Recommendations

May 2018 Hate Crimes in California Law Enforcement Has Not Adequately Identified, Reported, or Responded to Hate Crimes Report 2017-131 COMMITMENT INTEGRITY LEADERSHIP CALIFORNIA STATE AUDITOR 621 Capitol Mall, Suite 1200 | Sacramento | CA | 95814 916.445.0255 | TTY 916.445.0033 For complaints of state employee misconduct, contact us through the Whistleblower Hotline: 1.800.952.5665 Don’t want to miss any of our reports? Subscribe to our email list at auditor.ca.gov For questions regarding the contents of this report, please contact Margarita Fernández, Chief of Public Affairs, at 916.445.0255 This report is also available online at www.auditor.ca.gov | Alternate format reports available upon request | Permission is granted to reproduce reports Elaine M. Howle State Auditor May 31, 2018 2017-131 The Governor of California President pro Tempore of the Senate Speaker of the Assembly State Capitol Sacramento, California 95814 Dear Governor and Legislative Leaders: As requested by the Joint Legislative Audit Committee, the California State Auditor presents this audit report concerning the implementation of hate crime law in California. This report concludes that although reported hate crimes have increased by more than 20 percent from 2014 to 2016, law enforcement has not been doing enough to identify, report, and respond to these crimes. State law defines hate crimes as criminal acts committed, in whole or in part, based on certain actual or perceived characteristics of the victim, referred to as protected characteristics. Of the four law enforcement agencies we reviewed, three—the Los Angeles Police Department (LA Police), the San Francisco State University Police Department (SFSU Police), and the Orange County Sheriff’s Department—failed to properly identify some hate crimes. For example, from 2014 through 2016, LA Police and SFSU Police failed to correctly identify 11 of the 30 cases we reviewed as hate crimes, even though they met the elements of those crimes. Officers at these law enforcement agencies may have been better equipped to identify hate crimes if their agencies had adequate policies and methods in place to identify hate crimes. In addition to misidentifying hate crimes, we found underreporting and misreporting of hate crimes among law enforcement agencies. The California Department of Justice (DOJ) requires law enforcement agencies with peace officer powers, such as sheriff’s departments and police departments, to submit information on all hate crimes occurring in their jurisdictions on a monthly basis. DOJ then transmits these data to the Federal Bureau of Investigation. However, we found that law enforcement agencies failed to report some hate crimes to DOJ. We found 97 instances of hate crimes that the agencies failed to report to DOJ, or roughly 14 percent of all hate crimes identified by the four law enforcement agencies we reviewed. Correct reporting to DOJ is essential to raising awareness about the occurrence of bias-motivated offenses nationwide, and to understanding the nature and magnitude of hate crimes in the State. Finally, we found that while outreach by law enforcement agencies is seen as an important factor in encouraging individuals from vulnerable communities to report hate crimes to the police, over 30 percent of the law enforcement agencies who responded to our survey stated that they do not use any method to encourage the public to report hate crimes. We have made recommendations to the Legislature and DOJ to address the increases in reported hate crimes, including requiring DOJ to create and disseminate outreach materials so law enforcement agencies throughout the State can better engage with their communities. Respectfully submitted, ELAINE M. HOWLE, CPA State Auditor 621 Capitol Mall, Suite 1200 Sacramento, CA 95814 916.445.0255 916.327.0019 fax www.auditor.ca.gov iv California State Auditor Report 2017-131 May 2018 Selected Abbreviations Used in This Report DOJ California Department of Justice FBI Federal Bureau of Investigation MICR Michigan Incident Crime Reporting NIBRS National Incident‑Based Reporting System POST Commission on Peace Officer Standards and Training SFSU San Francisco State University California State Auditor Report 2017-131 v May 2018 Contents Summary 1 Introduction 7 Audit Results Some of the Law Enforcement Agencies We Reviewed Did Not Correctly Identify Hate Crimes and Lacked the Tools and Training Necessary to Identify Hate Crimes Appropriately 17 Hate Crimes Are Difficult to Prosecute 21 Law Enforcement Agencies’ Inadequate Policies and DOJ’s Lack of Oversight Have Resulted in the Underreporting of Hate Crimes in the DOJ’s Hate Crime Database 26 Law Enforcement Agencies and DOJ Could Do More to Respond to Hate Crimes and Encourage Individuals to Report Those That Do Occur 30 Recommendations 36 Appendix 41 Responses to the Audit California Department of Justice 43 Commission on Peace Officer Standards and Training 49 California State Auditor’s Comments on the Response From the Commission on Peace Officer Standards and Training 51 Los Angeles Police Department 53 California State Auditor’s Comments on the Response From the Los Angeles Police Department 61 San Francisco State University Police Department 63 Orange County Sheriff’s Department 65 vi California State Auditor Report 2017-131 May 2018 Blank page inserted for reproduction purposes only. California State Auditor Report 2017-131 1 May 2018 Summary Audit Highlights . . . Results in Brief Our review concerning the implementation of hate crime law in California revealed Reported hate crimes in the State increased by more than 20 percent the following: from 2014 to 2016, from 758 to 931. Nonetheless, law enforcement has » The four law enforcement agencies we not taken adequate action to identify, report, and respond to these reviewed—the LA Police, the Orange County crimes. State law defines hate crimes as criminal acts committed, in Sheriff, the SFSU Police, and the Stanislaus whole or in part, based on certain actual or perceived characteristics County Sheriff—have not taken adequate of the victim, referred to as protected characteristics. These protected action to identify, report, or respond to characteristics are disability, gender, nationality, race or ethnicity, hate crimes. religion, sexual orientation, and association with a person or group with one or more of those actual or perceived characteristics. • Of the four law enforcement agencies, three According to the Office of the Attorney General, hate crimes are failed to properly identify some hate crimes among the most dehumanizing of crimes because the perpetrators because, in part, they lack adequate policies view their victims as lacking full human worth. In addition, hate and methods for this purpose. crimes affect the entire groups to which the victims belong. • The four law enforcement agencies we reviewed failed to report to DOJ a total of Of the four law enforcement agencies we reviewed, three—the 97 hate crimes, or about 14 percent of all Los Angeles Police Department (LA Police), the San Francisco hate crimes they identified. State University Police Department (SFSU Police), and the Orange County Sheriff’s Department (Orange County Sheriff)— • Some law enforcement agencies have not failed to properly identify some hate crimes in the cases we provided refresher hate crime trainings that reviewed. Our testing found that LA Police and SFSU Police contain critical procedures for identifying misidentified some hate crimes as hate incidents. Hate incident is hate crimes. a term law enforcement agencies use to describe a situation that involves an element of hate, such as hate speech, but that does » Hate crimes are difficult to successfully not include an underlying crime, such as an assault. From 2014 prosecute as they are often hampered either through 2016, LA Police incorrectly identified three of the 15 hate by a lack of suspects or by the high standard of incident cases we reviewed—or 20 percent—as hate incidents proof required. rather than hate crimes. Similarly, from 2007 through 2016, SFSU Police failed to properly identify eight of the 15 hate incident » Lack of proactive guidance and oversight from cases we reviewed—or 53 percent—as hate crimes.1 Our review DOJ has contributed to the underreporting and of these 11 hate incidents at LA Police and SFSU Police found that misreporting of hate crime information that it in addition to an element of hate, an offense such as breaches of provides to the public, the Legislature, and the the peace or assault occurred, thus elevating these to hate crimes. federal government. Further, when we reviewed 29 crimes commonly associated with • Although DOJ requires law enforcement hate crimes, such as assaults, at the Orange County Sheriff, we agencies to submit monthly hate crime found that it failed to identify a hate crime that occurred in one of information, it has made no recent effort its detention facilities. Because they failed to correctly identify these to ensure that all agencies are complying. hate crimes, LA Police, SFSU Police, and the Orange County Sheriff did not report them as such to DOJ, thereby leading DOJ • DOJ’s reporting process does not capture to underreport to the federal government and the public the the geographic location where each hate number of hate crimes in California. crime occurred; rather, it identifies only which agency reported the crime. continued on next page . . . 1 Because of the relatively few hate incident cases at SFSU Police, we tested cases from 2007 through 2016. 2 California State Auditor Report 2017-131 May 2018 » Of the 245 law enforcement agencies we Officers at these law enforcement agencies might have been better surveyed, over 30 percent stated that they do equipped to identify hate crimes if their agencies had implemented not use any methods to encourage the public to better methods for doing so and provided periodic training. For report hate crimes. example, three of the four law enforcement agencies we reviewed did not have adequate policies and methods in place to identify hate » Because of its statutory responsibilities to crimes. SFSU Police’s hate crime policy is outdated and does not collect, analyze, and report on hate crimes, adequately reflect the definition of a hate crime under state law. In DOJ is uniquely positioned to provide leadership addition, the Stanislaus County Sheriff’s Department (Stanislaus for law enforcement agencies’ response to County Sheriff) and the Orange County Sheriff do not use a hate crimes. supplemental hate crime report form that allows patrol officers to more easily identify different elements of a hate crime, such as the type of bias (for example, bias toward race, disability, or sexual orientation) and bias indicators (for example, hate speech, certain types of property damage, or symbols). According to the Office of the District Attorney of Orange County, information included in these reports, such as victim and suspect statements about what suspects said regarding certain protected characteristics, can be crucial when prosecuting hate crime cases. Until these three law enforcement agencies implement methods and policies to better identify hate crimes, the potential to misidentify these crimes remains high. We also found that due to the difficulty of prosecuting hate crimes, prosecutors are successful in convicting defendants of hate crimes at only about half the rate at which they convict defendants for all felonies in the State. According to DOJ’s annual survey of County District Attorneys’ Offices, California prosecutors convicted 790 defendants of hate crimes during the period from 2007 through 2016. For an additional 748 cases that law enforcement agencies had initially referred to them as hate crimes, prosecutors ultimately convicted the defendants of crimes other than hate crimes, such as assaults. For the decade we reviewed, the conviction rates for hate crimes ranged from 40 percent to 51 percent per year. In comparison, during that same period, prosecutors statewide secured an 84 percent conviction rate for 2.4 million completed prosecutions for felonies. Successful prosecutions of hate crimes are often hampered either by a lack of suspects or by the high standard of proof required. According to DOJ’s hate crime data, one of the largest limiting factors for hate crime prosecution is a lack of identifiable suspects. Although law enforcement agencies in California reported more than 10,400 hate crimes from 2007 through 2016, more than 3,000 of those crimes lacked suspects to prosecute. Our review of cases at district attorney’s offices also found that successfully prosecuting hate crimes is often difficult because the cases lack sufficient evidence to meet the high standard of evidence required to prove motive and secure a conviction on a hate crime charge. Our review of 100 hate crime cases in four jurisdictions found that California State Auditor Report 2017-131 3 May 2018 prosecutors often rejected the cases referred by law enforcement agencies because the prosecutors believed there was not sufficient evidence to obtain hate crime convictions. In fact, when we reviewed 51 hate crime referrals that prosecutors rejected, we found that the prosecutors rejected 37 due to a lack of evidence sufficient to prove beyond a reasonable doubt that a hate crime had occurred. These numbers suggest that a lack of suspects and the insufficiency of evidence provided by law enforcement were key factors that have limited prosecutions of hate crimes. We also identified underreporting of hate crimes by law enforcement agencies. DOJ requires law enforcement agencies, such as the California Highway Patrol, sheriff’s departments, police departments, and certain school district and college police departments, to submit information on all hate crimes occurring in their jurisdictions on a monthly basis. DOJ then transmits these data to the Federal Bureau of Investigation (FBI) and creates an annual report for the Legislature and the public. However, we found that law enforcement agencies failed to report some hate crimes to DOJ. Specifically, the four law enforcement agencies we reviewed failed to report 97 hate crimes, or about 14 percent of all hate crimes they identified, to DOJ. LA Police was responsible for the vast majority of these errors. Correct reporting to DOJ is essential to raising awareness about the occurrence of bias‑motivated offenses nationwide and to understanding the nature and magnitude of hate crimes in the State. Although DOJ guidance requires law enforcement agencies to submit hate crime information on a monthly basis, it has made no recent effort to ensure that all law enforcement agencies comply with this requirement. When we asked DOJ to provide us with a list of agencies that it requires to report information to its hate crimes database, we found that it did not maintain a complete or accurate listing of all law enforcement agencies in the State. Specifically, a number of law enforcement agencies were not present on the list, and much of the contact information on the list was incorrect. Moreover, DOJ does not verify that all law enforcement agencies it requires to report do so, nor does it review the data that the agencies submit to ensure its accuracy. DOJ’s lack of proactive guidance and oversight of law enforcement agencies is contributing to the underreporting of hate crime information that it provides to the public, the Legislature, and the FBI. In addition, law enforcement agencies need to improve their response to hate crimes by providing outreach that encourages individuals to report hate crimes. The U.S. Bureau of Justice Statistics estimates that from 2011 through 2015, about 54 percent of hate crimes were not reported to law enforcement agencies. According to a bureau chief of the Commission on Peace Officer 4 California State Auditor Report 2017-131 May 2018 Standards and Training (POST), outreach by law enforcement agencies can encourage members of vulnerable communities to come forward if they witness or are the victims of hate crimes. However, two of the four law enforcement agencies we reviewed could not provide documentation of community outreach efforts that specifically addressed hate crimes. Although all four law enforcement agencies engaged with the public by discussing general public safety issues, only the Orange County Sheriff and LA Police provided community outreach activities that related specifically to hate crime issues. In contrast, SFSU Police and Stanislaus County Sheriff noted that agency staff might address hate crimes at outreach events but that hate crimes were not