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Public Hearing on Two Bills, the Omnibus Anti-Crime Amendment Act of 2009 and the Public Safety and Justice Amendments Act of 2009

Wednesday, March 18, 2009

Public Hearing on Two Bills, the Omnibus Anti-Crime Amendment Act of 2009 and the Public Safety and Justice Amendments Act of 2009

Attorney General Peter J. Nickles and Chief of Police Cathy L. Lanier went before DC Council to present a joint testimony on the "Omnibus Anti-Crime Amendment Act of 2009" and the "Public Safety and Justice Amendments Act of 2009."

The following joint testimony was presented by Peter J. Nickles, Attorney General for the District of Columbia, and MPD Chief of Police Cathy L. Lanier to the District of Columbia Council Committee on the Judiciary, Honorable Phil Mendelson, Chair, on March 18, 2009, at the John A. Wilson Building, 1350 Pennsylvania Avenue, NW, Washington, DC.

Good morning Chairman Mendelson and members of the Committee.  We are pleased to have this opportunity to testify at this roundtable regarding Bills 18-138, the “Omnibus Anti-Crime Amendment Act of 2009” (the “Omnibus”), Bill-18-151, the “Public Safety and Justice Amendments Act of 2009,” and Bill 18-152, the “Hot Spot No Loitering Zone Act of 2009.”

We are submitting this testimony jointly to emphasize the importance of Bill 18-138, the Mayor’s “Omnibus Anti-Crime Amendment Act of 2009,” to the District of Columbia.  This legislation is a creative and thoughtful collaborative effort of the Mayor, the Attorney General, the Chief of Police, the United States Attorney, and the community.  In fact, some provisions of the bill have been revised in response to testimony before this Committee in November, as well as other community comments, and we look forward to hearing more feedback today on this critical legislation. 

Bill 18-138, the “Omnibus Anti-Crime Amendment Act of 2009”
The Mayor’s Omnibus Anti-Crime bill is ambitious in scope.  It seeks to modernize a number of laws and expand the tools available to law enforcement to protect the safety of the residents of the District.   The Omnibus, itself, is 56 pages and proposes numerous changes to District law that range from re-writing and modernizing the District’s “Stalking Law” to more procedural provisions such as allowing the court to close on New Year’s Day, Thanksgiving, and Christmas, thereby saving the District significant overtime expenses.  Rather then discuss in detail every section of the Omnibus in our testimony today, we are attaching a section-by-section analysis and the rationale for each proposed change.  Our testimony highlights those portions that we believe will have the most significant impact on public safety; that is the portions relating to firearms, witness protection, and gangs.

Firearms
Bill 18-138 proposes a number of changes to our criminal firearms law.  With the Supreme Court decision in the District of Columbia v. Heller, the District is entering a new era in which we expect legal gun ownership to increase. In fact, since the Heller ruling, MPD’s Gun Registration Unit has registered more than 400 handguns and 150 rifles and shotguns.   While the District government is strongly committed to complying with the ruling, and ensuring that law-abiding residents can possess a handgun in their home for self-defense, we also want to send an unambiguous message to those who commit violent acts that we will not tolerate criminal gun possession or use.

We are having some success in addressing criminal use of a firearm.  In 2008, gun crimes showed double digit reductions across the board, including a 12 percent reduction in robberies with guns and a 14 percent reduction in assaults with guns. In fact, there were fewer gun crimes in the summer of 2008 than any summer since at least 2003.   There was a 10 percent increase in the number of illegal guns recovered, for the highest number recovered in at least the past 6 years (excluding gun buy-back or amnesty programs).

Despite these successful efforts, guns are still used in about four out of five homicides in the District, nearly half of the robberies, and one-fifth of the assaults with a dangerous weapon. We can—and must--do more to ensure that repeat violent gun offenders who have been arrested are not allowed to quickly return to the communities they have victimized.  The Omnibus strengthens how the entire criminal justice system deals with criminal use and possession of a firearm by:

  1. Lengthening sentences for violent felons who possess guns (Section 208);
  2. Establishing for the purposes of pre-trial detention that criminal possession of firearms presents a danger to the community (Section 212);
  3. Closing a loophole that makes it difficult to charge illegal possession of a firearm when it is found in a vehicle (Section 220); and
  4. Enhancing supervision of gun offenders who are released to the community (Section 219).

