CHAPTER 874
CRIMINAL GANG ENFORCEMENT AND PREVENTION
874.01 Short title.
874.02 Legislative findings and intent.
874.03 Definitions.
874.04 Gang-related offenses; enhanced penalties.
874.045 Arrest and prosecution under other provisions.
874.05 Causing, encouraging, soliciting, or recruiting criminal gang
membership.
874.06 Civil cause of action.
874.08 Criminal gang activity and recruitment; forfeiture.
874.09 Crime data information.
874.10 Directing the activities of a criminal gang.
874.11 Electronic communication.
874.12 Identification documents; unlawful possession or
creation.
874.01 Short title.—This chapter may be cited as the “Criminal Gang
Prevention Act.”
History.—s. 1, ch. 90-207; s. 34, ch.
96-388; s. 5, ch. 2008-238.
874.02 Legislative findings and
intent.—
(1) The Legislature finds that it is the right of every
person, regardless of race, color, creed, religion, national origin, sex, age,
sexual orientation, or handicap, to be secure and protected from fear,
intimidation, and physical harm caused by the activities of criminal gangs and
their members. It is not the intent of this chapter to interfere with the
exercise of the constitutionally protected rights of freedom of expression and
association. The Legislature recognizes the constitutional right of every
citizen to harbor and express beliefs on any lawful subject whatsoever, to
lawfully associate with others who share similar beliefs, to petition lawfully
constituted authority for a redress of perceived grievances, and to participate
in the electoral process.
(2) The Legislature finds, however, that the state is
facing a mounting crisis caused by criminal gangs whose members threaten and
terrorize peaceful citizens and commit a multitude of crimes. These criminal
gang activities, both individually and collectively, present a clear and present
danger. Street gangs, terrorist organizations, and hate groups have evolved into
increasingly sophisticated and complex organized crime groups in their criminal
tactics, schemes, and brutality. The state has a compelling interest in
preventing criminal gang activity and halting the real and present danger posed
by the proliferation of criminal gangs and the graduation from more primitive
forms of criminal gangs to highly sophisticated criminal gangs. For these
reasons, the Legislature finds that the provisions of this chapter are essential
to maintain public order and safety.
(3) It is the intent of the Legislature to outlaw certain
conduct associated with the existence and proliferation of criminal gangs,
provide enhanced criminal penalties, and eliminate the patterns, profits,
proceeds, instrumentalities, and property facilitating criminal gang activity,
including criminal gang recruitment.
(4) The Legislature finds that the timely reporting and
exchange of criminal gang information facilitates the ability of law enforcement
agencies to monitor and anticipate criminal activities of gangs and their
members. Additionally, the timely and standardized reporting of such criminal
gang information supports the identification of gang members via the criminal
justice information system and directly contributes to law enforcement officers’
safety. For these reasons, it is the intent of the Legislature to encourage
state and local law enforcement agencies to facilitate the exchange of crime
data information through the statewide criminal gang database as provided in s.
874.09.
History.—s. 1, ch. 90-207; s. 74, ch.
94-209; s. 56, ch. 95-267; s. 35, ch. 96-388; s. 6, ch.
2008-238.
874.03 Definitions.—As used in this chapter:
(1) “Criminal gang” means a formal or informal ongoing
organization, association, or group that has as one of its primary activities
the commission of criminal or delinquent acts, and that consists of three or
more persons who have a common name or common identifying signs, colors, or
symbols, including, but not limited to, terrorist organizations and hate
groups.
(a) As used in this subsection, “ongoing” means that the
organization was in existence during the time period charged in a petition,
information, indictment, or action for civil injunctive relief.
(b) As used in this subsection, “primary activities”
means that a criminal gang spends a substantial amount of time engaged in such
activity, although such activity need not be the only, or even the most
important, activity in which the criminal gang engages.
(2) “Criminal gang associate” means a person who:
(a) Admits to criminal gang association; or
(b) Meets any single defining criterion for criminal gang
membership described in subsection (3).
(3) “Criminal gang member” is a person who meets two or
more of the following criteria:
(a) Admits to criminal gang membership.
(b) Is identified as a criminal gang member by a parent
or guardian.
(c) Is identified as a criminal gang member by a
documented reliable informant.
(d) Adopts the style of dress of a criminal
gang.
(e) Adopts the use of a hand sign identified as used by a
criminal gang.
(f) Has a tattoo identified as used by a criminal
gang.
(g) Associates with one or more known criminal gang
members.
(h) Is identified as a criminal gang member by an
informant of previously untested reliability and such identification is
corroborated by independent information.
(i) Is identified as a criminal gang member by physical
evidence.
