Bill Text

Bill Information

PDF |Add To My Favorites |Track Bill | print page

AB-90 Criminal gangs.(2017-2018)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 07/13/2017 09:00 PM
AB90:v95#DOCUMENT

Amended  IN  Senate  July 13, 2017
Amended  IN  Assembly  May 30, 2017
Amended  IN  Assembly  April 17, 2017
Amended  IN  Assembly  March 09, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 90


Introduced by Assembly Member Weber

January 09, 2017


An act to amend Section 70615 of the Government Code, and to amend Sections 186.34, 186.35, and Section 13519.4 of, and 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.


LEGISLATIVE COUNSEL'S DIGEST


AB 90, as amended, 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 or the shared gang databases that participate in 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, and the definitions of offenses consistent with gang activity. members. The bill would require the department to establish a technical advisory committee the Gang Database Technical Advisory Committee with specified members to advise on uses of shared gang databases. the department in promulgating regulations governing the use, operation, and oversight of gang databases, as specified. The bill would require the department to develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database. The bill would require the department 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, among other requirements, the Attorney General certifies that standardized periodic training and periodic audit regulation requirements have been met. until specified regulations have been adopted and 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 gang database, and would make additional conforming changes. The bill would state findings and declarations of the Legislature regarding shared gang databases.
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.

 The Legislature finds and declares the following:
(a) Shared gang Gang databases only provide value to law enforcement if they are accurate.
(b) Law enforcement agencies use a variety of overlapping databases that include designations of persons as gang members or associates.
(c) Databases of criminal intelligence information on gangs and gang members, including pointer systems and data integration and analysis solutions, continue to increase in their ability to search and analyze vast amounts of data. Due process and privacy protections must keep up with this advancing technology.

(b)

(d) A recent audit by the California State Auditor of the CalGang database, a gang database shared by law enforcement agencies statewide, found serious and systemic problems with the CalGang database. problems. Among other things, the audit found the following:
(1) The current oversight structure for the CalGang database does not ensure that user agencies collect and maintain criminal intelligence records in a manner that preserves individuals’ privacy rights. Although the Department of Justice funds a contract to maintain the CalGang database, the system is not established in statute.
(2) The CalGang database is administered by the CalGang Executive Board, an executive board comprised of user agencies. These user entities function independently from the state and without transparency transparency, outside accountability, or meaningful opportunities for public engagement.
(3) In practice, there is little evidence that the CalGang Executive Board has ensured that user agencies comply with either the federal regulations or the state guidelines. California Attorney General’s Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(4) A review of entries from four agencies revealed systematic systemic problems with the data. Only one of the nine gangs reviewed met the requirements of the CalGang database policy to validate the organization as a gang before entry. User Of the records reviewed, user agencies lacked adequate support for including to justify the inclusion of approximately 13 percent of persons designated as gang members or associates, and 25 percent of gang criteria and 13 percent of individuals reviewed. used overall was unsubstantiated. Errors included source documentation that directly contradicted the stated evidence of gang membership in the CalGang database system.

(c)Although law enforcement officials told the California State Auditor that inclusion in the CalGang database is of little impact to individuals because the CalGang database only points to source documentation, the system can have significant impacts on individuals.

(d)

(5) While the CalGang database policy states that information in the system should not be used as a statement of fact in official reports or for any purposes unrelated to law enforcement, the audit found criminal cases where judges referred to the CalGang database as support for expert opinions that individuals persons were or were not gang members. Law enforcement agencies admitted to using the CalGang database for employment or military-related screenings.
(e) Although law enforcement officials told the California State Auditor that designation as a gang member or associate in the CalGang database is of little impact to persons because the CalGang database only points to source documentation, the system can have significant impacts on persons.
(f) Though there are profound effects on a person’s life as a result of a designation as a gang member or associate in a shared gang database, there are few safeguards against incorrect designations.
(g) The overwhelming majority of persons designated as gang members or associates in a shared gang database have never received notice of their designation nor notice of their right to contest their designation.
(h) Current criteria for designating a person as a gang member or associate in the CalGang database, including identification by an untested informant, or the frequenting of gang areas that are also the subject’s residence, school, place of employment, or place of worship, are ambiguous, overbroad, and not based in empirical research on gangs or gang membership.

