H 4977 General Bill, By Knotts, Rivers, G.M. Smith, J.H. Neal, Taylor, Wilkins, 
Whatley, Lourie, J.E. Smith, Kelley, Weeks, Altman, Bales, Barfield, Battle, 
Bingham, Bowers, Carnell, Chellis, Cobb-Hunter, Dantzler, Davenport, Delleney, 
Emory, Fleming, Frye, Gilham, Gourdine, Govan, Harrison, J. Hines, Howard, 
Huggins, Jennings, Keegan, Klauber, Limehouse, Lucas, Martin, McGee, Miller, 
J.M. Neal, Ott, Rice, Rodgers, Scarborough, Sharpe, Simrill, D.C. Smith, 
W.D. Smith, Snow, Stille, Townsend, Trotter, Webb, A. Young and J. Young
 A BILL TO AMEND CHAPTER 8, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO OFFENSES AGAINST PUBLIC JUSTICE, BY ADDING ARTICLE 5 SO AS TO
 ENACT THE CRIMINAL STREET GANG PREVENTION ACT, TO INCLUDE DEFINITIONS RELATING
 TO CRIMINAL STREET GANGS AND CRIMINAL STREET GANG ACTIVITY; TO PROVIDE THAT IT
 IS UNLAWFUL TO ACTIVELY PARTICIPATE IN A CRIMINAL STREET GANG WITH KNOWLEDGE
 THAT ITS MEMBERS ENGAGE IN A PATTERN OF CRIMINAL STREET GANG ACTIVITY; TO
 PROVIDE THAT IT IS UNLAWFUL FOR A PERSON TO ENGAGE IN THE COMMISSION OF A
 CRIMINAL ACT OR DELINQUENCY FOR THE PURPOSE OF BENEFITING, PROMOTING, OR
 FURTHERING THE INTERESTS OF A CRIMINAL STREET GANG; TO PROVIDE FOR ENHANCED
 SENTENCING FOR THE COMMISSION OF A CRIMINAL ACT OR DELINQUENCY FOR THE PURPOSE
 OF BENEFITING, PROMOTING, OR FURTHERING THE INTERESTS OF A CRIMINAL STREET
 GANG; TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON TO RECRUIT ANOTHER PERSON TO
 JOIN A CRIMINAL STREET GANG OR TO DISSUADE ANOTHER PERSON FROM WITHDRAWING
 FROM A CRIMINAL STREET GANG; TO PROVIDE ADDITIONAL PENALTIES FOR PERSONS WHO
 THREATEN OR USE VIOLENCE WHEN SOLICITING OR RECRUITING ANOTHER TO PARTICIPATE
 IN A CRIMINAL STREET GANG; TO PROVIDE THAT IT IS UNLAWFUL TO DISSUADE OR
 PREVENT ANOTHER PERSON FROM TESTIFYING IN CERTAIN TRIALS, PROCEEDINGS, OR
 INQUIRIES; TO PROVIDE THAT PROPERTY, PROCEEDS, AND PROFITS DERIVED FROM OR
 USED TO FACILITATE THE CRIMINAL ACTIVITY OF A CRIMINAL STREET GANG OR MEMBER
 OF A CRIMINAL STREET GANG IS CONTRABAND SUBJECT TO FORFEITURE; TO PROVIDE THAT
 IT IS UNLAWFUL FOR A PERSON TO DEFACE THE REAL OR PERSONAL PROPERTY OF ANOTHER
 WITH GRAFFITI OR TO POSSESS AN INSTRUMENT OF GRAFFITI; TO PROVIDE THAT IT IS
 UNLAWFUL FOR A PERSON IN A MOTOR VEHICLE TO PARTICIPATE IN A DRIVE-BY SHOOTING
 OR TO UNLAWFULLY DISCHARGE A FIREARM OR WEAPON IN THE GENERAL DIRECTION OF
 ANOTHER PERSON OUTSIDE THE MOTOR VEHICLE; TO PROVIDE THAT PRIVATE BUILDINGS
 USED IN CRIMINAL GANG ACTIVITY ARE A NUISANCE AND FOR THE ABATEMENT OF
 NUISANCES; TO CREATE A CIVIL CAUSE OF ACTION IN FAVOR OF THE STATE OR A
 POLITICAL SUBDIVISION OF THE STATE FOR DAMAGES CAUSED BY CRIMINAL GANG
 ACTIVITY; TO PROVIDE THAT THE IDENTITY OF AN INFORMANT AND MATTERS EXEMPT FROM
 DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, ARE EXEMPT FROM DISCOVERY OR
 DISCLOSURE IN CIVIL ACTIONS BROUGHT UNDER THIS ARTICLE; TO PROVIDE THAT IT IS
 UNLAWFUL FOR A MEMBER OF A STREET GANG TO OWN OR POSSESS A FIREARM,
 AMMUNITION, OR DANGEROUS WEAPON THAT IS CAPABLE OF BEING USED IN A PATTERN OF
 CRIMINAL GANG ACTIVITY OR IN THE COMMISSION OF A CRIMINAL ACT OR DELINQUENCY
 FOR THE PURPOSE OF BENEFITING, PROMOTING, OR FURTHERING THE INTERESTS OF A
 CRIMINAL STREET GANG, AND FOR THE SEIZURE AND FORFEITURE OF FIREARMS,
 AMMUNITION, OR DANGEROUS WEAPONS IN THE POSSESSION OF A MEMBER OF A CRIMINAL
 STREET GANG; TO PROVIDE FOR NOTICE TO SHERIFFS AND LAW ENFORCEMENT AGENCIES
 WHEN A PERSON IN CUSTODY OR KNOWN FOR CRIMINAL GANG ACTIVITY IS RELEASED FROM
 CUSTODY; TO PROVIDE THAT THE PROVISIONS OF THIS ARTICLE DO 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; TO PROVIDE THAT THIS ARTICLE DOES NO