the events’ primary focus. Moreover, when we surveyed 245 law enforcement agencies throughout the State, over 30 percent of the law enforcement agencies who responded to our survey stated that they do not use any methods to encourage the public to report hate crimes. Hate crimes are likely to continue to go underreported by victims and witnesses until law enforcement agencies effectively engage with vulnerable communities. DOJ is uniquely positioned to provide leadership for law enforcement’s response to the growing number of hate crimes in California because of its statutory responsibilities to collect, analyze, and report on hate crimes. Our survey of law enforcement agencies found that they appear receptive to DOJ providing additional training, outreach materials, and other types of assistance. However, to use its resources in this manner, DOJ may need a clear statutory mandate. Further, to provide law enforcement agencies with additional guidance, DOJ will need to revise the way it collects hate crime data. For example, DOJ could use its hate crime data to provide targeted outreach and assistance to individual law enforcement agencies that may be experiencing increases in hate crimes. However, DOJ’s current hate crime reporting process does not capture the geographic location where each hate crime occurred; rather, it identifies only which law enforcement agency reported the hate crime. Capturing data like the geographic locations of crimes is critical to DOJ’s ability to provide guidance to law enforcement agencies and provide accurate information to the Legislature and the public. Selected Recommendations Legislature To address the increase in hate crimes reported in California, the Legislature should require DOJ to do the following: California State Auditor Report 2017-131 5 May 2018 • Add region‑specific data fields to the hate crime database, including items such as the zip code in which the reported hate crimes took place and other fields that DOJ determines will support its outreach efforts. • Create and disseminate outreach materials so law enforcement agencies can better engage with their communities. • Analyze reported hate crimes in various regions in the State and send advisory notices to law enforcement agencies when it detects hate crimes happening across multiple jurisdictions. DOJ To ensure that it receives complete and accurate data, DOJ should, by May 2019, maintain a list of law enforcement agencies that it updates annually, obtain hate crime data from all law enforcement agencies, and conduct periodic reviews of law enforcement agencies to ensure that the data they report are accurate. It should also seek the resources to implement these efforts, if necessary. To ensure that law enforcement agencies effectively engage with communities regarding hate crimes, DOJ should provide guidance and best practices for law enforcement agencies to follow when conducting outreach to vulnerable communities within their jurisdictions. It should seek the resources to implement these efforts, if necessary. Law Enforcement Agencies To ensure that they accurately identify and report hate crimes, SFSU Police and LA Police should update their hate crime policies and procedures, and the Orange County Sheriff and Stanislaus County Sheriff should implement supplemental hate crime reports and require officers to use them. To ensure accurate and complete reporting, LA Police and SFSU Police should provide sufficient guidance and oversight to their officers and staff so that they report all hate crimes to DOJ. Agency Comments DOJ, SFSU Police, and Orange County Sheriff all agreed with our recommendations. LA Police disagreed with some of our findings and asserted that it has already implemented policies and procedures to address our recommendations. Further, POST did 6 California State Auditor Report 2017-131 May 2018 not specifically address our recommendations in its response but offered clarifying comments. Finally, the Stanislaus County Sheriff did not submit a response to our report. Beginning on page 51 we provide our perspective on POST’s and LA Police’s responses to our report. California State Auditor Report 2017-131 7 May 2018 Introduction Hate Crimes and Hate Incidents Background Hate Crimes State law defines hate crimes as criminal acts committed, Hate crimes are criminal acts committed, in whole or in part, in whole or in part, because of the victim’s actual or because of one or more of the following actual or perceived perceived protected characteristics. These protected characteristics of the victim: disability, gender, nationality, characteristics are disability, gender, nationality, race or race or ethnicity, religion, sexual orientation, or association ethnicity, religion, sexual orientation, and association with with a person or group with one or more of these a person or group with one or more of these actual or characteristics. Law enforcement agencies must report hate crimes to DOJ. Hate crimes can be prosecuted in two ways: perceived characteristics. 1. The offense is charged as a separate type of crime, When hate crimes are committed, law enforcement but because it was motivated in whole or in part by agencies investigate and report the crimes, as Figure 1 hate, an additional hate crime sentencing penalty on the following page shows. Law enforcement is imposed. agencies such as the California Highway Patrol, sheriff’s Example: An aggravated assault is motivated by departments, police departments, and certain school animus towards the victim’s sexual orientation. district and college police departments exercise their In this case, the prosecutor could charge the authority to enforce laws to protect the public by defendant with both aggravated assault and with a investigating hate crimes as part of their duties. When hate crime sentencing enhancement. law enforcement officers are determining whether hate 2. The offense is charged directly as a hate crime crimes have occurred, the Commission on Peace Officer because it interfered or threatened to interfere with Standards and Training (POST) recommends that the civil rights of the victim or the victim’s property they interview witnesses, take statements, and gather was damaged or destroyed because the victim had evidence. Additionally, state law requires that the Office one or more of the above-described characteristics. of the Attorney General (Attorney General) direct local This is sometimes referred to as a stand-alone law enforcement agencies to report information on hate hate crime. crimes to the California Department of Justice (DOJ) Example: An individual provides inaccurate and that DOJ publish an annual report on hate crimes. information at a polling place to Latino voters to DOJ submits the hate crime information it collects prevent them from casting their ballots. In this case, from law enforcement agencies to the Federal Bureau the prosecutor could charge the defendant with a of Investigation (FBI). stand-alone hate crime. In contrast, prosecutors review the evidence collected Hate Incident by law enforcement agencies and decide whether to Hate incidents are noncriminal acts that are motivated prosecute hate crimes. Prosecutors proceed with hate by bias against the actual or perceived characteristics crime prosecution when, in their professional judgment, of the victims. Because they are not crimes, some law sufficient evidence exists to prove beyond a reasonable enforcement agencies do not track hate incidents. doubt that a hate crime was committed. As the text box Law enforcement agencies do not report hate incidents shows, if the motivation for a crime such as aggravated to DOJ. assault was animus toward the victim’s race, for example, Example: A student organization hosts a theme the prosecutor may charge the defendant with a hate party that encourages people to wear costumes crime sentencing enhancement, in addition to the and act out in ways that reinforce stereotypes, thus aggravated assault charge. If a defendant who acted alone creating a campus climate that is hostile to a racial or is convicted of a felony with a hate crime sentencing ethnic minority group. enhancement, state law requires that up to three years Source: California State Auditor’s analysis of California state law be added to the underlying felony sentence. Further, if and selected law enforcement agencies’ policies and procedures. the defendant voluntarily acted in concert with another person, the additional sentence could be up to four years. Some law enforcement agencies also track hate incidents, 8 California State Auditor Report 2017-131 May 2018 which occur when there is an element of hate, such as hate speech, but no underlying crime has occurred. Because there is no underlying crime, hate incidents are not prosecuted. Figure 1 The Process for Investigating, Reporting, and Prosecuting a Hate Crime in California A hate crime is committed The hate crime is reported to a law enforcement agency Hate Crime Reporting Hate Crime Investigation The law enforcement agency investigates the hate crime The law enforcement agency may not The law enforcement agency DOJ reports recommend the hate submits the hate crime information the hate crime crime for prosecution The law enforcement agency to DOJ on a monthly basis information to if no suspect was may recommend the hate crime the FBI to the county district attorney's apprehended, etc. office for prosecution DOJ submits an annual report to the Legislature Hate Crime Prosecution The prosecutor may elect to prosecute the case as a hate crime The prosecutor may decide not to prosecute for various reasons, including a lack of sufficient evidence to prove The case ends in the occurrence of a hate crime conviction, dismissal, or beyond a reasonable doubt other disposition Sources: California State Auditor’s analysis of POST hate crime guidelines and DOJ. Hate Crimes Are on the Rise in California Hate crimes have made up a small percentage of total reported crimes in California—less than 0.1 percent of all crimes reported over the last 10 years—and the number of reported hate crimes in California steadily California State Auditor Report 2017-131 9 May 2018 decreased from 2007 through 2014. However, as Figure 2 shows, the number of reported hate crimes in California increased in 2015 and 2016. In fact, reported hate crimes increased by more than 10 percent in both of those years. By comparison, other crimes, such as property and violent crimes, increased by 8 percent in 2015 but saw a 1 percent decrease in 2016. According to the FBI, in 2016 California law enforcement agencies reported more hate crimes than any other state, accounting for more than 15 percent of all reported hate crimes nationwide despite the fact that California residents made up only 12 percent of the U.S. population. We provide an interactive map of the hate crimes reported in California by state Assembly district, state Senate district, and county over the past 10 years on our website: http://auditor.ca.gov/reports/2017‑131/ supplementalhatecrimes.html. Figure 2 Reported Hate Crimes 2007 Through 2016 1,500 1,250 1,000 750 500 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Calendar Year semirC etaH detropeR fo rebmuN Source: DOJ hate crime database, 2007 through 2016. DOJ data further indicate that hate crimes most often target minority racial groups and that, in many cases, persons unknown to the victims perpetrate these crimes. As Figure 3 on the following page shows, the most common targeted characteristics were race, ethnicity, and ancestry, accounting for more than half of all reported hate crimes. 10 California State Auditor Report 2017-131 May 2018 Additionally, Figure 4 shows that hate crime offenders targeted both property and individuals: the most common types of hate crimes were destruction of property, damage to property, and vandalism, followed by intimidation, simple assault, and aggravated assault. Finally, individuals with no known relationships to the victims committed 52 percent of reported hate crimes, and in 29 percent of reported hate crimes, no suspect was identified, as Figure 5 shows. Unknown suspects can make it difficult for law enforcement agencies and prosecutors to successfully investigate and prosecute hate crimes. Figure 3 Reported Hate Crimes by Characteristic 2007 Through 2016 Gender, Gender Nonconforming, and Disability—2% (245) Sexual Orientation—23% (2,352) TOTAL 10,409 Race, Ethnicity, and Ancestry—57% (5,941) Religion—18% (1,871) Source: DOJ hate crime database, 2007 through 2016. Figure 4 Crimes Committed in Conjunction With Hate Crimes 2007 Through 2016 Simple Other—6% (663) Assault—20% (2,105) TOTAL Destruction, Damage, Aggravated 10,409 Assault—17% (1,724) and Vandalism —36% (3,734) Intimidation—21% (2,183) Source: DOJ hate crime database, 2007 through 2016. California State Auditor Report 2017-131 11 May 2018 Figure 5 Relationship of Hate Crime Victims to the Suspects 2007 Through 2016 Suspect identified and is known to victim—19% (1,943) TOTAL 10,409 Suspect identified but has no known relationship to victim—52% (5,378) Suspect unknown—29% (3,088) Source: DOJ hate crime database, 2007 through 2016. Hate Crimes Have Significant Impact on the Groups They Target Although hate crimes made up a small percentage of the crimes reported in California over the past decade, these crimes likely had a significant impact on the groups to which victims belonged. According to the American Psychological Association (association), victims of hate crimes are likely to experience more psychological distress than victims of other violent crimes, resulting in post‑traumatic stress, depression, anger, and anxiety. In addition, the association states that hate crimes communicate to members of the victims’ groups that they are unwelcome and unsafe in their communities. These sentiments were echoed by the former Attorney General, who indicated that hate crimes are among the most dehumanizing of crimes because the perpetrators view their victims as lacking full human worth and who further stated that hate crimes affect the entire groups to which the victims belong. Scope and Methodology The Joint Legislative Audit Committee (Audit Committee) directed the California State Auditor (State Auditor) to perform an audit to examine the State’s status in implementing hate crime laws. Table 1 on the following page outlines the Audit Committee’s objectives and our methods for addressing them. 12 California State Auditor Report 2017-131 May 2018 Table 1 Audit Objectives and the Methods Used to Address Them AUDIT OBJECTIVE METHOD 1 Review and evaluate the laws, rules, Reviewed relevant laws, rules, and other background materials related to hate crimes. and regulations significant to the audit objectives. 2 Identify and analyze policies, • Reviewed DOJ’s policies, procedures, and practices related to its oversight and guidance of local practices, and efforts at DOJ to law enforcement agencies regarding hate crimes. provide oversight and guidance to • Interviewed key staff and policy documents at DOJ to determine efforts it made to intervene with state and local law enforcement local agencies and to cooperate with local, federal, and other state agencies. agencies regarding hate crimes. Assess any efforts by DOJ to intervene in local law enforcement agencies’ practices, when necessary, and to cooperate with local, federal, and other state agencies. 3 Review best practices at the • Interviewed key agency personnel and reviewed documentation from other states including federal level and in other states Maine, Massachusetts, and Michigan, including best practices related to local law enforcement regarding preventing, reporting, agency cooperation. and prosecuting hate crimes. • Reviewed documentation from the FBI and U.S. Department of Justice (US DOJ) on best practices Identify any best practices related to for hate crime prevention, reporting, and prosecution. cooperation among local, state, and federal agencies. 