SENATE BILL NO. 61 January 26, 1999, Introduced by Senator VAN REGENMORTER and referred to the Committee on Judiciary. A bill to prohibit certain organized gang-related activity; to create the statewide organized gang data base; to prescribe the powers and duties of certain state and local officials and agencies; and to prescribe remedies and penalties. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 1. This act shall be known and may be cited as the 2 "Michigan youth and gang crime act". 3 Sec. 2. As used in this act: 4 (a) "Course or pattern of criminal activity" means 2 or more 5 gang-related criminal offenses committed in whole or in part 6 within this state if all of the following circumstances exist: 7 (i) At least 1 of the offenses was committed after the 8 effective date of this act. 9 (ii) At least 2 offenses were committed within 5 years of 10 each other. 00036'99 TVD 2 1 (iii) At least 1 offense involved the solicitation to 2 commit, conspiracy to commit, attempt to commit, or commission of 3 a felony. 4 (b) "Department" means the department of state police. 5 (c) "Designee" means any attorney for a public authority who 6 has received written permission from the prosecuting attorney to 7 file or join in a civil action authorized by this act. 8 (d) "Director" means the director of the department. 9 (e) "Gang-related" means any criminal activity, enterprise, 10 pursuit, or undertaking directed by, ordered by, authorized by, 11 consented to, agreed to, requested by, acquiesced in, or ratified 12 by any organized gang leader, officer, or governing or 13 policy-making person or authority, or by any agent, representa- 14 tive, or deputy of the organized gang leader, officer, person, or 15 policy-making person or authority under any of the following 16 circumstances: 17 (i) With the intent to increase the organized gang's size, 18 membership, prestige, dominance, or control in any geographical 19 area. 20 (ii) With the intent to provide the organized gang with any 21 advantage in, or any control or dominance over, any criminal 22 market sector, including, but not limited to, the manufacture, 23 delivery, or sale of a controlled substance, arson, traffic in 24 stolen property or stolen credit cards, traffic in prostitution 25 or obscenity, or any other crime that involves robbery, burglary, 26 or theft. 00036'99 3 1 (iii) With the intent to obstruct justice or to intimidate 2 or eliminate any witness against the organized gang or any member 3 of the organized gang. 4 (iv) With the intent to otherwise directly or indirectly 5 cause any benefit, aggrandizement, gain, profit, or other advan- 6 tage to or for the organized gang, its reputation, influence, or 7 membership. 8 (f) "Organized gang" means any combination, confederation, 9 network, conspiracy, understanding, or other similar conjoining 10 in law or in fact of 3 or more persons with an established hier- 11 archy that through its membership or through the agency of any 12 member engages in a course or pattern of criminal activity. 13 (g) "Organized gang member" means a person who belongs to an 14 organized gang, and any person who knowingly acts as an agent for 15 or as an accessory to, or is legally accountable for, or volun- 16 tarily associates with an organized gang-related course or pat- 17 tern of criminal activity, whether in a preparatory, executory, 18 or cover-up phase of that activity, or who knowingly performs, 19 aids, or abets that activity. 20 (h) "Prosecuting attorney" means the prosecuting attorney 21 for a county, an assistant prosecuting attorney for a county, the 22 attorney general, the deputy attorney general, an assistant 23 attorney general, or a special prosecuting attorney. 24 (i) "Public authority" means any unit of local government or 25 school district created or established under the constitution or 26 laws of this state. 00036'99 4 1 (j) "Public park" means property designated by this state or 2 a local unit of government of this state as a public park. 3 (k) "School property" means a building, playing field, or 4 property used for school purposes to impart instruction to chil- 5 dren in grades kindergarten through 12, when provided by a 6 public, private, denominational, or parochial school, except 7 those buildings used primarily for adult education or college 8 extension courses. 