Police Reformers Should Demand Overhaul of CalGang Database 

[This post is co-authored by Dominick Van Cleve.]

In 2014, Aaron Harvey, a 26-year-old studying for his real estate license, was met by U.S. Marshals outside his Las Vegas, Nevada, residence. Not until three weeks after his arrest did Harvey learn he would be charged with crimes in connection with nine murders in San Diego, California, and if convicted could face up to 56 years in state prison.

But prosecutors already knew what Harvey had been insisting to the police—that he wasn’t involved in any killings.

Instead of participating in the homicides, Harvey’s only “connection” to the crimes was that his name was in California’s obscure CalGang database. The reason was not that he belonged to a criminal enterprise, but because he appeared in a photo on Facebook wearing a shirt with green on it and lived in a neighborhood rife with gang activity. Under California law and thanks to the database, it did not matter that Harvey had no tangible connection with the crimes.

Nor did it matter that he had no knowledge of the commission of a crime. Under California Penal Code Section 182.5 anyone having knowledge of—or who would plausibly “benefit” from—criminal gang activity is considered having committed gang conspiracy. It is the ultimate guilt-by-association statute, though it runs against the state’s traditional criminal conspiracy statute requiring that an individual “promote, further, or assist in the commission of that particular substantive offense.”

Willing to invoke the “benefit” clause, prosecutors at Harvey’s criminal trial argued that he benefited from the San Diego murders because they would have boosted his social standing.

The CalGang database has played a key role in operationalizing the state’s broad interpretation of culpability for gang activity. Administered by the State of California Department of Justice, and with regionally operated databases under its umbrella, it is available to law enforcement across the state. Police officers can add anyone they suspect of gang membership. Neither an arrest nor an investigation is required for entering a person into the shared database. The entered data, which is stored for future retrieval, is rarely cleared.

Harvey never belonged to a gang, but the authorities’ qualifying threshold for a gang member is subjective enough to include nearly anyone. One of the standards is to use a ten-point system; meeting any two of the ten conditions could be sufficient to enter someone as a gang member. Among them are “wearing gang dress” and “having been seen frequenting gang areas.”

The implication is startling enough to warrant repeating: Simply wearing a color associated with a gang (virtually all the colors on the wheel have been claimed by a gang somewhere) or living or working in an area with gang activity could land a person on California law enforcement’s list of gang members.

In preparation for his hearing, Harvey also learned he was not the only one on the hook: 14 others were also arrested. With 543 individuals labeled by law enforcement as Lincoln Park Bloods, San Diego County’s district attorney belabored the point that 543 different people could be held criminally responsible for the nine murders.

One of Harvey’s co-defendants was childhood friend and San Diego hip-hop performer Brandon Duncan, a.k.a. “Tiny Doo.” The rapper was charged with conspiracy to commit murder based on lyrics from one of his albums. Deputy District Attorney Anthony Campagna said, “We’re talking about a CD [cover depicting] a revolver with bullets.” The prosecution argued Tiny Doo was also a “beneficiary” of the shootings by virtue of increased album sales and social standing among gang members. The album in question was, in fact, a free digital download.

Harvey and Tiny Doo’s charges were eventually dropped, in 2019, but only after the two men had been jailed for seven months. Years after they were arrested, the CalGang database is still used with little public scrutiny, let alone any major overhaul in the name of criminal justice reform.

The problem is worrisome not only because many of the database entries are groundless, but also because news reports have raised the possibility that police have falsified CalGang records. Even infants and toddlers have been classified as gang members. A California State Auditor’s report in 2016 noted that upwards of seventy percent of minors included on the database were not notified that they were listed in the database. Not only does a failure to inform minors of their police designation deny them a possibility of contesting their inclusion in the database, but such a failure is in direct violation of state law.

In their review of the CalGang system, Camille Ochoa and Dave Maass of the Electronic Frontier Foundation concurred with the state audit, writing that, “CalGang violates people’s rights, operates with no oversight, is chock full of unsubstantiated information and data that should have been purged, and has diminished value in protecting public safety.”

In this time of dialogue on possible law enforcement reforms, changes to the CalGang database should be part of the discussion. At minimum, increased transparency and regular audits of CalGang should be required. Municipal police can opt out of the database as the Los Angeles Police Department did in June. In addition, Penal Code Section 182.5 should be amended so that a prosecutor’s subjective sense of “benefiting” from criminal gang activity cannot be an element of criminal conspiracy. The injustice is too great to let stand.

 * * *

Dominick Van Cleve is a paralegal from the San Diego area.

Jonathan Hofer is a Research Associate at the Independent Institute. He has written extensively on both California and national public policy issues. He holds a BA in political science from the University of California, Berkeley. His research interests include privacy law, student privacy, local surveillance, and the impact of emerging technologies on civil liberties.
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