BILL ANALYSIS Ó
AB 829
Page 1
Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 829
(Nazarian) - As Amended March 26, 2015
SUBJECT: GANGS: SHARED GANG DATABASES
KEY ISSUE: SHOULD LAW ENFORCEMENT AGENCIES BE REQUIRED TO
NOTIFY AN ADULT WHOSE NAME IS ADDED TO OR DELETED FROM A SHARED
GANG DATABASE AND SHOULD THERE BE A HEARING PROCESS FOR
INDIVIDUALS WHO ARE DENIED A REQUEST TO HAVE THEIR NAMES REMOVED
FROM THE DATABASE?
SYNOPSIS
Under existing law, law enforcement agencies may collect
personal information and photographs of individuals and enter
them into a shared gang database used statewide by law
enforcement agencies. The largest shared gang database is
CalGang and those persons entered in the system are designated
as "gang members," although those individuals may have had no
contact with law enforcement. A person may be entered in the
database based on the pure suspicion of being a gang member,
being associated with a gang or gang member, or being affiliated
with a gang or gang member. Once a person is in the database,
the procedure for getting out of the database is almost
impossible. There is no standard procedural process for redress
if a person discovers that he or she is in the database,
requests to be removed from the database and the request is
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denied. This bill is a follow up to SB 458 (Wright) that was
chaptered in 2013 and required law enforcement to notify minors
and their parents if a minor was included in the CalGang
database. SB 458 also provided for the right to contest
inclusion in the database and to request the removal of a name
from the CalGang database, but the bill's provisions only
applied to minors. This bill expands those provisions to cover
all persons and seeks to establish a standard procedure for
individuals in a shared gang database to object to the inclusion
of their names in the database. It requires that persons
entered in a gang database be notified of their inclusion in the
database and be given the opportunity to contest that inclusion.
The notification must specify the petition process to remove
the name of the individual and requires law enforcement to
respond to a person's petition for removal within 60 days.
According to the sponsor of the bill, the Coalition for Humane
Immigrant Rights of Los Angeles, immigrants often have no
knowledge that they are in a gang database and only discover
they are listed when they attempt to apply for the Deferred
Action for Childhood Arrivals (DACA) or Deferred Action for
Parents of Americans and Lawful Permanent Residents (DAPA)
programs. By the time an immigrant realizes this designation
has been applied and he or she is entered in the database as a
"gang member," the designation may have already caused the
person to be flagged by Immigration and Customs Enforcement
(ICE) for priority deportation. This bill does not prohibit or
limit law enforcement's use of gang databases. It does,
however, grant individuals the basic right to clear their name
if they are eligible. This bill is supported by numerous civil
rights groups, immigration advocate organizations, defense
attorneys and youth justice organizations who believe that gang
databases and law enforcement agencies make it difficult for
individuals to clear their names. Meanwhile, statewide law
enforcement agencies oppose, arguing that this bill is an
unnecessary and costly intrusion into the investigative process
that could compromise gang intelligence operations. This bill
passed the Assembly Committee on Public Safety on a 5-2 vote.
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SUMMARY: Adds additional due process and removal procedures for
individuals whose names are entered in law enforcement gang
databases. Specifically, this bill:
1)Requires law enforcement agencies to provide written notice to
an individual, or to the parent or guardian of a minor, prior
to designating or submitting documentation to the Attorney
General's office to designate a person as a gang member,
associate, or affiliate in a shared gang database.
2)Authorizes an individual, or the parent or guardian of a
minor, to request information regarding the status of the
person in a shared gang database, and requires the law
enforcement agency to provide that information.
3)Authorizes an individual, or the parent or guardian of a
minor, to contest the designation of being connected with a
gang and to request the removal of gang designation
information from the database in writing, on the ground that
the person is not and has never been a gang member, associate,
or affiliate.
4)Authorizes an individual whose written request for removal is
denied to appeal the decision in an administrative hearing
conducted by a hearing officer within a law enforcement
agency.
5)Authorizes an individual to request a review of an unfavorable
decision of the hearing officer by an additional member of the
law enforcement agency, and allows the person to commence an
action to seek review of an unfavorable decision in a court of
competent jurisdiction.
6)Requires a local law enforcement agency to remove, or cause to
be removed, a person designated in a shared gang database
based on specified criteria or if the designation is
successfully contested, and to notify the individual, or the
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parent or guardian of a minor, upon removal.
