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[Legal] [California] [ULK Issue 16]
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Legal Tips to Fight Gang Validation in California

I am writing in regards to an article titled "False Gang Validations to Repress Latinos" featured in your Under Lock & Key, May/June 2010 newsletter. The author "seeks advice, assistance or referral on how to get word out about biased racial profiling, mass validations, and [officials'] failure to follow their own policies and laws." I am somewhat familiar with the validation process and can only offer advice on that subject. Hopefully it is enough to help steer anyone interested in the right direction.

For starters we have to address the fact that officials are knowingly violating your rights because they know that prisoners are not familiar with the validation process and because appeals coordinators will prevent your CDCR-602 [grievance] appeal from being processed. This is accomplished by screening-out 602s by either applying false rules that don't exist in the California Code of Regulations, Title-15, or the Department Operations Manual (DOM), and by also manipulating current rules by applying them to situations that don't justify the use of that particular rule. The Federal Court in Nunez v. Duncan , 591 F.3d 1217 (9th Cir. 2010) and the State Court in In re Hudson (2007) 143 Cal. App. 4th 1, 49 Cal.Rptr.3d 74, have caught on to these obstructionist tactics and now deem a 602 appeal exhausted if the appeals coordinator prevents you from exhausting your appeal. But you must still follow legitimate and established rules and regulations. The exhaustion exception only applies when officials are the ones who are preventing you from exhausting. So don't be discouraged if the appeals coordinator repeatedly screens out your appeal. Challenge their screen out decision two or three times in order to create a record for the Court that will show you made a good faith effort to exhaust and that it was officials who were the obstructionists.

DOM ยง 54100.8, only allows the appeals coordinator to: (1) screen appeals to determine if you followed proper procedural rules. They are not to use the screen-out form to discourage you from pursuing your appeal by addressing the issue on part "A" of the 602. The issue is to be addressed by a reviewer not the appeals coordinator; (2) this section also prohibits the appeals coordinator from construing the appeals process in any way that would place an unreasonable burden on your right to file a 602; and (3) the appeals coordinator is to provide you with clear instructions needed in order to have your appeal processed. They always screen-out a 602 by telling you what rule you allegedly violated but they don't tell you how to correct the problem. Make sure you insist on clear instructions needed to overcome the screen-out decision. With this in mind we now turn to the validation process.

When a prisoner is being considered for validation, at the minimum, the Due Process Clause of the 14th Amendment to the U.S. Constitution, and Article 1, Sections 7(a) & 15, of the California Constitution, require prison officials to provide you with: (1) meaningful notice of being considered for validation through a CDCR-114 lock-up order; (2) an opportunity to express your views to the Institutional Gang Investigator (IGI) prior to your validation package being submitted to Sacramento for approval; (3) CDCR-1030 Confidential Disclosure forms for each source of information they intend to count as a validation point (the 1030s must be provided 24 hours prior to IGI interview); (4) officials must designate you as being a current active member or associate by identifying specific gang activity or conduct allegedly performed by you on behalf of the gang; and (5) if Sacramento approves the validation package, you have a right to be taken before a Classification Committee. (see Toussanint v. McCarthy, 926 F.2d 800, 803-05 (9th Cir. 1990); Madrid v. Gomez, 889 F.Supp. 1146, 1276-77 (N.D. Cal.1995); the terms of a settlement agreement in Castillo v. Alameda, Case No. C-94-2847-MJJ (N.D.Cal.), which became binding on the CDCR in September 2004; and California Code of regulations, Title-15, Sections 3378; 3000 (see definition of "gang"); and 3023.)

Once in segregation for validation reasons, the State and Federal Due Process Clause also guarantees you the right to periodic reviews by the Classification Committee on at least a weekly or monthly basis during the first two months of segregation and then once every 120 days thereafter. (see, Toussanint v. McCarthy, 926 F.2d 800, 803-05 (9th Cir. 1990); and Toussaint v. Rowland, 711 F.Supp. 536,540 fn.10 (N.D.Cal. 1989).)

If validated you could challenge each validation point under the Due Process Clause by alleging that each point is unreliable because it does not meet the "some evidence" standard and do not have an "indicia of reliability" as there is no corroboration, the information is hearsay obtained through someone else, or the information is completely false. (see, Superintendent v. Hill (1985) 472 U.S. 445, 105 S.Ct. 2768; Cato v. Rushen, 824 F.2d 703,705 (9th Cir. 1987); and Cal. Code of Regulations, Title-15, Sections 3321; 3084.5(h)(2)(C); and 3378(c)(8)(A)-(M)

If officials allege that you committed a specific act of violence on behalf of the gang, then you are entitled to greater Due Process protections: (1) they must issue you a CDCR-114 Rules Violation Report outlining in as much detail as possible, who, what, when and where this alleged violation took place; (2) they must state what evidence they have to support the CDCR-115; (3) they must allow you an opportunity to present witnesses and documentary evidence; and (4) they must assign an Investigative Employee (IE) to assist you in preparing your defense. (see Wolff v. McDonnell (1974) 418 U.S. 539,563-66; and California Code of Regulations, Title-15, Sections 3315-3319.)

This information is only a basic starting point. You should make every effort to research these cases. Good luck with your struggles.

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