Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P5 potx

Gaming is still illegal in some states, but most states have at least one form of legal gambling, most com-monly a state-run lottery.. According to statistics from the National Youth Gan

Trang 1

Under a number of game laws, it is a penal offense to kill or take certain types of game in certain seasons of the year or without a license

A hunter is required to exhibit a license when properly called on to do so, and it constitutes a legal violation if the person cannot do so

In a situation where an individual has lawfully obtained possession of game—enclosing and caring for them as DOMESTIC animals—the person can kill one or more of them if necessary for care and management or for humane purposes In addition, an individual might be justified in killing game in violation of the law if

it were necessary for the protection of persons or property It sometimes constitutes an offense to export game beyond the limits of the nation or state in which it was killed or captured, to ship it for sale in a certain manner, or to absent certain information upon the package

The United States has entered into treaties with other countries, including Great Britain and Mexico, for the protection and preservation

of migratory birds and game animals It constitutes an offense to violate statutes that were enacted to implement such treaties For example, a regulatory statute might limit the number of birds that can be killed by any individual each day, and it would be an offense

to exceed such limit

The FEDERAL government, subject to the CONSENTof the state, can establish a game refuge for the protection of game and migratory birds

and proscribe all hunting in the vicinity The U.S Fish and Wildlife Service is administered

by the INTERIOR DEPARTMENT, to conserve and preserve fish and game in wildlife refuges and game ranges

CROSS REFERENCES Endangered Species Act; Fish and Fishing.

GAMING Gaming is the act or practice of gambling It

is an agreement between two or more individuals

to play collectively at a game of chance for a stake

or wager, which will become the property of the winner and to which all involved make a contribution

Since the early 1990s,GAMINGlaws have been

in a constant state of flux Regulation of gaming

is generally reserved to the states, but the U.S Congress became involved in it in 1988 with the passage of the Indian Gaming Regulatory Act (Gaming Act) (Pub Law No 100-497, 102 Stat

2467 [25 U.S.C.A § 2701 et seq.] [Oct 17, 1988]), which brought tribal gaming under the regulation of state andFEDERALgovernments Before the 1990s most gaming was illegal in

a majority of states Since the passage of the Gaming Act, many state legislatures have approved gaming in a variety of forms Some states still outlaw all but charitable gambling, but most have expanded their definition of legal gaming operations to promote economic development

TheLEGAL HISTORYof gambling in the United States is marked by dramatic swings between PROHIBITION and popularity In colonial times, games of chance were generally illegal except for state and private lotteries Other gaming was considered a sin and not fit for discussion in polite society In the early nineteenth century, the popular belief changed from seeing gaming

as a sin to seeing it as a vice Gamblers were no longer considered fallen in the eyes of God but were now seen as simply victims of their own weaknesses

Gaming came under renewed attack during the presidency ofANDREW JACKSON (1829–1837) Part of the so-called Jacksonian morality of the period revived the view of gambling as sinful By

1862, gaming was illegal in all states except Missouri and Kentucky, both of which retained state lotteries

ILLUSTRATION BY GGS

CREATIVE RESOURCES.

REPRODUCED BY

PERMISSION OF GALE,

A PART OF CENGAGE

LEARNING.

Hunting Participation in 2006

Participants (in millions)

Big game

Small game

Migratory birds

Other animals

4.8

2.3

1.1

SOURCE: U.S Fish and Wildlife Service, 2006 National

Survey of Fishing, Hunting, and Wildlife Associated Recreation, October 2007.

