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CH-12CriminalLaw.pptx
Chapter 12: Crimes against the Public
The state has not only a right to “maintain a decent society” but an obligation to do so. In the public nuisance context, the community’s right to security and protection must be reconciled with the individual’s right to expressive and associative freedom. Reconciliation begins with the acknowledgment that the interests of the community are not invariably less important than the freedom of individuals.
—People v. Acuna, cited in Section 12 “Civil Responses to Gang Activity”
Source: Image courtesy of Tara Storm.
Chapter 12: Learning Objectives
Define the criminal act element required for disorderly conduct.
Define the criminal intent element required for disorderly conduct.
Define the attendant circumstance required for disorderly conduct.
Identify potential constitutional challenges to disorderly conduct statutes.
Analyze disorderly conduct grading.
Identify potential constitutional challenges to vagrancy statutes.
Identify potential constitutional challenges to loitering statutes.
Define the elements of loitering, and analyze loitering grading.
Compare sit-lie laws to loitering statutes.
Chapter 12: Learning Objectives
Define the elements of unlawful assembly and failure to disperse.
Identify potential constitutional challenges to unlawful assembly and failure to disperse statutes.
Analyze unlawful assembly and failure to disperse grading.
Define the elements of riot, and analyze riot grading and the potential for constitutional challenges to riot statutes.
Define criminal gang and criminal gang member.
Compare gang participation and gang-enhancement statutes.
Analyze two civil responses to the criminal gang problem.
Identify potential constitutional challenges to gang activity statutes.
Chapter 12: Learning Objectives
Identify the sources of federal and state drug laws.
Describe a drug schedule.
Analyze various drug crimes and their grading.
Identify two modern trends in state drug crimes statutes.
Identify a potential constitutional challenge to a state’s medical marijuana statute.
Analyze prostitution, pimping, and pandering and their grading.
12.1 Quality-of-Life Crimes
Crimes against the public include offenses that affect the quality of life, group violence such as gang activity, and vice crimes. Because quality-of-life crimes are often based on moral or value judgments, these offenses tend to target the poor and downtrodden.
If the conduct prohibited involves an individual’s status in society, assembling, or speech, the First and Fourteenth Amendments require a narrowly tailored statute supported by a compelling government interest. This creates a conflict between legislators trying to ensure peace and tranquility for citizens and judges upholding the many individual protections included in the Bill of Rights.
The quality-of-life offenses discussed are disorderly conduct, vagrancy, and loitering. Upcoming sections analyze crimes involving group activity, such as unlawful assembly and riot, along with the ever-growing problem of criminal gangs, and novel criminal and civil responses. The final section of this chapter discusses common vice crimes, including possession, sale, and use of controlled substances and prostitution.
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12.1 Quality-of-Life Crimes - Disorderly Conduct
Disorderly conduct, also called disturbing the peace, criminalizes conduct that negatively impacts the quality of life for citizens in any given city, county, or state. Although disorderly conduct is typically a low-level offense, the enforcement of disorderly conduct statutes is important to preserve citizens’ ability to live, work, and travel in safety and comfort.
Disorderly conduct has the elements of:
criminal act,
criminal intent, and
an attendant circumstance
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12.1 Quality-of-Life Crimes – Texas Penal Code Disorderly Conduct
Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
(3) creates, by chemical means, a noxious and unreasonable odor in a public place;
(4) abuses or threatens a person in a public place in an obviously offensive manner;
(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
(6) fights with another in a public place;
(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
(9) discharges a firearm on or across a public road;
(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or
(11) for a lewd or unlawful purpose:
(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;
(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person's own through a window or other opening in the room; or
(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.
Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
(3) creates, by chemical means, a noxious and unreasonable odor in a public place;
(4) abuses or threatens a person in a public place in an obviously offensive manner;
(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
(6) fights with another in a public place;
(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
(9) discharges a firearm on or across a public road;
(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or
(11) for a lewd or unlawful purpose:
(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;
(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person's own through a window or other opening in the room; or
(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.
(a-1) For purposes of Subsection (a), the term "public place“ includes a public school campus or the school grounds on which a public school is located.
(b) It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.
(c) For purposes of this section:
(1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and
(2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.
(d) An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.
(e) It is a defense to prosecution for an offense under Subsection (a)(7) or (9) that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal as defined by Section 822.101, Health and
Safety Code.
(f) Subsections (a)(1), (2), (3), (5), and (6) do not apply to a person who, at the time the person engaged in conduct prohibited under the applicable subdivision, was a student younger than 12 years of age, and the prohibited conduct occurred at a public school campus during regular school hours.
(g) Noise arising from space flight activities, as defined by Section 100A.001, Civil Practice and Remedies Code, if lawfully conducted, does not constitute "unreasonable noise" for purposes of
this section.
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12.1 Quality-of-Life Crimes - Disorderly Conduct Act
Three criminal acts generally are identified in any disorderly conduct statute. The defendant must either
(1) make a loud and unreasonable noise, obscene utterance, or gesture,
(2) engage in fighting or threatening, or state fighting words, or
(3) create a hazardous condition by an act that does not serve a legitimate purpose (18 Pa. C. S. § 5503, 2011).
The Model Penal Code defines disorderly conduct as engaging in fighting or threatening or violent tumultuous behavior, making unreasonable noise or an offensively course utterance, gesture, or display, addressing abusive language to any person present, or creating a hazardous or physically offensive condition by an act that serves no legitimate purpose (Model Penal Code § 250.2).
When the criminal act is a loud and unreasonable noise, the quality of the noise is judged in the setting where the noise occurred. A noise made in an extremely quiet area can be softer than a noise made in a loud and busy area like a city street during peak hours (Haw. Rev. Stat. § 711-1101(2), 2011).
The term “hazardous condition” generally refers to a situation that is dangerous and poses a risk of injury to others in the vicinity of the defendant’s conduct (Wolfe v. State, 2011).
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12.1 Quality-of-Life Crimes - Example of Disorderly Conduct Act
David and Daniel leave a party in a quiet neighborhood at three in the morning. Both are inebriated. After walking a couple of blocks and telling stories, they begin singing loudly with their arms wrapped around each other. David stumbles and trips Daniel, who falls heavily to the sidewalk. Daniel gets up and starts screaming and swearing at David, challenging him to fight. David yells back, “Bring it on!” David pushes Daniel, he pushes back, and they begin punching and kicking.
In this instance, David and Daniel have probably committed three separate disorderly conduct offenses. When David and Daniel began singing at three in the morning on a quiet street, they made a loud and unreasonable noise. When they challenged each other to fight, they uttered threats or stated fighting words. When they engaged in a fistfight, they committed fighting, or created a hazardous condition.
Thus David and Daniel are most likely subject to a prosecution for and conviction of three counts of disorderly conduct in many jurisdictions.
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12.1 Quality-of-Life Crimes - Disorderly Conduct Intent
The criminal intent element required for disorderly conduct in many jurisdictions is the specific intent or purposely to cause public inconvenience, annoyance, or alarm, or the reckless intent to cause a risk thereof (Ala. Code § 13A-11-7, 2011). The Model Penal Code has the same criminal intent requirement (Model Penal Code § 250.2(1)).
