Full Text of SB0275 100th General Assembly
SB0275sam001 100TH GENERAL ASSEMBLY | Sen. Patricia Van Pelt Filed: 5/8/2018
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| 1 | | AMENDMENT TO SENATE BILL 275
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 275 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the Law | 5 | | Enforcement Gang Database Information Act. | 6 | | Section 5. Definitions. In this Act: | 7 | | "Department" means the Department of State Police. | 8 | | "Gang" means any combination, confederation, alliance, | 9 | | network, conspiracy, understanding, or other similar | 10 | | conjoining, in law or in fact, of 3 or more persons with an | 11 | | established hierarchy that, through its membership or through | 12 | | the agency of any member engages in a course or pattern of | 13 | | criminal activity. | 14 | | "Gang database" means a database accessed by a law | 15 | | enforcement agency that designates a person as a gang member or | 16 | | associate, or includes or points to information, including, but |
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| 1 | | not limited to, fact-based or uncorroborated information that | 2 | | reflects a designation of that person as a gang member or | 3 | | associate, not including a database that designates a person as | 4 | | a gang member or associate using only criminal offender | 5 | | information or a database assessed solely by a correctional | 6 | | facility for classification or operational decisions of the | 7 | | administration of the facility. | 8 | | "Law enforcement agency" means an agency of this State or | 9 | | unit of local government who is primarily responsible for the | 10 | | detection, investigation, or prevention of crime and the | 11 | | enforcement of the criminal laws of this State. | 12 | | "Shared gang database" means a gang database that is | 13 | | accessed by an agency or person outside of the agency that | 14 | | created the records that populate the database. | 15 | | Section 10. Written notice; designation on gang database. | 16 | | (a) To the extent a local law enforcement agency elects to | 17 | | utilize a shared gang database prior to a local law enforcement | 18 | | agency designating a person as a suspected gang member, | 19 | | associate, or affiliate in a shared gang database or otherwise | 20 | | identifying the person in a shared gang database, the local law | 21 | | enforcement agency shall provide written notice to the person, | 22 | | and shall, if the person is under 18 years of age, provide | 23 | | written notice to the person and his or her parent or guardian, | 24 | | of the designation and the basis for the designation, unless | 25 | | providing that notification would compromise an active |
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| 1 | | criminal investigation or compromise the health or safety of | 2 | | the minor. | 3 | | (b) The notice described in subsection (a) of this Section | 4 | | shall describe the process for the person, or, if the person is | 5 | | under 18 years of age, for his or her parent or guardian, or an | 6 | | attorney working on behalf of the person, to contest the | 7 | | designation of the person in the database. The notice shall | 8 | | also inform the person of the reason for his or her designation | 9 | | in the database. | 10 | | (c) A person, or, if the person is under 18 years of age, | 11 | | his or her parent or guardian, or an attorney working on behalf | 12 | | of the person, may request information of any law enforcement | 13 | | agency as to whether the person is designated as a suspected | 14 | | gang member, associate, or affiliate in a shared gang database | 15 | | accessible by that law enforcement agency and the name of the | 16 | | law enforcement agency that made the designation. A request | 17 | | made under this subsection (c) shall be in writing. A person | 18 | | about whom information is requested under this subsection (c) | 19 | | that is designated as a suspected gang member, associate, or | 20 | | affiliate in a shared gang database by that law enforcement | 21 | | agency, the person making the request may also request | 22 | | information as to the basis for the designation for the purpose | 23 | | of contesting the designation as described in Section 15 of | 24 | | this Act. | 25 | | (d) The law enforcement agency shall provide information | 26 | | requested, unless doing so would compromise an active criminal |
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| 1 | | investigation or compromise the health or safety of the person | 2 | | if the person is under 18 years of age. The law enforcement | 3 | | agency shall respond to a valid request under subsection (c) of | 4 | | this Section in writing to the person making the request within | 5 | | 30 calendar days of receipt of the request. | 6 | | Section 15. Contest gang designation; written | 7 | | verification. | 8 | | (a) Subsequent to the notice or the law enforcement | 9 | | agency's response to a request described in Section 10 of this | 10 | | Act, the person designated or to be designated as a suspected | 11 | | gang member, associate, or affiliate, or his or her parent or | 12 | | guardian if the person is under 18 years of age, may submit | 13 | | written documentation to the local law enforcement agency | 14 | | contesting the designation. The local law enforcement agency | 15 | | shall review the documentation, and if the agency determines | 16 | | that the person is not a suspected gang member, associate, or | 17 | | affiliate, the agency shall remove the person from the shared | 18 | | gang database. | 19 | | (b) The local law enforcement agency shall provide the | 20 | | person and, if the person is under 18 years of age, his or her | 21 | | parent or guardian, with written verification of the agency's | 22 | | decision within 30 days of submission of the written | 23 | | documentation contesting the designation. If the law | 24 | | enforcement agency denies the request for removal, the notice | 25 | | of its determination shall state the reason for the denial. If |
