BILL ANALYSIS Ó
AB 2298
Page A
Date of Hearing: April 12, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2298 (Weber) - As Amended April 6, 2016
SUMMARY: Imposes specified due process rights on California
Shared Gang Databases. Specifically, this bill:
1)Expands the notice requirement given to minors to include
adults, by requiring notice be provided to an adult before
designating a person as a suspected gang member, associate, or
affiliate in the database.
2)Requires databases comply with federal requirements regarding
the privacy and accuracy of information in the database, and
other operating principles for maintaining these databases.
3)Requires local law enforcement, commencing December 1, 2017,
and every December 1st thereafter to submit specified data
pertaining to the database to the Department of Justice, and
would require the Department of Justice, commencing January 1,
2018, and every January 1st thereafter, to submit a report
containing that information to the CalGang Executive Board and
to the Legislature.
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4)Requires that a person designated as a suspected gang member,
associate, or affiliate in a shared gang database who has not
been convicted of a violation of gang-related crimes, as
specified, within three years of the initial designation be
removed from the database.
5)Establishes a procedure for a person designated in a shared
gang database to challenge that designation through an
administrative hearing and appeal to the superior court as
follows:
a) Provides that a person who is listed by a law
enforcement agency in a shared gang database as a gang
member, suspected gang member, associate, or affiliate may
contest that designation pursuant to this section. The
person may contest the designation initially pursuant to
this section or a denial as specified.
b) States that the person may request an administrative
hearing to review the designation decision.
c) Provides that an administrative hearing shall be held
within 90 calendar days following the receipt of a request
for an administrative hearing. The person requesting the
hearing may request one continuance, not to exceed 21
calendar days.
d) States that the administrative hearing shall be
conducted in accordance with written procedures established
by the agency. The hearing shall provide an independent,
objective, fair, and impartial review of a contested
designation.
e) Provides that the agency shall appoint or contract with
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qualified examiners or administrative hearing providers
that employ qualified examiners to conduct the
administrative hearings. Examiners shall demonstrate those
qualifications, training, and objectivity necessary to
conduct a fair and impartial review.
f) States that the examiner's decision following the
administrative hearing may be personally delivered to the
person by the examiner or sent by first-class mail, and, if
the designation is not canceled, shall include a written
reason for that denial.
g) Provides that within 30 calendar days after the mailing
or personal delivery of the examiner's decision, the person
may seek review by filing an appeal to be heard by the
superior court where the appeal shall be heard de novo. A
copy of the notice of appeal shall be served in person or
by first-class mail upon the agency by the person.
h) Provides that the law enforcement agency has the burden
of demonstrating active gang membership, associate status,
or affiliate status to the court by clear and convincing
evidence.
i) States that a successful challenge to the designation
shall result in the removal of the person from the 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
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enumerated offenses, having a common name or identifying sign
or symbol, and whose members individually or collectively
engage in a pattern of criminal gang activity. (Pen. Code, §
186.22, subd. (f).)
2)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
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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. (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, "In 2013 SB 458
(Wright), which required youth under 18 and their parent or
guardian had the right to be notified if they were added to a
gang file and to challenge their designation, was signed into
law. In just two years since the passing of SB 458, the
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number of people on the CalGang Database has dropped from
nearly 202,000 to approximately 150,000.
"As an indication of how powerful transparency is in achieving
fair and accurate implementation AB 2298 continues the work of
SB 458 by 1) Extending to adults the current requirement that
youth under 18 be given notice as well as an opportunity to
contest inclusion in a shared gang database; 2) Removing
individuals from the gang database after three years without a
convicted violation of California's Street Terrorism
Enforcement and Prevention Act; and 3) Requiring that the
California Department of Justice (DOJ) provide an annual
report on gang databases.
"Most important, for youth and young adults that police
suspect of gang membership or association, they and their
families should be both notified and flooded with intervention
resources and other supports. Instead, the continued secrecy
of CalGang and the increased surveillance and police contact
it triggers, actually eliminate a vital and early opportunity
to prevent victimization, injury, incarceration and death. In
fact, CalGang and similar efforts exclude people and their
families from the community when they most need that
connection and support."
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) Notice: This bill expands the notice requirement given
to minors to include adults, by requiring notice be
provided to an adult before designating a person as a
suspected gang member, associate, or affiliate in the
database.
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b) Compliance with Federal Standards: The legislation
requires databases comply with federal requirements
regarding the privacy and accuracy of information in the
database, and other operating principles for maintaining
these databases.
c) Reporting Requirements: This bill requires local law
enforcement, commencing December 1, 2017, and every
December 1st thereafter to submit specified data pertaining
to the database to the Department of Justice, and would
require the Department of Justice, commencing January 1,
2018, and every January 1st thereafter, to submit a report
containing that information to the CalGang Executive Board
and to the Legislature.
d) Requires a Gang Crime Violation: This legislation
provides that a person designated as a suspected gang
member, associate, or affiliate in a shared gang database
who has not been convicted of a violation of gang-related
crimes, as specified, within 3 years of the initial
designation be removed from the database.
e) Mandates Basic Due Process: The bill establishes a
procedure for a person designated in a shared gang database
to challenge that designation through an administrative
hearing and appeal to the superior court.