10.7

28 GAMING

Trang 2

After the Civil War, legal gaming

experi-enced a brief renaissance, only to fall out of

favor again in the 1890s At this point, it was

outlawed even in the western territories, where

card games such as poker and blackjack had

become a regular DIVERSION in frontier life By

1910, the United States was again virtually free

of legalized gaming Only Maryland and

Kentucky allowed gambling, in the sole form

of horse race betting

In 1931 Nevada re-legalized casino gaming

Many states followed this lead in the 1930s by

legalizing pari-mutuel betting, wherein all bets

are pooled and then paid, less a management

fee, to the holders of winning tickets In 1963

New Hampshire formed the firstSTATE LOTTERY

since the 1910s By the 1990s gaming was the

largest and fastest growing segment of the U.S

entertainment industry In 1992, for example,

U.S citizens spent approximately four times

more on gaming than on movies Gaming is still

illegal in some states, but most states have at

least one form of legal gambling, most

com-monly a state-run lottery In fact, instead of

prohibiting gaming, many states now actively

promote it by sponsoring lotteries and other

games of chance

Gaming laws vary from state to state Idaho,

for example, declares that“gambling is contrary

to public policy and is strictly prohibited except

for” pari-mutuel betting, bingo and raffle games

for charity, and a state lottery (Idaho Const art

III, § 20) Like lotteries in other states, the

purpose of the one in Idaho is to generate

revenue for the state The lottery is run by the

Idaho State Lottery Commission, which

over-sees all aspects of the game, including expenses

and advertising As of 2009, 43 states permit

lotteries

In addition to lotteries, some states with

direct access to major river systems or lakes

expanded their venues for gaming to include

riverboats On July 1, 1989, Iowa became

the first state to authorize its Racing and

Gaming Commission to grant a license to

qualified organizations for the purpose of

conducting gambling games on excursion boats

in counties where referendums have been

approved Illinois quickly followed Iowa with

its Riverboat Gambling Act (230 ILCS 10),

which went into effect on February 7, 1990

Five more states passed legislation

permi-tting licensing for riverboat casinos: Illinois,

Indiana, Louisiana, Mississippi, and Missouri

Some riverboat gambling vessels are perma-nently docked while others embark on brief cruises and return to their docks after several hours of gaming, dining, and entertainment for passengers

Alabama is one of the few states that prohibit all gambling except for charitable gaming

Alabama maintains no state lottery and punishes gambling through criminal statutes Under the Code of Alabama, sections 13A-12-24 and 13A-12-25 (1975), the possession of gambling records is a class A misdemeanor, which carries a penalty of not more than one year in JAIL or a

$2,000 fine, or both

Nevada is the most permissive state for gambling Its public policy of gaming holds that

“[t]he gaming industry is vitally important to the economy of the state and theGENERAL WELFAREof the inhabitants” (Nev Rev Stat § 463.0129)

Nevada statutes allow the broadest range of gaming activities, including pari-mutuel betting, betting on sports competitions and other events, and the full panoply of casino games Gambling

is heavily regulated by the Nevada Gaming Commission, and a wide range of criminal statutes are designed to ensure cooperation with the regulations of the commission

Gaming LOTTERY SALES BY GAME, IN 2007

Game

Insta Lo Three- o

r

four-d

igit Oth

era

SOURCE: TLF Publications, Inc., 2008 World Lottery

Almanac.

0

30 25

20

10 15

5

$29.7

$10.0

$9.1

$3.6

a Includes break-open tickets, spiel, Keno, video lottery, etc.

ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,

A PART OF CENGAGE LEARNING.

GAMING 29

Trang 3

New Jersey is another active promoter of gaming In 1976, New Jersey voters passed a REFERENDUM approving casino gaming, and that decision was codified in the Casino Control Act (N.J Stat Ann § 5:12-1 et seq.) Gaming is limited to Atlantic City, and it does not include betting on sports events other than horse and dog races However, like Nevada, New Jersey offers the full array of casino games

The Gaming Act divides all gambling into three classes Class I includes all traditional Indian games performed as a part of, or in connection with, tribal ceremonies or celebra-tions Class II is limited to bingo, pull tabs, and card games not explicitly prohibited by the laws

of the state Class III encompasses all other forms of gambling, such as slot machines, poker, blackjack, dice games, off-track betting (where bets may be placed by persons not at the race track) and pari-mutuel betting on horses and dogs, and lotteries

An Indian tribe may operate a class I game without restrictions It may offer class II games with the oversight of the National Indian Gaming Commission, and class III games only

if it reaches an agreement with the state in which it resides

The Gaming Act provides that Native American tribes may operate high-stakes casi-nos only if they reach an agreement with the state in which they reside Under the act, a state is required to enter into GOOD FAITH negotiations with a federally recognized tribe

to allow class III gaming that was legal in the state before the negotiations began For exam-ple, if a state has legalized blackjack but not poker, blackjack is available for negotiations but not poker Furthermore, when a state approves a new form of gambling, the state must make the new game available in negotia-tions with native tribes