(j) Has been observed in the company of one or more known
criminal gang members four or more times. Observation in a custodial setting
requires a willful association. It is the intent of the Legislature to allow
this criterion to be used to identify gang members who recruit and organize in
jails, prisons, and other detention settings.
(k) Has authored any communication indicating
responsibility for the commission of any crime by the criminal
gang.
Where a single act or factual
transaction satisfies the requirements of more than one of the criteria in this
subsection, each of those criteria has thereby been satisfied for the purposes
of the statute.
(4) “Criminal gang-related activity” means:
(a) An activity committed with the intent to benefit,
promote, or further the interests of a criminal gang, or for the purposes of
increasing a person’s own standing or position within a criminal
gang;
(b) An activity in which the participants are identified
as criminal gang members or criminal gang associates acting individually or
collectively to further any criminal purpose of a criminal gang;
(c) An activity that is identified as criminal gang
activity by a documented reliable informant; or
(d) An activity that is identified as criminal gang
activity by an informant of previously untested reliability and such
identification is corroborated by independent information.
(5) “Electronic communication” has the meaning provided
in s. 934.02 and includes, but is not limited to, photographs, video, telephone
communications, text messages, facsimile, electronic mail messages as defined in
s. 668.602, and instant message real-time communications with other individuals
through the Internet or other means.
(6) “Hate group” means an organization whose primary
purpose is to promote animosity, hostility, and malice against a person or
persons or against the property of a person or persons because of race,
religion, disability, sexual orientation, ethnicity, or national
origin.
(7) “Terrorist organization” means any organized group
engaged in or organized for the purpose of engaging in terrorism as defined in
s. 775.30. This definition shall not be construed to prevent prosecution under
this chapter of individuals acting alone.
History.—s. 1, ch. 90-207; s. 75, ch.
94-209; s. 36, ch. 96-388; s. 7, ch. 2008-238.
874.04 Gang-related offenses; enhanced
penalties.—Upon a finding by the factfinder that the defendant
committed the charged offense for the purpose of benefiting, promoting, or
furthering the interests of a criminal gang, the penalty for any felony or
misdemeanor, or any delinquent act or violation of law which would be a felony
or misdemeanor if committed by an adult, may be enhanced. Penalty enhancement
affects the applicable statutory maximum penalty only. Each of the findings
required as a basis for such sentence shall be found beyond a reasonable doubt.
The enhancement will be as follows:
(1)(a) A misdemeanor of the second degree may be punished as
if it were a misdemeanor of the first degree.
(b) A misdemeanor of the first degree may be punished as
if it were a felony of the third degree. For purposes of sentencing under
chapter 921 and determining incentive gain-time eligibility under chapter 944,
such offense is ranked in level 1 of the offense severity ranking chart. The
criminal gang multiplier in s. 921.0024 does not apply to misdemeanors enhanced
under this paragraph.
(2)(a) A felony of the third degree may be punished as if it
were a felony of the second degree.
(b) A felony of the second degree may be punished as if
it were a felony of the first degree.
(c) A felony of the first degree may be punished as if it
were a life felony.
For purposes of sentencing
under chapter 921 and determining incentive gain-time eligibility under chapter
944, such felony offense is ranked as provided in s. 921.0022 or s. 921.0023,
and without regard to the penalty enhancement in this
subsection.
History.—s. 1, ch. 90-207; s. 76, ch.
94-209; s. 23, ch. 95-184; s. 37, ch. 96-388; s. 21, ch. 97-194; s. 1, ch.
2001-126; s. 8, ch. 2008-238.
874.045 Arrest and prosecution under other
provisions.—Nothing in this chapter shall
prohibit the arrest and prosecution of a criminal gang member under chapter 876,
chapter 895, chapter 896, s. 893.20, or any other applicable provision of law
except to the extent otherwise prohibited pursuant to a statutory or
constitutional provision.
History.—s. 9, ch.
2008-238.
874.05 Causing, encouraging, soliciting, or
recruiting criminal gang membership.—
(1) Except as provided in subsection (2), a person who
intentionally causes, encourages, solicits, or recruits another person to become
a criminal gang member where a condition of membership or continued membership
is the commission of any crime commits a felony of the third degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) A person who commits a second or subsequent violation
commits a felony of the second degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
History.—s. 38, ch. 96-388; s. 10, ch.
2008-238.
874.06 Civil cause of action.—
(1) A person or organization establishing, by clear and
convincing evidence, coercion, intimidation, threats, or other harm to that
person or organization in violation of this chapter has a civil cause of action
for treble damages, an injunction, or any other appropriate relief in law or
equity. Upon prevailing, the plaintiff may recover attorney’s fees in the trial
and appellate courts and the costs of investigation and litigation that are
reasonably incurred.
