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It’s been nearly three years since a new state law gave people the right to challenge inclusion in CalGang, the database used by law enforcement to document and track suspected gang members.
But few people have requested removal and even fewer have been successful.
During the first year the law was in effect, there were 16 removal requests and only one was granted, according to the California Department of Justice. A subsequent DOJ report, covering Nov. 1, 2017, through Oct. 31, 2018, representing the most recent available data, showed that of 53 requests, only 11 were granted.
CalGang holds roughly 88,000 names.
Being in CalGang isn’t in and of itself a crime, but critics of the database say it effectively criminalizes anyone who’s entered: Entries include a photo; descriptions of their clothing, scars and tattoos; names and addresses of family and friends; information from social media accounts. Young black and Latino men are disproportionately represented.
A state audit of CalGang found the database had been used for employment and military-related screenings. And, it’s been proven to create a too-big net when law enforcement is investigating a crime.
A recent report by Los Angeles-based Urban Peace Institute, which has advocated for reforms to CalGang, called the process of requesting removal from the database “inaccessible and ineffective.” Some law enforcement agencies lack a policy for responding to requests. Others require an in-person interview with gang unit sergeants, “which creates a chilling effect that can reduce the number of requests,” the report says.
The Urban Peace Institute issued its report in advance of the state Department of Justice revising CalGang guidelines — a process that’s supposed to be completed by Jan. 1, 2020. A draft version of the new guidelines addresses a number of issues raised by organizations like Urban Peace Institute, but doesn’t tackle problems with removal requests, said Sean Garcia-Leys, a senior staff attorney at the Urban Peace Institute and the report’s co-author.
San Diego Assemblywoman Shirley Weber, who wrote AB 2298, which created the removal-request process, said it might be time to revisit the law.
“We’re looking to see where we are with CalGang and whether or not folks are getting off the list,” she said. “Some are, but probably not enough.”
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AB 2298 and a companion bill, AB 90, also written by Weber, followed a scathing 2016 state audit that found CalGang rife with errors and lacking in meaningful oversight. People had been added to the database without required supporting documentation, including 28 children under the age of 1 whose records said they’d admitted to being gang members.
In an interview with Voice of San Diego when the audit was released, Weber said it confirmed complaints she’d been hearing from people for years.
“As most folks know, my own son was threatened to be put on the gang list, and he hadn’t done anything,” she said. “I hear these things from parents on a regular basis.”
Weber’s bills sought to boost CalGang’s accountability and accuracy by requiring annual reports and convening a committee to provide input on new regulations. Previously, people had no idea if they’d been entered into CalGang; now police departments must notify them and tell them why they were added. And, starting Jan. 1, 2020, the DOJ will conduct regular audits of law enforcement agencies’ use of CalGang.
AB 2298, as passed by the Assembly, required that law enforcement purge the records of anyone who hadn’t been convicted of a gang-related crime within three years of being entered into CalGang, but this provision was removed by the Senate amid strong opposition by law enforcement.
When an individual challenges their CalGang designation in court, AB 2298 requires law enforcement prove by “clear and convincing evidence” the person is an active gang member. Advocates working with those who’ve requested removal say it’s rare law enforcement meets that burden, or even follows the rules laid out in the law.
Tyrone Simmons’ case, they say, is one such example.
Simmons was the first person in San Diego, and the second in California, to challenge a CalGang designation in court. He seemed like an ideal test case. In 2007, when he was 21, San Diego Police documented him as a Lincoln Park gang member after he met five of the eight criteria, including being seen affiliating with other gang members, flashing gang signs and wearing gang colors. (CalGang rules require that a person meet only two of eight criteria.)
After spending two years in prison on gun-possession charges, Simmons vowed to turn his life around. He earned a college degree, started his own business and co-founded an organization that holds annual back-to-school drives to provide low-income kids with backpacks and haircuts.
In a sworn declaration to support his removal request, he described how the birth of his daughter, Tyjee, changed his life.
“My daughter motivates me to be a better person,” Simmons wrote. “When I went away [to prison], all I did was think every day of how there is no way in the world I should be in here and no way in the world my daughter shouldn’t have her father in her life …”
“I am not a Lincoln Park Gang Member,” he wrote at the end of the declaration. “I should not be in the CalGang Shared Database.”
In an interview last year, Simmons told Voice of San Diego he’d hoped to be a role model for young people whose lives might be veering toward a wrong path.
“I’m like probably the perfect example that you would want to pass down to somebody else and say, ‘Hey, look, you know, he’s been arrested, been to prison, all this stuff. But look what he came out to be, look how he’s turned around and look what he’s doing now.’”
Per AB 2298 rules, Simmons first made a request in writing to SDPD, asking to be removed from CalGang. When the department denied the request, he filed a petition with the San Diego Superior Court with the assistance of attorney Danielle Iredale, who took on Simmons’ case pro bono in the hope it would provide a framework for future cases.