Native American groups have criticized the Gaming Act as interfering with tribal SOVER-EIGNTY Indeed, a primary purpose of the act was to reconcile state interests in gaming with those of the tribe Before the act, some Native American tribes ran sizable gambling opera-tions on their land without regulation by the federal or state governments Nevertheless, gaming has become a major source of income for many Native American tribes As of 2009, there are approximately 400 Native American gaming establishments operated by about 220 federally recognized tribes

The Gaming Act has also created opposition

in some states that seeks to minimize gambling within their BOUNDARIES Maine, for example, refused to give the Passamaquoddy tribe a license

to conduct class III gaming operations on tribal land in Calais, near the Canadian border The tribe sued the state for the right to conduct the high-stakes gaming However, several years earlier, Maine had given land to the tribe in exchange for the tribe’s agreement to submit to state JURISDIC-TION In Passamaquoddy Tribe v Maine (75 F 3d

784 [1st Cir 1996]), the First CIRCUIT COURT of Appeals ruled against the tribe The court noted that Congress had been aware of Maine’s agreement with the tribe and that Congress could have added to the Gaming Act, but chose not to, language making the act applicable to the state of Maine According to the court, the gaming statute did not erase the 1980 agreement between the tribe and the state, and Maine had the right to refuse the tribe’s request

FURTHER READINGS American Gaming Association Available online at www americangaming.org (accessed July 26, 2003) Campion, Kristen M 1995 “Riverboats: Floating Our Way

to a Brighter Fiscal Future? ” Seton Hall Legislative Journal 19.

Rose, I Nelson 1993 “Gambling and the Law—Update

1993 ” Hastings Communications and Entertainment Law Journal 15.

CROSS REFERENCES Native American Rights; State Lottery.

Patrons of this South

Dakota casino can

play blackjack and

slot machines.

Regulation of gaming

is generally reserved

to the states.

DEADWOOD GULCH

RESORT AND CASINO.

DEADWOOD, SOUTH

DAKOTA.

30 GAMING

Trang 4

vGANDHI, MOHANDAS

KARAMCHAND

Widely known as Mahatma or “Great Soul”,

MOHANDAS KARAMCHAND GANDHIis considered one

of history’s great political pacifists He is

remembered nearly as much for his austere

persona (frail, bespectacled, clad only in a

draped loincloth) as his political achievements

Gandhi played a major role in leading India to

INDEPENDENCEfrom British rule, in 1947,

follow-ingWORLD WAR II

The quintessential nonviolent activist,

Gandhi dedicated his life to political and social

reform His teachings and example were to later

influence such leaders asMARTIN LUTHER KINGJr

and Nelson Mandela, who also utilized passive

resistance and conversion rather than

confron-tation to bring about social change Gandhi’s

signature marks were what he called Satyagraha

(the force of truth and love) and the ancient

Hindu ideal of Ahisma, or nonviolence toward

all living things

Gandhi was born in western India in 1869

Just 11 years earlier (in 1858), Britain had

declared India a loyal colony The young

Gandhi completed a British-style high school

education and was greatly impressed with

British manners, genteel culture, and Christian

beliefs He aspired to become a BARRISTER at

law, but was prohibited from doing so by the

local head of his Hindu caste in Bombay His

first act of public defiance was his decision to

assume the role of an“outcaste” and leave for

London to study law

While studying in England, Gandhi first read

(and was inspired by) the Bible and the Bhagavad

Gita, a Hindu religious poem The story of the

Sermon on the Mount in the Christian New

Testament stirred in him an interest in passive

resistance, and he also became intrigued with the

ethical basis of vegetarianism after befriending a

few enthusiasts at a local restaurant He would

later use dietary fasting as a means to draw

attention to social causes

But it was an incident in 1893 that put into

motion Gandhi’s focused role in history While

on a legal assignment in South Africa, he was

traveling on a train near Johannesburg when he

was ordered to move from his first-class

compartment to the “colored” car in the rear

of the train He refused At the next station, he

was thrown from the train and spent the night

at the station The experience triggered his

lifelong dedication to CIVIL RIGHTS and to the improvement of the lives of those with little political voice

