By Lee A. Steitz
A family leaves their house and starts walking to the neighborhood market. The father holds the hand of his four-year-old son, while the mother carries their small daughter. They are enjoying a warm, sunny afternoon stroll. As they turn a corner near the local park, the father notices a group of young men standing near the sidewalk ahead. The man talks quietly to his wife, who becomes noticeably apprehensive. The parents recognize these young men from the neighborhood and know they are part of the local street gang.
The father does not want to escort his family in front of the gang members and subject them to insult or possible assault. Crossing the street is not an option due to traffic and road construction. Ultimately, the family turns around and heads for home, their trip to the market delayed for another day.
Street gangs, in their zest for control of “turf,” have impacted the quality of life for many honest and hard working residents. Families live in fear; children must sleep on the floor or in bathtubs to avoid being struck by stray bullets; cars, homes and businesses are defaced with graffiti. Everyday living has become difficult and dangerous for people who, because of street gangs, must cope with what can be accurately termed “domestic terrorism.”
However, it’s not against the law to stand in a group near a sidewalk, in a park, at a bus stop, or in other public places. Or is it?
Law enforcement agencies across the country have begun using a unique tool to combat gang activity in their communities. This tool has been around for several years, but until recently has more commonly been used in cases of domestic violence, disputes between neighbors, or other altercations. What is this magical tool? A civil restraining order.
Traditional uses of restraining orders required little in the way of documentation other than a police report which outlines an incident of domestic or other form of violence. The application of a restraining order to restrict gang activity, however, requires considerably more information to be collected, sorted, and logged. When a judge is asked to stop or limit gang activities that are not, in and of themselves, illegal acts, then accurate documentation is crucial. In fact, one of the most important (and sometimes overlooked) areas of gang investigation is the way records are kept through complete, accurate and ongoing documentation. This article will examine several aspects regarding the documentation of gang activity.
ANTI-GANG STATUTES
Through the years when vicious gang crimes made news seemingly daily, legislators fought back by enacting enhancements that increased the penalties for certain crimes committed by gang members. In California, for example, penal code section 186.22(a), known as the “Street Terrorism Enforcement & Prevention” (STEP) act states:
“Any person who actively participates in any criminal
street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity
and who willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang,
shall be punished by imprisonment in the county jail
for a period not to exceed one year, or by imprisonment
in the state prison for one, two, or three years.”
As with any law, certain elements have to be met for 186.22(a) PC to come into play. Those elements are found in section 186.26(b) PC, which states:
1. Any person;
2. Who is convicted of a felony or misdemeanor;
3. Where the underlying offense was for the,
A. Benefit of;
B. At the direction of;
C. Or in association with a criminal street gang;
4. Who acts with the specific intent to promote, further, or assist in any
criminal conduct by gang members;
A. Shall be punished by imprisonment in the county jail for not more than one year, but not less than 180 days, if the underlying offense is a misdemeanor or by imprisonment in the state prison for one, two, or three years;
B. Shall receive as additional punishment one, two, or three years if the underlying offense is a felony;
C. Shall remain in prison for a minimum of 15 years if the crime is punishable by life in prison.
It is plain to see the potentially steep consequences for a gang member committing a crime. It stands to reason that any gang member exposed to this enhancement will vigorously attack the basis upon which the enhancement is brought – his or her status as a gang member. It is critical that an officer’s documentation is thorough enough to withstand judicial scrutiny. But how can agencies ensure that the documentation is solid?
DOCUMENTATION ISSUES
Below are some areas to consider when officers document the activities of street gangs and their members.
Have a written policy for gang documentation.
Defense attorneys will make every effort to show that an officer’s documentation of their client was arbitrary, vindictive or negligent. If agencies have a written policy, and that policy is followed, officers can defeat some, if not all, of this challenge.
Determine who is responsible for documenting gangs and gang members.
Does the agency have an identified gang investigations unit? Does this unit have the responsibility for maintaining files and cards on gang members and associates? If so, these officers are best suited for documenting gang members. Although these officers may be detectives and not on the streets daily, they normally have access to the entire spectrum of information on a particular subject who may be a gang member or associate. Working closely with uniformed officers who patrol gang areas can ensure a free flow of information that can help detectives make an accurate determination as to whether to document someone or not.
If an agency does not have a gang unit, one or two officers should be tasked with keeping the gang files current. These officers would be good candidates for documentation duties as well.
Regardless of who holds the responsibility for gang documentation, they should be clearly identified by the agency. Only those in a lawful position to routinely work with all of the crime and arrest reports, field interview cards, citations, probation and parole reports should be allowed to document gangs and gang members.
Participate in a multi-agency gang database.
Several years ago, the Los Angeles County Sheriff’s Department developed a computerized system that was used to share gang related information between law enforcement agencies. The Gang Reporting Evaluation And Tracking (known as “GREAT”) system had participating agencies throughout the state and allowed these agencies to access information held in the files of other agencies in the system. Gang detectives have successfully used the GREAT system to positively identify gang members from other cities who had relocated to different communities and set up shop.
