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Sponsors: Reps. Toole, Kirsh, Brady, Cotty, Bingham and Funderburk
Document Path: l:\council\bills\swb\5004cm07.doc
Companion/Similar bill(s): 78, 141, 3049, 3247
Introduced in the House on January 9, 2007
Currently residing in the House Committee on Judiciary
Summary: Criminal Gang Prevention Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/13/2006 House Prefiled 12/13/2006 House Referred to Committee on Judiciary 1/9/2007 House Introduced and read first time HJ-56 1/9/2007 House Referred to Committee on Judiciary HJ-56 1/11/2007 House Member(s) request name added as sponsor: Cotty 1/24/2007 House Member(s) request name added as sponsor: Bingham, Funderburk
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND CHAPTER 8, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 2 SO AS TO ENACT THE "CRIMINAL GANG PREVENTION ACT" AND TO REDESIGNATE THE EXISTING SECTIONS OF CHAPTER 8, TITLE 16 AS ARTICLE 1.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Sections 16-8-10, 16-8-20, and 16-8-30 of the 1976 Code are designated as Article 1 of Chapter 8, Title 16.
SECTION 2. Chapter 8, Title 16 of the 1976 Code is amended by adding:
Section 16-8-210. This article may be cited as the 'Criminal Gang Prevention Act'.
Section 16-8-220. The General Assembly finds that:
(1) It is the right of every person, regardless of race, color, creed, religion, national origin, sex, age, sexual orientation, or handicap to be secure and protected from fear, intimidation, and physical harm caused by the activities of criminal gangs and criminal gang members. It is not the intent of this article to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The General Assembly recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject, to lawfully associate with others who share similar beliefs, to petition lawfully constituted authority for a redress of perceived grievances, and to participate in the electoral process.
(2) The State of South Carolina is facing a mounting crisis caused by criminal gangs whose members threaten and terrorize peaceful citizens and commit a multitude of crimes. These criminal gang activities, both individually and collectively, present a clear and present danger. The State has a compelling interest in preventing criminal gang activity, and the General Assembly finds that the provisions of this act are necessary to maintain the public order and safety.
(3) It is the intent of the General Assembly to eradicate the terror created by criminal gangs by providing enhanced penalties and by eliminating the patterns, profits, proceeds, instrumentalities, and property facilitating criminal gang activity, including criminal gang recruitment.
Section 16-8-230. As used in this article:
(1) 'Contraband' means any real or personal property, including money, that is owned by, in the possession of, or subject to the control of a criminal gang member and which is acquired by, derived from, or traceable to criminal gang activity.
(2) 'Criminal gang' means a formal or informal ongoing organization, association, or group that consists of five or more persons who form for the purpose of committing criminal activity and who knowingly and actively participate in a pattern of criminal gang activity. Criminal gang includes, but is not limited to, racial extremist groups, outlaw motorcycle gangs, terrorist groups, and street gangs.
(3) 'Criminal gang member' means an individual who is an active member of a criminal gang.
(4) 'Pattern of criminal gang activity' means the commission or attempted commission of, commission as an accessory before or after the fact to, or solicitation or conspiracy to commit, by a criminal gang member, while knowingly and actively participating in criminal gang activity, four or more of the following offenses occurring within a two-year period, provided that at least three of these offenses occurred after July 1, 2007:
(a) a violent offense as defined in Section 16-1-60 committed as a part of criminal gang activity;
(b) financial transaction card crimes as defined in Chapter 14 of Title 16 committed as a part of criminal gang activity;
(c) first degree lynching as defined in Section 16-3-210 committed as a part of criminal gang activity;
(d) second degree lynching as defined in Section 16-3-220 committed as a part of criminal gang activity;
(e) breaking into a motor vehicle as defined in Section 16-13-160 committed as a part of criminal gang activity;
(f) grand larceny as defined in Section 16-13-30 committed as a part of criminal gang activity;
(g) blackmail as defined in Section 16-17-640 committed as a part of criminal gang activity;
(h) malicious injury to property as defined in Sections 16-11-510, 16-11-520, 16-11-530, and 16-11-535 committed as a part of criminal gang activity;
(i) drug offense as defined in Sections 44-53-370 and 44-53-375 committed as a part of criminal gang activity;
(j) harassment, stalking, or aggravated stalking as defined in Article 17, Chapter 3 of Title 16 committed as a part of criminal gang activity;
(k) pointing a firearm at any person as defined in Section 16-23-410 committed as a part of criminal gang activity;
(l) discharging a firearm at or into dwellings, structures, enclosures, vehicles, or equipment as defined in Section 16-23-440 committed as a part of criminal gang activity;
(m) the common law offense of assault and battery of a high and aggravated nature committed as a part of criminal gang activity; or
(n) the common law offense of obstruction of justice committed as a part of criminal gang activity.