Lengthening sentences for violent felons who possess guns (Section 208)
One of the most serious threats to public safety is from previously convicted felons who are later found to be in possession of a firearm.  Under both federal and District law, felons cannot possess firearms.  

In 2006, the Council passed legislation imposing a mandatory-minimum sentence of one year for a previously convicted felon who is then convicted of being in possession of a firearm.  This means that when police officers arrest, and the courts convict, a felon in possession of a firearm, that offender is off the streets for at least a year on the gun possession charge alone -- the police and prosecutors no longer have to wait until the felon commits another crime with the gun to exact significant consequences.  Over the past two years, this mandatory-minimum sentence has helped MPD and the U.S. Attorney’s Office get almost 250 felons with guns off the streets.

This is critical because a previously convicted felon in possession of a firearm clearly demonstrates that he or she has not been rehabilitated and is a serious danger to the community.  We know already that offenders with a previous conviction for a serious crime are more likely to commit future violent offenses.  According to a 12-year study by the Department of Justice, 38 percent of violent felons had a previous felony conviction and 15 percent had a previous conviction for a violent felony [Footnote 1].  If a person previously convicted of a violent felony is found again with a firearm, getting him or her off the street is essential to preventing future violent crimes.

We believe that the existing mandatory-minimum sentence has been effective in getting criminals off the streets and in reducing violent gun crime in the District since 2006.  But we also know that this sentencing can be made stronger and be even more effective in deterring felons from carrying guns and in preventing the next gun crime.  We can look to our neighbors in Virginia to gauge the impact a longer mandatory-minimum sentence could have.  Virginia has a two-year mandatory-minimum sentence for felons in possession of a firearm, which increases to five years if the previous felony conviction was for a violent crime.  Local, state, and federal law enforcement and prosecutors credit tough and certain sentences for gun offenses with significant reductions in violent crime in Richmond.  Homicides in Richmond have dropped in each of the past five years, from 93 in 2003 to 32 in 2008—a two-thirds reduction overall.  In 2008, violent crime decreased 14 percent [Footnote 2].

Section 208 also clarifies that existing penalty enhancements for gun crimes includes previous convictions in other jurisdictions, not just the District of Columbia.  The thinking behind this is that if the purpose of the enhanced penalty is to punish recidivists more severely, the place where they committed their first crime of violence should make no difference.

Establishing that criminal possession of firearms presents a danger to the community (Section 212)
Bill 18-183 would also give the court more authority to detain gun offenders.  When an individual uses a gun in a crime of violence, illegally possesses a gun, or is a convicted felon in possession of a firearm, the Act creates a presumption in favor of pre-trial detention.  While everyone accused of a crime is presumed innocent, this legislation is consistent with the District’s current statutory approach to pre-trial detention in that the courts must consider the nature of the charged crime when considering whether it is safe to release that person back into the community. 

Currently under DC Code 23-1322, which governs pre-trial detention, the government can establish a presumption that the accused should be held pending trial by proving a "substantial probability" that the accused possessed the weapon. The Omnibus proposes changing 23-1322 to lessen the burden on the government at the detention stage to having to establish that there is "probable cause" to believe that the accused possessed the weapon in order for the court to detain the individual. In addition to CPWL, the Omnibus also proposes adding several other gun related charges, including carrying a rifle or shotgun, possession of a firearm during a crime of violence and unlawful possession of a firearm to the provision that would permit pretrial detention.

Closing a loophole that makes it difficult to charge illegal possession of a firearm when it is found in a vehicle (Section 220)
Law enforcement, the criminal justice system, and the community can all agree that people illegally carrying or transporting guns in the community are a danger.  As we will discuss later, all too often criminals will use cars to facilitate criminal acts to ensure a quick get-away.  Criminals carrying guns in DC also know that it is much harder to convict someone of criminal possession of a firearm if there is more than one person in the car and the gun is located such that no one has clear control of the gun.  Because of District case law , we see in the histories of some of our most violent offenders multiple arrests for criminal possession of a firearm that do not end in conviction.  In order to close this gap, the Administration is proposing a new offense of illegal possession of a firearm in a vehicle.  To be clear, this offense would not apply to anyone with a legally registered firearm or to anyone transporting a firearm to a lawful activity.  Nor would it be used to prosecute someone who unknowingly rides in a car with a firearm.  It would mean that criminals will no longer be able to knowingly ride around with a gun in clear sight in a car and then claim that it was not in their possession or under their control as a defense. 

