1997 Regular Session
To: Juvenile Justice
By: Senator(s) Farris
Senate Bill 2723
AN ACT TO AMEND SECTION 97-44-1, MISSISSIPPI CODE OF 1972, TO RETITLE THE MISSISSIPPI STREET GANG ACT AS THE STREET TERRORISM ENFORCEMENT AND PREVENTION ACT; TO AMEND SECTION 97-44-3, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 97-44-5, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO AMEND SECTION 97-44-11, MISSISSIPPI CODE OF 1972, TO CLARIFY SERVICE OF PROCESS; TO ENACT SECTION 97-44-15, MISSISSIPPI CODE OF 1972, TO CREATE ACTIONS FOR INJUNCTION, ABATEMENT, DAMAGES OR OTHER REMEDIES FOR UNLAWFUL USE OF A PRIVATE BUILDING BY MEMBERS OF A CRIMINAL STREET GANG; TO ENACT SECTION 97-44-17, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR FORFEITURE OF FIREARMS, AMMUNITION AND DANGEROUS WEAPONS USED BY CRIMINAL STREET GANGS; TO ENACT SECTION 97-44-19, MISSISSIPPI CODE OF 1972, TO ENACT CRIMINAL PENALTIES FOR CRIMINAL STREET GANG ACTIVITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-44-1, Mississippi Code of 1972, is amended as follows:
97-44-1. This chapter shall be known as the "Mississippi Street Terrorism Enforcement and Prevention Act."
SECTION 2. Section 97-44-3, Mississippi Code of 1972, is amended as follows:
97-44-3. For the purposes of this chapter, the following words and phrases shall have the meanings ascribed herein, unless the context clearly requires otherwise:
(a) "Street gang" or "gang" or "organized gang" or "criminal street gang" means any combination, confederation, alliance, network, conspiracy, understanding, or other similar conjoining, in law or in fact, of three (3) or more persons with an established hierarchy that, through its membership or through the agency of any member, engages in felonious criminal activity or which has a common name or common identifying sign or symbol whose members individually or collectively engage in or have engaged in illegal activity.
For purposes of this chapter, it shall not be necessary to show that a particular conspiracy, combination or conjoining of persons possesses, acknowledges or is known by any common name, insignia, flag, means of recognition, secret signal or code, creed, belief, structure, leadership or command structure, method of operation or criminal enterprise, concentration or specialty, membership, age or other qualifications, initiation rites, geographical or territorial situs or boundary or location, or other unifying mark, manner, protocol or method of expressing or indicating membership when the conspiracy's existence, in law or in fact, can be demonstrated by a preponderance of the competent evidence. However, any evidence reasonably tending to show or demonstrate, in law or in fact, the existence of or membership in any conspiracy, confederation or other association described herein, or probative of the existence of or membership in any such association, shall be admissible in any action or proceeding brought under this chapter.
(b) "Public authority" means the state and political subdivisions as defined in Section 11-46-1, Mississippi Code of 1972.
(c) "Street gang member" or "gang member" means any person who actually and in fact belongs to a gang, and any person who knowingly acts in the capacity of an agent for or accessory to, or is legally accountable for, or voluntarily associates himself with a gang-related criminal activity, whether in a preparatory, executory or cover-up phase of any activity, or who knowingly performs, aids or abets any such activity.
(d) "Street gang related" or "gang-related" means any criminal activity, enterprise, pursuit or undertaking directed by, ordered by, authorized by, consented to, agreed to, requested by, acquiesced in, or ratified by any gang leader, officer or governing or policymaking person or authority, or by any agent, representative or deputy of any such officer, person or authority:
(i) With intent to increase the gang's size, membership, prestige, dominance or control in any geographical area; or
(ii) With intent to exact revenge or retribution for the gang or any member of the gang; or
(iii) With intent to provide the gang with any advantage in, or any control or dominance over, any criminal market sector, including, but not limited to, the unlawful manufacture, delivery, possession or sale of controlled substances; arson; traffic in stolen property or stolen credit cards; traffic in prostitution, obscenity or pornography; or that involves robbery, armed robbery, burglary or larceny; or
(iv) With intent to obstruct justice, or intimidate or eliminate any witness against the gang or any member of the gang; or
(v) With intent to otherwise, directly or indirectly, cause any benefit, aggrandizement, gain, profit or other advantage whatsoever to or for the gang, its reputation, influence or membership.
SECTION 3. Section 97-44-5, Mississippi Code of 1972, is amended as follows:
97-44-5. (1) A civil cause of action is hereby created in favor of any public authority expending money, allocating or reallocating police, firefighting, emergency or other personnel or resources, or otherwise incurring any loss, deprivation or injury, or sustaining any damage, impairment or harm whatsoever, proximately caused by any illegal activity committed by a gang.
(2) The cause of action created by this chapter shall lie against:
(a) Any street gang in whose name, for whose benefit, on whose behalf or under whose direction the act was committed; and
(b) Any gang officer or director who causes, orders, suggests, authorizes, consents to, agrees to, requests, acquiesces in or ratifies any such act; and
(c) Any gang member who, in the furtherance of or in connection with, any gang-related activity, commits any such act; and
(d) Any gang officer, director, leader or member.
