South Carolina General Assembly
115th Session, 2003-2004

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Bill 3226


Indicates Matter Stricken
Indicates New Matter


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A BILL

TO AMEND CHAPTER 8, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENSES THAT PROMOTE CIVIL DISORDER, BY ADDING ARTICLE 2 SO AS TO ENACT THE "CRIMINAL STREET 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:

"Article 2

Criminal Street Gang Prevention

Section 16-8-210.    This article may be cited as the 'Criminal Street 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 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, 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 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)    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 16-8-230.    As used in this article:

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

(2)    'Criminal street gang' means a formal or informal ongoing organization, association, or group that consists of three or more persons who may have a common name, common identifying signs, colors, or symbols and who engage in a pattern of criminal street gang activity.

(3)    'Pattern of criminal street gang activity' means the commission or attempted commission of, accessory before or after the fact of, or solicitation or conspiracy to commit, two or more of the following offenses, provided that at least one of these offenses occurred after July 1, 2003, and the last offense occurred within three years, excluding any periods of imprisonment for prior criminal gang activity:

(a)    a violent offense as defined in Section 16-1-60;

(b)    criminal sexual conduct in the first degree as defined in Sections 16-3-652 and 16-3-655;

(c)    criminal sexual conduct in the second degree as defined in Sections 16-3-653 and 16-3-655;

(d)    criminal sexual conduct in the third degree as defined in Section 16-3-654;

(e)    assault with intent to commit criminal sexual conduct as defined in Section 16-3-656;

(f)    committing or attempting a lewd act upon a child as defined in Section 16-15-140;

(g)    first degree sexual exploitation of a minor as defined in Section 16-15-395;

(h)    second degree sexual exploitation of a minor as defined in Section 16-15-405;

(i)        third degree sexual exploitation of a minor as defined in Section 16-15-410;

(j)        promoting prostitution of a minor as defined in Section 16-15-415;

(k)    participating in the prostitution of a minor as defined in Section 16-15-425;

(l)        the common law offense of assault and battery of a high and aggravated nature;

(m)    kidnapping or conspiracy to kidnap as defined in Sections 16-3-910 and 16-3-920;

(n)    drug offenses as defined in Sections 44-53-370 and 44-53-375; or

(o)    harassment, stalking, or aggravated stalking as defined in Section 16-3-1700.

(4)    '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 acting, individually or collectively, to further a 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.

(5)    '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 another object capable of making a scratch, dent, mark, or impression of any kind on a wall or other surface.

Section 16-8-240.    (A)    It is unlawful for a person to actively participate in a criminal street gang by knowingly promoting, furthering, assisting, or benefiting from the commission of a criminal offense or offenses by members of the gang.

(B)    A person who violates the provisions of this section by conspiring with one or more persons with the intent of accomplishing an unlawful purpose or lawful purpose by unlawful means or who aids or abets the principal to commit a criminal offense but who is not present at its commission is guilty of a felony and, upon conviction, must be punished in the same manner as the principal.

(C)    A person who violates the provisions of this section and who has knowledge that the principal has committed a completed felony and assists him with the intention of facilitating his escape from arrest, conviction, or punishment is guilty of the offense of accessory after the fact and, upon conviction, must be punished pursuant to the provisions of Section 16-1-55.

Section 16-8-250.    (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 for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang.

(B)    A person who is convicted of a criminal offense while engaged in a pattern of criminal gang activity, upon conviction, must be sentenced as follows:

(1)    If the offense for which the person is convicted is a misdemeanor, the person must be sentenced to not more than one year, in addition to the punishment provided for the principal offense.

(2)    If the offense for which the person is convicted is a felony, the person must be sentenced to not more than five years, in addition to the punishment provided for the principal offense.

(C)    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 16-8-260.    (A)    It is unlawful for a person to threaten another person with physical violence with the intent to coerce, induce, or solicit that person or another person to actively participate in criminal street gang activity, or to prevent the person from withdrawing from or leaving a criminal street gang. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than two years, or both, for a first offense. A person 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 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 criminal street gang activity, or to prevent the person from withdrawing or leaving a criminal street gang, in addition to the punishment prescribed in subsection (A) must 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.