Enhancing supervision of gun offenders who are released to the community (Section 219)
The Omnibus also strengthens supervision of convicted gun offenders once they are released back into the community.  Modeled on successful programs in New York City and Baltimore, the Anti-Crime Act will create a “gun offender registry,” which will require gun offenders to register and maintain an accurate address with MPD for two years after incarceration or supervision ends. 

We asked officials in Baltimore for information on the evaluation of their gun offender registration program.  As of February 3, 2009, Baltimore had 472 gun offenders under supervision.  270 were incarcerated, 50 lived outside of the city, and 152 were out of jail and living in Baltimore.  In just over a year, overall recidivism for these offenders is quite low: only three people in the registry were re-arrested for handgun violations.  

As noted above, studies conclusively demonstrate that gun offenders pose a high risk of recidivism, and their subsequent arrests are more likely to involve crimes of violence.  Baltimore found that 42% of defendants charged with felony gun crimes have prior gun arrests.  In New York City, when compared to other felons, those convicted of felony gun possession were more likely to be re-arrested for crimes of violence and perhaps most significant is the finding that previous gun offenders are four times more likely to be arrested for homicide than other offenders. 

Witness Security
Section 201 of the Omnibus allows police and prosecutors to remove the names and addresses of victims of certain crimes on public police reports, including victims of domestic crimes, violent crimes, stalking, and threats.  Oftentimes, victims have a real and persistent fear of re-victimization or retaliation, which is heightened when their assailants can find them.  This is true of many crimes, but particularly of those crimes covered by this provision.  In some cases, victims move and sometimes change their name in fear that assailants will be able to find them.  In addition, for sexual assault victims in particular, there is the added fear of public exposure of the nature of their victimization.  Notwithstanding these valid victim concerns, under current law, a victim’s name and address are public.  This amendment seeks to protect this information in a way that is sensitive to competing interests, including the defendant’s right to know the identity of his or her accuser.

To be clear, this provision would not change the right of a defendant in a criminal case to know who the victim is.  This information will still be disclosed, and if need be, under a protective order.  However, under District law, a victim also has a right to be treated with fairness, dignity, and privacy, and to be reasonably protected from the accused [Footnote 3].  While these issues have long been a concern, this protection against unnecessary disclosure of witness information is needed now more than ever.  Retaliation is a significant threat in modern crime.  Witnesses have been murdered and otherwise assaulted to deter them from testifying against perpetrators of crime.  The government needs to do everything it reasonably can to protect those who come forward -- protecting their names and addresses is a small, but significant step in that direction.  Sensitive to the concerns expressed by the media since introduction of the bill, MPD is already working out an efficient process by which members of the press can quickly access necessary information that achieves the aims of the legislation as well as those of the media.

Gangs
Section 102 of Bill 18-138 would give the DC Attorney General the ability to seek civil injunctions against criminal gangs operating in the District.  As you are aware, gangs are a growing problem in the District of Columbia and nationwide.  In fact, we were very pleased to see Chairman Mendelson adopt word for word in Bill 18-151 the “Findings and Declaration of Necessity” proposed in the Omnibus, which recognizes the growth of gangs, the injurious effect that gang activity has on neighborhoods, and  the need for creative action to address these issues.  We look forward to continuing to work with you, Mr. Chairman, to come up with a final version of the legislation that achieves our common policy goals in light of the resources of the OAG.  Gangs may range in sophistication from a formal organization with a leader or ruling council, gang colors, gang identifiers, gang name and national affiliation, to a looser knit group of individuals who come from the same neighborhood or housing development and regularly commit violent crimes together.  Both groups involve individuals who ban together, stake out turf, harass innocent residents, commit violent or other crimes, and war with competing groups with the result that bystanders are often hurt or killed in the crossfire.  If we are to reduce crime in the District, we must figure out ways to prevent both of these types of gangs from flourishing in our city.

