;
      
   2. Contains personal, identifying information in which a person may be designated as a suspected gang member, associate, or affiliate or for which entry of a person in the database reflects a designation of that person as a suspected gang member, associate or affiliate; and,
      
   3. Is subject to federal regulation regarding criminal intelligence operating policies, if federal funding is still available to the database. (Pen. Code, § 186.34, subd. (a)(1)(A)-(C).)
      
3. Specifies that “shared gang database” includes the CalGang system, which is operated pursuant to federal regulations regarding criminal intelligence operating policies. (Pen. Code, § 186.34, subd. (a)(3).)
   
4. Mandates that information retained in the system must be reviewed and validated for continuing compliance with system submission criteria before the expiration of its retention period, which in no event shall be longer than five years. (Pen. Code, § 186.34, subd. (b).)
   
5. Requires local law enforcement to notify a person before designating him or her as a gang member, associate, or affiliate in a shared gang database and provide the basis for the designation. If the person is a minor, the notice and basis of designation must be provided to the parent or guardian. (Pen. Code, § 186.34, subd. (d)(1).)
   
6. Requires that the notice describe the process for contesting the designation and inform the person of the reason for his or her designation. If the person is a minor, the process must be described for the parent or guardian, or attorney working on the minor’s behalf. (Pen. Code, § 186.34, subd. (d)(2).)
   
7. Authorizes a person, his or her parent or guardian, or an attorney working on his or her behalf, to request information from any law enforcement agency regarding whether the person is designated as a suspected gang member, associate, or affiliate in a shared gang database which that agency can access and what agency made the designation. A person so designated may also request the basis of the designation. The law enforcement agency has 30 days to respond. (Pen. Code § 186.34 (e)(1)(A)-(B).)
   
8. Authorizes a person receiving notice, or his or her parent or guardian, to submit written documentation to local law enforcement contesting the designation. The law enforcement agency has 30 days to act on the request. If the law enforcement agency denies the request for removal from the database, the person may appeal. (Pen. Code § 186.34 (f).)
   
9. Requires local law enforcement, commencing January 15, 2018, and every January 15th thereafter to submit specified data pertaining to the database to the Department of Justice, and requires the Department of Justice, commencing February 15, 2018, and every February 15th thereafter, to post each agency’s report on the department’s Internet Web site. (Pen. Code § 186.34 (c).)
   
10. 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).)
    
11. 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.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "CalGang is a shared criminal intelligence system that law enforcement agencies use voluntarily. Although this system has been helpful to law enforcement agencies, CalGang has not been consistently vetted to ensure the information inputted is accurate. Further, the inaccurate data within CalGang may violate the privacy rights of individuals whose information appears in CalGang records but who do not actually meet the criteria for inclusion in the system. SB 505 will address these issues by providing oversight and accountability to the CalGang database system.”
   
2. 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. (https://oag.ca.gov/calgang)

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

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

1. California State Auditor Reported Concerns Regarding Accuracy of the CalGang Database: In August 2016, the California State Auditor presented a report concerning the CalGang Database to the Joint Legislative Audit Committee. The State Auditor concluded:
   
   “CalGang’s current oversight structure does not ensure that law enforcement agencies (user agencies) collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights. Although the California Department of Justice funds it, CalGang is not established in state statute and consequently receives no state oversight. Instead, the CalGang Executive Board and the California Gang Node Advisory Committee (CalGang’s governance) oversee CalGang and function independently from the State and without transparency or meaningful opportunities for public input.
   
   “Inadequate oversight contributed to the numerous instances in which the four user agencies we examined could not substantiate the validity of CalGang entries. Specifically, the agencies lacked adequate support for 13 of 100 people we reviewed in CalGang and for 131 of 563 (23 percent) of the CalGang criteria entries we reviewed. Although a person’s CalGang record must be purged after five years unless updated with subsequent criteria, we found more than 600 people in CalGang whose purge dates extended beyond the five-year limit, many of which were more than 100 years in the future. Finally, the user agencies have poorly implemented a 2014 state law requiring notifications before adding a juvenile to CalGang. Two agencies we reviewed did not provide juveniles and parents with enough information to reasonably contest the juveniles’ gang designations, thereby denying many people their right to contest a juvenile’s gang designation.
   
   “Although it asserts compliance with federal regulations and state guidelines—standards designed to protect privacy and other constitutional rights—little evidence exists that CalGang’s governance has ensured these standards are met. As a result, user agencies are tracking some people in CalGang without adequate justification, potentially violating their privacy rights. Further, by not reviewing information as required, CalGang’s governance and user agencies have diminished the system’s crime-fighting value. Although CalGang is not to be used for expert opinion or employment screenings, we found at least four appellate cases referencing expert opinions based on CalGang and three agencies we surveyed confirmed they use CalGang for employment screenings. Although these practices do not appear to be common place, they emphasize the effect CalGang can have on a person’s life.
   