(3) The cause of action authorized by this chapter shall be brought by the Attorney General, the district attorney or attorneys, or the county attorney, or by his or their respective designees. This cause of action shall be in addition to any other civil or criminal proceeding authorized by the laws of this state or by federal law, and shall not be construed as requiring the prosecutor to elect a civil, rather than criminal, remedy, or as replacing any other cause of action. Liability of the gang, its officers, directors, leaders and members shall be joint and several subject only to the apportionment and allocation of punitive damages authorized under Section 97-44-13.
SECTION 4. Section 97-44-11, Mississippi Code of 1972, is amended as follows:
97-44-11. (1) All street gangs and street gang members engaged in a gang-related criminal activity within this state impliedly consent to service of process upon them as set forth in this section, or as may be otherwise authorized by the Rules of Civil Procedure.
(2) Service of process upon a street gang may be had by leaving a copy of the complaint and summons directed to any officer of such gang, commanding the gang to appear and answer the complaint or otherwise plead at a time and place certain:
(a) With any gang officer; or
(b) With any individual member of the gang simultaneously named therein; or
(c) In the manner provided for service by publication in a civil action; or
(d) With any parent, legal guardian or legal custodian of any persons charged with a gang-related offense when any person sued civilly under this chapter is under seventeen (17) years of age and is also charged criminally or as a delinquent minor; or
(e) With the director of any agency or department of this state who is the legal guardian * * * or custodian of any person sued under this chapter; or
(f) With the probation or parole officer of any person sued under this chapter; or
(g) With such other person or agent as the court may, upon petition of the district attorney or his designee or the county attorney, authorize as appropriate and reasonable under all of the circumstances.
(3) If after being summoned a street gang does not appear, the court shall enter an answer for the street gang neither affirming nor denying the allegations of the complaint but demanding strict proof thereof, and proceed to trial and judgment without further process.
(4) When any person is named as a defendant street gang member in any complaint, or subsequently becomes known and is added or joined as a named defendant, service of process may be had as authorized or provided for in the Rules of Civil Procedure for service of process in a civil case.
SECTION 5. The following provision shall be codified as Section 97-44-15, Mississippi Code of 1972:
97-44-15. (1) Every private building or place used by members of a criminal street gang for the commission of illegal activity 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 in this chapter.
(2) Any person may file a petition for injunctive relief with the appropriate court seeking eviction from or closure of any premises used for commission of illegal activity by a criminal street gang. Upon proof by the plaintiff that the premises are being used by members of a criminal street gang for the commission of illegal activity, 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 illegal activity by a gang and to abate the nuisance.
(3) Any action for injunction, damages, abatement, or other relief filed pursuant to this section shall proceed according to the provisions of the Rules of Civil Procedure.
(4) The court shall not issue an injunction or assess a civil penalty against any owner of record or the lessee of the private building or place, unless that person knew or should have known or had been notified of the use of the premises by a gang for illegal activity. Any injunctive relief other than that specifically authorized in subsection (6) of this section shall be limited to that which is necessary to protect the health and safety of the residents or the public or that which is necessary to prevent further illegal activity.
(5) A petition for injunction shall not be filed until thirty (30) days after notice of the unlawful use or criminal conduct has been provided to the owner of record or the lessee, by mail, return receipt requested, postage prepaid, to the last known address, or by personal service. If the premises are abandoned or closed, or if the whereabouts of the owner of record or lessee is unknown, all notices, process, pleadings, and orders required to be delivered or served under this section may be attached to a door of the premises, and this shall have the same effect as personal service on the owner of record or lessee. No injunctive relief authorized by subsection (6) of this section shall be issued in the form of a temporary restraining order.
(6) If the court has previously issued injunctive relief ordering the owner of record or the lessee of the premises to close the premises or otherwise to keep the premises from being used for the commission by a gang of illegal activity, the court, upon proof of failure to comply with the terms of the injunction and that the premises continue to be used by a gang for the commission of illegal activity, may do one or more of the following:
(a) Order the premises demolished and cleared at the cost of the owner.
(b) Order the premises sold at public auction and the proceeds from the sale, minus the costs of the sale and the expenses of bringing the action, delivered to the owner.
(c) Order the defendant to pay damages to persons or local governing authorities who have been damaged or injured or have incurred expense as a result of the defendant's failure to take reasonable steps or precautions to comply with the terms of any injunction issued pursuant to the provisions of this chapter.
(d) Assess a civil penalty not to exceed Five Thousand Dollars ($5,000.00) against the defendant based upon the severity of the nuisance and its duration. In establishing the amount of any civil penalty, the court shall consider all of the following factors:
(i) The actions taken by the defendant to mitigate or correct the problem at the private building or place or the reasons why no such action was taken.
(ii) Any failure of the plaintiff to provide notice as required by subsection (4).