At the present time, the Metropolitan Police Department (MPD) estimates that there are approximately 1,730 active gang members in 87 gangs in the District.  Each gang has established turf in a city neighborhood.   There are 8 gangs who have made a neighborhood in the First Police District (1D) their turf; 18 gangs who are at home in 3D; 13 gangs who have established themselves in 4D; 12 gangs who operate in communities served by 5D; 16 gangs who base themselves out of 6D neighborhoods; and 20 gangs that make a neighborhood in 7D their home. Every day, citizens and neighborhoods in the District are victimized by the activities of these gangs.  For example, in September of this year, eight members of a local Bloods gang sect were indicted on federal racketeering charges.  A federal grand jury returned a 19-count indictment against them which included the charges of conspiracy to commit kidnapping in aid of racketeering activity, kidnapping in aid of racketeering activity, assault with a dangerous weapon, six counts of sexual abuse and obstructing justice.

Faced with growing gang activity, jurisdictions around the country have tried to develop innovative ways to reduce such crime, impede gang growth, and generally interfere with gangs’ ability to function.  Sometime in the late 1980s and early 90s, a school of thought developed with the following principles:

  • gangs are nothing more than an unincorporated association of individuals who regularly come together;
  • under common law, an association of individuals is responsible for the consequences of its activities.
  • associations can be sued in civil court to enjoin them from performing illegal activities; and
  • what gangs do in public space constitutes a public nuisance.

Thinking about gangs in this new way led to an innovative approach for reducing the incidence of gang violence.  City attorneys began suing gangs in civil court seeking orders that would enjoin them from being a public nuisance.  Civil courts issued injunctions against gangs, as unincorporated associations, and their respective members for violations of local nuisance laws [Footnote 4].  The injunctions were limited in scope and, in order to not interfere with constitutionally protected activity, only enjoined persons from engaging in listed activities in a relatively small geographic area. These gang injunctions prohibit gang members from engaging in a limited amount of activities that are considered a nuisance to the community or that have been proven to be precursors to the gang’s criminal and nuisance behavior [Footnote 5].  Please note that the key to this enforcement tool is that it prevents and enjoins identified gang members from associating with each other within the defined boundaries of public space or within view of that public space. 

Gang members who knowingly violate the terms of these injunctions are charged with criminal contempt in the same way that any party in a civil matter can be charged with contempt for violating a court order.  In other words, the purpose of the gang injunction is to initially use the civil system to change the behavior of the gang members in ways that reduce and interrupt their ability to engage in criminal and nuisance activities, intimidate neighborhood residents, recruit others into the gang, and lessen the gangs’ ability to control turf.  So long as enjoined gang members do not violate the terms of the injunction, they can go about their legal business even within the limited geographic area established in the injunction.

It is important to note at the outset that these injunctions have survived constitutional challenges. For example, in Gallo v. Acuna, 929 P.2d 596 (1997), the Supreme Court of California upheld the validity of an injunction issued against a gang in San Jose.  The Court held that the defendants' association was not entitled to protection under the U.S. Constitution because the gang was not formed for the purpose of engaging in protected speech or religious activities.  The Court further held that the trial court's preliminary decree was not overbroad because it was addressed to identifiable parties and to specific circumstances and the enjoined acts were particularly described.   In the conclusion of the majority opinion, the California Court stated:

To hold that the liberty of the peaceful, industrious residents of Rocksprings must be forfeited to preserve the illusion of freedom for those whose ill conduct is deleterious to the community as a whole is to ignore half the political promise of the Constitution and the whole of its sense. The freedom to leave one's house and move about at will, and to have a measure of personal security is "implicit in 'the concept of ordered liberty' enshrined in the history and basic constitutional documents of English-speaking peoples.  Preserving the peace is the first duty of government, and it is for the protection of the community from the predations of the idle, the contentious, and the brutal that government was invented.” (Internal citations omitted.) [Footnote 6]  

The Court of Appeals of Texas, like the Supreme Court of California, has also upheld the validity of civil gang injunctions.  In August 2008, the Texas court ruled in the case of Goyzueta v. Texas, 2008 Tex. App. LEXIS 6565, that the Texas Penal Code which establishes civil gang injunctions

was not overbroad under the First Amendment.  [The injunction] did not restrict a substantial amount of constitutionally protected conduct; the only conduct it restricted was a knowing violation of a court order.  Moreover, it was not void for vagueness.  The clear language of the statute would have given an individual in defendant's position clear notice that violating the curfew amounted to a criminal offense.  Further, it was not arbitrarily applied; instead, it prevented arbitrary enforcement through the establishment of certain guidelines. 