(5) 'Gang-related incident' means an incident that, upon investigation, meets any of the following conditions:
(a) the participants are identified as criminal gang members acting collectively to further a criminal purpose of the criminal gang;
(b) a reliable informant identifies an incident as criminal gang activity based upon first-hand knowledge or personal observation; or
(c) an informant of previously untested reliability identifies an incident as criminal gang activity, and it is corroborated by independent information.
Section 16-8-240. (A) It is unlawful for a criminal gang member to use or threaten to use physical violence against another person with the intent to coerce, induce, or solicit that person or another person to actively participate in criminal gang activity, or to prevent another criminal gang member from withdrawing from or leaving a criminal gang. A criminal gang member who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than one thousand dollars or imprisoned not more than two years, or both. A criminal gang member convicted for a second or subsequent offense pursuant to this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both.
(B) A criminal gang member who uses a firearm, any other deadly weapon, or physical violence to coerce, induce, or solicit another person to actively participate in a criminal gang, or to prevent another criminal gang member from withdrawing or leaving a criminal gang, in addition to the punishment prescribed in subsection (A), may be punished by an additional fine of not more than ten thousand dollars or by imprisonment for an additional period of not more than ten years, or both.
(C) If the person solicited, recruited, coerced, or threatened in violation of this section is under the age of eighteen, an additional term of three years may be imposed in addition and consecutive to the penalty prescribed for a violation of this section.
(D) A person who has been coerced, intimidated, threatened, or injured in violation of this section has a civil cause of action against a criminal gang or criminal gang member violating this section for treble the amount of the actual damages, for punitive damages, an injunction, and any other appropriate relief in law or equity. Upon prevailing in the civil action, the plaintiff may recover reasonable attorney's fees and costs from the criminal gang or criminal gang member.
(E) Nothing in this section limits prosecution under any other provision of law.
Section 16-8-250. (A) It is unlawful for a criminal gang member by threat or force to:
(1) prevent a witness or victim from attending or giving testimony at a trial, proceeding, or inquiry authorized by law that concerns or relates to any criminal activity; or
(2) attempt to prevent a witness or victim from attending or giving testimony at a trial, proceeding, or inquiry authorized by law that concerns or relates to any criminal activity.
(B) A criminal gang member who violates a provision of this section is guilty of a felony and, upon conviction, must be punished by a fine of not more than ten thousand dollars or imprisoned for not more than ten years, or both.
(C) A person who has been coerced, intimidated, threatened, or injured in violation of this section has a civil cause of action against a criminal gang or criminal gang member violating this section for treble the amount of his actual damages, for punitive damages, an injunction, and any other appropriate relief in law or equity. Upon prevailing in the civil action, the plaintiff may recover reasonable attorney's fees and costs from the criminal gang or criminal gang member.
(D) Nothing in this section limits prosecution under any other provision of law.
Section 16-8-260. (A) Any private building or place used by members of a criminal gang to:
(1) engage in a pattern of criminal gang activity;
(2) commit a criminal act; or
(3) benefit, promote, or further the interests of a criminal gang, is a nuisance and may be the subject of an injunction or cause of action for damages or for abatement of a nuisance as provided for in Chapter 43, Title 15 and in this article.
(B) A person may file a petition for injunctive relief with the appropriate court seeking eviction from or closure of any premises used for commission of a pattern of criminal gang activity by a criminal gang. Upon proof by the plaintiff that the premises are being used by members of a criminal gang for any of the acts enumerated in subsection (A), the court may order the owner of record or the lessee of the premises to remove or evict criminal gang members from the premises. To abate the nuisance, the court also may order the premises sealed and prohibit the premises from being used for any of the acts enumerated in subsection (A).