   “We believe that CalGang needs an oversight structure that ensures that information is reliable and that users adhere to requirements that protect individuals’ rights. Thus, we recommend that the Legislature adopt state law assigning Justice the responsibility for CalGang oversight and specifying that CalGang must operate under defined requirements, such as supervisory and periodic record reviews.” (See The CalGang Criminal Intelligence System: As the Result of Its Weak Oversight Structure, It Contains Questionable Information That May Violate Individuals’ Privacy Rights, (https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf)
   
   Amidst the audit concerns, Kamala Harris, then California Attorney General, called on Sacramento lawmakers to give the DOJ full control over the CalGang database. (http://www.sandiegouniontribune.com/news/immigration/sd-me-cal-gang-20170106-story.html )
   
   AB 2298 (Weber), Chapter 752, Statutes of 2016, imposed specified due process rights on California shared gang databases, including extending the requirements of providing notice and an opportunity to contest designation as a gang member or affiliate to adults, instead of just minors. Beginning in January of 2018, and annually thereafter, AB 2298 requires local law enforcement using a shared gang database to submit reports to the California Department of Justice regarding the number of persons included in the database, number of requests for removal from the database, and number of persons automatically removed. The Department of Justice must post these reports on their website. (Pen. Code, § 186.34.)
   
2. AB 90 (Weber) and This Bill Have Similar Approaches to Shared Gang Databases: AB 90 (Weber) and this bill both seek to address issues regarding the CalGang database that were raised by the State Auditor. AB 90 was introduced this year in response to the findings by the State Auditor. AB 90 is awaiting hearing in the Senate Public Safety Committee. Both bills share the following elements:
   
   1. Designate DOJ as the state agency responsible for administering and overseeing CalGang or any equivalent statewide shared gang database;
      
   2. Require that CalGang or any equivalent statewide shared gang database adhere to federal regulations and relevant safeguards from the state guidelines, including supervisory review of database;
      
   3. Specify that the DOJ’s oversight responsibilities include developing and implementing standardized periodic training as well as conducting—or hiring an external entity to conduct—periodic audits of CalGang or any equivalent statewide shared gang database; and
      
   4. Specify the standards to which DOJ, in consultation with a proposed Committee, will regulate the use, operation, and oversight of CalGang, and any shared database.
      

AB 90 and this bill also have some differences which are as follows:

• 1. This bill would prohibit disclosure of records in a shared gang database for the purpose of enforcing federal immigration law, unless required by state or federal statute or regulation. AB 90 would prohibit access to a shared gang database by any federal agency or entity.
     
  2. Both bills would establish a committee within DOJ to provide oversight and administration of shared gang databases. Both bills generally require a similar makeup for the committee, but AB 90 would also include a person that is or was placed on a shared gang database and a parent of a person who is or was placed on a shared gang databases as a juvenile.
     
  3. This bill would place a moratorium on shared gang databases until the Attorney General certifies that entries in the shared gang database, which don’t meet the specified criteria for entry, have been purged. AB 90 would impose a moratorium on shared gang databases until the Attorney General certifies that they have developed and implement training for all users authorized to enter or access data in a shared gang database and that they have developed regulations to provide for comprehensive review of the database records ensure that the records have adequate support for all individuals entered in the database.
     

1. Argument in Support: According to the San Diego County Office of the District Attorney, “The Auditor’s report, ‘The CalGang Criminal Intelligence System,’ based on the audit conducted last year of the CalGang system, highlighted significant problems with the CalGang databased and its oversight structure. Fortunately, the audit included numerous recommnedations for improving the accuracy and efficacy of CalGang.
   
   “The report calls for purging individuals whose records have not been updated by user agencies in the last five years. It would also create a technical advisory committee, which will include representatives from local and state agencies that use the database, as recommended by the audit.
   
   “The San Diego District Attorney’s Office welcomes these changes to the CalGang database. The Changes proffered in SB 505 advance the goals of the Auditor’s recommendations while ensuring that law enforcement is not deprived of a useful investigative tool.
   
   “Finally, CalGangs has been funded the California Depart of Justice [DOJ], and administered by the CalGang Executive Board. According to the Auditor’s report, DOJ, the node administrator [local law enforcement] agencies and user agencies all incur costs to support CalGang. This bill maintains the current funding structure while reassigning oversight to DOJ.”
   
   “For these reasons, the San Diego District Attorney’s Office supports SB 505 and we urge your AYE vote.”
   
2. Argument in Opposition: According to the Urban Peace Institute, “We write to indicate our opposition, unless amended, to Senate Bill 505 (Mendoza). SB 505 would enact reforms outlined in the 2016 report on CalGang released by the California State Auditor. While we support the general intent of SB 505, the bill lacks several provisions that are needed to win our support. The first of these provisions is effective limits on sharing unproven gang allegations with federal immigration enforcement agencies. The second is transparency in oversight. The third is including a person formerly included in a shared gang database on the oversight committee. The fourth is “clean-up” language to existing law as recommended by the Judicial Council. In contrast to SB 505, Assembly Bill 90 (Weber) enacts the reforms outlined by the 2016 audit and also includes provisions regarding immigration, transparency, community expertise in oversight, and clarifying language.”
   
3. Related Legislation:
   
   1. AB 1409 (Allen), would require the California Department of Justice (DOJ) to send a copy of all information it has access to pursuant to a shared gang database to the United States Department of Justice. AB 1409 has not been heard in the Assembly Public Safety Committee.
      
   2. AB 90 (Weber) would impose a moratorium on the use of the CalGang database commencing January 1, 2018, until, among other requirements, the Attorney General certifies that standardized periodic training and periodic audit regulation requirements, as specified, have been met. Would make the Department of Justice, with the assistance of a technical advisory committee, responsible for administering and overseeing any shared gang database. Would require DOJ to develop regulations governing the use, operation, and oversight of any shared gang database. AB 90 is awaiting hearing in the Senate Public Safety Committee.
      