Civil gang injunctions have had success in Los Angeles, San Francisco and other cities.  For example, in 2002, Professor Jeffrey Grogger released a study of the effectiveness of civil gang injunctions on reported violent crime in Los Angeles County [Footnote 7].  Professor Grogger did a comprehensive study comparing the target areas, where there were injunctions, with adjoining areas and neighboring areas.  He concluded that the civil gang injunctions led the level of violent crime to decrease in the target areas by about 7%.

Professor Grogger then analyzed whether the decrease in violent crime due to the civil gang injunctions caused crime to increase or spillover into adjoining areas.  He compared the changes in violent crime within adjoining areas to changes within neighboring areas over the same time period.  The result was a statistically insignificant spillover amount.  So, while the civil gang injunction was shown to decrease violent crime in the injunction target areas, it did not displace that crime to surrounding neighborhoods.  In other words, as Professor Grogger states, “under the assumption that the neighboring areas provide an adequate comparison sample, the estimates indicate that the injunctions significantly reduced the level of violent crime in the target areas without causing spillovers.” [Footnote 8] 

In addition to decreasing violent crime, there is evidence that civil gang injunctions actually decrease neighborhood residents’ fear of intimidation and confrontation with gang members.  Gang injunctions, therefore, serve both as a crime reduction tool as well as a mechanism that makes everyday citizens more comfortable going about their business.

In April 2004, a report entitled Can Civil Gang Injunctions Change Communities? A Community Assessment of the Impact of Civil Gang Injunctions was submitted to the National Institute of Justice, U.S. Department of Justice [Footnote 9].   As reported in the abstract:

“[t]he study surveyed 797 San Bernardino residents in five neighborhoods eighteen months prior and 1229 residents six months subsequent to the issuance of a [gang] injunction.”  The report concludes that “[a]nalyses indicated positive evidence of short-term effects in the primary injunction area, including less gang presence, fewer reports of gang intimidation and less fear of confrontation with gang members.  The primary injunction area showed no significant changes in intermediate or long-term outcomes save lower fear of crime.  See report at page iv.  In fact, “fewer residents report acts of gang intimidation and residents report less fear of confrontation with gang members.  We estimate a net shift of thirteen percent fewer respondents experiencing intimidation and twelve percent fewer respondents experiencing more than a little fear in the primary injunction area relative to its control.  See report at page ix.

Of course, the use of civil gang injunctions has generated valid concerns regarding their impact on civil liberties, and we would like to address those concerns beyond the legal analysis summarized above.  First, please note that the legislation does not allow judges to issue stay away orders that would prevent people from going into their neighborhoods or standing in public space.  It does not single out any group based on race, religion, gender or any other constitutionally protected status.  It does not prevent family members -- even known gang members -- from gathering with each other in their homes outside of public view.  What Section 103 of the bill does do is authorize the issuance of civil injunctions against criminal gangs that would declare their public gang-related behavior a nuisance and permit a judge to issue orders aimed at gang members that would prohibit certain gang related activities from occurring in the public space within a narrowly defined geographic area.

Now let us turn our attention to the specifics of the gang injunction proposal.    As we mentioned earlier in our testimony, section 102(a) states the purpose of the legislation as creating “a mechanism so that civil actions may be brought to enjoin gangs and gang members from engaging in activities which create a public nuisance.”  It then recaps gang-related crime in the District and concludes that “[s]uch gang activity injures the health, safety and security of the District’s citizens, frightens or intimidates them, obstructs the free use of both private and public property, and interferes with the comfortable enjoyment of the lives and property of the District’s residents, and is therefore a nuisance.”  Finally, Section 102 (a) declares that “[t]he enactment of this subchapter is hereby declared to be a public necessity.”  Again we are very pleased that Chairman Mendelson shares our concerns by adopting the same statement in Bill 18-151.

