Gangs and the Constitution
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1 comment [ View ]Trying to keep a lid on gang activity and recruitment must surely be one of the most frustrating jobs facing law enforcement. This is America, after all, where people are generally free to associate with whomever they like.
But police know that progress can be made if groups of gang members can be kept from congregating, and if there are obstacles to recruitment. Furthermore, gang members' efforts to leave the groups need to be encouraged and, if possible, made easier.
But how to do that constitutionally has always been the difficult part.
Sen. Jon Greiner, R-Ogden and Junction City's police chief, has been crafting legislation to accomplish these goals. It's been anything but easy. Senate Bill 65 is a good example: As reported by the Standard's Loretta Park, Greiner's bill is modeled on similar statutes in about 20 other states. It would make enticing a minor to join a gang or intimidating a minor from leaving a gang a class B misdemeanor.
While everyone agrees that's a good idea, lawmakers are obviously concerned with whether it can actually be enforced. It will be approved, no doubt, and head for the governor's signature, but primarily not because people believe it will stop gang violence in its tracks, but because it's something new to try since the old methods haven't worked as well.
That may sound hopeless, but it's true.
Also a challenge is the constitutionality of SB 75, also sponsored by Greiner. It would outlaw gang members from congregating in public. Doing so would be a class B misdemeanor.
SB 75's shortcomings are obvious: It infringes on the First Amendment rights of assembly -- though the Bill of Rights is specific about "the right of the people peaceably to assemble" -- and, by extension, speech. Greiner says he's working to amend the bill to overcome that constitutional speed-bump.
The Standard-Examiner's editorial board detests gangs and everything they represent. But the thing that is most frustrating, sometimes, about the First Amendment is that in order to remain a free nation -- free to everyone -- we can't simply go making it a crime to invite someone to join an informal association or to hang out at the mall with some friends.
The standard for being able to arrest, detain or punish someone in the United States is high for a reason. The burden of proof is on the state to convince a prosecutor, a judge or a jury that someone has broken the law, is engaged in a criminal enterprise and is threatening the public welfare. If Greiner, or one of his colleagues, can craft legislation that conforms to those norms and manages to protect basic rights while also protecting law-abiding Utahns from criminals, then he will have threaded the needle on sewing up the gang problem. On the way to reaching that goal, however, we dare not give government so much power that fundamental rights, even of people we don't approve of, are being violated.
Gangs in Utah?
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