BILL ANALYSIS Ó AB 829 Page A Date of Hearing: April 14, 2015 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 829 (Nazarian) - As Amended March 26, 2015 SUMMARY: Outlines procedural due process rights for persons designated for inclusion in a shared gang database. Specifically, this bill: 1)Require a local law enforcement agency to provide written notice to a person, or if the person is under 18 years of age, his or her parent or guardian, prior to making the gang designation. 2)Authorizes a person or his or her parent or guardian, as applicable, to request information regarding the status of the person in a shared gang database, and would require the law enforcement agency to provide that information, subject to specified exceptions. 3)Provides that a person, or his or her parent or guardian, as applicable, may contest a gang designation and request removal of information from the database in writing, on the ground that the person is not and has never been a gang member, associate, or affiliate. AB 829 Page B 4)Authorizes a person whose written request for removal is denied to appeal the decision at an administrative hearing conducted by a hearing officer, as specified. 5)Permits a person to request a review of an unfavorable decision of the hearing officer, and would authorize that person to commence an action to seek review of an unfavorable decision after review by a court of competent jurisdiction, as specified. 6)Requires a local law enforcement agency remove a person designated in a shared gang database based on specified criteria, or if the designation is successfully contested, and to notify the person and his or her parent or guardian, as applicable, upon removal. The grounds for removal are the following: a) The person is designated in the shared gang database, but has not been arrested, charged with, or convicted of a crime in the five-year period after initial entry in the database; b) The person is designated in the database, and was subsequently arrested for, but not charged with or convicted of, a crime in the five-year period after the date of arrest; c) The person is designated in the database as the result of an arrest, but was not charged with or convicted of a crime in the five-year period after the date of the arrest; or d) The person is designated in the database and is subsequently arrested and charged with a crime, but is not convicted of a crime within the five-year period after the date of the arrest. 7)States that a law enforcement agency shall remove or cause to be removed a person who is designated as a suspected gang AB 829 Page C member, associate, or affiliate, and who is subsequently arrested for, charged with, and convicted of a crime, if the person successfully completes his or her probation or parole and more than five years have passed since the date of the last modification to his or her entry in the database. 8)Requires the Department of Justice (DOJ) annually report specified information relating to requests for removal and removal of persons from the CalGang shared gang database system. The report shall include: a) The number of persons added to the CalGang system during the immediately preceding 12 months; b) The number of requests for removal of a person from the CalGang system received during the immediately preceding 12 months; c) The number of approved requests for removal from the CalGang system during the preceding 12 months; and d) The number of automatic removals from the CalGang system during the preceding 12 months. 9)Prohibits the Victims Compensation and Government Claims Board from denying an application for compensation on the basis of the applicant's membership in, association with, or affiliation with, a gang, or on the basis of the applicant's designation as a suspected gang member, associate, or affiliate in a shared gang database, as defined. EXISTING LAW: 1)Defines a "criminal street gang" as any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more enumerated offenses, having a common name or identifying sign or symbol, and whose members individually or collectively AB 829 Page D engage in a pattern of criminal gang activity. (Pen. Code, § 186.22, subd. (f).) 2)Provides that any person who actively participates in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who promotes, furthers, or assists in any felonious conduct by members of the gang is guilty of an alternate felony-misdemeanor. (Pen. Code, § 186.22, subd. (a).) 3)Provides that any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall receive a sentence enhancement, as specified. (Pen. Code, § 186.22, subd. (b).) 4)Provides that any person who is convicted of either a felony or misdemeanor that is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail for up to one year or by 1, 2, or 3 years in state prison. (Pen. Code, § 186.22, subd. (d).) 5)Defines "pattern of criminal gang activity" as the commission of two or more of enumerated offenses, provided at least one of the offenses occurred after the effective date of the statute and the last of the offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. (Pen. Code, § 186.22, subd. (e).) 6)Requires any person who is convicted in criminal court or who has a petition sustained in a juvenile court of one of the specified criminal street gang offenses or enhancements to register with the local Police Chief or Sheriff within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside AB 829 Page E there, whichever is first. (Pen. Code, § 186.30, subds. (a) & (b).) 7)Provides that when a minor has been tried as an adult and convicted in a criminal court or has had a petition sustained in a juvenile court for any of the specified criminal street gang offenses or enhancements, a law enforcement agency shall notify the minor and his or her parent that the minor belongs to a gang whose members engage in or have engaged in a pattern of criminal activity as described. (Pen. Code, § 186.32 (a)(1)(B).) 