Example of Unlawful Assembly and Failure to Disperse

Six neighbors are sitting on their porches, peacefully chatting. One of the neighbors, Buck, notices a pro-choice group with signs in the park across the street. Annoyed, Buck tells the group, “Let’s go show those losers what it’s like to fear for your life!” He marches angrily over to the park, and the other neighbors follow. Buck begins chanting, “How would you like to be aborted?” and the other neighbors join in. The individuals in the pro-choice group stand their ground, and the decibel of the chanting increases. Buck and his neighbors form a ring around the group and move in closer, almost touching the individuals and their signs. A park ranger hears the noise, walks over to Buck and his neighbors, and tells them to “move along.” Buck spits at the ranger’s feet and starts up the chant again. The other neighbors laugh and join him.

In this scenario, Buck and his neighbors have most likely committed unlawful assembly and failure to disperse in many jurisdictions. Buck and his neighbors number six, which generally meets the minimum unlawful assembly and failure to disperse attendant circumstance requirement. When Buck and his neighbors go to the park in a group, they are assembling. Their chant, “How would you like to be aborted?” is directed at a pro-choice group, so it is evident that Buck and his neighbors have the specific intent or purposely to cause a breach of the peace. In addition, the increasing decibel of the chanting and the neighbors’ close proximity to the pro-choice group indicates an intent to intimidate, threaten, and possibly commit an unlawful act such as false imprisonment, assault, battery, or riot. When the park ranger, who is most likely a peace officer, tells Buck and his neighbors to “move along,” he is ordering them to disperse. Buck’s response in spitting at the ranger’s feet and starting up the chant again is probably a failure to disperse committed with general intent or knowingly. Thus Buck and his neighbors may be subject to prosecution for and conviction of both of these offenses in many jurisdictions.

Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes

The offenses of unlawful assembly and failure to disperse target conduct that, if peaceful, is protected by the First Amendment. Therefore, similar to disorderly conduct offenses, statutes proscribing this type of conduct are subject to strict scrutiny, must be narrowly tailored, and must be supported by a compelling government interest, or they are vulnerable to attack under the First Amendment (People v. Sanchez, 2011) or as void for vagueness and overbroad.

Figure 12.4 Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes

Unlawful Assembly and Failure to Disperse Grading

Unlawful assembly and failure to disperse are generally graded as misdemeanors (Ala. Code § 13A-11-5, 2011). The Model Penal Code grades failure to disperse as a misdemeanor (Model Penal Code § 250.1(2)).

Example of Riot

Review the example with Buck and his neighbors in Section 12 “Example of Unlawful Assembly and Failure to Disperse”. Assume that after the park ranger orders Buck and his neighbors to disperse, Buck spits at the ranger’s feet, continues chanting, and thereafter becomes so enraged that he grabs a sign out of one of the pro-choice individual’s hands and begins beating him over the head with it. The other neighbors follow suit and within minutes they are all wielding signs and hitting the pro-choice individuals with them. In this scenario, Buck and his neighbors have most likely committed riot. Buck and his neighbors number six, which meets the minimum group requirement in many riot statutes. Buck and his neighbors have also assaulted and battered some of the pro-choice individuals, which are unlawful acts of violence. The statement made by Buck about showing the pro-choice group what it means to fear for your life indicates a specific intent or purposely to commit a felony or misdemeanor, which is the intent requirement in many jurisdictions. If the riot statute in Buck’s state requires factual and legal causation and the harm of public terror and alarm, the beating constitutes the causation and harm requirement. Thus Buck and his neighbors’ conduct probably falls within the parameters of most riot statutes, and Buck and his neighbors may be subject to prosecution for and conviction of this offense in many jurisdictions.

Potential Constitutional Challenges to Riot Statutes

Because statutes criminalizing riot include the requirement of force or violence, they do not target protected conduct under the First Amendment and are not as prone to a constitutional challenge. Of course, any criminal statute must be precisely drafted so that it is not void for vagueness. However, riot statutes are not generally subject to strict scrutiny because the First Amendment does not include forceful or violent expression within the definition of speech.

Criminal Gang Definitions

It is important for a jurisdiction’s gang statute to define criminal gang and criminal gang member precisely, to avoid constitutional challenges under the First Amendment or void for vagueness and overbreadth. This is because gang membership involves assembly, which, if peaceful, is protected under the First Amendment.

