S.B. 75

1

PROHIBITING GANG ACTIVITY
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Jon J. Greiner
5 House Sponsor: Curtis Oda
6
7 LONG TITLE
8 General Description:
9 This bill amends the Criminal Code regarding loitering by groups that include gang
10 members.
11 Highlighted Provisions:
12 This bill:
13 . provides that a peace officer may order a group to disperse if the group includes
14 gang members and is in an area where loitering of groups that include gang
15 members is prohibited by the local law enforcement agency;
16 . requires that the officer warn the group that failure to disperse is subject to arrest;
17 . requires chiefs of police and sheriffs to designate areas in their jurisdictions where
18 police officers may require groups that include gang members to disperse;
19 . provides that failure to disperse upon the order of an officer is a class B
20 misdemeanor, and a subsequent failure to disperse is a class B misdemeanor subject
21 to a fine of $100;
22 . provides that if, after being ordered to disperse, a member of the group loiters again
23 within specified times and at specified places, the person is guilty of a class B
24 misdemeanor and is subject to a fine of $100;
25 . requires that officers receive training to ensure protection of the constitutional right
26 of collective advocacy;
27 . requires that officers receive training on identification of gang members and

28 criminal street gangs; and
29 . provides definitions.
30 Monies Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 None
34 Utah Code Sections Affected:
35 ENACTS:
36 76-9-801, Utah Code Annotated 1953
37 76-9-802, Utah Code Annotated 1953
38 76-9-803, Utah Code Annotated 1953
39 76-9-804, Utah Code Annotated 1953
40 76-9-805, Utah Code Annotated 1953
41 76-9-806, Utah Code Annotated 1953
42 76-9-807, Utah Code Annotated 1953
43
44 Be it enacted by the Legislature of the state of Utah:
45 Section 1. Section 76-9-801 is enacted to read:
46 Part 8. Prohibition of Gang Activity
47 76-9-801. Title.
48 This part is known as "Prohibition of Gang Activity."
49 Section 2. Section 76-9-802 is enacted to read:
50 76-9-802. Definitions.
51 As used in this part:
52 (1) "Criminal street gang" means an organization, association in fact, or group of three
53 or more persons, whether operated formally or informally:
54 (a) that is currently in operation;
55 (b) that has as one of its primary activities the commission of one or more predicate
56 gang crimes;
57 (c) that has, as a group, an identifying name or identifying sign or symbol, or both; and
58 (d) whose members, acting individually or in concert with other members, engage in or

59 have engaged in a pattern of criminal gang activity.
60 (2) "Gang loitering" means a person:
61 (a) remains in a public place subject to enforcement of Section 76-9-803 after having
62 been ordered by a peace officer to disperse from that public place in accordance with Section
63 76-9-803 ; or
64 (b) (i) is present in a public place with or as part of a group of two or more persons that
65 includes one or more persons a peace officer reasonably believes to be a member of a criminal
66 street gang; and
67 (ii) is within sight or hearing of a location where a law enforcement officer issued an
68 order to the person to disperse under Section 76-9-803 within the prior eight hours.
69 (3) "Pattern of criminal gang activity" means:
70 (a) committing, attempting to commit, conspiring to commit, or soliciting the
71 commission of two or more predicate gang crimes within five years;
72 (b) the predicate gang crimes are:
73 (i) committed by two or more persons; or
74 (ii) committed by an individual at the direction of, or in association with a criminal
75 street gang; and
76 (c) the criminal activity was committed with the specific intent to promote, further, or
77 assist in any criminal conduct by members of the criminal street gang.
78 (4) (a) "Predicate gang crime" means any of the following offenses:
79 (i) any criminal violation of the following provisions:
80 (A) Title 58, Chapter 37, Utah Controlled Substances Act;
81 (B) Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
82 (C) Title 58, Chapter 37b, Imitation Controlled Substances Act; or
83 (D) Title 58, Chapter 37c, Utah Controlled Substance Precursor Act;
84 (ii) Sections 76-5-102 through 76-5-103.5 , which address assault offenses;
85 (iii) Title 76, Chapter 5, Part 2, Criminal Homicide;
86 (iv) Sections 76-5-301 through 76-5-304 , which address kidnapping and related
87 offenses;
88 (v) any felony offense under Title 76, Chapter 5, Part 4, Sexual Offenses;
89 (vi) Title 76, Chapter 6, Part 1, Property Destruction;

