1 2 3 4 5 SEAN GARCIA-LEYS (State Bar No. 313558) 1012 W. Beverly Blvd., #864 Montebello, CA 90640 Telephone: (323) 490-2412 Email: sean.garcialeys@gmail.com Attorney for Petitioners and Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 6 7 8 9 10 11 12 13 14 15 16 PILLARS OF THE COMMUNITY, a nonprofit corporation, CHICANXS UNIDXS, an unincorporated association, FRANCISCO ROMERO, a taxpayer, Petitioners and Plaintiffs, v. THE CALIFORNIA DEPARTMENT OF JUSTICE, XAVIER BECERRA, in his official capacity as Attorney General, DOES 1-20, Case No.: Unlimited Jurisdiction VERIFIED PETITION FOR WRIT OF MANDATE [C.C.P. § 1085] AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [C.C.P. § 526a] Respondents and Defendants. 17 18 19 Petitioners/Plaintiffs Pillars of the Community, Chicanos Unidos, and Francisco 20 Romero (“Plaintiffs”) bring this petition and complaint seeking alternative and 21 peremptory writs of mandate, pursuant to Code of Civil Procedure section 1085, and 22 seeking declaratory and injunctive relief, pursuant to Code of Civil Procedure section 23 526a and the common law authority for taxpayer suits, to compel 24 Respondents/Defendants the California Department of Justice and Attorney General 25 Xavier Becerra (“Defendants”) to implement a moratorium on the use of the CalGang 26 database until its operation complies with Penal Code section 186.36. 27 28 Unless explicitly stated to the contrary, all allegations are based on information and belief. Plaintiffs allege as follows: 1 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 INTRODUCTION 2 1. The Department of Justice administers and oversees the CalGang database, 3 a controversial database used by law enforcement agencies at taxpayers’ expense to share 4 the names and personal information of individuals whom law enforcement officers 5 suspect of gang membership, or whom officers suspect of mere association with a gang, 6 even when those individuals are not suspected of any specific criminal activity. The 7 database currently tracks an estimated 60,000 Californians. 8 9 2. In 2017, following public outcry against the database and a scathing audit of the database by the California State Auditor, 1 the Legislature enacted the Fair and 10 Accurate Database Act of 2017 (“AB 90”), 2 which assigns the Department of Justice the 11 tasks of regulating CalGang and other shared gang databases and bringing CalGang into 12 compliance with state and federal law. In AB 90, the Legislature gave the Department of 13 Justice until January 1, 2020, a two-year period, to promulgate regulations for the 14 periodic auditing of CalGang. 15 3. However, the Department of Justice has not promulgated regulations. 16 Without regulations for the periodic audit of CalGang, all use of the CalGang database by 17 law enforcement agencies since January 1, 2020 has been out of compliance with state 18 law. 19 4. Because the Department of Justice has not promulgated regulations for the 20 operation and periodic audits of CalGang, law enforcement agencies continued use of the 21 database lacks the minimum accountability measures required by law. This lack of 22 accountability has had already had serious consequences. Since the Department of Justice 23 missed the statutory deadline for promulgating regulations, the largest scandal in the 24 history of CalGang has come to light as having happened under the Department of 25 26 27 28 1 California State Auditor (2016) The CalGang Criminal Intelligence System: As the Result of Its Weak Oversight Structure, It Contains Questionable Information that May Violate Individuals’ Privacy Rights, https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf. 2 Assem. Bill No. 90 (2017-2018 Reg. Sess.). 2 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 Justice’s watch but without its knowledge. Through investigation independent of the 2 Department of Justice, the Los Angeles Police Department (“LAPD”) discovered that 3 several of its officers falsified records for entry into CalGang. 3 Upon further independent 4 investigation, the LAPD discovered that, even beyond the potentially criminal actions of 5 a few of its officers, there was serious department-wide misuse of the database. The 6 LAPD concluded that “LAPD’s entry of individuals into the database appears haphazard 7 at best” and “LAPD has no knowledge that other [agencies’] entries are not similarly 8 flawed, or unreliable.” 4 Following the release of the internal audit, the LAPD publicly 9 declared it will no longer participate in the CalGang database. The LAPD had been 10 CalGang’s largest user agency, having added approximately 20,000 records at the time of 11 its withdrawal from participation. 