   03/26/02  House  Introduced and read first time HJ-30
   03/26/02  House  Referred to Committee on Judiciary HJ-32
   03/27/02         Scrivener's error corrected

TO AMEND CHAPTER 8, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENSES AGAINST PUBLIC JUSTICE, BY ADDING ARTICLE 5 SO AS TO ENACT THE CRIMINAL STREET GANG PREVENTION ACT, TO INCLUDE DEFINITIONS RELATING TO CRIMINAL STREET GANGS AND CRIMINAL STREET GANG ACTIVITY; TO PROVIDE THAT IT IS UNLAWFUL TO ACTIVELY PARTICIPATE IN A CRIMINAL STREET GANG WITH KNOWLEDGE THAT ITS MEMBERS ENGAGE IN A PATTERN OF CRIMINAL STREET GANG ACTIVITY; TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON TO ENGAGE IN THE COMMISSION OF A CRIMINAL ACT OR DELINQUENCY FOR THE PURPOSE OF BENEFITING, PROMOTING, OR FURTHERING THE INTERESTS OF A CRIMINAL STREET GANG; TO PROVIDE FOR ENHANCED SENTENCING FOR THE COMMISSION OF A CRIMINAL ACT OR DELINQUENCY FOR THE PURPOSE OF BENEFITING, PROMOTING, OR FURTHERING THE INTERESTS OF A CRIMINAL STREET GANG; TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON TO RECRUIT ANOTHER PERSON TO JOIN A CRIMINAL STREET GANG OR TO DISSUADE ANOTHER PERSON FROM WITHDRAWING FROM A CRIMINAL STREET GANG; TO PROVIDE ADDITIONAL PENALTIES FOR PERSONS WHO THREATEN OR USE VIOLENCE WHEN SOLICITING OR RECRUITING ANOTHER TO PARTICIPATE IN A CRIMINAL STREET GANG; TO PROVIDE THAT IT IS UNLAWFUL TO DISSUADE OR PREVENT ANOTHER PERSON FROM TESTIFYING IN CERTAIN TRIALS, PROCEEDINGS, OR INQUIRIES; TO PROVIDE THAT PROPERTY, PROCEEDS, AND PROFITS DERIVED FROM OR USED TO FACILITATE THE CRIMINAL ACTIVITY OF A CRIMINAL STREET GANG OR MEMBER OF A CRIMINAL STREET GANG IS CONTRABAND SUBJECT TO FORFEITURE; TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON TO DEFACE THE REAL OR PERSONAL PROPERTY OF ANOTHER WITH GRAFFITI OR TO POSSESS AN INSTRUMENT OF GRAFFITI; TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON IN A MOTOR VEHICLE TO PARTICIPATE IN A DRIVE-BY SHOOTING OR TO UNLAWFULLY DISCHARGE A FIREARM OR WEAPON IN THE GENERAL DIRECTION OF ANOTHER PERSON OUTSIDE THE MOTOR VEHICLE; TO PROVIDE THAT PRIVATE BUILDINGS USED IN CRIMINAL GANG ACTIVITY ARE A NUISANCE AND FOR THE ABATEMENT OF NUISANCES; TO CREATE A CIVIL CAUSE OF ACTION IN FAVOR OF THE STATE OR A POLITICAL SUBDIVISION OF THE STATE FOR DAMAGES CAUSED BY CRIMINAL GANG ACTIVITY; TO PROVIDE THAT THE IDENTITY OF AN INFORMANT AND MATTERS EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, ARE EXEMPT FROM DISCOVERY OR DISCLOSURE IN CIVIL ACTIONS BROUGHT UNDER THIS ARTICLE; TO PROVIDE THAT IT IS UNLAWFUL FOR A MEMBER OF A STREET GANG TO OWN OR POSSESS A FIREARM, AMMUNITION, OR DANGEROUS WEAPON THAT IS CAPABLE OF BEING USED IN A PATTERN OF CRIMINAL GANG ACTIVITY OR IN THE COMMISSION OF A CRIMINAL ACT OR DELINQUENCY FOR THE PURPOSE OF BENEFITING, PROMOTING, OR FURTHERING THE INTERESTS