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.
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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
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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
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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
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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
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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."
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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
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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 >.)
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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/ >.)
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(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 >.)
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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
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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."
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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
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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
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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