A routine police stop landed him on California's gang database. Is it racial profiling?

Brian Allen was giving an old friend a ride in 2017 when he was pulled over by LAPD in South Los Angeles. Months later, he ended up on CalGang, the statewide database of suspected gang members, even though he is not a gang member.

May 9, 2019 3 AM PT

Reporting from SACRAMENTO — Brian Allen was driving home from work in July 2017 when he spotted someone from his days at Crenshaw High School. He stopped, they talked and he agreed to give the friend — an aspiring rapper with a criminal record — a ride.

A passing LAPD cruiser did a U-turn and pulled over Allen’s Nissan. Officers questioned both men and let them go.

But more than a year later, police notified Allen that he’d been added to CalGang, a controversial database of thousands of gang members and those in their orbits. Police alleged that he associates with gangs because, Allen suspects, he has been seen in gang areas — the South L.A. neighborhood where he lives — and with an alleged gang member — the old friend.

“I was stunned,” the 31-year-old dance instructor said. “You automatically get cast as [a gang associate] often just because of how you look and where you are.”

This month, the California Department of Justice is expected to release newly proposed standards for how law enforcement can use CalGang, the result of legislation passed in 2017 after a state audit determined the database was filled with errors and lacked accountability.

Law enforcement officials contend that CalGang is an important tool that works well and that being on it doesn’t cause harm because it is so closely guarded. Police say that they are careful about who is added and that the database can be used only for investigations, not to screen people for employment or immigration status, or to fish for criminal activity.

“It doesn’t mean you can go out and pop somebody just because they are in CalGang,” said Wes McBride, a former gang deputy with the Los Angeles County Sheriff’s Department who created the precursor to CalGang in the 1980s. “It’s an investigative tool, a clue.”

But much of the criticism of CalGang is that it remains a vehicle for racial profiling and that it is too easy to be added to it and too difficult to be removed. More than 90% of the nearly 90,000 people in the database in 2018 were men of color, predominantly Latino and black, according to data from the California Department of Justice.

To address those problems and others, the Legislature gave oversight of CalGang to the state attorney general, with a mandate to convene an advisory committee of law enforcement officials and social justice advocates to collectively hash out new rules for identifying gang members and others close enough to them to warrant scrutiny.

That committee deadlocked last year, said Sam Nunez, a Stockton community activist who served as chairperson. The process laid bare the decades-deep chasm between police and communities of color when it comes to deciphering who is dangerous. Crafting the new rules now lies solely in the hands of Atty. Gen. Xavier Becerra.

Becerra’s office declined to comment on the new CalGang rules before their release but will hold meetings to gather public comment in the coming months.

The state Justice Department has already taken steps to fix CalGang, including reviewing a portion of the records in the database for accuracy. But some are worried Becerra, who has not been actively engaged in recent conversations about criminal justice reform, will not tighten the rules as much as he could — especially about what criteria should determine gang status and whether minors should be on the list at all. Both are areas where law enforcement has argued for broad discretion.

Social media posts, tattoos, clothing colors, sports logos, hand signs and other observations by officers have long been used — often with success — to document gang members and solve crimes.

But Sean Garcia-Leys, a lawyer with the Urban Peace Institute who has multiple clients fighting to get off CalGang, said those reasons are open to interpretation — and abuse. He would like to see more evidence-based criteria for CalGang.

Melanie Ochoa, a staff attorney with the American Civil Liberties Union of Southern California, said she is especially uneasy about how a gang “associate” will be defined. At times, it has been loose enough to include “a soccer coach, a girlfriend, or a grandmother” of a known gang member, she said. And, as in Allen’s case, it does not require a criminal record.

“The broader definition is incredibly risky and harmful,” Ochoa said. “Almost anything that a person of color does, that lives in a particular community of color, is then flagged as gang membership.”

Others are worried about keeping minors in CalGang. The database contains 1,022 minors between the ages of 10 and 17, according to a 2018 Justice Department report.

Michael Scafiddi, a former gang cop who is now a criminal defense attorney in San Bernardino and also served on the advisory committee, said kids sometimes claim gang status to navigate dangerous neighborhoods, unaware of the consequences if they are ever arrested.

“Minors, they will say things just to not look bad in front of friends,” he said.

Although CalGang is restricted to certain law enforcement agencies, there are still concerns the data could leak into immigration proceedings, said Christopher Sanchez, a policy advocate for the Coalition for Humane Immigrant Rights. A handful of agencies in other states and two federal agencies — including the Bureau of Alcohol, Tobacco, Firearms and Explosives — have access to it.

Ochoa said she is worried that the state Justice Department is mostly ignoring those concerns and “giving a lot of credence to police officers’ statements on how things work.”

McBride, who also was on the advisory committee, said he thinks the database is largely working as intended.

But the additional oversight might be pushing some agencies to stop using CalGang and keep unregulated, internal lists of gang members instead. Justice Department data show some law enforcement agencies — including El Monte, Long Beach and Rialto — have significantly reduced the number of people entered into the database.

“I’ve talked to so many gang cops, they don’t even use it anymore,” McBride said. “They said, ‘Hell, I don’t even bother…. It’s too much trouble.’”

Though getting on the database is likely to remain easier than some would like, getting off it is an opaque and unpredictable process. Before the 2017 reforms, there was no procedure to request removal and only juveniles had to be notified they were on it.

Brian Allen feels “like all the right paths I took just don’t matter.”

The California Legislature has since mandated a two-step process to petition for removal — first asking police and then appealing to courts if they refuse.

But there is no uniformity and little clarity about how departments must handle such requests. Some provide evidence supporting why a person is on CalGang. Others don’t. Out of 53 requests for removal submitted in California last year, 11 were granted. Courts denied two of three appeals, according to Justice Department data. Garcia-Leys said he has about 10 cases pending this year.

Benjamin Abaroa, 40, was one of the first in California to win approval for removal in 2017, with Garcia-Leys’ help. Despite being a known member of the Boyle Heights White Fence gang in his youth, Abaroa said he recovered from addiction, left the neighborhood and has worked at Homeboy Industries, a gang intervention program, for six years. He convinced the Los Angeles Police Department and other agencies to remove him from CalGang, though it took about six months.

“It feels good, really good. It’s like a blessing, for me and my family, and my kids,” he said.

Ruben Lona, 27, has not been so lucky. A former gang member, he was placed on the database by Fullerton police. He was last released from prison in 2015 and has worked as a construction worker since, he said.

Lona said the Orange County district attorney released him from a gang injunction, and he completed his parole, which included staying away from gangs. But the police and courts have denied his petitions to be removed from CalGang. Lona said still being labeled a gang member has led to harassment, and he worries how it is affecting his young son and daughter.

“No matter what, no matter where I go, they are going to keep bringing it up and using it against me,” he said.

For Allen, the uncertainty of winning removal is both frustrating and frightening. He doesn’t know what the outcome will be, or how being on CalGang could affect his life. With the help of the ACLU, he is preparing an appeal in court.

Allen said labeling him a gang associate is “unjust.” He got into music and dancing as a teenager as a way to avoid gangs and, as an adult, mentors kids to do the same.

“The way I grew up, I was supposed to be a gangbanger,” said Allen, who went by the name Hurricane when he says he helped invent krumping, a hip-hop dance style. “Being in L.A. and being able to dance instead of being on the streets, you were put into situations where you could prosper.”

Now, he feels “like all the right paths I took just don’t matter,” he said. “Everything I have done for my community [was] just spit in my face.”

Times staff writer James Queally contributed to this report.