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| 1 | | the law enforcement agency does not provide a verification of | 2 | | the agency's decision within the required 30-day period, the | 3 | | request to remove the person from the gang database shall be | 4 | | deemed denied. The person or, if the person is under 18 years | 5 | | of age, his or her parent or guardian may petition the court to | 6 | | review the law enforcement agency's denial of the request for | 7 | | removal and order the law enforcement agency to remove the | 8 | | person from the shared gang database under this Act. Nothing in | 9 | | this Section shall require a law enforcement agency to disclose | 10 | | information otherwise protected under the Freedom of | 11 | | Information Act or law. | 12 | | Section 20. Appeal of designation. | 13 | | (a) A person who is listed by a law enforcement agency in a | 14 | | shared gang database as a gang member, suspected gang member, | 15 | | associate, or affiliate and who has contested his or her | 16 | | designation under Section 15 of this Act, may petition the | 17 | | court to review the law enforcement agency's denial of the | 18 | | request for removal and to order the law enforcement agency to | 19 | | remove the person from the shared gang database. The petition | 20 | | may be brought by the person or the person's attorney, or if | 21 | | the person is under 18 years of age, by his or her parent or | 22 | | guardian or an attorney on behalf of the parent or guardian. | 23 | | (b) The petition shall be filed and served within 90 | 24 | | calendar days of the agency's mailing or personal service of | 25 | | the verification of the decision to deny the request for |
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| 1 | | removal from the shared gang database or the date that the | 2 | | request is deemed denied under subsection (b) of Section 15 of | 3 | | this Act. The petition shall be filed in either the circuit | 4 | | court of the county in which the local law enforcement agency | 5 | | is located or, if the person resides in this State, in the | 6 | | county in which the person resides. A copy of the petition | 7 | | shall be served on the agency in person or by first-class mail. | 8 | | Proof of service of the petition on the agency shall be filed | 9 | | in circuit court. | 10 | | (c) The evidentiary record for the court's determination of | 11 | | the petition shall be limited to the agency's statement of the | 12 | | basis of its designation made under Section 10 of this Act, and | 13 | | the documentation provided to the agency by the person | 14 | | contesting the designation under Section 15 of this Act. | 15 | | (d) If, upon de novo review of the record and any arguments | 16 | | presented to the court, the court finds that the law | 17 | | enforcement agency has failed to establish the person's active | 18 | | gang membership, associate status, or affiliate status by clear | 19 | | and convincing evidence, the court shall order the law | 20 | | enforcement agency to remove the name of the person from the | 21 | | shared gang database. | 22 | | (e) The court shall notify the person of the appearance | 23 | | date by mail or personal delivery. There is a $25 fee for | 24 | | filing a petition under this Section, which shall be retained | 25 | | regardless of the outcome of the petition. If the court finds | 26 | | in favor of the person, the amount of the fee shall be |
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| 1 | | reimbursed to the person by the agency. | 2 | | Section 25. Gang Database Technical Advisory Task. | 3 | | (a) There is created the Gang Database Technical Advisory | 4 | | Task Force to study the use, operation, and oversight of gang | 5 | | databases and shared gang databases in this State. The Task | 6 | | Force shall assist the Department as required in Section | 7 | | 2605-391 of the Department of State Police Law of the
Civil | 8 | | Administrative Code of Illinois to adopt appropriate rules | 9 | | governing the use, operation, and oversight of shared gang | 10 | | databases and assist in outlining best practices by law | 11 | | enforcement agencies. | 12 | | (b) The Task Force shall consist of the following members: | 13 | | (1) the Director of State Police, or his or her | 14 | | designee; | 15 | | (2) the Attorney General, or his or her designee; | 16 | | (3) the Executive Director of the Illinois Criminal | 17 | | Justice Information Authority, or his or her designee; | 18 | | (4) 2 members of the Senate, appointed by the President | 19 | | of the Senate; | 20 | | (5) 2 members of the Senate, appointed by the Minority | 21 | | Leader of the Senate; | 22 | | (6) 2 members of the House of Representatives, | 23 | | appointed by the Speaker of the House of Representatives; | 24 | | (7) 2 members of the House of Representatives, | 25 | | appointed by the Minority Leader of the House of |
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| 1 | | Representatives; | 2 | | (8) a member from a statewide organization that | 3 | | specializes in civil or human rights, appointed by the | 4 | | President of the Senate; and | 5 | | (9) a member from a statewide organization that | 6 | | specializes in gang violence intervention, appointed by | 7 | | the Speaker of the House of Representatives. | 8 | | (c) The Task Force shall appoint a chairperson from among | 9 | | the members appointed. Members of the Task Force
