With President-elect Donald J. Trump just weeks from taking office, legal experts and advocates in California are scrambling to convince state Attorney General Kamala Harris to block federal access to the state’s controversial gang database out of fears that the Trump administration will use it to deport unauthorized immigrants who’ve been erroneously labeled as gang members.
A highly critical report released earlier this year by the California State Auditor showed that as a result of “weak oversight,” the CalGang database contains questionable information that may violate the privacy rights of individuals in the database.
Among other things, auditors found that in some cases law enforcement agencies put individuals in the database without adequate evidence, failed to purge CalGang records that had not been updated within five years, and poorly implemented a state law requiring that juveniles and their parents are notified before the minor is placed in the database.
Until the report’s recommendations are implemented, organizations such as the Urban Peace Institute in Los Angeles and the ACLU of Southern California are calling for a moratorium on the use of the database until the auditor’s recommendations are implemented, and are asking Harris to cancel a California Department of Justice agreement that allows federal immigration enforcement agents to search the CalGang database.
‘Until the Department of Justice can assure people that there is accuracy and that there are no harms to being put in the database…basically the plug should be pulled on CalGang until those things happen because the risk of the database being used in immigration is just too high to allow it to continue right now,” said Sean Garcia-Leys, a staff attorney at the Urban Peace Institute, which works to reduce and prevent community violence.
In an emailed response to a reporter, Harris’ office did not answer questions regarding whether she would address the request for the moratorium on CalGang or the cancelation of the agreement between the state and federal immigration authorities.
A New ‘Deporter-in-Chief’
Trump has backed away from his campaign pledge to deport 11 million undocumented immigrants estimated to be in the United States. But in a 60 Minutes television interview shortly after his election, he vowed to immediately deport as many as three million undocumented immigrants, specifically those with criminal records such as gang members and drug dealers.
Some immigration attorneys fear that existing deportation policies under President Barack Obama, whom critics have dubbed the “deporter-in-chief” for the record number of deportations during his presidency, will expand under Trump to include more immigrants who have committed low-level offenses.
For example, an 87 percent increase in the deportation of “convicted criminals” between 2008 and 2014 was largely due to the government’s overly broad classification of criminal behavior, which included major increases in individuals with traffic or immigration violations, according to a detailed analysis of deportation data by the Transactional Records Access Clearinghouse, a data gathering research center at Syracuse University.
“I know there has been a lot of criticism, which has been warranted on the Obama administration’s deportation and immigration enforcement track record, but I think unfortunately it can get much, much worse,” said Jennifer Koh, a law professor and immigration clinic director at Western State College of Law in Irvine.
California’s Trust Act prohibits local law enforcement from detaining an individual who is eligible for release from custody on a federal immigration hold, unless the individual has been convicted of a serious crime. Immigrant advocates have praised the law, which went into effect in 2014, for curtailing U.S. Immigration and Customs Enforcement (ICE) programs that deported thousands of California immigrants for minor offenses.
How the Trump administration will define a “criminal immigrant” remains unclear, said Koh. She’s concerned the definition may include anyone who has ever been arrested of any crime at any point, been suspected of gang membership or of being a danger to society.
“It all springs from how the administration as a policy matter chooses to define who it thinks is a priority. And all signals indicate that the Trump administration is going to define that with a far wider net than the Obama administration ever did,” Koh said.
In media reports, Kansas Secretary of State Kris Kobach, who has advised Trump on immigration matters and is speculated to be a potential pick for Secretary of Homeland Security, has said that the definition of a deportable offense would need to broaden under the Trump administration to include any felony, and possibly individuals who have been arrested but not convicted of crimes.
There are cases when an individual may not be convicted, but is a known gang member and “we ought to get him out of the country” Kobach told CNN last month.
Errors and Bias
But as researchers have discovered, determining who is a documented gang member is a process that is not only subjective, but also prone to human error and bias. This has led gang experts to question the reliability of information obtained by federal immigration authorities who tap into the CalGang database or other state-level gang databases to determine who is a gang member, affiliate or associate.
“There are definitely concerns considering that we already know from previous research and the CalGang audit, for example, that getting into this database or becoming labeled as a gang member can be highly speculative, and it’s done according to a process that is not particularly rigorous,” said Ana Muñiz, an assistant professor of criminology, law and society at the University of California, Irvine.
Muñiz cited one example from the CalGang audit of several instances where individuals were labeled as gang members in the database with no evidence.
