Police brutality in Los Angeles has received national media attention as well as censure. But in reality gangs brutalize each other like no police brutality imaginable ever could.
Looking at the problem from the police vantage point, in almost every instance officers are at a serious disadvantage. They can bank on the fact that they are seriously out-gunned in any gang related incident. L.A. and Ventura County gangs carry and use semiautomatic weapons as part of their regular daily activities. Brass knuckles and two by fours are a thing of the past as is the old-fashioned fist fight. For the gang member, a certain amount of status is derived from owning and even brandishing a weapon- most commonly a 9mm semiautomatic, which may be capable of firing 17 or more bullets without being reloaded. Although many police departments are now equipped with 9mm semiautomatic weapons as well, the gang members are also armed with uzis, shotguns, small revolvers, AK-47's with an 80 round clip, knives, and whatever else they devise as a weapon.
In addition to being out-gunned, in most cities across the country, police officers are under siege in a number of ways. Currently, there are too few police patrolling the streets, and a good many officers leaving the force each year.
The very same citizens who want police protection from gangs in
their neighborhoods, are often a bit hasty to cry "police
brutality" considering what the police face each time they are
called into a gang-ridden neighborhood. Often a non-gang
affiliated youth gets mistreated; however, in many instances
he/she was sporting the cholo look, the gangster look, the junkie
fashion statement or what have you. Parents and youths themselves
need to revisit their assumptions and the impressions they make on
others. What are you trying to say? How are police officers to
know who's who?
Authorities have been foiled from the outset; first, because the primary approach in dealing with street gangs has been a "war" model, and like the "War on Drugs" it has failed miserably. Using the "war" model makes identifying the gang member a primary focus -ergo undue attention is been given to the way people look. As a result, arrests based on attire have undeniably occurred. However, they have also been deemed unconstitutional.
Another law enforcement approach some years ago, was to study gang nicknames as possible ways of securing facts and details on various members; however, quite often there are several "Chueys," for example, in the same neighborhood. Clearly, police cannot go after "El Chuey" without knowing which one they are after (Feldman at II-3, Col 1).
To make matters more difficult, law enforcement statistics are often fuzzy because officers themselves may not always be truthful about the gang affiliation of a victim (if they have accurate information in the first place). Officers have at times taken into consideration that such information might lead to impeachment of the victim's character during the trial--just one more complication (Burrell 1990).
Other police reservations of a more political nature might also prevail; for example, one Southern California city police chief was fired for supposedly furnishing fraudulent data concerning the achievements of a gang prevention program (Katz 1994).
The RICO statute specifies that membership in an enterprise that deals in crime is itself a crime, regardless of whether or not the individual is involved in actually committing an act of racketeering. Nevertheless, it remains quite difficult to arrest suspected street gang members for a number of reasons that virtually handcuff the arresting officers instead of the gang bangers. For example, the arrest must not demonstrate partiality, or evidence of hearsay. How does one prove that an individual is indeed a member of a gang? Isn't it always hearsay? Furthermore, membership in a gang, Rico statute or not, does not reasonably lead to any inference of criminal activity--at least not in a court of law (Burrell 1990).
Although the FBI has stood firmly behind the so-called "enterprise" approach when dealing with Asian Gangs in particular in the past, i.e. membership in gangs and such enterprises is in itself a crime, here the problem of defining "gang" and who is and who is not a member surfaces again. The California Penal Code (Section 186.22) defines a street gang, but again the terms used in the definitions exhibit the same lack of precision so apparent in the terms they attempt to explain.
Historically, law enforcement has always been at a disadvantage. The Public Enemy Acts of the l930's were sought out to outlaw ethnic criminal organizations. At the time, they were applauded as a fitting response to the public menace of organized crime. However, as might be expected, they were subsequently stricken by state and federal courts. The U.S. Supreme Court declared the New Jersey's Public Enemy Act unconstitutional, concluding that the word "gang" had any number of meanings. This, of course, made the statute so vague it was unbefitting the due process clause of the Fourteenth Amendment (Burrell 1990). The Public Enemy Acts were stricken.