12 5. Despite the clear instruction from the Legislature to the Department of 13 Justice to operate CalGang in compliance with the law or not at all, and despite ongoing 14 and serious failings of CalGang of the type that regulations are intended to stop, neither 15 Attorney General Becerra nor the Department of Justice have fulfilled their duty to 16 prohibit the use of CalGang since January 1, 2020 and until regulations are promulgated. 17 6. This action challenges Defendants’ continued operation of CalGang 18 without lawful authority and Defendants’ failure to impose a moratorium. 19 // 20 // 21 22 23 24 25 26 27 28 3 Three of those officers have been criminally charged with 59 counts of falsifying evidence, perjury, or conspiracy between them, all relating to the falsifying of documents used to add individuals’ names and information to CalGang. (People v. Shaw (Super. Ct. Los Angeles County, 2020, No. BA488467).) Nineteen more officers were investigated for criminal misconduct and an additional five face administrative allegations; ten of those officers were removed from active duty. (July 9, 2020, Interdepartmental Correspondence from Lizbeth Rhodes, Director of LAPD’s Office of Constitutional Policing and Policy to Chief Moore, Chief of LAPD, p. 3 [available at http://www.lapdpolicecom.lacity.org/071420/BPC_20-0078.pdf]). 4 July 9, 2020, Interdepartmental Correspondence from Lizbeth Rhodes, supra, p. 8 (capitalization in the first quote has been changed from the original). 3 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 2 PARTIES A. 3 i. 4 5 Plaintiffs Pillars of the Community 7. At least one of Pillars of the Community’s members knows the following facts set forth in paragraphs eight through eleven. 6 8. Pillars of the Community is a Muslim organization headquartered in the 7 County of San Diego, formed in 2009, and incorporated in 2011 under the laws of the 8 State of California as a religious non-profit corporation. Pillars of the Community has 9 approximately 200 people whom its organizers consider members, people actively 10 engaged in the organization’s staple programs, with an additional 5,000 people actively 11 engaged in the organization’s other programs. 12 9. As a religious organization, Pillars of the Community’s members believe 13 the organization has a moral duty to challenge unjust systems that hamper community 14 members’ ability to thrive. Pillars of the Community’s work includes advocacy for 15 people negatively impacted by law enforcement and the criminal justice system through 16 community organizing, leadership development, and strategic partnerships. 17 10. Pillars of the Community’s work opposing the criminalization of its 18 community includes sponsoring AB 90, the Fair and Accurate Database Act of 2017, 19 which codified Penal Code section 186.36. Pillars of the Community also provides 20 community legal support for individuals seeking removal from CalGang. Pillars of the 21 Community’s members have met repeatedly with elected officials and members of local 22 law enforcement agencies regarding CalGang policy. In 2017, Pillars of the Community 23 hosted a statewide conference addressing problems related to law enforcement agencies’ 24 gang documentation practices which was attended by over 250 people and included an 25 address from California State Assemblymember Shirley Weber, the author of AB 90. 26 11. Pillars of the Community’s members pay income, property, sales, and other 27 taxes in California. 28 // 4 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 ii. 2 3 Chicanxs Unidxs 12. At least one of Chicanxs Unidxs’ members knows the following facts set forth in paragraphs thirteen through sixteen. 4 13. Chicanxs Unidxs is an unincorporated association founded in 2006 and 5 headquartered in the County of Orange. Chicanxs Unidxs is an entirely volunteer, 6 member-run organization with no paid staff. The number of Chicanxs Unidxs’ active 7 members typically fluctuates between twenty to thirty people. 8 14. Chicanxs Unidxs’ mission is to promote cultural and political 9 empowerment for the Chicanx/Mexicanx/Indigenous communities of Orange County and 10 to identify and challenge racism, violence, and institutional oppression. Chicanxs Unidxs’ 11 members believe that law enforcement’s labelling of people in their community as gang 12 members stereotypes and dehumanizes their community and provides a pretext for 13 discriminatory policing. 14 15. Since 2013, Chicanxs Unidxs has offered “accountability clinics” to 15 support self-help and organize community-based participatory defense for people labelled 16 as gang members and others. At these clinics, individuals whose names and information 17 have been added to CalGang have been provided with legal information and referrals to 18 attorneys when needed. 