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12.1 Quality-of-Life Crimes - Example of Disorderly Conduct Intent
Review the example given in Section 12 “Example of Disorderly Conduct Act” with David and Daniel. David and Daniel may not have had the specific intent to cause public inconvenience, annoyance, or alarm; however, their behavior in a quiet neighborhood late at night displays the reckless intent to cause a risk of such inconvenience, annoyance, or alarm. Although David and Daniel are inebriated, recall from Chapter 6 “Criminal Defenses, Part 2” that intoxication is not generally a defense to a reckless intent crime. Thus a trier of fact could find that David and Daniel have the appropriate criminal intent for disorderly conduct, and they may both be subject to conviction of this offense.
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12.1 Quality-of-Life Crimes - Disorderly Conduct Attendant Circumstance
In many jurisdictions, disorderly conduct requires the attendant circumstance that the conduct occur in a public place (Tex. Penal Code § 42.01, 2011). This goes along with the purposeful or reckless intent to inconvenience, annoy, or alarm the public, or create a risk thereof. The Model Penal Code defines public as “affecting or likely to affect persons in a place to which the public or a substantial group has access…highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood” (Model Penal Code § 250.2).
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12.1 Quality-of-Life Crimes - Example of Disorderly Conduct Attendant Circumstance
Review the example in Section 12 “Example of Disorderly Conduct Act” with David and Daniel. David and Daniel commit their acts of loud and unreasonable noise, threats, fighting words, fighting, and creating a hazardous condition on a sidewalk in a neighborhood.
Thus in jurisdictions that require the disorderly conduct attendant circumstance of a public place, David and Daniel may be subject to prosecution for and conviction of this offense.
If David and Daniel committed exactly the same acts in a private residence located on fifty acres with no neighbors for miles, the attendant circumstance for disorderly conduct would be lacking, along with the criminal intent to annoy, inconvenience, or alarm the public.
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12.1 Quality-of-Life Crimes - Potential Constitutional Challenges to Disorderly Conduct Statutes
Because disorderly conduct statutes often criminalize obscene gestures and words, threats, and fighting words, they are subject to constitutional challenges under the First and Fourteenth Amendments.
However, not all speech is protected under the First Amendment. As Chapter 3 “Constitutional Protections” discusses in detail, it is constitutional to regulate obscenity, true threats, and fighting words.
Nonetheless, any statute criminalizing speech or expression is subject to strict scrutiny, must be narrowly drafted, and supported by a compelling government interest.
Thus two common grounds for challenging disorderly conduct statutes are void for vagueness and overbreadth (Colten v. Kentucky, 2011).
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12.1 Quality-of-Life Crimes - Example of a Disorderly Conduct Statute That Is Unconstitutional
A state legislature enacts a disorderly conduct statute that prohibits “making rude and annoying comments to another.” This statute is most unlikely unconstitutional under the First and Fourteenth Amendments.
The words rude and annoying are ambiguous, which could lead to uneven application by law enforcement and a failure to provide adequate notice to the public of what is criminal. Therefore, the statute can be stricken as void for vagueness.
In addition, rude and annoying comments are not necessarily fighting words, true threats, or obscenity, so they could be protected under the First Amendment.
This means that the statute could also be stricken as overbroad because it includes protected and unprotected conduct within its parameters. For a fuller and more detailed description of void for vagueness and overbreadth constitutional challenges, please refer to Chapter 3 “Constitutional Protections”.
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12.1 Quality-of-Life Crimes - Disorderly Conduct Grading
As stated previously, disorderly conduct is a low-level offense that is typically graded as a misdemeanor (N.C. Gen. Stat. § 14-132). The Model Penal Code grades disorderly conduct as a petty misdemeanor if the defendant’s purpose is to cause substantial harm or serious inconvenience or if the defendant persists with his or her conduct after a warning. Otherwise, the Model Penal Code grades disorderly conduct as a violation (Model Penal Code § 250.2(2)).
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12.1 Quality-of-Life Crimes - Vagrancy and Loitering
Although the government technically does not have an interest in punishing individuals for who they are, such as an impoverished person or a transient, the public perception of law enforcement is often affected by the presence of so-called vagrants and panhandlers in any given area.
Thus virtually every jurisdiction has statutes punishing either vagrancy or loitering. However, these statutes are subject to constitutional attack if they are void for vagueness, overbroad, or target status.
Historically, vagrancy statutes were broadly drafted to allow law enforcement considerable discretion in arresting the unemployed, gamblers, drug addicts, alcoholics, and those who frequented houses of prostitution or other locations of ill repute. In a sense, vagrancy statutes attempted to incapacitate individuals before they engaged in criminal activity, to ensure the safety and security of any given area.
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12.1 Quality-of-Life Crimes - Vagrancy and Loitering
In 1972, the US Supreme Court struck down a Florida vagranc statute in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The Court held that the statute, which prohibited night walking, living off one’s spouse, and frequenting bars or liquor stores was void for vagueness and violated the due process clause in the Fourteenth Amendment.
Thereafter, many states repealed or modified vagrancy statutes in lieu of more precisely drafted statutes prohibiting specific criminal conduct such as loitering. The Model Penal Code prohibits public drunkenness and drug incapacitation (Model Penal Code § 250.5) and loitering or prowling (Model Penal Code § 250.6).
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12.1 Quality-of-Life Crimes - Vagrancy and Loitering
In a jurisdiction that criminalizes loitering, the criminal act element is typically loitering, wandering, or remaining, with the specific intent or purposely to gamble, beg, or engage in prostitution (Ala. Code § 13A-11-9, 2011). An attendant circumstance could specify the location where the conduct takes place, such as a school or transportation facility (Ariz. Rev. Stat. § 13-2905, 2011).
Another common attendant circumstance is being masked in a public place while loitering, with an exception for defendants going to a masquerade party or participating in a public parade (Ala. Code § 13A-11-9, 2011).
The Model Penal Code prohibits loitering or prowling in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity (Model Penal Code § 250.6).
Loitering is generally graded as a misdemeanor (Ariz. Rev. Stat. § 13-2905, 2011) or a violation (Ala. Code § 13A-11-9, 2011). The Model Penal Code grades loitering as a violation (Model Penal Code § 250.6).
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12.1 Quality-of-Life Crimes - Vagrancy and Loitering
Many jurisdictions also criminalize panhandling or begging.
Panhandling statutes essentially criminalize speech, so they must be narrowly tailored to avoid successful constitutional challenges based on the First Amendment, void for vagueness, or overbreadth.
Constitutional panhandling statutes generally proscribe aggressive conduct (Gresham v. Peterson, 2011) or conduct that blocks public access or the normal flow of traffic.
