Committee Substitute
House Bill 4188 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 4188
(By Delegates Lawrence, Stowers, Skaff, Phillips, Hamilton, D.
Poling, Manypenny, Marshall, T. Walker, Moore and Ellem)
(Originating in the Committee on the Judiciary)
[February 19, 2010]
A Bill
to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §61-13-1, §61-13-2,
§61-13-3 and §61-13-4, all relating to creating the Anti-
Criminal Street Gang Act; setting forth prohibited acts and
activities in association with or in furtherance of a criminal
street gang; prohibiting the participation in a criminal
street gang; prohibiting the recruitment of persons for
criminal street gangs; prohibiting the hazing of criminal
street gang members or those seeking to become members;
prohibiting the damage to property in association with or in
furtherance of a criminal street gang; prohibiting the use of
force or the threat of force to further the interests of a
criminal street gang; exempting certain protected activities;
defining terms; and establishing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §61-13-1, §61-13-2, §61-13-3 and §61-13-4, all to read as follows:
ARTICLE 13. ANTI-CRIMINAL STREET GANG ACT.
§61-13-1. Prohibited acts; additional prosecution permitted.
(a) It is unlawful for any person to:
(1) Actively participate in or be a member of a criminal
street gang and knowingly and willfully participates in any
predicate criminal act committed for the benefit of, at the
direction of, or in association with any criminal street gang.
(2) Solicit, invite, recruit, encourage or otherwise cause or
attempt to cause another to actively participate in or become a
member of what he or she knows to be a criminal street gang.
(3) Use force against an individual or a member of the
individual's family or household in order to encourage that
individual:
(A) To join a criminal street gang;
(B) To remain as a participant in or a member of a criminal
street gang; or
(C) To submit to a demand made by a criminal street gang to
commit a felony.
(4) Threaten the use force against the individual or a member
of an individual's family or household, which threat would place
any person in reasonable apprehension of death or bodily injury, in
order to encourage the individual to:
(A) To join a criminal street gang;
(B) To remain as a participant in or a member of a criminal
street gang; or
(C) To submit to a demand made by a criminal street gang to
commit a felony.
(5) Cause bodily injury by the hazing of:
(A) Any member of a criminal street gang as defined in section
two of this article; or
(B) A person seeking to become a member of a criminal street
gang.
(6) Willfully and maliciously damage or deface any public
buildings, facilities and personal property or of any private
buildings, facilities and personal property committed for the
benefit of, at the direction of, or in association with any
criminal street gang.
(b) Violation of this section constitutes a separate and
distinct offense. If the acts or activities violating this section
also violate another provision of law, a prosecution under this
section does not prohibit or bar any prosecution or proceeding
under such other provision or the imposition of any penalties
provided.
§61-13-2. Definitions.
As used in this article unless the context requires otherwise
or it is otherwise provided:
(1) "Criminal street gang" means any ongoing organization,
association, or group of three or more persons, whether formal or
informal, which meets each of the three following criteria:
(A) It has as one of its primary objectives or activities the
commission of one or more criminal activities;
(B) It has an identifiable name or identifying sign or symbol;
and
(C) Its members individually or collectively have engaged in
the commission of, attempt to commit, conspiracy to commit, or
solicitation of two or more predicate criminal acts, at least one
of which is an act of violence, provided such acts were not part of
a common act or transaction.
The definition of "criminal street gang" shall not be constued
to refer to fraternal organizations, unions, corporations,
interest groups or similar entities unless organized for the
primary purpose of engaging in criminal activity.
(2) "Family or household member" of a person means:
(A) The person's spouse, whether or not he or she resides in
the same home with the person;
(B) The person's former spouse, whether or not he or she
resides in the same home with the person;
(C) The person's parents, stepparents, children, stepchildren,
brothers, sisters, half-brothers, half-sisters, grandparents and
grandchildren, regardless of whether such persons reside in the
same home with the person;
(D) The person's mother-in-law, father-in-law, sons-in-law,
daughters-in-law, brothers-in-law and sisters-in-law who reside in
the same home with the person;
(E) Any individual who has a child in common with the person,
whether or not the person and that individual have been married or
have resided together at any time; or
(F) Any individual who cohabits with or who, within the
previous twelve months, cohabited with the person, and any children
of either of them then residing in the same home with the person.
(3) "Hazing" means to recklessly or intentionally endanger the
health or safety of a person or to inflict bodily injury on a
person in connection with or for the purpose of initiation,
admission into or affiliation with or as a condition for continued
membership in a criminal street gang regardless of whether the
person so endangered or injured participated voluntarily in the
relevant activity.
(4) "Predicate criminal act" means and includes one of the
following criminal acts committed by an adult or a comparable
offense committed by a juvenile, which if committed by an adult
would constitute a felony:
(A) An act of violence committed in violation of chapter
sixty-one of this code:
(B) The manufacture, delivery or possession with intent to
manufacture, deliver or distribute a controlled substance in
violation of chapter sixty-a of this code;
(C) The operation of a clandestine drug laboratory in
violation of section four hundred-eleven, article four, section
sixty-a of this code;
(D) Any other felony offense against the person or property in
violation of chapter sixty-one of this code;
(E) Any substantially similar offense under the laws of
another state or territory of the United States, or the United States.
§61-13-3. Penalties.
(a) First offense - The person is guilty of a misdemeanor and,
upon conviction thereof, shall be sentenced to not more than eighty
hours of court-approved community service, fined not more than
$500, or both.
(b) Second offense - The person is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail not more
than three months, be fined not more than $1,000 or both confined
and fined. However, in lieu of confinement a court may, in its
sound discretion and for good cause shown, sentence the individual
to not more than one hundred sixty hours of court-approved
community service;
(c) Third offense - The person is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail not more than
six months, be fined not more than $2,500, or both confined and
fined. However, in lieu of confinement a court may, in its sound
discretion and for good cause shown, sentence the individual to not
more than two hundred forty hours of court-approved community
service; and
(d) Fourth and each subsequent offense - The person is guilty
of a felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility not less than one year nor more than
five years or fined not more than $5,000, or both imprisoned and
fined.
§61-13-4. Exempted activities; limitations on scope
Nothing in this section shall be construed to prevent lawful
assembly and petition for the lawful redress of grievances,
including, but not limited to: any labor or employment relations
issue; demonstration at the seat of federal, state, county or
municipal government; or activities protected by the West Virginia
Constitution or the United States Constitution or any statute of
this state or the United States.