8)Requires the court, at the time of sentencing in adult court or dispositional hearing in juvenile court, to inform any person subject to registration detailed above of his or her duty to register and requires that the parole or probation officer assigned to that person to verify that the person has complied with the registration requirements. (Pen. Code, § 186.31.) 9)Requires local law enforcement to notify a minor and his or her parent or guardian before designating that minor as a gang member, associate, or affiliate in a shared gang database and the basis for the designation. (Pen. Code § 186.34.) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Since the mid-1980s, law enforcement agencies, throughout California, have increasingly engaged in the collection of personal information to label and track people, overwhelmingly youth and young adults of color, as 'gang members.' This process lacks oversight and transparency. The policies and procedures governing the CalGang Database and other local databases are not clear, not consistent in their application, not widely shared, and not standardized across law enforcement AB 829 Page F departments and jurisdictions. AB 829 sheds light on the process of including individuals in gang databases. This bill does not prohibit nor limit law enforcement's use of a gang database. This bill simply ensures individuals are notifying and given the opportunity to clear their name. "Once information is captured by local law enforcement and entered onto either local and/or the statewide CalGang database, a person is considered to be 'known as an active gang member.' Since the databases are used as an internal surveillance tool, information about who is in the database is not shared. Persons under the age of 18 and their parents only won the right to notification, appeal, and removal with SB 458, Chapter 797, Statute of 2013. However, individuals over the age of 17 who are added to CalGang, and individuals of any age, including minors, who are added to other gang databases have no legal right to be notified, and have no opportunity to appeal their designation. "AB 829 sheds light on the process of including individuals in gang databases. This does not prohibit nor limit law enforcement's use of a gang database. This bill simply conforms to the due process afforded, to individuals, by the 14th and 5th Amendments by notifying and granting individuals the opportunity to clear their name. "Placement in a gang database can have drastic immigration consequences, including limiting a person's ability to adjust immigration status for residency or citizenship. Specifically, when applying for DACA and the newly created DAPA program. Additionally, those in a gang databases face obstacles obtaining employment and social service benefits. One example of this occurs when a person is a victim of a crime such as robbery, sexual assault, child abuse and domestic violence. The victim would likely be denied the ability to access California's Victim Compensation Program because of their inclusion in the gang database, keeping them from getting the care they need." AB 829 Page G 2)General Effects of this Bill are to Include Due Process Rights for those Designated: In general this bill will do the following things as applied to persons who are being added to a CalGang database: a) This bill will provide written notice, to people who are being designated and added to a CalGang database. Under existing law, the notification is only provided to minors. b) This bill permits persons to request information regarding their status, or the status of their dependents, subject to specified public safety exceptions. c) This bill authorizes people to submit written requests for removal from a gang database. d) This bill permits a person to request administrative review of a denied request, and an appeal to a court of competent jurisdiction. e) This bill outlines the process for grounds for removal from a gang database. f) This bill requires that DOJ conduct an annual report on specified statistics related to who is included in gang databases, numbers or requests for removal, and statistics related to those removed. g) This bill additionally specifies that the Victims Compensation and Government Claims Board cannot deny an application on the basis of the person being included on a gang database. 3)History of Shared Gang Databases: In 1987, the Los Angeles County Sheriff's Department developed the Gang Reporting, Evaluation and Tracking System (GREAT), the nation's first gang database. "Before GREAT existed, police departments collected information on gang members in locally maintained AB 829 Page H files, but could not access information that had been collected by other law enforcement agencies." (Stacey Leyton, The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases (a chapter in Crime Control and Social Justice: The Delicate Balance, edited by Darnell F. Hawkins, Samuel L. Myers Jr. and Randolph N. Stone, Westport, CT, 2003. The African American Experience, Greenwood Publishing Group, Mar. 27, 2013.<1> Using GREAT, local law enforcement could collect, store, centralize, analyze, and disperse information about alleged gang members. In 1988, the Legislature passed the Street Terrorism Enforcement and Prevention (STEP) Act, asserting California to be "in a state of crisis? caused by violent street gangs whose members threaten, terrorize and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Penal Code Section 186.21 (1988).) The STEP Act established the nation's first definitions of "criminal street gang," "pattern of criminal gang activity," and codified penalties for participation in a criminal street gang. In 1997, less than a decade after the regional GREAT database was first created, the regional GREAT databases were integrated into a new unified statewide database, CalGang, with the goals of making the database easier to use and less expensive to access.