By 1906 he had taken on his first major political battle, confronting the South African government’s move to fingerprint all Indians with publicized passive resistance His efforts failed to provoke legal change, but he gained a wider following and influence

Returning to India in 1915, Gandhi began a succession of political campaigns for indepen-dence in his homeland He orchestrated wide-spread boycotts of British goods and services, and promoted peaceful noncooperation and nonviolent strikes He is widely remembered for his 1930 defiance of the British law forbid-ding Indians to make their own salt With 78 followers, he started on a march to the sea Soon more than 60,000 supporters were arrested and jailed, but Britain was forced to negotiate with the gentle and powerful little man Gandhi himself was arrested several times by the British, who considered him a troublemaker, and all total, spent about seven years of his life inJAIL Although his unrelenting efforts played a major role in India’s independence in 1947, the victory was bittersweet for Gandhi Britain announced not only the independence of India, but also the creation of the new Muslim state of Pakistan With all his power and influence, Gandhi

Mohandas Gandhi.

TIME LIFE PICTURES/ GETTY IMAGES

ITSELF A SPECIES OF

FOR ITS BREACH

—M OHANDAS G ANDHI

Trang 5

could not undo the years of hatred between the Hindus and Muslims On January 30, 1948, while arriving for evening prayers, he was gunned down

by a Hindu fanatic who blamed the formation of Pakistan on Gandhi’s tolerance for Muslims

Gandhi was 78 at his death

The legacy of Ghandi, and his call for

“conversion, not coercion,” spread worldwide

Passive resistance, peace marches, sitdown strikes, and silent noncooperation became com-mon means of nonviolent activism through much of the latter twentieth century, especially influencing demonstrators during the civil rights and VIETNAM WAR eras Governmental entities accustomed to punishing violent protesters were forced to revamp their response to demonstra-tions in which the only violence was coming from police or guards The U.S Supreme Court was inundated with cases clarifying the limita-tions on FIRST AMENDMENT rights of speech and association To this day, passive resistance remains a principal form of protestation for those seeking attention for their cause(s)

FURTHER READINGS Hay, Stephen 1989 “The Making of a Late-Victorian Hindu: M K Gandhi in London, 1888–1891.”

Victori-an Studies (autumn).

McGeary, Johanna 1999 “Mohandas Gandhi.” Time (December 31).

Sudo, Phil 1997 “The Legacy of Gandhi.” Scholastic Update (April 11).

GANGS

A gang is sometimes difficult to define, especially in legal terms Although gangs typically involve a

congregation of individuals, primarily young males, certainly not all congregations or informal gather-ings of young individuals constitute gangs Defini-tions of gangs or street gangs vary among the laws governing them Alabama law, for example, defines

a “streetgang” as, “[A]ny combination, confedera-tion, alliance, network, conspiracy, understanding,

or similar arrangement in law or in fact, of three or more persons that, through its membership or through the agency of any member, engages in a course or pattern of criminal activity.” Ala Code

§ 13A-6-26 (2002)

The rise in gang violence since the 1980s caused lawmakers to seek a variety of methods to curb the formation and activities of theseGANGS According to statistics from the National Youth Gang Center, more than 24,500 gangs, consisting

of more than 770,000 members, exist in about 3,330 cities in the United States Congress spends

as much as $20 billion per year in health care costs treating victims of gunshot wounds, and many of the incidents involving guns also involve street and other types of gangs

Congress, state legislatures, and municipal governments have responded to the growing tide

of gangs by considering a variety of bills addressing gang violence Although efforts at the FEDERALlevel have largely been unsuccessful, many states and municipalities have enacted laws designed to deter gang-related violence Several

of these statutes and ordinances have been fashioned as anti-loitering statutes, which often raise FIRST AMENDMENT concerns The U.S Sup-reme Court in 1999 made it more difficult for municipalities to draft gang loitering ordinances

ILLUSTRATION BY GGS

CREATIVE RESOURCES.

