Florida gang law prohibiting requiring recruiting prospects to commit crime OK!

According to Associated Press (AP) coverage of the appellate court in the 1st District, the Florida Law prohibiting gang leaders to require new members to commit a crime to join the gang is fine, just fine.


Well that's a relief!


The court did not like the prohibition against using technology to communicate, however. Apparently the law would have made it unlawful not just to discuss gang business but other things, as well.


The recruitment law passed constitutional muster because it applies only if criminal activity is a condition of membership. It's been my experience that gangs and crime go hand-in-hand, and most who join gangs commit a crime to do so.


District Judge Stephanie Ray wrote that in the recruitment law, the Legislature "attempted to strike a proper balance between protecting fundamental rights and using legitimate government police powers to fight the scourge of gang-related criminal activity."  She noted several other states, including California, Texas, Indiana and Idaho, have passed similar laws, some of which also have been upheld by the courts.  

Section 874.05(1), the “gang recruitment” provision, was enacted to protect the public from speech and conduct used to encourage gang membership, where a condition of membership or continued membership is the commission of any crime. 

Section 874.05(1): The “Gang Recruitment” Statute The “gang recruitment” statute states: 

874.05 Causing, encouraging, soliciting, or recruiting criminal gang membership.--- (1) Except as provided in subsection (2) [which deals with a second or subsequent violation], a person who intentionally causes, encourages, solicits, or recruits another person to become a criminal gang member where a condition of membership or continued membership is the commission of any crime commits a felony of the third degree, punishable as provided in [various statutes]. § 874.05(1), Fla. Stat. (2009). 

. . .  the State has a compelling interest in thwarting solicitation and recruitment into gangs where criminal conduct is a condition of membership or continued membership. See State v. J.P., 907 So. 2d 1101, 1116-17 (Fla. 2004) (finding cities’ juvenile curfew ordinances furthered the State’s compelling interest in protecting juveniles from victimization and reducing juvenile crime); State v. T.B.D., 656 So. 2d 479, 482 (Fla. 1995) (“Florida has a
compelling interest in protecting the right of each of its citizens to live at peace in the sanctity of his or her home, free from violence and the threat of violence.”).

Under the second prong of strict scrutiny, we review section 874.05(1) to ascertain whether it is narrowly tailored to promote the compelling governmental interest . . . under Florida’s broad statutory definitions of “criminal gang” and “criminal gang member,” a person can join or associate with such a group without any actual intent to commit a crime. § 874.03(1), (3). 

This statute criminalizes the speech and conduct of the solicitor/recruiter, rather than the person solicited or recruited.

Although the language of section 874.05(1) is silent regarding whether the solicitor/recruiter must know of the crime-related condition of gang membership, silence alone does not necessarily suggest the legislative body “intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.” Staples v. United States, 511 U.S. 600, 605 (1994) (holding that in order to convict a defendant of illegal possession of an automatic weapon the government had to prove the defendant knew of the automatic character of the weapon); see Morissette v. United States, 342 U.S. 246, 263 (1952); State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004). 

The Legislature has narrowly tailored this law to effect its intended purpose to promote public safety and prevent crime without impermissibly intruding upon the rights of law-abiding persons or, for that matter, the discrete lawful activities of gang members.

The case is Naymontie Nashare Enoch v. State of Florida, 1D10-3443.


What do you think?

Further attempts to give teeth to DoD Instruction 1325.6

Back in January 2010, I wrote DoDs New Rules for Gangs in the Military (not a good idea) 
which identified the first attempt by the DoD to address section 544 of Public Law 110-181, noting: 

. . . there's a very short part about gang affiliations: 

"Military personnel must reject active participation in criminal gangs pursuant to section 544 of Public Law 110-181 

* * * 

Active participation includes, but is not limited to, fundraising; demonstrating or rallying; recruiting, training, organizing, or leading members; distributing material (including posting on-line); or otherwise engaging in activities in furtherance of the objective of such gangs or organizations that are detrimental to good order, discipline, or mission accomplishment or are incompatible with military service."

Well, here's the follow up!

Change 1, February 22, 2012 to DoD Instruction (DoDI) 1325.6 says:


Military personnel must not actively advocate supremacist, extremist, or criminal gang doctrine . . .
* * *
b. Military personnel must reject active participation in criminal gangs pursuant to section 544 of Public Law 110-181 (Reference (i)) 
* * *
Active participation includes, but is not limited to, fundraising; demonstrating or rallying; recruiting, training, organizing, or leading members; distributing material (including posting on-line); knowingly wearing gang colors or clothing; having tattoos or body markings associated with such gangs or organizations; or otherwise engaging in activities in furtherance of the objective of such gangs or organizations that are detrimental to good order, discipline, or mission accomplishment or are incompatible with military service.


(emphasis added to highlight additions)


So we added examples of basic gang activity to clarify active participation. 


Knowingly wearing gang colors or clothing; having tattoos or body markings associated with such gangs or organizations are things that all gang members do. The gangsters in the military are usually more advanced that your everyday, run-of-the-mill gangbanger, though. They are members of the Second, and often the Third Generation (see 3G2), and these minor additions will do little (that's a nice way of saying nothing) to help in their detection, capture and conviction. 


Then again, there doesn't seem to have been a full onslaught by the DoD to limit the gang infiltration of the military. There have been somewhat thorough reviews by each of the branches -- Army CID (2004-2009), Air Force OSI (2007), and Navy NCIS (2012) (which included references to Marine CID investigations). Additionally, the FBI has maintained their inquiry into military-trained gang members since 2007.