(e)The CalGang database and other shared

(i) Shared gang databases’ information is shared with federal agencies, which that are required by federal law to share this information with Immigration and Customs Enforcement (ICE) for the purpose of immigration enforcement. ICE may use a person’s alleged gang membership as a reason to deny release on bond, to deny eligibility for discretionary immigration relief and benefits, to prioritize removal, or even to identify an individual a person as a gang member to police in the country to which the person is deported.

(f)The overwhelming majority of individuals listed in the CalGang database to date have been given no opportunity to contest their designation as gang members. In many cases, these individuals have never been told they have been placed in the CalGang database.

(g)The effects of inclusion in the CalGang database on people’s lives are profound, but there are few safeguards against incorrect inclusion in the database.

(h)If California continues to operate the CalGang database or other shared gang databases, it should require those databases to have an oversight structure that ensures accuracy, supports accountability for proper database use, and protects individuals’ rights.

(i)If California continues to operate the CalGang database or other shared gang databases, it should require that sharing of those databases with agencies that enforce federal immigration law be limited to the greatest extent possible in order to maintain a relationship of trust between California’s immigrant community and state and local law enforcement agencies.

(j) In order to ensure trust between California’s immigrant community and state and local law enforcement agencies, access to gang databases must not be used for the purpose of enforcing immigration laws.
(k) In order to ensure accuracy, support accountability, and protect fundamental rights, an oversight structure must be created for shared gang databases.

SEC. 3.

 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 determination regarding the placement of an individual’s inclusion of a person’s information in a shared gang database.

SEC. 4.Section 186.34 of the Penal Code is amended to read:
186.34.

(a)(1)For purposes of this section, “shared gang database” shall mean any database that satisfies all of the following:

(A)Allows access for any local law enforcement agency.

(B)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.

(C)Is subject to Part 23 of Title 28 of the Code of Federal Regulations. If federal funding is no longer available to a database through the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to satisfy this subparagraph to meet the definition of a “shared gang database.”

(2)A “shared gang database” does not include dispatch operator reports, criminal investigative reports, probation reports, or information required to be collected pursuant to Section 186.30.

(3)Notwithstanding subparagraph (C) of paragraph (1), a “shared gang database” includes the CalGang system, operated pursuant to Part 23 of Title 28 of the Code of Federal Regulations.

(b)Notwithstanding subparagraph (C) of paragraph (1) of subdivision (a), a shared gang database, as defined in this section, shall retain records related to the gang activity of the individuals in the database consistent with the provisions contained in Section 23.20(h) of Title 28 of the Code of Federal Regulations.

(c)(1)Except as provided in subdivision (j) of Section 186.36, commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined in subdivision (a), shall submit a report to the Department of Justice, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:

(A)The number of persons included in the database on the day of reporting.

(B)The number of persons added to the database during the immediately preceding 12 months.

(C)The number of requests for removal of a person from the database received during the immediately preceding 12 months.

(D)The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months.

(E)The number of persons automatically removed from the database during the immediately preceding 12 months.

(2)Commencing February 15, 2018, and annually on February 15 thereafter, the Department of Justice shall post each law enforcement agency’s report that contains the information collected pursuant to paragraph (1) on the department’s Internet Web site.

(d)(1)To the extent a local law enforcement agency elects to utilize a shared gang database, as defined in subdivision (a), 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, the name of the designated gang, 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 name of the designated gang and the reason for his or her designation in the database.

(e)(1)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 gang member, suspected gang member, associate, or affiliate in a shared gang database accessible by that law enforcement agency. A request pursuant to this paragraph shall be in writing and shall identify the person who is the subject of the request by full name and date of birth.

(2)The law enforcement agency shall provide information pursuant to a request made 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. The information provided by the law enforcement agency shall include, at a minimum, whether the person is designated in the shared database, and if so, shall identify that designation as to a gang member, suspected gang member, associate or affiliate of a gang, the name of the designated gang, what law enforcement agency made the designation, the date the person was designated in the database, and the basis for the person’s designation.

(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.

(f)Subsequent to the notice described in subdivision (d) or the law enforcement agency’s response to an information request described in subdivision (e), 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 an active gang member, 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 confirmation that the person has been removed from the database, or of the agency’s decision to deny the request for removal, 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 the removal and the court may order the law enforcement agency to remove the person from the shared database pursuant to Section 186.35.

