A recent story in the New York Times shows how states are defining defendants’ “gang affiliation” very loosely to seek sentencing enhancements or to tie them to crimes they didn’t otherwise commit. If a person wears certain colors, uses certain phrases, is seen with certain people, or lives in certain places, then these factors can be used by prosecutors to argue that they are members of a gang, even when the person was simply trying to “blend in” or are being a poseur. In Florida, we even get articles like this one seemingly bemoaning Tampa’s lack of “legally recognized” gangs. According to the “expert” cited in the article, David Kennedy, Florida’s legal definition of gangs no longer works, and apparently the police need much looser definitions in order to punish suspected gang members.
So what makes a gang, at least legally speaking?
In Florida, a criminal gag is legally defined this way:
“Criminal gang” means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols, including, but not limited to, terrorist organizations and hate groups. F.S. 873.03(1).
And “gang-related activity is defined as this:
“Criminal gang-related activity” means:
(a) An activity committed with the intent to benefit, promote, or further the interests of a criminal gang, or for the purposes of increasing a person’s own standing or position within a criminal gang;
(b) An activity in which the participants are identified as criminal gang members or criminal gang associates acting individually or collectively to further any criminal purpose of a criminal gang;
(c) An activity that is identified as criminal gang activity by a documented reliable informant; or
(d) An activity that is identified as criminal gang activity by an informant of previously untested reliability and such identification is corroborated by independent information.
If a jury finds that a crime is gang-related then a sentencing enhancement is applied. Basically, the severity of the crime is moved up one level, making a second-degree misdemeanor a first-degree misdemeanor, a first-degree misdemeanor a third-degree felony, and so forth.
Florida law identifies a “criminal gang associate” as a person who meets one of these criteria:
(a) Admits to criminal gang membership.
(b) Is identified as a criminal gang member by a parent or guardian.
(c) Is identified as a criminal gang member by a documented reliable informant.
(d) Adopts the style of dress of a criminal gang.
(e) Adopts the use of a hand sign identified as used by a criminal gang.
(f) Has a tattoo identified as used by a criminal gang.
(g) Associates with one or more known criminal gang members.
(h) Is identified as a criminal gang member by an informant of previously untested reliability and such identification is corroborated by independent information.
(i) Is identified as a criminal gang member by physical evidence.
(j) Has been observed in the company of one or more known criminal gang members four or more times. Observation in a custodial setting requires a willful association. It is the intent of the Legislature to allow this criterion to be used to identify gang members who recruit and organize in jails, prisons, and other detention settings.
(k) Has authored any communication indicating responsibility for the commission of any crime by the criminal gang.
To achieve “membership” status, a person just has to meet two of those criteria. So getting a gang-style tattoo and wearing clothes similar to those gang members wear legally makes you a gang member, even if you’ve never even hung out with other gang members. Here’s the reality: Florida’s definition is loose enough. We don’t need the police to be slapping the “gang” label on groups of ethnically similar people willy-nilly.