19 16. 20 California. 21 iii. 22 23 24 Chicanx Unidxs’ members pay income, property, sales, and other taxes in Francisco Romero 17. Francisco Romero knows the following facts set forth in paragraphs eighteen through twenty. 18. Mr. Romero is a community educator, activist, and organizer. Mr. Romero 25 works to educate community members about their legal and human rights. His work 26 focuses on immigrant communities, students with learning disabilities, and system- 27 impacted youth, including juveniles labeled as gang members. 28 19. Mr. Romero was born in California and has lived in California his entire 5 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 life. He is currently a resident of unincorporated Los Angeles County and has been for 2 five years. 3 20. Mr. Romero pays income and sales taxes in California and has been 4 assessed other taxes by California and has paid those taxes since 1993. 5 B. 6 Defendants i. 7 California Department of Justice 21. The California Department of Justice is a statewide investigative law 8 enforcement agency and legal department of the California executive branch under the 9 elected leadership of the California Attorney General. The California Department of 10 Justice oversees the CalGang database, which is used by city and county law enforcement 11 agencies. The Department of Justice serves the residents and taxpayers of California and 12 owes Plaintiffs the duty of ensuring that CalGang is operated in compliance with all state 13 and federal laws. 14 15 ii. Attorney General Xavier Becerra 22. Xavier Becerra, sued here solely in his official capacity, is the elected 16 Attorney General of California. Attorney General Becerra is the state’s top lawyer and 17 law enforcement official and leads the Department of Justice. In his official capacity, he 18 oversees the CalGang database, which is used by city and county law enforcement 19 agencies. Attorney General Becerra serves the residents and taxpayers of California and 20 owes Plaintiffs the duty of ensuring that CalGang is operated in compliance with all state 21 and federal laws. 22 23 JURISDICTION AND VENUE 23. This Court has jurisdiction to issue writs of mandate under Code of Civil 24 Procedure section 1085 and has jurisdiction to issue declaratory and injunctive relief 25 under Code of Civil Procedure sections 410.10, 525, 526, 526a, 1060, and under the 26 common law authority for taxpayer suits. 27 28 24. Venue is proper in the Superior Court of Los Angeles County under Code of Civil Procedure section 393 because Attorney General Becerra is a public officer and 6 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 the cause of this action includes the use of CalGang by law enforcement agencies in Los 2 Angeles. Venue is proper in the Superior Court of Los Angeles County under Code of 3 Civil Procedure section 401 because Attorney General Becerra has an office in Los 4 Angeles County. 5 25. Plaintiffs have a clear, present, and beneficial right to the performance of 6 Defendants’ duty to ensure that CalGang operates in compliance with all state and federal 7 laws or not at all. 8 26. 9 Plaintiffs have a clear, present, and beneficial right to have their taxes spent without waste or expenditure on programs not within the government’s legal power and 10 authority. 11 27. 12 Plaintiffs have no plain, speedy, and adequate remedy at law. GENERAL ALLEGATIONS 13 A. 14 Data Because It Has Operated Without Sufficient Auditing and Oversight. 15 From its Inception, CalGang Has Been Rife with Inaccurate and Unreliable 28. The CalGang database is a gang database used by city, county, and state 16 law enforcement agencies across California to document and share allegations of gang 17 membership and to track alleged gang members. In addition to California law 18 enforcement agencies, federal and out-of-state law enforcement agencies may also access 19 the database, though they may not add records. CalGang has been described as a “pointer 20 system” that refers law enforcement investigators to where they can find source 21 documentation supporting allegations of gang membership, but the pertinent information 22 from those source documents is duplicated, stored, and accessed within CalGang. 23 29. The data stored in CalGang includes personal identifying information such 24 as a person’s name, address, vehicle license plate number, and also photographs, physical 25 descriptions, descriptions of tattoos and scars. CalGang also stores information about a 26 person’s associates, the dates and times of contacts with law enforcement officers, and 27 information about the gangs to which people allegedly belong. CalGang also stores arrest 28 records and reports such as convictions, arrest reports and jail interviews. 