(g)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 amended 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 (f) of Section 186.34, 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. The petition may be brought by the person or the person’s attorneys, 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 if no response was received from the law enforcement agency within the 30-day period, within 120 days of the written request for removal. A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in 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 in person or by first-class mail upon the agency by the person. Proof of service of the petition upon the agency shall be filed in the superior court. For purposes of computing the 90-calendar-day period, or the 120-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 (d) or (e) of Section 186.34, and the documentation provided to the agency by the person contesting the designation pursuant to subdivision (f) 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. 6.Section 186.36 is added to the Penal Code, to read:
186.36.

(a)The Department of Justice is responsible for administering and overseeing any shared gang database in which California law enforcement agencies participate. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database or the shared gang databases that feed into it.

(b)The department shall promulgate regulations governing the use, operation, and oversight of any shared gang database, including, but not limited to, establishing the following:

(1)The requirements for entering and reviewing gang designations.

(2)The retention period for listed gangs.

(3)The criteria for identifying gang members.

(4)The definitions of offenses consistent with gang activity.

(5)The retention period for individuals listed in a shared gang database.

(6)The specifications for user agencies’ operation of the shared gang database, including requirements for user agencies to implement supervisory review procedures and conduct periodic reviews of the records, and report those reviews to the department.

(7)Standardized practices for compliance with notification and appeal requirements.

(c)The department shall establish a technical advisory committee for all shared gang databases. The technical advisory committee shall include the following members:

(1)The Attorney General, or his or her designee.

(2)Representatives from participating law enforcement agencies.

(3)The President of the California Public Defenders Association, or his or her designee.

(4)A representative of organizations that specialize in gang and violence intervention.

(5)A representative of organizations that provide immigration services.

(6)A representative of organizations that specialize in privacy rights.

(7)Three representatives of community organizations that specialize in civil or human rights and criminal justice. At least one of these representatives shall be between 16 and 24 years of age.

(8)One person who is or was placed on a shared gang database.

(9)One parent of a person who is or was placed on a shared gang database as a juvenile.

(d)The meetings of the technical advisory committee are subject to the Bagley-Keene Open Meeting Act.

(e)The committee shall meet at least twice per year.

(f)The department shall develop and implement standardized periodic training for all users authorized to enter data in a shared gang database, as well as for all users authorized to access data in a shared gang database.

(g)The department shall 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 department shall also promulgate regulations to provide for a comprehensive review by user agencies of the database records submitted to ensure the user agency has adequate support for the criteria associated with all the individuals they have entered as gang members.

(h)If a user agency cannot establish adequate support for an entry or the accuracy of a data field, that entry or field shall be purged from the database.

(i)User agencies shall report their review progress to the department every six months and upon completion.

(j)The department shall publish an annual report on a shared gang database summarizing the results from periodic audits conducted pursuant to this section and including all reports presented to the department pursuant to subdivision (c) of Section 186.34. 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.

(k)State and local law enforcement agencies shall not make any shared gang database available to any federal agency or entity. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.

(l)Any shared gang database operated by law enforcement in California on January 1, 2018, including, but not limited to, the CalGang database, shall be placed under a moratorium. During the moratorium no data shall be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The Attorney General shall notify any state, local, or federal agencies that had access to data from the database in the previous five years that the data in the database has been deemed unreliable and inaccurate and shall request the agency delete or refrain from using or relying on the data until the moratorium has been lifted. The department shall train and recertify all users of the shared gang database pursuant to the training specified in subdivision (f) during the moratorium. The moratorium on a shared gang database shall not be lifted until the Attorney General certifies and posts on the department’s public Internet Web site that the requirements of subdivisions (f) and (g) have been met.

SEC. 4.

 Section 186.34 of the Penal Code is repealed.
186.34.

(a)(1)For purposes of this section, “shared gang database” shall mean any database that satisfies all of the following:

(A)Allows access for any local law enforcement agency.

(B)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.

(C)Is subject to Part 23 of Title 28 of the Code of Federal Regulations. If federal funding is no longer available to a database through the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have to satisfy this subparagraph to meet the definition of a “shared gang database.”

(2)A “shared gang database” does not include dispatch operator reports, information used for the administration of jail or custodial facilities, criminal investigative reports, probation reports, or information required to be collected pursuant to Section 186.30.