(C) An action for injunction, damages, abatement, or other relief filed pursuant to this section must proceed according to this article and the provisions of Chapter 43, Title 15 relating to the abatement of nuisances.
(D) The court shall not issue an injunction or assess a civil penalty against any owner of record or the lessee of a private building or place, unless that person knew or should have known or had been notified of the use of the premises as a pattern of criminal gang activity. Any injunctive relief other than that specifically authorized in subsection (F) must be limited to that which is necessary to protect the health and safety of the residents or the public or that which is necessary to prevent further criminal activity. In addition to any other damages or injunction awarded, the court may assess a civil penalty not to exceed five thousand dollars against any or all of the defendants, as provided in subsection (F)(4).
(E) A petition for injunction must not be filed until thirty days after notice of the unlawful use or criminal conduct has been provided to the owner of record or the lessee by mail, return receipt requested, postage prepaid, to the last known address, or by personal service. If the premises are abandoned or closed, or if the whereabouts of the owner of record or lessee is unknown, all notices, process, pleadings, and orders required to be delivered or served under this section may be posted on a door of the premises, and this has the same effect as personal service on the owner of record or lessee. Injunctive relief authorized by subsection (F) may not be issued in the form of a temporary restraining order.
(F) If the court previously has issued injunctive relief ordering the owner of record or the lessee of the premises to close the premises or otherwise to keep the premises from being used for the commission of a pattern of criminal gang activity, the court, upon proof of failure to comply with the terms of the injunction and that the premises continue to be used for the commission of a pattern of criminal gang activity, may:
(1) order the premises demolished and cleared at the cost of the owner;
(2) order the premises sold at public auction and the proceeds from the sale, minus the costs of the sale and the expenses of bringing the action, delivered to the owner;
(3) order the defendant to pay damages to persons or local governing authorities who have been damaged or injured or have incurred expense as a result of the defendant's failure to take reasonable steps or precautions to comply with the terms of an injunction issued pursuant to the provisions of this article;
(4) assess a civil penalty not to exceed five thousand dollars against the defendant based upon the severity of the nuisance and its duration. In establishing the amount of any civil penalty, the court must consider:
(a) actions taken by the defendant to mitigate or correct the problem at the private building or place or the reasons why no such action was taken;
(b) the failure of the plaintiff to provide notice as required by subsection (E); or
(c) any other factor considered by the court to be relevant;
(5) impose any combination of the penalties contained in this subsection.
(G) A government entity or a nonprofit or charitable organization which is conducting its affairs with ordinary care or skill must not be enjoined pursuant to the provisions of this article.
(H) Nothing in this article prohibits an aggrieved person from seeking another remedy provided by law.
Section 16-8-270. (A) A civil cause of action is created in favor of the State of South Carolina, a county, municipality, or another political subdivision, or an agency or instrumentality of them, that sustains any damage, impairment, or injury proximately caused by a pattern of criminal gang activity as defined in this article, or the commission of a criminal act for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. The cause of action created by this section may be brought against a criminal gang, a criminal gang member, or any other person who intentionally directs, participates, conducts, furthers, or assists in the commission of a pattern of criminal gang activity, or any other person who commits a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
(B) Except as provided in this section, an action for injunction, damages, or other relief filed pursuant to this section must proceed according to the common law, statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit court.
(C) For purposes of venue, an action under this section for the recovery of damages may be brought in the county where the wrongful conduct occurred, or in the county where the damages were sustained. An action to enjoin the commission of an offense or an unlawful act may be brought in the county where the wrongful conduct occurred or may occur. For purposes of service of process, service of process upon a member of a criminal gang or a person representing a criminal gang member by appointment of court, operation of law, or mandate constitutes adequate service upon a criminal gang.
Section 16-8-280. In all civil actions brought under the provisions of this article, the identity of an informant, identifying information relating to an informant, and all matters exempt from disclosure under Chapter 4, Title 30, the Freedom of Information Act, are exempt from discovery or disclosure under the rules of civil procedure.