I still think the developing prohibitions are contained in the wrong laws (see previous posts), but at least we are detailing what is active participation -- and it makes sense. 


I anticipate problems with proving the offender was knowingly wearing gang colors or clothing unless there is a mass movement to educate service members on what gang colors or clothing look like -- and then requiring them to report what they see. I don't see that going very far. The easy defense is that gang clothing has now permeated our culture and clothing, tattoos, and even showing a color preference are all more than gang-related choices. 

The apologists in our DoD investigation units' public relations departments have been practicing that spin for years . . .



More laws with more teeth directed at more advanced gangs with more investigations -- that's the solution!


What do you think?

Addressing the gang problem in strategically different ways

In A great civil law tool -- injunctions and related actions against gangs -- but what about civic involvement -- Southern Style! we looked at Metro Nashville's efforts to declare the Kurdish Pride Gang (KPG) and several members a public nuisance. The use of gang injunctions prohibiting documented gang members from associating with each other in public has been on the rise across the country -- especially in California, though also used effectively in Florida and Texas, among other places.


But what other innovations in the use of civil law are there? How creative can We, the People get to effectively combat the plaque of gangs and gang crime that threaten our cities and states?


Traditional Anti-gang activities include formal anti-gang teams, sections, or task forces; injunctions; and restrictive ordinances.


Civil Law provides a way to get a legal remedy for accidents, negligence, cases of libel, contract disputes, property disputes, probating wills, trusts, administrative law, commercial law, and other matters that involve private parties and organizations including government departments. Civil law helps resolve non-criminal disputes like disagreements over the meanings of contracts, property ownership, divorce, child custody, personal and property damage.


In California, as an example, the state sought damages on behalf of residents (who cannot file suit themselves because they fear retaliation) to distribute proceeds from seized (and sold) homes, businesses and other assets. CA state law allows government to act on behalf of members of the neighborhoods affected by gang activity and collect monetary damages in areas with gang injunctions.


I've got the scoop on injunctions and ordinances -- looking more for nuisances, penalties, and forfeitures. I am specifically looking for innovative ideas that may be a challenge to implement! Ideas like:

• make "gang offenders" register (for certain crimes) and identify their residences and known hangouts online
• increase difficulty of custodial or non-custodial parents to conceal gang affiliation
• allow use of gang affiliation in settling of divorce and child custody disputes
• hold business owners responsible if they allow/don't prevent gangs from gathering, committing crimes or concealing evidence on premises.
• require specific lighting for public and open private areas where groups of people congregate with regularity
• seize gang or gang member property used in or purchased from profits of crime 
• recoup damages for graffiti on private or government property

What do you think?


Please either comment or email me -- carterfsmith at g mail.com

Big League Gangfighting in the Volunteer State

In The odds of finding a "pattern of criminal gang activity" we examined the likelihood of a gang member committing a crime, that he was caught doing, that was considered a felony, twice, within a five-year period, after committing a prior crime for which he was caught and convicted . . . 


I know, it's confusing . . . perhaps it will still be applied.


Despite my suspicions that the law will not be used heavily by prosecutors, I am impressed that it is law, and available. This is all part of the legislature's move to place criminal gang offenses within the state’s existing Racketeer-Influenced and Corrupt Organizations Act, or RICO, where convictions would be class B felonies with sentences ranging from at least 12 to 20 years (as we discussed in Gang Laws and their inability to be useful against real criminals.


While RICO was originally aimed at the Mafia, over the past four decades, prosecutors have used it against many organized crime groups: street gangs, gang cartels, corrupt police departments and even politicians. To violate RICO, a person must engage in a pattern of racketeering activity connected to an enterprise. 


The TN Legislature appears to be making a shift toward acknowledgement that gangs are more of an organized crime problem than a juvenile delinquency problem.


BRAVO!


This shift puts us in, or at least heading toward, the Big Leagues, where states like New York, Illinois, and California (motivated by crime in New York, Chicago, and Los Angeles) have (and have had) similar laws.


Not so bravo


According to New York Criminal Procedure:  (b) A criminal act is "a part of" a pattern of criminal activity when alleged in a count of enterprise corruption when it is committed prior

  to commencement of the criminal action in which enterprise corruption is
  charged and was committed in furtherance of the same  common  scheme  or
  plan or with intent to participate in or further the affairs of the same
  criminal  enterprise  to  which  the crimes specifically included in the
  pattern are connected.

I take that to mean the crime has to be gang (or other organized crime group)-related.


Illinois defines a pattern as 2 or more gang-related criminal offenses committed in whole or in part within this State when: (1) at least one such offense was committed after the effective date of this Act;(2) both offenses were committed within 5 years ofeach other; and(3) at least one offense involved the solicitation tocommit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony under the Criminal Code of 1961."Course or pattern of criminal activity" also means one or more acts of criminal defacement of property under Section 21-1.3 of the Criminal Code of 1961, if the defacement includes a sign or other symbol intended to identify the streetgang.


So it appears Illinois requires the gang member to be careless enough to commit repeated crimes within the state, but they specifically include graffiti as a repeated offense?


California appears similar to ours with their Section 186.22(e), which defines a “pattern of criminal gang activity” as the “commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the offenses [enumerated therein] . . . committed on separate occasions, or by two or more persons . . . .”

So where do we go from here?


What do you think?

Public disclaimer: I am a founding board member of the Tennessee Gang Investigator's Association.

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