REPRODUCED BY

PERMISSION OF GALE,

A PART OF CENGAGE

LEARNING.

Demographic Profile of U.S Youth Gang Members, in 2004 a

Female 6%

SOURCE: U.S Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Offenders and

Victims: 2006 National Report.

Male 94%

Hispanic 49%

White 8%

Other 1%

Black 37%

Asian 5%

a 760,000 total youth gang members.

Juveniles (under 18) 41%

Young adults (18 or older) 59%

32 GANGS

Trang 6

when it found that an ordinance such as this in

the city of Chicago was unconstitutional City of

Chicago v Morales, 527 U.S 41, 119 S Ct 1849,

144 L Ed 2d 67 (1999)

Background

Activities of gangs predate the formation of the

United States, though the common perception

of these gangs has changed over time The level

of violence among street gangs is a relatively

new phenomenon Because different

organiza-tions and individuals define the term gang

differently, accurate statistics are often difficult

to compile Many of the crimes committed by

gangs are violent crimes, including HOMICIDE

Moreover, many of the gang members are

juveniles or young adults

According to the 1999 National Youth Gang

Survey, 90 percent of gang members are male

Seventy-one percent of these members are

between the ages of 15 and 24, and 16 percent

are age 14 or under About 79 percent of

the gang members, according to this survey, are

Hispanic or black, while only 14 percent

are white Because of the large discrepancy in

the number of minorities, some commentators

have suggested that young minority males are

unfairly stereotyped, leading to racial profiling of

groups consisting of these young minority males

Until the late 1980s, public and law

enforcement agencies perceived gangs as racially

and ethnically segregated, loosely organized

fighting groups However, a 1988 study of two

major Los Angeles gangs, the Crips and the

Bloods, showed that these gangs had become

highly organized and entrepreneurial These

gangs had begun to engage in drug trafficking

and had expanded their operations to multiple

cities and states As the gangs’ interest in drug

trade increased, so too did the level of violence

perpetrated by their members Between 1984

and 1993, the number of homicides committed

by juveniles increased by 169 percent,

repre-senting a sharp increase in the number of

gang-related crimes Gang membership also increased

markedly during this time Between 1989 and

1995, the number of students reporting a

gang presence at their school increased from

15 to 28 percent

In response to the concerns caused by gang

violence, several states and cities enacted

statutes and ordinances designed to address

street crime In 1988 California enacted the

Street TERRORISM Enforcement and Prevention Act (STEP Act), Cal Pen Code §§ 186.20-.33 (2001) Since that time, at least 28 other states have enacted similar legislation Cities with traditional gang strongholds, such as Chicago and Los Angeles, enacted a series of ordinances that enabled law enforcement to take a more proactive approach in fighting street gangs in those cities

Boston, which experienced the most num-ber of homicides in its history in 1990 DUE

in large part to gang violence, initiated a community-based strategy designed to target at-risk youth before they considered joining a gang It also developed strategies for youth INTERVENTIONand enforcement of GUN CONTROL laws Due to this initiative, youth homicides dropped 80 percent from 1990 to 1995

Similarly, Salinas, California, experienced a

200 percent increase in the total number of homicides from 1984 to 1994 After receiving federal funding, the city improved it anti-gang task force and developed a series of additional programs As a result of these programs, gang related assaults decreased by 23 percent, and the homicide rate fell by 62 percent

Federal Law

In his 1997 state of the union address, President BILL CLINTONrequested that Congress “mount a full-scale ASSAULT on juvenile crime, with legislation that declares war on gangs,” includ-ing more prosecutions and tougher penalties

The same year, Congress considered two bills under the title Anti-Gang Youth Violence Act of

1997 (S 362, H.R 810, 105th Cong.) Despite initial support for this legislation, which would have provided $200 million in funding for local programs, neither bill passed through its respective committee

Although Congress has been unable to enact comprehensive anti-gang legislation, other fed-eral law and actions of fedfed-eral authorities have been used in the effort to curb gang violence

Federal prosecutors have relied upon the Racketeer Influenced and Corrupt Organiza-tions (RICO) statute to prosecute gang mem-bers In the 1990s the number of RICO prosecutions against gang members more than doubled Federal authorities have also assisted local law enforcement through a variety of funding programs For example, in February

