BILL ANALYSIS Ó
SB 458
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SENATE THIRD READING
SB 458 (Wright)
As Amended September 6, 2013
Majority vote
SENATE VOTE :37-0
PUBLIC SAFETY 5-1
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|Ayes:|Ammiano, Jones-Sawyer, | | |
| |Mitchell, Quirk, Skinner | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Waldron | | |
| | | | |
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SUMMARY : Requires local law enforcement to notify a minor and
his or her parent or guardian before designating that minor as a
gang member, associate, or affiliate in a shared gang database
and the basis for the designation. Specifically, this bill :
1)Defines, for the purposes of this bill, "shared gang database"
to mean any database that:
a) Allows access for any local law enforcement agency;
b) Contains personal, identifying information in which a
person may be designated as a suspected gang member,
associate, or affiliate or for which entry of a person in
the database reflects a designation of that person as
suspected gang member, associate or affiliate; and,
c) Is subject to federal criminal intelligence system
operating policies.
2)Requires a local law enforcement agency, to the extent it
chooses to use a shared gang database, prior to the agency
designating a minor as a gang member, associate, or affiliate
in a shared gang database or submitting a document to the
Attorney General's office for the purpose of designating a
minor in a shared gang database, to provide written notice to
the minor and his or her parent or guardian of the designation
and its basis, except when providing notification would
compromise an active criminal investigation or compromise the
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health and safety of the minor.
3)Authorizes a person designated as a suspected gang member,
associate, or affiliate, or his or her parent or guardian,
subsequent to the notice described above, to submit written
documentation to the local law enforcement agency contesting
the designation. Requires the local law enforcement agency to
review the documentation and to remove the person from the
database if the agency determines that the person is not a
suspected gang member, associate, or affiliate and to provide
the person and his or her parent or guardian with written
verification of the agency's decision within 60 days of the
submission of the document contesting the designation.
4)Provides that the person designated as a suspected gang
member, associate, or affiliate, or his or her parent or
guardian, is able to request information as to whether the
person has been designated as a suspected gang member,
associate, or affiliate; and requires the local law
enforcement agency to provide that information unless doing so
would compromise an active criminal investigation or
compromise the health or safety of the minor.
5)Prohibits the local law enforcement agency from disclosing the
location of the person designated as a suspected gang member,
associate, or affiliate to his or her parent or guardian if
the agency determines there is credible evidence that the
information would endanger the health or safety of the minor.
6)Requires a shared gang database to retain records related to
the gang activity of the individuals in the database
consistent with specified federal criminal intelligence system
operating policies.
7)Provides that nothing in this bill requires a local law
enforcement agency to disclose any protected information, as
specified.
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
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engage in a pattern of criminal gang activity.
2)Provides that any person who actively participates in a
criminal street gang with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity and who
promotes, furthers, or assists in any felonious conduct by
members of the gang is guilty of an alternate
felony-misdemeanor.
3)Provides that any person who is convicted of a felony
committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific
intent to promote, further, or assist in criminal conduct by
gang members, shall receive a sentence enhancement, as
specified.
4)Provides that any person who is convicted of either a felony
or misdemeanor that is committed for the benefit of, at the
direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by
imprisonment in the county jail for up to one year or by one,
two, or three years in state prison.
5)Defines "pattern of criminal gang activity" as the commission
of two or more of enumerated offenses, provided at least one
of the offenses occurred after the effective date of the
statute and the last of the offenses occurred within three
years after a prior offense, and the offenses were committed
on separate occasions, or by two or more persons.
6)Requires any person who is convicted in criminal court or who
has a petition sustained in a juvenile court of one of the
specified criminal street gang offenses or enhancements to
register with the local Police Chief or Sheriff within 10 days
of release from custody or within 10 days of his or her
arrival in any city, county, or city and county to reside
there, whichever is first.
7)Provides that when a minor has been tried as an adult and
convicted in a criminal court or has had a petition sustained
in a juvenile court for any of the specified criminal street
gang offenses or enhancements, a law enforcement agency shall
notify the minor and his or her parent that the minor belongs
to a gang whose members engage in or have engaged in a pattern
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of criminal activity as described.
8)Requires the court, at the time of sentencing in adult court
or dispositional hearing in juvenile court, to inform any
person subject to registration detailed above of his or her
duty to register and requires that the parole or probation
officer assigned to that person to verify that the person has
complied with the registration requirements.
9)Provides that a public entity has a privilege to refuse to
disclose "official information," which is defined to mean
information acquired in confidence by a public employee in the
course of his or her duty and not open to the public prior to
when the privilege is claimed, and to prevent another from
disclosing official information, if the privilege is claimed
by a person authorized by the public entity to do so and
either of the following applies:
a) Disclosure is forbidden by an act of Congress or a
California statute; or,
b) Disclosure is against public interest because there is a
necessity for preserving the confidentiality of the
information that outweighs the necessity for disclosure in
the interest of justice, except as specified.
10)Provides that a public entity has a privilege to refuse to
disclose the identity of a person who has furnished
information to specified individuals purporting to disclose a
violation of California or U.S. law or of a California public
entity, and to prevent another from disclosing such identity,
if the privilege is claimed by a person authorized by the
public entity to do so and either of the following applies:
a) Disclosure is forbidden by an act of Congress or
California statute; or,
b) Disclosure of the informant's identity is against public
interest because there is a necessity for preserving his or
her confidentiality that outweighs the necessity for
disclosure in the interest of justice, except as specified.
