BILL REQ. #: H-2996.2
State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/18/12. Referred to Committee on Public Safety & Emergency Preparedness.
AN ACT Relating to criminal street gangs; adding a new chapter to Title 7 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that increasing gang
violence has negatively impacted quality of life in communities across
the state. Gangs harass and intimidate the residents of the
neighborhoods where they operate, and their criminal activities
undermine local economies.
The legislature further finds that strong prevention and
intervention services that divert gang associates and members from gang
activity are essential to reducing gang violence. Prevention and
intervention services are most effective when gang activity is
interrupted. Civil gang injunctions are a proven tool for interrupting
gang activity and allowing prevention and intervention services to
succeed.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Criminal street gang" has the same meaning as that term is
defined in RCW 9.94A.030.
(2) "Criminal street gang activity" includes: (a) Criminal street
gang-related offenses, as defined in RCW 9.94A.030; and (b) noncriminal
acts that are in furtherance of a criminal street gang.
(3) "Criminal street gang associate or member" has the same meaning
as that term is defined in RCW 9.94A.030. However, in determining
whether a person is a criminal street gang associate or member, the
court may also consider all relevant evidence including, but not
limited to, an admission by a person that he or she is an associate or
member of a criminal street gang.
(4) "Pattern of criminal street gang activity" has the same meaning
as that term is defined in RCW 9.94A.030.
NEW SECTION. Sec. 3 An action seeking injunctive relief under
this chapter may be brought by the attorney general, county prosecuting
attorney, or city attorney or city prosecutor. If a city seeks
injunctive relief under this chapter, the city shall seek and obtain
the approval of the prosecuting attorney of the county in which the
city is located prior to filing the action.
NEW SECTION. Sec. 4 (1) Injunctive relief is authorized to
enjoin, abate, and prevent criminal street gang activity.
(2) A party seeking injunctive relief under this chapter may file
a complaint in superior court. The complaint must contain: (a) A
description of the specific geographic area within which the plaintiff
seeks to enjoin the activities of a criminal street gang and its
members or associates; and (b) a list of the activities in the
geographic area that the plaintiff seeks to enjoin.
(3) Service of the summons and complaint on the criminal street
gang may be made by representative service of process on at least five
associates or members of the criminal street gang, at least two of whom
occupy a leadership role in the criminal street gang at the time of
filing.
(4) The court shall order an evidentiary hearing on the complaint.
The hearing may be held whether or not any person served in a
representative capacity appears to contest the issuance of the
injunction.
(5) A person served in a representative capacity has the right to
testify, cross-examine witnesses, and present testimony and other
evidence on his or her own behalf. The court may appoint counsel to
represent a person who is served in a representative capacity. The
plaintiff is responsible for the cost of the representation. A person
served in a representative capacity must receive notice of this right
to request counsel in the summons.
NEW SECTION. Sec. 5 (1) At the hearing, the plaintiff must prove
by a preponderance of the evidence that:
(a) A criminal street gang with known leadership, membership, and
criminal activities is named as a respondent;
(b) The persons served in a representative capacity are associates
or members of the criminal street gang;
(c) The membership of the criminal street gang includes at least
five persons, at least two of whom occupy a leadership role at the time
of filing;
(d) The criminal street gang has operated in the specified
geographic area for at least five years immediately prior to the filing
of the complaint;
(e) During the five years immediately prior to the filing of the
complaint, associates and members of the criminal street gang have
committed a pattern of criminal street gang activity within the
specified geographic area;
(f) As a result of the criminal street gang activity, a significant
number of the residents of the specified geographic area are in
reasonable fear of threats to their physical safety, the physical
safety of their family members, or damage to their property, such that
the criminal street gang activity interferes with the quiet enjoyment
of their residences;
(g) The jurisdiction in which the plaintiff is located has
previously offered or is planning to offer prevention and intervention
services to divert the associates or members of the criminal street
gang from criminal street gang activity; and
(h) The remedies requested are reasonable and necessary.
