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California Gang Database (CalGang) Removal (CA Penal Code sections 186.34 and 186.35)

Over the last several months, the Los Angeles Police Department has been involved in a scandal where several of its officers have been accused of adding people to California’s CalGang database without sufficient cause. The Los Angeles Times has reported on this extensively. Some officers have been criminally charged with falsifying the evidence and documentation needed to justify adding someone to CalGang. Allegedly, these officers were fabricating this evidence in order to meet quotas instituted by LAPD’s data-driven culture about how many people they needed to add to CalGang. Failure to meet those numbers would presumably have been used as evidence individual patrol officers were not doing their jobs, not being productive, etc. The LAPD has now been sued civilly for this scandal by people who allege that they suffered injuries (e.g. job loss) as a result of being improperly included in CalGang.

In this post, I’m going to go over two sections of California’s Penal Code — sections 186.34 and 186.35 — pertaining to how individuals who have been added to CalGang can challenge their inclusion. These two statutes, obviously, are not specific to the city or county of Los Angeles. If you have a problem with CalGang elsewhere in California, these statutes might be helpful for you as well so read on.

What is CalGang?
Let’s start from the basics. CalGang is a statewide database maintained by the California Department of Justice. Like any database, it is meant to provide a single source for accurate information about a particular subject that multiple parties can draw upon. According to the CalGang website, CalGang’s purpose is to “provide law enforcement agencies with an accurate, timely, and electronically-generated database of statewide gang-related intelligence information.”

Access to CalGang is limited to law enforcement personnel only, but according to their site, not all law enforcement personnel in California have CalGang access. Access is only for agencies, personnel, and staff who are “approved and trained”.

Because access is for law enforcement only, I personally have not used CalGang, but one of CalGang’s features is a list of people who are gang members. If you are actually a gang member, being labeled one is at least justified by the facts. If you’re not a gang member, though, being incorrectly labeled in CalGang as a gang member can cause you a bunch of problems. Job loss and all the associated financial consequences of that is quite common.

Am I in CalGang?
Depending on your situation, you might know that you’re in CalGang already. However, if you are going to pursue removal, you should first get confirmation one way or the other that you are actually in CalGang. Finding out if you are — or are not — in CalGang at all is fairly simple. According to the CalGang FAQs on their website:

“You, or an attorney working on your behalf, may submit a written request to any local law enforcement agency to determine if you are listed in the CalGang® database.

The law enforcement agency will provide details regarding whether you are designated in CalGang® and the name of the law enforcement agency that made the designation. If you are a juvenile person under 18 years of age, your parent or guardian or an attorney working on your behalf may submit a written request.

Please note, if responding to an information request from either an adult or a juvenile would compromise an active investigation or the health and safety of a juvenile who is designated as a Gang Member or Associate in the CalGang® database, the law enforcement agency that received the request is not required to provide a response.

The DOJ has created a “Sample Information Request” to provide an example of what you or an attorney working on your behalf may submit to your local law enforcement agency. The sample is available for download: Sample Information Request, pdf.

Not all law enforcement agencies participate in CalGang®. Please refer to the most recent “Attorney General’s Annual Report on CalGang” for a list of CalGang® law enforcement agencies: https://oag.ca.gov/calgang/reports. If you have further questions regarding whether your local law enforcement agency participates in CalGang®, please contact us at CalGang@doj.ca.gov.”

The underlying statute allowing a person to find out if they are in CalGang is Section 186.34(d) of the California Penal Code and the various subparts contained within it. Section 186.34(d) says the following:

“(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.”

A few things of note here:

  • Section 186.34(d)(1)(A) is what allows for a person to find out from any law enforcement agency whether they are or are not included in CalGang and, if you are, which law enforcement agency put you there. The request needs to be in writing.
  • If you are in CalGang, Section 186.34(d)(1)(B) gives you the right to find out why you were included in CalGang originally.
  • Under Section 186.34(d)(2) and (3), the law enforcement agency you make this request of — which may or may not be the same law enforcement agency which put you in CalGang in the first place — has to respond to your request within 30 calendar days of receiving your written request. The exception to this would be if responding to your request would compromise an active criminal investigation or, if you’re under 18, compromise your health or safety somehow.

