SkyDogCon 2 09 Gangs and the Use of Technology Carter Smith

Abstract

Technology advances have changed the way the average American communicates, plans his or her day, shops, drives, and does many other things. Technology has changed the way criminals, specifically gang members, live their lives as well. As gangs evolve, many adopt more of a business model. How does that affect the way law enforcement should investigate them?

You will get an overview of criminal communications options, actions, and interactions followed by a discussion of how law enforcement – mostly gang cops – can and do respond. Ideas on how to engage, assist, or even thwart the detection of such activity will be provided.  The use of metaphors to explain how technology functions often helps the not-so-literate grasp the concepts we will discuss – an impromptu brainstorming session on how that works will likely occur.

Presenter Bio

Carter F. Smith usually presents to groups that are wearing or sitting on badges. In his day job he is an Assistant Professor of Criminal Justice & Homeland Security in the Department of Public Management and Criminal Justice at the Internationally-renowned Austin Peay State University.   During his more than twenty-two year career with the U.S. Army, he used a variety of lengthy titles to describe his jobs with the Criminal Investigations Command (CID).   He has provided training on many gang-related topics to the TN, GA, FL, OK, and Northwest Gang Investigator’s Associations, the Department of Defense, and the Department of Justice.

His research and investigative interests include military-trained gang members, technology use by gang members, and the intersection of criminal street gangs, organized crime, and terrorism.  He’s got a Ph.D from Northcentral University, a Juris Doctorate from Southern Illinois University - Carbondale, a Bachelor’s degree from Austin Peay State University.  He’s been interviewed by a bunch of news outlets, has published a bunch on gangs, and was on two segments of the History Channel’s Gangland series.

Parents anger misdirected -- should be upset with themselves

A recent headline -- Parents angry after finding children's names on police 'gang lists' contains the epitome of parental denial of a problem.

Are there really parents in today's world who believe their kids are innocent just because the kid says they are?

Back in the day, women who attended Mom School learned to tell their kids that who you are is affected by with whom you associate. This advice was more likely passed on with comments like, "Don't hang around them boys -- they are trouble."

Men had a school, too, but many of us failed to graduate, so all we were able to say in support was "You heard your mother, boy, don't make her tell you again."

Apparently Mom and Dad school have lower attendance numbers or, maybe, this isn't taught any more. Nonetheless, it's a timeless principle -- except when you fail to accept responsibility for the children you bring into this world.

Here's a few clips from the story, in an attempt to put (what I see as) the reality into perspective . . .

Neither boy had ever been arrested and, (the mother) said, (and) neither was involved with gangs.

Well, the mother may be an authority on whether her son had ever been arrested, though the police would know better. She is not an authority on whether her son is in a gang, unless, of course, she is with him around the clock. What this response means is either 1) my son told me he is not in a gang and those drawings on his school papers and suspicious friends he hangs with don't convince me otherwise, or 2) I have more important things to do than keep track of my son's whereabouts and have taught him that denying reality makes it go away.

. . . more than 50 people, all but a few of them black, showed up . . . heard eight representatives of law enforcement agencies, all but two of them white, tell them why they keep these lists and how they use them.

Anytime the media, or observers for that matter, make a point to note the races of those involved without also showing why that was important, it's not. More police officers are white and more street gang members are black. That's not something that affects the facts of the case. I am pretty sure it doesn't change readership.

JR got on the list, according to Largo police records, because police found 11 pictures of him online displaying 119 Boys hand signals, and because a police officer saw him once with other gang associates, and because he once ran away from a sheriff's deputy while accompanied by another gang member. "It's hurtful," said JRs mother, about her son's inclusion.

Those facts, for people who are not the boy's parents, serve as a clear indication that he at a minimum has an interest in local gags and more likely is an associate or member. These are also an indication that the boy's parents haven't seen the indicators or have ignored them and denied they are indicators. They are not an indication that the police intended anything to be "hurtful" as that's not in their job description.

