Enrolled Version - Final Version
House Bill 4188 History
OTHER VERSIONS -
Introduced Version
|
Committee Substitute
|
| Email
Key: Green = existing Code. Red = new code to be enacted
ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4188
(By Delegates Lawrence, Stowers, Skaff, Phillips, Hamilton, D.
Poling, Manypenny, Marshall, T. Walker, Moore and Ellem)
[Passed March 13, 2010; in effect ninety days from passage.]
AN ACT
to amend and reenact §30-29-3 and §30-29-10 of the Code of
West Virginia, 1931, as amended, and to further amend said
code by adding thereto a new article, designated §61-13-1,
§61-13-2, §61-13-3, §61-13-4, §61-13-5 and §61-13-6, all
relating to requiring an organized criminal organization
investigation component with accompanying anti-racial
profiling education and training for law enforcement; creating
anti-organized criminal enterprise act; authorizing
rulemaking, including emergency rules; creating timetable for
developing procedures and rules; creating offenses of being a
member of an organized criminal enterprise; criminalizing
witness intimidation in organized criminal enterprise
prosecutions; establish qualifying offenses; creating the
offense of soliciting or inviting membership in an organized
criminal enterprise; making premises used by organized
criminal enterprises subject to public nuisance laws; allowing for forfeiture of property used for or obtained through
organized criminal enterprises; establishing exempted
activities; offenses; and penalties.
Be it enacted by the Legislature of West Virginia:
That §30-29-3 and §30-29-10 of the Code of West Virginia,
1931, as amended, be amended and reenacted, and that said code be
further amended by adding thereto a new article, designated article
§61-13-1, §61-13-2, §61-13-3, §61-13-4, §61-13-5 and §61-13-6, all
to read as follows:
§30-29-3. Duties of the Governor's committee and the subcommittee.
Upon recommendation of the subcommittee, the Governor's
committee shall, by or pursuant to rules proposed for legislative
approval in accordance with article three, chapter twenty-nine-a of
this code:
(a) Provide funding for the establishment and support of law-
enforcement training academies in the state;
(b) Establish standards governing the establishment and
operation of the law-enforcement training academies, including
regional locations throughout the state, in order to provide access
to each law-enforcement agency in the state in accordance with
available funds;
(c) Establish minimum law-enforcement instructor
qualifications;
(d) Certify qualified law-enforcement instructors;
(e) Maintain a list of approved law-enforcement instructors;
(f) Promulgate standards governing the qualification of law-enforcement officers and the entry-level law-enforcement training
curricula. These standards shall require satisfactory completion
of a minimum of four hundred classroom hours, shall provide for
credit to be given for relevant classroom hours earned pursuant to
training other than training at an established law-enforcement
training academy if earned within five years immediately preceding
the date of application for certification, and shall provide that
the required classroom hours can be accumulated on the basis of a
part-time curricula spanning no more than twelve months, or a full-
time curricula;
(g) Establish standards governing in-service law-enforcement
officer training curricula and in-service supervisory level
training curricula;
(h) Certify organized criminal enterprise investigation
techniques with a qualified anti-racial profiling training course
or module;
(i) Establish standards governing mandatory training to
effectively investigate organized criminal enterprises as defined
in article thirteen, chapter sixty-one of this code, while
preventing racial profiling, as defined in section ten of this
article, for entry level training curricula and for law-enforcement
officers who have not received such training as certified by the
Governor's committee as required in this section;
(j) Establish, no later than July 1, 2011, procedures for
implementation of a course in investigation of organized criminal
enterprises which includes an anti-racial training module to be available on the internet or otherwise to all law-enforcement
officers. The procedures shall include the frequency with which a
law-enforcement officer shall receive training in investigation of
organized criminal enterprises and anti-racial profiling, and a
time frame for which all law-enforcement officers must receive such
training: Provided, That all law-enforcement officers in this
state shall receive such training no later than July 1, 2012. In
order to implement and carry out the intent of this section, the
Governor's committee may promulgate emergency rules pursuant to
section fifteen, article three, chapter twenty-nine-a of this code;
(k) Certify law-enforcement officers, as provided in section
five of this article;
(l) Seek supplemental funding for law-enforcement training
academies from sources other than the fees collected pursuant to
section four of this article;
(m) Any responsibilities and duties as the Legislature may,
from time to time, see fit to direct to the committee; and
(n) Submit, on or before September 30 of each year, to the
Governor, and upon request to individual members of the
Legislature, a report on its activities during the previous year
and an accounting of funds paid into and disbursed from the special
revenue account establish pursuant to section four of this article.