(2)(a) For purposes of this subsection, the term “state”
includes any of the state’s agencies, instrumentalities, subdivisions, or
municipalities, and includes, but is not limited to, state attorneys and the
Office of Statewide Prosecution of the Department of Legal Affairs.
(b) In addition to any remedies provided for by ss. 60.05
and 823.05, the state has a civil cause of action against any person or
organization if it proves by clear and convincing evidence that it has been
injured by reason of a violation of this chapter by the person or organization.
The state has a civil cause of action for treble damages, injunctive relief, or
any other relief in law or equity which the court deems appropriate. If the
state prevails, it may also recover attorney’s fees in the trial and appellate
courts and the costs of investigation and litigation that are reasonably
incurred. The state may not recover punitive damages. The defendant is entitled
to recover reasonable attorney’s fees and court costs if the court finds that
the state raised a claim that was without factual or legal support and was
vexatious, frivolous, or brought in bad faith.
(3) A prevailing plaintiff under subsection (1) has a
right or claim that is superior to any right or claim that the state has in the
same property or proceeds.
(4) A person who knowingly violates a temporary or
permanent order issued under this section or s. 60.05 commits a misdemeanor of
the first degree, punishable as provided in s. 775.082 or s.
775.083.
History.—s. 1, ch. 90-207; s. 39, ch.
96-388; s. 11, ch. 2008-238.
874.08 Criminal gang activity and
recruitment; forfeiture.—All profits, proceeds, and
instrumentalities of criminal gang activity and all property used or intended or
attempted to be used to facilitate the criminal activity of any criminal gang or
of any criminal gang member; and all profits, proceeds, and instrumentalities of
criminal gang recruitment and all property used or intended or attempted to be
used to facilitate criminal gang recruitment are subject to seizure and
forfeiture under the Florida Contraband Forfeiture Act, s.
932.704.
History.—s. 1, ch. 90-207; s. 77, ch.
94-209; s. 55, ch. 95-267; s. 40, ch. 96-388; s. 12, ch.
2008-238.
874.09 Crime data information.—
(1) The Department of Law Enforcement may:
(a) Develop and manage a statewide criminal gang database
to facilitate the exchange of information pursuant to the intent and purpose of
this chapter.
(b) Notify all law enforcement agencies that reports of
criminal gang members or associates shall be entered into the database as soon
as the minimum level of data specified by the department is available to the
reporting agency and no waiting period for the entry of that data
exists.
(c) Compile and retain information regarding criminal
gangs and their members and associates in a manner that allows the information
to be used by law enforcement and other agencies deemed appropriate for
investigative purposes.
(d) Compile and maintain a data repository relating to
criminal gangs and their members and associates in order to develop and improve
techniques used by law enforcement agencies and prosecutors in the
investigation, apprehension, and prosecution of members and affiliates of
criminal gangs.
(2) Local law enforcement agencies may:
(a) After carrying out any arrest of any individual whom
they believe is a member or associate of a criminal gang, create or update that
individual’s electronic file within the database.
(b) Notify the prosecutor of the accused individual’s
suspected criminal gang membership or associate
status.
History.—s. 1, ch. 90-207; s. 41, ch.
96-388; s. 13, ch. 2008-238.
874.10 Directing the activities of a criminal
gang.—Any person who knowingly initiates, organizes, plans,
finances, directs, manages, or supervises criminal gang-related activity commits
a felony of the first degree, punishable by imprisonment for a term of years not
exceeding life or as provided in s. 775.082, s. 775.083, or s.
775.084.
History.—s. 14, ch.
2008-238.
874.11 Electronic communication.—Any person who, for the purpose of benefiting,
promoting, or furthering the interests of a criminal gang, uses electronic
communication to intimidate or harass other persons, or to advertise his or her
presence in the community, including, but not limited to, such activities as
distributing, selling, transmitting, or posting on the Internet any audio,
video, or still image of criminal activity, commits a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
History.—s. 15, ch.
2008-238.
874.12 Identification documents; unlawful
possession or creation.—
(1) For purposes of this section, the term
“identification document” includes, but is not limited to, a social security
card or number, a birth certificate, a driver’s license, an identification card
issued pursuant to s. 322.051, a naturalization certificate, an alien
registration number, a passport, and any access credentials for a publicly
operated facility or an infrastructure facility covered under 18 U.S.C. s.
2332f.
(2) Any person possessing or manufacturing any blank,
forged, stolen, fictitious, fraudulent, counterfeit, or otherwise unlawfully
issued identification document for the purpose of benefiting, promoting, or
furthering the interests of a criminal gang commits a felony of the second
degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
History.—s. 16, ch.
2008-238.
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