90 (vii) Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass;
91 (viii) Title 76, Chapter 6, Part 3, Robbery;
92 (ix) any felony offense under Title 76, Chapter 6, Part 4, Theft, except Sections
93 76-6-404.5 , 76-6-405 , 76-6-407 , 76-6-408 , 76-6-409 , 76-6-409.1 , 76-6-409.3 , 76-6-409.6 ,
94 76-6-409.7 , 76-6-409.8 , 76-6-409.9 , 76-6-410 , and 76-6-410.5 ;
95 (x) Title 76, Chapter 6, Part 5, Fraud, except Sections 76-6-504 , 76-6-505 , 76-6-507 ,
96 76-6-508 , 76-6-509 , 76-6-510 , 76-6-511 , 76-6-512 , 76-6-513 , 76-6-514 , 76-6-516 , 76-6-517 ,
97 76-6-518 , and 76-6-520 ;
98 (xi) Title 76, Chapter 6, Part 11, Identity Fraud Act;
99 (xii) Title 76, Chapter 8, Part 3, Obstructing Governmental Operations, except Sections
100 76-8-302 , 76-8-303 , 76-8-304 , 76-8-307 , 76-8-308 , and 76-8-312 ;
101 (xiii) Section 76-8-508 , which includes tampering with a witness;
102 (xiv) Section 76-8-508.3 , which includes retaliation against a witness or victim;
103 (xv) Section 76-8-509 , which includes extortion or bribery to dismiss a criminal
104 proceeding;
105 (xvi) Title 76, Chapter 10, Part 3, which addresses explosives;
106 (xvii) Title 76, Chapter 10, Part 5, Weapons;
107 (xviii) Title 76, Chapter 10, Part 15, Bus Passenger Safety Act;
108 (xix) Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
109 (xx) Section 76-10-1801 , which addresses communications fraud;
110 (xxi) Title 76, Chapter 10, Part 19, Money Laundering and Currency Transaction
111 Reporting Act;
112 (xxii) Section 76-10-2002 , which addresses burglary of a research facility; and
113 (xxiii) Title 41, Chapter 1a, Motor Vehicle Act:
114 (A) Section 41-1a-1313 , regarding possession of a motor vehicle without an
115 identification number;
116 (B) Section 41-1a-1315 , regarding false evidence of title and registration;
117 (C) Section 41-1a-1316 , regarding receiving or transferring stolen vehicles;
118 (D) Section 41-1a-1317 , regarding selling or buying a motor vehicle without an
119 identification number; and
120 (E) Section 41-1a-1318 , regarding the fraudulent alteration of an identification number.