OF A CRIMINAL STREET GANG, AND FOR THE SEIZURE AND FORFEITURE OF FIREARMS, AMMUNITION, OR DANGEROUS WEAPONS IN THE POSSESSION OF A MEMBER OF A CRIMINAL STREET GANG; TO PROVIDE FOR NOTICE TO SHERIFFS AND LAW ENFORCEMENT AGENCIES WHEN A PERSON IN CUSTODY OR KNOWN FOR CRIMINAL GANG ACTIVITY IS RELEASED FROM CUSTODY; TO PROVIDE THAT THE PROVISIONS OF THIS ARTICLE DO 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; TO PROVIDE THAT THIS ARTICLE DOES NOT PREVENT THE GOVERNING BODY OF A COUNTY OR MUNICIPALITY FROM ADOPTING AND ENFORCING CERTAIN ORDINANCES RELATING TO CRIMINAL STREET GANGS AND GANG VIOLENCE; AND TO PROVIDE THAT THE STATE LAW ENFORCEMENT DIVISION MUST DEVELOP A STATEWIDE CRIMINAL STREET GANG DATABASE TO FACILITATE THE EXCHANGE OF CERTAIN INFORMATION BETWEEN LAW ENFORCEMENT AGENCIES RELATING TO CRIMINAL STREET GANGS AND GANG-RELATED INCIDENTS, AND TO PROVIDE PENALTIES FOR VIOLATIONS OF THE PROVISIONS OF THIS ARTICLE.

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

SECTION 1.    Chapter 8, Title 16 of the 1976 Code is amended by adding:

    Section 16-8-510.    This article may be cited as the 'Criminal Street Gang Prevention Act'.

    Section 16-8-520.    The General Assembly finds:

    (1)    That 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 street gangs and their 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 whatsoever, 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)    That the State of South Carolina is facing a mounting crisis caused by criminal street gangs whose members threaten and terrorize peaceful citizens and commit a multitude of crimes. These criminal street gang activities, both individually and collectively, present a clear and present danger. The State has a compelling interest in preventing criminal street gang activity, and the General Assembly finds that the provisions of this act are necessary to maintain the public order and safety.

    (3)    That it is the intent of the General Assembly to eradicate the terror created by criminal street gangs and their members by providing enhanced penalties and by eliminating the patterns, profits, proceeds, instrumentalities, and property facilitating criminal street gang activity, including criminal street gang recruitment.

    Section 16-8-530.    As used in this article:

    (1)    'Associate' or 'criminal street gang associate' means a person who:

        (a)    admits to criminal street gang association; or

        (b)    meets any single defining criterion for a criminal street gang member.

    (2)    'Contraband' means real or personal property of whatsoever kind or nature, including money, that is owned, in the possession of, or subject to the control of a member or an associate of a criminal street gang which is acquired, derived from, or traceable to criminal gang activity.

