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. AB 2298 Page B 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 AB 2298 Page C 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 AB 2298 Page D 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 AB 2298 Page E 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 AB 2298 Page F 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. AB 2298 Page G 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. AB 2298 Page H 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 >.) AB 2298 Page I 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/ >.) AB 2298 Page J 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 >.) AB 2298 Page K 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 AB 2298 Page L 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 AB 2298 Page M 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 AB 2298 Page N 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 AB 2298 Page O 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. AB 2298 Page P 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: AB 2298 Page Q 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 AB 2298 Page R 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 AB 2298 Page S 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 AB 2298 Page T 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 AB 2298 Page U 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 AB 2298 Page V