7 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Figure 1: Screenshot showing CalGang’s ability to track a person’s associates. (SRA International Inc., Gang Net White Paper (2013) p.9). 30. The CalGang database was created in 1988 and modelled on the Gang 18 Reporting, Evaluation, and Tracking (“G.R.E.A.T.”) system that was previously used to 19 share gang allegations between law enforcement agencies in Los Angeles County. This 20 type of gang database, a database modelled on G.R.E.A.T., has long been criticized as 21 tracking people based on insufficient evidence to reliably support allegations of gang 22 membership. Such databases have also been criticized because law enforcement agencies 23 typically audit the databases themselves, resulting in little more than paper compliance 24 with policies designed to protect the public’s privacy rights. 25 31. When using CalGang or another database modelled after G.R.E.A.T., law 26 enforcement officers typically enter records based on nothing more than brief encounters 27 between officers and suspected gang members during consensual or investigative stops in 28 public, even when an officer has no suspicion of any specific criminal activity. Officers 8 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 typically document these encounters on postcard-sized field investigation (“F.I.”) cards 2 which include a few words describing an individual’s appearance and dress, their 3 location, and the identities of anyone with whom they may have been stopped. Based on 4 nothing more than these cursory observations and an officer’s otherwise unarticulated 5 suspicion of gang membership, officers may document a person in a shared gang 6 database as a gang member. Law enforcement officers may then refer to the person in 7 official documents and public statements as a “known and documented gang member.” 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Figure 2: Typical F.I. card that may serve as the sole evidence of gang membership. 9 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 32. Data has supported the criticism of the accuracy of shared gang databases 2 like CalGang since the first publicly released audit of the G.R.E.A.T. system. A 1992 3 audit conducted by the Los Angeles District Attorney found that “… a common estimate 4 is that no more than 2% of all young men are hardcore gang members”; 5 however, 5 “[a]lmost one-half of all young Black men [in L.A. County] are in the gang database.” 6 6 33. The first public accounting of the number of people tracked in the CalGang 7 database, published in 2012, revealed that there were 201,094 people whose names and 8 information were documented in CalGang, some as young as 10 years old. 7 Since the 9 publication of those numbers, scrutiny of CalGang has increased, resulting in the number 10 of records in the database dropping to a currently estimated 60,000 people. This drop of 11 over 70 percent in the number of records undercuts any claim that the process for 12 determining who should and should not be documented as a gang member in the database 13 is reliable. 14 B. 15 Gang Databases, Including by Assigning the Department of Justice Oversight of 16 CalGang and Directing the Department of Justice to Implement Reforms. 17 The Legislature Has Repeatedly Acted to Reform Law Enforcement’s Shared 34. Following the 2012 publication of the number of people tracked in the 18 CalGang database, the Legislature embarked on a series of reforms. During three of the 19 last four legislative cycles, the Legislature passed laws attempting to rein in the abuses of 20 the CalGang database. 8 As a result of this legislation, sections 186.34 through 186.36 21 were added to the Penal Code, dealing with shared gang databases. 22 23 24 25 26 27 28 5 Reiner, Gangs, Crime and Violence in Los Angeles: Findings and Proposals from the District Attorney’s Office (1992) p. 155. 6 Id. at p. 121. 7 Youth Justice Coalition, Tracked and Trapped: Youth of Color, Gang Databases and Gang Injunctions (2012) p. 8, https://youthjusticela.org/wp-content/uploads/2013/07/Tracked-andTrapped.pdf 8 Assem. Bill 458 (2013-2014 Reg. Sess.); Assem. Bill. 2298 (2015-2016 Reg. Sess.); Assem. Bill No. 90 (2017-2018 Reg. Sess.). 10 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 35. The first bill to address shared gang databases was SB 458, a 2013 bill 2 which gave juveniles the right to notice and administrative appeal when their names and 3 information were added to a shared gang database. 9 Three years later, in 2016, AB 2298 4 expanded the right to notice to adults and provided for judicial review of removal 5 requests. 