(iii) Any other factor deemed by the court to be relevant.
(7) No nonprofit or charitable organization which is conducting its affairs with ordinary care or skill nor any governmental entity shall be enjoined pursuant to the provisions of this chapter.
(8) Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law.
SECTION 6. The following provision shall be codified as Section 97-44-17, Mississippi Code of 1972:
97-44-17. (1) Any firearm, ammunition to be used in a firearm, or dangerous weapon in the possession of a member of a criminal street gang may be seized by any law enforcement agency or peace officer when the law enforcement agency or peace officer reasonably believes that the firearm, ammunition to be used in a firearm, or dangerous weapon is or will be used by a gang in the commission of illegal activity.
(2) The district attorney or an attorney for the seizing agency, shall initiate, in a civil action, forfeiture proceedings by petition in the circuit courts as to any property seized pursuant to the provisions of this section within ninety (90) days of seizure. The district attorney shall provide notice of the filing of the petition to those members of the gang who become known to law enforcement officials as a result of the seizure and any related arrests, and to any person determined by law enforcement officials to be the owner of any of the property involved. After initial notice of the filing of the petition, the court shall assure that all persons so notified continue to receive notice of all subsequent proceedings related to the property.
(3) Any person who claims an interest in any seized property shall, in order to assert a claim that the property should not be forfeited, file a notice with the court, without necessity of paying costs, of the intent to establish either of the following:
(a) That the persons asserting the claim did not know and could not have known of its use by a gang in the commission of illegal activity; or
(b) That the law enforcement officer lacked the requisite reasonable belief that the property was or would be used by a gang in the commission of illegal activity.
(4) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this section; however, for good cause shown, on motion by the district attorney, the court may stay civil forfeiture proceedings during the criminal trial for related criminal indictment or information alleging a violation of this section. Such a stay shall not be available pending an appeal.
(5) Except as otherwise provided by this section, all proceedings hereunder shall be governed by the provisions of the Mississippi Rules of Civil Procedure. Additionally, any action under the provisions of this section may be consolidated with any other action or proceeding pursuant to this section relating to the same property on motion of the district attorney.
(6) The issue shall be determined by the court alone, and the hearing on the claim shall be held within sixty (60) days after service of the petition unless continued for good cause. The district attorney shall have the initial burden of showing the existence of probable cause for forfeiture of the property. If the state shows probable cause, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture.
(7) Any person who asserts a successful claim in accordance with subsection (3) of this section shall be awarded the seized property by the court, together with costs of filing such action, and in any case where it shall be determined by the court that the law enforcement officer lacked the requisite reasonable belief prior to the seizure of said property, an award of reasonable attorney's fees may be awarded to such person. All property as to which no claim is filed, or as to which no successful claim is made, may be destroyed, sold at a public sale, retained for use by the seizing agency or transferred without charge to any law enforcement agency of the state for use by it. Property that is sold shall be sold by the circuit court at a public auction for cash to the highest and best bidder after advertising the sale for at least once each week for three (3) consecutive weeks, the last notice to appear not more than ten (10) days nor less than five (5) days prior to such sale in a newspaper having a general circulation in the county. Such notice shall contain a description of the property to be sold and a statement of the time and place of sale. It shall not be necessary to the validity of such sale either to have the property present at the place of sale or to have the name of the owner thereof stated in such notice. The proceeds of the sale, less any expenses of concluding the sale, shall be deposited in the seizing agency's general fund to be used only for approved law enforcement activity affecting the agency's efforts to combat gang activities.
(8) Any action under the provisions of this section may be consolidated with any other action or proceedings pursuant to this section relating to the same property on motion of the district attorney.
SECTION 7. The following provision shall be codified as Section 97-43-19, Mississippi Code of 1972:
97-43-19. (1) Any person who intentionally directs, participates, conducts, furthers, or assists in the commission of illegal gang activity shall be punished by imprisonment for not less than one (1) year nor more than one-half (1/2) of the maximum term of imprisonment provided for an underlying offense and may be fined an amount not to exceed Ten Thousand Dollars ($10,000.00). Any sentence of imprisonment imposed pursuant to this section shall be in addition and consecutive to any sentence imposed for the underlying offense.
(2) Any person who is convicted of a felony or an attempted felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be imprisoned for not less than one (1) year nor more than one-half (1/2) of the maximum term of imprisonment provided for that offense.
(3) Any person who is convicted of an offense other than a felony which is committed for the benefit of, at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct or enterprise by gang members, shall, in addition and consecutive to the penalty provided for that offense, be imprisoned for an additional period of not more than one (1) year.
(4) The court may elect to suspend all or a part of any additional mandatory punishment or enhanced punishment provided for in this chapter to impose alternative punishment in the form of properly supervised community service only in an unusual case where the interest of justice would best be served, and if the court specifies on the record and enters into the minutes the circumstances and reasons that the interests of justice would best be served by that suspension of punishment.
SECTION 8. This act shall take effect and be in force from and after July 1, 1997.