HB 4188 Text

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.

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