BILL REQ. #: H-6030.2
| State of Washington | 60th Legislature | 2008 Regular Session |
Read first time 03/12/08. Referred to Committee on Public Safety & Emergency Preparedness.
AN ACT Relating to street gangs; adding a new section to chapter 43.20A RCW; adding a new chapter to Title 7 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) The legislature finds that the people of
Washington state face a crisis brought upon by increased gang crime and
violence, which is threatening public safety in communities across the
state. Those who live in communities where gang membership is on the
rise find themselves living with the daily threat of intimidation and
harassment. Ordinary citizens are increasingly vulnerable to gang-related crimes such as drug dealing, damage to real property, and theft
of personal property and automobiles, or even assault, rape, and
murder. Law enforcement officers, prosecutors, and local communities
require assistance to combat this clear and present danger to the law-abiding residents of Washington.
(2) The work group on gang-related crime, established under
Substitute Senate Bill No. 5987 in 2007, met regularly to study and
make recommendations on the problems of gang-related crime in
Washington. The legislature recognizes the efforts of the work group
in trying to prevent, intervene, and suppress gang-related violence in
the state. It is the consensus of the work group, and it is recognized
by the legislature, that the sum of ten million dollars, or as much
thereof as may be necessary, should be appropriated to the governor's
juvenile justice advisory committee to help provide local community
programs with the tools they need to reduce gang violence and protect
the citizens of Washington from being victimized by violent street
gangs.
NEW SECTION. Sec. 2 A new section is added to chapter 43.20A RCW
to read as follows:
(1) Subject to available funds, the governor's juvenile justice
advisory committee shall issue a request for proposal to implement five
pilot projects throughout the state to focus on combating criminal
street gangs and violence.
(a) The pilot projects shall be designed to have a three-pronged
approach to preventing, intervening, and suppressing gang-related
violence.
(b) The governor's juvenile justice advisory committee shall give
priority to grant applicants showing that gang violence is an
increasing problem in their respective communities and that addressing
the impact of street gangs is a high priority within their local
communities. Eligible applicants shall be nongovernmental sponsors,
either as the sole sponsor or as a cosponsor with a government agency.
(c) Grant applications shall include project processes and
protocols for defining objectives and measurable results.
(d) The costs of administration shall not exceed four percent of
appropriated funding.
(e) Grants awarded under this section shall be used to supplement,
not supplant, other moneys that are available for combating criminal
street gangs and violence.
(2) The governor's juvenile justice advisory committee shall
convene a statewide gang work group.
(a) The governor's juvenile justice advisory committee, in
collaboration with the work group, shall meet semiannually to determine
how grants are to be distributed and to provide oversight of the
selected pilot projects established in subsection (1) of this section.
(b) The department of social and health services shall provide
staff support and the use of its facilities, as may be required by the
committee and work group.
(c) The work group shall include a total of twenty members,
comprising:
(i) One member from each of the two largest caucuses of the senate,
appointed by the president of the senate;
(ii) One member from each of the two largest caucuses of the house
of representatives, appointed by the speaker of the house of
representatives;
(iii) The attorney general or the attorney general's designee;
(iv) A prosecutor appointed by the Washington association of
prosecuting attorneys;
(v) A defender appointed by the Washington defender association or
the Washington association of criminal defense lawyers;
(vi) The state superintendent of public instruction or the
superintendent's designee;
(vii) The secretary of the department of corrections or the
secretary's designee;
(viii) The secretary of the department of social and health
services or the secretary's designee;
(ix) The chief of the Washington state patrol or the chief's
designee;
(x) A city representative working through the association of
Washington cities, a nonprofit organization;
(xi) A representative of the Washington state association of
counties; and
(xii) Members, appointed by the governor, including representatives
of:
(A) City law enforcement;
(B) County law enforcement;
(C) Court administrators, including juvenile court administrators;
and
(D) Experts on gangs or delinquency prevention.
(3)(a) The department of social and health services shall be
responsible for any costs incurred due to the convening of the work
group and the oversight and administration of the grant program.
(b) Nonlegislative members shall be compensated in accordance with
RCW 43.03.250 and shall be reimbursed for travel expenses incurred in
carrying out the duties of the work group in accordance with RCW
43.03.050 and 43.03.060, within available resources.
(4) For purposes of this section, the terms "gang" and "pattern of
criminal activity" have the same definitions as in RCW 9.94A.030.
NEW SECTION. Sec. 3 The legislature recognizes that counsel is
not constitutionally required in civil actions (In re Marriage of King,
No. 79978-4 (Wash. Dec. 6, 2007)), but believes that counsel should be
required as a matter of public policy in actions brought against a
respondent criminal street gang member under section 4 of this act who
might risk the loss of procedural rights because such an action could
result in an injunction that may be enforced by a summary order holding
the respondent in contempt of court.