7)Requires the Department of Justice to annually report to the
CalGang Executive Board and the Legislature specified
information related to requests for removal and removal of
persons from the CalGang shared gang database system. The
report must 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.
8)Prohibits the California Victim 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, of
affiliate 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. (Penal Code
Section 186.22(f). All further statutory references are to
the Penal Code, unless otherwise indicated. )
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2)Defines "pattern of criminal gang activity" as the commission
of two or more of enumerated offenses, as specified, and the
offenses were committed on separate occasions, or by two or
more persons. (Section 186.22(e).)
3)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. A minor, or his or her parent
or guardian has the right to contest the inclusion in a
database by submitting written documentation and the law
enforcement agency has 60 days to provide the minor and their
parent or guardian with written verification of the agency's
decision. (Section 186.34(b)-(c).)
4)Requires any person convicted in a criminal court or who is
the subject of 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. (Section
186.30(a) & (b).)
5)Provides that when a minor has been tried as an adult and
convicted in a criminal court or has had been the subject of a
petition sustained in a juvenile court for any of the
specified criminal street gang offenses or enhancements, a law
enforcement agency will 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.
(Section 186.32(a)(1)(B).)
6)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. (Section
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186.31.)
7)Provides that an individual's application for eligibility of
compensation from the Restitution Fund of the California
Victim Compensation and Government Claims Board will be denied
if the boards finds, among other things that the victim or
derivative victim: 1) knowingly and willingly participated in
the commission of the crime that resulted in the pecuniary
loss for which compensation is being sought; or 2) failed to
cooperate with law enforcement in the apprehension or
conviction of a criminal committing the crime; or 3) was
involved in events that lead to the crime, injury or death
that gives rise to the application. (Government Code Section
13956.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Gang databases, as defined in Penal Code Section
186.34, are the collection of gang intelligence information
collected by various law enforcement agencies and deposited in
one central computerized location. The information deposited
into a database is collected through various sources, such as
field interviews, officer observations, informants, and
questioning of suspects and other people. The database helps
law enforcement agencies identify active gangs and gang members
in various communities. The goal of a database is to assist law
enforcement efforts in suppression of gang activities and for
investigative purposes and strategies.
Shared gang databases are databases with collected information
regarding gangs and gang members shared among law enforcement
agencies. Because the information in the database is considered
protected and confidential, it is only accessible by law
enforcement personnel, including federal and immigration
officials. ( https://www.nationalgangcenter.gov )
In support of the bill, the author states:
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.
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 laws enforcement departments and jurisdictions. AB
829 sheds light on 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 notifi[ed] and given the opportunity to
clear their name.
Background of Shared Databases. Database and intelligence
systems to track gang members have existed in many cities since
the mid-1980s. Systems range from localized databases
maintained by individual or metropolitan law enforcement
agencies to statewide systems (such as the California Department
of Justice's CalGang database) to national databases maintained
by the Regional Information Sharing Systems (RISS) Intelligence
Centers. There is also the National Crime Information Center
(NCIC) database. ( https://www.nationalgangcenter.gov )
According to an in depth report on shared gang databases
prepared by the Youth Justice Coalition's REALSEARCH Action
Research Center report titled, Tracked and Trapped- Youth of
Color, Gang Databases and Gang Injunctions, in 1987 the Law
Enforcement Communication Network and the Los Angeles County
Sheriff's Department developed a computerized database to
collect, store, and analyze personal information of alleged gang
members. By 1988, according to the report, Los Angeles County
officials worked to implement their gang policies statewide by
encouraging the state Legislature to pass the Street Terrorism
Enforcement and Prevention Act (the STEP Act) which is codified
in Section 186.20 of the Penal Code. The STEP Act is said to be
the first law in the country's history to define a gang. It
also enumerates a list of the crimes that constituted "gang
activity." The STEP Act provides serious penalties for
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participation in a gang (Section 186.22) and requires alleged
gang members to register with local law enforcement agencies
(Section 186.30). The STEP Act provided both funding and power
for Los Angeles County to expand its gang suppression efforts
which included enlarging the gang database to a statewide system
known as CalGang. The criteria for identifying a person as a
gang member are broad and involvement in criminal gang activity
is not a requirement. (Youth Justice Coalition, Tracked and
Trapped- Youth of Color, Gang Databases and Gang Injunctions,
December 2012.)
