Gang Enhancements And Due Process

April 11, 2016

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Gang Enhancements And Due Process

A Tennessee court of appeals issued a turgid, 57-page decision last week that ruled that the Volunteer State’s gang enhancement law violates the due process clause of the Fourteenth Amendment.

Yes, the Fifth Amendment also contains a due process clause.

The Tennessee ruling has received considerable attention. Theoretically, it may effect the application of gang enhancements to criminal charges in other states. The Tennessee ruling is not as likely to accomplish that in and of itself as much as the 55-year-old ruling by the United States Supreme Court it cites, That old ruling seems applicable to many “gang” cases, particularly the slow motion “gang” case now underway in Waco, Texas.


In Tennessee, four defendants named Devonte Bonds, Thomas Bishop, Jason Sullivan, and Brianna Robinson were tried jointly and convicted of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony after they beat “out a fellow gang member.” The beating put the victim in a coma for nine weeks.

“The jury found that the underlying offenses committed by Defendants Bonds, Bishop, and Sullivan constituted criminal gang offenses, and they received enhanced punishment….”

The prosecution’s case included the testimony of a “gang expert” and the Tennessee appeals court  ruled his testimony was relevant because he has taken many classes in gangs, has taught many classes in gangs and has given testimony against gang members many times before.

Tennessee’s legal definition of a street gang resembles many such definitions:

“A criminal gang is a formal or informal ongoing organization, association or group consisting of three or more persons that has . . . as one of its activities the commission of criminal acts; and two or more members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity.” The statute defines “pattern of criminal gang activity” as prior convictions for the commission or attempted commission of Two or more criminal gang offenses that are classified as felonies; or three or more criminal gang offenses that are classified as misdemeanors; or one or more criminal gang offenses that are classified as felonies and two or more criminal gang offenses that are classified as misdemeanors; and the criminal gang offenses are committed on separate occasions; and the criminal gang offenses are committed within a five-year period.”

New And Old Law

What seems to be applicable to “gang” cases in other states is the Tennessee ruling that prosecutors must prove a connection, or nexus, between criminal activity and gang affiliation. This has come up in recent federal racketeering cases aimed at motorcycle clubs, most notably U.S. v. Mongol Nation in which prosecutors failed to assert a connection between certain criminal acts, some of them decades old, and the membership of the Mongols Motorcycle Club as a whole when the case was filed.

The Tennessee court quotes the 1961 federal case Scales v. United States: “In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity…that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause….”

The Scales decision is likely to be cited at some point in the current criminal proceedings in Waco, Texas where a bush league District Attorney named Abelino Reyna decided that innocent people could be arrested for participating in organized crime if they could be “documented” as either a Cossack or a Bandido or a “supporter” of either of those clubs. This “documentation” could be “based on their jackets or what is referred to as ‘cuts’ or ‘colors’ as well as a any other patches or particular identifiers to show they were a documented member or a support member.” These identifiers included “a patch showing ‘I support the Bandidos’” and a patch “indicating ‘I support the Fat Mexican.’”

Citing Scales, the Tennessee appeals court disagrees with the learned Reyna. “It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that act alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of a conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever.”


21 Responses to “Gang Enhancements And Due Process”

  1. Fr. Abraham Says:

    The big downside I’m seeing to this, from a legal standpoint, is unAbel Reyna trying to say “well, the law as we knew it *at the time* said we could arrest and charge these people, and it was legal…we had to dismiss the charges because the law was overturned, but we didn’t do anything illegal because that was the law *at the time*.”

    It’s going to create a whole shitstorm of issues in civil court.

  2. Meh Says:

    If it can be shown any “conspiracy” prior to the firefight was limited to a few actors then the rest who attended won’t go down for what those actors did. It would be strategic to blame dead people.

    Reyna could spin it, but the innocent would be far less fucked than if he won outright. They still lost status, freedom, money, employment, child custody and property.

    Concur on the civil court shitstorm.

  3. Meh Says:

    BTW does Texas AG Paxton (under indictment for securities fraud) have any role in the Waco case?

    The GOP should beware of supporting “gang enhancements” if they are going to act like one.

  4. T Hell Says:

    We will see many more of these rulings in the near future as the PC crowd tries to make life more “fair” for the Amerikans of Afrikan descent. Most gang enhancement charges are filed against poor misunderstood blacks and that has become patently unfair and in need of change……


  5. Gandalf Says:

    @ T-Hell…. ??? Really?

  6. Parsifal Says:

    They can because we let them.

  7. T Hell Says:

    Absolutely google it, here’s an example

  8. Gandalf Says:

    So you got a problem with a ruling that could help Club members (in the future) and Waco bikers (not really) because it came from some PC Hamster loving BLM Liberals? LOL What’s the dif WHO it comes from so long as its 1/2 a drop of Justice in the desert we call a Courtroom?