shall
receive | 10 | | no compensation but shall be reimbursed for necessary expenses | 11 | | incurred
in the
performance of their duties. | 12 | | (d) The Task Force shall submit a written report of its | 13 | | findings and recommendations to the General Assembly and the | 14 | | Governor on or before June 1, 2020. The report to the General | 15 | | Assembly shall be filed with the Clerk of the House of | 16 | | Representatives and the Secretary of the Senate in electronic | 17 | | form only, in the manner that the Clerk and the Secretary shall | 18 | | direct. | 19 | | (e) This Section is repealed on July 1, 2020. | 20 | | Section 105. The Department of State Police Law of the
| 21 | | Civil Administrative Code of Illinois is amended by adding | 22 | | Sections 2605-391, 2605-392, 2605-393, and 2605-395 as | 23 | | follows: | 24 | | (20 ILCS 2605/2605-391 new) |
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| 1 | | Sec. 2605-391. Rules and oversight; shared gang databases. | 2 | | (a) The Department, with the advice of the Gang Database | 3 | | Technical Advisory Task Force created under Section 30 of the | 4 | | Law Enforcement Gang Database Information Act, shall adopt | 5 | | rules governing the use, operation, and oversight of shared | 6 | | gang databases. The rules adopted by the Department shall, at | 7 | | minimum, ensure the following: | 8 | | (1) the system integrity of a shared gang database; | 9 | | (2) all law enforcement agency and criminal justice | 10 | | agency personnel who access a shared gang database undergo | 11 | | comprehensive and standardized training on the use of | 12 | | shared gang databases and related policies and procedures; | 13 | | (3) proper criteria are established for supervisory | 14 | | reviews of all database entries and regular reviews of | 15 | | records entered into a shared gang database; | 16 | | (4) reasonable measures are taken to locate equipment | 17 | | related to the operation of a shared gang database in a | 18 | | secure area in order to preclude access by unauthorized | 19 | | personnel; | 20 | | (5) law enforcement agencies and criminal justice | 21 | | agencies notify the Department of any missing equipment | 22 | | that could potentially compromise a shared gang database; | 23 | | (6) personnel authorized to access a shared gang | 24 | | database are limited to sworn law enforcement personnel, | 25 | | non-sworn law enforcement support personnel, or | 26 | | non-criminal justice technical or maintenance personnel, |
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| 1 | | including information technology and information security | 2 | | staff and contract employees, who have been subject to | 3 | | character or security clearance and who have received | 4 | | approved training; | 5 | | (7) any records contained in a shared gang database are | 6 | | not disclosed for employment or military screening | 7 | | purposes; and | 8 | | (8) any records contained in a shared gang database are | 9 | | not disclosed for purposes of enforcing federal | 10 | | immigration law, unless required by State or federal | 11 | | statute, rule, or regulation. | 12 | | (b) The rules adopted by the Department shall include, but | 13 | | not be limited to, establishing the following: | 14 | | (1) policies and procedures for entering, reviewing, | 15 | | and purging documentation; | 16 | | (2) criteria for designating a person as a gang member | 17 | | or associate that are unambiguous, not over broad, and | 18 | | consistent with empirical research on gangs and gang | 19 | | membership; | 20 | | (3) retention periods for information about a person in | 21 | | a shared gang database that is consistent with empirical | 22 | | research on the duration of gang membership; | 23 | | (4) criteria for designating an organization as a | 24 | | criminal street gang and retention periods for information | 25 | | about criminal street gangs; | 26 | | (5) policies and procedures for notice to a person in a |
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| 1 | | shared gang database including policies and procedures for | 2 | | when notification would compromise an active criminal | 3 | | investigation or the health or safety of a minor; | 4 | | (6) policies and procedures for responding to an | 5 | | information request, a request for removal, or a petition | 6 | | for removal under Sections 10 and 15 of the Law Enforcement | 7 | | Gang Database Information Act including policies and | 8 | | procedures for a request or petition that could compromise | 9 | | an active criminal investigation or the health or safety of | 10 | | a minor; | 11 | | (7) policies and procedures for sharing information | 12 | | from a shared gang database with a federal agency, | 13 | | multi-state agency, or agency of another state that is | 14 | | otherwise denied access including sharing of information | 15 | | with a partner in a joint task force; and | 16 | | (8) implementation of supervisory review procedures | 17 | | and periodic record reviews by law enforcement agencies and | 18 | | criminal justice agencies, and reporting of the results of | 19 | | those reviews to the Department. | 20 | | (c) The Department, with the advice and recommendations | 21 | | from the Gang Database Technical Advisory Task Force, no later | 22 | | than January 1, 2021, shall adopt rules to provide for periodic | 23 | | audits of the Statewide Organized Criminal Gang Database to | 24 | | ensure the accuracy, reliability, and proper use. The | 25 | | Department shall mandate the purge of any information for which | 26 | | a user agency cannot establish adequate support. The |
