What’s in a Gang? That Which We Call a Gang By Any Other Name Would Smell As Sweet.

By: Clarke Martin

You’d be hard-pressed to find an attorney who would characterize their client’s membership in a gang (street, motorcycle, prison, or otherwise) as a “good fact.” But what is a gang and why is being part of one such a bad omen for charges and prosecutions to come?

Social scientists note that gangs tend to have the following common characteristics: criminality, control of territory, some level of organization, face-to-face interactions with other members, insignia or other group-identifying symbols, and similar ages across the membership. The U.S. Department of Justice instructs law enforcement agencies that a youth gang is “[a] group of youths or young adults in your jurisdiction that you or other responsible persons in your agency or community are willing to identify or classify as a ‘gang.’” Policy definitions of gangs vary far and wide, but are generally based in the idea that groups who break the law should be punished more than individuals who do so.

Freedom of Association: When Gang Membership Can and Will Be Used Against You.

If a defendant is in a gang, their membership can probably come into court to show motive, or if “the interrelationship between people is a central issue.” If a witness is in a gang, their membership may be admissible to show their character for untruthfulness without unfairly prejudicing the defendant. For example, in United States v. Abel, a defense witness was discredited when the prosecution showed that his membership in the Aryan Brotherhood required him to lie, cheat, steal, and/or kill to protect other members.

When the defendant’s gang membership is not relevant to the issues at hand, his or her status as a gang member may not be introduced at sentencing. In Dawson v. Delaware, the petitioner broke out of prison, committed a murder, and was found sleeping in a car the next day. The Court held that because the prosecution accepted stipulations from the defense about the nature of the defendant’s gang there were no facts at issue as to the nature of the gang. In those narrow circumstances, the defendant’s First and Fourteenth Amendment rights were violated by the introduction of his gang membership at sentencing.

Gang membership may also play a factor in a defendant’s pretrial confinement: whether or not a person is in a database of suspected gang members will likely help determine whether they are held to await trial or, if they are released on bond, whether that bond will be secured, and how much it will be.

Most recently, gang membership has been a toehold for the Trump administration in its efforts to thwart the flow of immigrants and asylum seekers into the United States. Last summer, then-Attorney General Jefferson B. Sessions, declared that fear of abuse at the hands of a gang-affiliated partner was not grounds for asylum in the United States. While gang affiliation itself is not a crime, imprecise databases containing the names of suspected gang members can be used to forestall a promising immigration proceeding. People who are in these databases are not notified and it’s nearly impossible to get your name removed. Late last year, a student from Honduras was placed in such a database, held in immigration detention for over a year, deported to Honduras, and later charged with illegal entry. The initial act that got his name on the database was doodling devil horns (an MS-13 symbol) over “503”, the country code for Honduras. His school’s mascot was a blue devil.

“[O]n his body a complete theory of the heavens and the earth”: Are Gang Tattoos Protected Speech?

Tattoos themselves are not protected speech under the First Amendment. The Ninth Circuit has held that the act of tattooing is “purely expressive activity rather than conduct expressive of an idea. . . .” Other courts, meanwhile, have held that municipal bans on tattoos are not protected speech under the First Amendment because while they may be artistic expression and convey personal beliefs, they do not present a “legitimate public concern” like expressing a political message.

Unlike the Celtic designs at issue in Riggs v. City of Fort Worth, gang tattoos may be distinguishable from other tattoos on the basis that, like tattooing itself, having a tattoo that identifies the bearer as a gang member may be considered purely expressive rather than conduct expressive of an idea. Gang membership, no matter how unsavory some might find it, identifies the bearer of the tattoo as part of a group with social and perhaps even political meaning.

Gang tattoos present First, Fourth, and Fifth Amendment concerns when they are used against a defendant or a witness in court or at sentencing. A recent case, United States v. Anthony, is illustrative. When the government relies on the content of the communication in the defendant’s tattoos, those tattoos are testimonial. The government may photograph and introduce into evidence tattoos belonging to the defendant which are openly visible (like on their hands, face, and neck). However, a tattoo that is not openly visible “has communicative aspects of its own,” and would require compulsion from a court to be photographed.

In Anthony, one of the defendants argued that the government only had knowledge of one tattoo, but asked the court to order all of the defendants stripped and photographed in an unreasonable search for more gang tattoos in association with the Milla Bloods gang. The United States District Court for the Western District of Virginia, Danville Division, ruled on January 31 of this year that wearing a tank top occasionally or going to a public pool does not permanently waive the expectation of privacy regarding one’s body. As such, the government would have to show why it needed photos of the defendants’ tattoos beyond what was on their faces, hands, neck, arms, and heads.

If those more personal, typically-concealed tattoos were relevant to the government’s case, the question remains whether they would be considered protected speech under the First Amendment.