By Julia Reynolds
The Monterey County Herald
SALINAS, Calif. — As Salinas gangsters continue to upload threats and taunts to the Internet, local police and prosecutors have no plans to stop the postings.
Legally and practically, they say, their hands are tied.
Only hours after several video “hit lists” were removed from YouTube.com last week, a new gang video threatening more than two dozen Salinas youths was posted on the popular Web site, raising troubling questions about free speech and authorities’ responsibility to protect potential victims.
Salinas police Cmdr. Kelly McMillin likened such postings to “Internet graffiti.”
“It’s the modern iteration of the way gang members have been threatening each other forever and ever. We have watched (threats) happen for years ... ever since spray paint and walls were invented,” McMillin said.
Recently, images of Manuel Estrada, 23, were included in a YouTube video that was viewed more than 12,000 times.
On March 31, Estrada became Salinas’ seventh homicide victim of 2008.
Titled “Busters Exposed,” the short movie was purportedly posted months ago by an East Salinas Sureno gang called the Vagos. Busters is a derogatory term for Nortenos, the gang’s rivals.
Faces of local youths pictured in the video were spattered with “187" police code for homicide and street slang for a death threat against a rival.
The video was removed by YouTube officials shortly after The Herald inquired about it.
Now, two digital movies apparently posted last week by East Salinas Surenos show a number of new faces and new threats.
Norteno gangs in Salinas have posted similar video threats against Surenos, with some labeled as “video responses” to rivals’ movies.
Police have not linked the video threats to Estrada’s slaying and say they are looking into a number of leads.
Web threats a crime
Posting death threats on the Internet can by itself be considered a crime, said deputy assistant district attorney Terry Spitz.
To qualify as a criminal threat, a posting or message needs to “cause victims to fear for their safety,” Spitz said.
But the District Attorney’s gang unit, he said, is not keen on filing threat cases based on images or pictures.
In 2002, a Chico schoolboy was convicted of issuing criminal threats when he painted a picture of a hooded boy firing a bullet through the head of a Chico police officer. The officer in the painting earlier arrested the boy for marijuana possession.
An appeals court overturned the threats charge, ruling that “while the painting reflected the minor’s anger, it did not appear to be more than pictorial ranting ... the criminal law does not implement an absolute zero tolerance policy forbidding the expressive depiction of violence.”
“So the question is, how does a YouTube posting differ from a painting?” Spitz said.
Salinas police are asking the same question.
“The fact of the matter is, just because somebody’s name is spray painted on a wall is that a credible threat?” McMillin said.
In a recent video on YouTube, a picture of a group of people at a party appeared with cut marks crudely drawn over everyone’s throats.
“Would that be a credible threat to everyone there? That they’re all about to get their throats cut?” McMillin said.
Gang posting on the Internet has become so widespread, he said, “it loses its effect. So you can’t realistically say it’s a credible threat anymore.”
Salinas police computer forensics detective Ben Draeger says it is hard to tell a serious threat from blustering.
“Some of these, they’re just putting this stuff up to impress their friends,” Draeger said. “The (criminal) statute requires you make a threat so that the victim believes the threat is credible.”
Added to that is the challenge posed by the Internet’s anonymity. Even when a threat appears serious, can officers find out who posted it?
Yes, Draeger said sometimes.
“Theoretically, yes it is possible. Every video has a unique link,” he said.
Limited resources
Armed with a search warrant, officers can obtain information from Web hosts such as YouTube that leads detectives to a specific computer.
But if the computer is in a school library, for example, it may be impossible to determine who sat at the keyboard the moment the offending video was uploaded.
With arrest and prosecution a challenge, Salinas police are dedicating few resources to going after Web-savvy gangsters.
Draeger is part of a four-person team dedicated to computer forensics at the department. He has tracked criminals’ computers from their MySpace pages and other Web sites.
“There’s virtually no crime that I can think of that you couldn’t theoretically use a computer to help commit that crime,” Draeger said. “Now you can proclaim your gang membership on YouTube, whereas 10 years ago, we didn’t see this. Law enforcement is going to go more and more to using the computer (for investigations).”
But all members of the team regularly have to pull police duty if there is a homicide or other major crime.
“As a rule, I don’t have an investigator whose job is to check out YouTube every day and see what’s going on,” said Police Chief Dan Ortega. Rather than finding ways to halt the online threats, detectives are more likely to use them as a way to gather intelligence about local gangs or as evidence after a crime is committed.
Investigators acknowledge that leaving the videos online increases the risk that impressionable youngsters might go after someone they saw posted with “187" written across their face.
Police Cmdr. Juan Ruiz said youths might see an acquaintance they recognize and think, “next time I see him, I’m gonna hit him.”
Notifying potential victims
Officers claim they really don’t have much choice when it comes to policing the Internet.
“A systematic search of all online videos at all times? The manpower to do that would be substantial,” Draeger said.
“If the people of Salinas want to pay officers to watch the Internet all night, they can do that,” McMillin said. “But they’d probably rather have a black and white out there stopping real gang crimes.”
Still, police acknowledge they have an obligation to tell potential victims when lives are threatened, whatever the medium of the message.
“If, in the course of an investigation, we find there’s a threat to someone else’s life, we will do our best to notify the person,” Ortega said.
McMillin said the decision to notify is made on a case-by-case basis. As far as the recent YouTube videos, he said, it was unlikely the people in them were warned unless additional intelligence showed a serious threat was imminent. Being a gang member already puts a person at high risk of becoming a target, he said.
Monterey attorney Lawrence Biegel says that police have rarely been held responsible for not notifying someone of threats.
To be held liable, he said, there has to be a special relationship between officers and the victim, such as a witness who is offered protection.
“That makes it a ‘failure to warn,’” he said.
Biegel said he worked on one such case years ago, in which a witness’ identity was mistakenly revealed.
“She was cooperating with (police) and they told her they would protect her ... They gave away her ID and then she got killed,” he said. “It was really a tragic case.”
At the end of the day, it appears almost no one can be held responsible for threatening Internet posts, except in the most extreme cases.
A spokeswoman for YouTube said the site leaves the censorship decision up to users, who can flag posts considered threatening or offensive.
The spokeswoman said the site has software that automatically searches for copyright infringement, but not for gang threats.
Asked if the site has a mechanism for monitoring gang postings, the spokeswoman said, “Our community polices the site for inappropriate material, and users flag content that they feel is inappropriate. Once flagged, content is reviewed by our staff and usually removed from the system within minutes if it violates our community guidelines.”
Between protections offered by the United States Constitution and the anonymous nature of the Internet, Salinas police say, the number of online gang threats will only increase.
“The policy side of this is we live in a free country,” McMillin said. “Expression of distaste for another group is protected speech. That’s the reason the Klan can put on their robes and be protected.”
Copyright 2008 The Monterey County Herald