4. Prior Legislation:
   
   1. AB 2298 (Weber), Chapter 752, Statutes of 2016, imposed specified due process rights on California shared gang databases.
      
   2. AB 829 (Nazarian), of the 2015-2016 Legislative Session, would have outlined procedural due process rights for persons designated for inclusion in a shared gang database. AB 829 failed passage in the Assembly Judiciary Committee.
      
   3. AB 458 (Wright) Chapter 797, Statutes of 2013, defined “shared gang database” and required local law enforcement to notify a minor and his or her parent or guardian and provide an opportunity to contest before designating that minor as a gang member, associate, or affiliate in a shared gang database, except as specified.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Police Chiefs Association (Sponsor)
Association of Orange County Deputy Sheriffs
California District Attorneys Association
California Statewide Law Enforcement Association
Fraternal Order of Police
Long Beach Police Officers Association
Sacramento County Deputy Sheriffs’ Association
San Diego County Office of the District Attorney

Opposition

Alliance for Boys and Men of Color
Amity Foundation
California Immigrant Policy Center
California Immigrant Youth Justice Alliance
Coalition for Humane Immigrant Rights
Communities United for Restorative Youth Justice
Fathers & Families of San Joaquin
Homeboy Industries
Immigrant Legal Resource Center
Loyola Law School’s Immigrant Rights Clinic
National Day Laborer Organizing Network
National Immigration Law Center
Pillars of the Community
PolicyLink
Silicon Valley De-Bug
Urban Peace Institute
Youth Justice Coalition

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 505

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 4/25/17

AYES: Skinner, Anderson, Bradford, Jackson, Stone, Wiener

NO VOTE RECORDED: Mitchell

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/25/17

AYES: Lara, Bates, Beall, Bradford, Hill, Nielsen, Wiener

SUBJECT:

SOURCE: California Police Chiefs Association

DIGEST:

This bill 1) ceases the oversight and administration of CalGang database system by the CalGang Executive Board; 2) creates the California Gang Intelligence Executive Steering Committee, as specified; 3) authorizes the administration, oversight, and development of regulations of shared gang databases in the state, including CalGang, to the Committee, with the assistance of the Department of Justice; and 4) commences a moratorium of shared gang databases, including Cal Gang, as specified.

ANALYSIS:

Existing law:

1. Defines a “criminal street gang” as any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated criminal offenses, having a common name or identifying sign or symbol, and whose members individually or collectively engage in a pattern of criminal gang activity. (Pen. Code §186.22, subd. (f).)
2. Provides that any person who actively participates in 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, shall be punished by imprisonment in a country jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code §186.22, subd. (a).)
3. Provides that any person who is convicted of a felony committed for the benefits 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, upon conviction, receive a sentence enhancement, as specified immediately below. (Pen. Code §186.22, subd. (b).) Felony (other than specified)
   1. Serious felony — 2, 3, or 4 years
   2. Violent felony — 5 years
   3. Home invasion — life minimum, 15 years until parole eligibility
   4. Carjacking — life minimum, 15 years until parole eligibility
   5. Shooting from vehicle — life minimum, 15 years until parole eligibility
   6. Extortion or witness intimidation — life minimum, 7 years until parole eligibility
4. 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).)
5. Requires the registration of 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).)
   1. 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).)
   2. 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).)
   3. Any crime that the court finds is gang related at the time of sentencing or disposition. (Pen. Code §186.30, subd. (b)(2).)
6. Qualifies the “CalGang system” as a “shared gang database.” (Pen. Code §186.34, subd. (c)(3).)

This bill:

1. Creates the California Gang Intelligence Executive Steering Committee (Committee), under the authority of the Department of Justice (DOJ), and shifts the administration and oversight of CalGang from the CalGang Executive Board to the Committee.
2. Requires that the Committee consist of 11 members that, to the extent possible, reflect representation of northern, central, and southern California, as well as urban and rural areas.
3. Specifies that each of the Committee members demonstrate the following attributes, at minimum:
   1. Substantial prior knowledge of issues related to gang intervention, suppression, and prevention efforts.
   2. Decision making authority for, or direct access to, those who have decision making authority for the agency or constituency he or she represents.
   3. A willingness to serve on the Committee and a commitment to contribute to the Committee’s work.
4. Specifies that the membership of the Committee shall consist of the following persons, all of which shall serve without compensation:
   1. The Attorney General or his or her designee.
   2. A representative appointed by the California Police Chiefs Association.
   3. A representative appointed by the California State Sheriff’s Association.
   4. A representative appointed by the California District Attorneys Association.
   5. A representative appointed by the CalGang Node Advisory Committee.
   6. A representative appointed by the California Gang Investigators Association.
   7. A representative appointed by the California Public Defenders Association.
   8. A representative appointed from a community-based organization that specializes in immigration services.
   9. A representative appointed by the Speaker of the Assembly from an organization that specializes in privacy rights.
   10. A representative appointed by the Senate Committee on Rules from an organization that specializes in gang intervention and prevention.
   11. A representative appointed by the Governor with expertise in management and operations of database systems.
5. Requires the Committee to appoint a chairperson from among the appointed committee members, who shall serve in that capacity at the pleasure of the Committee.
6. Provides that if a Committee member is unable to adequately perform his or her duties, or is unable to attend more than three meetings in a single 12-month period, he or she is subject to removal from the committee by a majority vote of the full committee. 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.
7. Provides that the Committee may create, at its discretion, subcommittees or task forces to address specific issues. These may include Committee members as well as invited experts and other participants.
8. Provides that staff support services for the Committee shall be provided by the staff of DOJ.