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12.1 Quality-of-Life Crimes - Vagrancy and Loitering
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12.1 Quality-of-Life Crimes - Sit-Lie Laws
One modern statutory approach to preventing homeless individuals and transients from congregating in cities and affecting the quality of life or the prosperity of businesses and tourism are sit-lie laws. Sit-lie laws prohibit sitting or lying on public streets and sidewalks and thereby encourage individuals to move about, rather than block access to businesses, roadways, or transportation facilities.
If precisely drafted, sit-lie laws could resemble constitutional loitering statutes, substituting sitting or lying down for the criminal act of loitering, wandering, or remaining.
However, these statutes are susceptible to the same constitutional challenges as vagrancy and loitering statutes because they target the impoverished, addicts, and the unemployed.
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12.1 Quality-of-Life Crimes - Sit-Lie Laws
Seattle was the first city in the United States to enact a sit-lie ordinance in 1993 that prohibited sitting or lying on a public sidewalk between the hours of 7 a.m. and 9 p.m. in Seattle’s downtown area. The ordinance was attacked and ultimately upheld by the US Court of Appeals for the Ninth Circuit in 1996 (Knight, H., 2011).
Los Angeles thereafter enacted a more comprehensive ordinance that banned sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles city limits. This ordinance was stricken by the same court as unconstitutional cruel and unusual punishment pursuant to the Eighth Amendment (Jones v. City of Los Angeles, 2011). The court held that the homeless in Los Angeles far outnumbered the amount of space available in homeless shelters, and therefore the ordinance punished defendants for conduct that was involuntary.
Portland followed Los Angeles with a sidewalk-obstruction ordinance, requiring individuals to keep their personal belongings within two feet of their bodies. This ordinance was stricken as void for vagueness in 2009 (Davis, M., 2011).
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12.1 Quality-of-Life Crimes - Sit-Lie Laws
The most recent enactment of a sit-lie ordinance took place in San Francisco in 2010. The San Francisco ordinance is modeled after the Seattle ordinance and prohibits sitting or lying on a public sidewalk in the city limits between 7 a.m. and 9 p.m., with exceptions for medical emergencies, protests, or those who have disabilities (San Francisco Police Code § 16.8, 2011). The first offense is an infraction, and the second offense is a misdemeanor (San Francisco Police Code § 16.8, 2011). If the San Francisco ordinance successfully reduces the presence of transients and is upheld as constitutional, other cities that desire the same results could soon follow suit.
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12.1 Quality-of-Life Crimes - Table 12.1 Comparing Disorderly Conduct, Loitering, and Sit-Lie Laws
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12.2 Crimes Targeting Group Conduct
Group conduct, if criminal, can enhance the potential for violence and injury and is punishable as the crimes of unlawful assembly, riot, or criminal gangs.
However, the right to peacefully assemble is guaranteed in the First Amendment, so statutes codifying these offenses can be subject to constitutional attack similar to disorderly conduct, vagrancy, and loitering statutes.
In addition, the problem of criminal gangs has proven to be so stubborn that it has produced some novel criminal and civil responses.
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12.2 Crimes Targeting Group Conduct - Unlawful Assembly and Failure to Disperse
Unlawful assembly can be the predicate offense to riot, which is discussed shortly. The elements required for unlawful assembly are the assembling (Ala. Code § 13A-11-5, 2011) or meeting (Fla. Stat. Ann. § 870.02, 2011) (criminal act) of a group, with the specific intent or purposely to commit a breach of the peace, some other unlawful act (Fla. Stat. Ann. § 870.02, 2011), or riot (Ala. Code § 13A-11-5, 2011).
Some jurisdictions and the Model Penal Code punish the failure to disperse (criminal act) when a peace officer or public servant orders a group participating in disorderly conduct likely to cause substantial harm, serious annoyance, or alarm to do so (Mass. Gen. Laws ch. 269 § 1, 2011) (Model Penal Code § 250.1(2)). The criminal intent element for failure to disperse is general intent or knowingly (N.J. Stat. § 2C:33-1, 2011) (Model Penal Code § 250.1(2)).
Jurisdictions vary as to the attendant circumstance for unlawful assembly and failure to disperse, which is the size of the group. Some common group minimums are two (Cal. Penal Code § 407, 2011), three (Fla. Stat. Ann. § 870.02, 2011), or five (N.J. Stat. § 2C:33-1, 2011). The Model Penal Code requires three or more persons (Model Penal Code § 250.1(2)).
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12.2 Crimes Targeting Group Conduct - Example of Unlawful Assembly and Failure to Disperse
Six neighbors are sitting on their porches, peacefully chatting. One of the neighbors, Buck, notices a pro-choice group with signs in the park across the street. Annoyed, Buck tells the group, “Let’s go show those losers what it’s like to fear for your life!” He marches angrily over to the park, and the other neighbors follow. Buck begins chanting, “How would you like to be aborted?” and the other neighbors join in. The individuals in the pro-choice group stand their ground, and the decibel of the chanting increases. Buck and his neighbors form a ring around the group and move in closer, almost touching the individuals and their signs. A park ranger hears the noise, walks over to Buck and his neighbors, and tells them to “move along.” Buck spits at the ranger’s feet and starts up the chant again. The other neighbors laugh and join him.
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12.2 Crimes Targeting Group Conduct - Example of Unlawful Assembly and Failure to Disperse
In this scenario, Buck and his neighbors have most likely committed unlawful assembly and failure to disperse in many jurisdictions.
Buck and his neighbors number six, which generally meets the minimum unlawful assembly and failure to disperse attendant circumstance requirement.
When Buck and his neighbors go to the park in a group, they are assembling. Their chant, “How would you like to be aborted?” is directed at a pro-choice group, so it is evident that Buck and his neighbors have the specific intent or purposely to cause a breach of the peace.
In addition, the increasing decibel of the chanting and the neighbors’ close proximity to the pro-choice group indicates an intent to intimidate, threaten, and possibly commit an unlawful act such as false imprisonment, assault, battery, or riot.
When the park ranger, who is most likely a peace officer, tells Buck and his neighbors to “move along,” he is ordering them to disperse. Buck’s response in spitting at the ranger’s feet and starting up the chant again is probably a failure to disperse committed with general intent or knowingly. Thus Buck and his neighbors may be subject to prosecution for and conviction of both of these offenses in many jurisdictions.
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12.2 Crimes Targeting Group Conduct - Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes
The offenses of unlawful assembly and failure to disperse target conduct that, if peaceful, is protected by the First Amendment. Therefore, similar to disorderly conduct offenses, statutes proscribing this type of conduct are subject to strict scrutiny, must be narrowly tailored, and must be supported by a compelling government interest, or they are vulnerable to attack under the First Amendment (People v. Sanchez, 2011) or as void for vagueness and overbroad.
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12.2 Crimes Targeting Group Conduct - Figure 12.4 Potential Constitutional Challenges to Unlawful Assembly and Failure to Disperse Statutes
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12.2 Crimes Targeting Group Conduct - Unlawful Assembly and Failure to Disperse Grading
Unlawful assembly and failure to disperse are generally graded as misdemeanors (Ala. Code § 13A-11-5, 2011).