    (3)    'Criminal street gang' means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols and have two or more members who, individually or collectively, engage in or have engaged in a pattern of criminal street gang activity.

    (4)    'Criminal street gang member' is a person who is a member of a criminal street gang and who meets two or more of the following criteria:

        (a)    the person admits to criminal street gang membership;

        (b)    the person is identified as a criminal street gang member by a parent or guardian;

        (c)    the person is identified as a criminal street gang member by a documented reliable informant;

        (d)    the person resides in or frequents a particular criminal street gang's area and adopts their style of dress, their use of hand signs, or their tattoos, and associates with known criminal street gang members;

        (e)    the person is identified as a criminal street gang member by an informant of previously untested reliability and the identification is corroborated by independent information;

        (f)    the person has been arrested on two or more occasions in the company of identified criminal street gang members for offenses which are in furtherance of or consistent with criminal street gang activity;

        (g)    the person is identified as a criminal street gang member by physical evidence including, but not limited to, photographs or other documentation; or

        (h)    the person has been stopped in the company of known criminal street gang members on more than three separate occasions.

    (5)    'Pattern of criminal street gang activity' means the commission or attempted commission of, or solicitation or conspiracy to commit, two or more felony or three or more misdemeanor offenses, or one felony and two misdemeanor offenses, or the comparable number of delinquent acts or violations of law which would be felonies or misdemeanors if committed by an adult, on separate occasions within a three-year period.

    (6)    'Gang related incident' means an incident that, upon investigation, meets any of the following conditions:

        (a)    the participants are identified as criminal street gang members or criminal street gang associates, acting, individually or collectively, to further any criminal purpose of the gang;

        (b)    a reliable informant identifies an incident as criminal street gang activity; or

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

    (7)    'Graffiti' means a mark, picture, drawing, writing, inscription, or graffito made on a wall or another surface that is scratched, scribbled, painted, or inscribed with ink, paint, spray paint, crayon, charcoal or the use of any other object capable of making a scratch, dent, mark, or impression of any kind on a wall or other surface.

    Section 16-8-540.    It is unlawful for a person to actively participate in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, or to promote, further, assist, or benefit from any offense, delinquency, or other criminal conduct by members of that gang.     A person who violates this section is guilty of conspiracy to commit any offense, delinquency, or other criminal conduct in which engaged or participated in with another, and, in addition to the punishment for conspiracy, may be punished as provided for that offense, delinquency, or other criminal conduct as a principal or as an accessory before or after the fact, consistent with the nature and extent of his involvement in committing, aiding, or abetting the offense, delinquency, or other criminal conduct.

    Section 16-8-550.    (A)    It is unlawful for a person to engage in a pattern of criminal gang activity, or to engage in the commission of a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang. A person who engages in a pattern of criminal gang activity, or who engages in the commission of a criminal act or delinquency as a principal in violation of this section, or who aids or abets the commission of a criminal act or delinquency in violation of this section as an accessory before or after the fact of the criminal act or delinquency, is guilty of a violation of this section.

    (B)    Upon a finding by the court at sentencing that the defendant committed the charged offense while engaged in a pattern of criminal gang activity, or committed, aided, or abetted the charged offense for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang, the penalty for any felony or misdemeanor, or any delinquent act or violation of law which would be a felony or misdemeanor if committed by an adult, may be enhanced. Each of the findings required as a basis for an enhanced sentence shall be found by a preponderance of the evidence.

    (C)    With reference to the levels of imprisonment penalties for classes of felonies and misdemeanors provided in Section 16-1-20, sentence enhancement must be as follows:

        (1)(a)    The punishment for a Class C misdemeanor may be enhanced by the difference between a class C misdemeanor and a Class B misdemeanor.

            (b)    The punishment for a Class B misdemeanor may be enhanced by the difference between a Class B misdemeanor and a Class A misdemeanor.

            (c)    The punishment for a Class A misdemeanor may be enhanced by the difference between a Class A misdemeanor and a Class F felony.

        (2)(a)    The punishment for a Class F felony may be enhanced by the difference between a Class F felony and a Class E felony.

            (b)    The punishment for a Class E felony may be enhanced by the difference between a Class E felony and a Class D felony.

            (c)    The punishment for a Class D felony may be enhanced by the difference between a Class D felony and a Class C felony.

            (d)    The punishment for a Class C felony may be enhanced by the difference between a Class C felony and a Class B felony.