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| 1 | | Department, with the advice of the Gang Database Technical | 2 | | Advisory Task Force, shall develop and implement standardized | 3 | | periodic training for everyone with access to the Statewide | 4 | | Organized Criminal Gang Database. | 5 | | (20 ILCS 2605/2605-392 new) | 6 | | Sec. 2605-392. Department of State Police report; shared | 7 | | gang databases. Beginning January 1, 2020, and annually on | 8 | | January 1 thereafter, the Department shall publish an annual | 9 | | report on the use of shared gang databases, including the | 10 | | Statewide Organized Criminal Gang Database. | 11 | | (1) The report shall include, in a format developed by the | 12 | | Department that contains, by ZIP Code, referring agency, race, | 13 | | gender, and age, the following information for each user | 14 | | agency: | 15 | | (A) The number of persons included in the Statewide | 16 | | Organized Criminal Gang Database on the day of reporting. | 17 | | (B) The number of persons added to the Statewide | 18 | | Organized Criminal Gang Database during the immediately | 19 | | preceding 12 months. | 20 | | (C) The number of requests for removal of information | 21 | | about a person from a gang database under Section 15 of the | 22 | | Law Enforcement Gang Database Information Act that were | 23 | | granted during the immediately preceding 12 months. | 24 | | (D) The number of petitions for removal of information | 25 | | about a person from a gang database under Section 20 of the |
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| 1 | | Law Enforcement Gang Database Information Act adjudicated | 2 | | in the immediately preceding 12 months, including their | 3 | | dispositions. | 4 | | (E) The number of persons whose information was removed | 5 | | from the Statewide Organized Criminal Gang Database due to | 6 | | the expiration of a retention period during the immediately | 7 | | preceding 12 months. | 8 | | (F) The number of times a law enforcement agency did | 9 | | not provide notice or documentation described in Section 10 | 10 | | of the Law Enforcement Gang Database Information Act | 11 | | because providing that notice or documentation would | 12 | | compromise an active criminal investigation. | 13 | | (G) The number of times a law enforcement agency did | 14 | | not provide notice or documentation described in Section 10 | 15 | | of the Law Enforcement Gang Database Information Act | 16 | | because providing that notice or documentation would | 17 | | compromise the health or safety of the designated minor, in | 18 | | the immediately preceding 12 months. | 19 | | (2) The Department shall post this annual report on its | 20 | | website. | 21 | | (20 ILCS 2605/2605-393 new) | 22 | | Sec. 2605-393. Purge; moratorium of shared gang databases. | 23 | | (a) The Department shall instruct each agency to purge from | 24 | | a shared gang database any record of a person entered into the | 25 | | database designated as a suspected gang member, associate, or |
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| 1 | | affiliate that does not meet criteria for entry or whose entry | 2 | | was based upon the following criteria: jail classification, | 3 | | frequenting gang neighborhoods, or on the basis of an untested | 4 | | informant. Unsupported criteria shall be purged and the records | 5 | | of a person shall be purged if the remaining criteria are not | 6 | | sufficient to support the person's designation. After the purge | 7 | | is completed, the shared gang database shall be examined using | 8 | | a statistically valid sample, consistent with professional | 9 | | auditing standards to ensure that all fields in the database | 10 | | are accurate. | 11 | | (b) Beginning January 1, 2019, any shared gang database | 12 | | operated by law enforcement in this State shall be under a | 13 | | moratorium. During the moratorium, data shall not be added to | 14 | | the database. Data in the database shall not be accessed by | 15 | | participating agencies or shared with other entities. The | 16 | | moratorium on a shared gang database shall not be lifted until | 17 | | the Attorney General certifies that the purge required in | 18 | | subsection (a) of this Section has been completed. After the | 19 | | purge has been completed and before the Department adopts the | 20 | | rules required by Section 2605-391 of this Act, new data may be | 21 | | entered, provided the new data meets the criteria established | 22 | | by the conditions of the purge. | 23 | | (20 ILCS 2605/2605-395 new) | 24 | | Sec. 2605-395. Suspension of access to shared gang | 25 | | database. |
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| 1 | | (a) The Department shall temporarily suspend access to a | 2 | | shared gang database system or revoke access to a shared gang | 3 | | database system for any individual who shares information from | 4 | | a shared gang database for employment or military screening | 5 | | purposes. | 6 | | (b) The Department shall temporarily suspend access to a | 7 | | shared gang database system or revoke access to a shared gang | 8 | | database system for an individual who shares information from a | 9 | | shared gang database for federal immigration law purposes, | 10 | | unless required by State or federal statute, rule, or | 11 | | regulation. ".
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