The Model Penal Code grades failure to disperse as a misdemeanor (Model Penal Code § 250.1(2)).
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12.2 Crimes Targeting Group Conduct - Riot
Riot can be the result of an unlawful assembly that escalates, an incitement to riot (discussed in Chapter 3 “Constitutional Protections”), or can occur spontaneously without any planning or predicate activity.
The criminal act element required for riot in many jurisdictions is group commission of an unlawful act of violence or a lawful act in a violent and tumultuous manner (Ga. Code tit. 16 § 16-11-30, 2011).
The Model Penal Code criminalizes riot when a group participates in a course of disorderly conduct (Model Penal Code § 250.1). The criminal intent element for riot varies, depending on the jurisdiction.
Some jurisdictions and the Model Penal Code require specific intent or purposely to commit or facilitate a felony or misdemeanor, or to prevent or coerce official action, or general intent or knowledge that anyone plans to use a firearm or deadly weapon (N.J. Stat. § 2C:33-1, 2011) (Model Penal Code § 250.1).
Others make riot a strict liability offense (Cal. Penal Code § 404, 2011; Ga. Code tit. 16 § 16-11-30). In many jurisdictions, riot also has the requirement that the defendant(s) be the factual and legal cause of harm, which is public terror and alarm or a risk thereof (Ala. Code § 13A-11-3, 2011).
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12.1 Quality-of-Life Crimes – Texas Penal Code Riot
Sec. 42.02. RIOT. (a) For the purpose of this section, "riot“ means the assemblage of seven or more persons resulting in conduct which:
(1) creates an immediate danger of damage to property or injury to persons;
(2) substantially obstructs law enforcement or other governmental functions or services; or
(3) by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.
(b) A person commits an offense if he knowingly participates in a riot.
(c) It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct enumerated in Subsection
(a), the actor retired from the assembly.
(d) It is no defense to prosecution under this section that another who was a party to the riot has been acquitted, has not been arrested, prosecuted, or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
(e) Except as provided in Subsection (f), an offense under this section is a Class B misdemeanor.
(f) An offense under this section is an offense of the same classification as any offense of a higher grade committed by anyone engaged in the riot if the offense was:
(1) in the furtherance of the purpose of the assembly; or
(2) an offense which should have been anticipated as a result of the assembly.
Sec. 42.02. RIOT. (a) For the purpose of this section, "riot“ means the assemblage of seven or more persons resulting in conduct which:
(1) creates an immediate danger of damage to property or injury to persons;
(2) substantially obstructs law enforcement or other governmental functions or services; or
(3) by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.
(b) A person commits an offense if he knowingly participates in a riot.
(c) It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct enumerated in Subsection
(a), the actor retired from the assembly.
(d) It is no defense to prosecution under this section that another who was a party to the riot has been acquitted, has not been arrested, prosecuted, or convicted, has been convicted of a different
offense or of a different type or class of offense, or is immune from prosecution.
(e) Except as provided in Subsection (f), an offense under this section is a Class B misdemeanor.
(f) An offense under this section is an offense of the same classification as any offense of a higher grade committed by anyone engaged in the riot if the offense was:
(1) in the furtherance of the purpose of the assembly; or
(2) an offense which should have been anticipated as a result of the assembly.
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12.2 Crimes Targeting Group Conduct - Riot
Jurisdictions vary as to the attendant circumstance for riot, which is the size of the group. Some common group minimums are two (Ga. Code tit. 16 § 16-11-30, 2011), five (N.J. Stat. § 2C:33-1, 2011), and six (Ala. Code § 13A-11-3, 2011). The Model Penal Code requires three or more persons (Model Penal Code § 250.1).
Riot is graded as a misdemeanor (Ala. Code § 13A-11-3, 2011), or a felony if a firearm is used (Va. Code Ann. § 18.2-405, 2011) or there is property damage or physical injury to an individual other than the defendants (N.Y. Penal § 240.06, 2011). The Model Penal Code grades riot as a felony of the third degree (Model Penal Code § 250.1).
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12.2 Crimes Targeting Group Conduct - Example of Riot
Review the example with Buck and his neighbors in Section 12 “Example of Unlawful Assembly and Failure to Disperse”. Assume that after the park ranger orders Buck and his neighbors to disperse, Buck spits at the ranger’s feet, continues chanting, and thereafter becomes so enraged that he grabs a sign out of one of the prochoice individual’s hands and begins beating him over the head with it. The other neighbors follow suit and within minutes they are all wielding signs and hitting the pro-choice individuals with them.
In this scenario, Buck and his neighbors have most likely committed riot. Buck and his neighbors number six, which meets the minimum group requirement in many riot statutes. Buck and his neighbors have also assaulted and battered some of the pro-choice individuals, which are unlawful acts of violence.
The statement made by Buck about showing the prochoice group what it means to fear for your life indicates a specific intent or purposely to commit a felony or misdemeanor, which is the intent requirement in many jurisdictions. If the riot statute in Buck’s state requires factual and legal causation and the harm of public terror and alarm, the beating constitutes the causation and harm requirement.
Thus Buck and his neighbors’ conduct probably falls within the parameters of most riot statutes, and Buck and his neighbors may be subject to prosecution for and conviction of this offense in many jurisdictions.
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12.2 Crimes Targeting Group Conduct - Potential Constitutional Challenges to Riot Statutes
Because statutes criminalizing riot include the requirement of force or violence, they do not target protected conduct under the First Amendment and are not as prone to a constitutional challenge. Of course, any criminal statute must be precisely drafted so that it is not void for vagueness. However, riot statutes are not generally subject to strict scrutiny because the First Amendment does not include forceful or violent expression within the definition of speech.
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12.2 Crimes Targeting Group Conduct - Criminal Gangs
Many jurisdictions have statutes, both criminal and civil, that address the ongoing dilemma of criminal gangs. However, gang activity remains a problem in major cities and even smaller, rural areas. Criminal gangs can create a stigma that attaches to a location, affecting property values and residents’ attitudes about the effectiveness of law enforcement and the justice system in general.
Commentators and legislators differ as to the most effective remedies for the gang problem, leading to a plethora of diverse statutory responses.
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12.1 Quality-of-Life Crimes – Texas Penal Code – Organized Crime - Definitions
Sec. 71.01. DEFINITIONS. In this chapter,
(a) "Combination" means three or more persons who collaborate in carrying on criminal activities, although:
(1) participants may not know each other's identity;
(2) membership in the combination may change from time to time; and
(3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations.
(b) "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.
(c) "Profits" means property constituting or derived from any proceeds obtained, directly or indirectly, from an offense listed in
Section 71.02.
(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal
Sec. 71.01. DEFINITIONS. In this chapter,
(a) "Combination" means three or more persons who collaborate in carrying on criminal activities, although:
(1) participants may not know each other's identity;
(2) membership in the combination may change from time to time; and
(3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations.
(b) "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.
(c) "Profits" means property constituting or derived from any proceeds obtained, directly or indirectly, from an offense listed in
Section 71.02.