2003, the Los Angeles City/County Community Law Enforcement and Recovery (CLEAR)

GANGS 33

Trang 7

anti-gang program received $2.5 million in federal funding for its efforts in reducing gang-related violence

State Law

State legislatures have approached the problems related to gang violence through the enactment

of a number of different statutes Due to rulings

by the courts within the various states, some legislatures are more restricted than others in enacting these types of legislation because of potential violations of state CONSTITUTIONAL provisions

Gang Participation A number of states pro-scribe participation in criminal street gangs, though these statutes vary from state to state In Georgia, for instance, it is unlawful “for any person employed by or associated with a criminal street gang to conduct or participate [in such a gang] through a pattern of criminal gang activity.” Ga Code Ann § 16-15-4 (1998)

Likewise, in Texas, a person commits an offense

“if, with an INTENT to establish, maintain, or participate in a combination of or in the profits

of a combination of or as a member of a street gang, he commits or conspires to commit” one

of several crimes, including violent crimes or distribution of controlled substances Tex Pen Code Ann § 71.02 (Vernon 1997)

Gang Recruitment Several states make it a crime for a person to recruit another to join a criminal gang In Florida, an individual “who intentionally causes, encourages, solicits, or recruits another person to join a criminal street gang that requires as a condition of membership

or continued membership the commission of any crime” commits aTHIRD DEGREE FELONY Fla Stat Ann § 874.05 (1999) In Kentucky an individual who solicits or entices another person to join a criminal gang is GUILTY of the crime of criminal gang recruitment Ky Rev Stat Ann § 506.140 (2000)

Do Anti-gang Laws Violate the Constitution?

The national aversion toGANGS has

sparked debate over FIRST

AMEND-MENT rights of gang members versus

citizens’ safety at home and on the

streets Anti-gang injunctions and the

enactment of anti-gang loitering

ordi-nances are the two most prominent

legal WEAPONS currently employed

against gangs Critics of these efforts,

most notably theAMERICAN CIVIL LIBERTIES

initiatives violate the First

Amend-ment’s right of free association

Defen-ders of anti-gang initiatives reply that

society’s rights to peace and quiet and

to be free from harm outweigh the gang

members’ First Amendment

associ-ational rights

Critics reject the idea that public

safety allows the government to tell

citizens they may not associate with

each other As long as citizens are not

committing a crime, the state cannot tell

them not to stand on a street corner

together or walk down the street The Supreme Court has recognized that freedom of association is on par with

PRESS The Court has allowed municipali-ties to require permits for parades, sound trucks, and demonstrations, in the inter-est of public order However, the courts have been careful not to abridge the right

of unpopular assemblies or protests

In 1977 the largely Jewish suburb of Skokie, Illinois, enacted three ordinances designed to prevent a march through the city by the American Nazi Party The ACLU sued the city, and aFEDERALcourt ruled that Skokie had violated the First Amendment by denying the Nazis a permit to march (Collin v Smith, 578 F.2d 1197 (7th Cir 1978))

Critics of anti-gang laws also argue that just because gang members are unpopular to a large segment of society does not give society the right to restrict

their right to association Why, for example, should the KU KLUX KLAN be allowed to march through an African-American neighborhood while persons

in that neighborhood cannot congregate

on a playground to talk or play sports? Critics believe there are better alter-natives to controlling illegal gang activity than loitering laws and community injunctions The ACLU contends that anti-gang injunctions do not work and may even make things worse The resources of law enforcement are con-centrated in one area, causing the shift of criminal activity into other neighbor-hoods In addition, arresting a gang member for violating a loitering ordi-nance will not change the underlying dynamic of gang activity in urban areas Critics argue that these anti-gang efforts are a cynical, political ploy that has more

to do with creating a tough-on-crime appearance than with effective law enforcement