CalGang is the most commonly utilized gang database in the
state. According to the State Attorney General's website,
CalGang is funded by the state and is maintained and controlled
by local law enforcement. It has been in operation for over ten
years and it contains a collection of criminal intelligence
information from local, state, federal and Tribal law
enforcement agencies in the state. The system operates under
the United Federal Code of Regulations, title 28, section 23, as
a Criminal Intelligence System. It is classified by the State
Attorney General as a "wide area, low cost, easy to use,
securely networked, relational, intelligence database, targeting
specifically members of criminal street gangs, tracking their
descriptions, tattoos, criminal associates, locations, vehicles,
field investigations, criminal histories and activities."
CalGang is now accessed by over 6,000 law enforcement officers
in at least 58 counties. ( https://oag.ca.gov/calgang )
The Implementation and Impact of CalGang and Other Shared Gang
Databases. According to the Coalition's report, the information
in the CalGang database is entered in by "gang officers" that
receive training in use of the system. The report explains the
numerous ways information of alleged gang members in the
database is gathered. The report states that most people are
added to the database without ever having been arrested or
accused of criminal activity. This data is collected through
routine police stops or stop and frisk activities during which
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officers fill out Field Identification Cards (FI cards) and this
information is added to the CalGang database if there is a
suspicion that an individual is a gang member, may be associated
with a gang member or is affiliated with a gang member. FI
cards and accompanying photos also document clothing, tattoos,
scars, and suspected or admitted neighborhood ties. FI cards
are collected on children starting as early as their elementary
school years, with officers gathering nicknames, family members
and friends, and local hangouts that children in certain
communities frequently visit.
When criminals are sentenced for involvement in gang-related
crimes, they are ordered by the court to register as a gang
member with their local law enforcement agency, these
registrations are also added to the gang database. According to
the Coalition's report, CalGang also contains photographs taken
both with and without the knowledge of the person depicted,
obtained from mug shots, illegally taken by using long-range
photo lenses, photos from investigatory observations and other
means. Once information is entered in CalGang, that person
becomes identified as a gang member, gang associate or gang
affiliate. Many individuals identified in the CalGang database
are not aware that they have been identified and designated by
law enforcement as a gang member, associate or affiliate.
CalGang is accessible to law enforcement anywhere in the state
and can be accessed during traffic and investigatory stops of
individuals. Being a shared database it is also accessible by
the federal government, including Homeland Security. According
to the CalGang website, the database has been collecting
Criminal Intelligence Information from Local, State, Federal and
Tribal Law Enforcement Agencies in California.
( https://oag.ca.gov/calgang. )
Criminal Intelligence Systems. According to the United States
Code of Federal Regulations, title 28, section 23, a Criminal
Intelligence System is allowed to collect the names of
individuals or organizations not reasonably suspected of
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involvement in criminal activity, as "noncriminal identifying
information" if the information relates to the identification of
a criminal subject or criminal activity. The broad definition
of criminal activity allows the database to maintain identifying
information of many people, whether or not they have been
involved in gang activity. According to the Criminal
Intelligence Systems website, the stated qualifications limit
inclusion to "criminal activity that constitutes a significant
and recognized threat to the community. In general, 28 CFR Part
23 views such criminal activity to be multijurisdictional and/or
organized criminal activity that involves a significant degree
of permanent criminal organization or is undertaken for the
purpose of seeking illegal power or profits or poses a threat to
the life and property of citizens. This would normally not
include traffic or other misdemeanor violations."
(http://www.iir.com/Home/28CFR_Program/28CFR_FAQ/)
Due Process and the Actions of Law Enforcement Agencies. Due
Process Clauses of the U.S. Constitution serve as protections
from arbitrary denials of life, liberty, or property by the
government, absent law. The protections at risk regarding
shared gang databases are both procedural and substantive.
Procedural due process protects individuals from the coercive
power of the government, which is in this case law enforcement
agencies, by ensuring there are processes in place that allow a
fair and impartial adjudication of issues.
Article I of the State Constitution says a person may not be
deprived of life, liberty, or property without due process of
law or be denied equal protection of the laws. In the 9th
Circuit Court of Appeals case, Vasquez v. Rackauckas, the court
stated that this due process clause provides greater procedural
due process rights for private parties than does the federal
Constitution. The defendants-appellants had been dismissed from
a case to enforce a local gang injunction. The prosecution
proceeded in the case and secured a gang injunction. When the
injunction was being enforced, the police tried to apply the
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injunction to the two defendants who had been dismissed in the
case. The defendant-appellants appealed the injunction on the
basis that they were dismissed from the injunction case and were
never afforded a due process hearing regarding the injunction.