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
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.
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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." (Pen.
Code, § 186.21 (1988).) The STEP Act established the nation's
first definitions of "criminal street gang," "pattern of
criminal gang activity," and codified penalties for
participation in a criminal street gang.
In 1997, less than a decade after the regional GREAT database
was first created, the regional GREAT databases were
integrated into a new unified statewide database, CalGang,
with the goals of making the database easier to use and less
expensive to access.<2> CalGang operates pursuant to the 1968
Omnibus Crime Control and Safe Streets Act, which requires
that "all criminal intelligence systems ? are utilized in
conformance with the privacy and constitutional rights of
--------------------------
<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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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.
(Ibid.) For example, qualified law enforcement personnel may
---------------------------
<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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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
designated is unknown, approximately 10% of those listed on
--------------------------
<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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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, or a young-adult, 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)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
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
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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/)
7)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 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.)
8)Limited Existing Due Process Procedures: Currently, only
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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.
9)Argument in Support: According to the American Civil
Liberties Union, "AB 2298 would provide due process
protections for people designated as gang members by law
enforcement agencies, and require that data on the
demographics of people in gang databases be annually
published.
"Since the early 1980s, law enforcement agencies throughout
California have designated people as gang members for
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inclusion in gang databases that are not accurate, consistent
or transparent. Most people are added to gang databases
without being arrested or accused of a crime. Until the
recent passage of Senate Bill 458, no person labeled as a gang
member had a legal right to be notified or an opportunity to
appeal their designation. Under SB 458, only youth under the
age of 18 have those rights. AB 2298 would extend this notice
requirement to adults.
"Nearly 20% of the people on the CalGang Database 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. Databases are
often used to add people to gang injunctions, support
sentencing enhancements, and to deny people access to victims'
compensation. An individual's gang designation can also be
accessed by federal law enforcement agencies, such as the FBI
and ICE, and result in negative immigration consequences.
"AB 2298 will help resolve these problems by, among other
things, creating a process that allows people who are not gang
members to be removed from gang databases, ensuring that
people designated as gang members are notified, and by
requiring that data on the demographics of people added to and
removed from gang databases be annually published."
10)Argument in Opposition: According to According to the
California State Sheriffs' Association, "AB 2298 would require
law enforcement agencies to notify active participants of
criminal street gangs that they are subject to an
investigation.
"In 2013, CSSA negotiated amendments to SB 458 (Wright), which
provided for parental notification when a minor was entered
into a shared criminal gang database. The idea was that
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parents could intervene in unknown activity by their children.
AB 2298 undoes the agreement reached in SB 458 and goes far
beyond providing for parental notification by requiring
notification to adult gang members of their entry into a
shared criminal gang database. In addition, this measure
would allow for active adult participants of a criminal street
gang to contest their entry into the database and request a
formal hearing to remove that designation from a shared
criminal database.
"This measure undermines public safety by informing gang
members that they are subject to investigations. In addition,
this measure creates unfunded costs by requiring
administrative hearings to adjudicate determinations of gang
affiliation."
11)Related Legislation: AB 829 (Nazarian), would have outlined
procedural due process rights for persons designated for
inclusion in a shared gang database. AB 829 passed this
committee and failed passage in the Assembly Judiciary
Committee.
12)Prior Legislation:
a) SB 458 (Wright), Chapter 797, Statutes of 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.
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.
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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
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:
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Support
All of Us or None
Alliance for Boys and Men of Color
American Civil Liberties Union
Arts for Incarcerated Youth Network
Asian Americans Advancing Justice
Bay Area Youth Summit
Boston Area Youth Organizing Project
California Attorneys for Criminal Justice
California Immigrant Policy Center
California Public Defenders Association
Coalition for Humane Immigrant Rights of Los Angeles
Community Asset Development Redefining Education
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Critical Resistance
Community Coalition
Dream Team Los Angeles
Drug Policy Alliance
Ella Baker Center for Human Rights
Fair Chance
House Keys not Handcuffs
Immigrant Youth Coalition
Injustice Not Jails Immigrant Youth Coalition
Inland Empire Immigrant Youth Coalition
Khmer Girls in Action
Life After Uncivil ruthless Acts
Los Angeles Brown Berets
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Los Angeles Center for Law and Justice
Motivating Individual Leadership for Public Advancement
National Association of Social Workers
National Center for Youth Law
National Immigration Law Center
National Juvenile Justice Network
New PATH
New Way of Life Re-Entry Project
Orange County Immigrant Youth United
PICO of California
Policy Link
Public Counsel
Services, Immigrant Rights, and Education Network
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Southeast Asia Resource Action Center
Southwestern Law School's Immigration Law Clinic
TRUST South LA
UC Irvine, Immigrants Rights Clinic
Urban Peace Institute
Violence Prevention Coalition
W. Haywood Burns Institute
Women's Foundation of California
Youth Justice Alliance
Youth Justice Coalition
1 private individual
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Opposition
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California District Attorneys Association
California Narcotic Officers Association
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744
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