9) Provides that the Committee shall meet at least quarterly and shall make public attachments for all future board and Committee meetings, as well as all other documents of significance such as letters, memoranda, and agreements, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release.

10) Requires that the Committee, at least annually, conduct public hearings to provide opportunities for gathering information and receiving input regarding the work of the Committee from concerned stakeholders and the public.

11) Provides that DOJ shall, in consultation with the Committee and the California Gang Node Advisory Committee, issue regulations governing the use, operation, and oversight of any shared database that ensure, at a minimum, the following:

• 1. The system integrity of a shared gang database.
  2. Shared gang databases shall be used and operated in compliance with applicable state and federal regulations, statutes, and guidelines.
  3. All law enforcement agency and criminal justice agency personnel who access a shared gang database shall undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures.
  4. Proper criteria are established for supervisory reviews of all databases and regular reviews of records entered into a shared gang database.
  5. Reasonable measures shall be 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.
  6. Law enforcement agencies and criminal justice agencies shall notify DOJ of any missing equipment that could potentially compromise a shared gang database.
  7. 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.
  8. Any records contained in a shared gang database shall not be disclosed for employment or military screening purposes.
  9. Any records contained 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.

1. Requires that the regulations issued by DOJ shall, in consultation with the Committee and the California Gang Node Advisory Committee include requirements regarding the following:
   1. Entering and review of gang designations.
   2. Criteria for identifying criminal street gang members.
   3. Implementation of supervisory review procedures and periodic records review by law enforcement agencies and criminal justice agencies, and reporting of the results of those to DOJ.
   4. Standardize practices to ensure adherence to adult and juvenile notifications requirements.
   5. Retention periods for entries in a shared gang database.
2. Provides that DOJ shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines. Further, DOJ 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 DOJ pursuant to the provisions of this bill.
3. Requires DOJ to instruct all agencies that use shared gang databases 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. All data entries that do not meet the criteria for a valid entry will be purged.
4. Requires, commencing January 1, 2018, that 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 has been completed.
5. Requires DOJ to conduct, or hire an external entity to conduct, periodic audits of shared gang databases to ensure the accuracy, reliability, and proper use of any shared gang database. DOJ shall post summary results from these audits to its publicly accessible Internet Web site, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release.
6. Requires DOJ to publish and release a public annual report with key shared gang database statistics and summary results from periodic audits conducted by DOJ or an external entity. These annual reports shall invite and assess public comments on the report. Subsequent annual reports shall summarize any public comment DOJ received and any action taken by DOJ in response.
7. Defines terms for the purpose of the Chapter created by this bill.

Background

According to the author:

CalGang is a shared criminal intelligence system that law enforcement agencies use voluntarily. These law enforcement agencies enter information into the CalGang system regarding suspected gang members, including their names, associated gangs, and the information that led law enforcement officers to suspect they were gang members. Although this system has been helpful to law enforcement agencies, CalGang has not been consistently vetted to ensure the information inputted is accurate. Further, the inaccurate data within CalGang may violate the privacy rights of individuals whose information appears in CalGang records but who do not actually meet the criteria for inclusion in the system. SB 505 will address these issues by establishing the California Gang Intelligence Executive Steering Committee in the Department of Justice for the purpose of overseeing and administering the CalGang system.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, major initial costs over $1 million dollars (General Fund) to 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 a federal regulations, statutes, and guidelines and to enforce violations.

SUPPORT: (Verified 5/25/17)

California Police Chiefs Association (source)

California District Attorneys Association

San Diego County District Attorney

OPPOSITION: (Verified 5/25/17)

American Civil Liberties Union of California

Amity Foundation

California Immigrant Policy Center

California Immigrant Youth Justice Alliance

Coalition for Humane Immigrant Rights

Communities United for restorative Youth Justice

Father and Families of San Joaquin

Homeboy Industries

Immigrant Legal Resource Center

Loyola Law School’s Immigrant Rights Clinic

National Day Laborer organizing network

National Immigration Law Center

Pillars of the Community

Policy Link

Urban Peace Institute

Youth Justice Coalition

ARGUMENTS IN SUPPORT: The California Police Chiefs Association sponsors this bill in stating:

On August 11, 2016, the California State Auditor released a report entitled The CalGang Criminal Intelligence System… among a myriad of policy recommendations aimed at increasing transparency and system integrity, the report recommends that the legislature designate the DOJ as the state agency responsible for administering and overseeing CalGang or any equivalent statewide shared gang database. SB 505 codifies this recommendation, along with a number of other recommendations, and in doing so increases the oversight and accountability of the shared data system without compromising the value of the intelligence system. Additionally, SB 505 will strengthen the integrity of the CalGang system by ensuring that all personnel who access the system are properly trained and follow regulations promulgated by the DOJ.