  9. Meh Says:

    That pdf is interesting. With a dwindling low-risk trophy population and obvious difficulties of cops inflltrating black targets increased interest by LEO in other folks becomes understandable.

    Obviously darktown has its share or real bangers and they take out an impressive number of their fellow tribesmen, but that in no way means the way LEO treat the GENERAL POPULATIONS of those communities is fair or unbiased. It wouldn’t be the first time an occupation force made enemies and their leadership were too dense to understand why.

    There is also money in the game. If you get paid and your department funded to deal with an ongoing problem there’s no payoff for ending the problem.

  10. Dutchboy frmo Says:

    The goal in Waco is not just prosecution, but the “chilling effect” on the community at large. For some time the “Support the Fat Mexican” shirts were worn by many as a sign of regional pride. Almost a biker version of a “I love Texas” shirt. I imagine many of those shirts are staying in the drawers at home. This is as much a cultural war as a legal one.

  11. popeye Says:

    We is the new negro . Someone to persecute with repercussions.

  12. popeye Says:

    In Above post “without”

  13. roach Says:

    We’re the new American Indian. The reservations are prisons.

  14. Parsifal Says:

    ^^^^hence! We be da nu nigga’s with the attitude shot out of dem!^^^^ by the pO -leeeece. @ least thas how duh pO – leeeece down n wacko -rolllls.

    piece out!

  15. oldskewl Says:

    As a youngster, I lived 4 years in the projects in East Oakland (The ones with the green doors). I was one of 3 white kids in a 5-6 block radius and one of about 6 white in my schools. I was in grade school back then and I fought my way home each and everyday because, well… I was white.

    I had two acquaintances that were friendly to me but I wasn’t allowed in their house. Their parents would spout racial shit about me and yell about slavery and this and that. I learned from a young age that blacks are indoctrinated from birth to hate white people. I took my beatings and I dished my fair share as well.

    My dad had to be about the most anti nigger person I ever met but his heroin addiction kept us poor and left me living in a world of hell. I split on my own when I was 13 and never looked back. The beatings left me with a bad taste in my mouth and I will never forgive or forget what I lived through.
    Now, niggers wanna act like civil humans but I ain’t buying it.

    This may have great implications for the injustices in Waco and other indictments against bikers across the nation but niggers will always be niggers. A zebra cannot change it’s stripes.


  16. Traveylin Says:

    Interesting to note that the Waco Trib acknowledges two senior prosecutor division heads have left in the past 10 days. The good folks leave and the rats stay and eat each other. Reyna could be running out of bullets

  17. Gandalf Says:

    “We be da nu nigga’s” (Parsifal) When a 14th Amendment ruling can help Bikers fight the Feds it’s kinda obvious. MSNBC needs to give “Bowtie” a show right after the Rev Al Sharpton’s.

  18. Kurt Barlow Says:

    @ oldskewl

    “They are often the kinds of kids that are called ‘super-predators,’ ” Clinton said in 1996, at the height of anxiety during her husband’s administration about high rates of crime and violence. “No conscience, no empathy, we can talk about why they ended up that way, but first we have to bring them to heel.”

  19. Meh Says:

    Gandalf nailed it. The ruling is useful.

    Niggas gonna nig and have completely internalized killing each other.

    Bikers rarely kill each other but should be smart enough not to need or want to since the net consequences are toxic for bikerdom.

    Brotherhood is power but biker brotherhood has never been focused to functionally expand legal freedoms for bikers as a group. Spin has its limits and even many toy runs don’t completely undo the impact of a few public shootings by a minority.

    Spectators can connect the logical dots then generally infer what’s being fought over even if it shall never be named. If the fucking squabble wasn’t visible there would be no dots to connect. Sons of Anarchy isn’t supposed to be a training video!

    Human nature being what it is we’ll see more public shenanigans. Some kids always shit in the sandbox. In this particular playground the school administration plays favorites and enjoys the show.

    As a libertarian I object to (any) show being a tool used to attack all our civil rights. The government keeps demanding more of my rights to protect me from imaginary threat du-jour while trying to distract me from their looting the public till.

    If they want it enough bikers could pretty much build a self-selected outsider society full of happy riding, partying, fucking and even manage not to interest the pigs much. It would take a couple of decades but society has already changed its mind about weed and sex. Aggressive tribalism is not necessarily a route to personal freedom. Of course neither is being a pussy.

  20. Trucker Says:

    Tennessee law doesn’t mean spit in Texas, not that those defense attorneys will mind getting paid for trying.

  21. chromedome Says:

    surprising to me. Tennessee will lock you up for a roach in the ashtray. hell a family member of mines house was shot at with bullets missing sleeping children by inches and when the fuckin police got there they were going take the mom to jail for a joint in her pocket. in the end she was only cited and received probation. i just dont see it trickling down on a local level too much maybe its just me being pessimistic.


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