{"id":1334,"date":"2017-09-27T17:44:29","date_gmt":"2017-09-27T17:44:29","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/suny-fmcc-criminallaw\/?post_type=chapter&p=1334"},"modified":"2017-09-27T17:44:29","modified_gmt":"2017-09-27T17:44:29","slug":"12-2-crimes-targeting-group-conduct","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/suny-sccc-criminallaw\/chapter\/12-2-crimes-targeting-group-conduct\/","title":{"raw":"12.2 Crimes Targeting Group Conduct","rendered":"12.2 Crimes Targeting Group Conduct"},"content":{"raw":"
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Learning Objectives<\/h3>\n
  1. Define the elements of unlawful assembly and failure to disperse.<\/li>\n
  2. Identify potential constitutional challenges to unlawful assembly and failure to disperse statutes.<\/li>\n
  3. Analyze unlawful assembly and failure to disperse grading.<\/li>\n
  4. Define the elements of riot, and analyze riot grading and the potential for constitutional challenges to riot statutes.<\/li>\n
  5. Define criminal gang and criminal gang member.<\/li>\n
  6. Compare gang participation and gang-enhancement statutes.<\/li>\n
  7. Analyze two civil responses to the criminal gang problem.<\/li>\n
  8. Identify potential constitutional challenges to gang activity statutes.<\/li>\n <\/ol><\/div>\n

    Group conduct, if criminal, can enhance the potential for violence and injury and is punishable as the crimes of unlawful assembly, riot, or criminal gangs. However, the right to peacefully<\/em> assemble<\/strong> is guaranteed in the First Amendment, so statutes codifying these offenses can be subject to constitutional attack similar to disorderly conduct, vagrancy, and loitering statutes. In addition, the problem of criminal gangs has proven to be so stubborn that it has produced some novel criminal and civil<\/em> responses. The following sections discuss group activity offenses as well as their potential constitutional defenses.<\/p>\n

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    Unlawful Assembly and Failure to Disperse<\/h2>\n

    Unlawful assembly<\/a><\/span> can be the predicate offense to riot, which is discussed shortly. The elements required for unlawful assembly are the assembling (Ala. Code \u00a7 13A-11-5, 2011) or meeting (Fla. Stat. Ann. \u00a7 870.02, 2011) (criminal act<\/strong>) of a group, with the specific intent<\/strong> or purposely<\/strong> to commit a breach of the peace, some other unlawful act (Fla. Stat. Ann. \u00a7 870.02, 2011), or riot (Ala. Code \u00a7 13A-11-5, 2011). Some jurisdictions and the Model Penal Code punish the failure to disperse<\/a><\/span> (criminal act<\/strong>) when a peace officer or public servant orders a group participating in disorderly conduct likely to cause substantial harm, serious annoyance, or alarm to do so (Mass. Gen. Laws ch. 269 \u00a7 1, 2011) (Model Penal Code \u00a7\u00a0250.1(2)). The criminal intent element for failure to disperse is general intent<\/strong> or knowingly<\/strong> (N.J. Stat. \u00a7 2C:33-1, 2011) (Model Penal Code \u00a7\u00a0250.1(2)).<\/p>\n

    Jurisdictions vary as to the attendant circumstance<\/strong> for unlawful assembly and failure to disperse, which is the size of the group. Some common group minimums are two<\/strong> (Cal. Penal Code \u00a7 407, 2011), three<\/strong> (Fla. Stat. Ann. \u00a7 870.02, 2011), or five<\/strong> (N.J. Stat. \u00a7 2C:33-1, 2011). The Model Penal Code requires three or more persons (Model Penal Code \u00a7\u00a0250.1(2)).<\/p>\n

    \n

    Example of Unlawful Assembly and Failure to Disperse<\/h2>\n

    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, \u201cLet\u2019s go show those losers what it\u2019s like to fear for your life!\u201d He marches angrily over to the park, and the other neighbors follow. Buck begins chanting, \u201cHow would you like to be aborted?\u201d 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 \u201cmove along.\u201d Buck spits at the ranger\u2019s feet and starts up the chant again. The other neighbors laugh and join him.<\/p>\n