            (e)    The punishment for a Class B felony may be enhanced by the difference between a Class B felony and a Class A felony.

            (f)        The punishment for a Class A felony may be enhanced and punished by imprisonment for any number of years including a life sentence, with or without parole.

    (D)    A sentencing court may elect to suspend all or a part of the enhanced punishment provided for in this section only in an unusual case where the interests of justice would best be served, and if the court specifies on the record the circumstances and reasons that the interests of justice would best be served by a suspension of punishment.

    Section 16-8-560.    (A)    It is unlawful for a person to intentionally cause, encourage, solicit, or recruit another person to join a criminal street gang that requires as a condition of membership or continued membership the commission of a crime or participation in any manner or form in criminal gang activity.

    (B)    It is unlawful for a person to dissuade or prevent another person from withdrawing from a criminal street gang, or to communicate to another, directly or indirectly, any threat of injury or damage to the person or property of another person or to an associate or relative of another person, with the intent to punish, intimidate, or retaliate against another person for withdrawing or attempting to withdraw from a criminal street gang.

    (C) A person who violates a provision of subsections (A) or (B) is guilty of a felony and, upon conviction, must be punished, for a first offense, by a fine of not more than five thousand dollars or imprisoned for not more than five years, or both. A person convicted for a second or subsequent violation of subsection (A) or (B), or of a combination of either of them, must be punished by a fine of not less than three thousand dollars nor more than ten thousand dollars or imprisoned for not less than two years nor more than ten years, or both.

    (D)    A person who solicits or recruits another to actively participate in a criminal street gang, or who dissuades or prevents another person from withdrawing or leaving a criminal street gang, with the intent that the person participate or continue to participate in a pattern of criminal street gang activity, or with the intent that the person solicited, recruited or dissuaded promote, further, or assist in any felonious conduct by members of the criminal street gang, must, in addition to the punishment prescribed in subsection (A), be punished by an additional fine of not more than three thousand dollars, or imprisonment for an additional period of not more than three years, or both.

    (E)    A person who threatens another person with physical violence on two or more separate occasions within a ninety-day period with the intent to coerce, induce, or solicit that person or another person to actively participate in a criminal street gang, or to prevent the person from withdrawing or leaving a criminal street gang, must, in addition to the punishment prescribed in subsection (A), be punished by an additional fine of not more than five thousand dollars, or by imprisonment for an additional period of not more than five years, or both.

    (F)    A person who uses a firearm, a deadly weapon, or physical violence to coerce, induce, or solicit another person to actively participate in any criminal street gang, or to prevent the person from withdrawing or leaving a criminal street gang, must, in addition to the punishment prescribed in subsection (A), 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.

    (G)    If the person solicited, recruited, coerced, or threatened in violation of this section is a minor, an additional term of three years must be imposed in addition to and consecutive to the penalty prescribed for a violation of this section.

    (H)    Nothing in this section shall be construed to limit prosecution under any other provision of law.

    (I)    A person who has been coerced, intimidated, threatened, or harmed in violation of this section has a civil cause of action against any criminal street gang or person 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.

Section 16-8-570.    (A)    It is unlawful for a person to knowingly:

        (1)    prevent or dissuade a witness or victim from attending or giving testimony at a trial, proceeding, or inquiry authorized by law that concerns or relates to a criminal gang, its members, or activities;

        (2)    attempt to prevent or dissuade a witness or victim from attending or giving testimony at a trial, proceeding, or inquiry authorized by law that concerns or relates to a criminal gang, its members, or activities.

    (B)    Except as provided in subsection (C), a person who violates a provision of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than five thousand dollars, or imprisoned for not more than three years, or both.

    (C)    In cases where a violation of subsection (A) is accompanied or accomplished by force or violence, or by an express or implied threat of force or violence, upon the person or property of a witness, victim, or a third person, is in furtherance of a conspiracy, is committed by a person who has previously been convicted of a violation of this section or of a similar state or federal law, including the law of another state, or is committed by a person for pecuniary gain or for another consideration acting upon the request of another person, all parties to an agreement or transaction giving rise to or resulting in a violation of this section are guilty as principals.

    (D)    A person who violates this section is guilty of a felony and, upon conviction, must be punished by a fine of not less than three thousand dollars nor more than ten thousand dollars, or imprisonment for not less than two years nor more than ten years, or both.