(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal
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12.1 Quality-of-Life Crimes – Texas Penal Code – Engaging in Organized Criminal Activity
Sec. 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY. (a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following: (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05 or 20.06; or
(18) any offense classified as a felony under the Tax Code.
Sec. 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY. (a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following: (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05 or 20.06; or
(18) any offense classified as a felony under the Tax Code.
(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal
Justice for:
(1) life without parole, if the most serious offense is an aggravated sexual assault and if at the time of that offense the
defendant is 18 years of age or older and:
(A) the victim of the offense is younger than six years of age;
(B) the victim of the offense is younger than 14 years of age and the actor commits the offense in a manner described by Section 22.021(a)(2)(A); or
(C) the victim of the offense is younger than 17 years of age and suffered serious bodily injury as a result of the offense;
(2) life or for any term of not more than 99 years or less than 30 years if the most serious offense is an offense under Section 20.06 that is punishable under Subsection (g) of that section; or
(3) life or for any term of not more than 99 years or less than 15 years if the most serious offense is an offense punishable as a felony of the first degree, other than an offense described by Subdivision (1) or (2).
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.
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12.1 Quality-of-Life Crimes – Texas Penal Code – Engaging in Organized Criminal Activity Grading
(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for:
(1) life without parole, if the most serious offense is an aggravated sexual assault and if at the time of that offense the defendant is 18 years of age or older and:
(A) the victim of the offense is younger than six years of age;
(B) the victim of the offense is younger than 14 years of age and the actor commits the offense in a manner described by Section 22.021(a)(2)(A); or
(C) the victim of the offense is younger than 17 years of age and suffered serious bodily injury as a result of the offense;
(2) life or for any term of not more than 99 years or less than 30 years if the most serious offense is an offense under Section 20.06 that is punishable under Subsection (g) of that section; or
(3) life or for any term of not more than 99 years or less than 15 years if the most serious offense is an offense punishable as a felony of the first degree, other than an offense described by Subdivision (1) or (2).
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.
Sec. 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY. (a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following: (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05 or 20.06; or
(18) any offense classified as a felony under the Tax Code.
(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal
Justice for:
(1) life without parole, if the most serious offense is an aggravated sexual assault and if at the time of that offense the
defendant is 18 years of age or older and:
(A) the victim of the offense is younger than six years of age;
(B) the victim of the offense is younger than 14 years of age and the actor commits the offense in a manner described by Section 22.021(a)(2)(A); or
(C) the victim of the offense is younger than 17 years of age and suffered serious bodily injury as a result of the offense;
(2) life or for any term of not more than 99 years or less than 30 years if the most serious offense is an offense under Section 20.06 that is punishable under Subsection (g) of that section; or
(3) life or for any term of not more than 99 years or less than 15 years if the most serious offense is an offense punishable as a felony of the first degree, other than an offense described by Subdivision (1) or (2).
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.
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12.2 Crimes Targeting Group Conduct - Criminal Gang Definitions
It is important for a jurisdiction’s gang statute to define criminal gang and criminal gang member precisely, to avoid constitutional challenges under the First Amendment or void for vagueness and overbreadth. This is because gang membership involves assembly, which, if peaceful, is protected under the First Amendment.
Federal law defines a criminal street gang as an ongoing group, club, organization, or association of five or more that has as one of its primary purposes the commission of specific criminal offenses or activities that affect interstate or foreign commerce (18 U.S.C. 521(a), 2011).
Federal law defines a gang member as someone who participates in a criminal street gang with the general intent or knowledge that its members engage in a continuing series of specified crimes, or an individual who intends to promote or further the felonious activities of the criminal street gang (18 U.S.C. 521(d), 2011).
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12.2 Crimes Targeting Group Conduct - Criminal Gang Definitions
One representative state statutory definition of criminal gang is a group of three or more persons who have in common a name, identifying sign, symbol, tattoo, style of dress, or use of hand signs and who have committed or attempted to commit specified crimes for the benefit of the group (Alaska Stat. § 11.81.900, 2011).
Criminal gang member could be statutorily defined as any person who engages in a pattern of criminal gang activity and who meets two or more of the following criteria: (1) admits to gang membership; (2) is identified as a gang member; (3) resides in or frequents a particular gang’s area and adopts its style of dress, use of hand signs, or tattoos; (3) associates with known gang members; or (4) has been arrested more than once in the company of identified gang members for offenses consistent with gang activity (Idaho Code Ann. § 18-8502(2), 2011).
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12.2 Crimes Targeting Group Conduct - Example of Criminal Gang Definitions
The North Side Boys are a group of fifty-five members who have a special tattoo, wear the colors black and white daily, and pride themselves on their illegal controlled substances distribution. Mike decides he wants to be a North Side Boy.
Mike participates in a special initiation process that includes selling a specified quantity of an illegal controlled substance in a certain location over a period of two weeks. After Mike completes the initiation, he gets the North Side Boys’ tattoo, wears the North Side Boys’ colors daily, and spends all his time with the North Side Boys, hanging out and also contributing to their illegal activities. T
he North Side Boys probably meets the criteria for a criminal gang, and Mike is most likely a criminal gang member under many modern statutes. The North Side Boys has an identifiable tattoo and style of dress and furthers a criminal activity, which is the distribution of illegal controlled substances.
Mike can be identified as a gang member by other North Side Boys members, frequents the North Side Boys’ gang area, and adopts the gang’s style of dress and tattoos along with furthering its criminal enterprise. Thus the North Side Boys and Mike fit the definition of criminal gang and gang member in many jurisdictions, and Mike may be subject to prosecution for and conviction of criminal gang activity if he commits crimes at the direction of or in furtherance of the gang, as is analyzed in Section 12 “Criminal Gang Activity”.
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12.2 Crimes Targeting Group Conduct - Criminal Gang Activity
States generally criminalize gang participation (Ohio Rev. Code Ann. § 2923.42, 2011), enhance the penalty for a crime when it is committed in furtherance of a gang (Fla. Stat. Ann. § 874.04, 2011), or both (Cal. Penal Code § 186.22). If a state enacts a gang participation statute, the criminal act element is generally described as actively participating in a criminal gang and promoting, furthering, or assisting in any felony, with the general intent or knowingly that members of the gang engage in a pattern of criminal gang activity (Del. Code Ann. tit. 11 § 616, 2011).
Gang participation is generally graded as a felony (Del. Code Ann. tit. 11 § 616, 2011). Gang enhancement statutes enhance the defendant’s sentence for actually committing a misdemeanor or felony with the specific intent or purposely to benefit, promote, or further the interests of the criminal gang (Fla. Stat. Ann. § 874.04, 2011). Some jurisdictions only provide gang enhancement for the commission of a felony (Del. Code. Ann. tit. 11 § 616, 2011).