The court held that the defendant-appellants were entitled to a
due process hearing prior to being subjected to the injunction
order. (Vasquez v. Rackauckas, (2013) 734 F.3d 1025.)
The Existing Due Process Procedures Available In Existing Law
are Very Limited. Currently, only minors and their parent or
guardian, are allowed to be notified that the minor is being
entered in the system. Adults have been totally omitted from
the notification process even though they are affected by being
included in the database. According to the report by the
Coalition, these databases can be very harmful to anyone who is
categorized as being connected to a gang, even if no such
connection ever existed or they were part of a gang 20 years
ago. There is no way today for an adult to find out if they
have been "tagged" as a gang member by law enforcement and
entered into this system. Even if that adult could discover
that he or she were included in the database, there is no way
today to challenge that inclusion. Finding out that you are in
the system during contact with police or when you are applying
for college, places the individual in an unfair position and
there are not many opportunities for a person to refute the
designation. Furthermore, there must also be a process for
having a person's name removed from the system if the individual
is not connected with a gang. What happens to a person who has
a family member or relative who is associated with a gang? Is
that innocent person also entered into the database because they
qualify as an associate or an affiliate? Suppression of
criminal activity is the job of law enforcement and there are
many tools that they use to perform their jobs. However, the
use of these shared databases has to be reviewed to ensure that
their use doesn't destroy the constitutional rights of those who
have been entered.
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Requirements of This Bill. This bill requires that law
enforcement agencies provide written notice to a person or if a
minor, to the parent or guardian, prior to making a gang
designation. It also authorizes a person, or a parent or
guardian of a minor to request information regarding their
status in a shared gang database and requires a law enforcement
agency to provide this information upon receiving such a
request.
This bill allows a person, or the parent or guardian of a minor,
to contest a gang designation and to request to have the
designation removed from the database. If the request is
denied, this bill allows a person to appeal that decision though
an administrative hearing process. If the hearing results in an
unfavorable result, this bill allows for a review of the
administrative hearing results by a different law enforcement
officer. If the results are unfavorable, this bill authorizes
the person to seek a review of that decision by a court of
competent jurisdiction.
Besides the review and appeal processes outlined above, this
bill provides other avenues for securing removal from a gang
database. This bill requires local law enforcement to remove a
person designated in a shared gang database based upon the
criteria outlined below, or if the person has successfully
contested the designation. The law enforcement agency must
remove the individual from the database and must also notify the
person or if a minor, the parent or guardian upon removal from
the database.
The additional criteria this bill provides for removal are:
1) 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
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database;
2) 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 arrest;
3) 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 arrest; or
4) 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
arrest.
5) The bill's provisions for procedures to force removal
under specified conditions, will restore the liberty of a
person denied this constitutional right by being included
in a gang database.
DACA and DAPA Considerations. According to the sponsor of this
bill, the Coalition for Humane Immigrant Rights of Los Angeles
and an article by Haya El Nasser, Gang or No Gang, Many
Immigrants Legally Stymied by Injunctions, including immigrants
in a shared gang database is having harmful effects on those
seeking to apply for benefits under the most current federal
immigration programs, Deferred Action for Childhood Arrival
Deferred (DACA) and Deferred Action for Parents (DAPA).
According to the above sources, immigrants attempting to apply
for either of these programs, while being in a gang database,
can lead to being flagged by Immigration and Customs Enforcement
(ICE) as a priority for deportation. Since many people in these
databases are unaware of this gang designation status, they can
be sabotaged by the immigration programs' application process.
Even if the individual can escape being detained by ICE, their
inclusion in a gang database can lead to an elimination of the
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person and their family's access to public housing and the
Section 8 program; can limit access to employment and
educational opportunities; and can lead to increased penalties,
such as gang enhancements in court.
( http://america.aljazeera.com/articles/2015/1/2/immigrant-gang-co
nnection.html )
Eligibility for Restitution from California Victim Compensation
and Government Claims Board. This bill prohibits the board from
denying an applicant for recovery from the Board's restitution
fund based on two classifications: 1) membership in, association
with, or affiliation with a gang; or 2) designated as a
suspected gang member, associate, or affiliate in a shared gang
database. According to existing law, neither of these
classifications are a basis upon which the Board denies claims.