NEW SECTION. Sec. 4 (1) Equitable relief is authorized to
enjoin, abate, and prevent criminal street gang activity, whether it is
a private or public nuisance. Relief is authorized to enjoin criminal
street gang-related offenses defined in RCW 9.94A.030 and associated
noncriminal acts or acts which are known precursors to gang-related
criminal acts as specified in subsection (2) of this section, upon a
showing of the following elements by a preponderance of the evidence:
(a) A gang is named as a defendant and has at least five members,
at least two of whom possess active leadership roles at the time of
seeking relief, and that any person sought to be enjoined is an active
or current member of the gang;
(b) The gang is a cohesive organization with a historical
relationship to the described geographical area for the past five years
or more immediately prior to the filing, and with known leadership,
membership, and criminal practices;
(c) The defendants and other gang members have committed, during
the five years immediately prior to the filing of the petition, a
pattern of criminal street gang activity within the described
geographical area. It is necessary to demonstrate a nexus between
criminal gang activity and crime in the area;
(d) As a result of the criminal activity of the gang or members, a
significant number of nongang members residing within the described
geographical area are in reasonable fear of their physical security or
that of their family members, or of significant damage to their
property to such an extent that they are intimidated or terrorized, and
are effectively prevented from living normal lives; and
(e) The plaintiffs have engaged in prevention and intervention
planning to serve a reasonable number of the gang's total membership
with prevention and intervention services to divert them from gang
activity.
(2) The complaint for equitable relief shall contain a statement of
specific relief requested and activities sought to be enjoined, which
may include:
(a) Associating with other gang members;
(b) Confronting, intimidating, annoying, harassing, threatening,
challenging, provoking, or assaulting any person;
(c) Confronting, intimidating, annoying, harassing, threatening,
challenging, provoking, or assaulting any person known to be a victim
or witness to gang activity;
(d) Possessing or knowingly remaining in the presence of anyone who
is in possession of any firearm, ammunition, or deadly weapon in a
public place;
(e) Possessing or knowingly remaining in the presence of anyone who
is in possession of any controlled substance or drug paraphernalia;
(f) Consuming alcohol in public;
(g) Being present on any private property without the written
consent of the owner;
(h) Defacing any public or private property or possessing graffiti
or tagging tools; or
(i) Violating any court-defined curfew.
(3) The attorney general, the prosecuting attorney, city attorney,
or city prosecutor may maintain an action of an equitable nature in the
name of the state under this act. If a city applies for equitable
relief under this act, the city shall seek and obtain approval of the
prosecuting attorney of the county in which the city is located to
maintain the action.
(4) Service of the summons and complaint on the defendant gang may
be made by representative service of at least five active and current
members of the gang, at least two of whom possess active leadership
roles at the time of application. A person served in a representative
capacity and who appears may request, if indigent, that an attorney be
appointed to represent him or her at public expense. If the court
appoints counsel, the plaintiff shall pay the cost of representation.
Notice of this shall be provided in the summons. A person served in a
representative capacity of the gang need not testify, but may testify
and cross-examine witnesses and present testimony and other evidence on
his or her own behalf.
(5) A court of competent jurisdiction shall conduct an evidentiary
hearing on the complaint for equitable relief filed under this act
whether or not any person served in a representative capacity of the
gang appears to contest the issuance of the injunction. The plaintiff
must prove by a preponderance of the evidence all of the elements set
forth in subsection (1) of this section that the persons served in a
representative capacity are current and active members of the gang, and
that the specific remedies requested are reasonable and necessary.
(6) If after trial the court grants the request for relief, it
shall issue an appropriate order of injunction against the gang and any
members of the gang within the delineated geographical area as
authorized by this section.
(7) An injunction issued under this section is not effective as to
any person unless the plaintiff makes a showing to the court, which may
be made ex parte, that the person is an active or current member or
associate of the gang, as defined in RCW 9.94A.030, and, after
authorization by the court, the person is served with personal notice
of the injunction. The notice must state that the person may request
an evidentiary hearing at which the plaintiffs must present evidence
and show by preponderance of evidence that the defendant is a member of
the gang. The individual need not testify, but may testify and may
cross-examine witnesses for the plaintiffs and may present testimony
and other evidence on his or her own behalf. The plaintiff may seek to
add any person to an existing gang injunction at any time using the
procedures in this subsection, regardless of whether the person was a
gang member or associate at the time that the request for relief was
requested or granted.
(8) The final order of injunction shall contain an opt-out
provision, by which an alleged gang member previously included in the
order may petition at any time for removal from the injunction (a)
after a period of three years in which no act by the alleged gang
member has resulted in either a contempt finding or a conviction of
crime and (b) there is no criminal charge pending at the time of the
petition or a hearing on the petition. In the petition, the alleged
gang member may request a court hearing on the matter.
(9) All actions to punish any violation of the injunction shall be
by prosecution of the crime of contempt of court. It is an affirmative
defense that the person charged was a gang member but that he or she
was no longer an active or current member of the gang at the time of
the alleged violation.
(10) No nonprofit or charitable organization that is conducting its
affairs with ordinary care and skill, no labor organization, and no
governmental entity, shall be enjoined or abated under this chapter.
(11) For purposes of this section, the following definitions apply
unless the context clearly requires otherwise:
(a) "Gang" means "criminal street gang" as defined in RCW
9.94A.030; and
(b) "Pattern of criminal street gang activity" has the same meaning
as that term is defined in RCW 9.94A.030.
NEW SECTION. Sec. 5 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. 6 Sections 3 and 4 of this act constitute a
new chapter in Title