    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, \u201cHow would you like to be aborted?\u201d 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\u2019 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 \u201cmove along,\u201d he is ordering them to disperse. Buck\u2019s response in spitting at the ranger\u2019s 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<\/em> of these offenses in many jurisdictions.<\/p>\n <\/div>\n

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    Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes<\/h2>\n

    The offenses of unlawful assembly and failure to disperse target conduct that, if peaceful<\/em>, 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<\/strong> (People v. Sanchez, 2011) or as void for vagueness<\/strong> and overbroad<\/strong>.<\/p>\n

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    Figure 12.4<\/span> Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes<\/p>\n \"Potential<\/a><\/div>\n <\/div><\/div><\/div>\n

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    Unlawful Assembly and Failure to Disperse Grading<\/h2>\n

    Unlawful assembly and failure to disperse are generally graded<\/strong> as misdemeanors (Ala. Code \u00a7 13A-11-5, 2011). The Model Penal Code grades failure to disperse as a misdemeanor (Model Penal Code \u00a7\u00a0250.1(2)).<\/p>\n <\/div>\n <\/div>\n

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    Riot<\/h2>\n

    Riot<\/a><\/span> can be the result of an unlawful assembly that escalates, an incitement to riot<\/strong> (discussed in Chapter 3 \"Constitutional Protections\"<\/a>), or can occur spontaneously without any planning or predicate activity. The criminal act<\/strong> element required for riot in many jurisdictions is group commission of an unlawful act of violence or a lawful act in a violent and tumultuous manner (Ga. Code tit. 16 \u00a7 16-11-30, 2011). The Model Penal Code criminalizes riot when a group participates in a course of disorderly conduct (Model Penal Code \u00a7\u00a0250.1). The criminal intent element for riot varies, depending on the jurisdiction. Some jurisdictions and the Model Penal Code require specific intent<\/strong> or purposely<\/strong> to commit or facilitate a felony or misdemeanor, or to prevent or coerce official action, or general intent<\/strong> or knowledge<\/strong> that anyone plans to use a firearm or deadly weapon (N.J. Stat. \u00a7 2C:33-1, 2011) (Model Penal Code \u00a7\u00a0250.1). Others make riot a strict liability<\/strong> offense (Cal. Penal Code \u00a7 404, 2011; Ga. Code tit. 16 \u00a7 16-11-30). In many jurisdictions, riot also has the requirement that the defendant(s) be the factual<\/strong> and legal cause<\/strong> of harm<\/strong>, which is public terror and alarm or a risk thereof (Ala. Code \u00a7 13A-11-3, 2011).<\/p>\n

    Jurisdictions vary as to the attendant circumstance<\/strong> for riot, which is the size of the group. Some common group minimums are two<\/strong> (Ga. Code tit. 16 \u00a7 16-11-30, 2011), five<\/strong> (N.J. Stat. \u00a7 2C:33-1, 2011), and six<\/strong> (Ala. Code \u00a7 13A-11-3, 2011). The Model Penal Code requires three<\/strong> or more persons (Model Penal Code \u00a7\u00a0250.1). Riot is graded<\/strong> as a misdemeanor (Ala. Code \u00a7 13A-11-3, 2011), or a felony if a firearm is used (Va. Code Ann. \u00a7 18.2-405, 2011) or there is property damage or physical injury to an individual other than the defendants (N.Y. Penal \u00a7 240.06, 2011). The Model Penal Code grades riot as a felony of the third degree (Model Penal Code \u00a7\u00a0250.1).<\/p>\n

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    Example of Riot<\/h2>\n

    Review the example with Buck and his neighbors in Section 12 \"Example of Unlawful Assembly and Failure to Disperse\"<\/a>. Assume that after the park ranger orders Buck and his neighbors to disperse, Buck spits at the ranger\u2019s feet, continues chanting, and thereafter becomes so enraged that he grabs a sign out of one of the pro-choice individual\u2019s 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<\/em> and battered<\/em> 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\u2019s 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\u2019 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.<\/p>\n <\/div>\n

    \n

    Potential Constitutional Challenges to Riot Statutes<\/h2>\n

    Because statutes criminalizing riot include the requirement of force<\/em> or violence<\/em>, 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.<\/p>\n

