BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 2298 (Weber) - Criminal gangs
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|Version: May 31, 2016 |Policy Vote: PUB. S. 5 - 2 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 2298 would extend the right provided to minors to
be notified of inclusion in a shared gang database to include
adults, as specified. This bill would require the establishment
of an administrative hearing process for persons seeking removal
from a shared gang database, and would impose data collection,
reporting, and retention requirements on local law enforcement
agencies and the Department of Justice (DOJ), as specified.
Fiscal
Impact:
CalGang system enhancements : One-time automation costs to the
DOJ of $1 million (General Fund) for system enhancements.
DOJ data collection and reporting : Ongoing DOJ workload
increase of $200,000 (General Fund) to collect and post data
submitted by shared gang database users.
Local agency notices and data reporting : Potentially
significant non-reimbursable local agency costs (Local Funds)
for additional and more detailed written notifications, data
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collection, reporting, and retention requirements. Utilization
of the CalGang system and other shared gang databases is
permissive, and any additional workload imposed for the
notification and data reporting provisions prospectively would
not appear to be reimbursable by the state.
Shared gang database inquiries : Potentially significant local
law enforcement agency costs, potentially state-reimbursable
(General Fund), to accept and respond to written requests for
information of possible designation in a shared gang database.
The bill provides that a person may request information of any
law enforcement agency, which could include agencies that no
longer utilize the database to designate gang members, yet is
technically accessible to the agency, and requires that agency
to respond to the request and provide written information of
possible gang designation by other law enforcement agencies.
The CHP and CDCR, which have access to CalGang, anticipate
minor costs to respond to any requests.
Administrative hearing process : Potentially significant
future costs for administrative hearings resulting from the
mandated administrative hearing and appeals process.
Potentially significant one-time and ongoing local law
enforcement agency costs, potentially state-reimbursable
(General Fund), to establish and administer the process,
irrespective if the agency utilizes a gang database, as the
administrative process is not restricted to persons designated
on the list prospectively, but includes persons currently
designated on the list. Even an agency that elects not to
utilize the database prospectively would be subject to the
administrative hearing process for any persons designated in
prior years.
Background: The CalGang system database, which is housed by the DOJ, is
accessed by law enforcement officers in 58 counties and includes
200 data fields containing personal, identifying information
such as age, race, photographs, tattoos, criminal associates,
addresses, vehicles, criminal histories, and activities.
According to the Youth Justice Coalition report, Tracked and
Trapped: Youth of Color, Gang Databases and Gang Injunctions
(December 2012), approximately 200,000 persons were listed on
the CalGang database in 2012, with approximately 12 percent of
those listed aged 19 years or younger.
In addition to the CalGang database, the DOJ website indicates
11 regional databases maintained by local law enforcement
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agencies in Los Angeles, San Bernardino, Riverside, Sonoma, San
Diego, Kern, Fresno, San Jose, Santa Barbara, and Orange County.
Under existing law, if a minor is convicted of a gang-related
offense and tried as an adult or has had a petition sustained in
juvenile court, the parent or guardian must 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. SB 458
(Wright) was enacted in 2013, which requires a local law
enforcement agency to provide written notice to a minor and his/
her parent or guardian prior to designating that minor as a
suspected gang member, associate, or affiliate in a shared gang
database. (Penal Code § 186.34.)
Proposed
Law: This bill would enhance transparency and due process
protections with regard to the usage of shared gang databases,
as follows:
Expands the notice requirement provided to minors to
include adults, by requiring written notice be provided to
an adult before designating a person as a suspected gang
member, associate, or affiliate in the database.
Requires the written notice to describe the process to
contest the designation in the gang database and inform the
person of the reason for his or her designation in the
database.
Requires databases to comply with federal requirements
regarding the privacy and accuracy of information in the
database, and other operating principles for maintaining
these databases.
Requires local law enforcement agencies, commencing
January 15, 2018, and every January 15th thereafter to
submit specified data pertaining to the database to the
DOJ, and would require the DOJ, commencing February 15,
2018, and every February 15th thereafter, to post each law
enforcement agency's report on the DOJ website.
Authorizes a person to make a written request for
information of any law enforcement agency as to whether the
person is designated as a suspected gang member, associate,
or affiliate in a shared gang database accessible by that
law enforcement agency and what law enforcement agency made
the designation. Requires the law enforcement agency to
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accept the request, and respond to the request in writing
within 30 calendar days of receipt of the request.
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.
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:
o 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.
o States that the person may request an
administrative hearing to review the designation
decision.
o 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.
o 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.
o Provides that the agency shall appoint or
contract with 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.
o 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.
o Provides that within 30 calendar days after
the mailing or personal delivery of the examiner's
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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.
o 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.
o States that a successful challenge to the
designation shall result in the removal of the person
from the shared gang database.
Prior
Legislation: SB 458 (Wright) Chapter 797/2013 requires a local
law enforcement agency to provide written notice to a minor and
his/ her parent or guardian prior to designating that minor as a
suspected gang member, associate, or affiliate in a shared gang
database, as specified.
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