(3)Notwithstanding subparagraph (C) of paragraph (1), a “shared gang database” includes the CalGang system, operated pursuant to Part 23 of Title 28 of the Code of Federal Regulations.

(b)Notwithstanding subparagraph (C) of paragraph (1) of subdivision (a), a shared gang database, as defined in this section, shall retain records related to the gang activity of the individuals in the database consistent with the provisions contained in Section 23.20(h) of Title 28 of the Code of Federal Regulations.

(c)(1)Commencing January 15, 2018, and annually on January 15 thereafter, any law enforcement agency that elects to utilize a shared gang database, as defined in subdivision (a), shall submit a report to the Department of Justice, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and age, the following information:

(A)The number of persons included in the database on the day of reporting.

(B)The number of persons added to the database during the immediately preceding 12 months.

(C)The number of requests for removal of a person from the database received during the immediately preceding 12 months.

(D)The number of requests for removal of a person from the database that were granted during the immediately preceding 12 months.

(E)The number of persons automatically removed from the database during the immediately preceding 12 months.

(2)Commencing February 15, 2018, and annually on February 15 thereafter, the Department of Justice shall post each law enforcement agency’s report that contains the information collected pursuant to paragraph (1) on the department’s Internet Web site.

(d)(1)To the extent a local law enforcement agency elects to utilize a shared gang database, as defined in subdivision (a), 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.

(e)(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 what law enforcement agency 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 (f).

(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.

(f)Subsequent to the notice described in subdivision (d), the person to be designated as a suspected gang member, associate, or affiliate, or his or her parent or guardian, 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 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. The person may appeal the denial pursuant to Section 186.35.

(g)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 186.34 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) “Access to a database” means any of the following:
(A) The creation of a user account or the possession of a username and password.
(B) The ability to obtain, examine, search, or retrieve records.
(C) The ability to input, update, or remove records.
(D) Possession of bulk data from the database.
(2) “Bulk data” means any electronic collection of data composed of information from multiple records, whose primary relationship to each other is their shared origin from a single or multiple databases.
(3) “Database” means any searchable collection of electronically stored records.
(4) “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.
(5) “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.
(6) “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) Prior to designating a person as a gang member or associate in a shared gang database, the designating agency shall provide written notice to the person of its designation, and shall, if the person is under 18 years of age, provide written notice of the designation to the person’s parent or guardian.
(2) The notice described in paragraph (1) shall provide documentation reflecting the factual basis for the designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.
(3) The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the person’s parent or guardian to request the removal of the person’s information from the shared gang database.
(4) Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.
(d) (1) A person, or, if the person is under 18 years of age, the person’s 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 gang member or associate in a shared gang database accessible by that law enforcement agency. A request pursuant to this paragraph shall be in writing and shall identify the person who is the subject of the request by full name and date of birth.
(2) If the responding agency has submitted information about the subject of the request to a shared gang database, the agency shall provide documentation reflecting the factual basis for the agency’s designation, the name of the designated gang, and documentation reflecting the factual basis for designating the organization as a criminal street gang.
(3) The notice described in paragraph (1) shall describe the process for the person, or, if the person is under 18 years of age, for the person’s parent or guardian, to request the removal of the person’s information from the shared gang database.
(4) If a shared gang database includes information about the subject of the request that was submitted by an agency other than the responding agency, the responding agency shall provide the name of that agency.
(5) The 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. If the agency does not provide a written response within the required 30-day period, the person may petition a court to order the agency to remove all information about the person from the shared gang database pursuant to Section 186.35.
(6) Notwithstanding paragraph (1), notice is not required if providing that notification would compromise an active criminal investigation or the health or safety of a minor.
(e) (1) 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 as a gang member or associate, or, if the person is under 18 years of age, the person’s parent or guardian, may submit a written request to the law enforcement agency for removal of all information entered by that agency about the person from all shared gang databases, and shall include any documentation the person making the request wishes to submit to challenge the designation of the person.
(2) The law enforcement agency shall review the documentation, and if the agency determines that the subject of the request is not an active gang member or associate as designated, or that the organization is not a criminal street gang, the agency shall remove all information entered by that agency about the subject of the request or the gang from all shared gang databases.
(3) The law enforcement agency shall provide the person making the request with written confirmation that all information about the subject of the request has been removed from the database, or of the agency’s decision to deny the request.
(4) The law enforcement agency shall provide the confirmation that all information about the subject of the request has been removed from the database or the agency’s decision to deny the request within 30 calendar days of receipt of request submitted pursuant to paragraph (1). If the law enforcement agency does not provide a confirmation that all information about the person has been removed from the database or the agency’s decision to deny the request within the required 30-day period, the request shall be deemed denied.
(f) This section does not require a 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. 6.