All of Simmons’ contacts with police happened between February 2007 and March 2008, except for one stop in April 2014. SDPD said Simmons was leaving a “gang party” and was in a car with a “known Lincoln Park gang member.”
Simmons told Voice of San Diego he was leaving an annual Easter Sunday picnic with his friend, Aaron Harvey.
“It’s an Easter thing they do in that community every year. It’s right behind the church,” Simmons said of the picnic. “I’ve been there, like, probably every year for the past six, seven years. There’s kids there and they’re trying to say it’s a gang function? Like, come on.”
Harvey, who’s currently a student at UC Berkeley, has similarly objected to being documented as a gang member. He is suing the SDPD and two gang detectives for civil-rights violations stemming from his own arrest in June 2014 under an obscure California gang law that was used to tie him and others to a crime they weren’t involved with. All charges against Harvey were dropped.
“But for an innocuous encounter in 2014, since 2008, Mr. Simmons has had no contacts making him eligible for continued entry in the database,” Iredale wrote in a September 2017 letter to SDPD.
The case seemed clear-cut. Simmons should have been removed in 2013 — guidelines say to purge entries if a person hasn’t had a gang-related contact with police in five years — and in court Iredale would argue that the 2014 stop didn’t meet the criteria for Simmons to be re-entered in CalGang.
“When you’re in CalGang, you’re in as a suspected gang member,” she said in an interview before the hearing. “Your side of the story hasn’t been heard.”
But at Simmons’ hearing, police requested a closed courtroom meeting with the judge, saying they had evidence against Simmons that they couldn’t present in open court — evidence they couldn’t share with Simmons or Iredale. At a second hearing, Judge Laura Parsky told Simmons and Iredale that on April 27, 2013, an SDPD officer saw Simmons “affiliating with known gang members and displaying gang symbols and/or hand signs.”
Iredale objected that this was hearsay.
“They could have had one officer write a declaration,” she said. “They didn’t even spend 20 minutes to do that.”
Iredale argued SDPD failed to meet the burden of proving Simmons was an active gang member.
In the end, the judge deferred to SDPD’s practice of keeping people in CalGang for at least five years. Because of the 2014 stop, Simmons hadn’t passed that test.
Simmons appealed. In a court filing, Iredale reiterated her argument that the law required SDPD to prove Simmons was currently an active gang member.
“By using the word ‘active’ in the statute, the Legislature intended to provide a removal process for individuals who are not active participants in a gang regardless of any past affiliation,” she wrote.
And, even though Simmons’ five years were set to be up in April 2019, she urged the court to issue a ruling anyhow because the case was a matter of public interest and could provide needed guidance for future petitioners.
In a ruling issued in September, the court disagreed, dismissing the case as moot, but noted that the evidence SDPD had withheld from Simmons wasn’t actually privileged information.
“It is now clear that the city [attorney] and SDPD made assertions about privilege and secret evidence that were erroneous,” Iredale said in a recent interview. “Going forward, we will remember the lessons of Mr. Simmons’ case and we will continue to litigate these issues so those erroneously documented can have their day in court.”
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CalGang’s new draft regulations include promising reforms, said Urban Peace Institute’s Garcia-Leys. For example, associating with somebody who’s believed to be a gang member, or being in an area police consider to be a gang neighborhood, would no longer be criteria for documenting someone. And, no one under 13 could be added to CalGang.
But the new regulations don’t address the lack of guidance on removal requests. Unless a person can prove they’re in CalGang in error, agencies default to keeping people in the database for at least five years.
But a report issued by the DOJ Research Center found most gang members leave their gangs after a few years and “a small subset of individuals persists in gang membership for four years or longer.”
“Individuals petition for early release from probation and parole,” said Laila Aziz, program director at Pillars of the Community, a southeastern San Diego nonprofit focused on criminal justice reform. “Gang documentation does not have the same relief.
“A person should be able to challenge their initial documentation and ask for relief annually at the least,” she said. “They should be able to present evidence to mitigate what law enforcement presents.”
Even the proposed guidelines, though, are facing strong opposition from law enforcement agencies, who’ve flooded DOJ with letters asking that no changes be made to the criteria for documenting someone. In a letter submitted in August, San Diego Police Chief David Nisleit said changes would “limit law enforcement’s ability to efficiently and effectively” identify gang members.
“Law enforcement understands the concern that is being expressed about the right of those being entered into CalGang,” he wrote. “The existing rules and regulations, as well as more recent state laws, adequately protect privacy and due process.”
Urban Peace Institute’s Garcia-Leys said he’d like to see the DOJ spend the next year studying how CalGang is actually used and take that information to make policy changes grounded in research.
“CalGang is supposed to be used for criminal investigations,” he said. “They should make a list of … examples of when CalGang helped solve a crime. Then, look at what the people in those searches have in common. Do they all meet five criteria? … Do they all have gang crime convictions? Are they all over 16 years old? That info would be helpful for deciding what records in the database are not needed and what policies lead to the inclusion of unnecessary records.”
Correction: An earlier version of this post misspelled Sean Garcia-Leys.