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12.2 Crimes Targeting Group Conduct - Example of Criminal Gang Activity
Review the example with Mike and the North Side Boys given in Section 12 “Example of Criminal Gang Definitions”. Assume that Mike resumes selling illegal controlled substances at the behest of the North Side Boys after his initiation and is arrested. If the state where Mike sells illegal controlled substances has a gang participation statute and grades the crime of sale of illegal controlled substances as a felony, Mike could be prosecuted for and convicted of this crime.
He furthered and assisted in the North Side Boys’ sale of illegal controlled substances with the general intent or knowingly that members of the North Side Boys engaged in this pattern of criminal gang activity. If the state also has a gang enhancement statute, Mike could have his sentence for sale of illegal controlled substances enhanced because he committed the sale of illegal controlled substances in furtherance of the criminal gang.
In either situation, Mike will be punished more severely for the sale of illegal controlled substances than an individual defendant who sells illegal controlled substances on his or her own, rather than at the direction or in furtherance of a criminal gang.
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12.2 Crimes Targeting Group Conduct - Figure 12.5 Diagram of Typical Modern Gang Statutes
47
12.2 Crimes Targeting Group Conduct - Civil Responses to Gang Activity
As stated previously, the problem of criminal gangs is challenging and has proven resistant to criminal remedies. Thus many jurisdictions have also enacted civil gang control statutes, along with resorting to the remedy of civil gang injunctions to try to curb the multitude of harms that gangs inflict.
Civil gang control statutes generally provide for damages, often enhanced, for coercion, intimidation, threats, or other harm caused by a gang or gang member (Fla. Stat. Ann. § 874.06, 2011). A common provision of civil gang control statutes is the ability of a resident or state agency to sue as a plaintiff (Fla. Stat. Ann. § 874.06, 2011).
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12.2 Crimes Targeting Group Conduct - Figure 12.6 Example of a Civil Gang Control Statute
Civil gang injunctions (CGIs) are precisely drafted orders prohibiting gang members from associating with other gang members or entering certain areas known for gang activity (Tex. Penal Code § 125.065, 2011). A state agency or an individual resident can typically make a motion requesting a CGI (Tex. Penal Code § 125.064, 2011). The basis for a CGI motion is the tort of public nuisance, which requires proof that the gang is disturbing the enjoyment of life and property for those living in the community (People v. Acuna, 2011). Common provisions of CGIs are a prohibition on associating with known gang members, wearing gang colors, flashing gang hand signs, or loitering in areas known for gang activity (Shiner, M., 2011). Violation of a CGI could constitute the crime of contempt, resulting in fines or incarceration (Tex. Penal Code § 125.066, 2011).
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12.2 Crimes Targeting Group Conduct - Example of Civil Responses to Gang Activity
Review the example with Mike and the North Side Boys in Section 12 “Example of Criminal Gang Definitions”. Mike and the North Side Boys are subject to a criminal prosecution for gang participation for their sale of illegal controlled substances.
They also are subject to gang enhancements for any felony committed at the direction or in furtherance of the North Side Boys. In addition, if the state where Mike and the North Side Boys are located has statutes providing civil remedies and CGIs, both Mike and the North Side Boys members are subject to a civil suit for damages if they coerce, intimidate, or injure another.
They also are subject to an injunction constraining their ability to meet, associate, wear black and white, flash gang hand signs, or loiter in certain areas. If a CGI is in place, and Mike or the North Side Boys violate it, a potential exists for criminal charges of contempt, leading to fines or incarceration.
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12.2 Crimes Targeting Group Conduct - Potential Constitutional Challenges to Gang Statutes
Gang activity and gang association require assembly, which, if peaceful, is protected by the First Amendment. Thus statutes proscribing gang conduct are subject to attack under the First Amendment or void for vagueness and overbreadth. CGIs have the same constitutional concerns as criminal gang activity statutes because their violation can lead to a criminal prosecution for contempt (People v. Acuna, 2011).
In City of Chicago v. Morales, 527 U.S. 41 (1999), the US Supreme Court struck down Chicago’s Gang Congregation Ordinance as void for vagueness. The ordinance prohibited criminal street gang members from “loitering in public.”
The term loitering was defined as remaining in any one place with no apparent purpose. When a Chicago law enforcement officer observed a gang member loitering, he was obligated to order the gang member to disperse, and if the gang member refused, the gang member was subject to arrest for violating the ordinance.
The Court held that the ordinance did not give the public notice of what was criminal, as required by the due process clause of the Fourteenth Amendment, and allowed too much discretion to law enforcement to unevenly enforce its provisions.
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12.2 Crimes Targeting Group Conduct - Potential Constitutional Challenges to Gang Statutes
Under Morales, modern statutes targeting gang activity and association must precisely define criminal conduct, avoid vague terms such as “no apparent purpose,” and ensure that First Amendment protected activity is not included within the statute’s reach. CGIs should support a significant government interest, be narrowly tailored to avoid constitutionally protected activity, and be buttressed by evidence that the CGI is the least restrictive means to carry out the interest stated (Shiner, M., 2011).
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12.2 Crimes Targeting Group Conduct - Figure 12.8 Diagram of Crimes Involving Group Activity
53
12.3 Vice Crimes
Vice crimes offend the sensibilities, yet are often victimless and harmless, other than harm done to the defendant or society in general.
Section 12.3.1 “Drug Crimes” explores drug crimes, including manufacture or cultivation, possession, sale, and under the influence offenses. Upcoming sections analyze prostitution, pimping, and pandering.
In the final section, various vice statutes are available for review, including statutes criminalizing gambling and conduct involving alcohol.
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12.3 Vice Crimes - Drug Crimes
All states and the federal government criminalize the manufacture or cultivation, possession, sale, and use of specified drugs. Many modern statutes focus on rehabilitation for nonviolent drug offenders, rather than incarceration, because this has proven effective in reducing recidivism and freeing up jails and prisons for defendants who pose a greater security risk to society.
In addition, marijuana, a drug that has demonstrated valid therapeutic qualities, has been legalized by many states for medicinal purposes, which poses interesting constitutional questions, as is discussed in Section 12 “Modernization of Drug Crimes Statutes”.
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12.3 Vice Crimes - Federal and State Drug Schedules
Federal criminal statutes targeting illegal drugs are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, commonly known as the Controlled Substances Act (21 U.S.C. § 801, 2011). The states follow one of the three versions of the Uniform Controlled Substances Act (Uniform Controlled Substances Act, 2011), which was drafted by a commission striving for uniformity in state and federal laws. For the purpose of drug crimes, the states and the federal government categorize illegal drugs in drug schedules (21 U.S.C. § 812, 2011).
The schedules generally focus on the harmful or addictive qualities of the drug, with Schedule I drugs being the most harmful or addictive; the remaining schedules reflect less harmful or addictive drugs, including drugs that are legal with a prescription (Minn. Stat. Ann. § 152.02, 2011).
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12.3 Vice Crimes - Example of a Drug Schedule
The North Carolina drug schedule is located in N.C. Gen. Stat. § 90-89-90-94 (N.C. Gen. Stat. § 90-89-90-94, 2011). Review the schedule and note that heroin, a highly addictive drug that can cause death if a user ingests too much, is listed in Schedule I, while marijuana, a less addictive drug that is generally not as harmful as heroin, is listed in Schedule VI.