As indicated in the blurb from the CalGang FAQ that I pasted above, there is a sample request form you can use to inquire whether you are or are not in the CalGang database.

As an aside here, Section 186.34(c) also specifies that a law enforcement agency is supposed to send a written notice to a person when the agency puts them in CalGang initially. Section 186.34(c)(1) says that this notice shall state that the person has been put in CalGang and the reason(s) they have been included, unless doing so would compromise an active criminal investigation or, in the case of a minor, endanger their health or safety. Section 186.34(c)(2) also says that this initial notice shall describe to the person how they can contest their inclusion in CalGang.

Practically-speaking (e.g. how often mailing addresses change, etc), I can completely understand how this written notice is often not received by the person when they are added to CalGang.

What can I do to get removed from CalGang?
Now suppose that you inquire as Section 186.34(d) gives you the right to do and you find out that you are indeed in CalGang. You also find out the name of the law enforcement agency that put you there and the reason they put you there. Suppose that you know that the reason cited is incorrect or an outright fabrication. What can you do to get removed?

Step 1: Agency-Level Review
There’s a two step-process you have to follow. Under Section 186.34(e), the first step is you have to dispute the inclusion with the law enforcement agency that put you in CalGang originally. If you’ve moved, this agency might not be local to where you live right now. As part of the dispute, you can submit documentation showing why the inclusion is incorrect. That law enforcement agency then has to review your evidence and, within 30 calendar days, decide whether you are or are not ” a suspected gang member, associate, or affiliate.” If the agency determines you are not, that agency has to remove you from CalGang.

If the agency fails to response to you within 30 calendar days, that counts as a denial of your dispute. If the agency does indeed respond to you within the 30 calendar day period and explicitly denies your dispute, their denial has to tell you the reasons why they denied your dispute.

Step 2: Court Review
If the law enforcement agency who put you in CalGang initially denies you at step 1, you have to go to step 2, namely go to court and have a judge determine if you should or should not be in CalGang. The governing statute for this step is Section 186.35 of California’s Penal Code.

Section 186.35 goes over several things that are — for lack of a better word — procedural in nature. For instance:

  • To initiate Step 2 of the process, you have to file your case within 90 calendar days of the denial from Step 1.
  • You can file the case either in (1) the county in which the law enforcement that put you in CalGang originally is, or (2) the county in which you reside, if you currently reside in California.
  • There is a filing fee for the case and it is specified in Section 70615 of the California Government Code. As of the date of this post, that fee was $25.

All of these are, of course, important to know and comply with. You obviously don’t want to lose your case and remain in CalGang because you missed a deadline or filed your case in the wrong county.

The more important part of Section 186.35, I think, is Section 186.35(c) and (d) which respectively state: which states:

“(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.” (emphasis added)

In other words, the court will review the same evidence you submitted in Step 1 to determine if the law enforcement agency’s denial was justified. The part I bolded and underlined in (d) says that you’ll have the opportunity to make arguments to the court about why, for instance, you think the law enforcement agency’s analysis of and conclusion from the evidence is wrong. However, you won’t have the opportunity to provide new evidence to the court that the law enforcement agency did not get to see in Step 1. As a result, you should count on getting all of your evidence ready and submitting it as part of Step 1.

Whether you succeed on getting removed from CalGang depends, of course, on the facts of your case, the evidence behind why you were put in CalGang originally, etc. However, according to the Los Angeles Times:

“In fact, everyone who has challenged the LAPD’s decision to place them or their child in the gang database in court has had their name removed, according to a [Los Angeles] Times review of records and interviews.”

This quote is from an LA Times story entitled “The LAPD Branded Them As Gang Associates. But They Fought Back and Got Removed From the CalGang Database” dated February 13, 2020 by a reporter named Leila Miller.

Based on all of the above, you have options available to you if you are in the CalGang database. One officer’s determination that you should be included is not the final word on the issue.

As always, I hope this post helped. It is not meant to be an exhaustive or comprehensive determination of the law discussed. If you are going to rely on the information in this post, please do your own research as it is entirely possible that the law might have changed in the time between when I wrote this post and when you’re reading it. Hopefully the links I included above will help you in that research. If you do have a situation involving CalGang, please do find a lawyer in your area with whom you can discuss the details of your case. Best of luck.

 

 

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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