Since introducing the concept of civil gang injunctions in Bill 17-951 and providing testimony in the last legislative session we have re-written several portions of our original proposal to meet some of the concerns raised at the roundtable.  These changes were the result of careful consideration of comments from residents and civil liberty advocates.  For example we have expanded the definition of “gang” [Footnote 10]  in section 102(b)(2), “gang activity” in section 102(b)(4) and “Public Nuisance; Use of Space” in 102(d).  By adding to and clarifying these definitions we believe that we have given specific notice as to the activities that this legislation targets, while maintaining the basic premise under Section 102(c) that it is a public nuisance for a gang “to engage in gang activity in any private place or public space in the District of Columbia or to use any private place or public space in the District of Columbia as a base for engaging in gang activity in another jurisdiction.”   Similarly, Section 102(d) recognizes that certain gang activity in public space is a public nuisance.  This portion of the bill states that “[i]t is a public nuisance for a criminal street gang to engage in a pattern of behavior on public space which has an adverse impact upon the community or neighborhood or any considerable number of persons.”  Moreover, we have provided a procedure whereby juveniles may also be brought under a civil gang injunction. 

Section 102(e) establishes the ability of OAG to file a complaint in the Civil Division of the Superior Court of the District of Columbia to enjoin public nuisances created by gangs.  It acknowledges that in litigation of public nuisances, the government is not required to furnish bond or security and that actions to enjoin a nuisance are tried in equity without a jury [Footnote 11].   In another significant change from Bill 17-951, section 102(e)(6)  provides that OAG must establish the existence of the public nuisance by the more stringent civil standard of clear and convincing evidence, another change made since first introduction of the legislation. 

Section 102(e)(2) requires that the complaint “must identify the criminal street gang and allege that there is an adverse impact of the gang’s activities within a defined geographic area such that there exists a public nuisance” and requires OAG to “list at least three criminal street gang members whom the Attorney General  alleges should be designated to receive service on behalf of the entity.”  Significantly, section 102(e)(3) allows “any person who associates with others to engage in gang activity as a member of a criminal street gang may be made a defendant in the suit,” and “any person who owns or is responsible for maintaining a place that is used for engaging in gang activity also may be made a defendant in the suit.” 

OAG expects that it will use law enforcement witnesses to prove the existence of the gang related public nuisances. That said, Section 102(f) of the bill provides that when proof of the existence of the public nuisance depends, in whole or in part, upon information from civilian witnesses, the court, in its discretion, may issue an order to protect those witnesses.  While OAG does not expect that gang injunction litigation will be premised in any great part on affidavits of civilian witnesses, we wanted to be sure that should it be necessary that we use civilian affidavits, there are some provisions built into the statute that would protect these vulnerable witnesses from retaliation from gang members whose gang is the target of the case.
 
The bill provides that, when necessary, judges may place under seal the supporting affidavits or the portions thereof that would identify civilian witnesses.  This portion of the bill was based upon the Drug or Prostitution-Related Nuisance Abatement Act, as codified in D.C. Official Code § 42-3101, et seq.  Specifically, D.C. Official Code § 42-3105, which states that “[i]f proof of the existence of the drug or prostitution-related nuisance depends, in whole or in part, upon affidavits of witnesses who are not law enforcement officers, the court in its discretion may issue orders to protect those witnesses, including, but not limited to, placing the complaint and supporting affidavits under seal.”  Certainly, the concern for witness safety that led the Council to protect civilian witnesses when they assist in litigation to end drug or prostitution related nuisances applies to civilian witnesses who may assist in litigation aimed at ending gang related nuisances.

Sections 102(g) and (h) authorize the court to issue preliminary and permanent injunctions.  They provide that if the court finds that the gang activity constitutes a public nuisance, the court may enter an order permanently enjoining, abating, and preventing the continuance or recurrence of the nuisance.  They further state that the court order shall be directed against the crew or criminal street gang and its respective members prohibiting specified activities in a defined geographic area.  In subparagraph (A), it provides that “[t]he order shall enjoin (i) the crew or criminal street gang and its respective members from engaging in gang activities; and (ii) the crew or criminal street gang members from associating or congregating with one or more other enjoined crew or criminal street gang members in public space within a defined geographic area.”