    \n

    Rodney King Riots Video<\/h4>\n

    KTLA News, April 30, 1992, 6:50 p.m., King Riots<\/p>\n

    News clips of the riots that occurred subsequent to the Rodney King trial are shown in this video:<\/p>\n

    \n (click to see video)<\/a>\n <\/div>\n <\/div>\n <\/div>\n <\/div>\n
    \n

    Criminal Gangs<\/h2>\n

    Many jurisdictions have statutes, both criminal and civil, that address the ongoing dilemma of criminal gangs. However, gang activity remains a problem in major cities and even smaller, rural areas. Criminal gangs can create a stigma that attaches to a location, affecting property values and residents\u2019 attitudes about the effectiveness of law enforcement and the justice system in general. Commentators and legislators differ as to the most effective remedies for the gang problem, leading to a plethora of diverse statutory responses.<\/p>\n

    What follows is a discussion of modern statutes targeting gang activity and the potential constitutional challenges.<\/p>\n

    \n

    Criminal Gang Definitions<\/h2>\n

    It is important for a jurisdiction\u2019s gang statute to define criminal gang<\/a><\/span> and criminal gang member<\/a><\/span> 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,<\/em> is protected under the First Amendment.<\/p>\n

    Federal law defines a criminal street gang as an ongoing group, club, organization, or association of five<\/strong> 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<\/strong> or knowledge<\/strong> that its members engage in a continuing series of specified crimes, or an individual who intends to promote<\/strong> or further<\/strong> 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<\/strong> 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. \u00a7 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\u2019s 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. \u00a7 18-8502(2), 2011).<\/p>\n

    \n

    Example of Criminal Gang Definitions<\/h2>\n

    The North Side Boys are a group of fifty-five<\/strong> members who have a special tattoo<\/strong>, wear the colors<\/strong> black and white daily, and pride themselves on their illegal<\/strong> controlled substances distribution. Mike decides he wants to be a North Side Boy. Mike participates in a special initiation process that includes selling a specified quantity of an illegal controlled substance in a certain location over a period of two weeks. After Mike completes the initiation, he gets the North Side Boys\u2019 tattoo, wears the North Side Boys\u2019 colors daily, and spends all his time with the North Side Boys, hanging out and also contributing to their illegal activities. The North Side Boys probably meets the criteria for a criminal gang<\/strong>, and Mike is most likely a criminal gang member<\/strong> under many modern statutes. The North Side Boys has an identifiable tattoo and style of dress and furthers a criminal activity, which is the distribution of illegal controlled substances. Mike can be identified as a gang member by other North Side Boys members, frequents the North Side Boys\u2019 gang area, and adopts the gang\u2019s style of dress and tattoos along with furthering its criminal enterprise. Thus the North Side Boys and Mike fit the definition of criminal gang and gang member in many jurisdictions, and Mike may be subject to prosecution for and conviction of criminal gang activity if he commits crimes at the direction of or in furtherance of the gang, as is analyzed in Section 12 \"Criminal Gang Activity\"<\/a>.<\/p>\n <\/div>\n <\/div>\n

    \n

    Criminal Gang Activity<\/h2>\n

    States generally criminalize gang participation (Ohio Rev. Code Ann. \u00a7 2923.42, 2011), enhance<\/em> the penalty<\/em> for a crime when it is committed in furtherance of a gang (Fla. Stat. Ann. \u00a7 874.04, 2011), or both<\/strong> (Cal. Penal Code \u00a7 186.22). If a state enacts a gang participation statute<\/a><\/span>, the criminal act<\/strong> element is generally described as actively participating in a criminal gang and promoting, furthering, or assisting in any felony, with the general intent<\/strong> or knowingly<\/strong> that members of the gang engage in a pattern of criminal gang activity (Del. Code Ann. tit. 11 \u00a7 616, 2011). Gang participation is generally graded<\/strong> as a felony (Del. Code Ann. tit. 11 \u00a7 616, 2011). Gang enhancement statutes<\/a><\/span> enhance the defendant\u2019s sentence for actually committing a misdemeanor or felony with the specific intent<\/strong> or purposely<\/strong> to benefit, promote, or further the interests of the criminal gang (Fla. Stat. Ann. \u00a7 874.04, 2011). Some jurisdictions only provide gang enhancement for the commission of a felony (Del. Code. Ann. tit. 11 \u00a7 616, 2011).<\/p>\n

