SAN DIEGO (CN) – A San Diego judge on Friday denied one of the first legal challenges to California’s gang database, which legislators have said should be overhauled due to inaccuracies and poor management.
Judge Laura Parsky ruled San Diegan Tyrone Simmons will remain on the CalGang database until his name is purged in April 2019.
Last year Simmons filed what is believed to be the second petition in the state asking the San Diego Police Department to remove his name from the database. His petition was denied, leading him to ask the court to review and reverse.
Simmons’ petition stems from a 2017 law by Assemblywoman Shirley Weber, D-San Diego, which requires police to notify people they include on the gang database. The law allows people on the list to challenge their designation.
Simmons says he has not been affiliated with a gang since his daughter was born a decade ago.
CalGang came under fire in 2016 when a state audit revealed that the database with 150,000 suspected gang members also contained glaring errors such as the names of more than 40 infants. Hundreds more people were on the list though their names should have been purged because they had not been updated, according to the audit.
Law enforcement is required to remove names from the list if there is no evidence of involvement with a gang for five years.
Friday’s hearing was a continuance from earlier this month, when San Diego Deputy City Attorney Michelle Garland had a private hearing with Parsky to go over privileged information. Garland was instructed to “scrub” the information so it could be shared with the public.
But Parsky found Friday only limited information should be made public following another private hearing. Parsky shared one “contact” cited by the police department to keep Simmons on the gang database: On April 27, 2013, police said, an officer observed Simmons affiliating with known gang members and displaying gang signs.
The name of the police officer who saw Simmons that day was not disclosed.
During oral arguments, Simmons’ attorney Danielle Iredale said nondisclosure is problematic when it comes to petitioning for removal from CalGang. Iredale said her client’s due process rights were violated because she and Simmons could not be present when privileged evidence was presented to Parsky.
“We were not able to confront anyone who made those observations,” Iredale said.
Iredale said the police department must prove Simmons is an active gang member to justify including him on the database, which it failed to do.
She challenged the idea that if Simmons was only associated or affiliated with an active gang member he should remain on the database, noting the Southeast San Diego neighborhood is “heavily policed” and many residents are listed as gang members.
“The only way for Mr. Simmons to have gotten off this list is to never set foot in the community he grew up in,” Iredale said.
“In the last 10 years the contacts have been benign and simply come from the fact that Mr. Simmons is from a community that is extremely policed.”
Iredale said there is harm in keeping Simmons on the list, even if only for another year because he wants to “take back his identity” and “is being labeled in a way that does not represent his current circumstances.”
Garland said while the police department and city attorney do not dispute the positive steps Simmons has taken to turn his life around, “there is no five-year gap” in police contacts and his last contact was “not benign.”
“All of the positive things do not negate the reasons he was entered into the database in the first place,” Garland said.
She said the five-year requirement gives standards and uniform expectations to police departments across the state, as well as for those who “find themselves in the gang lifestyle” to know what is required for removal from CalGang.
Parsky found “clear and convincing evidence” that Simmons should remain on the database until 2019 before saying, “Good luck, Mr. Simmons.”
Following the court hearing, Iredale told Courthouse News they plan to appeal the decision.
She said the judge’s decision “rubber-stamps” what police have decided is standard, and that they were very surprised the police department denied Simmons’ petition in the first place.
City Attorney spokesman Gerry Braun said: “The court found that the San Diego Police Department showed by clear and convincing evidence that plaintiff’s name should remain on the CalGang database.”