ARGUMENTS IN OPPOSITION: The National Immigration Law Center opposes this bill stating:

At this time, we are urging the legislature to support a much stronger effort—AB 90 authored by Assembly member Weber. AB 90 will address accuracy and fairness in the collection and accessing of gang allegations through CalGang and other shared gang databases, including fully enacting reforms outlined in the 2016 audit of shared gang databases released by the California State Auditor. AB [90]also address additional concerns not included in SB 505—including protections for immigrants at high risk for deportation if they have a gang designation; creating a fairer purge process… for all of these reasons, at this time, we are asking for your no vote on SB 505 unless it is significantly amended, and instead encourage you to support AB 90 when it comes to the Senate.

Prepared by: Nico Galván / PUB. S. /

5/27/17 17:33:05

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 505 (Mendoza) - Shared gang databases: administration

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 505 would reform the administration and oversight of shared gang databases.

Fiscal Impact:

Major initial costs over $1 million 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 a federal regulations, statutes, and guidelines and to enforce violations.

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:

• Establish the California Gang Intelligence Executive Steering Committee in DOJ, as specified, for the purpose of overseeing and administering the CalGang system, as specified, and assisting the department in developing regulations governing the use, operation, and oversight of shared gang databases operated in the state.
• Require the committee to meet at least quarterly and to conduct public hearings at least annually to provide opportunities for gathering information and receiving input regarding the work of the committee from concerned stakeholders and the public. The committee would be required post information related to its meetings and significant documents related to its work on a website, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release.
• Provide that the CalGang Executive Board is to cease to administer and oversee the CalGang system.
• Require DOJ, in consultation with the committee, to issue regulations governing the use, operation, and oversight of any shared gang database and specify minimum requirements for those regulations.
• Require DOJ to oversee shared gang database system discipline, as specified, and to instruct user agencies to review individual records entered into a shared gang database system and purge records that do not satisfy criteria for entry into the system.
• Impose, starting January 1, 2018, a moratorium on the use of the CalGang database and other shared gang databases until the Attorney General certifies that the purge of records has been completed.
• Require DOJ to conduct periodic audits of shared gang databases and to publish summary results of those audits to its website, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release. The department would be required to publish an annual report regarding key shared gang database statistics and summary results from those audits.

Related Legislation:

AB 90 (Weber, 2017) would make DOJ responsible for administering and overseeing shared gang databases and would shift administration and oversight of the CalGang system from the CalGang Executive Board to DOJ. AB 90 is pending in the Assembly Committee on Appropriations.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 505 Hearing Date: April 25, 2017

Subject: Shared Gang Databases: Administration

HISTORY

Source: California Police Chiefs Association

Prior Legislation: SB 458 (Wright) Chaptered 797, Statues of 2013

AB 2298 (Weber) Chaptered 752, Statutes of 2016

Support: California District Attorneys Association; San Diego County District Attorney

Opposition: None known

PURPOSE

The purpose of this bill is to: 1) cease the oversight and administration of CalGang database system by the CalGang Executive Board; 2) create the California Gang Intelligence Executive Steering Committee, under the authority of the Department of Justice, as specified; and 3) authorize the administration, oversight, and development of regulations, as specified, of shared gang databases in the state, including CalGang, to the Committee, with the assistance of the Department of Justice.

Existing law defines a “criminal street gang” as any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated criminal 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 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, shall be punished by imprisonment in a country jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (Pen. Code §186.22, subd. (a).)

Existing law provides that any person who is convicted of a felony committed for the benefits 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, upon conviction, receive a sentence enhancement, as specified immediately below. (Pen. Code §186.22, subd. (b).)

• Felony (other than specified) 2, 3, or 4 years
• Serious felony 5 years
• Violent felony 10 years
• Home invasion life min., 15 years until parole eligibility
• Carjacking life min., 15 years until parole eligibility
• Shooting from vehicle life min., 15 years until parole eligibility
• Extortion or witness intimidation life min., 7 years until parole eligibility

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).)

This bill creates the California Gang Intelligence Executive Steering Committee (Committee), under the authority of the Department of Justice (DOJ), and shift the administration and oversight of CalGang from the CalGang Executive Board to the Committee.

This bill requires that the Committee consist of nine members that, to the extent possible, reflect representation of northern, central, and southern California, as well as urban and rural areas.

This bill specifies that each of the Committee members demonstrate the following attributes, at minimum:

• Substantial prior knowledge of issues related to gang intervention, suppression, and prevention efforts.
• Decision making authority for, or direct access to, those who have decision making authority for the agency or constituency he or she represents
• A willingness to serve on the committee and a commitment to contribute to the Committee’s work.

This bill specifies that the membership of the Committee shall consist of the following persons, all of which shall serve without compensation:

• The Attorney General or his or her designee.
• A representative appointed by the California Police Chiefs Association.
• A representative appointed by the California State Sheriff’s Association.
• A representative appointed by the California District Attorneys Association.
• A representative appointed by the CalGang Node Advisory Committee.
• A representative appointed by the California Gang Investigators Association.
• A representative appointed by the Speaker of the Assembly from an organization that specializes in privacy rights.
• A representative appointed by the Senate Committee on Rules from an organization that specializes in gang intervention and prevention.
• A representative appointed by the Governor with expertise in management and operations of database systems.

This bill requires the Committee to appoint a chairperson from among the appointed committee members, who shall serve in that capacity at the pleasure of the Committee.

