H 3139 General Bill, By E.H. Pitts, Haskins, G.R. Smith, Mahaffey, Huggins, 
Brady, Cotty, Funderburk, Bingham, Toole and Ballentine
 A BILL TO AMEND CHAPTER 8, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO OFFENSES THAT PROMOTE CIVIL DISORDER BY DESIGNATING THE EXISTING
 SECTIONS AS ARTICLE 1 AND BY ADDING ARTICLE 3 SO AS TO PROVIDE FOR THE
 PREVENTION OF CRIMINAL GANG ACTIVITY ON SCHOOL PROPERTY AND AT
 SCHOOL-SPONSORED AND SCHOOL-RELATED FUNCTIONS, TO DEFINE THE TERMS
 "CONTRABAND", "CRIMINAL GANG", "CRIMINAL GANG MEMBER", "PATTERN OF CRIMINAL
 GANG ACTIVITY", AND "GANG-RELATED INCIDENT", TO PROVIDE 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 ANOTHER PERSON TO
 ACTIVELY PARTICIPATE IN CRIMINAL GANG ACTIVITY OR TO PREVENT A PERSON FROM
 LEAVING A CRIMINAL GANG WHILE ON SCHOOL PROPERTY OR AT A SCHOOL-SPONSORED OR
 SCHOOL-RELATED FUNCTION AND TO PROVIDE PENALTIES, TO PROVIDE AN ADDITIONAL
 PENALTY FOR COMMITTING THIS OFFENSE WITH A FIREARM OR DEADLY WEAPON, TO
 PROVIDE AN ADDITIONAL PENALTY IF THE PERSON THREATENED IS UNDER THE AGE OF
 EIGHTEEN, TO PROVIDE THE PERSON THREATENED HAS A CIVIL CAUSE OF ACTION AGAINST
 A CRIMINAL GANG OR CRIMINAL GANG MEMBER, TO PROVIDE FOR A CIVIL CAUSE OF
 ACTION IN FAVOR OF THE SCHOOL OR SCHOOL DISTRICT THAT SUSTAINS ANY DAMAGE,
 IMPAIRMENT, OR INJURY PROXIMATELY CAUSED BY A PATTERN OF CRIMINAL GANG
 ACTIVITY, TO PROVIDE A PROCEDURE FOR BRINGING THIS CIVIL CAUSE OF ACTION, TO
 PROVIDE FOR PROTECTION OF THE IDENTITY OF AN INFORMANT, TO PROVIDE FOR THE
 SEIZURE OF ANY FIREARM, AMMUNITION, OR DANGEROUS WEAPON IF THE LAW ENFORCEMENT
 OFFICER REASONABLY BELIEVES IT IS OR WILL BE USED IN A PATTERN OF CRIMINAL
 GANG ACTIVITY ON SCHOOL PROPERTY OR AT A SCHOOL-SPONSORED OR SCHOOL-RELATED
 FUNCTION, TO PROVIDE A PROCEDURE FOR SEIZURE OF A FIREARM, AMMUNITION, OR
 DANGEROUS WEAPON, TO PROVIDE THAT THIS ARTICLE DOES NOT APPLY TO EMPLOYEES
 LAWFULLY ENGAGED IN COLLECTIVE BARGAINING ACTIVITIES OR THE LAWFUL ACTIVITIES
 OF LABOR ORGANIZATIONS, TO PROVIDE THE GOVERNING BODY OF A SCHOOL DISTRICT MAY
 ADOPT AND ENFORCE ORDINANCES CONSISTENT WITH THIS ARTICLE; BY ADDING SECTION
 59-63-75 SO AS TO PROVIDE THAT EACH SCHOOL IN THIS STATE THAT REQUIRES
 STUDENTS IN KINDERGARTEN THROUGH EIGHTH GRADES TO WEAR UNIFORMS SHALL RECEIVE
 STATE LOTTERY FUNDS TO PROVIDE A SCHOOL RESOURCE OFFICER AND PROVIDE THAT A
 STUDENT'S PARENT OR GUARDIAN MAY EXEMPT THE STUDENT FROM THE SCHOOL UNIFORM
 POLICY; AND BY ADDING SECTION 59-63-245 SO AS TO PROVIDE THAT A STUDENT WHO
 HAS BEEN SUSPENDED OR EXPELLED SHALL ATTEND A CONFERENCE WITH HIS PARENT OR
 GUARDIAN AND THE DESIGNATED SCHOOL ADMINISTRATOR BEFORE THE STUDENT MAY BE
 PERMITTED TO RETURN TO THE SCHOOL.