4 For the hate crimes data DOJ collects from California law enforcement agencies, perform the following: a. Determine whether DOJ’s hate • Obtained a copy of the DOJ hate crime database from 2007 through 2016. crimes reporting system complies • Evaluated the DOJ hate crime database to ensure that it meets existing legal and with existing laws. Determine regulatory requirements. whether DOJ’s reports include hate • Analyzed the DOJ hate crime database for trends and information on groups that are the victims of crime data reported by local law hate crime, for which hate crimes are most common, and for the number of hate crimes over time. enforcement to federal agencies. To the extent possible, determine • Reviewed hate crime data submitted by the Los Angeles Police Department (LA Police), the whether hate crimes in California Stanislaus County Sheriff’s Department (Stanislaus County Sheriff), the Orange County Sheriff’s committed based on, but not limited Department (Orange County Sheriff), and the San Francisco State University Police Department to, the victim’s gender, disability, (SFSU Police) to determine whether these law enforcement agencies were underreporting nationality, race or ethnicity, data to DOJ. religion, and sexual orientation are underreported in DOJ’s data. b. Identify and analyze trends in • Plotted the hate crimes throughout California over maps of state Assembly districts, state Senate reported hate crimes by type of districts, and counties obtained from the U.S. Census Bureau. We did not assess the reliability of criminal act and category of bias. the U.S. Census Bureau’s data because it was obtained from a reliable source. Interactive maps are available on our website. • Analyzed the DOJ hate crime database to determine the most common criminal acts associated with hate crimes and the percent of hate crimes committed based on the category of bias. c. Analyze DOJ’s efforts to address Interviewed key personnel at DOJ to determine what steps it has taken to address underreporting of potential underreporting of hate crimes. hate crimes. California State Auditor Report 2017-131 13 May 2018 AUDIT OBJECTIVE METHOD 5 Determine whether the hate crime • Reviewed relevant laws, regulations, and the hate crime policy framework and determined POST policy framework, guidelines, and was complying with its statutory requirements. training efforts of POST comply with • Interviewed key personnel at POST to evaluate its ability to measure and improve the effectiveness relevant laws and regulations, as of its training. well as adequately recognize and • Reviewed POST’s training materials for compliance with relevant laws and regulations. respond to hate crimes involving the full range of victim characteristics • Evaluated POST training against best practices at other state entities. in state law. Evaluate POST’s current ability to measure and improve the effectiveness of its training regarding hate crimes. 6 Survey all state and local law • The original audit request was that the State Auditor survey all state and local law enforcement enforcement agencies regarding agencies regarding hate crime issues, including the California Highway Patrol, the California hate crime issues. The survey will Department of Corrections and Rehabilitation, sheriff departments, police departments, district include the California Highway attorneys, and probation departments. However, during the August 30, 2017, Audit Committee Patrol, the California Department of hearing, the request was amended to require the survey of three law enforcement agencies Corrections and Rehabilitation, sheriff in each assembly district. Using the DOJ hate crime database, we identified law enforcement departments, police departments, agencies throughout the State. district attorneys, and probation • Verified the headquarters’ addresses of each law enforcement agency and plotted agencies departments. The survey will include, into state Assembly districts. but not necessarily be limited to, • For each state Assembly district in which there were at least three law enforcement agencies, questions related those in the we selected the law enforcement agencies with the most reported hate crimes and the fewest requesters’ submitted questionnaire reported hate crimes and a third law enforcement agency for our survey. and will cover agencies’ hate crime policies, training, reporting, and • For state Assembly districts that had two or fewer law enforcement agencies, we selected public education efforts. and surveyed each law enforcement agency in that district. We then picked additional law enforcement agencies from surrounding state Assembly districts to ensure that we selected the 240 local law enforcement agencies called for in the amended audit request. We also surveyed five state law enforcement agencies, for a total of 245 surveys. 7 For a selection of four law enforcement agencies—one municipal police department with a relatively large number of reported hate crimes, one medium‑sized university police department, one sheriff’s office with a relatively low number of reported hate crimes, and one large state or local correctional agency—determine the agencies’ compliance with hate crime laws and regulations by performing the following: a. For a selection of crimes • Reviewed the policies and procedures from LA Police, Stanislaus County Sheriff, Orange County at each agency, determine Sheriff, and SFSU Police for identifying and reporting hate crimes. whether the agency properly • Reviewed up to 17 hate crimes at each agency to determine whether the agencies classified identified the incidents as hate them correctly. crimes and classified and reported • Reviewed up to 15 hate incidents at LA Police and SFSU Police to determine whether the agencies those crimes accordingly. classified them correctly. We could not complete similar testing at the Stanislaus County Sheriff and Orange County Sheriff because the agencies did not track hate incidents as a category. • Reviewed 29 files from each agency that law enforcement did not categorize as hate crimes but that included crimes commonly associated with hate crimes, to ensure that the agency made the correct assessment. continued on next page . . . 14 California State Auditor Report 2017-131 May 2018 AUDIT OBJECTIVE METHOD b. For a selection of crimes the • Compared the data elements for up to 29 hate crimes that each agency reported to the DOJ hate agencies reported to DOJ as hate crime database to the respective data elements in the original case files to ensure that the agency crimes, determine the accuracy, reported the crimes accurately. completeness, and timeliness of • Compared the number of hate crime case files each agency identified in its internal database the information reported. to the number of case files each agency reported to the DOJ hate crime database to determine whether each agency reported the crimes completely. • Assessed the timeliness of information reported to DOJ. We did not identify any issues. c. Review the agencies’ policies • Interviewed key personnel at each agency about the outreach and training performed by the and procedures related to agency related to hate crimes. disseminating information on hate • Reviewed at least 27 officer training profiles at each agency to ensure that officers were crimes—such as brochures—and POST‑certified and we found that all of them were. Reviewed available documentation of to providing hate crime training additional hate crime training at the three agencies that offered in‑service training during the and public outreach. period from 2014 through 2016. • Reviewed the processes in place at each agency related to disseminating information related to hate crimes. 8 Review and assess any other issues • Reviewed documents and interviewed staff from the San Francisco County District Attorney’s that are significant to the audit. Office (San Francisco County District Attorney), Stanislaus County District Attorney’s Office, Office of the District Attorney of Orange County (Orange County District Attorney), and the Los Angeles County District Attorney’s Office to identify any issues related to the prosecution of hate crimes. • Reviewed hate crime cases referred for prosecution by law enforcement agencies to determine why prosecutors rejected cases for prosecution and the disposition of the cases they decided to prosecute. • Interviewed key staff at various public advocacy organizations about potential issues related to the underreporting of hate crimes. Source: California State Auditor’s analysis of the Audit Committee’s audit request 2017‑131, planning documents, and information and documentation identified in the table column titled Method. Assessment of Data Reliability In performing this audit, we obtained electronic data files extracted from the information systems listed in Table 2. The U.S. Government Accountability Office, whose standards we are statutorily required to follow, requires us to assess the sufficiency and appropriateness of computer‑processed information that we use to support findings, conclusions, or recommendations. Table 2 describes the analyses we conducted using data from these information systems, our methods for testing, and the results of our assessments. Although these determinations may affect the precision of the numbers we present, there is sufficient evidence in total to support our audit findings, conclusions, and recommendations. California State Auditor Report 2017-131 15 May 2018 Table 2 Methods Used to Assess Data Reliability DATA SOURCE PURPOSE METHOD AND RESULT CONCLUSION LA Police Identify instances in which LA • Performed data‑set verification procedures and electronic Sufficiently reliable Police inaccurately identified a testing of key data elements, and we did not identify any for the purposes of Consolidated Crime case with an underlying crime significant issues. this audit. Analysis Database type often related to hate • To gain assurance of the completeness of the data, we from 2014 through crimes (assault, intimidation, verified they included case information for a selection 2016 vandalism) as a crime other than of 29 assault, intimidation, and vandalism case files and a hate crime when information found no exceptions. within the case file met the requirements to charge a hate • To gain assurance over the accuracy of the data, we traced crime under California law. key data elements to source documentation for a sample of 29 assault, intimidation, and vandalism case files and found Identify instances in which no exceptions. LA Police underreported or overreported hate crimes during the audit period. Create a selection of cases to review. Orange County Sheriff Identify instances in which • Performed data‑set verification procedures and electronic Sufficiently reliable Orange County Sheriff testing of key data elements, and we did not identify any for the purposes of Records Management inaccurately identified a case significant issues. this audit. System from 2014 with an underlying crime type • To gain assurance of the completeness of the data, we through 2016 generally related to hate crimes verified they included case information for a selection of (assault and vandalism) as a 29 assault and vandalism case files and found no exceptions. crime other than a hate crime when information within the • To gain assurance over the accuracy of the data, we traced case file met the requirements key data elements to source documentation for a sample of to charge a hate crime under 29 assault and vandalism case files and found no exceptions. California law. Identify instances in which Orange County Sheriff underreported or overreported hate crimes during the audit period. Create a selection of cases to review. SFSU Police Identify instances in which SFSU • Performed data‑set verification procedures and electronic Undetermined Police inaccurately identified testing of key data elements, and we did not identify any reliability for the Records Management a case with an underlying significant issues. purposes of this audit. System from 2007 crime type often related to • To gain assurance over the accuracy of the data, we traced through 2016 hate crimes (assault and Although this key data elements to source documentation for a sample of vandalism) as a crime other than determination may 29 assault and vandalism case files and found no exceptions. a hate crime when information affect the precision within the case file met the • Did not perform completeness testing on these data because of the numbers we requirements to charge a hate physical source documents required for this testing were not present, there is crime under California law. maintained by the auditee for the years of our data reliability sufficient evidence assessment period. in total to support Identify instances in which our findings, SFSU Police underreported or conclusions, and overreported hate crimes during recommendations. the audit period. Create a selection of cases to review. continued on next page . . . 16 California State Auditor Report 2017-131 May 2018 DATA SOURCE PURPOSE METHOD AND RESULT CONCLUSION Stanislaus County Identify instances in which • Performed data‑set verification procedures and electronic Sufficiently reliable Sheriff Stanislaus County Sheriff testing of key data elements, and we did not identify any for the purposes of inaccurately identified a case significant issues. this audit. Integrated Criminal with an underlying crime type • To gain assurance of the completeness of the data, we Justice Information generally related to hate crimes verified they included case information for a selection of System from 2007 as a crime (assault, intimidation, 29 assault, intimidation, and vandalism case files and found through 2016 or vandalism) other than a no exceptions. hate crime when information within the case file met the • To gain assurance over the accuracy of the data, we traced requirements to charge a hate key data elements to source documentation for a sample of crime under California law. 29 assault, intimidation, and vandalism case files and found no exceptions. Identify instances in which Stanislaus County Sheriff underreported or overreported hate crimes during the audit period. Create a selection of cases to review. DOJ Identify instances of hate crime • Performed data‑set verification procedures and electronic Not sufficiently misreporting or underreporting testing of key data elements, and we did not identify any reliable to identify all Hate crime to DOJ by LA Police, Orange significant issues. hate crimes. database from 2007 County Sheriff, SFSU Police, and • To gain assurance of the completeness of the data, through 2016 Stanislaus County Sheriff. Although this we compared the total number of files that each law determination may enforcement agency identified in its internal database to the affect the precision number of case files the agency reported to the DOJ hate of the numbers we crime database. Our review found that the four agencies present, there is failed to report the following number of hate crimes to DOJ: sufficient evidence LA Police: 89 of 622; SFSU Police: 6 of 17; Stanislaus County in total to support Sheriff: 1 of 18; and Orange County Sheriff: 1 of 23. our findings, • To gain assurance over the accuracy of the data, we conclusions, and compared key data elements from a sample of up to 29 case recommendations. files that each agency reported to DOJ hate crime database to the respective data elements in the original case files at each agency. Our review found the following inaccuracies: LA Police: 2 of 29; SFSU Police: 2 of 11; Stanislaus County Sheriff: 4 of 17; and Orange County Sheriff: 5 of 8. In each case, some key data element reported in the law enforcement agency case file did not match the records reported in the DOJ hate crime database. Source: California State Auditor’s analysis of the DOJ hate crime database and cases at the LA Police, Orange County Sheriff, SFSU Police, and Stanislaus County Sheriff. California State Auditor Report 2017-131 17 May 2018 Audit Results Some of the Law Enforcement Agencies We Reviewed Did Not Correctly Identify Hate Crimes and Lacked the Tools and Training Necessary to Identify Hate Crimes Appropriately LA Police, SFSU Police, and the Orange County Sheriff failed to properly identify some hate crimes in the cases we reviewed. The underidentification of hate crimes was due to several factors, including policies that did not accurately reflect state law and a lack of tools that patrol officers could use to identify hate crimes when first arriving at crime scenes. In addition, we found that two of the four agencies we reviewed did not offer adequate hate crime refresher training that would have reminded officers of how to correctly identify hate crimes. Three of the Law Enforcement Agencies We Reviewed Did Not Adequately Identify Hate Crimes Three of the four law enforcement agencies we reviewed failed to properly identify some hate crimes. For example, our testing at LA Police and SFSU Police indicated that they failed to appropriately identify some instances of hate crimes, misidentifying them instead as hate incidents.2 As the Introduction discusses, hate incident is a term that law enforcement agencies use to describe a situation that involves an element of hate, such as hate speech, but does not include an underlying crime, such as an assault. As Table 3 on the following page shows, LA Police should have identified three of the 15 hate incident cases we reviewed—or 20 percent—as hate crimes. Similarly, SFSU Police should have identified eight of the 15 hate incident cases we reviewed—or 53 percent—as hate crimes.3 In these misidentified cases, an offense such as breach of the peace or assault occurred in addition to an element of hate, thus elevating the cases to hate crimes. For example, LA Police investigated an assault that occurred at a school and improperly reported it as a hate incident. Although LA Police indicated that it did not consider the three incidents in question to be crimes, our review of incidents reported to LA Police clearly indicated that crimes had occurred. Similarly, SFSU Police indicated that several of the eight incidents it misidentified were not hate crimes because the victims or reporting parties did not positively indicate that they were the targets because of their identities, although no such legal requirement exists. As we discuss later, 2 We could not complete similar testing at the Stanislaus County Sheriff’s Department and Orange County Sheriff because the agencies did not track hate incidents as a category. 