9 (l) "SWORD" means the statewide organized gang data base 10 created under this act. 11 Sec. 3. (1) Except as provided in subsections (2) and (3), 12 a person who expressly or impliedly threatens to do bodily harm 13 or does bodily harm to an individual or to that individual's 14 family or uses any other criminally unlawful means to solicit or 15 cause any person to join any organization or association is 16 guilty of a felony punishable by imprisonment for not more than 2 17 years or a fine of not more than $1,000.00, or both. 18 (2) Except as provided in subsection (3), a person 18 years 19 of age or older who expressly or impliedly threatens to do bodily 20 harm or does bodily harm to a person less than 18 years of age or 21 uses any other criminally unlawful means to solicit or cause any 22 person less than 18 years of age to join any organization or 23 association is guilty of a felony punishable by imprisonment for 24 not more than 4 years or a fine of not more than $2,000.00, or 25 both. 26 (3) A person who, on school property, or in a conveyance 27 owned, leased, or contracted by a school to transport students to 00036'99 5 1 or from school property or a school related activity, or in a 2 public park, or on any public property within 1,000 feet of 3 school property or a public park, expressly or impliedly threat- 4 ens to do bodily harm or does bodily harm to an individual or to 5 that individual's family or uses any other criminally unlawful 6 means to solicit or cause any person to join any organization or 7 association is guilty of a felony punishable by imprisonment for 8 not more than 5 years or a fine of not more than $3,000.00, or 9 both. 10 Sec. 4. The department may do 1 or more of the following: 11 (a) Provide a uniform reporting format for entering relevant 12 information regarding the report of an arrested organized gang 13 member into SWORD. 14 (b) Notify all law enforcement agencies that reports of 15 arrested organized gang members or organized gang affiliates 16 shall be entered into the SWORD data base as soon as the minimum 17 level of data specified by the department is available to the 18 reporting agency, and that no waiting period for the entry of 19 that data exists. 20 (c) Develop and implement a policy for notifying law 21 enforcement agencies of the creation of new organized gangs, or 22 the change of a name or other identifying sign by an existing 23 organized gang. 24 (d) Compile and retain information regarding organized 25 gangs, organized gang members, and organized gang affiliates, in 26 a manner that allows the information to be used by law 00036'99 6 1 enforcement agencies and other agencies, considered appropriate 2 by the director, for investigative purposes. 3 (e) Compile and maintain a historic data repository relating 4 to organized gangs, organized gang members, and organized gang 5 affiliates in order to develop and improve techniques utilized by 6 law enforcement agencies and prosecutors in investigating, appre- 7 hending, and prosecuting organized gang members and organized 8 gang affiliates. 9 (f) Create a quality control program regarding confirmation 10 of organized gang membership and organized gang affiliation data, 11 timeliness and accuracy of information entered into SWORD, and 12 performance audits of all entering agencies. 13 (g) Locate all law enforcement agencies that could, in the 14 opinion of the director, benefit from access to SWORD, and notify 15 them of its existence. 16 (h) Cooperate with all law enforcement agencies wishing to 17 gain access to SWORD and facilitate their entry into the system 18 and their continued access to it. 19 Sec. 5. A local law enforcement agency that is a member of 20 the SWORD system may do 1 or more of the following: 21 (a) After arresting an individual the law enforcement agency 22 believes is a member of an organized gang or affiliate of an 23 organized gang, create or update that individual's electronic 24 file within SWORD. 25 (b) Notify the prosecuting attorney of the accused 26 individual's organized gang membership or organized gang 27 affiliate status. 00036'99 7 1 Sec. 6. Information that may be placed in SWORD includes, 2 but is not required to be limited to, all of the following: 3 (a) The name, last known address, birth date, and physical 4 description of an arrested organized gang member. 5 (b) Officer safety information, organized gang affiliation, 6 and entering agency identifier. 7 Sec. 7. The department may develop an automated data 8 exchange system to compile, to maintain, and to make information 9 in SWORD electronically available to prosecutors and to other law 10 enforcement agencies. The information may be used by prosecutors 11 and other law enforcement agencies to combat the operations of 12 organized criminal gangs statewide. 13 Sec. 8. (1) A civil cause of action is created in favor of 14 any public authority expending money, allocating or reallocating 15 police, fire fighting, emergency, or other personnel or 16 resources, or otherwise incurring any loss, deprivation, or 17 injury, or sustaining any damage, impairment, or harm, proxi- 18 mately caused by any course or pattern of criminal activity. 