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AB-90 Criminal gangs.(2017-2018)

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Date Published: 10/13/2017 02:00 PM
AB90:v91#DOCUMENT

Assembly Bill No. 90
CHAPTER 695

An act to amend Section 70615 of the Government Code, to add Section 186.36 to, and to repeal and add Sections 186.34 and 186.35 of, the Penal Code, relating to criminal gangs.

[ Approved by Governor  October 12, 2017. Filed with Secretary of State  October 12, 2017. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 90, Weber. Criminal gangs.
Existing law, the California Street Terrorism Enforcement and Prevention Act (act), provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified. There is established within the Department of Justice the CalGang Executive Board, which is responsible for the administration, policy, and sustainability of the CalGang system, a shared gang database of statewide gang-related information. The act defines a “shared gang database” as having various attributes, including, among others, that the database contains personal identifying information in which a person may be designated as a suspected gang member, associate, or affiliate, or for which entry of a person in the database reflects a designation of that person as a suspected gang member, associate, or affiliate. Existing law establishes a review and appeal process for a person to challenge his or her inclusion in a gang database.
This bill would revise the definition of “shared gang database” for its purposes to mean any gang database that is accessed by an agency or person outside of the agency that created the database. The bill would also define “gang database” for its purposes as any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate. The bill would make the Department of Justice responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate, and would provide that commencing January 1, 2018, the CalGang Executive Board would no longer administer or oversee the CalGang database. The bill would require the department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang members. The bill would require the department to establish the Gang Database Technical Advisory Committee with specified members to advise the department in promulgating regulations governing the use, operation, and oversight of shared gang databases, as specified. The bill would require the department to develop and implement standardized periodic training for all persons with access to the CalGang database. The bill would require the department, by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and department staff to ensure the accuracy, reliability, and proper use of any shared gang database, and to report the results of those audits to the public. The bill would require the department, commencing February 15, 2018, to publish and post on the department’s Internet Web site an annual report regarding specified information about the CalGang database and the periodic audits. The bill would impose a moratorium on the use of the CalGang database commencing January 1, 2018, until the Attorney General certifies that specified information has been purged from the CalGang database. The bill would recast, as a petition process, the review and appeal process that authorizes challenges to the inclusion in a shared gang database, and would make additional conforming changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 This bill shall be known, and may be cited, as the Fair and Accurate Gang Database Act of 2017.

SEC. 2.

 Section 70615 of the Government Code is amended to read:

70615.
 The fee for filing any of the following appeals to the superior court is twenty-five dollars ($25):
(a) An appeal of a local agency’s decision regarding an administrative fine or penalty under Section 53069.4.
(b) An appeal under Section 40230 of the Vehicle Code of an administrative agency’s decision regarding a parking violation.
(c) An appeal under Section 99582 of the Public Utilities Code of a hearing officer’s determination regarding an administrative penalty for fare evasion or a passenger conduct violation.
(d) A petition under Section 186.35 of the Penal Code challenging a law enforcement agency’s inclusion of a person’s information in a shared gang database.

SEC. 3.

 Section 186.34 of the Penal Code is repealed.

SEC. 4.

 Section 186.34 is added to the Penal Code, to read:

186.34.
 (a) For purposes of this section and Sections 186.35 and 186.36, the following definitions apply:
(1) “Criminal street gang” means an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of crimes enumerated in paragraphs (1) to (25), inclusive, and paragraphs (31) to (33), inclusive, of subdivision (e) of Section 186.22 who have a common identifying sign, symbol, or name, and whose members individually or collectively engage in or have engaged in a pattern of definable criminal activity.
(2) “Gang database” means any database accessed by a law enforcement agency that designates a person as a gang member or associate, or includes or points to information, including, but not limited to, fact-based or uncorroborated information, that reflects a designation of that person as a gang member or associate.
(3) “Law enforcement agency” means a governmental agency or a subunit of a governmental agency, and its authorized support staff and contractors, whose primary function is detection, investigation, or apprehension of criminal offenders, or whose primary duties include detention, pretrial release, posttrial release, correctional supervision, or the collection, storage, or dissemination of criminal history record information.
(4) “Shared gang database” means a gang database that is accessed by an agency or person outside of the agency that created the records that populate the database.
(b) Notwithstanding subdivision (a), the following are not subject to this section, or Sections 186.35 and 186.36:
(1) Databases that designate persons as gang members or associates using only criminal offender record information, as defined in Section 13102, or information collected pursuant to Section 186.30.
(2) Databases accessed solely by jail or custodial facility staff for classification or operational decisions in the administration of the facility.
(c) (1) To the extent a local law enforcement agency elects to utilize a shared gang database prior to a local law enforcement agency designating a person as a suspected gang member, associate, or affiliate in a shared gang database, or submitting a document to the Attorney General’s office for the purpose of designating a person in a shared gang database, or otherwise identifying the person in a shared gang database, the local law enforcement agency shall provide written notice to the person, and shall, if the person is under 18 years of age, provide written notice to the person and his or her parent or guardian, of the designation and the basis for the designation, unless providing that notification would compromise an active criminal investigation or compromise the health or safety of the minor.
(2) The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for his or her parent or guardian, or an attorney working on behalf of the person, to contest the designation of the person in the database. The notice shall also inform the person of the reason for his or her designation in the database.
(d) (1) (A) A person, or, if the person is under 18 years of age, his or her parent or guardian, or an attorney working on behalf of the person, may request 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 the name of the law enforcement agency that made the designation. A request pursuant to this paragraph shall be in writing.
(B) If a person about whom information is requested pursuant to subparagraph (A) is designated as a suspected gang member, associate, or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation as described in subdivision (e).
(2) The law enforcement agency shall provide information requested under paragraph (1), unless doing so would compromise an active criminal investigation or compromise the health or safety of the person if the person is under 18 years of age.
(3) The law enforcement agency shall respond to a valid request pursuant to paragraph (1) in writing to the person making the request within 30 calendar days of receipt of the request.
(e) Subsequent to the notice described in subdivision (c) or the law enforcement agency’s response to an information request described in subdivision (d), the person designated or to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian if the person is under 18 years of age, may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation, and if the agency determines that the person is not a suspected gang member, associate, or affiliate, the agency shall remove the person from the shared gang database. The local law enforcement agency shall provide the person and, if the person is under 18 years of age, his or her parent or guardian, with written verification of the agency’s decision within 30 days of submission of the written documentation contesting the designation. If the law enforcement agency denies the request for removal, the notice of its determination shall state the reason for the denial. If the law enforcement agency does not provide a verification of the agency’s decision within the required 30-day period, the request to remove the person from the gang database shall be deemed denied. The person or, if the person is under 18 years of age, his or her parent or guardian may petition the court to review the law enforcement agency’s denial of the request for removal and order the law enforcement agency to remove the person from the shared gang database pursuant to Section 186.35.
(f) Nothing in this section shall require a local law enforcement agency to disclose any information protected under Section 1040 or 1041 of the Evidence Code or Section 6254 of the Government Code.

SEC. 5.

 Section 186.35 of the Penal Code is repealed.

SEC. 6.

 Section 186.35 is added to the Penal Code, to read:

186.35.
 (a) 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 and who has contested his or her designation pursuant to subdivision (e) of Section 186.34, may petition the court to review the law enforcement agency’s denial of the request for removal and to order the law enforcement agency to remove the person from the shared gang database. The petition may be brought by the person or the person’s attorney, or if the person is under 18 years of age, by his or her parent or guardian or an attorney on behalf of the parent or guardian.
(b) The petition shall be filed and served within 90 calendar days of the agency’s mailing or personal service of the verification of the decision to deny the request for removal from the shared gang database or the date that the request is deemed denied under subdivision (e) of Section 186.34. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court of the county in which the local law enforcement agency is located or, if the person resides in California, in the county in which the person resides. A copy of the petition shall be served on the agency in person or by first-class mail. Proof of service of the petition on the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.
(c) The evidentiary record for the court’s determination of the petition shall be limited to the agency’s statement of the basis of its designation made pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the person contesting the designation pursuant to subdivision (e) of Section 186.34.
(d) If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the person’s active gang membership, associate status, or affiliate status by clear and convincing evidence, the court shall order the law enforcement agency to remove the name of the person from the shared gang database.
(e) The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the person of the appearance date by mail or personal delivery. The court shall retain the fee under Section 70615 of the Government Code regardless of the outcome of the petition. If the court finds in favor of the person, the amount of the fee shall be reimbursed to the person by the agency.

SEC. 7.

 Section 186.36 is added to the Penal Code, to read:

186.36.
 (a) The Department of Justice is responsible for establishing regulations for shared gang databases. All shared gang databases shall comply with those regulations.
(b) The department shall administer and oversee the CalGang database. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database.
(c) The department shall establish the Gang Database Technical Advisory Committee.
(d) Each appointee to the committee, regardless of the appointing authority, shall have the following characteristics:
(1) Substantial prior knowledge of issues related to gang intervention, suppression, or prevention efforts.
(2) Decisionmaking authority for, or direct access to those who have decisionmaking authority for, the agency or organization he or she represents.
(3) A willingness to serve on the committee and a commitment to contribute to the committee’s work.
(e) The membership of the committee shall be as follows:
(1) The Attorney General, or his or her designee.
(2) The President of the California District Attorneys Association, or his or her designee.
(3) The President of the California Public Defenders Association, or his or her designee.
(4) A representative of organizations that specialize in gang violence intervention, appointed by the Senate Committee on Rules.
(5) A representative of organizations that provide immigration services, appointed by the Senate Committee on Rules.
(6) The President of the California Gang Investigators Association, or his or her designee.
(7) A representative of community organizations that specialize in civil or human rights, appointed by the Speaker of the Assembly.
(8) A person who has personal experience with a shared gang database as someone who is or was impacted by gang labeling, appointed by the Speaker of the Assembly.
(9) The chairperson of the California Gang Node Advisory Committee, or his or her designee.
(10) The President of the California Police Chiefs Association, or his or her designee.
(11) The President of the California State Sheriffs’ Association, or his or her designee.
(f) The committee shall appoint a chairperson from among the members appointed pursuant to subdivision (e). The chairperson shall serve in that capacity at the pleasure of the committee.
(g) Each member of the committee who is appointed pursuant to this section shall serve without compensation.
(h) If a committee member is unable to adequately perform his or her duties, he or she is subject to removal from the board by a majority vote of the full committee.
(i) A vacancy on the committee as a result of the removal of a member shall be filled by the appointing authority of the removed member within 30 days of the vacancy.
(j) Committee meetings are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(k) The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of shared gang databases. The regulations issued by the department shall, at minimum, ensure the following:
(1) The system integrity of a shared gang database.
(2) All law enforcement agency and criminal justice agency personnel who access a shared gang database undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures.
(3) Proper criteria are established for supervisory reviews of all database entries and regular reviews of records entered into a shared gang database.
(4) Reasonable measures are taken to locate equipment related to the operation of a shared gang database in a secure area in order to preclude access by unauthorized personnel.
(5) Law enforcement agencies and criminal justice agencies notify the department of any missing equipment that could potentially compromise a shared gang database.
(6) Personnel authorized to access a shared gang database are limited to sworn law enforcement personnel, nonsworn law enforcement support personnel, or noncriminal justice technical or maintenance personnel, including information technology and information security staff and contract employees, who have been subject to character or security clearance and who have received approved training.
(7) Any records contained in a shared gang database are not disclosed for employment or military screening purposes.
(8) Any records contained in a shared gang database are not disclosed for purposes of enforcing federal immigration law, unless required by state or federal statute or regulation.
(9) The committee does not discuss or access individual records contained in a shared gang database.
(l) The regulations issued by the department shall include, but not be limited to, establishing the following:
(1) Policies and procedures for entering, reviewing, and purging documentation.
(2) Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership.
(3) Retention periods for information about a person in a shared gang database that is consistent with empirical research on the duration of gang membership.
(4) Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs.
(5) Policies and procedures for notice to a person in a shared gang database. This includes policies and procedures for when notification would compromise an active criminal investigation or the health or safety of a minor.
(6) Policies and procedures for responding to an information request, a request for removal, or a petition for removal under Sections 186.34 and 186.35, respectively. This includes policies and procedures for a request or petition that could compromise an active criminal investigation or the health or safety of a minor.
(7) Policies and procedures for sharing information from a shared gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access. This includes sharing of information with a partner in a joint task force.
(8) Implementation of supervisory review procedures and periodic record reviews by law enforcement agencies and criminal justice agencies, and reporting of the results of those reviews to the department.
(m) Shared gang databases shall be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines. These include Part 23 of Title 28 of the Code of Federal Regulations and the department’s Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(n) The department, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database. The department shall mandate the purge of any information for which a user agency cannot establish adequate support.
(o) The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(p) Commencing February 15, 2018, and annually on February 15 thereafter, the department shall publish an annual report on the CalGang database.
(1) The report shall include, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information for each user agency:
(A) The number of persons included in the CalGang database on the day of reporting.
(B) The number of persons added to the CalGang database during the immediately preceding 12 months.
(C) The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 received during the immediately preceding 12 months.
(D) The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 that were granted during the immediately preceding 12 months.
(E) The number of petitions for removal of information about a person from the CalGang database pursuant to Section 186.35 adjudicated in the immediately preceding 12 months, including their dispositions.
(F) The number of persons whose information was removed from the CalGang database due to the expiration of a retention period during the immediately preceding 12 months.
(G) The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months.
(H) The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
(2) The report shall include the results from each user agency’s periodic audit conducted pursuant to subdivision (n).
(3) The department shall post the report on the department’s Internet Web site.
(4) The department shall invite and assess public comments following the report’s release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(q) The department shall instruct all user agencies to review the records of criminal street gang members entered into a shared gang database to ensure the existence of proper support for each criterion for entry in the shared gang database.
(r) (1) The department shall instruct each CalGang node agency to purge from a shared gang database any record of a person entered into the database designated as a suspected gang member, associate, or affiliate that does not meet criteria for entry or whose entry was based upon the following criteria: jail classification, frequenting gang neighborhoods, or on the basis of an untested informant. Unsupported criteria shall be purged and the records of a person shall be purged if the remaining criteria are not sufficient to support the person’s designation.
(2) After the purge is completed, the shared gang database shall be examined using a statistically valid sample, pursuant to professional auditing standards to ensure that all fields in the database are accurate.
(s) (1) Commencing January 1, 2018, any shared gang database operated by law enforcement in California including, but not limited to, the CalGang database, shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies that the purge required in subdivision (r) has been completed. After the purge has been completed and before the department adopts the regulations required by this section, new data may be entered, provided the new data meets the criteria established by the conditions of the purge.
(2) The department shall not use regulations developed pursuant to this section to invalidate data entries entered prior to the adoption of those regulations.
(t) The department shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines.
(u) The department may enforce a violation of a state or federal law or regulation with respect to a shared gang database, or a violation of regulation, policy, or procedure established by the department pursuant to this title by any of the following methods:
(1) Letter of censure.
(2) Temporary suspension of access privileges to the shared gang database system.
(3) Revocation of access privileges to the shared gang database system.
(v) The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for any individual who shares information from a shared gang database for employment or military screening purposes.
(w) The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for an individual who shares information from a shared gang database for federal immigration law purposes, unless required by state or federal statute or regulation.
(x) The department shall ensure that the shared gang database user account of an individual is disabled if the individual no longer has a need or right to access a shared gang database because he or she has separated from his or her employment with a user agency or for another reason.