3 Because of the relatively few hate incident cases at SFSU Police, we expanded our testing time frame from 2007 through 2016. 18 California State Auditor Report 2017-131 May 2018 because they misidentified these hate crimes as hate incidents, LA Police and SFSU Police failed to report the crimes, thereby leading DOJ to present incorrect information about the number of hate crimes in California. Table 3 Accuracy of Local Law Enforcement Agencies in Identifying Hate Crimes UNDERIDENTIFICATION OVERIDENTIFICATION HATE CRIMES MISIDENTIFIED AS LAW ENFORCEMENT AGENCY HATE INCIDENTS ASSOCIATED CRIME REVIEW* CASES IDENTIFIED AS HATE CRIMES LA Police 3 errors of 15 files reviewed 0 errors of 29 files reviewed 0 errors of 15 files reviewed 2014 through 2016 Orange County Sheriff 2007 through 2016† NA 1 error of 29 files reviewed 0 errors of 10 files reviewed SFSU Police 2007 through 2016† 8 errors of 15 files reviewed 0 errors of 29 files reviewed 5 errors of 16 files reviewed Stanislaus County Sheriff 2007 through 2016† NA 0 errors of 29 files reviewed 0 errors of 17 files reviewed Source: California State Auditor’s analysis of cases at the LA Police, Orange County Sheriff, SFSU Police, and Stanislaus County Sheriff. NA = Not applicable. * We reviewed reports for arrests for crimes frequently associated with hate crimes and determined whether hate crimes had occurred. † We expanded the period of review from 2014 through 2016 to 2007 through 2016 because of the relatively few hate crime cases referred to the Orange County Sheriff, SFSU Police, and Stanislaus County Sheriff. However, we conducted the associated crime review testing at these three agencies for the period from 2014 through 2016. We also identified one case in which the Orange County Sheriff failed to identify a hate crime that occurred in its detention facility. State law requires law enforcement agencies to address hate crimes regardless of where they occur. Our testing of 29 Orange County Sheriff case files of crimes often associated with hate crimes, such as vandalism and assault, found one case in which the Orange County Sheriff documented that an assault and battery occurred in its detention facility but failed to identify the event as a hate crime even though the suspect noted that his motivation included a protected characteristic of the victim. When we discussed this incident with the Orange County Sheriff, the sergeant who had reviewed the file stated that she did not realize that the department needed to report the case to DOJ as a hate crime and described the problem as a result of a lack of training. During our review, we also found instances of overidentification of hate crimes by SFSU Police. Specifically, when we reviewed 16 hate crime cases, we found five that SFSU Police identified as hate crimes but should have classified as hate incidents or non‑hate crimes. According to SFSU Police’s assistant police chief, it reported these instances to DOJ as hate crimes because of outdated policies and an overabundance of caution. California State Auditor Report 2017-131 19 May 2018 Some Law Enforcement Agencies We Reviewed Lacked the Policies and Tools to Identify Hate Crimes Appropriately Three of the four law enforcement agencies we reviewed did not have adequate policies and methods in place to identify hate crimes. POST, a commission responsible for setting minimum selection and training A supplemental hate crime report standards for California law enforcement, encourages law enforcement form allows patrol officers to more agencies to have techniques or methods in place to identify and handle easily identify different elements hate crimes, such as a supplemental hate crime report form that patrol of a hate crime, such as the type of officers can use to more easily identify hate crimes. A supplemental bias—bias toward race, disability, hate crime report allows patrol officers to identify different elements or sexual orientation—and bias of a hate crime, such as the type of bias (for example, bias toward race, indicators—hate speech, property disability, or sexual orientation) and bias indicators (for example, hate damage, or symbols. speech, property damage, or symbols). The Orange County Sheriff does not have a supplemental hate crime report form for first‑responding officers but has begun drafting a version of the form based on those used at other law enforcement agencies across the State. In addition, the Stanislaus County Sheriff does not have a supplemental hate crime report form. According to the Orange County District Attorney, information included in these reports, such as victim and suspect statements about what suspects said regarding certain protected characteristics, may be crucial when prosecuting hate crime cases. Until both law enforcement agencies implement methods to better identify hate crimes, the potential to misidentify hate crimes remains high. Further, SFSU Police’s hate crime policy is outdated and does not correctly describe hate crimes committed as a result of an association with a victim with a protected characteristic. Rather, its hate crime policy incorrectly states that if a crime lacks a specific target or victim, it should be classified as a hate incident. However, state law indicates that officers investigating a hateful criminal act do not necessarily have to identify a clearly specified victim to consider the act a hate crime, as long as the crime was committed based on an association with a victim with a protected characteristic. For instance, statutory and case law make it a crime for someone to spray‑paint a racially motivated hate symbol in a college classroom used by an instructor of a different race, under the theory that the classroom is associated with the victim. However, SFSU Police would have considered this a hate incident instead of a hate crime. The SFSU Police deputy chief acknowledged the limitations of its hate crime policy and plans to implement an ongoing training program on hate crime reporting for officers and applicable staff. In addition, SFSU Police have since updated its hate crime policies and procedures. Nevertheless, from 20 California State Auditor Report 2017-131 May 2018 2007 through 2016, SFSU Police misidentified eight hate crimes as hate incidents using a policy that did not follow state law, as we describe previously. Periodic Hate Crime Refresher Training for Peace Officers Is Not Required by Law, Monitored at the State Level, or Evaluated for Effectiveness Our review found that some law enforcement agencies have not provided refresher hate crime trainings that contain critical procedures for identifying hate crimes. Specifically, the Stanislaus County Sheriff does not have documentation of any hate crime refresher training from 2014 through 2016, and 85 of the 174 law enforcement agencies across the State that responded to our survey, or 49 percent, stated that they also did not offer refresher hate crime training during this period. Although the other three law enforcement agencies we reviewed provided some hate crime refresher training, it was not always to the majority of sworn officers. For example, Orange County Sheriff indicated that it provided refresher training to only 212 of its 1,950 officers from 2014 through 2016. We find this lack of training particularly problematic given that POST provides free hate crime training materials to POST‑certified law enforcement agencies. Although state law requires hate crime training during police officer academy training, state law does not require officers to take periodic hate crime refresher trainings, as it does with trainings on other topics, such as handling domestic violence complaints. A POST bureau chief noted that mandates for additional hate crime training would be beneficial, subject to the availability of funding. When we asked the Orange County Sheriff why it did not provide more extensive refresher hate crime training, a training division sergeant indicated that the small number of hate crimes reported in its jurisdiction did not warrant departmentwide refresher training, especially given the high costs of implementing By providing periodic refresher new training mandates. A Stanislaus County Sheriff training hate crime training using POST’s division lieutenant also indicated that the lack of allocated funding free training materials, law for refresher training is a significant challenge. Nevertheless, by enforcement agencies could help providing periodic refresher hate crime training using POST’s law enforcement officers to properly free training materials, law enforcement agencies could help law identify hate crimes. enforcement officers to properly identify hate crimes. Moreover, POST is unable to determine the effectiveness of its hate crime training because it does not conduct periodic evaluations of its hate crime training program. Although POST currently conducts annual reviews of POST‑certified agencies to ensure that peace officers have met basic training requirements and completed any necessary refresher trainings, it does not conduct reviews of its hate crime trainings. Nonetheless, POST has noted that a program to California State Auditor Report 2017-131 21 May 2018 assess the quality of training delivery could improve law enforcement field performance and decision making. A POST bureau chief stated that POST would like to conduct evaluations of hate crime training at POST academies across the State, but more funding would be necessary. In fact, POST indicated that it requested funding for evaluating hate crime training for fiscal year 2017–18 but did not receive it, and it has also not been able to secure funding for a training assessment program for fiscal year 2018–19. A POST bureau chief stated that a limited program could cost $65,000, while a more robust program would cost $130,000 per year. Until POST obtains the necessary funds to evaluate the effectiveness of its hate crime training, there is no mechanism to ensure that the curriculum most effectively communicates important issues regarding hate crimes, including procedures to ensure that peace officers properly identify these crimes. Hate Crimes Are Difficult to Prosecute Due to the difficulty of prosecuting hate crimes, prosecutors are successful in convicting defendants of hate crimes at only about half the rate at which they convict defendants for all felonies in the State. During the period from 2007 through 2016, California prosecutors convicted 790 defendants of hate crimes, as Table 4 on the following page shows. For an additional 748 cases that had initially been referred to them as hate crimes, prosecutors ultimately convicted defendants of crimes other than hate crimes, such as assaults. Prosecutors convicted between 40 percent and 51 percent of defendants with hate crime charges during the years we reviewed. In comparison, in the past 10 years, prosecutors secured an 84 percent conviction rate for the 2.4 million completed prosecutions for felonies in California. There are multiple explanations for the low rate of hate crime convictions compared to convictions for other crimes. For example, hate crime data from DOJ show that one of the largest limiting factors in hate crime prosecutions is a lack of identifiable suspects. Although law enforcement agencies reported more than Although law enforcement agencies 10,400 hate crimes from 2007 through 2016, more than 3,000 of reported more than 10,400 hate those crimes lacked suspects to prosecute. It is sometimes difficult crimes from 2007 through 2016, for police to identify a suspect for some types of hate crimes. For more than 3,000 of those crimes example, seven of the eight vandalism hate crimes at the four law lacked suspects to prosecute. enforcement agencies we reviewed lacked a suspect to prosecute. In addition, our review of cases at district attorney’s offices found that successfully prosecuting hate crimes is often difficult because the cases lack sufficient evidence to meet the high standard of proof required to prove motive and secure a conviction on a hate crime charge. Specifically, we found that prosecutors reject some 22 California State Auditor Report 2017-131 May 2018 hate crime cases referred by law enforcement agencies because they believe the evidence is insufficient to obtain hate crime convictions. As Table 5 shows, of the 51 hate crime referrals prosecutors rejected in the four jurisdictions we reviewed from 2014 through 2016, 37 were rejected due to a lack of sufficient evidence to prove beyond a reasonable doubt that a hate crime had occurred.4 For example, the Orange County District Attorney rejected one hate crime referral in which a robbery suspect allegedly directed hateful speech to the victim because there was a lack of sufficient evidence to prove that the suspect spoke to the victim. According to the Orange County District Attorney, sufficient evidence needed to prove that hate was a motivating factor could include witness and suspect statements and social media postings. An Orange County senior deputy district attorney stated that because patrol officers, not detectives, generally respond to crimes, patrol officers must understand the nuances of hate crime prosecution to ensure that they corroborate the suspects’ motives for the crimes. This corroboration can establish sufficient evidence for the intent element of a hate crime. A proper initial investigation of a hate crime relies on training and on tools, such as a supplemental hate crime report, which we discussed previously. Table 4 The Conviction Rate of Hate Crimes Is Lower Than the Total Felony Conviction Rate HATE CRIME* ALL OTHER CONVICTIONS CONVICTIONS (HATE CRIME (HATE CRIME REFERRALS WITH REFERRALS WITHOUT HATE CRIME HATE CRIME NOT HATE CRIME YEAR CONVICTIONS) CONVICTIONS) CONVICTED TOTAL CONVICTION RATE Prosecution of hate crime referrals by year 2007 110 103 28 241 46% 2008 128 104 28 260 49 2009 131 92 34 257 51 2010 70 81 15 166 42 2011 74 80 7 161 46 2012 49 58 17 124 40 2013 68 76 9 153 44 2014 50 49 15 114 44 2015 59 60 19 138 43 2016 51 45 22 118 43 Totals 790 748 194 1,732 46% TOTAL FELONY NOT TOTAL YEARS CONVICTIONS CONVICTED TOTAL CONVICTION RATE Prosecution of all felonies 2007 through 2016 1,997,513 392,915 2,390,428 84% Sources: Unaudited DOJ prosecution survey and annual crime report. * Hate crimes include both stand‑alone hate crimes and hate crime sentencing enhancements. 