19 (2) The cause of action created under subsection (1) is 20 against any of the following: 21 (a) Any organized gang in whose name, for whose benefit, on 22 whose behalf, or under whose direction the act was committed. 23 (b) Any organized gang officer or director who causes, 24 orders, suggests, authorizes, consents to, agrees to, requests, 25 acquiesces in, or ratifies the act. 00036'99 8 1 (c) Any organized gang member who, in the furtherance of or 2 in connection with any organized gang-related activity, commits 3 the act. 4 (d) Any organized gang officer, director, leader, or 5 member. 6 (3) The cause of action under subsection (1) may be brought 7 by the prosecuting attorney or by his or her designee. The cause 8 of action shall be in addition to any other civil or criminal 9 proceeding authorized by the laws of this state or by federal 10 law, and does not require the prosecuting attorney or his or her 11 designee to elect a civil rather than criminal remedy, or replace 12 any other cause of action. Liability of the organized gang, its 13 officers, directors, leaders, and members is joint and severable 14 subject only to the apportionment and allocation of damages. 15 Sec. 9. (1) An action may be commenced under this act by 16 filing a verified complaint in the same manner as in civil 17 cases. 18 (2) A complaint filed under this act, and all other ancil- 19 lary or collateral matters arising including matter relating to 20 discovery, motions, trial, or perfecting or executing judgments 21 shall be subject to the revised judicature act of 1961, 1961 PA 22 236, MCL 600.101 to 600.9948, except as otherwise provided in 23 this act, or except as the court may otherwise order upon motion 24 of the prosecuting attorney or his or her designee in matters 25 relating to immunity or the physical safety of a witness. 00036'99 9 1 (3) The complaint shall name each complaining prosecuting 2 attorney or his or her designee and the public authority 3 represented by that prosecuting attorney or his or her designee. 4 (4) The complaint shall name as defendants the organized 5 gang, all known organized gang officers, and any organized gang 6 members specifically identified or alleged in the complaint as 7 having participated in an organized gang-related course or pat- 8 tern of criminal activity. The complaint may also name, as a 9 class of defendants, all unknown organized gang members. 10 (5) When, at any point before trial, a specific organized 11 gang officer or organized gang member becomes known, the com- 12 plaint may be amended to include that person as a named 13 defendant. 14 Sec. 10. (1) In an action brought under this act, venue 15 lies in any county where an act charged in the complaint as part 16 of a course or pattern of organized gang-related criminal activ- 17 ity was committed. 18 (2) It is not necessary for all offenses necessary to estab- 19 lishing a course or pattern of criminal activity to have occurred 20 in any single county if the prosecuting attorneys of several 21 counties, or their designees, each complaining of an offense, 22 elect to join in a complaint. It is sufficient that the com- 23 plaint, taken as a whole, alleges a course or pattern of criminal 24 activity by an organized gang. Each count of the joint complaint 25 shall be considered as cumulative to other counts for purposes of 26 alleging or demonstrating a course or pattern of criminal 27 activity. 00036'99 10 1 (3) If a course or pattern of criminal activity is alleged 2 to have been committed or to have occurred in more than 1 county, 3 the prosecuting attorney of each county, or his or her designee, 4 may join the several causes of action in a single complaint. The 5 complaint may be filed in any county agreed to by them, but join- 6 der shall not be had without the consent of the prosecuting 7 attorney having jurisdiction over each offense alleged as part of 8 the course or pattern of criminal activity. 9 Sec. 11. (1) All organized gangs and organized gang members 10 engaged in a course or pattern of criminal activity within this 11 state impliedly consent to service of process upon them as set 12 forth in this section, or as may be otherwise authorized by the 13 revised judicature act of 1961, 1961 PA 236, MCL 600.101 to 14 600.9948. 15 (2) Service of process upon an organized gang may be made in 16 the manner provided for service upon a voluntary unincorporated 17 association in a civil action, or in the manner provided for 18 service by publication in a civil action, or by leaving a copy of 19 the complaint and summons directed to any officer of the orga- 20 nized gang, commanding the organized gang to appear and answer 21 the complaint or otherwise plead at a time and place certain with 22 any of the following: 23 (a) Any organized gang officer. 24 (b) Any member of the organized gang simultaneously named in 25 the complaint and summons. 