34 GANGS

Trang 8

Gang-Related Apparel A number of states

permit schools to prescribe a dress code, and

several of these states specifically allow the

schools to prevent gang members from wearing

their gang apparel at the schools For example,

under New Jersey law, “a board of education

may adopt a dress code policy to prohibit

students from wearing, while on school

pro-perty, any type of clothing, apparel, or accessory

which indicates that the student has

member-ship in, or affiliation with, any gang associated

with criminal activities.” N.J Rev Stat §

18A:11-9 (1999) Tennessee law allows similar

restrictions for students in grades six through

twelve Tenn Code Ann § 49-6-4215 (1998)

Enhanced Penalties for Gang-Related

Activi-ties Some states now allow courts, including

juvenile courts, to enhance the sentences of

individuals convicted of gang-related activities

In Illinois, if a juvenile age 15 or older commits

an offense in furtherance of criminal activities

by an organized gang, then a juvenile court is required to enter an order to try the juvenile as

an adult under the criminal laws of the state

705 Ill Comp Stat § 405/5-805 (1999) An organized gang under the statute is defined as

“an association of 5 or more persons, with an establishedHIERARCHY, that encourages members

of the association to perpetrate crimes or provides support to members of the association who do commit crimes.”

Local Ordinances

Municipalities have enacted a variety of mea-sures designed to curb gang violence Some ordinances contain provisions similar to state statutes For example, the city of Albuquerque, New Mexico, enacted an anti-gang recruitment ordinance to protect its citizens from the fear, intimidation, and physical harm caused by the criminal activities of gangs The ordinance provides a laundry list of offenses that are

As an alternative, critics would

em-phasize community policing, increased

resources for law enforcement, and efforts

to improve the economic status of urban

areas They note that crime prevention

and effective enforcement of criminal laws

will do more to make a community safe

than telling a suspected gang member to

leave a street corner In time, they believe,

both the public and law enforcement will

realize that solid, everyday police work

produces better results

Defenders of anti-gang initiatives

contend that although First Amendment

rights should be protected as much as

possible, noCONSTITUTIONALright is

ABSO-LUTE In the case of gangs, the violence and

criminal activity in certain parts of urban

areas have reached a stage where normal

law enforcement techniques do not work

Although the ACLU may say that

individ-ual rights must be protected, such a claim

rings hollow when a gang can take over a

neighborhood through violence and

in-timidation and yet evade law

enforce-ment In a crisis situation, additional steps

must be taken to restore public

confi-dence in the police and local government

Restricting gang activity is not

un-constitutional, argue defenders of the

laws, because the Supreme Court has made it clear that no group of persons has the right to associate for wholly illegal aims Moreover, associations engaging in both legal and illegal activities may still be regulated to the extent they engage in illegal activities Defenders emphasize that the mere existence of an association is not sufficient to bring all that association’s activities within scope of the First Amend-ment Therefore, nonexpressive gang activities can be regulated

Defenders also emphasize that injunctions and loitering ordinances are constitutional because they serve signifi-cant, and often compelling, government interests by reducing the threat to public health and safety caused by gang activities

They note that in the case of an INJUNC-TION, gang members are free to conduct their expressive activities outside of the geographic area defined in the injunction

Thus, the injunction is likely to be upheld because it is narrowly tailored

Though defenders believe these anti-gang initiatives will become impor-tant weapons for law enforcement, they acknowledge the danger of guilt by association They believe, however, that this problem can be avoided if law

enforcement officials adhere to consti-tutional standards in determining who should be subjected to anti-gang provi-sions Judges must also carefully review

sure the person has not been unfairly prosecuted

Despite criticisms leveled by the ACLU and others, proponents of anti-gang laws adamantly support their use While some of these initiatives may prove ineffective, law enforcement should be given the chance to test new ways of addressing destructive elements within their communities Modifications can be made, and new initiatives plotted, but proponents insist that the law is necessary

to protect the health and safety of citizens FURTHER READINGS

Perez, Silvia 2001 “Alternatives in Fighting Street Gangs: Criminal Anti-Gang Ordi-nances v Public Nuisance Laws ” St Thomas Law Review 13 (winter): 619–40 Smith, Stephanie 2000 “Civil Banishment of Gang Members: Circumventing Criminal Due Process Requirements? ” University of Chicago Law Review 67 (fall): 1461–87 Vertinsky, Liza 1999 A Law and Economics Approach to Criminal Gangs Aldershot, England; Brookfield, Vt.: Ashgate.

