Gangfighters Weblog

July 28, 2012

Florida gang law prohibiting requiring recruiting prospects to commit crime OK!

Filed under: ganglaw, gangs — carterfsmith @ 8:51 am

According to Associated Press (AP) coverage of the appellate court in the 1st District, the Florida Law prohibiting gang leaders to require new members to commit a crime to join the gang is fine, just fine.

Well that’s a relief!

The court did not like the prohibition against using technology to communicate, however. Apparently the law would have made it unlawful not just to discuss gang business but other things, as well.

The recruitment law passed constitutional muster because it applies only if criminal activity is a condition of membership. It’s been my experience that gangs and crime go hand-in-hand, and most who join gangs commit a crime to do so.

District Judge Stephanie Ray wrote that in the recruitment law, the Legislature “attempted to strike a proper balance between protecting fundamental rights and using legitimate government police powers to fight the scourge of gang-related criminal activity.”  She noted several other states, including California, Texas, Indiana and Idaho, have passed similar laws, some of which also have been upheld by the courts.  

Section 874.05(1), the “gang recruitment” provision, was enacted to protect the public from speech and conduct used to encourage gang membership, where a condition of membership or continued membership is the commission of any crime. 

Section 874.05(1): The “Gang Recruitment” Statute The “gang recruitment” statute states: 

874.05 Causing, encouraging, soliciting, or recruiting criminal gang membership.— (1) Except as provided in subsection (2) [which deals with a second or subsequent violation], a person who intentionally causes, encourages, solicits, or recruits another person to become a criminal gang member where a condition of membership or continued membership is the commission of any crime commits a felony of the third degree, punishable as provided in [various statutes]. § 874.05(1), Fla. Stat. (2009). 

. . .  the State has a compelling interest in thwarting solicitation and recruitment into gangs where criminal conduct is a condition of membership or continued membership. See State v. J.P., 907 So. 2d 1101, 1116-17 (Fla. 2004) (finding cities’ juvenile curfew ordinances furthered the State’s compelling interest in protecting juveniles from victimization and reducing juvenile crime); State v. T.B.D., 656 So. 2d 479, 482 (Fla. 1995) (“Florida has a
compelling interest in protecting the right of each of its citizens to live at peace in the sanctity of his or her home, free from violence and the threat of violence.”).

Under the second prong of strict scrutiny, we review section 874.05(1) to ascertain whether it is narrowly tailored to promote the compelling governmental interest . . . under Florida’s broad statutory definitions of “criminal gang” and “criminal gang member,” a person can join or associate with such a group without any actual intent to commit a crime. § 874.03(1), (3). 

This statute criminalizes the speech and conduct of the solicitor/recruiter, rather than the person solicited or recruited.

Although the language of section 874.05(1) is silent regarding whether the solicitor/recruiter must know of the crime-related condition of gang membership, silence alone does not necessarily suggest the legislative body “intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.” Staples v. United States, 511 U.S. 600, 605 (1994) (holding that in order to convict a defendant of illegal possession of an automatic weapon the government had to prove the defendant knew of the automatic character of the weapon); see Morissette v. United States, 342 U.S. 246, 263 (1952); State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004). 

The Legislature has narrowly tailored this law to effect its intended purpose to promote public safety and prevent crime without impermissibly intruding upon the rights of law-abiding persons or, for that matter, the discrete lawful activities of gang members.

The case is Naymontie Nashare Enoch v. State of Florida, 1D10-3443.

What do you think?


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