Gang activity and gang association require assembly, which, if peaceful, is protected by the First Amendment. Thus statutes proscribing gang conduct are subject to attack under the First Amendment or void for vagueness and overbreadth. CGIs have the s ame constitutional concerns as criminal gang activity statutes because their violation can lead to a criminal prosecution for contempt. 1
In City of Chicago v. Morales, 527 U.S. 41 (1999), the US Supreme Court struck down Chicago’s Gang Congregation Ordinance as void for vagueness. The ordinance prohibited criminal street gang members from “loitering in public.” The term loitering was defined as remaining in any one place with no apparent purpose. When a Chicago law enforcement officer observed a gang member loitering, he was obligated to order the gang member to disperse, and if the gang member refused, the gang member was subject to arrest for violating the ordinance. The Court held that the ordinance did not give the public notice of what was criminal, as required by the due process clause of the Fourteenth Amendment, and allowed too much discretion to law enforcement to unevenly enforce its provisions.
Under Morales, modern statutes targeting gang activity and association must precisely define criminal conduct, avoid vague terms s uch as “no apparent purpose,” and ensure that First Amendment protected activity is no t included within the statute’s reach. CGIs should support a significant government interest, be narrowly tailored to avoid constitutionally protected activity, and be buttressed by evidence that the CGI is the least restrictive means to carry out the interest stated. 2
KEY TAKEAWAYS
- The elements of unlawful assembly are the assembling or meeting of a group (criminal act) with the specific intent or purposely to commit breach of the peace, some other unlawful act, or riot. Some jurisdictions punish the failure to disperse (criminal act) with general intent o r knowingly when a peace officer or public servant orders a group likely to cause substantial harm, serious annoyance, or alarm to do so. Jurisdictions vary as to the attendant circumstance, which is the group minimum, identifying two, three, five, or some similar number, depending on the statute.
- Unlawful assembly and failure to disperse statutes can be constitutionally challenged under the First Amendment, as void for vagueness, or overbroad.
- Unlawful assembly and failure to disperse are typically graded as misdemeanors.
- Riot is group commission of an unlawful violent act or a lawful act in a violent manner (criminal act) with either the specific intent or purposely to commit a felony or misdemeanor or prevent official action, or the general intent or knowingly that someone in the group possesses a firearm, or with strict liability intent. Some jurisdictions require the criminal act and intent to be the factual and legal cause of harm, which is public terror, alarm, or a risk thereof. The attendant circumstance, which is the group minimum, could be two, five, six, or some similar number, depending on the statute. Riot is often graded as a misdemeanor, or a felony if a firearm is used or there is property damage or physical injury to someone other than a defendant. Because riot statutes criminalize conduct involving force or violence, riot statutes are not as prone to constitutional challenges as disorderly conduct, vagrancy, loitering, and unlawful assembly statutes.
- Criminal gang could be defined as a group of a statutorily specified number that engages in a pattern of criminal activity and has in common hand signs, tattoos, and style of dress. Criminal gang member could be defined as someone who is identified as a gang member, admits to gang membership, associates with gang members, adopts the hand signs, tattoos, and style of dress of gang members, and commits crimes at the behest of the gang.
- Gang participation statutes criminalize actively participating in a criminal gang and promoting, furthering, or assisting (criminal act) the commission of a felony on behalf of a criminal gang with the general intent o r knowingly that the gang participates in a pattern of criminal activity. Gang participation is typically graded as a felony. Gang enhancement statutes enhance a sentence for a misdemeanor or felony committed with the specific intent o r purposely to promote or further a criminal gang. Some states only provide gang enhancement statutes for the commission of a felony.
- Civil responses to the gang problem include civil gang control statutes that allow plaintiffs, including state agencies, to sue for enhanced damages for threats, intimidation, or physical injury caused by a gang or gang member and civil gang injunctions (CGIs) that prohibit gang members from associating or congregating in certain areas frequented by criminal gangs.
- Statutes targeting gangs can be constitutionally challenged under the First Amendment or as void for vagueness or overbroad.
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
1. A law enforcement officer arrests a group of individuals for standing outside a Jewish temple with signs that indicate a disbelief in the holocaust. The officer tells the individuals that he is arresting them for unlawful assembly. What are some potential constitutional problems with this arrest?
2. Read Ortiz v. NYSParolein Bronx, 586 F.3d 149 (2009). In Ortiz, the defendant was found guilty of several counts of riot under New York’s first-degree riot statute for conduct that occurred afterhe left the scene of the riot. Did the US Court of Appeals for the Second Circuit uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=2710893752280724993&q=%22riot+statute%22&hl=en&as_sdt=2,5&as_ylo=2002.
3. Read Peoplev. Englebrecht, 88 Cal. App. 4th 1236 (2001). Did the California Court of Appeal hold that the defendant, an alleged gang member, had the right to a jury trial on the issue of his gang membership for the purpose of a civil gang injunction? The case is available at this link: http://scholar.google.com/scholar_case?case=449430704300565285&q=unconstitutional+%22civil+gang+injunction%22&hl=en&as_sdt=2,5&as_ylo=1997.
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