10 6 36. When sponsors of AB 2298 complained that there remained rampant abuse 7 of the database, the California State Auditor conducted an audit of the CalGang database. 8 In 2015, after AB 2298 had been introduced, but before it was chaptered, the State 9 Auditor published a report on CalGang, titled “The CalGang Criminal Intelligence 10 System As the Result of Its Weak Oversight Structure, It Contains Questionable 11 Information That May Violate Individuals’ Privacy Rights.” The report was received as a 12 scathing critique of the database, 11 with such shocking facts as that the database included 13 “42 individuals in CalGang whose birthdates indicated that they were less than one 14 15 year old at the time their information was entered, 28 of whom were entered into the system in part because they admitted to being gang members.” 12 Among the 16 report’s key findings were that (1) the database lacked sufficient oversight to protect 17 peoples’ privacy rights, (2) operation of the database lacked statutory authority and 18 public engagement, (3) only one of the nine gangs reviewed had been properly entered, 19 (4) audited agencies were unable to substantiate 23% of the entry criteria they claimed 20 were met, (5) purge dates for 250 people were set for over 100 years in the future instead 21 of 5 years, (6) audited agencies had not implemented juvenile notice requirements, and 22 (7) none of the agencies adequately audited records before or after entry. 13 23 24 25 26 27 28 9 Assem. Bill 458 (2013-2014 Reg. Sess.). Assem. Bill 298 (2015-2016 Reg. Sess.). 11 Winton, California Gang Database Plagued With Errors, Unsubstantiated Entries, State Auditor Finds, Los Angeles Times (Aug. 11, 2016). 12 California State Auditor, The CalGang Criminal Intelligence System, supra, p. 39 13 California State Auditor, The CalGang Criminal Intelligence System, supra, p. 1-4. 10 11 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 37. Following the audit, the Legislature passed AB 90, which mandated many 2 of the reforms recommended in the State Auditor’s report. These included (1) removing 3 oversight power from the CalGang Executive Board and vesting that power in the 4 Department of Justice; (2) directing the Department of Justice to impose a moratorium on 5 the database beginning January 1, 2018 while an audit was performed and records 6 removed; (3) directing the Department of Justice to convene a Gang Database Technical 7 Advisory Committee (“GDTAC”) to advise the Department in drafting regulations; and 8 (4) directing the Department of Justice to commence rulemaking actions to promulgate 9 regulations for the use of CalGang and other shared gang databases. Among other things, 10 the Legislature determined that the new regulations must “provide for periodic audits of 11 each CalGang node and user agency to ensure the accuracy, reliability, and proper use of 12 the CalGang database,” 14 and include “[c]riteria for designating a person as a gang 13 member or associate that are unambiguous, not overbroad, and consistent with empirical 14 research on gangs and gang membership.” 15 15 38. In adopting AB 90, the Legislature debated whether to impose a 16 moratorium on the use of CalGang until an audit could be completed, new regulations 17 promulgated, and users re-trained. In the end, the Legislature decided to impose a 18 moratorium only while the initial audit took place and then allow use of the database 19 during the process of promulgating regulations. However, the Legislature limited that 20 permission by imposing a January 1, 2020 deadline for the promulgation of regulations 21 for the database’s periodic audit and conditioning the continued use and operation of 22 CalGang on meeting that deadline. 23 C. 24 Reforms, but Has So Far Failed to Do So. 25 The Department of Justice Has Had Years to Implement the Legislature’s 39. Among the first actions taken by the Department of Justice once it assumed 26 27 28 14 15 Penal Code section 186.36(n)n Penal Code section 186.36(l)(2). 12 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 responsibility to oversee the CalGang database was to impose the moratorium mandated 2 by AB 90. The database was made inaccessible to user agencies for approximately four 3 months. During that time, the Department of Justice removed records whose entry was 4 based on jail classification, frequenting gang neighborhoods, or on the basis of an 5 untested informant if that record would not satisfy the criteria for entry without relying on 6 those bases. The four-month moratorium ended when Attorney General Becerra certified 7 that those records were removed. While the moratorium was in effect, investigators could 8 not access CalGang but could access the original documents on which the CalGang 9 entries were based by searching their agency’s local records management system. 