H. B. 4188
(By Delegates Lawrence, Stowers, Skaff, Phillips, Hamilton, D.
Poling, Manypenny, Marshall, T. Walker, Moore and Ellem)
[Introduced January 27,2010; referred to the
Committee on the Judiciary then Finance.]
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; 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; providing for the forfeiture of property
used in connection with or derived from criminal gang
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 who 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) Encourage an 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 who: (i) Uses force against the individual
or a member of his or her family or household; or (ii) threatens
force against the individual or a member of his or her family or
household, which threat would place any person in reasonable
apprehension of death or bodily injury;
(4) Cause bodily injury by hazing: (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;
and
(5) 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: (A) Which has as one of its primary objectives or
activities the commission of one or more criminal activities; (B)
which has an identifiable name or identifying sign or symbol; and
(C) whose 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.
(2) "Family or household member" 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 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.
(3) "Predicate criminal act" means: (A) An act of violence;
(B) any violation of chapters sixty-a or sixty-one of this code; or (C) any substantially similar offense under the laws of another
state or territory of the United States, the District of Columbia,
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. Forfeiture.
All property, both personal and real, of any kind or character
used in substantial connection with, intended for use in the course
of, derived from, traceable to, or realized through, including any
profit or interest derived from, any conduct in violation of any
provision of this article is subject to civil forfeiture to the
state. Further, all property, both personal and real, of any kind
or character used or intended to be used in substantial connection
with, during the course of, derived from, traceable to, or realized
through, including any profit or interest derived from, criminal
street gang member recruitment as prohibited under subsection (a),
section one of this article is subject to civil forfeiture to the
state. The forfeiture proceeding shall utilize the provisions of
section seven hundred five, article seven, chapter sixty-a of this
code and the procedures specified therein shall apply to all
forfeitures under this article. The application of one civil
remedy under the article does not preclude the application of any
other remedy, civil or criminal, under this article or any other
provision of this code.
NOTE: The purpose of this bill is to create the Anti-Criminal
Street Gang Act and sets forth prohibited acts and activities. The bill prohibits the participation in a criminal street gang, the
recruitment of persons for criminal street gangs, the hazing
criminal street gang members or those seeking to become members.
The bill also prohibits damage to property and provides for the
forfeiture of property used in connection with or derived from
criminal gang activities. The bill further defines terms and
establishes criminal penalties.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added
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