Section 16-8-290. (A) Any firearm, ammunition to be used in a firearm, or dangerous weapon in the possession of a member of a criminal gang may be seized by a law enforcement officer or agency when the law enforcement officer or agency reasonably believes that the firearm, ammunition to be used in a firearm, or dangerous weapon is or will be used in a pattern of criminal gang activity or in the commission of a criminal act for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
(B) The solicitor or another prosecuting attorney shall initiate, in a civil action, forfeiture proceedings by petition in a court of competent jurisdiction regarding any property seized pursuant to the provisions of this section within ninety days of seizure. The solicitor or another prosecuting attorney must provide notice of the filing of the petition to those criminal gang members who become known to law enforcement officials as a result of the seizure and any related arrests, and to any person learned by law enforcement officials to be the owner of any of the property involved. After initial notice of the filing of the petition, the court must ensure that all persons so notified continue to receive notice of all subsequent proceedings related to the property.
(C) A person who claims an interest in any seized property, in order to assert a claim that the property should not be forfeited, must file a notice with the court, without the necessity of paying costs, of the intent to establish either of the following:
(1) that the person asserting the claim did not know and could not have known of the property's use in the commission of a pattern of criminal gang activity; or
(2) that the law enforcement officer lacked the requisite reasonable belief that the property was or would be used in the commission of a pattern of criminal gang activity.
(D) In any hearings held and determinations made, pursuant to this section, the court may receive and consider, in making a determination of reasonable cause, all evidence admissible in determining reasonable or probable cause at a preliminary hearing together with inferences arising from the evidence presented.
(E) An acquittal or dismissal in a criminal proceeding must not preclude civil proceedings under this section. However, for good cause shown, on motion by the solicitor or another prosecuting attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of this section. A stay is not available pending an appeal.
(F) Except as otherwise provided by this section, all proceedings under this section are governed according to the common law, by statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit court. Additionally, any action under the provisions of this section may be consolidated with any other action or proceeding pursuant to this section relating to the same property on motion of the solicitor or prosecuting attorney.
(G) The forfeiture provided for in this section must be decided by the court. The hearing on the claim must be held within sixty days after service of the petition, unless continued for good cause. The solicitor or prosecuting attorney has the initial burden of establishing probable cause for forfeiture of the property. If the state or governmental entity bringing the action establishes probable cause, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture.
(H) A person who asserts a successful claim in accordance with subsection (C) must be awarded the seized property by the court. All property to which no claim is filed, or to which no successful claim is made may be destroyed, sold at a public or private sale, retained for use by the seizing agency, or transferred without charge to any law enforcement agency of the State for use by the agency.
Section 16-8-300. When a criminal gang member is released from the custody of a jail, prison, or corrections facility, and the criminal gang member was in the custody of the jail, prison, or corrections facility for a violation of the provisions of this article, the jail, prison, or corrections facility must transmit notice of the release of the criminal gang member to the sheriff of the county in which the crime was committed. Notice also must be given to a sheriff that the criminal gang member is being released and has provided an address within the jurisdiction of that sheriff for the county in which the criminal gang member intends to reside. If the crime was committed in a municipality, or if the criminal gang member will reside in a municipality upon release, that law enforcement agency must transmit the same notice to the chiefs of police of those municipalities.
Section 16-8-310. This article does not apply to employees lawfully engaged in collective bargaining activities for their mutual aid and protection or the lawful activities of labor organizations or their members or agents.
Section 16-8-320. Nothing in this article prohibits the governing body of a county, a municipality, or another political subdivision of the State from adopting and enforcing ordinances consistent with this article relating to criminal gangs, criminal gang members, and gang violence. When local ordinances duplicate or supplement this article, this article provides alternative remedies.
Section 16-8-330. The State Law Enforcement Division must include the Violent Gang and Terrorist Organization File of the Federal Bureau of Investigation's National Crime Information Center among those National Crime Information Center data available for direct access by authorized criminal justice agencies. State, county, and municipal law enforcement agencies must maintain a record of all persons who are found to be criminal gang members in the Violent Gang and Terrorist Organization File in accordance with the National Crime Information Center entry criteria. All gang-related incidents must be appropriately annotated in the South Carolina Incident Based Reporting System pursuant to the intent and purpose of this article."
SECTION 3. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, the holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 4. This act takes effect upon approval by the Governor.
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