New records show why you get labeled a gang member in San Diego County

Police are required to notify people they intend to list as gang members in a controversial state database, but local agencies aren’t required to keep records of these notifications.

inewsource sought notification letters from seven law enforcement agencies in San Diego County through public records requests over the past eight months. Of 829 people added by those agencies to the CalGang database locally from 2017 through 2019, only about 350 letters have been turned over.

These letters are important because they give the reasons someone is being labeled as a gang member, a designation that can affect every interaction with the justice system — from how a prosecutor handles a first-time low-level offense to how an officer interacts with someone during a traffic stop.

The database — and the effects it can have on African American and Latino men especially — has been criticized for years. But the death of George Floyd by a Minneapolis police officer and the nationwide protests for police reform that followed have intensified efforts to at the very least stop officers from labeling people as gang members.

An analysis of the notification letters inewsource obtained found four out of every five people added to the CalGang database in San Diego County were told one reason was affiliating with a known gang member. In more than half the cases analyzed, people were told a reason was being in an area known for gang activity.

RELATED: San Diego activists join call to stop labeling people as gang members

Critics say that could mean spending time with a relative who is already documented as a gang member. Or it could be attending school in an area that police consider to have gang activity.

Law enforcement will tell you it’s an important tool, said Geneviéve Jones-Wright, executive director of Community Advocates for Just and Moral Governance and a former San Diego deputy public defender. But for too long, it has been misused, she said.

“This is something that stretches long and wide and is completely pervasive in a lot of people’s lives, who a lot of folks believe should have never been included in the first place,” Jones-Wright said.

But police need to balance protecting communities from gang violence and unfairly labeling people, said San Diego police Detective Jack Schaeffer, who also is president of the San Diego Police Officers Association. He said it more than likely protects underserved communities because gang violence often stays within the same communities.

Criteria for making the list

inewsource received letters from six police departments in the county — Chula Vista, El Cajon, Escondido, National City, Oceanside and San Diego. These agencies, as well as the San Diego County Sheriff’s Department, are the only ones in the county that have added people to the list between 2017 and 2019.

The Sheriff’s Department has documented 466 people as of last year but has refused to provide any of the notification letters. Sheriff Bill Gore declined to be interviewed for this story.

San Diego police have provided 178 letters as of Friday, and records show they have 277 more to review before making them public. As of last year, the department had documented more than 2,800 people as gang members.

Records show National City police added 71 people to the database but only provided 13 letters to inewsource. Nothing requires agencies to keep copies.

Each letter has the corresponding agency’s letterhead and is signed by a sergeant or lieutenant. The names and addresses of those who received the letters have been removed. Each department uses its own language to convey the message. They all explain how to file an appeal, and three out of four mention that an attorney can help challenge their inclusion. About half describe what CalGang is and how it works.

But they all use roughly the same seven criteria as reasons to put people on the database:

• Admitted to being a gang member.
• Arrested for offenses consistent with gang activity.
• Affiliating with documented gang members.
• Displaying gang symbols or hand signs.
• Frequenting gang areas.
• Wearing gang dress.
• Has gang tattoos.

The Attorney General’s Office oversees the database, and in 2017 the Legislature ordered the agency to make the criteria more strict by January of this year. That still hasn’t happened, though changes have been proposed.

This month nearly 40 organizations in the state, including one from San Diego, signed a letter to the attorney general calling for a moratorium on adding people to the database. They also asked that rules for using CalGang be adopted “that provide real protections to the communities wrongly targeted by gang labeling for far too long.”

“In the meantime,” the letter says, “the CalGang database continues to be utilized by law enforcement agencies under the old policies and practices which the legislature expressly found unacceptable in 2017.”

A spokesperson with the Attorney General’s Office said in an email, “This process takes time,” and that officials have considered comments from many stakeholders. It’s unclear when changes will be made.

State law requires law enforcement to list at least two criteria for someone to be documented as a gang member, but the six San Diego County departments that provided records to inewsource require three.

That said, inewsource found departments broke their own policies by using only two criteria at least 38 times — San Diego police with 23, Oceanside police with 10, Escondido police with four and National City police with one. San Diego police Chief David Nisleit declined an interview for this story.

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Oceanside’s policy says people added with two criteria are only considered gang affiliates and would not be subject to gang enhancements, police Lt. Matt Cole said. Gang enhancements can add time to a person’s sentence if convicted of a crime.

Escondido police Capt. Justin Murphy said a violation of the policy would be grounds for counseling, training or disciplining an officer. But a subsection of that policy allows officers to put people on the database with only two criteria when it’s in the “public interest,” such as violence-related contacts. Murphy believes those four cases met the public interest standard.

A National City police sergeant said citing three criteria is more of a guideline than a policy. But what could have happened in his city’s one case, he said, is that the person admitted to being a gang member to two separate officers, therefore meeting the threshold.

Associating with family members

Affiliating with a documented gang member and frequenting a gang area are the most commonly cited reasons for adding someone to CalGang in San Diego County.

Critics say those criteria cast a wide net that has created problems with the database since it was created in 1998, despite changes made following the 2016 audit.

Sean Garcia-Leys, an attorney with the Urban Peace Institute, fights for people wrongly accused of active gang participation in Los Angeles. He said he sees overbroad inclusion when it comes to associating with family members.

“If you’ve got a family with three or four brothers and one of the brothers is an active gang member, then there is a very high probability that the siblings are added to the gang database also,” Garcia-Leys said.

“This is exactly the kind of policing the protests have been directed at,” he added.

It’s much more apparent in Oceanside, where roughly nine out of every 10 people added to the database are given reasons of affiliating and frequenting. But Cole, who oversees the department’s gang unit, said officers aren’t documenting people as gang members for spending time at a family BBQ. They take the documentation process very seriously.

“It’s a big deal,” he said. “It comes with potential enhancements and penalties to somebody, and we want to make sure we do it the right way.”

Schaeffer, who spent 12 years in the San Diego Police Department’s gang unit, said no one should be on the database who doesn’t deserve to be there, and he believes officers should take a conservative approach to labeling someone as a gang member. But he said association with other gang members is a critical component to determining involvement.

“I kind of really got a better feeling someone was trying to get out of the gang life when they stopped hanging out with gang members,” he said.

In San Diego County, police also cite “arrested for offenses consistent with gang activity” about 54% of the time. There are 33 possible offenses considered to be consistent with gang activity, from murder and robbery to counterfeiting and witness intimidation.

Police also selected “admitted to being a gang member” and “displaying gang symbols or hand signs” about half the time as reasons for putting someone on the database.

But police aren’t required to provide any details about which officer obtained the admission or witnessed the gang signs, or when it happened, said San Diego attorney Danielle Iredale, who has represented one of the few people in the state who challenged being on the gang database.

“That to me is the huge and inherent problem with this database,” said Iredale, adding that it’s hearsay. “We have no idea what was actually said. We have no idea to whom it was said. What if it was said to an officer with a hearing issue? We don’t know any of that.”

That’s a battle you can’t fight, she added. “You’re going in blind.”
Nearly one out of every three people added to CalGang by police in San Diego County were told it was because they have gang tattoos.

The attorney general’s proposed changes to the criteria, which still haven’t been finalized, would address some concerns by requiring more information from law enforcement about these interactions. For example, an officer who obtained an admission of gang membership would have to document the wording of the admission, where it happened and who was present.

To add someone for affiliating with a documented gang member, an officer needs to say why they believe that affiliation indicates gang membership, and family members can’t be included without reasonable suspicion.

inewsource intern Natallie Rocha contributed to this report.