Gangfighters Weblog

August 6, 2012

A Duck is a duck is a duck: Can another person identify a gang member?

Filed under: ganglaw, gangs, tennessee — carterfsmith @ 5:46 am

Many gang investigators have said they use the “Riley Method” to identify gang members. Most haven’t actually called it that, but it’s true, nonetheless.

pic from 10,000 birds – http://10000birds.com/hybrid-mallards.htm



The quote they are using has been attributed to James Whitcomb Riley, who sometime around 1883-1885, said: “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”


According to the National Gang Center (as of December 2011), among the often-used criteria for identifying gang members is that they are:

  • identified as a criminal gang member by a parent or guardian
  • identified as a criminal gang member by a documented reliable informant
That might be a problem.

A problem for Florida, Tennessee, Kansas, New Hampshire, South Dakota, and maybe Idaho (which appears vague on who does the identification required), that is.

There’s this Supreme Court case (Crawford v. Washington, 541 U.S. 36 (2004)) that says:

P59: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

P68: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

P69: Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

So the application appears to be where one person is (or will be, or could be required to, or might as well be) testifying against another. It appears those testimonies are only usable when the person who would testify is . . . dead. Otherwise, the witness must be available for prosecution. 


I suspect that due process should be a consideration when classifying a gang member either on the streets or in jail/prison, so a hearing would be the logical followup to such classification if it were to be challenged. It’s not a huge reach to suggest that the statement/testimony of another (non police) person should be subject to challenging by the accused gang member.


It could also be a problem for those jurisdictions that use the points system to confirm gang members (summarized in Stuff gang bangers in the military can’t do with DoD Instruction 1325.6 in place):


1. Self Admission
2. Tattoos
3. Hand Signs/Symbols/Logos
4. Wearing of Gang/STG colors, gang clothing, gang paraphernalia.
5. Possession of Gang/STG documents
6. Possession of commercial Gang/STG publications.
7. Participation in commercial Gang/STG publications.
8. Consistently in contact with Gang/STG members
9. Contact with Gang/STG members.
10. Participating in a photo with Gang/STG members.
11. Outside jurisdiction documents.
12. Correspondence with Gang/STG members.
13. Named a Gang/STG member in correspondence.
14. Confirmation through outside agency gang unit or database.
15. Engaged in Gang/STG Crime or activity.
16. Identified as gang member by another gang member.

17. Subject identified as gang member by reliable informant. 



Numbers 13, 15, and 16 require the statement of another, non-law enforcement/corrections person to be used against the gang member in order to confirm them. That’s similar to hearsay, which is allowed only in a select few, specific circumstances. Specifically, in Crawford v. Washington, 541 U.S. 36 (2004). I suspect that 17 would be fine, as the credibility of informants is measured based on a track record so they would likely be closer to police than an everyday citizen.


It may not be a problem for those using civil law to counter the gang problem . . .

What do you think?

August 1, 2012

Stuff gang bangers in the military can’t do with DoD Instruction 1325.6 in place

We looked at this a bit in Further attempts to give teeth to DoD Instruction 1325.6, with 
Change 1, February 22, 2012 to DoD Instruction (DoDI) 1325.6. 


The guidance includes:

PREVENTIVE ACTIVITIES


a. Commanders should remain alert for signs of future prohibited activities. They should intervene early, primarily through counseling, when observing such signs even though the signs may not rise to active advocacy or active participation or may not threaten good order and discipline, but only suggest such potential. The goal of early intervention is to minimize the risk of future prohibited activities.


– these are all feel good guidelines. The reality is that Commanders (and other unit leaders) remain alert for signs of bad morale and things that affect the mission. They usually don’t see “what someone does off duty” as something that falls into those categories. What they don’t get is that these gang members are 1) smart enough to conceal their affiliation, 2) learning trades they can use to help the gang, and 3) using their military experience and exposure to access the logistics pipeline to help drug and weapons trafficking endeavors, etc. 


– The military is not and is not designed to be engaged in anything resembling early intervention or minimizing the risk of future prohibited activities. Those are activities for communities where there are youth gangs who can be deterred from crime. All military members are adults, and those who are gang members and military service members are far from intervention time.


b. Examples of such signs, which, in the absence of the active advocacy or active participation addressed in paragraphs 8.a and 8.b are not prohibited, could include mere membership in criminal gangs and other organizations covered under paragraph 8.b. 

