Cal. Code Regs. Tit. 11, § 771.8 - Criteria to be Designated as a Gang Member or Associate

(a) The criteria to designate a person as a Gang Member or Associate in a shared gang database are:

(1) The person has admitted to being an active member or associate of an active criminal street gang under circumstances that do not undercut truthfulness. The law enforcement officer shall document the relevant circumstances of the admission including, but not limited to: the wording of the admission; the location of the contact; the person(s) present during the conversation; and whether the person was arrested during the contact for violating subdivision (f) of Penal Code section 647 or subdivision (a) of Health and Safety Code section 11550.

(A) This criterion shall not be satisfied unless the law enforcement officer reasonably believes that the person was able to provide a voluntary and competent admission.

(B) This criterion shall not be satisfied if the person admits to only being from a neighborhood rather than a specific criminal street gang.

(C) This criterion shall not be satisfied solely by posts on social media unless there is strong indicia of reliability.

(2) The person has been arrested for an offense consistent with gang activity, as defined in these regulations. The law enforcement officer shall document how the facts and circumstances of the offense are consistent with gang activity.

(A) This criterion shall only be entered into the database when the arrest is documented on a notify warrant; warrant of arrest; or an arrest, juvenile detention, or crime report. A field interview card or report may be used as a source document if it is used in conjunction with an arrest or crime report.

(3) The person has been identified as an active member or associate of an active criminal street gang by a reliable source. The identification shall be based solely on information that would support criteria set forth herein. The law enforcement officer shall document the specific information that serves as the basis for the opinion of the reliable source, why the information provided by the source is consistent with the criteria set forth herein, and the reason(s) that the reliable source has been deemed reliable.

(A) The satisfaction of this criterion shall not be based on an individual's jail classification.

(B) For purposes of subdivision (a)(3), a reliable source shall not be a person who is under 18 years of age, a rival gang member, an untested informant, or the law enforcement officer conducting the interview or completing the source document to satisfy this criterion.

(4) The law enforcement officer has observed the person associating with person(s) who are already entered, or are in the process of being entered, into the shared gang database and the circumstances of the observed association indicates gang affiliation. The law enforcement officer shall document the circumstances of the association; the person(s) present who are already entered, or are in the process of being entered, into the shared gang database; and the reason for believing that the association indicates gang affiliation.

(A) No person, including, but not limited to, family members and outreach workers, shall be considered for designation under this criterion unless there is reasonable suspicion that they contribute to, or are participating in, the criminal street gang's illegal activities.

(B) Incidental community interactions that are not criminal in nature shall not be used to satisfy this criterion.

(5) The law enforcement officer has observed the person displaying one or more symbols or hand signs tied to a specific active criminal street gang to identify their affiliation. The law enforcement officer shall document the specific symbol(s) and/or hand sign(s) and the basis for believing that they are tied to an active criminal street gang.

(6) The law enforcement officer has observed the person at one or more gang-related addresses. The law enforcement officer shall document the specific address(es) and to which active criminal street gang such address(es) are related. The law enforcement officer shall articulate justification for how the address(es) are gang-related including, but not limited to, graffiti by the related criminal street gang and crime originating by that criminal street gang at the address(es).

(A) This criterion shall not be satisfied solely by the fact that the address is the residential address of a person who is already entered into the shared gang database.

(B) Entire neighborhoods and schools shall not be used to satisfy this criterion.

(7) The law enforcement officer has observed the person wearing one or more items of clothing or colors that the law enforcement officer believes are tied to a specific and active criminal street gang. The law enforcement officer shall document the specific clothing and/or colors, and the basis for believing that the person is wearing the clothing and/or colors to express gang membership or association.

(A) This criterion shall not be satisfied solely by the wearing of clothing or colors that are of general interest to the neighborhood or locality including, but not limited to, wearing a local sports team hat, clothing, or colors.

(8) The law enforcement officer has observed the person having one or more tattoos, marks, scars, or brandings indicating criminal street gang membership or association. The law enforcement officer shall document a description of the tattoos, marks, scars, or brandings, the location of each on the person's body, and the basis for believing that they are tied to an active criminal street gang.

(A) A tattoo, mark, scar, or branding that remains unmodified and on the same place on a person's body that was used previously to satisfy this criterion shall not be used thereafter to satisfy that same criterion again unless it meets the elements set forth in subdivision (a)(8)(C) or the record of that person has since been purged from the shared gang database.

(B) If a person has multiple tattoos, marks, scars, or brandings that are the same or similar, and each one of those tattoos, marks, scars, or brandings is on a different location on the person's body, then each tattoo, mark, scar, or branding may be used to satisfy this criterion. However, each one of those tattoos, marks, scars, or brandings shall only be documented to meet that criterion once, and cannot be reentered into the shared gang database as a criterion on subsequent occasions, unless it meets the elements set forth in subdivision (a)(8)(C) or the record of that person has since been purged from the shared gang database.

(C) A law enforcement officer may document a tattoo, mark, scar, or branding as described in subdivisions (a)(8)(A) and (a)(8)(B) to satisfy this criterion on subsequent occasions only if the person is in a public setting and is openly displaying, presenting, or flashing the tattoo, mark, scar, or branding as a means of intimidation. If the law enforcement officer documents the tattoo, mark, scar, or branding pursuant to subdivision (a)(8), the law enforcement officer shall document the relevant circumstances of the contact including, but not limited to, the type of public setting in which the contact occurred and a description of how the tattoo, mark, scar, or branding was openly displayed, presented, or flashed.

(b) For each criterion listed in this section, the law enforcement officer shall document the means by which their observation was made including, but not limited to: in person, in writing, on a video or audio recording, or over the internet.

(c) When designating a person as a Gang Member or Associate, a criterion listed in subdivision (a) shall not be based on contact(s), incident(s), or supporting source documents that are more than one year old. No contact(s), incident(s), or supporting source documents that occurred before the juvenile turned 13 years of age shall be used to designate a juvenile as a Gang Member or Associate.

(d) The existence of all criteria shall be supported by source documents.

(e) Photographs and videos are permitted to be used as source documents only if they are legally obtained.

(1) The law enforcement officer shall indicate whether a recording of their contact with a person is available and if it was recorded by law enforcement, including, but not limited to, body camera footage or an audio recording.

(2) The law enforcement officer shall document the date the photograph or video was observed by the law enforcement officer, the date published and by whom, and the date created, if available.

(3) The use of social media to satisfy any of the criteria set forth in this section shall be carefully evaluated by the law enforcement officer and the law enforcement officer shall consider at a minimum: the context of the posting(s), the frequency of posting, whether there are other corroborating indicators, and whether one can ascertain the true identity of the person posting or pictured.

Notes

Cal. Code Regs. Tit. 11, § 771.8

1. New section filed 10-22-2020; operative 10-22-2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 43). Transmission deadline specified in Government Code section 11346.4(b) extended 60 calendar days pursuant to Executive Order N-40-20. Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-66-20.

Note: Authority cited: Section 186.36, Penal Code. Reference: Section 186.36, Penal Code.

1. New section filed 10-22-2020; operative 10/22/2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 43). Transmission deadline specified in Government Code section 11346.4(b) extended 60 calendar days pursuant to Executive Order N-40-20. Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-66-20.