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

(D)    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 must be imposed in addition to and consecutive to the penalty prescribed for a violation of this section.

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

(F)    A person who has been coerced, intimidated, threatened, or harmed in violation of this section has a civil cause of action against a 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 attorneys fees and costs.

Section 16-8-270.    (A)    It is unlawful for a person by threat or force to:

(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; or

(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)    A person 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 harmed in violation of this section has a civil cause of action against a 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 fees and costs.

(D)    Nothing in this section limits prosecution under any other provision of law.

Section 16-8-280.    (A)    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 a criminal street gang or of a 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.

(B)    Any property subject to forfeiture under Section 16-8-280 may be seized by the department having authority upon warrant issued by any court having jurisdiction over the property. Seizure without process may be made if the:

(1)    seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(2)    property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding based upon this article;

(3)    department has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(4)    department has probable cause to believe that the property was used or is intended to be used in violation of this article.

(C)    In the event of seizure pursuant to subsection (B), proceedings under Section 16-8-290 regarding forfeiture and disposition must be instituted within a reasonable time.

(D)    Any property taken or detained under this section is not subject to replevin, but is considered to be in the custody of the department making the seizure subject only to the orders of the court having jurisdiction over the forfeiture proceedings. Property described in Section 16-8-280 is forfeited and transferred to the government at the moment of illegal use. Seizure and forfeiture proceedings confirm the transfer.

(E)    For purposes of this section, whenever the seizure of any property subject to seizure is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure.

(F)    Law enforcement agencies seizing property under this section must take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. Any monies seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the monies to be of an evidential nature and provides for security in another manner.

(G)(1)    When property and monies of any value as defined in this section or anything else of any value is seized, the law enforcement agency making the seizure, within ten days or a reasonable period of time after the seizure, must submit a report to the appropriate prosecuting agency.

(2)    The report must provide the following information with respect to the property seized:

(a)    description;

(b)    circumstances of seizure;

(c)    present custodian and where the property is being stored or its location;

(d)    name of owner;

(e)    name of lienholder, if any; and

(f)    seizing agency.

(3)    If the property is a conveyance, the report must include the:

(a)    make, model, serial number, and year of the conveyance;

(b)    person in whose name the conveyance is registered; and

(c)    name of any lienholders.

(4)    In addition to the report provided for in subitems (1) and (2), the law enforcement agency must prepare a report for dissemination to the public upon request providing the following information:

(a)    a description of the quantity and nature of the property and money seized;

(b)    the seizing agency;

(c)    the make, model, and year of a conveyance; and

(d)    the law enforcement agency responsible for the property or conveyance seized.

(H)    Property or conveyances seized by a law enforcement agency or department must not be used by officers for personal purposes.

Section 16-8-290.    (A)    Forfeiture of property defined in Section 16-8-280 must be accomplished by petition of the Attorney General, or his designee, or the circuit solicitor, or his designee, to the court of common pleas for the jurisdiction where the items were seized. The petition must be submitted to the court within a reasonable time period following seizure and must set forth the facts upon which the seizure was made. The petition must describe the property and include the names of all owners of record and lienholders of record. The petition must identify any other persons known to the petitioner to have interests in the property. Petitions for the forfeiture of conveyances must also include: the make, model, and year of the conveyance, the person in whose name the conveyance is registered, and the person who holds the title to the conveyance. A copy of the petition must be sent to each law enforcement agency that has notified the petitioner of its involvement in effecting the seizure. Notice of hearing or rule to show cause must be directed to all persons with interests in the property listed in the petition, including law enforcement agencies that have notified the petitioner of their involvement in effecting the seizure. Owners of record and lienholders of record may be served by certified mail, to the last known address as appears in the records of the governmental agency that records the title or lien.