Section 102(h) then goes on to state that the injunction may also impose other reasonable prohibitions to disrupt gang activities.  Among the possible enjoinable activities listed in the legislation, they include prohibiting gang members from:

  • Using private property for gang activities;
  • Confronting, intimidating, annoying, harassing, threatening, challenging, provoking, or assaulting any person;
  • Possessing or knowingly remaining in the presence of anyone who is in possession of any firearm, ammunition, or other weapon;
  • Possessing or knowingly remaining in the presence of anyone who is in possession of any controlled substance or drug paraphernalia;
  • Being present on any private property within a defined geographic area without the written consent of the owner;
  • Defacing any public or private property;
  • Possessing graffiti material [Footnote 12] ; and
  • Violating a court-defined curfew.

When drafting Section 102 of this bill, we were very careful not to impinge on the gang members’ constitutionally guaranteed freedom of association.  Freedom of association does not extend to joining with others to commit illegal activities.  As the Court stated in Gallo, supra, “[f]reedom of association, in the sense protected by the First Amendment, does not extend to joining with others for the purpose of depriving third parties of their lawful rights." (Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 776 [114 S. Ct. 2516, 2530, 129 L. Ed. 2d 593]).  We do not, in short, believe that the activities of the gang and its members ... are either "private" or "intimate" as constitutionally defined; the fact that defendants may "exercise some discrimination in choosing associates [by a] selective process of inclusion and exclusion" ( New York State Club Assn. v. New York City (1988) 487 U.S. 1, 13 [108 S. Ct. 2225, 2234, 101 L. Ed. 2d 1], italics added) does not mean that the association or its activities ... is one that commands protection under the First Amendment.”

Section 102(h) also establishes a procedure for bringing new gang members under the terms of the injunction.  These provisions were added in recognition that gangs continuously and actively recruit new members.  It makes no sense not to have a mechanism to subject new members of the unincorporated association to the same injunction that was designed to eliminate the public nuisance caused by the members who recruited them.

Section 102(i) establishes the penalty that the court could impose on persons who it has found to have violated its injunction.  Under this provision, a person who violates a temporary or permanent injunction is subject to a fine of not less than $1,000 nor more than $10,000, imprisonment for not less than 30 days nor more than 180 days, or both.  This charge, as a variant of criminal contempt, would be prosecuted by the United States Attorney for the District of Columbia.

The final portion of the bill regarding gangs that we would like to highlight is found in Section 102(l) and is entitled “Injunction Review and Termination of Gang Affiliation.”  While the Texas statute does not specifically provide for a way for persons who have disassociated themselves from gangs to remove themselves from the terms of the gang injunction, and we have found no California case law on point, in drafting this legislation we wanted to make sure that persons who honestly and demonstrably have cut off all ties with gang activities could cease to come under the terms of the injunction.  As a result of concerns raised at the previous roundtable on gang injunctions, this version of the bill now includes specific factors that the court may use in determining whether a person is still gang affiliated.   These factors include:  the length of time that the person has disassociated him or her self from gang and criminal activity, establishment of residency outside the enjoined area, the obtaining of a GED or other educational certificate, gainful employment and completion of a court approved program which promotes a gang free lifestyle. 

Not withstanding that this Omnibus added a provision that would give more guidance to the court when it determines if a gang member has dissociated themselves from the gang and therefore should come out from under the terms of the gang injunction, the bill retains the requirement that the Executive Branch promulgate regulations that would indicate under what circumstances a person may obtain the government’s assistance in lifting the injunction.  We want to be clear that what we are talking about here is an alternative method that may be used by the former gang member.  With that goal in mind, Section 102(l) continues to require OAG in consultation with MPD to “promulgate regulations within 120 day detailing the process to provide relief to enjoined gang members who disaffiliate with the enjoined gang.” 

When considering whether to seek a civil gang injunction, MPD must provide the evidence establishing the statutory requirements to OAG.  MPD and OAG must then develop a case that can define the gang as an organized entity and demonstrate the criminal and nuisance activity committed by the gang.  This information must be in a form that is admissible as evidence in a court hearing and must be sufficiently compelling to prompt a judge to issue an injunction.  As you can see from a review of these activities, obtaining a civil gang injunction would require a significant investment of MPD and OAG time.  Such an expenditure of resources would only be used as part of a broader effort to thwart a gang’s ability to commit crime and terrorize law abiding citizens.