10 40. The Department of Justice also convened the Gang Database Technical 11 Advisory Committee as mandated by AB 90. For approximately one year, the GDTAC 12 met publicly to discuss recommendations for regulations of the database. At the end of 13 that year, the GDTAC stopped meeting without making a formal recommendation to the 14 Department of Justice. 15 41. Following the last meeting of the GDTAC, the Department of Justice began 16 the rulemaking process for promulgating regulations for CalGang and for other shared 17 gang databases. The Office of Administrative Law published the Department of Justice’s 18 Notice of Proposed Rulemaking Action on May 10, 2019. 19 42. The Department of Justice initially proposed regulations that were 20 substantially similar to the past policy and procedures for the use of CalGang. For 21 example, the proposed regulations used most of the same criteria for entry, though these 22 criteria were spelled out in more specific language. This first proposal was met with 23 highly critical public comment from the sponsors of AB 90. 24 43. On July 31, 2019, the Department published its first modified proposal for 25 regulations which responded to much of the criticism offered by AB 90’s sponsors. For 26 example, several of the criteria for entry criticized as overbroad and unreliable were 27 removed. However, a second public comment period followed this first modification 28 where law enforcement agencies criticized the removal of those criteria. On December 13 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 31, 2019, the Department of Justice published a second modified proposal that reinstated 2 the removed criteria. 3 44. On February 25, 2020, the Department of Justice submitted its proposed 4 regulations to the Office of Administrative Law. However, on April 3, 2020, the 5 Department of Justice withdrew the submission. 6 45. On May 20, 2020, more than one year after the publication of the Notice of 7 Proposed Rulemaking Action, the Department proposed a third modification of the 8 proposed regulations. Then, on July 28, 2020, the Department proposed a fourth 9 modification of the proposed regulations and began a fifth public comment period, which 10 ended on August 12, 2020. 11 46. While the Department of Justice has spent these years preparing, drafting, 12 and revising regulations but never finally submitting them to the Office of Administrative 13 Law, law enforcement agencies have continued to use CalGang under the same policies 14 and procedures disapproved by the Legislature. 15 D. 16 Harm of Operating the Database Without Sufficient Oversight and Regulation is as 17 Great as Ever. 18 The Recent Scandal in the LAPD’s Use of CalGang Demonstrates That the 47. On January 7, 2020, the LAPD publicly announced that it had begun an 19 internal affairs investigation into three officers it had discovered falsifying information 20 that had been used to add individuals’ names and information to CalGang. Over the 21 following months, LAPD Police Chief Michel Moore announced that the investigation 22 had expanded to include dozens of officers. At the request of the LAPD’s Board of 23 Police Commissioners, the LAPD’s audit division conducted a review of the use of 24 CalGang by the LAPD’s Metro Division and Gang Enforcement Details. 25 48. On July 9, 2020, the Los Angeles District Attorney filed a Felony 26 Complaint for Arrest Warrant for three LAPD officers, alleging the officers had 27 committed a total of 59 counts of falsifying evidence, perjury, or conspiracy all relating 28 to the falsifying of documents used to add individuals’ names an information to 14 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 CalGang. 16 2 49. According to the LAPD, this scandal was not uncovered as a result of the 3 oversight of the Department of Justice or through any type of audit or review mandated 4 by the Department of Justice. The LAPD states that they uncovered the scandal when the 5 mother of a young man who received notice of entry into CalGang asked officers to 6 review the body worn camera recording of the stop, and a review of the recording 7 revealed that the documenting officer had falsified his account of the stop. According to 8 the LAPD, investigation into the officer who had falsified this stop led to an investigation 9 into other stops by this officer and by his partners, which revealed more falsified 10 evidence, which in turn led to a widening investigation into the entire department’s use of 11 CalGang. This investigation was independent of the Department of Justice, though on 12 February 10, 2020, Attorney General Becerra publicly announced that he intended to also 13 audit the LAPD’s use of CalGang. 