  • mostly explained by active participation in prohibited groups by fundraising; demonstrating or rallying; recruiting, training, organizing, or leading members; distributing material; knowingly wearing gang colors or clothing; having tattoos or body markings associated with such gangs or organizations; or otherwise engaging in activities in furtherance of the objective of such organizations that are detrimental to good order, discipline, or mission accomplishment or are incompatible with military service

These do not appropriately represent the breadth of gang crimes that should be included in “criminal gang offense.” They appear more like some of the indicators used by Departments of Correction and a few police departments to confirm gang membership. From Tennessee:

1. Self Admission

2.  Tattoos

3. Hand Signs/Symbols/Logos

4. Wearing of Gang/STG colors, gang clothing, gang paraphernalia.

5. Possession of Gang/STG documents  

6. Possession of commercial Gang/STG publications.

7. Participation in commercial Gang/STG publications.

8. Consistently in contact with Gang/STG members

9. Contact with Gang/STG members.

10. Participating in a photo with Gang/STG members. 

11. Outside jurisdiction documents. 

12. Correspondence with Gang/STG members.  

13. Named a Gang/STG member in correspondence.

14. Confirmation through outside agency gang unit or database.

15. Engaged in Gang/STG Crime or activity.

In fact, they are a carryover from the wrongly positioned history of this DoD Instruction. As addressed in DoDs New Rules for Gangs in the Military (not a good idea)

At the time the directive was initially published in 1969, the DoD was concerned with the infiltration of anti-war and anti-military organizations. The directive focused on dissident and protest activities within the military, and especially on activities such as underground newspapers, on-post demonstrations, and serviceman organizations.

In 1986, the Secretary of Defense updated the directive. The directive’s language prohibited “active” participation in “extremist organizations.” This comes from language in Executive Order (EO) 11,785 issued in 1953, during the height of the Cold War, when the government feared Communist infiltration. It was later changed to forbid designating any groups as “totalitarian, fascist, Communist, or subversive” and forbade any circulation or publication of a list of such groups.

* * *

We had problems linking the directive to gangs because of it’s history (originally launched from an Executive Order (EO 10,450: http://www.archives.gov/federal-register/codification/executive-order/10450.html) prohibiting communist groups from infiltrating, then war protesters, now extremists. 

It’s pretty clear what actions they wanted to prohibit:
 

         * * *

sabotage, espionage, treason, or sedition, or attempts thereat or preparation therefore, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition

         * * *

Advocacy of use of force or violence to overthrow the government of the United States

So when the explanation for the new Instruction explains that:

Signs could also include possession of literature associated with such gangs or organizations, or with related ideology, doctrine, or causes. While mere membership or possession of literature normally is not prohibited, it may merit further investigation and possibly counseling to emphasize the importance of adherence to the Department’s values and to ensure that the Service member understands what activities are prohibited.

I am tempted to ask what they are talking about when it comes to literature. Are they talking about Gang/STG documents: rosters, procedures, bylaws, codes, etc.? What about Gang/STG commercial publications? What about illustrations or artwork?


Unfortunately, these are the same questions that would allow a defense attorney to claim the instruction is vague and over-broad, and that’s an indication that more thought should be invested in it in the first place.


What do you think?

July 13, 2012

Addressing the gang problem in strategically different ways

Filed under: civil remedies, gang, gang member, gang violence, nashville, tennessee — carterfsmith @ 10:43 am

In A great civil law tool — injunctions and related actions against gangs — but what about civic involvement — Southern Style! we looked at Metro Nashville’s efforts to declare the Kurdish Pride Gang (KPG) and several members a public nuisance. The use of gang injunctions prohibiting documented gang members from associating with each other in public has been on the rise across the country — especially in California, though also used effectively in Florida and Texas, among other places.


But what other innovations in the use of civil law are there? How creative can We, the People get to effectively combat the plaque of gangs and gang crime that threaten our cities and states?


Traditional Anti-gang activities include formal anti-gang teams, sections, or task forces; injunctions; and restrictive ordinances.


Civil Law provides a way to get a legal remedy for accidents, negligence, cases of libel, contract disputes, property disputes, probating wills, trusts, administrative law, commercial law, and other matters that involve private parties and organizations including government departments. Civil law helps resolve non-criminal disputes like disagreements over the meanings of contracts, property ownership, divorce, child custody, personal and property damage.


In California, as an example, the state sought damages on behalf of residents (who cannot file suit themselves because they fear retaliation) to distribute proceeds from seized (and sold) homes, businesses and other assets. CA state law allows government to act on behalf of members of the neighborhoods affected by gang activity and collect monetary damages in areas with gang injunctions.


I’ve got the scoop on injunctions and ordinances — looking more for nuisances, penalties, and forfeitures. I am specifically looking for innovative ideas that may be a challenge to implement! Ideas like:

  • make “gang offenders” register (for certain crimes) and identify their residences and known hangouts online
  • increase difficulty of custodial or non-custodial parents to conceal gang affiliation
  • allow use of gang affiliation in settling of divorce and child custody disputes
  • hold business owners responsible if they allow/don’t prevent gangs from gathering, committing crimes or concealing evidence on premises.
  • require specific lighting for public and open private areas where groups of people congregate with regularity
  • seize gang or gang member property used in or purchased from profits of crime 
  • recoup damages for graffiti on private or government property

What do you think?


Please either comment or email me — carterfsmith at g mail.com

May 23, 2011

Presenting in Murfreesboro on Gangs & College & Technology

Filed under: college, gangs, tennessee, university — carterfsmith @ 10:47 am

Description An overview of ongoing research including preliminary results form 2009-2011 survey of college students and police regarding the presence of gangs on college campuses.

Here’s the publicly-releasable stuff:

Create a free website or blog at WordPress.com.