Overall, section 102 of the Omnibus would add another tool to the criminal justice tool box to fight the growth of gangs and gang-related crime.  Carefully crafted civil injunctions have been shown to decrease gang related crime in target neighborhoods without creating more crime in adjoining neighborhoods.  It inhibits gang members from intimidating neighborhood residents and has been shown to make those residents feel more secure when going about their business.

That concludes the joint testimony submitted by the Attorney General and the Chief of Police for the District of Columbia, Chairman Mendelson.  Thank you for this opportunity to testify and we are happy to answer any questions that you may have.

Footnotes

  1. Reaves, Brian. Bureau of Justice Statistics Special Report: Violent Felons in Large Urban Counties. US Department of Justice. July 2006.
  2. 2008 data from the Richmond Police Department, “Chief Releases 2008 Crime Reductions, 2009 Goals.”  Press Release, January 21, 2009. 2003 homicide figure from Federal Bureau of Investigation, Crime in the United States: 2003.
  3. See D.C. Official Code §§  23-1901 through 23-1906.
  4. In California, the City Attorney based their cases on common law nuisance principals.  In Texas, they passed a gang nuisance injunction statute that is similar to Section 103 of the Omnibus Anti-Crime Amendment Act of 2008.  See Tex. Civ. Prac. & Rem § 125.061 through 125.069 and § 71.01 and § 71.02.
  5. This information is taken from the April 2007 Office of the City Attorney report entitled Gang Injunctions: How and Why They Work.
  6.   See also, The People v. Englebrecht, 88 Cal. App. 4th  (2001).  The California Court of Appeals affirmed the validity of the gang injunction, holding (1) that the case was an equitable civil action to abate a public nuisance, and as such, did not require a trial by jury; (2) the government should prove its case by clear and convincing evidence, (3) the trial court used the correct definition in determining who was a gang member; (4) the scope of the injunction did not impermissibly limit appellant's associational rights; and (5) the prohibitions on gang hand signs and clothing were sufficiently narrowly tailored to abate the significant governmental purpose of abating an enjoinable public nuisance.
  7. See The Effects of Civil Gang Injunctions on Reported Violent Crime: Evidence from Los Angeles County, Journal of law and Economics, vol. XLV (April 2002).
  8. Id, at page 81.  In addition, in 2004, the Los Angeles County grand jury commissioned a study that applied Professor Grogger’s method to a different, more recent set of injunctions which reportedly generated the same results. 
  9. The report was co-authored by Cheryl Maxson, Karen Hennigan, David Sload and Kathy Kolnick and was funded by a U.S. Department of Justice Grant.
  10. Section 102(b)(2) defines a gang as a group of four or more individuals who engage in certain illegal activities.  We recognize that a smaller number of people would qualify as a criminal street gang under this legislation than would qualify as a criminal street gang under the current version of D.C. Official Code § 22-951(e), the criminal gang statute.  Sec. 102(o) of the bill, however, would, among other things, amend D.C. Official Code § 22-951(e) to lower the number of persons needed to prove a gang under D.C. Official Code § 22-951(e) from 6 to 4 persons.  This is another change from last year’s Omnibus wherein we recommended reducing the number from 6 to 3.   NOTE:  The US Attorney’s Office recently won its first conviction under §22-951(e) and, based on that experience, is opposed to changing that statute.  As the civil gang injunction and the criminal statute have two distinct purposes and therefore do not need to have mirroring language, we would propose adopting the definition in the Mayor’s Omnibus and leaving the language in §22-951(e) as it is currently written.
  11. Governmental authorities do not have to post bond or security because, unlike individual civil litigants, there is no fear that the City will be unable to pay judgments as ordered by the court.  The legislation recognizes that when suing for injunctive relief courts are sitting in equity. Courts which are guided primarily by equitable doctrine are said to be courts of equity.  When a court sits in equity it sits without a jury.  Examples of equitable remedies include injunctions and orders for specific performance. 
  12. Graffiti material is defined in the Anti-Intimidation and Defacing of Public or Private Property Criminal Penalty Act of 1982, effective June 12, 2001 (D.C. Law 4-203; D.C. Official Code § 22-3312.05(5)).