This bill provides that if a Committee member is unable to adequately perform his or her duties, or is unable to attend more than three meetings in a single 12-month period, he or she is subject to removal from the committee by a majority vote of the full committee. 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.

This bill provides that the Committee may create, at its discretion, subcommittees or task forces to address specific issues. These may include Committee members as well as invited experts and other participants.

This bill provides that staff support services for the Committee shall be provided by the staff of DOJ.

This bill requires the Committee to maintain a publicly accessible Internet Web site, which may be contained within the Internet Web site of DOJ.

This bill provides that the Committee shall meet at least quarterly and shall make public attachments for all future board and Committee meetings, as well as all other documents of significance such as letters, memoranda, and agreements, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release.

This bill requires that the Committee, at least annually, conduct public hearing to provide opportunities for gathering information and receiving input regarding the work of the Committee from concerned stakeholders and the public.

This bill provides that DOJ shall, in consultation with the Committee and the California Gang Node Advisory Committee, issue regulations governing the use, operation, and oversight of any shared database that ensure, at a minimum, the following:

• The system integrity of a shared gang database.
• Shared gang databases shall be used and operated in compliance with applicable state and federal regulations, statutes, and guidelines.
• All law enforcement agency and criminal justice agency personnel who access a shared gang database shall 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 databases and regular reviews of records entered into a shared gang database.
• Reasonable measures shall be 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.
• Law enforcement agencies and criminal justice agencies shall notify DOJ of any missing equipment that could potentially compromise a shared gang database.
• 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.
• Any records contained in a shared gang database shall not be disclosed for employment or military screening purposes.
• Any records contained 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.

This bill requires that the regulations issued by DOJ shall, in consultation with the Committee and the California Gang Node Advisory Committee include requirements regarding the following:

• Entering and review of gang designations.
• Criteria for identifying criminal street gang members.
• Implementation of supervisory review procedures and periodic records review by law enforcement agencies and criminal justice agencies, and reporting of the results of those to DOJ.
• Standardize practices to ensure adherence to adult and juvenile notifications requirements.
• Retention periods for entries in a shared gang database.

This bill provides that DOJ shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines. Further, DOJ 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 DOJ pursuant to the provisions of this bill.

This bill requires DOJ to instruct all agencies that use shared gang databases 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.

This bill requires DOJ to instruct all agencies which use shared gang databases to purge from a shared gang database any record for a criminal street gang member that does not meet criteria for entry.

This bill requires DOJ to conduct, or hire an external entity to conduct, periodic audits of shared gang databases to ensure the accuracy, reliability, and proper use of any shared gang database. DOJ shall post summary results from these audits to its publicly accessible Internet Web site, unless doing so would compromise criminal intelligence information or other information that must be shielded from public release.

This bill requires DOJ to publish and release a public annual report with key shared gang database statistics and summary results from periodic audits conducted by DOJ or an external entity. These annual reports shall invite and assess public comments on the report. Subsequent annual reports shall summarize any public comment DOJ received and any action taken by DOJ in response.

This bill states that the Legislature finds and declares that this bill legitimately imposes a limitation on the public’s right of access to the meetings of public bodies, or the writing of public officials, and agencies in order to protect the safety of the public and of individuals engaged in the investigation of criminal gang activity.

This bill defines a “criminal street gang” as a group of three or more persons 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 that creates an atmosphere of fear and intimidation within the community.

This bill defines a “shared gang database” as a database that satisfies 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 persons as a suspected gang member, associate, or affiliate.
• If federal funding supports an agency for the maintenance, support, or operation of a database, the database is subject to Part 23 of Title 28 of the Code of Federal Regulations.

This bill excludes from the definition of a “shared gang database” as a dispatch operator report, information used for the administration of jail or custodial facilities, criminal investigative reports, probations reports, or information required to be collected from persons required to register as gang members.

COMMENTS

1. Need for This Bill

According to the Author:

CalGang is a shared criminal intelligence system that law enforcement agencies use voluntarily. These law enforcement agencies enter information into the CalGang system regarding suspected gang members, including their names, associated gangs, and the information that led law enforcement officers to suspect they were gang members. Although this system has been helpful to law enforcement agencies, CalGang has not been consistently vetted to ensure the information inputted is accurate. Further, the inaccurate data within CalGang may violate the privacy rights of individuals whose information appears in CalGang records but who do not actually meet the criteria for inclusion in the system. SB 505 will address these issues by establishing the California Gang Intelligence Executive Steering Committee in the Department of Justice for the purpose of overseeing and administering the CalGang system.

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.”^[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. 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. CalGang’s Application

CalGang is a shared criminal intelligence system that law enforcement agencies use throughout California voluntarily. It is the primary shared gang database law enforcement uses throughout the state, with 92% of law enforcement agencies using its service statewide. As of November 2015, more than 150,000 individuals were registered in CalGang, and the average length of time within the system was 5.5 years. The demographics in terms of ethnicity and age of the 150,000 individuals within the CalGang are as follows: 64.9% Hispanic, 20.5% African-American, 8.2% Caucasian, 3.5% not identified, 2.3% Asian/Pacific Islander, and 0.6% Other; while 1.7% are under the age of 18 years of age, 57.3% are 18-30 years of age, 33.6% are 31-45 years of age, and 7.4% over 45 years of age.^[2]