4 We expanded the period of review to 2007 through 2016 for the Stanislaus County District Attorney because of the relatively few hate crime case referrals it received. California State Auditor Report 2017-131 23 May 2018 Table 5 District Attorneys’ Offices Rejected Most Hate Crime Referrals Due to Insufficient Evidence DISTRICT ATTORNEYS’ OFFICE REVIEW PERIOD FROM 2014 FROM 2014 FROM 2014 FROM 2007 THROUGH 2016 THROUGH 2016 THROUGH 2016 THROUGH 2016* COUNTY LOS ANGELES ORANGE SAN FRANCISCO STANISLAUS TOTAL Cases we reviewed (hate crime referrals)† 30 31 30 9 100 Cases accepted for prosecution by the district attorney 15 16 12 6 49 Cases rejected for hate crime prosecution by the district attorney‡ 15 15 18 3 51 • Cases rejected by the district attorney due to insufficient evidence 10 14 10 3 37 of 51 Source: California State Auditor’s analysis of hate crime files obtained from the LA County District Attorney, Orange County District Attorney, San Francisco County District Attorney, and the Stanislaus County District Attorney. * We expanded the period of review because of the relatively few hate crime cases referred to the Stanislaus County District Attorney. † Hate crimes include both stand‑alone hate crimes and hate crime sentencing enhancements. ‡ Includes cases that either were completely rejected or were rejected for hate crime prosecution but prosecuted for non‑hate crime offenses. Even when prosecutors are unable to achieve hate crime convictions, they are often able to attain convictions for the underlying crimes. Specifically, although prosecutors convicted between 40 percent and 51 percent of defendants charged with hate crimes from 2007 through 2016, the conviction rate for the defendants initially referred to prosecutors with hate crime charges increased to between 81 percent and 96 percent when also counting convictions for crimes other than hate crimes, such as assault or battery. Of the hate crime cases we reviewed that were referred by law enforcement agencies and accepted by district attorneys’ offices, prosecutors convicted between 57 percent and 92 percent of the defendants of some type of crime, as Table 6 on the following page shows. The conviction rates for hate crimes in these cases were lower—between 15 percent and 72 percent—a disparity that occurred for several reasons, according to the prosecutors. An assistant district attorney for the San Francisco County District Attorney stated that because proving that a suspect’s primary motivation for a crime was hate toward the victim’s race or religion is sometimes difficult, it is often only possible to prove that the suspect had perpetrated the underlying crime, such as assault. Further, the assistant district attorney stated that sophisticated juries in the region expect the district attorney to present high‑tech evidence, which is often not possible in hate crime trials. The San Francisco County District Attorney prosecuted 13 hate crime defendants but secured convictions for only two, with 10 of the remaining defendants instead convicted only of the underlying crimes. 24 California State Auditor Report 2017-131 May 2018 Table 6 Hate Crime Conviction Rates for the Cases We Reviewed Varied From 15 Percent to 72 Percent DISTRICT ATTORNEYS’ OFFICE REVIEW PERIOD FROM 2014 FROM 2014 FROM 2014 FROM 2007 THROUGH 2016 THROUGH 2016 THROUGH 2016 THROUGH 2016* COUNTY LOS ANGELES ORANGE SAN FRANCISCO STANISLAUS Defendants prosecuted for hate crimes† 19 18 13 7 Defendants convicted of any crime 16 15 12 4 Defendants convicted of hate crimes only 6 13 2 3 Defendants acquitted, dismissed, or case pending 3 3 1 3 Conviction rate—hate crimes only 32% 72% 15% 43% Conviction rate—all crimes 84% 83% 92% 57% Source: California State Auditor’s analysis of hate crime files obtained from the LA County District Attorney, Orange County District Attorney, San Francisco County District Attorney, and Stanislaus County District Attorney. Note: The number of defendants differ from the number of cases in Table 5 because some cases involved multiple defendants. * We expanded the period of review because of the relatively few hate crime cases referred to the Stanislaus County District Attorney. † Hate crimes include both stand‑alone hate crimes and hate crime sentencing enhancements. Being convicted of an offense with a hate crime sentencing enhancement can result in an addition to the defendant’s overall sentence. According to state law, hate crime sentencing enhancement convictions can result in fines or additional sentences of up to four years, depending on whether the underlying crime is a felony or misdemeanor and on whether the defendant acted alone or in concert with another person. Conversely, assault with a firearm, battery, criminal threat, or vandalism without a hate crime sentencing enhancement could result in a maximum jail term of between six months and four years.5 Figure 6 shows examples of sentences for stand‑alone hate crimes and for offenses often associated with hate crimes, as well as the potential hate crime sentencing enhancements available for those associated crimes. For example, the Orange County District Attorney convicted a defendant of a stand‑alone hate crime when the defendant repeatedly yelled racial slurs at multiple individuals passing by on the street, a violation of the pedestrians’ civil rights. This defendant received a sentence of 115 days in jail for this stand‑alone hate crime. Courts have discretion to determine which of the sentencing enhancements to impose. For the hate crime convictions we reviewed, the average jail term for all charges, including enhancements, was 8.8 months, and the average state prison term was 4.1 years. Prosecutors we spoke with and law enforcement agencies we surveyed generally indicated that the hate crime law does not require amendment. When we questioned prosecutors about the hate crime conviction rate, they noted that although proving motive 5 Assault with a firearm means the least serious assault‑related firearm charge. California State Auditor Report 2017-131 25 May 2018 beyond a reasonable doubt is a high prosecutorial burden to meet, the difficulty is appropriate given the gravity of the charges. Law enforcement agencies we surveyed overwhelmingly responded that no changes were needed to state hate crime law to allow them to identify, investigate, report, or mitigate hate crimes, with 93 percent of responding agencies indicating that the state law does not require amendment. Figure 6 Maximum Conviction Sentences for Common California Hate Crimes Stand-alone hate crime offense Maximum sentence for the underlying non-hate crime offense* CONVICTED Maximum hate crime sentencing enhancement* OFFENSE Assault with a firearm† 4 years 3 years Battery 3 years 3 years Felony Criminal threats 3 years 3 years Vandalism 3 years 3 years Criminal threats 364 days 364 days Stand-alone hate crime 364 days Simple assault‡ Mo 6 nths 364 days Misdemeanor Vandalism§ 364 days 364 days Vandalismll 336644 ddaayyss 3 years 1 2 3 4 5 6 7 Jail/Prison Sentence Term In Years Source: California Penal Code. * Maximum sentence and Maximum hate crime sentencing enhancement refer to the longest sentence or sentencing enhancement provided by statute assuming no prior convictions, aggravating factors, or other non hate‑related sentencing enhancements. The numbers we provide also assume that a person who commits or attempts to commit a felony that is a hate crime did not do so in concert with another person. If a person who commits or attempts to commit a felony that is a hate crime voluntarily acted in concert with another, then that person could receive a total of four years as a hate crime sentencing enhancement. † Assault with a firearm means the least serious assault‑related firearm charge. ‡ Simple assault means the least serious assault‑related charge. § Crime did not cause property damage in excess of $950. ll Crime caused property damage in excess of $950. 26 California State Auditor Report 2017-131 May 2018 Law Enforcement Agencies’ Inadequate Policies and DOJ’s Lack of Oversight Have Resulted in the Underreporting of Hate Crimes in the DOJ’s Hate Crime Database DOJ requires law enforcement agencies with peace officer powers to report all hate crimes, which it then transmits to the FBI.6 The correct reporting of hate crimes to DOJ and subsequently the FBI is essential to identifying national and statewide hate crime patterns and to combating the negative effects that these types of crimes have on communities. Nonetheless, law enforcement agencies have failed to submit complete and accurate hate crime information to DOJ. Specifically, we found that the four agencies we reviewed, as well as many law enforcement agencies affiliated with educational institutions, have underreported hate crimes. At the local law enforcement agencies we reviewed, a lack of hate crime training and protocols, in addition to little proactive guidance and oversight from DOJ, have contributed to the underreporting of hate crimes. Law Enforcement Agencies Have Underreported Hate Crimes to DOJ Due to Inadequate Policies The four law enforcement agencies we reviewed, as well as other agencies throughout the State, have underreported hate crime information to the DOJ’s hate crime database. DOJ requires law enforcement agencies with peace officer powers, such as the California Highway Patrol, sheriff’s departments, police departments, and certain school district and college police departments, to submit information on all hate crimes occurring in their jurisdictions on a monthly basis. DOJ then transmits these data to the FBI and creates an annual report for The four law enforcement agencies the Legislature and the public. However, as Table 7 shows, we we reviewed failed to report to DOJ found that the four law enforcement agencies we reviewed failed to a total of 97 hate crimes, or roughly report to DOJ a total of 97 hate crimes, or roughly 14 percent of all 14 percent of all hate crimes the hate crimes the agencies identified. LA Police committed the vast agencies identified. majority of the number of errors. In addition to not reporting hate crimes, the four law enforcement agencies also reported incorrect information to DOJ. Specifically, when we reviewed 65 hate crimes that they reported to DOJ, we found that 13 contained errors, amounting to a 20 percent error rate. These errors often involved the type of bias or the type of hate crime committed. For example, four of the 17 hate crimes we reviewed at Stanislaus County Sheriff and five of the eight we reviewed at Orange County Sheriff had errors. LA Police and 6 A peace officer is a person such as a sheriff, police, or marshal that has certain powers proscribed in state law, including the power to detain or arrest a suspect, conduct searches for weapons, and execute warrants. California State Auditor Report 2017-131 27 May 2018 SFSU Police stated that the errors we identified were the result of either improper training or a lack of guidance and oversight. For instance, SFSU Police did not adequately document proper hate crime reporting protocol in its policies and procedures manual. The quantity of the reporting errors at the four agencies we reviewed illustrates the extent to which underreporting and misreporting could exist at other agencies throughout the State. Table 7 Hate Crimes Not Reported to DOJ by the Four Law Enforcement Agencies We Reviewed NUMBER OF PERCENTAGE HATE CRIMES OF TOTAL HATE NOT REPORTED CRIMES NOT LAW ENFORCEMENT AGENCY YEARS REVIEWED TO DOJ REPORTED TO DOJ LA Police From 2014 through 2016 89 of 622 14% SFSU Police From 2007 through 2016* 6 of 17 35 Stanislaus County Sheriff From 2007 through 2016* 1 of 18 6 Orange County Sheriff From 2014 through 2016 1 of 23 4 Totals 97 of 680 14% Source: California State Auditor’s analysis of information submitted to DOJ by LA Police, SFSU Police, Stanislaus County Sheriff, and Orange County Sheriff. * We expanded the period of review because of the relatively few hate crime cases at SFSU Police and Stanislaus County Sheriff. In our review of DOJ’s other hate crime data, we also found that many law enforcement agencies affiliated with educational institutions have not reported hate crimes to DOJ. Like police and sheriff’s departments, certain colleges and school districts have police departments that must report hate crimes that occur in their jurisdictions to DOJ on a monthly basis. We reviewed federally required annual crime reports from 56 postsecondary institutions’ law enforcement agencies, such as the Stanford University Police, and identified a total of 36 hate crimes from 2014 through 2016 that the agencies included in their annual crime reports but did not appear to have reported to DOJ. 7 In fact, of the 56 institutions’ law enforcement agencies we reviewed, 16 appeared to underreport hate crimes to DOJ, while five of these did not report any hate crimes to DOJ at all. When we expanded our review to include police departments at elementary and high school districts, we 7 The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act requires postsecondary institutions that participate in certain federal financial aid programs to publish annual security reports that disclose specific statistics on certain crimes—including hate crimes—that are committed on or near campus facilities. 28 California State Auditor Report 2017-131 May 2018 identified six additional agencies that neither reported hate crimes to DOJ nor confirmed to DOJ that no hate crimes occurred from 2014 through 2016. Finally, we asked respondents to our survey to report the number of hate crimes that occurred within their jurisdictions from 2012 through 2016. The total number of hate crimes the respondents reported in our survey was about 5 percent higher than the number of hate crimes they reported to DOJ, with more than two‑thirds of the respondents reporting a different number of hate crimes to us than they reported to DOJ.8 These discrepancies call into question how well law enforcement agencies are tracking and reporting hate crimes in their jurisdictions. Based on the collective evidence we reviewed, we believe the DOJ hate crime database understates the number of reported hate crimes in California, limiting the value of the information it provides to the FBI and the public. Correct reporting to DOJ is essential to raising awareness about the occurrence of bias‑motivated offenses nationwide and to understanding the nature and magnitude of hate crimes in the State. DOJ’s Lack of Guidance and Oversight Has Contributed to Inaccuracies in Hate Crime Reporting Although DOJ requires law enforcement agencies to submit hate crime information on a monthly basis, it has made no recent effort to ensure that all law enforcement agencies comply with this requirement. In our view, the first step to ensuring complete reporting of hate crimes in California is to know which agencies must report and to regularly follow up with those agencies that do not do so. However, when we asked DOJ to provide us with a list of agencies that are required to report, we found that it did not maintain a complete or accurate listing of all law enforcement agencies in the State. Specifically, we noted that a number of law enforcement agencies were not present on the list and that much of the contact information in the list was incorrect. For example, we DOJ does not maintain an accurate found that over 40 percent of the law enforcement agency addresses list of law enforcement agencies were either missing or incorrect. When we questioned DOJ about that are required to submit monthly these issues, it asserted that its outreach efforts were strong in hate crime information—over the early 1980s and that it reached what it determined to be close 40 percent of the agency addresses to 100 percent reporting compliance from local law enforcement were either missing or incorrect. agencies at that time. Following that period, DOJ relied on newly established agencies to self‑identify. The numerous reporting issues 8 The appendix includes law enforcement agencies’ responses to selected questions from our survey. California State Auditor Report 2017-131 29 May 2018 we identified and described earlier demonstrate that DOJ’s decision to rely on agencies to self‑identify has not been effective and has led to the underreporting of hate crimes. Furthermore, DOJ has not widely distributed guidance on hate crime reporting to law enforcement agencies. State law requires DOJ to prepare and distribute to law enforcement agencies the means of reporting data, to instruct them in the reporting of data, and to recommend the form and content of records in order to ensure the correct reporting of data. Although the program Although DOJ stated it has provided manager for the criminal justice statistics center stated DOJ has guidance on hate crime reporting provided this guidance by distributing instructions on how to to law enforcement agencies, complete report forms and other support, 81 percent of surveyed 81 percent of the agencies surveyed law enforcement agencies indicated that they had not received indicated they had not received hate crime related guidance from DOJ. We question whether DOJ hate crime training materials could effectively distribute hate crime related materials given its from DOJ. incomplete list of law enforcement agencies that are required to report to DOJ. As we discuss later in this report, DOJ has conducted only a limited amount of outreach to law enforcement agencies related to hate crime reporting. When we discussed these issues with DOJ, the program manager for the criminal justice statistics center