 Section 186.35 of the Penal Code is repealed.
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 (f) of Section 186.34, may seek review within 90 calendar days of the agency’s mailing or personal service of the verification of the decision by filing an appeal to be heard by the superior court. A proceeding under this subdivision is a limited civil case. A copy of the notice of appeal shall be served in person or by first-class mail upon the agency by the person. For purposes of computing the 90-calendar-day period, Section 1013 of the Code of Civil Procedure shall be applicable.

(b)The evidentiary record for the appeal shall be limited to the agency’s statement of basis of its designation made pursuant to subdivision (e) of Section 186.34, and the documentation provided to the agency by the appellant pursuant to subdivision (f) of Section 186.34. If, upon de novo review and any arguments presented to the court, the court finds that the law enforcement agency has failed to establish the petitioner’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.

(c)The fee for filing the notice of appeal 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 appeal. 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 186.35 is added to the Penal Code, to read:

186.35.
 (a) A person who is designated as a suspected gang member or associate by a law enforcement agency in a shared gang database and who has requested removal pursuant to subdivision (e) of Section 186.34 and whose request was denied, or a person who has requested information as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 and received no timely reply, may petition the court to order the agency to remove all information entered by that agency about the petitioner or gang from all shared gang databases.
(b) The petition may be brought by the person, or, if the person is under 18 years of age, by the person’s parent or guardian. A parent or guardian who petitions the court does not commit the unlawful practice of law by doing so, notwithstanding Section 6125 of the Business and Professions Code.
(c) A proceeding under this subdivision is not a criminal case. The petition shall be filed in either the superior court in the county in which the designating law enforcement agency is located, or, if the petitioner resides in California, in the county in which the petitioner resides. A copy of the petition shall be served in person or by first-class mail upon the agency by the petitioner. Proof of service of the petition upon the agency shall be filed in the superior court.
(d) If more than one agency has designated the petitioner as a gang member or associate, or included information about the petitioner in the same shared gang database, the petitioner shall request removal from all agencies before petitioning the court. When petitioning the court, a copy of the petition shall be served in person or by first-class mail upon all agencies by the petitioner. Proof of service of the petition upon all agencies shall be filed in the superior court.
(e) If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and was denied, the petition shall be filed and served within 90 calendar days of the petitioner’s receipt of the written denial. If a petitioner requested removal pursuant to subdivision (e) of Section 186.34 and no timely response to the request was received, the petition shall be filed and served within 120 calendar days of the written request for removal. If a petitioner requested information from a law enforcement agency as to whether the person is designated as a gang member or associate pursuant to subdivision (d) of Section 186.34 but received no timely reply, the petition shall be filed and served within 120 calendar days of the written information request. If multiple law enforcement agencies have designated the petitioner as a suspected gang member or associate, or included information on the petitioner in the same database, the time to file expires 120 calendar days after the latest deadline for an agency’s response. For purposes of computing the 90-calendar-day period, or the 120-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.
(f) The evidentiary record for the court’s determination of the petition shall be limited to only documentation provided to the petitioner by the agency pursuant to subdivision (c) or (d) of Section 186.34, and the documentation provided to the agency by the petitioner pursuant to subdivision (e) of Section 186.34. If a petition is made following a law enforcement agency’s failure to make a timely response to an information request pursuant to subdivision (d) of Section 186.34, the agency may not present any evidence of gang membership or affiliation in reply to the petition but may present evidence regarding receipt of the request.
(g) If, upon de novo review of the record and any arguments presented to the court, the court finds that the law enforcement agency or agencies have failed to establish by clear and convincing evidence the person’s active gang membership or associate status as designated, or reasonable suspicion that the organization is a criminal street gang, the court shall order the law enforcement agency or agencies to remove all information about the petitioner entered by that agency or agencies from all shared gang databases.
(h) A petitioner may file a new petition pursuant to this subdivision no sooner than 180 calendar days after a previous petition. For purposes of computing the 180-calendar-day period, Section 1013 of the Code of Civil Procedure shall apply.
(i) The fee for filing the petition is as provided in Section 70615 of the Government Code. The court shall notify the petitioner 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. 8.