17 14 50. On July 10, 2020 Chief Moore publicly announced the findings of the 15 LAPD’s Audit Division’s reports and the conclusion of the LAPD’s Office of 16 Constitutional Policing and Policy. The LAPD concluded that “LAPD’s entry of 17 individuals into the database appears haphazard at best” and that “LAPD has no 18 knowledge that other [agencies’] entries are not similarly flawed, or unreliable.” 18 19 51. Based on this finding, Chief Moore stated that, “Given the extent of the 20 inaccurate information found, including instances of false information, I have decided to 21 permanently withdraw the Department’s participation in the Database System.” 19 22 23 24 25 26 27 28 16 People v. Shaw (Super. Ct. Los Angeles County, 2020, No. BA488467). Press Release from Attorney General Xavier Becerra: Attorney General Xavier Becerra Announces Independent Review of the Los Angeles Police Department’s CalGang Records and Policies, February 10, 2020 18 July 9, 2020, Interdepartmental Correspondence from Lizbeth Rhodes, supra, p. 8 (capitalization from the first quote has been changed from the original). 19 July 10, 2020 Interdepartmental Correspondence from Chief Moore, Chief of LAPD, to the LAPD Board of Police Commissioners, p.1 (Attachment B). 17 15 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 52. Though the LAPD has now withdrawn from CalGang, taking 2 approximately 25 percent of the database’s records offline, there remain an estimated 3 60,000 records in CalGang and scores of law enforcement agencies who continue to use 4 the database. 5 53. These agencies continue to use the database under the old policies and 6 procedures that were disapproved by the Legislature, criticized by the State Auditor, led 7 to the inclusion of the names and information of over 100,000 people whose records have 8 been removed from the database since reforms began, and led to a database so unreliable 9 that its largest user agency, the LAPD, has permanently withdrawn from its use. In 10 passing AB 90, it was not the Legislature’s intent for the database to continue to be used 11 past January 1, 2020 without the implementation of significant reforms in the shape of 12 promulgated regulations. Though these mandated reforms have not been implemented, 13 the database continues to operate. 14 FIRST CAUSE OF ACTION 15 (Alternative Writ of Mandate Pursuant to Code of Civil Procedure Section 1085 16 by all Plaintiffs against all Defendants) 17 18 54. Plaintiffs re-allege and incorporate by reference each of the allegations above as if fully set forth herein. 19 55. Plaintiffs are interested as citizens in having the laws executed and 20 Defendants’ duty to operate CalGang in compliance with Penal Code section 186.36 21 enforced. 22 56. 23 Defendants have a ministerial duty to operate the CalGang database in compliance with Penal Code section 186.36 or not at all. 24 57. Defendants’ operation of CalGang after January 1, 2020 without having 25 promulgated regulations for periodic audits is not in compliance with Penal Code section 26 186.36. 27 // 28 // 16 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 SECOND CAUSE OF ACTION 2 (Taxpayer Action to Restrain Waste and Illegal Expenditure of Funds Pursuant to 3 Code of Civil Procedure Section 526a and the Common Law Authority for 4 Taxpayer Suits by all Plaintiffs against all Defendants) 5 6 7 58. Plaintiffs re-allege and incorporate by reference each of the allegations above as if fully set forth herein. 59. Francisco Romero has and does pay taxes to the State of California such as 8 income tax and other taxes. Members of Pillars of the Community and Chicanxs Unidxs 9 have and do pay taxes to the State of California such as income tax and other taxes. 10 60. Defendants’ operation of CalGang after January 1, 2020 without having 11 promulgated regulations for periodic audits as required by Penal Code section 186.36 is 12 beyond Defendants’ legal power and authority and is therefore illegal. 13 61. Defendants wastefully and illegally expends state funds, resources, and 14 employee time to allow law enforcement agencies to illegally access and use the CalGang 15 database. In overseeing and operating the CalGang database for use by local and county 16 law enforcement agencies, Defendants act as agents for the wasteful and illegal 17 expenditure of local city and county agencies. Defendants’ policies, practices, and actions 18 as stated in this complaint constitute an illegal or wasteful expenditure of public funds 19 justifying an injunction under California Code of Civil Procedure section 526a. 20 21 22 23 62. There is no adequate remedy at law if the requested injunction does not issue to prevent the illegal or wasteful expenditure of taxpayer monies. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: 24 a. Under both causes of action, that this Court declares that, at least since January 1, 25 2020, compliance with Penal Code section 186.36 requires having promulgated 26 regulations for periodic audits. 27 28 b. Under the First Cause of Action, that this Court issues a peremptory writ of mandate commanding Defendants to immediately prohibit all law enforcement 17 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 agencies from accessing the CalGang database until operation of the CalGang 2 database complies with Penal Code section 186.36. 3 c. Under the Second Cause of Action, that this Court declares Defendants’ use of 4 funds, resources, and employee time to allow access to the CalGang database by 5 law enforcement agencies, while CalGang is operated out of compliance with 6 Penal Code section 186.36, constitutes waste and an illegal expenditure of funds. 7 d. Under the Second Cause of Action, that this Court issues an injunction enjoining 8 Defendants from expending any funds, resources, or employee time on allowing 9 any law enforcement agency to access the CalGang database until operation of the 10 CalGang database complies with Penal Code section 186.36. 11 e. That this Court award reasonable attorneys’ fees and costs pursuant to California 12 Code of Civil Procedure sections 1021, 1021.5, and any other applicable law. 13 f. That this Court orders all other relief the Court deems just and proper. 14 15 16 17 Respectfully submitted, Dated: September 20, 2020 Sean Garcia-Leys 18 19 ________________________________ 20 Attorney for Plaintiffs/Petitioners 21 22 23 24 25 26 27 28 18 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief 1 VERIFICATION OF PETITIONER/PLAINTIFF PILLARS OF THE 2 COMMUNITY 3 4 I, Paul “Khalid” Alexander, declare: 5 6 7 8 9 10 11 12 13 1. I am Chief Executive Officer of Pillars of the Community, who is a petitioner/plaintiff in the above-titled action. 2. I have read the forgoing Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief. 3. As to facts alleged on information and belief, I am informed and believe the matters therein to be true and on that ground allege that the matters stated therein are true. 4. As to facts alleged in paragraphs eight through eleven, I know Pa the matters therein to be true on my own knowledge. 14 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. 17 18 19 20 Executed this 23 rd day of September, 2020, at San Diego, California. 21 22 23 24 ________________________________ 25 Paul “Khalid” Alexander 26 27 28 19 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief Doc ID: ff46a891fd755c3c59a83ba2320840fbf909d20c 1 VERIFICATION OF PETITIONER/PLAINTIFF CHICANXS UNIDXS 2 3 I, Gabriela Hernandez-Castillo, declare: 4 5 6 7 8 9 10 11 12 1. I am an active member of Chicanxs Unidxs, who is a petitioner/plaintiff in the above-titled action. 2. I have read the forgoing Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief. 3. As to facts alleged on information and belief, I am informed and believe the matters therein to be true and on that ground allege that the matters stated therein are true. 4. As to facts alleged in paragraphs thirteen through sixteen, I know the matters therein to be true on my own knowledge. 13 14 I declare under penalty of perjury under the laws of the State of California that the 15 foregoing is true and correct. 16 17 18 19 Executed this 20th day of September, 2020, at Santa Ana, California. 20 21 22 23 ________________________________ 24 Gabriela Hernandez-Castillo 25 26 27 28 20 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief Doc ID: 96a51d3d6cd78bc8f6c40cb7b37900e919f7704e 1 VERIFICATION OF PETITIONER/PLAINTIFF FRANCISCO ROMERO 2 3 I, Francisco Romero, declare: 4 5 1. I am a petitioner/plaintiff in the above-titled action. 6 2. I have read the forgoing Verified Petition for Writ of Mandate and 7 8 9 10 11 Complaint for Declaratory and Injunctive Relief. 3. As to facts alleged on information and belief, I am informed and believe the matters therein to be true and on that ground allege that the matters stated therein are true. 4. As to facts alleged in paragraphs eighteen through twenty, I know the matters therein to be true on my own knowledge. 12 13 I declare under penalty of perjury under the laws of the State of California that the 14 foregoing is true and correct. 15 16 17 18 Executed this 22nd day of September, 2020, at Los Angeles, California. 19 20 21 22 ________________________________ 23 Francisco Romero 24 25 26 27 28 21 Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief Doc ID: 96a51d3d6cd78bc8f6c40cb7b37900e919f7704e