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12.3 Vice Crimes - Federal and State Drug Crimes
The federal government and all fifty states criminalize the manufacture and cultivation, possession, sale, and use of drugs categorized in a jurisdiction’s drug schedule, with exceptions for validly prescribed drugs and drugs involved in scientific or medical research. As discussed in Chapter 4 “The Elements of a Crime”, the government cannot criminalize the status of being a drug addict (Robinson v. California, 2011). However, there is no constitutional impediment to punishing criminal acts involving controlled substances, even though it may be more difficult for an addict to control drug-related criminal behavior.
In most jurisdictions, the manufacture of scheduled drugs is a felony (Ala. Code § 13A-12-217, 2011), with a more severe penalty for the accompanying use of a firearm or the furtherance of a clandestine laboratory operation (Ala. Code § 13A-12-218, 2011). Cultivation of marijuana, which must be done with general intent or knowingly, can be a misdemeanor or a felony, depending on the quantity cultivated (Ohio Rev. Code Ann. § 2925.04, 2011).
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12.3 Vice Crimes - Federal and State Drug Crimes
Possession of scheduled drugs is typically graded based on the quantity possessed, the drug’s classification in the schedule, and whether or not the possession is for the purpose of distribution, with the penalties ranging from a misdemeanor for simple possession to a serious felony for possession with intent to sell (Ohio Rev. Code Ann. § 2925.11, 2011).
As is discussed more fully in Chapter 4 “The Elements of a Crime”, possession can be actual, meaning the drug is located on or very near the defendant’s person, or constructive, meaning the drug is within the defendant’s control (Connecticut Jury Instructions No. 2.11-1, 2010).
Constructive possession can be joint, meaning between two or more (Connecticut Jury Instructions No. 2.11-1, 2010). Simple possession typically must be with general intent or knowingly, while possession for the purpose of distribution or sale must be with specific intent or purposely (People v. Parra, 2011).
In many states, possession of marijuana is graded lower than possession of other scheduled drugs—even as low as an infraction if the quantity is less than one ounce (Cal. Health and Safety Code § 11357(b), 2011).
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12.3 Vice Crimes - Federal and State Drug Crimes
The sale, distribution, or trafficking of scheduled drugs is generally a felony, with more severe penalties for drugs in a higher schedule (N.C. Gen. Stat. § 90-95, 2011), the sale of larger quantities (Ala. Code § 13A-12-231, 2011), a sale by an adult to a minor (Ala. Code § 13A-12-215, 2011), or a sale near school grounds (Ala. Code § 13A-12-250, 2011).
Scheduled drug use, also designated as being under the influence of controlled substance, is typically a misdemeanor with more severe penalties for habitual offenders (Cal. Health and Safety Code § 11550, 2011).
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12.3 Vice Crimes - Example of Drug Crimes
Charlene decides she wants to make some extra money by growing and selling marijuana. Charlene acquires some marijuana seeds and plants a marijuana garden in her backyard. Once her plants are ready for harvest, Charlene harvests some buds, weighs and packages them, and then puts some of the packages into her backpack and walks to a street corner known for drug sales. After she arrives at the street corner, Rick drives up, rolls down his window, and asks Charlene if she knows where he can “score.” Charlene replies, “I have some pot if that is what you are looking for.” Rick responds affirmatively, so Charlene gets into Rick’s car and they drive to a local park. Rick insists on trying the marijuana before he buys it. Charlene takes out a joint, and Rick and Charlene smoke it. Thereafter, Rick buys one of Charlene’s packages that weighs half an ounce and drops Charlene off back at the street corner.
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12.3 Vice Crimes - Example of Drug Crimes
In this example, Charlene has probably committed every drug crime discussed in Section 12 “Federal and State Drug Crimes”. When Charlene planted the marijuana garden, she committed cultivation of a scheduled drug. Harvesting and packaging the marijuana is possession for sale.
Smoking the marijuana with Rick is use, or under the influence of a controlled substance.
Selling Rick a half-ounce of marijuana is drug sale, distribution, or trafficking. Rick has also probably committed two drug offenses.
Smoking the marijuana with Charlene is use, or under the influence of a controlled substance.
When Rick took the package of marijuana from Charlene, he committed possession (which may be an infraction in some states because he bought less than an ounce). Thus, in this example, Charlene and Rick may be subject to prosecution for and conviction of the stated drug offenses in most jurisdictions.
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12.3 Vice Crimes - Modernization of Drug Crimes Statutes
Two new trends in state drug crimes statutes are the emphasis on rehabilitation for nonviolent drug offenders and the legalization of marijuana for medical use.
Modern statutes allow nonviolent drug offenders to go through a specialized drug court that typically sentences the offenders to probation and rehabilitation, rather than incarceration (Ariz. Rev. Stat. § 13-3422, 2011).
Common offenses for drug courts are simple possession and use of drugs listed in a jurisdiction’s drug schedule (Ariz. Rev. Stat. § 13-3422, 2011). Typically, the drug court offender must participate in a rehabilitation program that includes counseling and detoxification within a specified time period (Tex. Penal Code § 469.001, 2011). During the rehabilitation, the offender is frequently drug tested to ensure compliance.
If the drug offender tests positive, reoffends, or does not complete the program within the specified time limits, the offender will be found guilty of the original nonviolent drug offense and sentenced accordingly (Ariz. Rev. Stat. § 13-3422, 2011).
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12.3 Vice Crimes - Modernization of Drug Crimes Statutes
Legalization of marijuana for medical use is another modern statutory trend among the states. Currently, sixteen states and the District of Columbia legalize medical marijuana (Procon.org, 2011). The criteria under these statutes vary, but in general a qualified individual can gain a prescription for marijuana from a caregiver, usually a physician, and thereafter obtain, possess, and use a specified quantity of marijuana (Alaska Stat. §§ 17.37.010-17.37.070, 2011). In some states, limited cultivation is also permissible (Cal. Health and Safety Code §§ 11362.7-11362.83, 2011).
The legalization of marijuana for medical use presents an interesting constitutional dilemma because federal law lists marijuana as a Schedule 1 drug and does not permit its possession, use, or sale for medicinal purposes (21 U.S.C. § 812, 2011). Technically, the legalization of marijuana for medical use violates the Supremacy Clause in the federal Constitution, which Chapter 2 “The Legal System in the United States” and Chapter 3 “Constitutional Protections” discuss in detail. However, the US Supreme Court has not invalidated any state’s medical marijuana statutory scheme on this basis, although the Court has upheld federal Congress’s authority to prohibit the possession and use of small quantities of marijuana under the Federal Controlled Substances Act (Gonzales v. Raich, 2011) and has rejected a medical necessity exception for the possession and use of marijuana (U.S. v. Oakland Cannavis Buyer’s Cooperative, 2011).