§30-29-10. Prohibition of racial profiling.
(a) The Legislature finds that the use by a law-enforcement
officer of race, ethnicity, or national origin in deciding which
persons should be subject to traffic stops, stops and frisks, questioning, searches, and seizures is a problematic law-
enforcement tactic. The reality or public perception of racial
profiling alienates people from police, hinders community policing
efforts, and causes law-enforcement officers and law-enforcement
agencies to lose credibility and trust among the people law-
enforcement is sworn to protect and serve. Therefore, the West
Virginia Legislature declares that racial profiling is contrary to
public policy and should not be used as a law-enforcement
investigative tactic.
(b) For purposes of this section:
(1) The term "law-enforcement officer" means any duly
authorized member of a law-enforcement agency who is authorized to
maintain public peace and order, prevent and detect crime, make
arrests and enforce the laws of the state or any county or
municipality thereof.
(2) The term "municipality" means any incorporated town or
city whose boundaries lie within the geographic boundaries of the
state.
(3) The term "racial profiling" means the practice of a law-
enforcement officer relying, to any degree, on race, ethnicity, or
national origin in selecting which individuals to subject to
routine investigatory activities, or in deciding upon the scope and
substance of law-enforcement activity following the initial routine
investigatory activity. Racial profiling does not include reliance
on race, ethnicity, or national origin in combination with other
identifying factors when the law-enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national
origin is part of the description of the suspect.
(4) The term "state and local law-enforcement agencies" means
any duly authorized state, county or municipal organization
employing one or more persons whose responsibility is the
enforcement of laws of the state or any county or municipality
thereof.
(c) No law-enforcement officer shall engage in racial
profiling.
(d) All state and local law-enforcement agencies shall
establish and maintain policies and procedures designed to
eliminate racial profiling. Policies and procedures shall include
the following:
(1) A prohibition on racial profiling;
(2) Independent procedures for receiving, investigating, and
responding to complaints alleging racial profiling by law-
enforcement officers;
(3) Procedures to discipline law-enforcement officers who
engage in racial profiling;
(4) Procedures to insure the inclusion of training in the
investigation of organized criminal enterprises and anti-racial
profiling training in new officer training and to law-enforcement
officers who have not received such training as certified by the
Governor's committee; and
(5) Any other policies and procedures deemed necessary by
state and local law-enforcement agencies to eliminate racial profiling.
ARTICLE 13. ANTI-ORGANIZED CRIMINAL ENTERPRISE ACT.
§61-13-1. Findings.
(a) The Legislature hereby finds that there is evidence of an
increasing incidence of larger scale organized criminal activity in
various parts of this State and that new statutes are necessary to
protect the lives and property of the overwhelming majority of West
Virginians who are law-abiding citizens. The evidence presented to
the Legislature reflects that persons engaged in larger scale
ongoing criminal enterprises are of all ages, multiple racial and
ethnic origin and all pose a rising threat.
(b) The Legislature further finds that there is a tendency
among certain of these enterprises to actively recruit, sometimes
coercively, people into joining such organizations as well as
organized efforts to intimidate witnesses who may be in a position
to offer testimony regarding the organized criminal enterprises and
that such behavior cannot be tolerated.
(c) The Legislature further finds that lawful use of public
nuisance and forfeiture laws can substantially aid in a reduction
of larger scale organized criminal enterprises.