The judge shall determine whether the property is subject to forfeiture and order the forfeiture confirmed. If the judge finds a forfeiture, he shall then determine the lienholder's interest as provided in Section 16-8-300.

If there is a dispute about the division of the proceeds of forfeited property among participating law enforcement agencies, this issue must be determined by the judge. The proceeds from a sale of property, conveyances, and equipment must be disposed of pursuant to subsection (E) of this section.

All property, conveyances, and equipment that will not be reduced to proceeds may be transferred to the law enforcement agency or agencies or to the prosecuting agency. Upon agreement of the law enforcement agency or agencies and the prosecuting agency, conveyances and equipment may be transferred to any other appropriate agency. Property transferred must not be used to supplant operating funds within the current or future budgets. If the property seized and forfeited is an aircraft or watercraft and is transferred to a state law enforcement agency or other state agency pursuant to the provisions of this subsection, its use and retainage by that agency must be at the discretion and approval of the Budget and Control Board.

(B)    If the property is seized by a state law enforcement agency and is not transferred by the court to the seizing agency, the judge shall order it transferred to the Division of General Services for sale. Proceeds may be used by the division for payment of all proper expenses of the proceedings for the forfeiture and sale of the property, including the expenses of seizure, maintenance, and custody, and other costs incurred by the implementation of this section. The net proceeds from a sale must be remitted to the State Treasurer as provided in subsection (G) of this section. The Division of General Services may authorize payment of like expenses in cases where monies, negotiable instruments, or securities are seized and forfeited.

(C)    If the property is seized by a local law enforcement agency and is not transferred by the court to the agency, the judge shall order it sold at public auction by the seizing agency as provided by law. Notwithstanding any other provision of law, proceeds from the sale may be used by the agency for payment of all proper expenses of the proceeding for the forfeiture and sale of the property, including the expenses of the seizure, maintenance, and custody and other costs incurred by the implementation of this section. The net proceeds from the sale must be disposed of as provided by this section.

(D)    Any forfeiture may be effected by consent order approved by the court without filing or serving pleadings or notices provided that all owners and other persons with interests in the property, including participating law enforcement agencies, entitled to notice under this section, except lienholders and agencies, consent to the forfeiture. Disposition of the property may be accomplished by consent of the petitioner and those agencies involved. Persons entitled to notice under this section may consent to some issues and have the judge determine the remaining issues.

All proceeds of property and cash forfeited by consent order must be disposed of as provided in subsection (E) of this section.

(E)    All real or personal property, when reduced to proceeds, any cash more than one thousand dollars, any negotiable instruments, and any securities that are seized and forfeited must be disposed of as follows:

(1)    seventy-five percent to the law enforcement agency or agencies;

(2)    twenty percent to the prosecuting agency; and

(3)    five percent must be remitted to the State Treasurer and deposited to the credit of the general fund of the State.

(F)    The first one thousand dollars of any cash seized and forfeited pursuant to this article remains with and is the property of the law enforcement agency which effected the seizure unless otherwise agreed to by the law enforcement agency and prosecuting agency.

(G)    All forfeited monies and proceeds from the sale of forfeited property as defined in Section 16-8-280 must be retained by the governing body of the local law enforcement agency or prosecution agency and deposited in a separate, special account in the name of each appropriate agency. These accounts may be drawn on and used only by the law enforcement agency or prosecuting agency for which the account was established.

These accounts must not be used to supplant operating funds in the current or future budgets. Expenditures from these accounts for an item that would be a recurring expense must be approved by the governing body before purchase or, in the case of a state law enforcement agency or prosecuting agency, approved as provided by law.

In the case of a state law enforcement agency or state prosecuting agency, monies and proceeds must be remitted to the State Treasurer who shall establish separate, special accounts as provided in this section for local agencies.

All expenditures from these accounts must be documented, and the documentation made available for audit purposes and upon request by a person under the provisions of Chapter 4 of Title 30, the Freedom of Information Act.

(H)    The use of all property forfeited pursuant to Section 16-8-280 and retained by the law enforcement agency must be documented and the documentation available upon request by a person subject to the provisions of Chapter 4 of Title 30.