stated that as part of its transition to the National Incident‑Based Reporting System (NIBRS), DOJ plans to update its list of reporting agencies to ensure that all required agencies report hate crime information. The FBI is requiring that all states switch to NIBRS by 2021 to ensure uniformity in reporting and allow for more in‑depth data collection. DOJ is still in the strategic planning process for this transition but anticipates developing a mechanism to ensure that all required law enforcement agencies report crime data as part of its transition. Until DOJ begins requiring and verifying data submissions from all applicable law enforcement agencies and conducts audits to ensure the accuracy of the information it collects, many of the reporting issues we identified will likely remain unmitigated. At least one other state has already established oversight processes designed to remedy reporting issues like the ones we identified. Specifically, Michigan created the Michigan Incident Crime Reporting (MICR) unit to improve the accuracy of hate crimes reported by law enforcement agencies. The MICR unit receives all hate crime reports from law enforcement agencies and conducts monthly reviews by contacting the submitting agencies to confirm the validity of all the reported hate crimes. The MICR unit also conducts regular desk reviews of the data that law enforcement agencies submit to it. Michigan reported 399 hate crimes in 2016 and had more reported hate crimes per capita than California, with 30 California State Auditor Report 2017-131 May 2018 4.05 hate crimes per 100,000 people compared to California’s rate of 2.37 per 100,000 people. DOJ currently has no such program, and no requirement for it to develop such a program exists. However, DOJ indicates that it will begin auditing law enforcement agencies as part of its NIBRS transition. Law Enforcement Agencies and DOJ Could Do More to Respond to Hate Crimes and Encourage Individuals to Report Those That Do Occur Research suggests that hate crimes are dramatically underreported to law enforcement agencies, and these agencies have indicated that community outreach is an important way to ensure that victims and witnesses report hate crimes. Nonetheless, some California law enforcement agencies have not conducted sufficient outreach to vulnerable communities to encourage witnesses and victims to report hate crimes. Further, DOJ could do more to ensure that law enforcement agencies have the tools they need to reach out to communities and identify regional hate crime trends. Law Enforcement Agencies Should Conduct More Hate Crime Outreach in Vulnerable Communities Law enforcement agencies and Law enforcement agencies and community groups we interviewed community groups we interviewed noted that vulnerable communities likely underreport hate crimes noted that vulnerable communities and that outreach could encourage additional reporting. The likely underreport hate crimes and U.S. Bureau of Justice Statistics estimates that about 54 percent of that outreach could encourage hate crimes were not reported to law enforcement agencies from additional reporting. 2011 through 2015. Although state law requires law enforcement agencies to make a hate crime brochure available to victims and members of the public, it does not require outreach specific to hate crimes. According to DOJ, victims may not report hate crimes due to feelings of shame about being victimized, language barriers, cultural barriers in dealing with the police, fear of having their privacy compromised, fear of retaliation, or—if the victims are undocumented immigrants—fear of deportation. POST recommends that law enforcement agencies hold public meetings about hate crimes and orientations with specific targeted communities, such as Muslims and immigrants. According to a POST bureau chief, this type of outreach can encourage members of vulnerable communities to come forward to law enforcement agencies. However, two of the four law enforcement agencies we reviewed could not provide documentation of community outreach efforts that specifically addressed hate crimes. Although all four law enforcement agencies we reviewed engaged with the public by California State Auditor Report 2017-131 31 May 2018 discussing general public safety issues, only the Orange County Sheriff and LA Police engaged in community outreach activities that related specifically to hate crime issues. The other agencies noted that agency staff may have addressed hate crimes at various outreach events but that hate crimes were not the primary focus of any particular community forum or outreach effort. Moreover, over 30 percent of the law enforcement agencies that responded to our survey stated that they had not used any method to inform the public about hate crimes. The community relations manager at the Orange County Sheriff noted that hate crimes are likely underreported in its jurisdiction and that fostering better relationships and communication between law enforcement officers and members of minority communities could alleviate underreporting of hate crimes. Similarly, the public information officer at the Stanislaus County Sheriff noted that it is possible that community members underreport hate crimes to the Stanislaus County Sheriff and that the department could potentially alleviate community underreporting of hate crimes by providing increased community outreach specifically focused on hate crimes. However, the Stanislaus County Sheriff captain stated that it does not provide specific hate crime outreach because it strives for more general outreach efforts meant to establish trust with the community. An SFSU Police lieutenant noted that when the department gives presentations to groups on campus that may be affected by hate crimes, the officers discuss the subject at length but also try to educate students on subjects including personal safety, property security, campus resources, and campus policies. Hate crimes are likely to continue to be underreported until law enforcement agencies effectively engage with vulnerable communities. Furthermore, several advocacy groups and agencies we interviewed Several advocacy groups and indicated that immigrant communities may underreport hate agencies indicated that immigrant crimes due to a fear of deportation. State law prohibits law communities may underreport hate enforcement agencies from detaining hate crime victims and crimes due to a fear of deportation. witnesses or from reporting or turning such individuals over to federal immigration authorities based exclusively on actual or suspected immigration violations, as long as such individuals are not charged with or convicted of certain crimes under state law. A POST bureau chief indicated that it is important for law enforcement agencies to conduct outreach to immigrant communities to communicate this law, noting that doing so is key to the successful prosecution of hate crimes. Outreach command staff at the Orange County Sheriff and LA Police and executive leadership at the Orange County Human Relations Commission and Orange County Communities Organized for Responsible Development have attributed underreporting of hate crimes in immigrant communities to a fear of being reported to federal 32 California State Auditor Report 2017-131 May 2018 immigration authorities. Furthermore, a 2013 study found that in Los Angeles County, 44 percent of Latinos surveyed noted that they are less likely to report crimes to law enforcement officers because they are afraid the police will ask them or the people they know about their immigration status. Although all four law enforcement agencies we reviewed had policies that prohibited inquiring about the immigration status of victims or witnesses, only SFSU Police and Orange County Sheriff conducted any targeted outreach to inform immigrant communities about their policies. For instance, although LA Police officers address immigration or deportation concerns if individuals ask about them at community forums, LA Police do not reach out to minority communities specifically to discuss this policy. Command staff from LA Police’s Community Relationship Division stated that they do not conduct this type of outreach because interest in these forums has recently declined. However, law enforcement agencies could do more to ensure that immigrants feel safe coming forward to report hate crimes by conducting outreach in their communities. The US DOJ notes that county One of the ways law enforcement agencies can conduct hate crime human rights or human relations outreach is by partnering with community groups. The US DOJ commissions can facilitate and notes that county human rights or human relations commissions coordinate discussions, training, can facilitate and coordinate discussions, training, and events and events on hate crime issues. on hate crime issues. For example, the Orange County Sheriff maintains a partnership with the Orange County Human Relations Commission, which provides hate crime training to Orange County Sheriff recruits, offers services to hate crime victims, and conducts hate crime outreach to affected communities. Partnering with community organizations in this manner can be an effective way for law enforcement agencies to conduct hate crime outreach. DOJ Should Provide More Guidance to Assist Law Enforcement Agencies With the Identification and Investigation of Hate Crimes, as Well as With Outreach to Vulnerable Communities Because of its statutory responsibilities to collect, analyze, and report data on hate crimes, DOJ is uniquely positioned to provide leadership for law enforcement agencies’ response to the growing number of hate crimes in California. Our survey of law enforcement agencies found that they appear to be receptive to receiving additional training, outreach materials, and other types of assistance from DOJ. However, to use its resources to provide law enforcement agencies with additional guidance, DOJ may need a clear statutory mandate and will need to make revisions to the way it currently collects hate crime data. California State Auditor Report 2017-131 33 May 2018 With regard to hate crimes, state law currently requires DOJ to do the following: • Instruct law enforcement agencies on hate crime reporting. • Collect, analyze, and interpret hate crime data provided by law enforcement agencies. • Transmit data to the FBI and other federal agencies involved in the collection of national crime statistics. • Publish an annual report on hate crimes. • Periodically evaluate hate crime reporting and make recommendations as it deems necessary. Although DOJ can make improvements in how it meets these responsibilities, as we describe in previous report sections, it has at least developed a framework for carrying out its duties. However, missing from these responsibilities is a requirement that DOJ provide guidance to other law enforcement agencies on how to prevent, identify, and appropriately respond to hate crimes. According to the supervising deputy attorney general in the civil rights enforcement section, DOJ has participated in about 20 outreach events related to hate crimes over the last 10 years, a portion of which dealt specifically with identifying and reporting hate crimes. However, given the complex nature of hate crime enforcement and identification, which we discuss previously, additional training from DOJ focused more extensively on how law enforcement agencies can better prevent, identify, and respond to hate crimes appears to be warranted. In fact, staff from all four of the agencies we reviewed indicated that additional support from DOJ would be valuable. Further, 83 percent of our survey respondents stated that they would benefit from receiving additional DOJ hate crime training materials, and nearly every law enforcement agency surveyed noted that it would be beneficial for DOJ to send them public outreach materials related to hate crime categories occurring in their jurisdictions. A DOJ supervising deputy attorney general stated that while DOJ will continue to provide existing trainings to law enforcement, it will also work to determine the feasibility of offering more trainings, and whether funding is available. DOJ could also use its hate crime data to provide targeted outreach and assistance to individual law enforcement agencies that may be experiencing an increase in hate crimes. To do so, DOJ would have DOJ’s hate crime reporting process to modify how it currently collects hate crime data. Specifically, does not capture the geographic DOJ’s hate crime reporting process does not capture the geographic location where each hate location where each hate crime occurred, only the law enforcement crime occurred. 34 California State Auditor Report 2017-131 May 2018 agency that reported the hate crime. As a result, if several hate crimes occurred in the same geographic area but a number of law enforcement agencies handled the crimes, neither DOJ nor the law enforcement agencies involved would be aware of the full extent of the problem in that area. By collecting and analyzing hate crimes by location, DOJ could provide data and outreach materials that would help facilitate coordinated responses by the respective agencies. About 90 percent of our survey respondents stated that they would benefit from receiving notices about hate crimes occurring in the geographical areas covered by their sometimes‑overlapping jurisdictions. Further, the limitations of DOJ’s current hate crime data do not allow it to map the frequency and type of hate crimes occurring within a particular law enforcement agency’s jurisdiction. For example, using DOJ’s current data, hate crimes that occur within LA Police’s jurisdiction can be mapped only to the address of its central headquarters. However, LA Police’s database contains more precise data pertaining to the location of hate crimes. We compare the map of hate crimes using DOJ’s limited data to the map using LA Police’s more comprehensive data as shown in Figure 7. Because the map using LA Police’s data shows in better detail how hate crimes affect individual communities within LA Police’s jurisdiction, we believe DOJ should expand this type of mapping statewide. When we asked DOJ about this issue, the program manager for the criminal justice statistics center indicated that as Until DOJ’s hate crime database part of DOJ’s NIBRS implementation, DOJ plans to require law includes specific geographic enforcement agencies to include location information, such as zip information, law enforcement codes, with every hate crime they report. However, DOJ has not agencies, the public, DOJ, and yet finalized its plans for implementing NIBRS, as we previously the Legislature will not be able to discussed. Until DOJ’s hate crime database includes specific access the data necessary to best geographic information, law enforcement agencies, the public, DOJ, prioritize the State’s response to and the Legislature will not be able to access the data necessary to hate crimes. best prioritize the State’s response to hate crimes. DOJ could also better publicize the assistance it can offer to local authorities when they are investigating and prosecuting certain hate crimes. Since 1999 DOJ has had a Hate Crime Rapid Response Team (response team) that consists of DOJ staff, including the chief deputy attorney general and the director of the bureau of investigation, among others. Once activated by a request for assistance from a local or federal law enforcement agency dealing with certain hate crimes, the response team can help with the identification, arrest, prosecution, and conviction of the perpetrators of hate crimes. In particular, it can assist law enforcement agencies that are combating a series of hate crimes or are not used to investigating this type of case. The team is meant to quickly respond to requests for assistance and then return to their normal duties. However, DOJ has not done enough to inform law enforcement agencies that the response team is available California State Auditor Report 2017-131 35 May 2018 to assist them. Due to a lack of sufficient information about the response team and the circumstances that would trigger it to assist with an investigation, such as a hate crime involving arson or the use of explosives, nearly half of the surveyed law enforcement respondents were unaware of the response team’s existence and capabilities. In fact, according to the director of DOJ’s bureau of investigation, it has never deployed the team. Figure 7 DOJ Data Lacks Location Detail of Reported Hate Crimes 2014 Through 2016 LA Police Data by Assembly District DOJ Data by Assembly District Santa