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REFERENCE TITLE: criminal street gang database; appeal |
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State of Arizona Senate Fifty-fifth Legislature First Regular Session 2021
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SB 1186 |
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Introduced by Senators Quezada: Alston, Gonzales, Mendez
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AN ACT
amending title 13, chapter 23, Arizona Revised Statutes, by adding section 13-2321.01; relating to law enforcement records.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 13, chapter 23, Arizona Revised Statutes, is amended by adding section 13-2321.01, to read:
13-2321.01. Criminal street gang database; notification; appeals; definitions
A. Before a local law enforcement agency designates a person as a suspected gang member, associate or affiliate in a shared gang database, submits a document to the attorney general's office for the purpose of designating a person in a shared gang database or otherwise identifies the person in a shared gang database, the local law enforcement agency shall provide written notice to the person and the person's parent or guardian if the person is under eighteen years of age of the designation and the basis for the designation unless providing that notification would compromise an active criminal investigation or the health or safety of the person if the person is under eighteen years of age. The notice shall describe the process for the person, the person's parent or guardian if the person is under eighteen years of age or an attorney working on behalf of the person to contest the designation of the person in the shared gang database.
B. A person, the person's parent or guardian if the person is under eighteen years of age or an attorney working on behalf of the person may request in writing that a local law enforcement agency provide information as to whether the person is designated as a suspected gang member, associate or affiliate in a shared gang database accessible by that law enforcement agency and the name of the local law enforcement agency that made the designation. If a person about whom information is requested is designated as a suspected gang member, associate or affiliate in a shared gang database by that law enforcement agency, the person making the request may also request information as to the basis for the designation for the purpose of contesting the designation.
C. The local law enforcement agency shall provide the information requested under subsection B of this section unless providing the information would compromise an active criminal investigation or the health or safety of the person if the person is under eighteen years of age. The local law enforcement agency shall respond in writing to a valid request for information within thirty calendar days after receiving the request.
D. After receiving notice pursuant to subsection A of this section or a local law enforcement agency responds to an information request pursuant to subsection C of this section, the person designated or to be designated as a suspected gang member, associate or affiliate or the person's parent or guardian if the person is under eighteen years of age may submit written documentation to the local law enforcement agency contesting the designation. The local law enforcement agency shall review the documentation and if the agency determines that the person is not a suspected gang member, associate or affiliate, the agency shall remove the person's name from the shared gang database. The local law enforcement agency shall provide the person and the person's parent or guardian if the person is under eighteen years of age with written verification of the agency's decision within thirty days after the agency receives the written documentation contesting the designation. If the local law enforcement agency denies the request for removal, the agency shall provide written notice of the agency's determination that states the reason for the denial. If the local law enforcement agency does not verify the agency's decision within thirty days, the request to remove the person's name from the shared gang database is deemed denied. The person or the person's parent or guardian if the person is under eighteen years of age may petition the court to review the local law enforcement agency's denial of the request for removal and order the local law enforcement agency to remove the person's name from the shared gang database.
E. A person who is listed in a shared gang database as a suspected gang member, associate or affiliate and who contests the person's designation pursuant to subsection D of this Section may petition the court to review the local law enforcement agency's denial of the request for removal and to order the local law enforcement agency to remove the person's name from the shared gang database. The petition may be brought by the person or the person's attorney, or if the person is under eighteen years of age, by the person's parent or guardian or an attorney on behalf of the parent or guardian. The petition shall be filed and served within ninety calendar days after the local law enforcement agency's mailing or personal service of the verification of the agency's decision to deny the request for removal from the shared gang database or the date that the request is deemed denied under subsection D of this Section. A proceeding under this subsection is not a criminal case. The petition shall be filed in either the superior court in the county in which the local law enforcement agency is located or, if the person resides in this state, in the county in which the person resides. A copy of the petition shall be served on the local law enforcement agency in person or by first class mail. Proof of service of the petition on the local law enforcement agency shall be filed in the superior court.
F. The evidentiary record for the court's determination of the petition shall be limited to the local law enforcement agency's statement of the basis of the agency's designation made pursuant to subsection A or B of this Section and the documentation provided to the agency by the person contesting the designation pursuant to subsection D of this Section.
G. If, on de novo review of the record and any arguments presented to the court, the court finds that the local law enforcement agency has failed to establish the person's active gang membership, associate status or affiliate status by clear and convincing evidence, the court shall order the local law enforcement agency to remove the person's name from the shared gang database. The court shall notify the person of the appearance date by mail or personal delivery.
H. This section does not apply to a database that is accessed solely by jail or correctional facility staff for classification or operational decisions in the administration of the jail or correctional facility.
I. For the purposes of this section:
1. "Gang database" means a database that is accessed by a local law enforcement agency and that designates a person as a suspected gang member, associate or affiliate, or that includes or points to information, including fact-based or uncorroborated information, that reflects a designation of that person as a gang member, associate or affiliate.
2. "Local law enforcement agency" means a governmental agency or a subunit of a governmental agency and its authorized support staff and contractors whose primary function is detecting, investigating or apprehending criminal offenders or whose primary duties include detention, pretrial release, posttrial release or correctional supervision or collecting, storing or disseminating criminal history record information.
3. "Shared gang database" means a gang database that is accessed by a local law enforcement agency or person outside of the local law enforcement agency that created the records that populate the database.