(I)    An expenditure from these accounts must be made in accordance with the established procurement procedures of the jurisdiction where the account is established.

(J)    A law enforcement agency may draw from the account an amount necessary to maintain a confidential financial account to be used in the purchase of information or evidence relating to an investigation, to purchase services, or to provide compensation in matters which are confidential and in support of law enforcement activity. The disbursement of funds from the confidential financial account must be made in accordance with procedures approved by the South Carolina Law Enforcement Division. All records of disbursement must be maintained and made available for audit purposes as provided in this section.

All expenditures from these accounts must be fully documented and audited annually with the general fund of the appropriate jurisdiction.

(K)    In all cases where the criminal offense giving rise to the forfeiture of property described in Section 16-8-280 is prosecuted in a state court, the forfeiture proceeding must be accomplished in the court of common pleas for the jurisdiction where the items were seized.

Section 16-8-300.    (A)    An innocent owner, a manager or owner of a licensed rental agency, or a common carrier or carrier of goods for hire may apply to the court of common pleas for the return of any item seized under the provisions of Section 16-8-280. Notice of hearing or rule to show cause accompanied by copy of the application must be directed to all persons and agencies entitled to notice under Section 16-8-290. If the judge denies the application, the hearing may proceed as a forfeiture hearing held pursuant to Section 16-8-290.

(B)    The court may return any seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence:

(1)    in the case of an innocent owner, that the person or entity was not a consenting party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture;

(2)    in the case of a manager or an owner of a licensed rental agency, a common carrier, or a carrier of goods for hire, that an agent, servant, or employee of the rental agency or of the common carrier or carrier of goods for hire was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.

If the licensed rental agency demonstrates to the court that it has rented the seized property in the ordinary course of its business, and that the tenant or tenants were not related within the third degree of kinship to the manager or owner, or any agents, servants, or employees of the rental agency, then it is presumed that the licensed rental agency was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.

(C)    The lien of an innocent person or other legal entity, recorded in public records, must continue in force upon transfer of title of a forfeited item, and a transfer of title is subject to the lien, if the lienholder demonstrates to the court by a preponderance of the evidence that he was not a consenting party to, or privy to, or did not have knowledge of, the involvement of the property which made it subject to seizure and forfeiture.

Section 16-8-310.    (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 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 16-8-320.    (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 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 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 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 an order 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 subitem (F)(4) of this section.

(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 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 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 shall consider all of the following factors:

(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)    failure of the plaintiff to provide notice as required by subsection (E);

(c)    any other factor deemed by the court to be relevant; or

(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 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 16-8-330.    (A)    It is unlawful for a person to plan, direct, or for a person in a motor vehicle to 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 or in the general direction of a place that is occupied or frequented by another person or persons situated 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 more than one thousand dollars or by imprisonment for not more than ten years, or both.

(B)    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 16-8-340.    (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 harm 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 street gang. The cause of action created by this section lies against a criminal street gang, as defined in this article, its members, a person who intentionally directs, participates, conducts, furthers, or assists in the commission of a pattern of criminal gang activity, and a 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 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 street gang or a person representing him by appointment of court, operation of law, or mandate must constitute adequate service upon a criminal street gang.

Section 16-8-350.    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 16-8-360.    (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 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 regarding 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)    A person who claims an interest in any seized property, in order to assert a claim that the property should not be forfeited, shall file a notice with the court, without 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 its 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 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 issue must be determined by the court alone, and 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 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)    A person who asserts a successful claim in accordance with subsection (C) of this section 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 it.

Section 16-8-370.    When a person is released from the custody of 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 16-8-380.    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 16-8-390.    Nothing in this article shall prevent 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 street gangs, street gang members, and gang violence. When local ordinances duplicate or supplement this article, this article provides alternative remedies.

Section 16-8-400.    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 to facilitate the exchange of information. Information relating to criminal street gangs, gang-related incidents, or members 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 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 on July 1, 2003.

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