   12/13/06  House  Prefiled
   12/13/06  House  Referred to Committee on Judiciary
   01/09/07  House  Introduced and read first time HJ-76
   01/09/07  House  Referred to Committee on Judiciary HJ-78
   01/11/07  House  Member(s) request name added as sponsor: Cotty
   01/23/07  House  Member(s) request name added as sponsor: Funderburk
   01/24/07  House  Member(s) request name added as sponsor: Bingham, Toole
   01/25/07  House  Member(s) request name added as sponsor: Ballentine

TO AMEND CHAPTER 8, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENSES THAT PROMOTE CIVIL DISORDER BY DESIGNATING THE EXISTING SECTIONS AS ARTICLE 1 AND BY ADDING ARTICLE 3 SO AS TO PROVIDE FOR THE PREVENTION OF CRIMINAL GANG ACTIVITY ON SCHOOL PROPERTY AND AT SCHOOL-SPONSORED AND SCHOOL-RELATED FUNCTIONS, TO DEFINE THE TERMS "CONTRABAND", "CRIMINAL GANG", "CRIMINAL GANG MEMBER", "PATTERN OF CRIMINAL GANG ACTIVITY", AND "GANG-RELATED INCIDENT", TO PROVIDE 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 ANOTHER PERSON TO ACTIVELY PARTICIPATE IN CRIMINAL GANG ACTIVITY OR TO PREVENT A PERSON FROM LEAVING A CRIMINAL GANG WHILE ON SCHOOL PROPERTY OR AT A SCHOOL-SPONSORED OR SCHOOL-RELATED FUNCTION AND TO PROVIDE PENALTIES, TO PROVIDE AN ADDITIONAL PENALTY FOR COMMITTING THIS OFFENSE WITH A FIREARM OR DEADLY WEAPON, TO PROVIDE AN ADDITIONAL PENALTY IF THE PERSON THREATENED IS UNDER THE AGE OF EIGHTEEN, TO PROVIDE THE PERSON THREATENED HAS A CIVIL CAUSE OF ACTION AGAINST A CRIMINAL GANG OR CRIMINAL GANG MEMBER, TO PROVIDE FOR A CIVIL CAUSE OF ACTION IN FAVOR OF THE SCHOOL OR SCHOOL DISTRICT THAT SUSTAINS ANY DAMAGE, IMPAIRMENT, OR INJURY PROXIMATELY CAUSED BY A PATTERN OF CRIMINAL GANG ACTIVITY, TO PROVIDE A PROCEDURE FOR BRINGING THIS CIVIL CAUSE OF ACTION, TO PROVIDE FOR PROTECTION OF THE IDENTITY OF AN INFORMANT, TO PROVIDE FOR THE SEIZURE OF ANY FIREARM, AMMUNITION, OR DANGEROUS WEAPON IF THE LAW ENFORCEMENT OFFICER REASONABLY BELIEVES IT IS OR WILL BE USED IN A PATTERN OF CRIMINAL GANG ACTIVITY ON SCHOOL PROPERTY OR AT A SCHOOL-SPONSORED OR SCHOOL-RELATED FUNCTION, TO PROVIDE A PROCEDURE FOR SEIZURE OF A FIREARM, AMMUNITION, OR DANGEROUS WEAPON, TO PROVIDE THAT THIS ARTICLE DOES NOT APPLY TO EMPLOYEES LAWFULLY ENGAGED IN COLLECTIVE BARGAINING ACTIVITIES OR THE LAWFUL ACTIVITIES OF LABOR ORGANIZATIONS, TO PROVIDE THE GOVERNING BODY OF A SCHOOL DISTRICT MAY ADOPT AND ENFORCE ORDINANCES CONSISTENT WITH THIS ARTICLE; BY ADDING SECTION 59-63-75 SO AS TO PROVIDE THAT EACH SCHOOL IN THIS STATE THAT REQUIRES STUDENTS IN KINDERGARTEN THROUGH EIGHTH GRADES TO WEAR UNIFORMS SHALL RECEIVE STATE LOTTERY FUNDS TO PROVIDE A SCHOOL RESOURCE OFFICER AND PROVIDE THAT A STUDENT'S PARENT OR GUARDIAN MAY EXEMPT THE STUDENT FROM THE SCHOOL UNIFORM POLICY; AND BY ADDING SECTION 59-63-245 SO AS TO PROVIDE THAT A STUDENT WHO HAS BEEN SUSPENDED OR EXPELLED SHALL ATTEND A CONFERENCE WITH HIS PARENT OR GUARDIAN AND THE DESIGNATED SCHOOL ADMINISTRATOR BEFORE THE STUDENT MAY BE PERMITTED TO RETURN TO THE SCHOOL.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    This act may be cited as "The School Safety Act of 2007".