In California, a new system has taken the place of “GREAT.” It is called “CalGang,” an automated system that enables agencies to share information on gangs and gang members via a statewide network of computers. Utilizing web-based intranet technology, the California Department of Justice (DOJ) maintains a master database of information on gangs, gang members, firearms, vehicles, and other areas of interest to officers and investigators. Regional “nodes” (usually determined by County boundaries) maintain local databases. Versions of CalGang (under different system names) are available in other parts of the country. With advance setup, contributing agencies have the ability to access other databases for information. This can be especially valuable when working an investigation that crosses state lines.
Specify what criteria are used to document gangs and gang members.
The criterion used to document gang members is extremely important. Some agencies use a few broad criteria to document gang members. Others use a long, detailed list of different criteria. Usually, the fewer the criteria used means the more responsibility and discretion exercised by the documenting officer or detective. A list of criteria that individually accounts for different gang identifiers makes the job of documentation much less subjective. Traits commonly exhibited by gang members and associates are clearly indicated and easy to list as “objective.”
Some of the common criteria used are as follows :
q An individual admits membership to a gang
q A reliable informant identifies an individual as a gang member
q An informant of previously untested reliability identifies an individual as a gang member and it is corroborated by independent information
q The individual resides in or frequents a particular gang’s area, affects their style of dress, use of hand signs, symbols, or tattoos, or maintains ongoing relationships with known gang members and where the law enforcement officer documents reasonable suspicion that the individual is involved in gang related criminal activity or enterprise
q An individual has been arrested in the company of identified gang members for offenses which are consistent with usual gang activity
Specify where and how gang intelligence files are kept.
What do agencies do with all of the reports, field interview cards, and citations completed on gang members and associates? Ideally, gang experts first sorted and examined them, and then placed them in a file that is maintained on each documented gang member or associate. “CalGang” (like the “GREAT” system) requires a participating agency to maintain “source documentation” to back up any information entered into the computer system. “Source documentation” is described as original field interview cards, photographs, letters, or other gang intelligence information used to support the documentation of someone as a gang member or associate. Actual hard copies of field interview cards, citations, letters from jails and prisons, photographs, placards, and other evidence (usually not related to a specific criminal act or case) upon which an individual’s documentation as a gang member is based can go in this file. The more evidence on hand to support the documentation of the individual, the easier it will be to make the case in court.
Maintaining source documentation serves as a check against erroneous information being entered, or remaining, in the computer database. This is a critical issue when combating potential defense challenges to the documentation of a gang member. Officers and detectives must be sensitive to liability issues. It is not out of the question to have an internal affairs complaint or lawsuit filed after a judge rules that gang evidence is to be excluded due to sloppy or non-existent record keeping by an agency.
Prior to CalGang and G.R.E.A.T., agencies kept gang documentation on hard cards. However, because any transcribed information (be it a CalGang printout or written/typed entries on a hard card) would be classified as hearsay, maintaining a hard card backup today is an unnecessary duplication of work.
GANG FILES OR EVIDENCE?
Gang files should not be used in lieu of an agency’s evidence room. A gang file should not replace normal evidence procedures. Officers should always follow agency guidelines when identifying, processing, collecting, and retaining evidence.
Gang files are intelligence files. Documentation of gang members is based upon information kept in the files. Some of this data may be public record information (crime and arrest reports, field interview cards, copies of probation reports or parolee information sheets). This information can go into a gang file. But, when an agency legally acquire photos, banners, flyers, letters or other types of gang-related evidence relevant to a criminal case, these items should be processed in accordance with department policy regarding evidence. Photocopies, duplicates or pictures of the items in question can go in the gang file, provided the source of the information is properly validated and listed on the subject’s gang card.
Intelligence information (which includes rosters, information provided by members of the subject’s own gang or members of a rival gang, or other sensitive data that is confidential in nature) should always be kept in gang files. Because these files are confidential - kept in a secure area that is clearly identified and limited to specific personnel - they are not open to the general public. This also means these files are not open to defense attorneys as a matter of routine procedure. They may be sought under a subpoena duces tecum, but rarely will they make it past an in-camera hearing with the judge.
If officers adhere to the guidelines set by state authorities, there is a good chance an agency will not be forced to provide raw information from gang intelligence files to the defense.
GANG DOCUMENTATION REPORTS
Frequently, gang officers may be requested to provide documentation reports to prosecuting agencies. Usually, these reports will be submitted after a case has been filed. The prosecutor uses the information in the report to support the gang allegation (and possible enhancement) against one or more defendants. However, documentation reports may also be prepared on the victim in a gang case. Conventional wisdom dictates that a victim is never painted in a bad light. However, in gang cases, the fact that the victim is a gang member or associate can help prove the gang-related nexus of the case.
When a gang documentation report is prepared, there are certain things that must be included and some that should not. Among the must-haves are sufficient details to show how the defendant meets each of the criteria used to document him or her. Under the heading for each criterion, there should be an entry for each time the criterion is met. Minimally, each entry should consist of the date, the location, specific details about the incident or contact, and, in the case of association allegations, the fact that the defendant was with “x” number of documented gang members and/or associates.
