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SC Gang Bill: New Invasion on Our Civil Liberties

by: Paul N.Uricchio,III of Uricchio and Associates Law Firm

I have been a practicing criminal and accident attorney for over 30 years and feel reasonably qualified to express my opinion regarding the new invasion on our civil liberties. Through my membership with ABATE I was recently made aware of a bill pending before the South Carolina Legislature that seeks to amend Chapter 8, Title 16 of the Code of Laws of South Carolina by adding Article 2, so as to enact the “Criminal Gang Prevention Act”. This amendment offends the doctrines of substantive due process, over breadth, and equal protection under the law. It is feared that the enactment will open the door to missteps by local law enforcement which will have costly implications for civil liberties and race relations.

In the past decade or so, cities and states across the country have increased their efforts to target street gangs as part of an effort to battle street crime. While the policy of protecting the public from violet crime often associated with certain gangs is unarguably legitimate, many of these so-called “antigang” ordinances cross the line of infringing on the civil rights of law abiding citizens. These efforts have disproportionate effect on the African American and Hispanic Communities. Just how far cities and states can go in their efforts to reduce gang activity remains an open question in this country, and one that is being hotly debated. The Supreme Court addressed the issue in Morales when it struck down the Chicago Gang Congregation Ordinance, which allowed police to arrest any group of two or more people remaining in a public place “with no apparent purpose”, if they fail to disperse, and the police reasonably believed that the group included a gang member. The Supreme Court ruled that the ordinance gave the police too much discretion in making decisions about whom to arrest. Courts across the country have followed the ruling in Morales to strike down numerous ordinances very similar to the one pending before the South Carolina Legislature.

The three main implications of this bill are as follows:

  1. It will place the investigation and prosecution of so called criminal gang activity under the state grand jury;
  2. It will require that notice be given to the sheriff whenever a gang member is released from jail, prison, or corrections facility; and
  3. It will require all state, county, and municipal law enforcement agencies to furnish information they acquire relating to gangs to SLED for inclusion in a statewide criminal gang database, which will include terrorists as well.

So what does this mean?

Well, let’s first discuss who exactly is a “gang member”. The bill says it is an “individual member of an active criminal gang”. Ok, that is how the federal government defines a gang member, covering all their bases, aren’t they? But, what’s and active “criminal gang”? The bill says: “Criminal gang” means a formal or informal ongoing organization, association, or group that consists of five or more persons who form for the purpose of committing criminal activity and who knowingly and actively participate in a pattern of criminal gang activity. Criminal gangs include, but are not limited to, racial extremist groups, outlaw motorcycle gangs(?), terrorist groups, and street gangs.” Well then how does the bill define “pattern of criminal behavior”? “Pattern of criminal gang activity” means the commission or attempted commission of, commission as an accessory before or after the fact to, or solicitation or conspiracy to commit, by a criminal gang member, while knowingly and actively participating in criminal gang activity, four or more of the following of the offenses occurring within a two-year period, provided that at least three of these offenses occurred after July 1, 2007. It then proceeds to lists a bunch of crimes ranging from malicious injury of property, to drug offenses, to harassment, to obstruction of justice. Laws to adequately prosecute and punish these crimes are already on the books. This proposed legislation is nothing other than an attempt to exploit the public fear of terrorists and divert attention from well publicized failures in these areas.

So, lets put this into an example to illustrate exactly what this would mean for those of us reading this article and who own motorcycles. Lets say that there is a small number of us that like to smoke a little pot, drive by our ex-wife’s house to check up on them, make some prank calls, and spray paint the side of a building. Five of these individuals are arrested and charged with harassment, stalking, drug use, and malicious destruction of property. Guess what? These five people have qualified as a violent gang. And guess what else? Under this new bill, it is highly likely that everyone reading this article and who own a motorcycle are now considered a member of a violent gang as well, or at least affiliated with one. So, say that tomorrow, you get pulled over and the officer discovers some drugs on your bike, which of course aren’t yours, they belong to your friend. You go to jail. You don’t get to do a little community service and be done with it. Why? Because you are affiliated with a “violent gang.” Your name is going to show up in a statewide registry and your butt is likely going before a grand jury.

When you are brought before a grand jury, you can be forced to testify or face jail time. That’s right. If you don’t turn your friend in who had the drugs on your bike, you will go to jail for obstruction of justice. Supporters of this bill threw this in because of the problem of “silence” and “lack of cooperation” they tend to force when trying to get you “violent gang members” to rat on each other. So, you, being an honorable friend, refuse to give names and, serve your time in jail. When you are finally released, they will let the sheriff know that you are out, tell him where you live, and where they arrested you the first time. This is so he can keep a good watch on you, just in case you engage in “gang activity” again. Your name will be kept in a database, so that you can be closely watched and subject to harsher penalties than someone not listed on that database.

Now, tell me that this ordinance does not infringe upon your personal liberties and rights to equal treatment and protection under the law!

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