Georgia Street Gang Activity
In 1992, the Georgia Legislature enacted a law that prohibited street gang activity, O.C.G.A. § 16-15-4. The purpose of this law was to deter membership in illicit organizations within the state of Georgia. While it is usually lawful to associate in groups within the United States, it is unlawful to associate with organizations that commit criminal acts or receive property through the commission of a criminal act.
Legal Definitions:
A criminal street gang means any association of three or more people, which engages in criminal gang activity. “Criminal street gang” was redefined in 1998 to eliminate the requirement of proof of an ongoing organization with a common name or identifying symbol.
Participating in Gang Activity or Acquiring Property Through Such Activity:
It is unlawful to:
(a) Be employed by or associated with a criminal street gang to conduct or participate in criminal gang activity
(c) Acquire or maintain, directly or indirectly, through criminal gang activity, proceeds derived from such gang-related activities.
Organizing, Supervising, or Managing Gang:
It is unlawful to:
(d) Occupy a position of organizer, supervisory position, or any other position of management or leadership and conspire to engage in criminal gang activity.
Recruiting Gang Members:
It is unlawful to:
(e) Cause, encourage, solicit, recruit, or coerce another to become a member or associate of a criminal street gang, to participate in a criminal street gang, or to conduct or participate in criminal gang activity.
(f) Threaten injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to deter such person from assisting a member or associate of a criminal street gang to withdraw from such criminal street gang.
Threatening Another With Intent to Retaliate for Member’s Withdrawal from Gang, for Person’s Refusal to Join Gang, or for Person’s Providing Evidence Against Gang:
It is unlawful to:
(g) Communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for providing statements or testimony against criminal street gangs or any criminal street gang member or associate.
Penalties
Any violation of any section O.C.G.A. § 16-15-4 will result in a felony charge. The mandatory minimum sentence for a violation the statute runs anywhere from two to five years. The maximum sentence any one person can receive for a violation of the statute is twenty years. The statute can be used as a sentence enhancement, or a criminal violation in itself. Notwithstanding, any violation of any other separate criminal act will be considered a separate offense.
Defenses
To be convicted of a violation of this statute the State of Georgia must prove beyond any reasonable doubt all elements of the offense. This includes the requirements that the association be deemed a criminal street gang by its legal definition. If the state cannot prove the intent to associate with a criminal street gang or organization, the prosecution will fail. If the state cannot prove the intent to commit a violation of the statute or any other separate offense, the prosecution will fail. If the state cannot prove a nexus between the violations of any separate offenses and the association with an illegal organization, the prosecution will fail. Because the statute is based in the law of conspiracy, voluntary abandonment from the criminal organization before any violation of the statute or any other criminal offense will absolve the defendant from all guilt. Voluntary abandonment from the criminal organization or gang after the occurrence of any violation of the statute or separate offense will not absolve the defendant of guilt however.
Constitutional issues
The statute is closely related to a federal statute known as RICO, or the Racketeer Influenced and Corrupt Organizations Act. Many states, including Georgia, have attempted to enact similar statutes. The Supreme Court of Georgia in Cisco v. State ruled that Georgia’s Racketeer Influenced and Corrupt Organizations Act was unconstitutional. Similar to Georgia’s gang activity statute, RICO was enacted in an effort to eradicate organized crime. The Supreme Court of Georgia refused to hold the gang activity statute unconstitutional in Rodriguez v. State. According to the court, “Criminal gang activity is not protected activity even when committed by a group exercising their constitutional right to free association.”
Notable Georgia Cases
Zamudio v. State, 771 S.E.2d 733 (2015)
A fight between a defendant, a gang member, and a victim was enough evidence to provide for a conviction under the criminal gang activity statute. The victim and victim’s friend, who were at scene, both testified that defendant was talking about “gang stuff” and mentioned gang before instigating fight. The defendant told the detective that victim did not “gang bang anymore” but used to be member of rival gang. The victim testified that he had previously been “put down as affiliated” with rival gang because he had contacts with members of that gang. Although the defendant denied going on “gang banger” missions, he went to victim’s house and initiated a fight in response to previous “act of disrespect” by the victim.
Morris v. State, 797 S.E.2d 207 (2017)
A defendant charged with the crimes of attempted armed robbery, aggravated assault, and aggravated battery were found to further the interests of gang in violation of the criminal gang activity statute. The state provided evidence of the defendant’s association with members of gang, evidence of defendant publicly displaying symbols and using language associated with a gang, evidence of gangs’ criminal activities, and evidence that just three days after the incident in question, the defendant’s co-defendant posted words and references commonly used by gang on social media.
If you or someone you know is charged under the Georgia Street Gang Activity statute, don’t hesitate to call Bixon Law at 404-551-5684. Michael Bixon is a dedicated and knowledgeable trial lawyer who cares for his clients.