BILL ANALYSIS Ó
AB 2298
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Date of Hearing: May 4, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
2298 (Weber) - As Amended April 6, 2016
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill 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
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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 (DOJ),
and would require DOJ, 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.
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.
FISCAL EFFECT:
1)Significant one-time cost to DOJ in excess of $1 million (GF)
for IT enhancements, and ongoing cost in excess of $200,000 to
collect the required data and provide the annual report.
2)Moderate nonreimbursable cost to local agencies to provide the
required information to DOJ. Since participation in CalGANG
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is not mandatory, costs associated with the reporting
requirement for participating agencies are not reimbursable
mandated costs.
COMMENTS:
1)Background. Current law 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. Current law provides various enhancements for
gang members convicted of specified crimes, and 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.
2)CalGANG. The CalGANG is an information database that was
developed in 1997 to track anyone considered a gang member or
associate in the state of California. There is a central
database connected to the Department of Justice (DOJ) and
almost 12 regional databases located throughout the state. The
Regional Node Agency serves the region's criminal justice
community including, federal, state, and local; by providing a
computerized database of criminal justice intelligence and
investigation information on gang activity to authorized users
demonstrating a right and need to know. The goal is to improve
the effectiveness of the regional law enforcement and criminal
justice agencies through the efficient handling and exchange
of criminal justice intelligence and investigative information
on gangs and gang activity. The idea seems to be to allow for
faster and more dependable access by providing multiple
avenues to the information one wants. While the central
CalGANG database is housed at DOJ, it is not managed by DOJ.
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Today, the CalGang system is accessed by over 6,000 law
enforcement officers in 58 counties. For example, qualified
law enforcement personnel may sign on to the CalGang database
from a laptop in their patrol car and locate a source document
regarding a specific individual about whom law enforcement
seeks information. 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.
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."
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.
Law enforcement representatives 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
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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."
3)Purpose. According to the author, "In 2013 SB 458 (Wright),
required youth under 18 and their parent or guardian to be
notified if they were added to a gang file and to challenge
their designation. In just two years since the passing of SB
458, the 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."
4)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." They also point to the
process that will allow people who are not gang members be
removed from the database.
5)Opposition. According to the California State Sheriffs'
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Association, "AB 2298 would require law enforcement agencies
to notify active participants of criminal street gangs that
they are subject to an investigation. They also indicate AB
2298 will result in additional cost by requiring
adiminstrative hearings to adjudicate determinations of gang
affiliation.
6)Related Legislation: AB 829 (Nazarian), would have outlined
procedural due process rights for persons designated for
inclusion in a shared gang database. AB 829 failed passage in
the Assembly Judiciary Committee.
7)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) 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.
c) AB 1630 (Runner), of the 2007-08 Legislative Session,
would have 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 passage in
Assembly Public Safety Committee.
d) 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
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criminal street gang under specified circumstances. AB
2562 failed passage in Assembly Public Safety Committee.
Analysis Prepared by:Pedro Reyes / APPR. / (916)
319-2081