CalGang allows law enforcement to “collect, store, and share intelligence information about individuals suspected—but not necessarily convicted—of being involved in criminal activity.” ^[3] This system also records documents outside of CalGang entries that include information about suspected gang members and their affiliates, “such as arrest reports, reports of interactions with law enforcements officers in the field, and booking photographs. Using those documents and in-person observation, law enforcement agency staffs… record in CalGang various data points about [gangs, and] gang members, including their names, birth dates, races, genders, known addresses, vehicles, physical descriptions, and personal markings such as tattoos.”^[4]

Due to the content of the system, CalGang voluntarily subjects itself of Title 28, Code of Federal Regulations, Part 23—the national standards for protecting and handling criminal intelligence systems. These regulations state that such criminal intelligence entries must be supported by a “reasonable suspicion that an individual or organization is involved in criminal conduct or activity and that the information entered into the system must be relevant to that criminal conduct or activity.”^[5]

4. Privacy Rights

The 4^th Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” The California Constitution, Article 1, Section 1, states “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” These constitutional protections must be adhered to throughout the operations of CalGang and shared gang databases throughout the state.

The legal standard of a “reasonable suspicion” was established by Terry v. Ohio (1968). This standard falls short of probable cause, which may trigger an arrest. Reasonable suspicion must be grounded in articulable fact that “criminal activity may be afoot,” and must be more than an inarticulate hunch of criminal activity. (Terry v. Ohio (1968) 398 U.S. 1, 30; Beck v. Ohio (1964) U.S. 89; Rios v. United States (1960) 364 U.S. 253; Henry v. United States (1959) 361 U.S. 98.)

5. California State Auditor’s Report Finds CalGang Failing to Protect Individual’s Rights to Privacy

A. Structure of CalGang

DOJ funds CalGang, however, DOJ is not statutorily required to oversee the database. This has led the CalGang Executive Board to assume responsibility for administering and overseeing CalGang, while the California Gang Node Advisory Committee provides staff and technical support. ^[6]

Due to an inadequate leadership structure, the California State Auditor found that CalGang “has failed to comply with requirements designed to protect individual’s rights to privacy.”^[7] Further, the CalGang Executive Board has acted “without statutory authority, transparency, or meaningful opportunities for public engagement.”^[8] Specifically, the CalGang Executive Board does not provide notice of their meetings, post agendas and minutes, or accept public testimony.

The leadership structure of CalGang also presents a lack of adequate accountability and oversight. The Executive Board and support Node Committee control the composition of their own members. Thus, no opportunities exist for public input through elections or elected bodies. This has allowed individuals to serve in multiple oversight roles. For example, “in the Sonoma County Sheriff’s Office (Sonoma), the sergeant who serves on the committee also acts as a node administrator and as a CalGang user. In fact, the sergeant stated that he enters approximately 95% of CalGang records for his agency, yet this same sergeant is also responsible for conducting any audits of CalGang records for the region because he is the node administrator.”^[9]

B. CalGang Did Not Always Meet Constitutional Requirement of Reasonable Suspicion

Federal and state regulations require that law enforcement agencies analyze legally obtained information to establish a reasonable suspicion of an organization’s criminal activity before establishing such organizations are gang, and subsequently adding those organizations to criminal intelligence databases. The State Auditor found that “an individual’s right to privacy is jeopardized if a law enforcement agency justified collected personal information about that individual by stating that he or she is a gang member when the agency has not yet established that such a gang exists through a documented pattern of criminal activity.”^[10] The auditor found many instances in which these requirements were not met, thus violating individual’s constitutional rights. Regulations also require a periodic assessment to determine if gangs entered into CalGang continue to meet the criteria for establishing gangs within the system. The current review process was found unable to “confirm that reasonable suspicion exists for larger gangs, creating the risk that CalGang contains information on individuals who are alleged members of groups that no longer meet the gang criteria.”^[11]

The State Auditor also found that in many instances, individuals were placed with CalGang with inaccurate or unsupported information. For example, the State Auditor found 42 individuals who were entered in CalGang which were under one year of age at the time of the entry. ^[12]

Individuals can be entered into CalGang if two of the following criteria are found:

• Subject has admitted to being a gang member.
• Subject has been arrested with known gang members for offenses consistent with gang activity.
• Subject has been identified as a gang member by a reliable informant/source.
• Subject has been identified as a gang member by an untested informant.
• Subject has been seen affiliating with documented gang members.
• Subject has been seen displaying gang symbols and/or hand signs.
• Subject has been seen frequenting gang areas
• Subject has been seen wearing gang dress.
• Subject is known to have gang tattoos.
• In custody Classification interview. (All others require two criteria).^[13]

Many of the individual entries in CalGang that claimed to meet two of the above criteria could not be substantiated throughout a variety of counties, a variety of entries, and a variety of criterion. The State Auditor found particular abuse of the criteria of which a “subject has been arrested with known gang members for offenses consistent with gang activity.”^[14] With these abuses, the State Auditor found that CalGang attempted to justify an entry with offenses that were beyond the established definition of “offenses consistent with gang activity” within Penal Code §186.22, subsection (e). Exacerbating the abuse of this criterion, the State Auditor found that some individual entries could not be substantiated because in fact no arrest existed. Other common criteria which has been abused were the criteria that the “subject has been seen associating with documented gang members [and] subject has been identified as a gang member by a reliable informant/source.”^[15]