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

186.36.
 (a) The Department of Justice is responsible for establishing regulations for gang databases. All 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. 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 Attorney General.
(5) A representative of organizations that provide immigration services, appointed by the Attorney General.
(6) A representative of organizations that specialize in privacy rights, appointed by the Governor.
(7) A representative of community organizations that specialize in civil or human rights, appointed by the Attorney General.
(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 Attorney General.
(9) A person who has personal experience with a shared gang database as someone who is the family member of a person who is or was impacted by gang labeling, appointed by the Attorney General.
(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.
(d) 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).
(e) The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of gang databases, including, but not 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 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 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.
(f) 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.
(g) A state or local agency shall not allow any federal agency, multistate agency, or agency of another state to access a gang database. A state or local agency shall not provide bulk data from a gang database to any federal agency, multistate agency, or agency of another state. Any agreements in existence on January 1, 2018, that conflict with the terms of this subdivision are terminated on that date.
(h) Notwithstanding subdivision (g), a state or local agency may share information in response to an inquiry about a specific person, including a designation of gang membership or association, with a federal agency, multistate agency, or agency of another state, provided that database access is not granted to the federal, multistate, or other state’s agency, the information provided is not bulk data, and the inquiry is not for immigration enforcement purposes.
(i) 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.
(j) The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(k) 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 subdivision (i).
(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.
(l) Commencing January 1, 2018, 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 shall not be lifted until the requirements of subdivisions (e), (i), and (j) have been met.

SEC. 7.SEC. 9.

 Section 13519.4 of the Penal Code is amended to read:

13519.4.
 (a) The commission shall develop and disseminate guidelines and training for all peace officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial, identity, and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a diverse racial, identity, and cultural environment.
(b) The course of basic training for peace officers shall include adequate instruction on racial, identity, and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial, identity, and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial, identity, and cultural awareness and diversity.
(c) For the purposes of this section the following shall apply:
(1) “Disability,” “gender,” “nationality,” “religion,” and “sexual orientation” have the same meaning as in Section 422.56.
(2) “Culturally diverse” and “cultural diversity” include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.
(3) “Racial” has the same meaning as “race or ethnicity” in Section 422.56.
(4) “Stop” has the same meaning as in paragraph (2) of subdivision (g) of Section 12525.5 of the Government Code.
(d) The Legislature finds and declares as follows:
(1) The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of peace officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.
(2) Racial or identity profiling is a practice that presents a great danger to the fundamental principles of our Constitution and a democratic society. It is abhorrent and cannot be tolerated.
(3) Racial or identity profiling alienates people from law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people whom law enforcement is sworn to protect and serve.
(4) Pedestrians, users of public transportation, and vehicular occupants who have been stopped, searched, interrogated, and subjected to a property seizure by a peace officer for no reason other than the color of their skin, national origin, religion, gender identity or expression, housing status, sexual orientation, or mental or physical disability are the victims of discriminatory practices.
(5) It is the intent of the Legislature in enacting the changes to this section made by the act that added this paragraph that additional training is required to address the pernicious practice of racial or identity profiling and that enactment of this section is in no way dispositive of the issue of how the state should deal with racial or identity profiling.
(e) “Racial or identity profiling,” for purposes of this section, is the consideration of, or reliance on, to any degree, actual or perceived race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, or mental or physical disability in deciding which persons to subject to a stop or in deciding upon the scope or substance of law enforcement activities following a stop, except that an officer may consider or rely on characteristics listed in a specific suspect description. The activities include, but are not limited to, traffic or pedestrian stops, or actions during a stop, such as asking questions, frisks, consensual and nonconsensual searches of a person or any property, seizing any property, removing vehicle occupants during a traffic stop, issuing a citation, and making an arrest.
(f) A peace officer shall not engage in racial or identity profiling.
(g) Every peace officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.
(h) The curriculum shall be evidence-based and shall include and examine evidence-based patterns, practices, and protocols that make up racial or identity profiling, including implicit bias. This training shall prescribe evidence-based patterns, practices, and protocols that prevent racial or identity profiling. In developing the training, the commission shall consult with the Racial and Identity Profiling Advisory Board established pursuant to subdivision (j). The course of instruction shall include, but not be limited to, significant consideration of each of the following subjects:
(1) Identification of key indices and perspectives that make up racial, identity, and cultural differences among residents in a local community.
(2) Negative impact of intentional and implicit biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations and contributed to injury, death, disparities in arrest detention and incarceration rights, and wrongful convictions.
(3) The history and role of the civil and human rights movement and struggles and their impact on law enforcement.
(4) Specific obligations of peace officers in preventing, reporting, and responding to discriminatory or biased practices by fellow peace officers.
(5) Perspectives of diverse, local constituency groups and experts on particular racial, identity, and cultural and police-community relations issues in a local area.
(6) The prohibition against racial or identity profiling in subdivision (f).
(i) Once the initial basic training is completed, each peace officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every five years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial, identity, and cultural trends.
(j) (1) Beginning July 1, 2016, the Attorney General shall establish the Racial and Identity Profiling Advisory Board (RIPA) for the purpose of eliminating racial and identity profiling, and improving diversity and racial and identity sensitivity in law enforcement.
(2) RIPA shall include the following members:
(A) The Attorney General, or his or her designee.
(B) The President of the California Public Defenders Association, or his or her designee.
(C) The President of the California Police Chiefs Association, or his or her designee.
(D) The President of the California State Sheriffs’ Association, or his or her designee.
(E) The President of the Peace Officers Research Association of California, or his or her designee.
(F) The Commissioner of the California Highway Patrol, or his or her designee.
(G) A university professor who specializes in policing, and racial and identity equity.
(H) Two representatives of human or civil rights tax-exempt organizations who specialize in civil or human rights.
(I) Two representatives of community organizations who specialize in civil or human rights and criminal justice, and work with victims of racial and identity profiling. At least one representative shall be between 16 and 24 years of age.
(J) Two religious clergy members who specialize in addressing and reducing racial and identity bias toward individuals and groups.
(K) Up to two other members that the Governor may prescribe.
(L) Up to two other members that the President pro Tempore of the Senate may prescribe.
(M) Up to two other members that the Speaker of the Assembly may prescribe.
(3) Each year, on an annual basis, RIPA shall do the following:
(A) Analyze the data reported pursuant to Section 12525.5 of the Government Code and Section 13012 of this code.
(B) Analyze law enforcement training under this section.
(C) Work in partnership with state and local law enforcement agencies to review and analyze racial and identity profiling policies and practices across geographic areas in California.
(D) Conduct, and consult available, evidence-based research on intentional and implicit biases, and law enforcement stop, search, and seizure tactics.
(E) Issue a report that provides RIPA’s analysis under subparagraphs (A) to (D), inclusive, and detailed findings on the past and current status of racial and identity profiling, and makes policy recommendations for eliminating racial and identity profiling. RIPA shall post the report on its Internet Web site. Each report shall include disaggregated statistical data for each reporting law enforcement agency. The report shall include, at minimum, each reporting law enforcement agency’s total results for each data collection criterion under subdivision (b) of Section 12525.5 of the Government Code for each calendar year. The reports shall be retained and made available to the public by posting those reports on the Department of Justice’s OpenJustice Web portal. The first annual report shall be issued no later than January 1, 2018. The reports are public records within the meaning of Section 6252 of the Government Code and are open to public inspection pursuant to Sections 6253 and 6258 of the Government Code.
(F) Hold at least three public meetings annually to discuss racial and identity profiling, and potential reforms to prevent racial and identity profiling. Each year, one meeting shall be held in northern California, one in central California, and one in southern California. RIPA shall provide the public with notice of at least 60 days before each meeting.
(4) Pursuant to subdivision (e) of Section 12525.5 of the Government Code, RIPA shall advise the Attorney General in developing regulations for the collection and reporting of stop data, and ensuring uniform reporting practices across all reporting agencies.
(5) RIPA may, at its discretion, review operations of shared law enforcement agencies’ gang databases and make recommendations regarding operation of those gang databases to the Department of Justice.
(6) Members of RIPA shall not receive compensation, nor per diem expenses, for their services as members of RIPA.
(7) No action of RIPA shall be valid unless agreed to by a majority of its members.
(8) The initial terms of RIPA members shall be four years.
(9) Each year, RIPA shall elect two of its members as cochairpersons.