<2> CalGang operates pursuant to the 1968 Omnibus Crime Control and Safe Streets Act, which requires -------------------------- <1> < http://testaae.greenwood.com/doc_print.aspx?fileID=GM0790E&chapt erID=GM0790E-643&path=chunkbook >, citing GREAT System Overview, The Eighth Annual Organized Crime and Criminal Intelligence Training Conference, August 23-26, 1994.) <2> (Leyton, supra, at 113, citing Patrick Thibodeau, Cops Wield Database in War on Street Gangs, Computerworld, Sept. 1, 1997, at 4; and Ray Dassault, GangNet: A New Tool in the War on Gangs, California Computer News, January 1997 < http://www.govtech.com/magazines/gt/GangNet-A-New-Tool-in-the.ht ml?page=3 >.) AB 829 Page I that "all criminal intelligence systems ? are utilized in conformance with the privacy and constitutional rights of individuals."<3> 4)Required Parental Notification of a Minor's Duty to Register as a Gang Member: Prior to 2013, if a minor is convicted when tried as an adult, or had a petition sustained in a juvenile court, his or her parent or guardian was required to be notified of a requirement to register with a local sheriff's office upon release from custody or moving to a new city or county. (Pen. Code, § 186.32, subd. (a)(1)(B).) Parents were notified when a minor was designated in the CalGang database as a suspected gang member, associate, or affiliate. Although a conviction or declaration of wardship was not required for a minor to be placed in the CalGang database, serious consequences to the minor could flow from that action. AB 458 (Wright), Chapter 797, Statutes of 2013 required a local law enforcement agency to notify any person under 18 years of age and his or her parent or guardian of the minor's designation in a shared gang database and the basis for the designation before the minor was designated as a suspected gang member, associate or affiliate in a shared gang database, regardless of conviction status. 5)Application of Shared Gang Databases: Today, the CalGang system is accessed by over 6,000 law enforcement officers in 58 counties. The database tracks 200 data fields including name, address, physical information, social security number, and racial makeup and records all encounters police have with the individual. (Leyton, supra, at 113.) CalGang is a web-based intranet system accessible by police departments by way of computer, telephone, and web browser that allows law enforcement to check an individual's record in real time. --------------------------- <3> (Criminal Intelligence Systems, Operating Policies, 28 CFR Part 23, < http://www.iir.com/28CFR_Program/28CFR_Resources/ExecOrder12291_ 28CFRPart23.pdf/ >.) AB 829 Page J (Ibid.) For example, qualified law enforcement personnel may sign on to the CalGang database from a laptop in their patrol car and locate a source document regarding a specific individual about whom law enforcement seeks information. Concerns have been raised regarding the secrecy of the CalGang database and the accuracy of records entered into CalGang. For example, in 1999, then-Attorney General Bill Lockyer described the database as "mix[ing] verified criminal history and gang affiliations with unverified intelligence and hearsay evidence, including reports on persons who have committed no crime." "This database," he went on "cannot and should not be used, in California or elsewhere, to decide whether or not a person is dangerous or should be detained." (Ibid.) Moreover, with 201,094 people currently listed on CalGang, community groups have expressed concern about transparency, accountability, notification, release of information to policy makers and the public, and independent evaluations regarding the effectiveness of such shared databases in reducing crime.<4> Youth Justice Coalition states that CalGang "dramatically expands the criminalization of individuals and communities" noting that the database is used routinely to determine who should be served with civil gang injunctions, given gang enhancements during sentencing and targeted for saturation policing. With no notification system, community members say, CalGang has become a "secret surveillance tool," for monitoring children. This system dramatically impacts the way those children are seen and treated by law enforcement without notifying families who may wish to intervene, move to a new neighborhood or place their child into an intervention program. (Id.) Although the exact number of minors -------------------------- <4> (See Ana Muniz and Kim McGill, Tracked and Trapped: Youth of Color, Gang Databases and Gang Injunctions, Youth Justice Coalition, Dec. 2012 < http://www.youth4justice.org/wp-content/uploads/2012/12/Trackeda ndTrapped.pdf >.) AB 829 Page K designated is unknown, approximately 10% of those listed on the CalGang database are 19 years of age or younger. (Id.) Law enforcement representatives, however, have emphasized that any records which are not modified by the addition of new criteria for five years will be purged. Thus, a person need only avoid gang-qualifying criteria for five years to ensure that he or she will be stricken from the database. However, as a practical matter, it may be difficult for a minor living in a gang-heavy community to avoid qualifying criteria when the list of behaviors includes items such as "is in a photograph with known gang members," "name is on a gang document, hit list or gang-related graffiti" or "corresponds with known gang members or writes and/or receives correspondence." In a media-heavy environment, replete with camera phones and social network comments, it may be challenging for a teenager aware of the exact parameters to avoid such criteria, let alone a teenager unaware of he or she is being held to such standards. 