Clarita Santa Clarita 126 126 126 126 23 118 Simi Valley 5 23 11 S 8 imi Valley 5 Thousand Oaks Burbank 210 Thousand Oaks Burbank 210 101 101 Universal City Pasadena 101 101 Universal City Pasadena 5 5 101 101 710 710 1 LOS ANGELES 60 1 LOS ANGELES 60 Inglewood 5 Inglewood 5 Norwalk Norwalk 101 101 405 reconsider 9 a 1 tion, 405 91 Number of Number of Hate Crimes Reported by LA Police Torrance Hate Crimes Reported by LA Police Torrance 22 22 0 110 0 570 Long Beach Long Beach 91 Source: California State Auditor’s analysis of the U.S. Census Bureau’s map and survey data, map data from openstreetmap.org, DOJ’s hate crime database, and LA Police’s hate crimes data. Note: Due to limitations in the location data DOJ collects, we were unable to determine the precise locations where crimes occurred. Consequently, we plotted crimes to the Assembly district based on the address of the law enforcement agency that reported the crime to DOJ—LA Police, in this case. For the LA Police data, we plotted crimes to Assembly districts based on the LA Police division address. In May 2018, DOJ reaffirmed its commitment to the response team and issued a press release that provided details about the response team. DOJ does not anticipate needing additional funds since it includes only existing staff. However, DOJ stated that it would require additional funds to provide more assistance to local law enforcement agencies if demand for the team increases. By raising 36 California State Auditor Report 2017-131 May 2018 awareness about the existence of the response team and its capabilities, DOJ could provide law enforcement with resources to more effectively respond to hate crimes. Finally, DOJ could enact programs that would improve California’s ability to prevent the occurrence of hate crimes. The US DOJ highlighted one such program, Maine’s Civil Rights Team Project (Civil Rights Project), which addresses hate crime prevention through a school‑based program aimed at educating communities about the negative consequences of bias, prejudice, harassment, and violence. Administered through the Office of the Maine Attorney General, the Civil Rights Project helps to prevent hate crimes by engaging young people and communities in identifying and addressing issues of bias before those issues escalate to hate crimes. Students of all age levels at more than 150 of Maine’s 600 public and private schools have participated in the Civil Rights Project. It engages with targeted populations to show concern for their safety, creates a structure for student response to public incidents of bias in the schools or communities, and improves communication and relationships between communities and law enforcement agencies. Although DOJ has no such programs, its head of law enforcement stated that such a program might be a good idea and DOJ could have a role in providing guidelines for the curriculum. US DOJ provided funding for the pilot schools participating in Maine’s program. However, according to Maine’s Civil Rights Project director, programs like the Civil Rights Project do not require major funding, other than the costs for temporary substitutes for participating teachers and busing for participants, if there are dedicated members of the school and community who are willing to take part. Such a program could reduce the occurrence of bias‑motivated incidents and hate crimes by teaching young people and their communities that actions directed at individuals or groups because of bias against protected characteristics has detrimental impacts. Recommendations Legislature To address the increase in hate crimes reported in California, the Legislature should require DOJ to do the following: • Add region‑specific data fields to the hate crime database, including items such as the zip code in which the reported hate crimes took place as well as other fields that DOJ determines will support its outreach efforts. California State Auditor Report 2017-131 37 May 2018 • Analyze reported hate crimes in various regions in the State and send advisory notices to law enforcement agencies when it detects hate crimes happening across multiple jurisdictions. • Create and disseminate outreach materials so law enforcement agencies can better engage with their communities. • Create and make available training materials for law enforcement agencies on how best to identify and respond to hate crimes. • Implement a school‑based program, in conjunction with representation from local law enforcement agencies, aimed at educating communities to identify and confront issues of bias, prejudice, and harassment. To ensure that hate crime training for law enforcement is effective, the Legislature should require POST to evaluate its hate crime training. DOJ To ensure that it receives complete and accurate data, DOJ should, by May 2019, develop and maintain a list of law enforcement agencies that it updates annually, obtain hate crime data from all law enforcement agencies, distribute additional guidance to those agencies on procedures for reporting hate crimes, and conduct periodic reviews of law enforcement agencies to ensure that the data they report are accurate. It should also seek the resources to implement these efforts, if necessary. To ensure that all state law enforcement agencies are aware of the support available to help them investigate hate crimes, DOJ should engage in outreach efforts to increase awareness of its response team. To increase the effectiveness of hate crime prevention and response efforts, DOJ should provide additional guidance to law enforcement agencies by doing the following: • Add region‑specific data fields to the hate crime database, including items such as the zip code in which reported hate crimes took place and other fields that DOJ determines will support its outreach efforts. • Analyze reported hate crimes in various regions in the State and send advisory notices when it detects hate crimes happening across multiple jurisdictions. It should also seek the resources to implement these efforts, if necessary. 38 California State Auditor Report 2017-131 May 2018 • Create and disseminate outreach materials so law enforcement agencies can better engage with their communities. • Create and make available training materials for law enforcement agencies on how best to identify and respond to hate crimes. To ensure that law enforcement agencies effectively engage with communities regarding hate crimes, DOJ should provide guidance and best practices for law enforcement agencies to follow when conducting hate crime outreach to vulnerable communities within their jurisdictions, such as collaborating with a county human rights commission. It should make the outreach materials available to law enforcement agencies and should include in them presentation materials for various types of communities, including immigrants and Muslims, among others. It should seek the resources to implement these efforts, if necessary. Law Enforcement Agencies To ensure that they accurately identify and report hate crimes, SFSU Police and LA Police should update their hate crime policies and procedures, and the Orange County Sheriff and Stanislaus County Sheriff should implement supplemental hate crime reports and require officers to use them. To ensure accurate and complete reporting, LA Police and SFSU Police should provide sufficient guidance and oversight to their officers and staff so that they report all hate crimes to DOJ. POST To help ensure that officers can identify and document that hate crimes have occurred, POST should send training materials to all POST‑certified law enforcement agencies in the State for these agencies to use in refresher training for their officers. To ensure its hate crime training effectively communicates information essential to properly identifying and addressing hate crimes, POST should evaluate its hate crime courses periodically. It should also seek resources to implement these efforts, if necessary. California State Auditor Report 2017-131 39 May 2018 We conducted this audit under the authority vested in the California State Auditor by Section 8543 et seq. of the California Government Code and according to generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives specified in the Scope and Methodology section of the report. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives. Respectfully submitted, ELAINE M. HOWLE, CPA State Auditor Date: May 31, 2018 Staff: Kathleen Klein Fullerton, MPA, Audit Principal Aaron E. Fellner, MPP Katrina Beedy, MPPA Chris Bellows Jarvis Curry, JD, MBA Nick B. Phelps, JD IT Audits: Ryan P. Coe, MBA, CISA Legal Counsel: Heather Kendrick, Sr. Staff Counsel For questions regarding the contents of this report, please contact Margarita Fernández, Chief of Public Affairs, at 916.445.0255. 40 California State Auditor Report 2017-131 May 2018 Blank page inserted for reproduction purposes only. California State Auditor Report 2017-131 41 May 2018 Appendix We surveyed 245 law enforcement entities and received 174 verified responses. In Table A, we present aggregated responses to selected questions. The complete survey results are posted on our website, as well as hate crime policies and procedures if provided by the law enforcement agencies. Nearly all responding agencies indicated that they have hate crime policies and that they track hate crime data in their jurisdictions. Most law enforcement entities responded that they had never requested or received DOJ assistance in investigating hate crimes or conducting outreach. However, nearly all agencies we surveyed expressed interest in working with DOJ to obtain outreach materials and notices for dealing with hate crimes. Table A Law Enforcement Agencies’ Responses to Selected Questions From Our Survey QUESTIONS ABOUT SURVEYED AGENCIES RESPONSES Questions About Law Enforcement Agency Does your agency have a hate crime policy? 95.4% Yes 4.6 No Does your agency collect hate crime data and track hate crimes in your jurisdiction? 100.0% Yes 0.0 No Has your agency ever performed any data analysis on hate crimes within its jurisdiction to 34.5% Yes identify trends or conduct outreach? 65.5 No If your agency has not performed data analysis on hate crimes, why not? 90.3% This agency has not had enough hate crimes to perform data analysis 8.8 This agency has never had a reported hate crime within its jurisdiction 0.9 Other Has your agency offered hate crime training to your sworn officers at any time from 51.1% Yes 2014 through 2016? 48.9 No What methods does your agency use to inform members of the public of their rights as they 3.4% Posters relate to hate crimes and of other general information on hate crimes? (Multiple choice) 11.5 Supplied to community partners such as schools, places of worship, local community groups, or advocates for dissemination 12.6 Other 26.4 Online 28.7 Information on agency website 31.6 No method used 39.1 Supplied to sworn officers to give to reporting parties 48.3 Supplied at police/public safety stations 52.9 Pamphlets continued on next page . . . 42 California State Auditor Report 2017-131 May 2018 QUESTIONS ABOUT SURVEYED AGENCIES RESPONSES Questions About DOJ Has your agency ever reached out to the DOJ for support in identifying or investigating a 8.0% Yes hate crime? 92.0 No Has DOJ ever provided assistance to your agency during the investigation of a hate crime or 5.2% Yes hate incident? 94.8 No Is your agency aware of DOJ's Hate Crime Rapid Response Team? 52.9% Yes 47.1 No Has your agency ever solicited assistance from the Hate Crime Rapid Response Team? 0.0% Yes 100.0 No* Does your agency receive hate crime training materials from DOJ? 19.0% Yes 81.0 No Do you believe that your agency would benefit from receiving additional DOJ hate crime 83.3% Yes training materials? 16.7 No Does your agency receive hate crime related outreach materials from DOJ? 8.6% Yes 91.4 No Would your agency find it beneficial for DOJ to send notices to your agency about 90.2% Yes hate crimes? 9.8 No Would your agency find it beneficial for DOJ to send public outreach materials to your 98.1% Yes agency related to categories of hate crimes occurring in your region? 1.9 No Source: California State Auditor’s survey of law enforcement agencies. * If an agency answered No to the previous question, they were not asked this question. California State Auditor Report 2017-131 43 May 2018 44 California State Auditor Report 2017-131 May 2018 California State Auditor Report 2017-131 45 May 2018 46 California State Auditor Report 2017-131 May 2018 California State Auditor Report 2017-131 47 May 2018 48 California State Auditor Report 2017-131 May 2018 California State Auditor Report 2017-131 49 May 2018 COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING May 7, 2018 Elaine M. Howle * POST State Auditor 621 Capitol Mall, Suite 1200 Sacramento, CA 95814 EDMUND G. BROWN JR. GOVERNOR RE: AUDIT RESPONSE TO 2017-131 XAVIER BECERRA Dear Ms. Howle: ATTORNEY GENERAL In response to your audit titled "Hate Crimes in California: Law Enforcement Has Not Adequately Identified, Reported, or Responded to Hate Crimes" (2017-131 ), page 15, referring to POST' s request for funding (middle page), the narrative could use some clarification. The narrative should more accurately read: Historically, POST utilized a Quality Assurance Program (QAP) to insure training courses 1 were contemporary, of a quality nature, and consistent with certified course outlines. POST reduced expenditures for the QAP program to $65,000 in Fiscal Year 2016/17, and due to increased budget challenges, eliminated the QAP program altogether in Fiscal Year 2017/ 18. The POST QAP program was used to audit training such as hate crimes instruction, but no longer exists. The POST bureau chief has stated that a limited program could cost $65,000, while a more robust program would cost $135,000 per year. Until 2 POST obtains the necessary funds to evaluate the effectiveness of its hate crimes training, there is no mechanism to ensure that the curriculum most effectively communicates important issues regarding hate crimes, including procedures to ensure that peace officers are properly identifying them when called to the scene of a crime. Thank you in advance for your consideration. Respectfully, �%� Executive Director 860 Stillwater Road, Suite 100 . West. Sacramento, CA 95605-1630 . 916 227-3909 . Fax 916 227-3895 . www.post.ca.gov * California State Auditor’s comments appear on page 51. 50 California State Auditor Report 2017-131 May 2018 Blank page inserted for reproduction purposes only. California State Auditor Report 2017-131 51 May 2018 Comments CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING To provide clarity and perspective, we are commenting on the response to our audit report from POST. The numbers below correspond to the numbers we placed in the margin of POST’s response. In the past, POST has assessed some of its training courses. 1 However, it does not conduct periodic evaluations of its hate crime training program, as we note on page 20. A POST bureau chief stated that a more robust training 2 assessment program would cost $130,000 per year, as we note on page 21. The bureau chief based the cost on a contract for a vendor to assess the training of another POST course. If POST now believes that a more robust training assessment program would cost $135,000 per year, it should ensure that it conducts an appropriate level of analysis before requesting those funds. 52 California State Auditor Report 2017-131 May 2018 Blank page inserted for reproduction purposes only. California State Auditor Report 2017-131 53 May 2018 LOS ANGELES POLICE DEPARTMENT P. O. Box 30158 CHARUE BECK Los Angeles, Calif. 90030 Chief of Police Telephone: (213) 486-6850 TDD: (877) 275-5273 Ref#: 8.6 ERIC GARCETTI Mayor May 7, 2018 Elaine M. Howle * State Auditor 621 Capitol Mall, Suite 1200 Sacramento, California 95814 Dear Ms. Howle, I appreciate the opportunity to respond to the audit conducted by the California State Auditor titled "Hate Crimes in California: Law Enforcement Has Not Adequately Identified, Reported, or Responded to Hate Crimes." I have reviewed the audit and identified two areas that cited deficiencies in the Los Angeles Police Department that were not accurately addressed in the audit. The identified areas are: 1 • Classification of Hate Crimes. • The recommendation that the Los Angeles Police Department update its Policies and Procedures regarding the reporting of Hate Crimes. Regarding each of the categories, I have included a response that details our position as to why the information in the audit was either incorrectly reported, or misrepresented the Los Angeles 2 Police Department's position on that topic. I am requesting that the information be reviewed for consideration and the audit be amended to reflect the findings of that review. I appreciate your attention to this matter and would request that you direct any questions you might have regarding this matter to Captain William Hayes, Commanding Officer, Robbery­ Homicide Division, at (213) 486-6850. Very truly yours, �A CHARLIE BECK Chief of Police AN EQUAL EHPLOYHENT OPPORTUNITY EMPLOYER www.LAPDonline.org www.joinLAPD.com * California State Auditor’s comments begin on page 61. 