One example of an inaccurate data entry, according to the State Auditor, is as follows:

For example, Sonoma justified entering a person into CalGang in part because he supposedly admitted to being a gang member during a custody classification interview at the county jail. However, when we obtained a record of this interview, we found that the person said he was not currently a member of the gang to which he was later connected in CalGang. In fact, he specifically requested to not be housed with this gang. The only criterion for this individual’s inclusion in CalGang for which we found support was that he had been seen associating with documented gang members. However, even that circumstance consisted of no more than an officer’s observation that the individual was in the garage of a residence that a documented gang member had left.^[16]

After five years, each individual entry must be purged from CalGang unless the entry is supported by new criminal activity information. The State Auditor found over 600 individuals with purge dates beyond the 5 year limit, including more than 250 individuals which were scheduled to be purged in more than 100 years into the future.

6. Effect of This Bill

This bill aims to address many of the issues raised by the California State Auditor’s 109 page report regarding CalGang, which have been discussed in detail above. This bill mirrors many of the recommendations of the report, particularly the recommendations to:

• “designate [the Department] of Justice as the state agency responsible for administering and overseeing CalGang or any equivalent statewide shared gang database;
• require that CalGang or any equivalent statewide shared gang database adhere to federal regulations and relevant safeguards from the state guidelines, including supervisory review of database;
• specify that the [Department of] Justice’s oversight responsibilities include developing and implementing standardized periodic training as well as conducing—or hiring an external entity to conduct—periodic audits of CalGang or any equivalent statewide shared gang database.”^[17]

This bill also specifies the standards to which DOJ, in consultation with the proposed Committee, will regulate the use, operation, and oversight of any CalGang, and any shared database. These regulations will ensure, at a minimum, the following:

• The system integrity of a shared gang database.
• Shared gang databases shall be used and operated in compliance with applicable state and federal regulations, statutes, and guidelines.
• All law enforcement agency and criminal justice agency personnel who access a shared gang database shall 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 databases and regular reviews of records entered into a shared gang database.
• Reasonable measures shall be 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.
• Law enforcement agencies and criminal justice agencies shall notify the DOJ of any missing equipment that could potentially compromise a shared gang database.
• 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.
• Any records contained in a shared gang database shall not be disclosed for employment or military screening purposes.
• Any records contained 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.

This bill, if DOJ receives federal funding for CalGang, will codify CalGang’s subjection to Part 23 of Title 28 of the Code of Federal Regulations, which was previously adhered to by the CalGang Executive Board voluntarily.

7. Committee Make Up

Currently, the make up of the Committee includes five members from law enforcement, two members appointed from the Legislature, one member appointed from the Administration, and one member from DOJ. The specific members of the committee are as follows:

• The Attorney General or his or her designee.
• A representative appointed by the California Police Chiefs Association.
• A representative appointed by the California State Sheriff’s Association.
• A representative appointed by the California District Attorneys Association.
• A representative appointed by the CalGang Node Advisory Committee.
• A representative appointed by the California Gang Investigators Association.
• A representative appointed by the Speaker of the Assembly from an organization that specializes in privacy rights.
• A representative appointed by the Senate Committee on Rules from an organization that specializes in gang intervention and prevention.
• A representative appointed by the Governor with expertise in management and operations of database systems.

The Legislature may wish to consider if the composition of the Committee should include at least one member from the criminal defense bar.

8. Argument in Support

The California Police Chiefs Association sponsors this bill stating:

On August 11, 2016, the California State Auditor released a report entitled The CalGang Criminal Intelligence System… among a myriad of policy recommendations aimed at increasing transparency and system integrity, the report recommends that the legislature designate the DOJ as the state agency responsible for administering and overseeing CalGang or any equivalent statewide shared gang database. SB 505 codifies this recommendation, along with a number of other recommendations, and in doing so increases the oversight and accountability of the shared data system without compromising the value of the intelligence system. Additionally, SB 505 will strengthen the integrity of the CalGang system by ensuring that all personnel who access the system are properly trained and follow regulations promulgated by the DOJ.

9. Author’s Amendment

This bill will be amended to:

1. Revise the definition of “criminal street gang” in §14320, subdivision (a)(3) to match the existing definition of “criminal street gang” in Penal Code §186.22, subdivision (f).

– END –

1. 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, March 27, 2013) ↑

2. Elaine M. Howle, California 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,” California State Auditor, August 11, 2016, p. 9, accessed April 6, 2017. https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf ↑

3. Ibid, p.12. ↑

4. Ibid, p. 11. ↑

5. Ibid, p. 9. ↑

6. Ibid, p. 23. ↑

7. Ibid, p. 23. ↑

8. Ibid, p. 23. ↑

9. Ibid, p. 23. ↑

10. Ibid, p. 28. ↑

11. Ibid. p. 31. ↑

12. Ibid. p. 3. ↑

13. California Gang Node Advisory Committee, “Policy and Procedures for the CalGang System,” California Department of Justice, California Node Advisory Committee, September 27, 2007, p. 7, accessed April 12, 2017. https://oag.ca.gov/sites/all/files/agweb/pdfs/calgang/policy_procedure.pdf ↑

14. Elaine M. Howle, 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,” p. 34. ↑

15. Ibid, p. 35. ↑

16. Ibid, p. 33. ↑

17. Ibid, p. 55. ↑