SECTION    2.    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 attend school and school-sponsored and school-related functions in a safe environment, 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 act 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 students, faculty, and other school officials 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 on school property and at school-sponsored and school-related functions, 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 on school property and at school-sponsored and school-related functions by providing enhanced penalties and by eliminating the patterns, profits, proceeds, instrumentalities, and property facilitating criminal gang activity, including criminal gang recruitment.

(4)    The employment of a school resource officer will not only serve as a deterrent to criminal gang activity on school property and at school-sponsored and school-related functions, but also will serve to keep the peace among students and act as a comprehensive law enforcement resource for the school.

SECTION    3.    Sections 16-8-10, 16-8-20, and 16-8-30 of the 1976 Code are designated as Article 1, Chapter 8, Title 16.

SECTION    4.    Chapter 8, Title 16 of the 1976 Code is amended by adding:

Section 16-8-510.    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 three 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.

(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, two or more of the following offenses occurring within a five-year period, provided that at least one of these offenses occurred after January 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)        a 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)    disturbing schools as defined in Section 16-17-420 committed as a part of criminal gang activity;

(l)        pointing a firearm at any person as defined in Section 16-23-410 committed as a part of criminal gang activity;

(m)    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;

(n)    the common law offense of assault and battery of a high and aggravated nature committed as a part of criminal gang activity; or

(o)    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; or

(c)    an informant of previously untested reliability identifies an incident as criminal gang activity and it is corroborated by independent information.

Section 16-8-520.    (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 while on school property or at a school-sponsored or school-related function. 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, a 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 while on school property or at a school-sponsored or school-related function, 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 to 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 fees and costs from the criminal gang or criminal gang member.

(E)    Nothing in this section limits prosecution under another provision of law.

Section 16-8-530.    (A)    A civil cause of action is created in favor of a school or school district 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 another person who intentionally directs, participates, conducts, furthers, or assists in the commission of a pattern of criminal gang activity, or another person who commits a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal gang while on school property or at a school-sponsored or school-related function.

(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 16-8-540.    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 16-8-550.    (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 while on school property or at a school-sponsored or school-related function.

(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 16-8-560.    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 16-8-570.    Nothing in this article prohibits the governing body of a school district from adopting and enforcing policies consistent with this article relating to criminal gangs, criminal gang members, and gang violence. When school district policies duplicate or supplement this article, this article provides alternative remedies."

SECTION    5.    Article 1, Chapter 63, Title 59 of the 1976 Code is amended by adding:

"Section 59-63-75.    Each school in this State that requires students to wear uniforms may receive State Lottery funds to provide a school resource officer. Each school shall determine its own uniforms. A school that implements a uniform policy pursuant to this section may apply to the Department of Education for the State Lottery funds and the Department of Education shall award funds to up to six schools."

SECTION    6.    Article 3, Chapter 63, Title 59 of the 1976 Code is amended by adding:

"Section 59-63-245.    A student who has been suspended or expelled shall attend a conference with his parent or guardian and the designated school administrator before the student may be permitted to return to the school."

SECTION    7.    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    8.    This act takes effect upon approval by the Governor and applies beginning with the 2007-08 school year.