54 California State Auditor Report 2017-131 May 2018 Page 1of 6 HATE CRIME UNIT – DOJ Audit Response Background The California State Auditor’s Office (CSAO)conducted a “Hate Crimes in California” audit for the Department of Justice (DOJ). This audit covered reported hate crimes and hate incidents over a three-year period from 2014 to 2016. The audit included the Los Angeles Police Department (LAPD) and other agencies. On May 1, 2018, the CSAO provided the LAPD with a draft copy of their audit. Two areas of concern were identified. First, there were three LAPD reports that were coded as “Hate Incidents” that the CSAObelieved should have been coded as “Hate Crimes.” Second, the CSAO recommendedthat the LAPD update their hate crime policies and procedures. Response The Los Angeles Police Department has provided the CSAO with copies of the threehate incident reports in question. Follow up reports and applicable California Penal Code sections were also included which justifythe classifications of the reports as Hate Incidents as opposed to Hate Crimes. The following is a summary of the three LAPD reports (DR numbers): 3 NOTE: The LADA CCM lists the elements for the crime of PC 240, Assault, as 4 “unlawfully, having the present ability to do so, attempt to commit a violent injury on the person of another.” In this instance, the acts of the suspects did not meet the elements of the crime of assault. There was no attempt to commit any injury on the victim. The LADA CCM lists the elements for the crime of PC 422, Criminal Threats, as “willfully and unlawfully threaten to commit a crime which would result in death and great bodily injury to another, with the specific intent that the statement be taken as a 5 threat. It is further alleged that the threatened crime, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to another a gravity of purpose and an immediate prospect of execution.” In this instance, the acts of the suspects did not meet the elements to the crime of Criminal Threats. There was no threat of bodily injury to another. California State Auditor Report 2017-131 55 May 2018 Page 2of 6 3 NOTE: The LADA CCM lists the elements of the crime of PC 653m(a), Annoying Telephone Calls, as “unlawfully and with intent to annoy make contact by means of an electronic communication device and address obscene language to another, and address 4 threats to inflict injury to the person of and the property of another and the members of his/her family.” In this instance, the acts of the suspect did not meet the elements to the crime of Annoying Telephone Calls. There were no threats to inflict injury on the person and property of another. The LADA CCM lists the elements of the crime of PC 653m(b), Annoying Telephone Calls, as “unlawfully and with the intent to annoy and harass, make repeated telephone calls and repeated telephone calls and repeated, and make any combination of calls and 6 contact to another person, by means of electronic device.” In these instances, the acts of the suspects did not meet the elements to the crime of Annoying Telephone Calls. There were no repeated communications intended to annoy or harass another person. 3 The LADA CCM lists the elements for the crime of PC 422, Criminal Threats, as “willfully and unlawfully threaten to commit a crime which would result in death and great bodily injury to another, with the specific intent that the statement be taken as a 5 threat. It is further alleged that the threatened crime, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to another a gravity of purpose and an immediate prospect of execution.” In this instance, the acts of the suspects did not meet the elements to the 56 California State Auditor Report 2017-131 May 2018 Page 3of 6 crime of Criminal Threats. There was no immediacy of the threat, the threat was not unequivocal and was a vague inference of visiting the victim which was retracted later in the conversation. The suspect made the statements at 1050 hours and the victim contacted the police five hours later to complete a report. This would suggest the victim did not feel any immediacy to the threat. The LADA CCM lists the elements forthe crime of PC 653m(a), Annoying Telephone Calls, as “unlawfully and with intent to annoy make contact by means of an electronic 4 communication device and address obscene language to another, and address threats to inflict injury to the person of and the property of another and the members of his/her family.” In this instances, the act of the suspects did not meet the elements to the crime of Annoying Telephone Calls.The suspect did not make a threat to inflict injury on the person or the property of the victim. The LADA CCM listed the elements of the crime of PC 653m(b), Annoying Telephone Calls, as “unlawfully and with the intent to annoy and harass, make repeated telephone 6 calls and repeated telephone calls and repeated, and make any combination of calls and contact to another person, by means of electronic device.” In these instances, the acts of the suspects did not meet the elements to the crime of Annoying Telephone Calls. The suspect and victim were involved in a specific telephone text message dispute and then the suspect stopped contacting the victim. The above-sourcedCalifornia PC sections and LADA CCM verify the correct coding of the threehate incident reports. The elements of the crimes in the above-mentioned reports do not meet legal standard for “Hate Crimes.” In addition,the LAPD consulted with LADA Hate Crimes Unit,Deputy District Attorney (DDA) Richard Cebalos and reviewed each of the above cases cited. DDA Cebalos stated that the cases did not have the elements of a crime in each of the incidents and therefore would not meet the standard of being classified as a hate crime. It is the opinion of LAPD that the above-mentioned DR numbers are coded correctly as “Hate Incidents.” California State Auditor Report 2017-131 57 May 2018 Page 4of 6 The CSAO audit alsostated89 out of 622 hate crimes were not reported to the DOJ and 7 recommended training to department personnel. In 2016, the LAPD revamped its reporting requirements, updated its manuals,and revised its officer training to reflect these updates and changes. The LAPD also streamlined its hate crime reporting process to assist its officers in completing hate crime and hate incident reporting. The following procedures were put in place to ensure the proper reporting and classification on hate crimes and hate incidents: 1) LAPD Form 18.44.00,Hate Crime/Incident Guidelines, delineates the investigation for all field patrol officers and supervisors. It is included with all patrol notebook dividers, an LAPD resource for field investigations, which officers carry in the field to assist them and is also available online via the Department’s intranet. 58 California State Auditor Report 2017-131 May 2018 Page 5of 6 2) LAPD form 3.01.05, LAPD Hate Crime Supplemental Report, shall be completed with every Hate Crime report to assist the detectives with the investigation. This form is located at every area police station and is available online via theDepartment intranet. 3) LAPD form 15.91.00, LAPD Hate Crimes Resource Pamphlet, is provided to all field officers to present to the Hate Crime/Incident victims and witnesses and is available at all area police stations. California State Auditor Report 2017-131 59 May 2018 Page 6of 6 4) LAPD Hate Crime/Hate Incident Detective Report Review/Criteria Checklist form is completed with every Hate Crime and Hate Incident by the detectives assigned to the investigation. This form ensures that the reports are correctly coded, the victims are 8 protected, and that the report is entered into theDOJ database. This form is located at every area police station and is available online via the Department’s intranet. These updated forms assist officers incompleting thorough investigations, and aid in classifying the crimes/incidents correctly while assistingdetectives in their follow up and investigative efforts. Conclusion Regarding the two areas of concern that arose from the CSAO audit: 1) It is the position 4 5 6 of the LAPD that the three(3)mentioned hate incident reports were coded correctly. LAPD requests that the CSAO reconsider its assessment ofthat issue. 2) In 2016, LAPD identified the 7 8 discrepancies with the non-reporting to the DOJ. Appropriate policies and procedures were adopted to minimize this issue as well as assist officers inidentifying and investigating hate crimes. It is the LAPD’s assertion that the documentation provided is sufficient evidence to support the request that the CSAO recognize the efforts the LAPD has taken to address the matter. 60 California State Auditor Report 2017-131 May 2018 Blank page inserted for reproduction purposes only. California State Auditor Report 2017-131 61 May 2018 Comments CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM THE LOS ANGELES POLICE DEPARTMENT To provide clarity and perspective, we are commenting on the response to our audit report from LA Police. The numbers below correspond to the numbers we placed in the margin of LA Police’s response. We conducted this audit according to generally accepted 1 government auditing standards and the California State Auditor’s thorough quality control process. In following auditing standards, we are required to obtain sufficient and appropriate audit evidence to support our conclusions. Thus, we stand by our conclusions that LA Police misidentified three hate crimes and that LA Police needs to update its hate crime policies. LA Police’s response does not indicate how the audit 2 misrepresents LA Police’s positions. Moreover, as is our standard process, we met with LA Police staff on several occasions and informed them of our findings and recommendations, and obtained their perspective on those issues in writing. At no point did LA Police indicate that we had misrepresented its positions. This portion of LA Police’s response contains case information 3 such as the report number and a description of the reported events. We have redacted this portion of LA Police’s response as it contains confidential information and to protect the privacy of the persons described. In making its assessments, LA Police relies on a crime charging 4 manual (CCM), not the law, to determine whether an event constitutes a hate incident or a hate crime. When we compared the cited sections in the LA Police response to state law for purposes of our work, we found that the cited sections contain at least two errors that caused LA Police to improperly classify hate crimes as hate incidents. For example, we found that the CCM inaccurately describes a Penal Code section 240 crime because the CCM does not accurately reflect applicable case law. We discussed this issue with LA Police and provided the LA Police with the applicable case law, and also discussed other supporting evidence, such as official jury instructions, but LA Police insisted on relying on the erroneous manual. Further, the CCM states that, in order for an annoying phone call to constitute a crime under Penal Code section 653m(a), the perpetrator must have both addressed obscene language and made a threat to the victim. However, Penal Code section 653m(a) plainly states that an annoying phone call constitutes a crime if either 62 California State Auditor Report 2017-131 May 2018 obscene language or a threat is addressed to a victim, assuming other required elements of the crime are also present. Thus, as we recommend on page 38, LA Police needs to update the policies and procedures it uses to determine whether a hate crime or hate incident has occurred. 5 We did not conclude that the referenced hate incident report constitutes a crime under Penal Code section 422. Thus, we did not have a finding in this regard. 6 We did not conclude that the referenced hate incident report constitutes a crime under Penal Code section 653m(b). Thus, we did not have a finding in this regard. 7 As we indicate in Table 7 on page 27, LA Police failed to report 89 hate crimes to DOJ. Some of these errors occurred after LA Police implemented its 2016 policy. Consequently, it is evident that LA Police’s 2016 policy has not ensured that it properly reports hate crimes to DOJ. Furthermore, when we discussed the reporting errors with LA Police, it indicated that the errors we identified were the result of either improper training or a lack of guidance and oversight, which we also note on page 27. To address these issues, we recommend on page 38 that LA Police should update its hate crime policy and provide sufficient guidance and oversight to its officers and staff to ensure they accurately report hate crimes to DOJ. 8 LA Police indicates it has created a checklist for detectives to use when investigating hate crimes as a result of our audit findings. The checklist requires detectives to report hate crimes to DOJ. However, LA Police’s hate crime policy does not require that detectives complete this checklist. Until LA Police updates its policy to require detectives to complete the checklist, it cannot ensure its officers are reporting all hate crimes to DOJ. California State Auditor Report 2017-131 63 May 2018 64 California State Auditor Report 2017-131 May 2018 Blank page inserted for reproduction purposes only. California State Auditor Report 2017-131 65 May 2018 550 N. FLOWER STREET ORANGE COUNTY SANTA ANA, CA 92703 (714) 647-7000 SHERIFF'S DEPARTMENT WWW.OCSD.ORG SHERIFF-CORONER OFFICE OF THE SHERIFF SANDRA HUTCHENS May 7, 2018 Ms. Elaine M. Howle, CPA * California State Auditor Transmitted via email to Aaron Fellner (aaronf@auditor.ca.gov) Re: Draft Report titled "Hate Crimes in California: Law Enforcement Has Not Adequately Identified, Reported, or Responded to Hate Crimes" Dear Ms. Howle, The Orange County Sheriffs Department is in receipt of the above-referenced draft report. We appreciate the opportunity to review and provide a response. As the draft report states, we have already taken steps to address the need for a supplemental hate crime report form. We agree a supplemental hate crime report form is necessary to enable our deputies to more easily identify different elements of a hate crime, such as the type of bias and bias indicators. We have also worked to improve our policies addressing hate crimes and hate incidents. Please find attached our new Department Policy 307, revised Field Operations Manual Section 52, new supplemental report form, and a brochure from the Orange County Human Relations Commission. This brochure is provided by our deputies to victims, as referenced in our Department Policy, Field Operations Manual and supplemental report form. When our electronic Field-Based Reporting system is fully implemented, the data fields in the supplemental hate crime report form will be included, and deputies will enter the data into the system. We recognize the audit's reference to the one case in which the Department failed to identify a hate crime is one case too many. These policies and report forms will help ensure these crimes are not misidentified and the reporting of these crimes is thorough and accurate. We agree with the statement in the draft report that immigrant communities may underreport hate crimes due to fear of deportation. Inaccurate media reports and rhetoric have misinformed the public and perpetuated a dangerous myth. I want to reiterate the public statement I made on February 25, 2017 (see attached media release), that as we carry out our patrol functions, the Sheriffs Department will not ask the immigration status of suspects, witnesses or those who call to report crimes. The Sheriffs Department is committed to providing for the safety of crime victims and will respond without concern for their immigration status. Integrity without compromise • Service above self• Professionalism in the performance of duty • Vigilance in safeguarding our community * Orange County Sheriff provided additional documentation with its response. This documentation is available upon request. 66 California State Auditor Report 2017-131 May 2018