    (E)    A person who has been coerced, intimidated, threatened, or harmed in violation of this section has a civil cause of action against any criminal street gang or person 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.

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

    Section 16-8-580.    All contraband, all profits, proceeds, and instrumentalities of criminal street gang activity and all property used or intended or attempted to be used to facilitate the criminal activity of any criminal street gang or of any criminal street gang member; all profits, proceeds, and instrumentalities of criminal street gang recruitment, and all property used or intended or attempted to be used to facilitate criminal street gang recruitment are subject to seizure and forfeiture in accordance with the provisions of Section 44-53-530 as in the case made and provided for the forfeiture of property subject to forfeiture under Section 44-53-520.

    Section 16-8-590.    (A)    It is unlawful for a person to knowingly, intentionally, or maliciously deface the real or personal property of another with graffiti without the prior knowledge and consent of the owner of the property.

    (B)    It is unlawful for a person to have in his possession or subject to his immediate control any object or instrument, of whatsoever kind or nature, for the purpose or with the intent of defacing the real or personal property of another with graffiti without the prior knowledge and consent of the owner of the property. A person is guilty of possession of an object or instrument for the purpose or with the intent of defacing the real or personal property of another with graffiti when he has in his possession or subject to his immediate control a tool, instrument, article, substance, solution, or other compound designed or commonly used to etch, paint, cover, draw upon, or otherwise place a mark or graffiti upon a wall, surface, or item of real or personal property under circumstances evincing an intent to use the object or instrument to damage, deface, or destroy the real or personal property of another with graffiti.

    (C)    A person who violates a provision of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than five thousand dollars, or imprisoned for not more than two years, or both.

    Section 16-8-600.    (A)    Every private building or place used by members of a criminal street gang to engage in a pattern of criminal gang activity or for the commission of a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal street 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 this article.

    (B)    Any 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 street gang. Upon proof by the plaintiff that the premises are being used by members of a criminal street gang for the commission of a pattern of criminal gang activity, the court may order the owner of record or the lessee of the premises to remove or evict the persons from the premises and order the premises sealed, prohibit further use of the premises, or enter such order as may be necessary to prohibit the premises from being used for the commission of a pattern of criminal gang activity and to abate the nuisance.

    (C)    An action for injunction, damages, abatement, or other relief filed pursuant to this section must proceed according to the provisions of Chapter 43, Title 15, relating to the abatement of nuisances and this article.

    (D)    The court shall not issue an injunction or assess a civil penalty against any owner of record or the lessee of the private building or place, unless that person knew or should have known or had been notified of the use of the premises for a pattern of criminal gang activity. Any injunctive relief other than that specifically authorized in subsection (F) of this section 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) of this section.

    (E)    A petition for injunction shall 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 attached to a door of the premises, and this shall have the same effect as personal service on the owner of record or lessee. Injunctive relief authorized by subsection (F) of this section may not be issued in the form of a temporary restraining order.

    (F)    If the court has previously 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 do one or more of the following:

        (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 shall consider all of the following factors:

            (a)    The 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).

            (c)    Any other factor deemed by the court to be relevant.

    (G)    A government entity or a nonprofit or charitable organization which is conducting its affairs with ordinary care or skill may not be enjoined pursuant to the provisions of this article.

    (H)    Nothing in this article precludes an aggrieved person from seeking another remedy provided by law.

    Section 16-8-610.        (A)    It is unlawful for a person to plan, direct, or for a person in a motor vehicle participate in a drive-by shooting or to unlawfully discharge a firearm or another weapon that is aimed at or in the general direction of another person who is outside the motor vehicle. A person who discharges a firearm or another weapon in violation of this subsection is guilty of a felony and, upon conviction, must be punished by a fine of not less than ten thousand dollars nor more than fifty thousand dollars, and imprisoned for not more than thirty years, or both.

    (B)    It is unlawful for a person in a motor vehicle to unlawfully discharge a firearm or another weapon that is aimed at or in the general direction of a place that is occupied or frequented by another person or persons that is situate outside of the motor vehicle. A person who discharges a firearm in violation of this subsection is guilty of a felony and, upon conviction, must be punished by a fine of not less than ten thousand dollars nor more than thirty thousand dollars, and imprisoned for not more than fifteen years, or both.