Further, the Board has explained that it does not deny
restitution to a person based on any gang association,
affiliation, or membership. A person connected to a gang is as
eligible for restitution as any other person who applies.
However if the person's gang connections have caused the harm
for which the applicant is seeking restitution, the Board will
deny restitution to the applicant as it would any applicant
involved in criminal activity that led to the harm he or she
suffered for which he or she is seeking restitution. Gang
members, affiliates, or associates and persons with such
designations in a shared gang database are not treated any
differently than a person who has no connections in a gang.
Additional Concerns. According to the Attorney's General's
CalGang website, the CalGang database is only accessible to
specifically trained law enforcement officers and support staff.
The site goes on to say that the release of CalGang criminal
intelligence information is on a "Right-to Know"(a law
enforcement officer) and "Need to Know"(legitimate law
enforcement purpose) basis only. So law enforcement agencies
exercise total control of the information that is entered into
these shared databases and they limit who may have access to the
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information contained in the database. This information
conflicts with the information contained in the Coalition's
report. According to the report by the Youth Justice
Coalition's REALSEARCH Action Research Center, the database
information is shared with all segments of law enforcement
including the federal government. If ICE, Section 8 and
educational institutions have access to the information
contained in the databases, it raises several questions and
concerns of whom else may have access and the ability to use
this information.
ARGUMENTS IN SUPPORT: This bill enjoys support from a wide
range of groups, including human rights organizations,
immigration advocates, civil rights organizations and defense
attorneys. According to the American Civil Liberties Union of
California:
There are currently more than 200,000 individuals
classified as gang members on the CalGang statewide
database. Significant privacy issues are implicated by the
use and creation of government databases such as CalGang,
which includes individuals who have neither been arrested
nor convicted of any crime and who may not even be
suspected of engaging in criminal activity. AB 829
follows-up on legislation enacted in 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 and provided a right to appeal and to remove a
name from CalGang. AB 829 provides similar protections
regardless of the age of the person. It is crucial that
prior to inclusion in these databases that all persons be
notified and granted the opportunity to contest or appeal
the gang designation. These basic due process protections
will enhance the reliability and utility of the information
in the system.
ARGUMENTS IN OPPOSITION: Opponents of the bill include local
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and state law enforcement agencies. The Los Angeles Deputy
Sheriffs, among others, writes:
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. If the law enforcement agency
denies the 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 suspect would
then be able to request an administrative hearing, which
the law enforcement agency would be required to grant.
During that hearing (which could 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, which the law enforcement agency is again
required to grant.
Previous Legislation. SB 458 (Wright), Chapter 797, Statutes
2013, required local law enforcement to notify a minor and his
or her parent or guardian before designating that minor as a
gang member, associate, or affiliate in a shared gang database
and the basis for the designation.
SB 296 (Wright), 2011, created a process whereby a person
subject to a gang injunction could petition for injunctive
relief if the person met certain criteria. SB 296 was vetoed by
the Governor.
AB 2562 (Fuller), 2008, increased the penalty from a misdemeanor
to a felony punishable in the state prison for failing to
register as a member of a criminal street gang under specified
circumstances. AB 2562 failed in Assembly Public Safety
Committee.
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AB 1630 (Runner), 2007, required those who are convicted of a
street gang crime to annually register and re-register upon
changing his or her residence. AB 1630 failed in Assembly
Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Coalition for Humane Immigrant Rights of Los Angeles
(co-sponsor)
Youth Justice Coalition (co-sponsor)
American Civil Liberties Union of California
API Equality-LA
Asian American Advancing Justice-Los Angeles
California Immigrant Policy Center
California Public Defenders Association
Immigrant Legal Resource Center
Immigrant Youth Coalition
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Korean Resource Center
Legal Services for Prisoners with Children
Los Angeles Center for Law and Justice
National Day Laborer Organizing Network
National Immigration Law Center
Native Hawaiian & Pacific Islander Alliance
Public Counsel
Opposition
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College & University Police Chiefs Association
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California Correctional Supervisors Organization
California District Attorneys Association
California Narcotic Officers Association
California State Sheriffs' Association
Los Angeles Police Protective League
Riverside Sheriffs Association
San Bernardino County Sheriff's Department
Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334