GANGS 35

Trang 9

considered gang crimes and prohibits indivi-duals from recruiting members to join criminal street gangs

One of the most common forms of munici-pal ordinances aimed at reducing gang activities appears in the form of anti-loitering laws The use of these laws to reduce unwanted elements within a city has a long history Many cities have enacted such laws to allow police to arrest vagrants and others deemed to be menaces to society Several cities adapted these laws to apply specifically to gang members However, some courts have determined that these laws are unconstitutional either on their FACE or as applied to particular defendants

Local governmental entities have also enacted public nuisance laws designed to allow local law enforcement to enjoin criminal activities Like the anti-loitering ordinances, these laws have come under attack on a variety

of constitutional grounds

Constitutionality of Anti-Gang Laws

Laws aimed specifically at prosecuting members

of gangs have come under attack due to a variety of constitutional theories Anti-loitering laws have been challenged on some several grounds, including First Amendment prohibi-tions against vagueness and overbreadth,FOURTH AMENDMENT proscriptions of unreasonable searches and seizures, and constitutional provi-sions that prevent the government from punish-ing individuals merely because of their status

Vagueness has been the primary reason why the Supreme Court has determined that anti-loitering statutes have been unconstitutional In Coates v Cincinnati, 402 U.S 611, 91 S Ct

1686, 29 L Ed 2d 214 (1971), the Court determined that an ordinance prohibiting people from assembling on a sidewalk in such

a way that it would be annoying to passersby was unconstitutionally vague because its appli-cation was based on sole discretion of police officers to determine what was“annoying.” One year later, in Papachristou v City of Jacksonville,

405 U.S 156, 92 S Ct 839, 31 L Ed 2d 110 (1972), the Court held that an ordinance which encouraged arbitrary and erratic arrests was also unconstitutionally vague Likewise, in Kolender

v Lawson, 461 U.S 352, 103 S Ct 1855, 75 L

Ed 2d 903 (1983), the Court held that a California statute that allowed police to arrest individuals who could not show credible and

reliable identification and account for their presence at a particular location was unconsti-tutional due to vagueness

The Chicago City Council in 1992 enacted the Gang Congregation Ordinance that prohib-ited loitering among criminal street gang members at any public place The ordinance allowed police officers to order any group of individuals who were congregated “with no apparent purpose” to disperse if the officer believed one of the group was a street gang member In three years Chicago police issued more than 89,000 dispersal orders and made more than 42,000 arrests under the ordinance

In City of Chicago v Morales, the Supreme Court, per JusticeJOHN PAUL STEVENS, determined that the ordinance was unconstitutional due to vagueness for two primary reasons First, according to the Court, the ordinance failed to provide fair notice of prohibited conduct Noted the Court, “It is difficult to imagine how any citizen of the city of Chicago standing

in a public place with a group of people would know if he or she had an ‘apparent purpose’” under the ordinance Accordingly, citizens, even those who appeared in public with a gang member, were not provided fair notice of the type of conduct proscribed under the ordi-nance Second, the ordinance failed to provide minimum guidelines for enforcement The determination of whether individuals were standing around with no apparent purpose was based on the discretion of the officer After the 1992 gang ordinance was declared unconstitutional the city of Chicago enacted a second Gang Congregation Ordinance in 2000 The second ordinance authorizes police to command gang members to disperse when they are congregated on streets for the purpose of establishing control over certain areas of the city Other efforts to curb gang violence have been ruled constitutional In People ex rel Gallo v Acuna, 929 P.2d 596 (Cal 1997), the city of San Jose successfully requested anINJUNCTIONagainst local gangs based on violations of state public nuisance laws The gang members brought suit, challenging that both the statute and the injunction violated the First Amendment The California Supreme Court determined that neither the injunction nor the statute violated the gang members’ associational rights and that the gang members’ conduct qualified as a public nuisance under the statute Several cities in

36 GANGS

Trang 10

California have sought and received temporary

and permanent injunctions against local gangs

preventing the gang members from

congregat-ing in public places

Định dạng
Số trang	10
Dung lượng	268,02 KB