. . . prosecutors use the lists to get higher bail amounts and longer prison sentences. Prosecutors need to prove gang membership to a judge before a harsher sentence can be imposed. Public Defender Bob Dillinger doesn't like how the lists are used to set higher bail."You have no way of knowing it (gang member status) is accurate," Dillinger said. "If the police say it, that's it."

No, Mr. Dillinger, you actually have a way to know whether the list is accurate -- beyond the police simply "saying it" -- it's the part above where it says "Prosecutors need to prove gang membership to a judge." That's how (and why) our justice system works.

If you saw this as a rant, then it's over. Something had to be said. If you are a parent and want to know what indicators to look for -- check out the warning signs.

What do you think?

Laws against gang recruiting: Worth the time and effort?

The FBI's National Gang Intelligence Center (NGIC) keeps us updated on their "conservative" estimate of the number of gang members in the United States. At last count there were 1.4 million. 

That figure represented an increase of 400,000 over the conservatively estimated 1,000,000 as of September 2008.  The 2009 NGIC estimate represented 212,000 more gang members (26% higher) than the 2007 report.  The estimate was 215,000 (28%) higher than the number of gang members reported by the National Youth Gang Center in 2006 (NYGC).  The estimate was also 200,000 (25%) higher than the 800,000 gang members reported by the Federal Bureau of Investigation’s Deputy Director Pistole (2008) in March of 2008. 

Meanwhile, the National Youth Gang Center reports gang membership is now pretty close to where it was 15 or so years ago (1996-2010). Following a yearly (limited) decline from 1996 to a low in 2003, annual estimates steadily increased through 2010 (NYGC).

And how are those increases in membership numbers achieved? 

Recruiting. In some places it's called "cause, induce or solicit another person to participate in."

Many local jurisdictions have started targeting recruiting for gangs -- making it a violation of the law. And some states have shown an interest in doing the same (specifically AL, AK, AZ, AR, CA, CO, DE, DC, FL, GA, ID, IL, IN, IA, KS, KY, LA, MD, MA, MI, MT, NE, NV, NH, NJ, NC, ND, OK, SC, TX, UT, VA, WA, WI, WY) (that was 34 states plus the District of Columbia). Some states, for example Pennsylvania, Florida and Georgia, have gone beyond that and said gang recruiters can't require a prospect to commit a crime. MN has laws that don't appear to prohibit recruiting (prohibiting simply one who solicits or conspires with a minor to commit a crime or delinquent act) , but do address other forms of threat and intimidation.

Is this a strategy based on reality? 

Do we really think that by telling leaders of criminal groups that recruiting new members is wrong they will stop doing so? Perhaps we should also tell them that about threatening or knowingly causing injury or death; receiving money or anything of value from the commission of an aggravated burglary; or from the illegal sale, delivery or manufacture of a controlled substance or firearm, or any of the racketeering offenses we examined in Gang Laws and their inability to be useful against real criminals!

Ultimately, I don't think prohibiting recruiting will work, as intended, if the intent was to get the gang members to swear off recruiting. In fact, it reminds me of the signs my dog is inclined to ignore on our walks (until she experiences human intervention).

image from http://media.al.com/al/photo/10407701-large.jpg

But it might give the kids they recruit something to think about and may give the police another strategy for stopping the gang activity that plagues our nation.

What do you think?

Public disclaimer: I am a founding board member of the Tennessee Gang Investigator's Association, headquartered in Hixson, so I might have a propensity to think gang cops don't get enough support.

Like the TNGIA on Facebook!

A Duck is a duck is a duck: Can another person identify a gang member?

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Stuff gang bangers in the military can't do with DoD Instruction 1325.6 in place

We looked at this a bit in Further attempts to give teeth to DoD Instruction 1325.6, with 
Change 1, February 22, 2012 to DoD Instruction (DoDI) 1325.6. 


The guidance includes:

PREVENTIVE ACTIVITIES


a. Commanders should remain alert for signs of future prohibited activities. They should intervene early, primarily through counseling, when observing such signs even though the signs may not rise to active advocacy or active participation or may not threaten good order and discipline, but only suggest such potential. The goal of early intervention is to minimize the risk of future prohibited activities.