A definition for "gang" has been attempted for a number of years going back as far as People v. Zammora in l940. Currently "gang" connotes "opprobrious implication" (People v.Perez 1981). While a bit more focused, this is still quite illusive and full of loopholes.
Gang members, cholos, low riders and other flamboyant car/social club members are frequently distinctly different types of youths The gang members are generally considered a criminal element, but car club members, on the other hand, are often youths who attend school and work part time as well (usually to support their cars). They do not necessarily take part in illegal activities, certainly not as part of the car club philosophy, other than to get stopped for traffic violations from time to time.
The problem of youth street gangs in urban areas is not only devastating to the community, it is also very expensive. The cost of gang-connected law enforcement, trials, various judicial proceedings, imprisonment and/or rehabilitation programs is all being underwritten by the taxpayers at a very high premium (Thompson & Jason 1988:323).
Be that as it may, the community has also demanded protection against over-generalized sweeps. Thus, although there is a "Street Terrorism Act" in place, the act does not define "gang member."
On the other hand, the community also needs to consider that while every call carries with it some element of danger, from the police officers' perspective, gang-related calls are a certain threat not only to the neighborhood experiencing a problem, but to the responding officers' personal safety. Making arrests of suspected gang members is tricky business with police officers at a disadvantage at every turn.
Even in an all out "war against gangs" initiative, an unexpected kind of back-lash has resulted in some instances. Suddenly the already over-burdened police station finds itself in the middle of an overwhelming number of arrests to process. Some offices have set up temporary mobile booking units, using their already beleagured clerks and staff, but most have been unable to deal with the mountain of newly created work.
RIGHTS OF THE ACCUSED
Obviously, affiliating with a street gang in and of itself cannot be considered a crime. The first and fourteenth amendments prohibit the imposition of civil or criminal penalties for mere affiliation with others. Our constitution protects against guilt by association.
Furthermore, under our system of government, a jury cannot reason that young people have criminal dispositions simply because they belong to a gang and that gang commits crimes. This may seem like a reasonable conclusion knowing that street gangs commit crimes. But many aspects of our laws are befuddling to the citizens these days, although in the long run they are there for our own individual protection.
While there may seem to be a contradiction in purpose here, the point is that without proof that a particular individual committed a crime and not just that s/he is a member of a gang, that individual walks. (the People v. Cardenas and the El Monte Flores Gang l982) There is no doubt that many an accomplice has gotten off by this route.
Furthermore, the police cannot "pat-down" any gang member based on a generalized belief that s/he is carrying a weapon. However, if the officer deems present danger to self (Michigan v. Long) (see also People v. Lawler ) then gang members may indeed be searched - "patted-down." On the other side of that coin is the lamentable fact that some officers may deem present danger when indeed there is none, and herein lie the seeds of discontent in the community and accusations of police harassment.
Another problem is that of specifying exactly what a minor's constitutional rights really are. Growing out of this issue, many curfew ordinances have been criticized as unconstitutional. Clearly, the rights of a minor are not altogether the same as the rights of adults. The state derives a good deal of power to control children's behavior because of their vulnerability. (Silverman The Municipality 1994). Confronting the system on behalf of juveniles arises out of guarantees provided in various constitutional amendments, namely:
the First Amendment (freedom of speech, religion, assembly and association
the Fourth Amendment (unreasonable search and seizure)
the Fifth Amendment (due process and self incrimination)
the Ninth Amendment (other rights not specified in the Constitution)
and the Fourteenth Amendment ( equal protection, due
process, privacy rights, freedom of movement and freedom to
travel interstate and intrastate).
However, there have been situations in which gangs have lost disputes concerning their rights. For example, some criminal gang activity statues (like the one recently enacted in Wisconsin) have been upheld. Here the findings indicate that the statute did not infringe upon a defendant's right of association guaranteed by the federal constitution. Also, in California STEP, an anti-gang Street Terrorism Enforcement and Protection Act, was found to be constitutional as well. It barred two gangs from a particular park in San Fernando, California.
While the law and the community may seem to be at odds, some of
the best and most successful solutions to the gang problem are
those in which the two worked in tandem. (See Solutions section)
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