Georgia’s Street Gang Act 101

The existence of gangs in Georgia is a reality. However, Georgia gangs exist not only in highly urbanized areas but also in small towns and suburban places. Territories can be marked with graffiti, vandalism, as well as other methods. If these territories are disrespected by other gangs, gang wars can ensue.

Gangs have their own codes and cultures. Some gangs are organized and structured similar to governments. “Nations” are equivalent to States. “Sets” are equivalent to Cities. “Subsets” are comparable to Counties. Nation gangs present in Georgia are People, Folk, Sureños, and Norteños. Example of Sets in Georgia include Crips, Gangsta Discipline, Bloods, Latin Kings, Sur 13, and Norte 14. Other gangs are 30 Deep, Dirty White Boyz, Aryans, Young Choppa Fam (YCF), MS 13, 55 Mafia, Da Fam, Black Mobb, 18^th Street Gang, and MPRC 300.

There are also hybrid gangs who are less structured and are mostly composed of members from different gangs. Hybrid gangs are formed when members are relocated or when members join forces to execute specific gang activities.

Georgia Street Gang Terrorism and Prevention Act

To answer the growing number of gang-related street crimes, the Georgia General Assembly enacted Georgia Street Gang Terrorism and Prevention Act (Street Gang Act) now codified in OCGA 16-15-1et seq. The intent of the General Assembly is to eradicate criminal activities by street gangs who threaten, terrorize, and commit numerous crimes against peaceful citizens of their neighborhoods. The General Assembly claimed that gang activities put Georgia into a state of crisis.

The Street Gang Act makes it unlawful for any person associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any of the following offenses enumerated in OCGA 16-15-3(1):

• Racketeering,
• Offenses relating to stalking,
• Rape, aggravated sodomy, statutory rape, aggravated sexual battery,
• Offenses relating to escape and confinement,
• Offenses relating to dangerous instrumentalities and practices,
• Offenses relating to security of state or county correctional facilities,
• Aiding and assisting a child to escape from custody,
• Offenses of criminal trespass or criminal damage to property resulting from gang-related painting, tagging, writing, and creating form of graffiti on property of another,
• Offenses in violation of the laws of the United States and its territories, the laws of States, and the laws of foreign nations which can be considered criminal gang activity, and
• Criminal offenses in the State of Georgia, any other state, or the United States involving violence, possession and use of a weapon, whether designated as a felony or not and regardless of sentence that could be imposed.

In addition to the list of predicate offenses just mentioned, it is also unlawful to acquire money or property from a gang, to recruit new members, to retaliate against those who don’t want to join, to threaten damage or injury to persons who want to quit from a gang, to retaliate against those who want to testify against the gang, and to retaliate against those who inform law enforcers about gang activities.

Prosecuting Gang Activities

To be convicted under the Street Gang Act, the following “criminal gang activity” elements/components must be proven by the State:

1. Defendant is associated directly or indirectly with a group.

Mere association is not sufficient. The Street Gang Act does not criminalize membership in a group. Defendant must be shown to have actively participated in criminal street gang activity through commission of an actual criminal act. It is not the association that is punished but the actor.

2. The group is a criminal street gang.

There is criminal street gang association when three or more persons group themselves formally or informally in order to engage in criminal gang activity. The existence of and association with gangs are proven by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, attire, and other distinguishing characteristics which include common activities, customs, and behaviors. Examples of common identifying signs are tattoos in a particular part of the body depicting gang insignia, handshakes and gestures, and color-specific bandanas.

3. The defendant committed a criminal street gang activity.

Criminal gang activity is defined as the commission, attempted commission, conspiracy to commit, solicitation, coercion, or intimidation of another person to commit the offenses listed in OCGA 16-15-3 (1). (See the list of specific acts above).

4. The act was in furtherance of the interests of the gang.

There must be some nexus between defendant’s act and specific intent to further street gang activity. Defendants’ act must be an active participation in furthering the gang’s criminal interest. The prosecutor must present evidence that defendant has had specific intent of furthering the criminal purpose of the gang.

Protecting Gang Defendants

Defendants can defend themselves from prosecution and conviction by questioning the constitutionality of the Street Gang Act and by proving the absence of any of the elements of the criminal act alleged in the charge.

The constitutionality of the Street Gang Act was challenged in the case called Rodriguez v. State, 284 Ga. 803 (2009). The accused-appellants in the Rodriguez case claim that Street Gang Act is unconstitutional because it infringes upon the First Amendment right to freedom of association, is vague, and is overly broad under Federal and Georgia Constitutions.

The Georgia Supreme Court however uphold the constitutionality of the Street Gang Act. The Court said that it is not the intention of the Georgia General Assembly to interfere with the exercise of constitutionally protected rights of freedom of expression and association. The Court said that the General Assembly recognizes and protects the right of citizens to express their beliefs on any lawful subject and to associate lawfully with others who share the same beliefs. However, street gang activities that threaten and terrorize peaceful citizens pose clear and present dangers to public order and safety and are not constitutionally protected. The Court also explain that the Street Gang Act is not vague because the language and specific definitions provided in the Act offer sufficient and definite warning to persons of ordinary intelligence about the prohibited conducts. According to the Court, the wordings of the law are not susceptible to arbitrary interpretation and discriminatory enforcement. Lastly, the Court does not consider the Street Gang Act overly broad after considering the following factors which are related to the General Assembly’s declaration of policy against street gang crimes: legislative declaration of the compelling state interest, legislative exclusion of protected activities, definition of key terminologies, and requirements of active participation with knowledge and specific intent.Rodriguez v. State 284 Ga. 803 (2009).

Defendants can avoid “criminal gang activity” conviction by proving the absence of any of the elements/components enumerated above. One way of accomplishing this is by discrediting vital witnesses for the prosecution. Prosecution of gang-related activities more often than not requires testimony of gang experts. Gang experts can testify about the existence, unique culture, and interest of a particular gang, the association or connection of the defendants to that gang, and the defendants’ action that promotes the interests of that gang. Gang experts usually based their findings on field experience, personal dealings, and interviews with gang leaders and members. Gang experts also base their findings on pictures and videos gathered from social media posts of known gang members.

Defendants should question and cross-examine prosecution witnesses and gang experts in matters of gang’s leadership and membership, culture, territory, hand signs, graffiti symbols, primary activities, and history of violence in order to test the credibility and the depth of knowledge of the witnesses. Defendants must be aware that a lot of gang experts’ testimony might be considered hearsay because they are based on what gang leaders and members told them via field interviews. Gang experts also testify on their “own interpretation or analysis” of social media messages “posted by others.” Unless the gang experts presented are members or former members of the gangs involved, defendants should move to suppress or exclude any hearsay testimony relating to the gangs involved and their activities.

Justice in the ‘Hood

While the rise of the gang-related crime is a legitimate concern of every citizen in Georgia, over-zealous prosecution might lead to injustice to defendants. Injustice occurs in prosecuting gang-related activities when mere association with a group becomes a crime, when conviction by the jury is based specially on over-reliance on gang experts’ testimony, when additional penalty is imposed because of allegation of “gang activity” in the indictment, and when the same action gives rise to two or more charges because the Street Gang Act says so.

When you or someone you know is improperly charged with crimes related gang activities and you believe that injustice might result in the prosecution, do not hesitate to call Bixon Law at 404-551-5684.