(2) The plaintiff has a burden to prove by a preponderance of the
evidence that any person whose activities are sought to be enjoined is
an associate or member of the criminal street gang. The plaintiff may
make this showing at the initial hearing or may seek to add a person to
an existing injunction at a later date. A person may be added to an
injunction previously issued under this chapter regardless of whether
the person was a criminal street gang associate or member at the time
the complaint was filed or the injunction granted.
NEW SECTION. Sec. 6 (1) If the court finds that the plaintiff
has met its burden under section 5 of this act, the court shall enter
an order:
(a) Specifically describing the geographic boundaries within which
the injunction operates; and
(b) Providing for all relief necessary and proper under the
circumstances, including enjoining persons who have been proven to be
associates or members of the criminal street gang from engaging in the
following behaviors and activities:
(i) Associating with other criminal street gang associates or
members, except as provided in subsection (2) of this section;
(ii) Intimidating, harassing, threatening, or assaulting any
person;
(iii) Intimidating, harassing, threatening, or assaulting any
person known to be a victim or witness to criminal street gang
activity;
(iv) Possessing a firearm, ammunition, or deadly weapon in a public
place or knowingly remaining in the presence of anyone in possession of
a firearm, ammunition, or deadly weapon in a public place;
(v) Possessing a controlled substance or drug paraphernalia or
knowingly remaining in the presence of anyone in possession of a
controlled substance or drug paraphernalia;
(vi) Consuming alcohol in a public place;
(vii) Trespassing;
(viii) Defacing any public or private property or possessing
graffiti or tagging tools;
(ix) Violating a curfew imposed by the court;
(x) Using hand or other gestures associated with the criminal
street gang;
(xi) Wearing colors or symbols associated with the criminal street
gang; or
(xii) Any other behavior or activity that has contributed in the
past to the intimidation of the residents of the specified geographic
area.
(2) With respect to a condition imposed pursuant to subsection
(1)(b)(i) of this section, the condition may not apply to enjoin a
person from associating with another criminal street gang associate or
member who:
(a) Resides with the person if they are related by blood or
marriage or have a dating relationship;
(b) Is married to the person;
(c) Has a child with the person, regardless of whether they have
been married; or
(d) Has a biological or legal parent-child, grandparent-child, or
sibling relationship with the person.
NEW SECTION. Sec. 7 (1) The plaintiff shall provide personal
notice of the injunction to any person to whom the injunction applies,
as well as notice that he or she may request an evidentiary hearing
regarding his or her association with or membership in the criminal
street gang.
(2) At the hearing, the plaintiff must show by a preponderance of
the evidence that the person is an associate or member of the criminal
street gang. The person has the right to testify, cross-examine
witnesses, and present testimony and other evidence on his or her own
behalf. The court may appoint counsel to represent the person. The
plaintiff is responsible for the cost of the representation.
NEW SECTION. Sec. 8 (1) A person who violates an order issued
under this chapter may be found in contempt of court as provided in
chapter 7.21 RCW and subject to the penalties therein, including but
not limited to:
(a) For persons eighteen years of age or older who are found to
have willfully violated the order, a fine of not more than five
thousand dollars or imprisonment for not more than one year, or both;
or
(b) For persons less than eighteen years of age who are found to
have willfully violated the order, commitment of the person to juvenile
detention for a period of time not to exceed seven days;
(2) In addition, a person who willfully violates an injunction
issued under this chapter is guilty of a gross misdemeanor punishable
by imprisonment in the county jail for a maximum term fixed by the
court of up to three hundred sixty-four days, or by a fine in an amount
fixed by the court of not more than five thousand dollars, or by both
such imprisonment and fine.
(3) If the person did not contest the finding that he or she was a
criminal street gang associate or member when originally served with
the complaint or a copy of the injunction, it is an affirmative defense
to a proceeding under this section that he or she is no longer an
associate or member of the criminal street gang.
NEW SECTION. Sec. 9 Nothing in this chapter may be construed to
apply to a governmental entity or a nonprofit or charitable
organization.
NEW SECTION. Sec. 10 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 11 Sections 1 through 9 of this act constitute
a new chapter in Title