(d) The Legislature further finds that criminal statutes
tailored to the particular problems represented by such organized
criminal enterprises combined with community education and existing
alternative sentencing laws can aid in reducing this new threat.
§61-13-2. Definitions.
As used in this article:
"Organized criminal enterprise" means a combination of five or
more persons engaging over a period of not less than six months in
one or more of the qualifying offenses set forth in this section.
"Qualifying offense" means a violation of the felony
provisions of section eleven, article forty-one, chapter thirty-
three of this code; the felony provisions of chapter 60A of this
code; the felony provisions of article two of this chapter; the
provisions of sections one, two, three, four, five, eleven, twelve,
thirteen, fourteen, eighteen, nineteen, twenty-four, twenty-four-a,
twenty-four-b and twenty-four-d, article three of this chapter; the
felony provisions of sections article three-c of this chapter; the
felony provisions of article three-e of this chapter; the felony
provisions of article four of this chapter; the provisions of
section eight, article eight of this chapter; the felony provisions
of article eight-a of this chapter and the felony provisions of
article eight-c of this chapter.
§61-13-3. Offenses.
(a) Any person who knowingly and willfully becomes a member of
an organized criminal enterprise and who knowingly promotes,
furthers or assists in the commission of any qualifying offense
himself or herself or in combination with another member of an
organized criminal enterprise shall be guilty of a felony and, upon
conviction, shall be confined in a state correctional facility for
not more than ten years or fined not more than $25,000, or both.
The offense set forth in this subsection is separate and distinct from that of any qualifying offense and may be punished separately.
(b) Any person who knowingly solicits, invites, recruits,
encourages or causes another to become a member of an organized
criminal enterprise or to assist members of an organized criminal
enterprise to aid or assist in the commission of a qualifying
offense by one or more members of an organized criminal enterprise
shall be guilty of a felony and, upon conviction, be confined in a
state correctional facility for not more than five years or fined
not more than $10,000, or both.
(c) Any person who shall, by threats, menaces, or otherwise,
intimidate, or attempt to intimidate, a witness for the state in
any prosecution under the provisions of this article, for the
purpose of preventing the attendance of such witness at the trial
of such case or to change testimony, or shall in any way or manner
prevent, or attempt to prevent, the attendance of any such witness
at such trial, shall be guilty of a felony, and, upon conviction,
shall be confined not more than ten years.
§61-13-4. Premises used by organized criminal enterprises;
nuisances; actions for injunction, abatement and
damages; other remedies for unlawful use;
exceptions.
(a) Every private building or place used by members of an
organized criminal enterprise for the commission of qualifying
offenses is a nuisance and may be the subject of an injunction or
cause of action for damages or for abatement of the nuisance as provided for an article nine of this chapter.
(b) Any person may file a petition for injunctive relief with
the appropriate court seeking eviction from or closure of any
premises used for the operation of an organized criminal
enterprise. Upon proof by the plaintiff that the premises are
being used by members of an organized criminal enterprise for the
commission of a qualifying offense or offenses, the court may order
the owner of record or the lessee of the premises to remove or
evict the persons from the premises and order the premises sealed,
prohibit further use of the premises, or enter such order as may be
necessary to prohibit the premises from being used for the
commission of a pattern of criminal gang activity and to abate the
nuisance.
§61-13-5. Forfeiture.
(a) The following are declared to be contraband and no
person shall have a property interest in them:
(1) All property which is directly or indirectly used or
intended for use in any manner to facilitate a violation of this
article; and
(2) Any property constituting or derived from gross profits or
other proceeds obtained from a violation of this article.
(b) In any action under this section, the court may
enter such restraining orders or take other appropriate action,
including acceptance of performance bonds, in connection with any
interest that is subject to forfeiture.
(c) Forfeiture actions under this section shall use the procedures set forth in article seven, chapter sixty-A of this
code.
§61-13-6. 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.