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12.3 Vice Crimes - Example of the Modernization of Drug Crimes Statutes
Remy lives in a state that legalizes marijuana for medical use and also has a drug court program. Remy obtains a prescription from an authorized caregiver and then buys the maximum amount of marijuana permitted under her state’s medical marijuana statute at a medical marijuana distribution center. As Remy leaves the distribution center, Donny, a drug dealer standing nearby, asks Remy if she would like to buy some cocaine. Remy agrees and buys a gram of cocaine from Donny. Unfortunately for Remy, Donny is a federal Drug Enforcement Agent who thereafter arrests Remy for possession of marijuana and cocaine.
In this example, the federal government can most likely prosecute Remy for possession of both marijuana and cocaine, even though her state legalizes marijuana for medical use and Remy has complied with the requirements of the state medical marijuana statute. The US Supreme Court has held that the federal government may criminalize the possession of small amounts of marijuana, and there is no federal medical necessity exemption. Thus Remy may be subject to prosecution for and conviction of both of these offenses under federal law. Remy’s state also can prosecute Remy for possession of cocaine. Remy’s state has a drug court program, so Remy may be qualified to go through drug court for the possession of cocaine charge and may face only probation and rehabilitation for this offense rather than incarceration.
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12.3 Vice Crimes - Figure 12.9 Diagram of Modern Drug Crimes Statutes
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12.3 Vice Crimes - Crimes Involving Prostitution
Every state except Nevada criminalizes prostitution. In Nevada, legal prostitution must follow specific guidelines and can occur only in a licensed house of prostitution (N.R.S. 201.354, 2011).
The criminal act element required for prostitution varies, depending on the jurisdiction. In many states, prostitution is offering, agreeing, or engaging (N.Y. Penal Law § 230.00, 2011) in sexual conduct for money (N.Y. Penal Law § 230.00, 2011), property, or anything of value (720 ILCS § 5/11-14, 2011). Agreeing and engaging are both considered prostitution, so the prostitute and the prostitute’s client could be prosecuted for and convicted of prostitution in most jurisdictions. The Model Penal Code criminalizes loitering in or within view of any public place for the purpose of being hired to engage in sexual activity and an inmate of a house of prostitution engaging in sexual activity as a business (Model Penal Code § 251.1(1)). The sexual conduct or sexual activity specified in statutes criminalizing prostitution generally includes sexual penetration, touching, or fondling sexual organs for sexual gratification (720 ILCS § 5/11-14, 2011). The Model Penal Code includes homosexual and deviate activity (Model Penal Code § 251.1).
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12.3 Vice Crimes - Crimes Involving Prostitution
The criminal intent element required for prostitution is either strict liability (N.Y. Penal Law § 230.00, 2011) or general intent or knowingly in most jurisdictions (N.M. Stat. § 30-9-2, 2011). The Model Penal Code requires purposeful intent if the defendant is loitering to engage in prostitution or strict liability if an inmate in a house of prostitution engages in prostitution as a business (Model Penal Code § 251.1). Prostitution is typically graded as a misdemeanor, with sentencing enhancements for habitual offenders, prostitution that occurs near a school (720 ILCS § 5/11-14, 2011), or clients who patronize juvenile prostitutes (N.Y. Penal Law § 230.06, 2011). The Model Penal Code grades prostitution as a petty misdemeanor (Model Penal Code § 251.1(1)).
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12.3 Vice Crimes - Crimes Involving Prostitution
Two crimes associated with prostitution are pimping and pandering. Although the elements of these offenses vary depending on the jurisdiction, in general, the criminal act element required for pimping is receiving anything of value from a prostitute with the general intent or knowingly that it was earned by prostitution (720 ILCS § 5/ 11-19, 2011). Pimping is generally graded as a misdemeanor (720 ILCS § 5/11-19, 2011) or felony (N.M. Stat. § 30-9-4.1, 2011), with sentencing enhancements if intimidation or force is used to compel an act of prostitution (N.Y. Penal Law § 230.33, 2011) or if the prostitute is a juvenile (N.Y. Penal Law § 230.32, 2011).
Pandering is generally procuring another (criminal act) with the specific intent or purposely to commit an act of prostitution (Cal. Penal Code § 266 i, 2011). Pandering is typically graded as a felony, with sentencing enhancement if the pandering occurs near a school (720 ILCS § 5/11-16, 2011). The Model Penal Code criminalizes a broad spectrum of conduct as promoting prostitution, including encouraging and inducing another purposely to become or remain a prostitute (Model Penal Code § 251.1(2) (c)). The Model Penal Code grades these acts of promoting prostitution as felonies of the third degree (Model Penal Code § 251.1(3) (a)).
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12.3 Vice Crimes – Example of Crimes Involving Prostitution
Daniel approaches Penelope, a sixteen-year-old, as she wanders down the sidewalk. Daniel asks Penelope if she would like to earn a little extra cash. Penelope responds affirmatively, and Daniel asks her if she will have sexual intercourse with John (who is an adult) for one hundred and fifty dollars. Penelope eagerly agrees. Daniel walks Penelope over to the entrance of a motel where John is waiting. John and Penelope enter the motel, and John rents a room where they engage in sexual intercourse. Afterward, John pays Penelope the one hundred and fifty dollars. As Penelope leaves the motel, Daniel swiftly walks over, grabs Penelope by the wrist, and demands the one hundred and fifty dollars. Penelope protests, but Daniel twists her arm behind her back, and she grudgingly hands him the money. Daniel removes twenty dollars, hands it to Penelope, and informs her that it is her “share,” and if she wants more, she needs to engage in another act of sexual intercourse.
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12.3 Vice Crimes – Example of Crimes Involving Prostitution
In this example, Penelope and John have probably committed prostitution, and Daniel has most likely committed pimping and pandering in many jurisdictions. When Penelope has sexual intercourse with John for one hundred and fifty dollars, she is engaging in sexual conduct for money with general intent or knowingly, which constitutes prostitution in most jurisdictions. When John has sexual intercourse with Penelope and thereafter pays her one hundred and fifty dollars, he is engaging in sexual conduct for money with general intent or knowingly, which is also generally criminal prostitution. Penelope is a juvenile, so John’s sentence may be enhanced and more severe than Penelope’s. When Daniel procures John and Penelope for the purpose of committing prostitution, he is most likely committing pandering. When Daniel takes money from Penelope with the general intent or knowingly that it was earned by prostitution, he is probably committing pimping. The use of force to obtain the money and Penelope’s age could enhance Daniel’s sentence for both crimes in many jurisdictions. Thus Penelope, John, and Daniel may be subject to prosecution for and conviction of the stated crimes of prostitution, pimping, and pandering in most jurisdictions.
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12.3 Vice Crimes – Figure 12.10 Diagram of Vice Crimes
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12.3 Vice Crimes - Various Vice Statutes
Most states criminalize gambling (18 Pa. C.S. § 5513, 2011), drunkenness in public (Cal. Penal Code § 647(f), 2011), and driving while under the influence (Or. Rev. Stat. § 813.010, 2011). Review the representative state statutes in the Notes for the elements of these vice crimes.
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