26 (c) Any parent, legal guardian, or legal custodian of a 27 person charged with a gang-related offense if any person sued 00036'99 11 1 civilly under this act is less than 18 years of age and is also 2 charged criminally or as a delinquent minor. 3 (d) The director of any agency or department of this state 4 who is the legal guardian, guardianship administrator, or custo- 5 dian of any person sued under this act. 6 (e) The probation or parole officer of any person sued under 7 this act. 8 (f) Any other person or agent as the court upon petition of 9 a prosecuting attorney or his or her designee authorizes as 10 appropriate and reasonable under all of the circumstances. 11 (3) If after being summoned an organized gang does not 12 appear, the court shall enter an answer for the organized gang 13 neither affirming nor denying the allegations of the complaint 14 but demanding strict proof of the allegations contained in the 15 complaint, and proceed to trial and judgment without further 16 process. 17 (4) If a person is named as a defendant organized gang 18 member in a complaint, or subsequently becomes known and is added 19 or joined as a named defendant, service of process may be had as 20 authorized or provided for in the revised judicature act of 1961, 21 1961 PA 236, MCL 600.101 to 600.9948, for service of process in a 22 civil case. 23 (5) Unknown organized gang members may be sued as a class 24 and designated as a class in the caption of any complaint filed 25 under this act. Service of process upon unknown organized gang 26 members shall be made in the manner prescribed for providing 27 notice to members of a class in a class action, or as the court 00036'99 12 1 directs for providing the best service and notice practicable 2 under the circumstances including individual, personal, or other 3 service upon all organized gang members who can be identified and 4 located through reasonable effort. 5 Sec. 12. (1) In any action brought under this act, and upon 6 the verified application of the prosecuting attorney or his or 7 her designee, the circuit court may at any time enter a restrain- 8 ing order, injunction, or other prohibition, or order any other 9 relief the court considers appropriate, including, but not 10 limited to, ordering any person to divest himself or herself of 11 any involvement or interest, direct or indirect, in any illegal 12 organized gang activity and imposing other reasonable restric- 13 tions on the future illegal activities of any defendant. 14 (2) A final judgment in favor of a public authority under 15 this act entitles the public authority to recover compensatory 16 damages for all damages, losses, impairments, or other harm prox- 17 imately caused, together with the costs of the suit and reason- 18 able attorneys' fees. Damages may be assessed against any orga- 19 nized gang or against any organized gang officer or organized 20 gang member found responsible for participating in or being 21 legally accountable for a course or pattern of criminal activity 22 under this act. 23 Sec. 13. (1) The prosecuting attorney may apply to the 24 court that an organized gang member who testifies on behalf of a 25 public authority in a civil proceeding brought against an orga- 26 nized gang under this act be granted immunity from prosecution in 27 a criminal case as to any information directly or indirectly 00036'99 13 1 derived from the production of evidence by the organized gang 2 member. The court shall grant the order of immunity if all of 3 the following circumstances exist: 4 (a) Production of the evidence is necessary to a fair deter- 5 mination of a course of action under this act. 6 (b) The organized gang member has refused or is likely to 7 refuse to produce the evidence on the basis of his or her privi- 8 lege against self-incrimination. 9 (2) If an organized gang member refuses, on the basis of his 10 or her privilege against self-incrimination, to produce evidence 11 in an action brought under this act and the judge informs the 12 organized gang member of an order of immunity issued under this 13 section, the organized gang member may not refuse to comply with 14 the order on the basis of his or her privilege against 15 self-incrimination. 16 (3) The production of evidence compelled under an order 17 issued pursuant to subsection (1) and any information directly or 18 indirectly derived from it shall not be used against the orga- 19 nized gang member in a criminal case except in a prosecution for 20 perjury, false swearing, or an offense otherwise involving a 21 failure to comply with the order. 22 (4) Upon request of the organized gang member compelled, a 23 copy of the evidence produced under the order shall be furnished 24 to him or her. 00036'99 Final page. TVD