    (C)    It is unlawful for a person in a motor vehicle to unlawfully discharge a firearm at a thing situate outside of the motor vehicle. A person who discharges a firearm in violation of this subsection is guilty of a felony and, upon conviction, must be punished by a fine of not less than three thousand dollars nor more than ten thousand dollars, and imprisoned for not more than five years, or both.

    (D)    The penalty imposed for a violation of a provision of this section is in addition to the penalty for another offense the person may have committed by discharging the firearm or weapon.

    Section 16-8-620.    (A)    A civil cause of action is created in favor of the State of South Carolina, a county, or municipality or another political subdivision, or an agency or instrumentality of any of them, that sustains any damage, impairment, or harm whatsoever proximately caused by a pattern of criminal gang activity as defined in this article, or the commission of a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang. The cause of action created by this section shall lie against any criminal street gang, as defined in this article, its members, any person who intentionally directs, participates, conducts, furthers, or assists in the commission of a pattern of criminal gang activity, and any person who commits a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal street 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 courts.

    (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 any member of a criminal street gang or any person representing him by appointment of court, operation of law, or mandate, shall constitute adequate service upon a criminal street gang.

    Section 16-8-630.    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 16-8-640.    (A)    Any firearm, ammunition to be used in a firearm, or dangerous weapon in the possession of a member of a criminal street 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 or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang.

    (B)    The solicitor or a prosecuting attorney shall initiate, in a civil action, forfeiture proceedings by petition in a court of competent jurisdiction as to any property seized pursuant to the provisions of this section within ninety days of seizure. The solicitor or prosecuting attorney shall provide notice of the filing of the petition to those members of the gang 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 shall assure that all persons so notified continue to receive notice of all subsequent proceedings related to the property.

    (C)    Any person who claims an interest in any seized property shall, in order to assert a claim that the property should not be forfeited, file a notice with the court, without necessity of paying costs, of the intent to establish either of the following:

        (1)    That the persons asserting the claim did not know, and could not have known of its use in the commission of a pattern of criminal gang activity.

        (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 any 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 shall not preclude civil proceedings under this section; however, for good cause shown, on motion by the solicitor or 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 hereunder shall be governed by the provisions of the according to the common law, statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit courts. Additionally, any action under the provisions of the section may be consolidated with any other action or proceeding pursuant to the section relating to the same property on motion of the solicitor or prosecuting attorney.

    (G)    The issue shall be determined by the court alone, and the hearing on the claim shall 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 showing the existence of probable cause for forfeiture of the property. If the state or governmental entity bringing the action shows 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)    Any person who asserts a successful claim in accordance with subsection (C) of this section shall be awarded the seized property by the court. All property as to which no claim is filed, or as 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 it.

    Section 16-8-650.    When a person is released from the custody of the a jail, prison, or corrections facility, and that person was in the custody of the jail, prison, or corrections facility for conviction of a violation of the provisions of this article, or the jail, prison or corrections facility knows that the person is or was a member of a criminal street gang, the jail, prison, or corrections facility must transmit notice of the release of that person to the sheriff of the county in which the crime was committed and the sheriff of the county in which that person will reside upon release. If the crime was committed in a municipality, or if that person will reside in a municipality upon release, that department must transmit the same notice to the chiefs of police of those municipalities.

    Section 16-8-660.    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 16-8-670.    Nothing in this article shall prevent the governing body of county, municipality, or another political subdivision of the State from adopting and enforcing ordinances consistent with this article relating to criminal street gangs, street gang members, and gang violence. When local ordinances duplicate or supplement this article, this article provides alternative remedies and does not preempt the field.

    Section 16-8-680.    The State Law Enforcement Division must develop and manage a statewide criminal street gang database to facilitate the exchange of information between federal, state, county, and municipal law enforcement agencies pursuant to the intent and purpose of this article. All state, county, and municipal law enforcement agencies must furnish information they acquire relating to criminal street gangs and gang related incidents to the State Law Enforcement Division to be included in the database so as to facilitate the exchange of information. Information relating to criminal street gangs, gang related incidents, or members or associates of criminal street gangs, received from federal law enforcement agencies and law enforcement agencies of other states may be included in the database. Information relating to a person who does not have a criminal arrest record and is not a member of a criminal street gang must be used for intelligence, investigative, and tracking purposes only."

SECTION    2.    This act takes effect upon approval by the Governor.