11)Provides that, except as specified, the California Public
Records Act shall not be construed to require disclosure of
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certain specified records.
FISCAL EFFECT : None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : According to the author, "Senate Bill 458 will
require local law enforcement departments to notify minors when
they are added to the CalGang Database, and also require that
their parents/guardians be notified.
"Information for the CalGang Database is primarily collected
through routine police stops - on the street, in schools and
traffic stops. Police gather information through a field
interview - often collected on an FI card - Field Information or
Field Interview card.
"Most people are added to the CalGang Database without having
been arrested or accused of a crime. They can also be added
without any real verification or confirmation of their
membership or affiliation in a gang.
"Minors can be included in this data base without any knowledge
of the parents. There are youth as young as ten years old on
the CalGang database.
"Of the 201,094 Californians included in the CalGang database,
nearly 20% are African-American and 66% are Latino. Since only
6.6% of Californians are African-Americans, and just 38.1% are
Latino, this represents an alarming racial disparity.
"Parents are not told of this nor do they have the ability to
find out if their child [is on the database] or to present
evidence that there is an error or the person has reformed. We
notify parents for all kinds of events related to their children
but not in this context. SB 458 will make modest common sense
changes to help police by involving parents and giving them the
information they need."
Application of Shared Gang Databases : Today, the CalGang system
is accessed by over 6,000 law enforcement officers in 58
counties. The database tracks 200 data fields including name,
address, physical information, social security number, and
racial makeup and records all encounters police have with the
individual. (Stacey Leyton, The New Blacklists: The Threat to
Civil Liberties Posed by Gang Databases, p. 113.) CalGang is a
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web-based intranet system accessible by police departments by
way of computer, telephone, and web browser that allows law
enforcement to check an individual's record in real time.
(Ibid.) For example, qualified law enforcement personnel may
sign on to the CalGang database from a laptop in their patrol
car and locate a source document regarding a specific individual
about whom law enforcement seeks information.
Concerns have been raised regarding the secrecy of the CalGang
database and the accuracy of records entered into CalGang. For
example, in 1999, then-Attorney General Bill Lockyer described
the database as "mix[ing] verified criminal history and gang
affiliations with unverified intelligence and hearsay evidence,
including reports on persons who have committed no crime."
(Leyton, supra, at 115, citing Bill Lockyer, Letters to the
Editor: Lockyer Responds, S.F. Chronicle, Aug. 5, 1999
.) "This database," he went on "cannot
and should not be used, in California or elsewhere, to decide
whether or not a person is dangerous or should be detained."
(Ibid.) Moreover, with 201,094 people currently listed on
CalGang, community groups have expressed concern about
transparency, accountability, notification, release of
information to policy makers and the public, and independent
evaluations regarding the effectiveness of such shared databases
in reducing crime. (See Ana Muniz and Kim McGill, Tracked and
Trapped: Youth of Color, Gang Databases and Gang Injunctions,
Youth Justice Coalition, Dec. 2012
.)
Youth Justice Coalition states that CalGang "dramatically
expands the criminalization of individuals and communities"
noting that the database is used routinely to determine who
should be served with civil gang injunctions, given gang
enhancements during sentencing and targeted for saturation
policing. With no notification system, community members say,
CalGang has become a "secret surveillance tool," for monitoring
children. This system dramatically impacts the way those
children are seen and treated by law enforcement without
notifying families who may wish to intervene, move to a new
neighborhood or place their child into an intervention program.
(Id.) Although the exact number of minors designated is
unknown, approximately 10% of those listed on the CalGang
database are 19 years of age or younger. (Id.)
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Law enforcement representatives, however, have emphasized that
any records which are not modified by the addition of new
criteria for five years will be purged. Thus, a person need
only avoid gang-qualifying criteria for five years to ensure
that he or she will be stricken from the database.
However, as a practical matter, it may be difficult for a minor
living in a gang-heavy community to avoid qualifying criteria
when the list of behaviors includes items such as "is in a
photograph with known gang members," "name is on a gang
document, hit list or gang-related graffiti" or "corresponds
with known gang members or writes and/or receives
correspondence." In a media-heavy environment, replete with
camera phones and social network comments, it may be challenging
for a teenager aware of the exact parameters to avoid such
criteria, let alone a teenager unaware if he or she is being
held to such standards.
Required Parental Notification of a Minor's Duty to Register as
a Gang Member : Under existing law, if a minor is convicted when
tried as an adult, or has had a petition sustained in a juvenile
court, his or her parent or guardian must be notified of a
requirement to register with a local sheriff's office upon
release from custody or moving to a new city or county. (Penal
Code Section 186.32(a)(1)(B).) When a minor is designated in
the CalGang database as a suspected gang member, associate, or
affiliate, parents are not notified, however. Although a
conviction or declaration of wardship is not required for a
minor to be placed in the CalGang database, serious consequences
to the minor can flow from that action.
This bill requires a local law enforcement agency to notify any
person under 18 years of age and his or her parent or guardian
of the minor's designation in a shared gang database and the
basis for the designation before the minor is designated as a
suspected gang member, associate or affiliate in a shared gang
database, regardless of conviction status.
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
FN: 0002541
SB 458
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