- these are all feel good guidelines. The reality is that Commanders (and other unit leaders) remain alert for signs of bad morale and things that affect the mission. They usually don't see "what someone does off duty" as something that falls into those categories. What they don't get is that these gang members are 1) smart enough to conceal their affiliation, 2) learning trades they can use to help the gang, and 3) using their military experience and exposure to access the logistics pipeline to help drug and weapons trafficking endeavors, etc. 


- The military is not and is not designed to be engaged in anything resembling early intervention or minimizing the risk of future prohibited activities. Those are activities for communities where there are youth gangs who can be deterred from crime. All military members are adults, and those who are gang members and military service members are far from intervention time.


b. Examples of such signs, which, in the absence of the active advocacy or active participation addressed in paragraphs 8.a and 8.b are not prohibited, could include mere membership in criminal gangs and other organizations covered under paragraph 8.b. 

• mostly explained by active participation in prohibited groups by fundraising; demonstrating or rallying; recruiting, training, organizing, or leading members; distributing material; 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 organizations that are detrimental to good order, discipline, or mission accomplishment or are incompatible with military service

These do not appropriately represent the breadth of gang crimes that should be included in “criminal gang offense.” They appear more like some of the indicators used by Departments of Correction and a few police departments to confirm gang membership. From Tennessee:

1. Self Admission

2.  Tattoos

3. Hand Signs/Symbols/Logos

4. Wearing of Gang/STG colors, gang clothing, gang paraphernalia.

5. Possession of Gang/STG documents  

6. Possession of commercial Gang/STG publications.

7. Participation in commercial Gang/STG publications.

8. Consistently in contact with Gang/STG members

9. Contact with Gang/STG members.

10. Participating in a photo with Gang/STG members. 

11. Outside jurisdiction documents. 

12. Correspondence with Gang/STG members.  

13. Named a Gang/STG member in correspondence.

14. Confirmation through outside agency gang unit or database.

15. Engaged in Gang/STG Crime or activity.

In fact, they are a carryover from the wrongly positioned history of this DoD Instruction. As addressed in DoDs New Rules for Gangs in the Military (not a good idea), 

At the time the directive was initially published in 1969, the DoD was concerned with the infiltration of anti-war and anti-military organizations. The directive focused on dissident and protest activities within the military, and especially on activities such as underground newspapers, on-post demonstrations, and serviceman organizations.

In 1986, the Secretary of Defense updated the directive. The directive's language prohibited "active" participation in "extremist organizations." This comes from language in Executive Order (EO) 11,785 issued in 1953, during the height of the Cold War, when the government feared Communist infiltration. It was later changed to forbid designating any groups as "totalitarian, fascist, Communist, or subversive" and forbade any circulation or publication of a list of such groups.

* * *

We had problems linking the directive to gangs because of it's history (originally launched from an Executive Order (EO 10,450: http://www.archives.gov/federal-register/codification/executive-order/10450.html) prohibiting communist groups from infiltrating, then war protesters, now extremists. 

It's pretty clear what actions they wanted to prohibit: 

         * * *

sabotage, espionage, treason, or sedition, or attempts thereat or preparation therefore, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition

         * * *

Advocacy of use of force or violence to overthrow the government of the United States

So when the explanation for the new Instruction explains that:

Signs could also include possession of literature associated with such gangs or organizations, or with related ideology, doctrine, or causes. While mere membership or possession of literature normally is not prohibited, it may merit further investigation and possibly counseling to emphasize the importance of adherence to the Department’s values and to ensure that the Service member understands what activities are prohibited.

I am tempted to ask what they are talking about when it comes to literature. Are they talking about Gang/STG documents: rosters, procedures, bylaws, codes, etc.? What about Gang/STG commercial publications? What about illustrations or artwork?


Unfortunately, these are the same questions that would allow a defense attorney to claim the instruction is vague and over-broad, and that's an indication that more thought should be invested in it in the first place.


What do you think?

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?