Unless agency or prosecutor policies state otherwise, officers should not list other gang members and associates by name in a gang documentation report. If officers do list names, they take the risk of having defense counsel make discovery motions for the evidence used to document each named gang member or associate. It is better to use words such as “contacted with two documented members of (insert name of gang),” or “was arrested in the company of a documented gang associate of (insert name of gang).” If the defense raises the issue, the prosecutor can fight the motion. The judge may order officers to identify the other members or associates during an in-camera hearing. However, if the officer has followed policies, procedures and the law, and it can be proven to the judge that the documentation is thorough and solid, the confidential intelligence value of the information will usually outweigh the defendant’s right to have the identities produced.
FILE MAINTANENCE
Once all the documentation is in order, it is important to constantly update it. To be effective and current, officers should not lag on the sorting, logging and filing. When gang crimes occur, or if the prosecutor needs a documentation report, it should be relatively easy to go to the files and find exactly what is needed.
THE RESTRAINING ORDER
Now, back to the scenario at the beginning of this article. In California, several cities have successfully brought civil actions against street gangs. The results have proven remarkable and well worth the effort. Territorial-related gang activity has decreased, while the safety and comfort level of residents has significantly increased. Laws and procedures may vary from state to state, so check with your local prosecutor prior to starting work on a restraining order.
Generally, the City Attorney or District Attorney’s office will work closely with agencies in preparing to obtain the restraining order. Officers will need to obtain affidavits from residents living in the affected neighborhood. Officers and detectives who patrol the area must also supply affidavits as to their experiences in dealing with the gang. The prosecutor, in order to show the negative effect the gang has on everyday life in the community, will use these affidavits in court to prove that a nuisance exists. Officers may find this part of the process to be quite challenging, as asking residents to step forward and take an anti-gang stance is difficult when dealing with citizens who are afraid. This sounds like it would be easy to do, but the pressure and intimidation tactics used by gang members against local residents are considerable and must be taken into account. Officers must do what they can to minimize the potential negative consequences that coming forward may have on the citizens.
Tactics such as high visibility patrol and/or covert surveillance of citizens’ homes or businesses may be necessary to prevent retaliation. In extreme cases, it may be necessary to move a threatened resident family out of the neighborhood. These measures can be costly, and should be planned for ahead of time in the event they are necessary.
The prosecuting agency will also want to ensure that the gang documentation is accurate and thorough. Gang injunctions restrict activities such as associating in public, blocking sidewalks, whistling or otherwise alerting other gang members to the presence of the police, and wearing or possessing certain types of clothing. The prosecutor may request that officers do additional work on their files. If agencies have been prudent in their record keeping, it should be very easy to fill in any missing pieces. However, if officers have not kept up with filing, extensive amounts of time may be required to remedy the identified problems. Remember that the prosecutor is not going to go to court seeking to stop or limit what would otherwise be normal activities unless there is solid evidence to support the action.
Once the prosecutor is comfortable and ready to proceed, papers are filed and a hearing will be scheduled to determine if a temporary restraining order will be granted. The judge will examine the citizens’ and officers’ affidavits, gang documentation reports, and any other relevant evidence. If the judge believes that the evidence supports it, a temporary order will be issued. The order will only be in effect for a predetermined amount of time (usually two weeks, sometimes longer) in order to give the prosecution time to serve the named defendant gang members with a subpoena to appear in court regarding the restraining order.
When the defendants have been served, a hearing will be conducted to determine if the temporary restraining order should be made permanent. Both sides have the opportunity to provide evidence and testimony. If officers have followed the law, departmental policies and procedures, done a thorough job of documenting the actions of the gang and its members, and the evidence presented by the prosecutor is accurate and persuasive, agencies stand a good chance of seeing a permanent gang injunction granted.
When gangs are documented successfully and thus, ultimately, better controlled, both the police and the community benefit. Eliminating gangs, and the crime and violence they inflict on society, is hard work and takes perseverance. When the police work hand in hand with the communities they serve, using all the tools available to them, then meaningful changes can be brought about for the benefit of everyone.
EPILOGUE
The family leaves their house for the market. This time, as they walk past the park, they see children on the playground, while other families are having picnics. There are no gang members in sight - no one to threaten or assault the residents, no one blocking the sidewalk while throwing empty beer bottles and used syringes on the grass where children could find them. Yes, the parents say to each other, things are certainly better since they and their neighbors worked with the police and had the gang members served with a restraining order.
About the Author
Lee A. Steitz is a Sergeant with the Oceanside, California, Police Department. He has been a police officer for over sixteen years, with six and a half years assigned to investigations. He served three and one half years as a gang detective and currently supervises a uniformed gang and narcotics enforcement team. Sgt. Steitz is the Defensive Tactics Program Coordinator for the Oceanside Police Department, and is an Adjunct Instructor for Arrest & Control, Baton and Carotid Control Hold classes at the Palomar College Police Academy in San Marcos, California. Sgt. Steitz is a candidate in the California Commission on Peace Officer Standards and Training (POST) Master Instructor Development Program and is developing a standardized 40-hour gang investigation course for statewide use.