“I think it’s very concerning that someone could, on a very low threshold of proof, be put into one of these databases as a gang member and have it affect so much of their life. And the concern now, obviously, is that this could affect their ability to stay in the country,” said Muñiz, an expert on gang injunctions and author of the 2015 book “Power, Police and the Production of Racial Boundaries.”
CalGang is supposed to be used by police as a source and investigatory tool to track youth and adults alleged to be gang members. The state requires that in order for a law enforcement officer to enter an individual into the database, at least two of 10 criteria must be met. Those include a gang membership admission or if an individual is arrested with known gang members for offenses that are “consistent with gang activity.”
Other criteria include wearing “gang dress” or having gang tattoos, as well as frequenting gang areas. Civil rights and defense attorneys say such criteria are subjective and can lead to misclassification and racial profiling of youth of color based on how they look and where they live.
Due process concerns come into play when these documents alleging gang membership are shared via the database with federal agents and prosecutors because the allegations are unproven and have not been challenged in court, said Garcia-Leys, who also cited examples where police officers have directly emailed gang allegations to immigration officers.
“So the gang allegations that are being made by police officers for investigatory purposes are ending up in immigration proceedings improperly without people having a chance to question them, which is against the spirit and the policies of the databases that record these investigatory documents,” said Garcia-Leys, who specializes in gang databases and gang injunctions at the Urban Peace Institute.
Most concerning, said Garcia-Leys, is the state audit found there is no consistency within the database and thus no sense of the overall scope of the problems raised in the audit. Consider, he said, that in some cases the database identified an individual as a self-admitted gang member when in fact the opposite was true – the person had denied being a gang member.
“So if Trump were to start moving, like he says he’s going to, to deport as many people he can find who are alleged gang members, there’s going to be a lot of people who are not actually gang members who are going to end up being deported” Garcia-Leys said. “And there’s no guarantee that they are going to have adequate protection to make sure that the gang members and the non-gang members are differentiated.”
Gang members have long been a priority for ICE, and Obama likewise emphasized targeting gang members for deportation. In 2014, when the president announced his plans to expand the Deferred Action for Childhood Arrivals (DACA) program, he made it clear that immigration authorities would continue to zero in on threats to the nation’s security.
In Obama’s words, his priorities were “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”
DACA doesn’t grant legal status, but allows immigrants who arrived as children to the United States and meet certain requirements to request a temporary two-year reprieve from deportation as well as the authorization to work. The DACA form from United States Citizenship and Immigration Services specifically asks each applicant whether he or she is “now” or “ever” has been a member of a gang.
On Jan. 1, 2017, a new California law will allow adults to contact their local law enforcement agency to determine if they are on the CalGang database, and to challenge their inclusion on the list. But while the law provides more transparency, it does not address the flaws exposed by the state audit because the law was crafted before the report was released, said Garcia-Leys.
His hope is that either the California Legislature or Harris (who will leave office to become one of California’s senators on Jan. 3) might take action before Trump is inaugurated to address the database concerns; or that individual law enforcement agencies choose to stop participating in CalGang. Garcia-Leys cited Minnesota as an example of a state that ceased use of its gang database because of privacy concerns, the risk of error and other issues.
While the state auditor recommended providing better oversight of CalGang as well as clear lines of authority and responsibility, unless the California legislature or the state attorney take action, these recommendations can’t be enforced, said Peter Bibring, a senior staff attorney at the ACLU of Southern California and director of police practices for the ACLU of California.
Until these flaws are addressed, the attorney general should call for an immediate moratorium on the use of the database, including blocking access to ICE, Bibring said.
“The potential use of the database by immigration authorities to identify people to be deported is the most egregious harm that could come from reliance on the flawed information,” he said.
Had the CalGang database been used as originally intended by its designers, as an investigatory tool, the inaccuracies exposed by the audit and the potential harm caused by these errors would be limited to the investigations conducted before criminal charges are filed, said Garcia-Leys.
“But what we know is that as these database networks have expanded, as more and more agencies have become connected electronically to these documents, that there are increasing harms and they have been most obvious in the immigration context,” said Garcia-Leys. “And this is an area that could be exploited by a Trump Administration looking for ways to justify deporting as many people as possible, as quickly as possible.”
Yvette Cabrera is a long-time Orange County journalist and Voice of OC contributing writer. You can reach her directly at firstname.lastname@example.org.