Federal law defines a criminal street gang as an ongoing group, club, organization, or association of five or more that has as one of its primary purposes the commission of specific criminal offenses or activities that affect interstate or foreign commerce (18 U.S.C. 521(a), 2011). Federal law defines a gang member as someone who participates in a criminal street gang with the general intent or knowledge that its members engage in a continuing series of specified crimes, or an individual who intends to promote or further the felonious activities of the criminal street gang (18 U.S.C. 521(d), 2011). One representative state statutory definition of criminal gang is a group of three or more persons who have in common a name, identifying sign, symbol, tattoo, style of dress, or use of hand signs and who have committed or attempted to commit specified crimes for the benefit of the group (Alaska Stat. § 11.81.900, 2011). Criminal gang member could be statutorily defined as any person who engages in a pattern of criminal gang activity and who meets two or more of the following criteria: (1) admits to gang membership; (2) is identified as a gang member; (3) resides in or frequents a particular gang’s area and adopts its style of dress, use of hand signs, or tattoos; (3) associates with known gang members; or (4) has been arrested more than once in the company of identified gang members for offenses consistent with gang activity (Idaho Code Ann. § 18-8502(2), 2011).

Criminal Gang Activity

States generally criminalize gang participation (Ohio Rev. Code Ann. § 2923.42, 2011), enhance the penalty for a crime when it is committed in furtherance of a gang (Fla. Stat. Ann. § 874.04, 2011), or both (Cal. Penal Code § 186.22). If a state enacts a gang participation statute, the criminal act element is generally described as actively participating in a criminal gang and promoting, furthering, or assisting in any felony, with the general intent or knowingly that members of the gang engage in a pattern of criminal gang activity (Del. Code Ann. tit. 11 § 616, 2011). Gang participation is generally graded as a felony (Del. Code Ann. tit. 11 § 616, 2011). Gang enhancement statutes enhance the defendant’s sentence for actually committing a misdemeanor or felony with the specific intent or purposely to benefit, promote, or further the interests of the criminal gang (Fla. Stat. Ann. § 874.04, 2011). Some jurisdictions only provide gang enhancement for the commission of a felony (Del. Code. Ann. tit. 11 § 616, 2011).

Example of Criminal Gang Activity

Review the example with Mike and the North Side Boys given in Section 12 “Example of Criminal Gang Definitions”. Assume that Mike resumes selling illegal controlled substances at the behest of the North Side Boys after his initiation and is arrested. If the state where Mike sells illegal controlled substances has a gang participation statute and grades the crime of sale of illegal controlled substances as a felony, Mike could be prosecuted for and convicted of this crime. He furthered and assisted in the North Side Boys’ sale of illegal controlled substances with the general intent or knowingly that members of the North Side Boys engaged in this pattern of criminal gang activity. If the state also has a gang enhancement statute, Mike could have his sentence for sale of illegal controlled substances enhanced because he committed the sale of illegal controlled substances in furtherance of the criminal gang. In either situation, Mike will be punished more severely for the sale of illegal controlled substances than an individual defendant who sells illegal controlled substances on his or her own, rather than at the direction or in furtherance of a criminal gang.

Figure 12.5 Diagram of Typical Modern Gang Statutes

Civil Responses to Gang Activity

As stated previously, the problem of criminal gangs is challenging and has proven resistant to criminal remedies. Thus many jurisdictions have also enacted civil gang control statutes, along with resorting to the remedy of civil gang injunctions to try to curb the multitude of harms that gangs inflict.

Civil gang control statutes generally provide for damages, often enhanced, for coercion, intimidation, threats, or other harm caused by a gang or gang member (Fla. Stat. Ann. § 874.06, 2011). A common provision of civil gang control statutes is the ability of a resident or state agency to sue as a plaintiff (Fla. Stat. Ann. § 874.06, 2011).

Figure 12.6 Example of a Civil Gang Control Statute

Civil gang injunctions (CGIs) are precisely drafted orders prohibiting gang members from associating with other gang members or entering certain areas known for gang activity (Tex. Penal Code § 125.065, 2011). A state agency or an individual resident can typically make a motion requesting a CGI (Tex. Penal Code § 125.064, 2011). The basis for a CGI motion is the tort of public nuisance, which requires proof that the gang is disturbing the enjoyment of life and property for those living in the community (People v. Acuna, 2011). Common provisions of CGIs are a prohibition on associating with known gang members, wearing gang colors, flashing gang hand signs, or loitering in areas known for gang activity (Shiner, M., 2011). Violation of a CGI could constitute the crime of contempt, resulting in fines or incarceration (Tex. Penal Code § 125.066, 2011).

Potential Constitutional Challenges to Gang Statutes

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 same constitutional concerns as criminal gang activity statutes because their violation can lead to a criminal prosecution for contempt (People v. Acuna, 2011).

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 such as “no apparent purpose,” and ensure that First Amendment protected activity is not 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 (Shiner, M., 2011).

Figure 12.7 Potential Constitutional Challenges to Statutes Targeting Gangs

Figure 12.8 Diagram of Crimes Involving Group Activity