By: Clarke Martin<\/p>\n\n\n\n
You\u2019d be hard-pressed to find an attorney who\nwould characterize their client\u2019s membership in a gang (street<\/a>, motorcycle<\/a>, prison<\/a>, or otherwise) as a \u201cgood fact.\u201d But\nwhat is a gang and why is being part of one such a bad omen for charges and\nprosecutions to come? <\/p>\n\n\n\n Social scientists note<\/a> 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<\/a> <\/a>instructs law enforcement agencies that a youth gang is \u201c[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 \u2018gang.\u2019\u201d Policy definitions of gangs vary far and wide, but are generally based in the idea that groups who break the law<\/a> should be punished more than individuals who do so. <\/p>\n\n\n\n Freedom\nof Association: When Gang Membership Can and Will Be Used Against You.<\/strong><\/p>\n\n\n\n If a defendant is in a gang, their membership\ncan probably come into court to show motive<\/a>, or if \u201cthe interrelationship between\npeople is a central issue<\/a>.\u201d If a witness is in a\ngang, their membership may be admissible to show their character for\nuntruthfulness without unfairly prejudicing the defendant. For example, in United States v.\nAbel<\/em><\/a>, a defense witness was discredited when the prosecution\nshowed that his membership in the Aryan Brotherhood<\/a> required him to lie, cheat,\nsteal, and\/or kill to protect other members. <\/p>\n\n\n\n When the defendant\u2019s gang membership is not\nrelevant to the issues at hand, his or her status as a gang member may not be\nintroduced at sentencing. In Dawson v.\nDelaware<\/em><\/a>, the petitioner broke out of prison, committed a\nmurder, and was found sleeping in a car the next day. The Court held that\nbecause the prosecution accepted stipulations from the defense about the nature\nof the defendant\u2019s gang there were no facts at issue as to the nature of the\ngang. In those narrow circumstances, the defendant\u2019s First and Fourteenth\nAmendment rights were violated by the introduction of his gang membership at\nsentencing. <\/p>\n\n\n\n Gang membership may also play a factor in a\ndefendant\u2019s pretrial confinement<\/a>: whether or not a person\nis in a database of suspected gang members will likely help determine whether\nthey are held to await trial or, if they are released on bond, whether that\nbond will be secured, and how much it will be. <\/p>\n\n\n\n Most recently, gang membership has been a\ntoehold for the Trump administration in its efforts to thwart the flow of\nimmigrants and asylum seekers into the United States. Last summer,\nthen-Attorney General Jefferson B. Sessions, declared that fear of abuse at the\nhands of a gang-affiliated partner was not grounds for asylum<\/a> in the United States.\nWhile gang affiliation itself is not a crime, imprecise databases containing\nthe names of suspected gang members can be used to forestall a promising immigration<\/a> proceeding. People who are in\nthese databases are not notified and it\u2019s nearly impossible to get your name\nremoved. Late last year<\/a>, a student from Honduras was\nplaced in such a database, held in immigration detention for over a year,\ndeported to Honduras, and later charged with illegal entry. The initial act\nthat got his name on the database was doodling devil horns (an MS-13 symbol)\nover \u201c503\u201d, the country code for Honduras. His school\u2019s mascot was a blue\ndevil. <\/p>\n\n\n\n \u201c[O]n\nhis body a complete theory of the heavens and <\/strong>the earth<\/strong><\/a>\u201d: Are Gang Tattoos Protected Speech?<\/strong><\/p>\n\n\n\n Tattoos themselves are not protected speech<\/a> under the First\nAmendment. The Ninth Circuit has held<\/a> that the act of tattooing<\/em> is \u201cpurely expressive\nactivity rather than conduct expressive of an idea. . . .\u201d Other courts<\/a>, meanwhile, have held that\nmunicipal bans on tattoos are not protected speech under the First Amendment\nbecause while they may be artistic expression and convey personal beliefs, they\ndo not present a \u201clegitimate public concern\u201d like expressing a political\nmessage.<\/p>\n\n\n\n Unlike the Celtic designs at issue in Riggs\nv. City of Fort Worth<\/a><\/em>, gang tattoos may be distinguishable from other\ntattoos on the basis that, like tattooing itself, having a tattoo that\nidentifies the bearer as a gang member may be considered purely expressive\nrather than conduct expressive of an idea. Gang membership, no matter how\nunsavory some might find it, identifies the bearer of the tattoo as part of a\ngroup with social and perhaps even political meaning. <\/p>\n\n\n\n Gang tattoos present First, Fourth, and Fifth Amendment <\/a>concerns\nwhen they are used against a defendant or a witness in court or at sentencing.\nA recent case, United States v.\nAnthony<\/em><\/a>, is illustrative. When the government relies on the content of the communication<\/a> in the\ndefendant\u2019s tattoos, those tattoos are testimonial. The government may\nphotograph and introduce into evidence tattoos belonging to the defendant which\nare openly visible (like on their hands, face, and neck). However, a tattoo\nthat is not openly visible \u201chas communicative aspects of its own<\/a>,\u201d and\nwould require compulsion from a court to be photographed. <\/p>\n\n\n\n In Anthony<\/em>,\none of the defendants argued that the government only had knowledge of one\ntattoo, but asked the court to order all of the defendants stripped and\nphotographed in an unreasonable search for more gang tattoos in association\nwith the Milla Bloods<\/a> gang. The United States District\nCourt for the Western District of Virginia, Danville Division, ruled on January 31 <\/a>of this year that wearing\na tank top occasionally or going to a public pool does not permanently waive\nthe expectation of privacy regarding one\u2019s body. As such, the government would\nhave to show why it needed photos of the defendants\u2019 tattoos beyond what was on\ntheir faces, hands, neck, arms, and heads.<\/p>\n\n\n\n If those more personal, typically-concealed\ntattoos were relevant to the government\u2019s case, the question remains whether\nthey would be considered protected speech under the First Amendment.<\/p>\n","protected":false},"excerpt":{"rendered":" By: Clarke Martin You\u2019d be hard-pressed to find an attorney who would characterize their client\u2019s membership in a gang (street, motorcycle, prison, or otherwise) as a \u201cgood fact.\u201d 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 …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2530,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[6],"tags":[162,181,272,282,331],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2529"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2529"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2529\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2530"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2529"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2529"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2529"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}