6)Argument in Support: According to Asian Americans Advancing Justice, "Asian Law Caucus (AAAJ-ALC) strongly supports AB 829, which sheds light on the process of including individuals in gang databases. This bill does not prohibit nor limit law enforcement's use of a gang database. We thank you for introducing this proposal. The mission of AAAJ-ALC is to promote, advance, and represent the legal and civil rights of Asian and Pacific Islander communities. Recognizing that social, economic, political and racial inequalities continue to exist in the United States, AAAJ-ALC is committed to the pursuit of equality and justice for all sectors of our society with a specific focus directed toward addressing the needs of low-income, immigrant, and underserved APIs. "Since the mid-1980s, law enforcement agencies throughout AB 829 Page L California have increasingly engaged in the collection of personal information to label and track people - overwhelmingly youth and young adults of color - as 'gang members.' This process lacks oversight and transparency. AB 829 is a follow-up to SB 458, Chapter 797, Statute of 2013, which required law enforcement to notify persons under the age of 18 and their parents if the minor was included in the CalGang database. SB 458 also provides for the right to appeal and to remove a name from CalGang. However, people over the age of 17 who are added to CalGang, and individuals of any age, including minors, who are added to local gang databases have no legal right to be notified, and have no opportunity to appeal their designation. "Specifically, AB 829 accomplishes the following: Requires that all persons entered into the gang database be notified of their inclusion in the database. Allows individuals the opportunity to contest their inclusion in the database. Requires the notification to specify the petition process to remove the name of the individual, if he or she feels they have been wrongly identified. Requires law enforcement agencies to respond to all petitions within 60 days. Requires the state to report, by county, on the number of names added to the gang database each year, how many requests to remove were received and how many requests were approved. "AB 829 grants individuals the basic fundamental right to clear their name. Placement in a gang database can have drastic immigration consequences, including limiting a person's ability to adjust immigration status for residency or citizenship; can eliminate a person's and even their family's access to public housing and Section 8; can limit access to employment and educational opportunities; and can lead to increased penalties, such as gang enhancements in court." AB 829 Page M 1)Argument in Opposition: According to the California District Attorneys Association, "This bill would create a notification process for anyone whose name is placed in a law enforcement shared gang database, as well as three opportunities for appeal, during which law enforcement agencies would be required to share sensitive information with the suspected gang member. "Under AB 829, once a suspected gang member is notified of his or her placement in a shared gang database, they can contest the designation (new PC 186.44). If the law enforcement agency denies that request, they must state the reasons for the suspect's inclusion in the database. This is tantamount to allowing a suspect to view sensitive intelligence that the law enforcement agency has collected. The subject would then be able to request an administrative hearing (new PC 186.460), which the law enforcement agency would be required to grant. During that hearing (which would be considerably delayed in light of the two continuances that the agency would be required to grant), the suspect may subpoena officers, documents, and other sensitive information. If the hearing officer finds that the suspect should not be removed from the database, the suspect may request another review of that decision (new PC 186.472), which the law enforcement agency is again required to grant. "In addition to the policy concerns that AB 829 raises, the cost of preparing and staffing these hearings would be overwhelming. ""It's hard to imagine any other instance in which we would let a suspect, during an investigation, invade police deliberations with a hearing (or, in this case, three) on whether he or she should continue to be a suspect." 2)Prior Legislation: a) SB 458 (Wright), Chapter 797, Statutes of 2013, required local law enforcement to notify a minor and his or her AB 829 Page N 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. b) AB 177 (Mendoza), Chapter 258, Statutes of 2011, expanded the authority of the juvenile court to order the parent or guardian of a minor to attend anti-gang violence parenting classes. c) SB 296 (Wright), of the 2011-12 Legislative Session, would have created a process whereby a person subject to a gang injunction could petition for injunctive relief if the person met certain criteria. SB 296 was vetoed by the Governor. d) AB 1392 (Tran), of the 2009-10 Legislative Session, would have established the Graffiti and Gang Technology Fund, in which vandalism fines were to be deposited, to be continuously appropriated to the Department of Justice exclusively for the costs of technological advancements for law enforcement in the identification and apprehension of vandals and gang members, as specified. AB 1392 was held on the suspense file of the Assembly Committee on Appropriations. e) AB 1291 (Mendoza), Chapter 457, Statutes of 2007, authorized anti-gang violence classes for parents of juveniles found in violation of specified gang-related offenses. f) AB 1630 (Runner), of the 2007-08 Legislative Session, would have required those who are convicted of a street gang crime and to annually register and re-register upon changing his or her residence. AB 1630 failed passage in this committee. g) AB 2562 (Fuller), of the 2007-08 Legislative Session, would have increased the penalty from a misdemeanor to a felony punishable by 16 months or two or three years in the AB 829 Page O state prison for failing to register as a member of a criminal street gang under specified circumstances. AB 2562 failed passage in this committee. REGISTERED SUPPORT / OPPOSITION: Support American Civil Liberties Union Asian Americans Advancing Justice California Attorneys for Criminal Justice California Immigrant Policy Center California Public Defenders Association Immigrant Legal Resource Center Immigrant Youth Coalition Korean Resource Center Legal Services for Prisoners with Children National Day Laborer Organizing Network National Immigration Law Center Native Hawaiian and Pacific Islander Alliance Youth Justice Coalition Opposition California District Attorneys Association Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744