    \n

    Example of Criminal Gang Activity<\/h2>\n

    Review the example with Mike and the North Side Boys given in Section 12 \"Example of Criminal Gang Definitions\"<\/a>. Assume that Mike resumes selling illegal controlled substances at the behest<\/em> 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\u2019 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<\/em> because he committed the sale of illegal controlled substances in furtherance of the criminal gang. In either situation, Mike will be punished more severely<\/em> 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.<\/p>\n

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    Figure 12.5<\/span> Diagram of Typical Modern Gang Statutes<\/p>\n \"Diagram<\/a><\/div>\n <\/div>\n <\/div>\n

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    Civil Responses to Gang Activity<\/h2>\n

    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<\/a><\/span>, along with resorting to the remedy of civil gang injunctions<\/a><\/span> to try to curb the multitude of harms that gangs inflict.<\/p>\n

    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. \u00a7 874.06, 2011). A common provision of civil gang control statutes is the ability of a resident or state agency<\/em> to sue as a plaintiff (Fla. Stat. Ann. \u00a7 874.06, 2011).<\/p>\n

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    Figure 12.6<\/span> Example of a Civil Gang Control Statute<\/p>\n \"Example<\/a><\/div>\n

    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 \u00a7 125.065, 2011). A state agency or an individual resident can typically make a motion requesting a CGI (Tex. Penal Code \u00a7 125.064, 2011). The basis for a CGI motion is the tort of public nuisance<\/a><\/span>, 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<\/strong>, resulting in fines or incarceration (Tex. Penal Code \u00a7 125.066, 2011).<\/p>\n

    \n

    Example of Civil Responses to Gang Activity<\/h2>\n

    Review the example with Mike and the North Side Boys in Section 12 \"Example of Criminal Gang Definitions\"<\/a>. Mike and the North Side Boys are subject to a criminal prosecution for gang participation<\/strong> for their sale of illegal controlled substances. They also are subject to gang enhancements<\/em> for any felony committed at the direction or in furtherance of the North Side Boys. In addition, if the state where Mike and the North Side Boys are located has statutes providing civil<\/strong> remedies and CGI<\/strong>s, both Mike and the North Side Boys members are subject to a civil suit for damages if they coerce, intimidate, or injure another. They also are subject to an injunction constraining their ability to meet, associate, wear black and white, flash gang hand signs, or loiter in certain areas. If a CGI is in place, and Mike or the North Side Boys violate it, a potential exists for criminal charges of contempt<\/strong>, leading to fines or incarceration.<\/p>\n

    \n

    Colton Gang Injunction<\/h4>\n

    News Story of the Colton Civil Gang Injunction<\/p>\n

    The civil gang injunction in Colton, California, is discussed in this video:<\/p>\n

    \n (click to see video)<\/a>\n <\/div>\n <\/div>\n <\/div>\n <\/div>\n
    \n

    Potential Constitutional Challenges to Gang Statutes<\/h2>\n

    Gang activity and gang association require assembly, which, if peaceful<\/em>, is protected by the First Amendment. Thus statutes proscribing gang conduct are subject to attack under the First Amendment<\/strong> or void for vagueness<\/strong> and overbreadth<\/strong>. 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).<\/p>\n

    In City of Chicago v. Morales<\/em><\/a>, 527 U.S. 41 (1999), the US Supreme Court struck down Chicago\u2019s Gang Congregation Ordinance as void for vagueness. The ordinance prohibited criminal street gang members from \u201cloitering in public.\u201d The term loitering<\/em> was defined as remaining in any one place with no apparent purpose<\/em>. 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.<\/p>\n

    Under Morales<\/em>, modern statutes targeting gang activity and association must precisely define criminal conduct, avoid vague terms such as \u201cno apparent purpose,\u201d and ensure that First Amendment protected activity is not included within the statute\u2019s 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).<\/p>\n

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    Figure 12.7<\/span> Potential Constitutional Challenges to Statutes Targeting Gangs<\/p>\n \"Potential<\/a><\/div>\n

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    Figure 12.8<\/span> Diagram of Crimes Involving Group Activity<\/p>\n \"Diagram<\/a><\/div>\n

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    Key Takeaways<\/h3>\n