121 (b) "Predicate gang crime" also includes:
122 (i) any state or federal criminal offense that by its nature involves a substantial risk that
123 physical force may be used against another in the course of committing the offense; and
124 (ii) any felony violation of a criminal statute of any other state, the United States, or
125 any district, possession, or territory of the United States which would constitute any offense in
126 Subsection (4)(a) if committed in this state.
127 (5) (a) "Public place" means any location or structure to which the public or a
128 substantial group of the public has access and includes:
129 (i) a sidewalk, street, or highway;
130 (ii) a public park, public recreation facility, or any other area open to the public;
131 (iii) a shopping mall, sports facility, stadium, arena, theater, movie house, or
132 playhouse, or the parking lot or structure adjacent any of these; and
133 (iv) the common areas of schools, hospitals, apartment houses, office buildings,
134 transport facilities, and businesses.
135 (b) "Public place" includes the lobbies, hallways, elevators, restaurants and other
136 dining areas, and restrooms of any of the locations or structures under Subsection (5)(a).
137 Section 3. Section 76-9-803 is enacted to read:
138 76-9-803. Gang loitering -- Failure to disperse -- Penalties.
139 (1) When a law enforcement officer observes a person whom the officer reasonably
140 believes to be a member of a criminal street gang in the presence of one or more other persons
141 in any public place where gang loitering is prohibited under Section 76-9-805 , the police
142 officer shall:
143 (a) inform all the persons that they are within an area in which loitering by a group
144 containing one or more criminal street gang members is prohibited;
145 (b) order all the persons in the group to disperse and remove themselves from within
146 sight and hearing of the location where the officer issues the order to disperse; and
147 (c) inform the persons that any person in the group will be subject to arrest if the
148 person:
149 (i) fails to promptly obey the order to disperse; or
150 (ii) engages in gang loitering at or within the sight or hearing of the location where the
151 officer issued the order to disperse.

152 (2) The officer under Subsection (1) shall also advise the persons the officer is
153 directing to disperse that each of the persons directed to disperse is subject to arrest if the
154 person is again, within eight hours after the current order to disperse is made:
155 (a) present in a public place with a group that includes one or more persons a peace
156 officer reasonably believes to be a member of a criminal street gang; and
157 (b) within sight or hearing of the location where the law enforcement officer is
158 currently issuing the order to disperse.
159 Section 4. Section 76-9-804 is enacted to read:
160 76-9-804. Gang loitering -- Penalties.
161 (1) (a) Failure to comply with an order issued under Subsection 76-9-803 (1)(b) to
162 disperse is a class B misdemeanor of gang loitering.
163 (b) Any second and subsequent violation of Subsection (1)(a) is a class B misdemeanor
164 of gang loitering and is subject to a fine of not less than $100, unless the court finds mitigating
165 circumstances justifying lesser punishment and makes that finding a part of the court record.
166 (2) (a) Gang loitering is a class B misdemeanor if a person engages in gang loitering:
167 (i) within eight hours of having been previously ordered to disperse under Section
168 76-9-803 , regardless of whether the person complied with that order; and
169 (ii) within sight or hearing of the location where a law enforcement officer issued the
170 prior order to disperse under Section 76-9-803 .
171 (b) A violation of Subsection (2)(a) is subject to a fine of not less than $100, unless the
172 court finds mitigating circumstances justifying lesser punishment and makes that finding a part
173 of the court record.
174 Section 5. Section 76-9-805 is enacted to read:
175 76-9-805. Designation of areas where orders to disperse are authorized and gang
176 loitering is prohibited.
177 (1) Sheriffs and chiefs of police shall each, within their respective jurisdictions,
178 designate by written directive the areas within their jurisdictions that they have determined are
179 subject to the enforcement of Section 76-9-803 because criminal street gangs have been able to
180 or are attempting to:
181 (a) establish control over these identifiable areas;
182 (b) intimidate others from entering those areas; or

183 (c) conceal illegal activities.
184 (2) (a) Prior to designating areas subject to enforcement under Section 76-9-803 , the
185 sheriff or chief of police shall consult, as appropriate, with persons who are knowledgeable
186 about the effects of gang activity in areas where Section 76-9-803 may be enforced.
187 (b) Persons consulted under Subsection (2)(a) may include:
188 (i) members of local law enforcement agencies who have training or experience related
189 to criminal street gangs;
190 (ii) other agency personnel with particular knowledge of gang activities in the proposed
191 designated area;
192 (iii) elected and appointed officials of the area where the proposed designated area is
193 located; and
194 (iv) representatives of community-based organizations.
195 (3) The sheriff or chief of police shall develop and implement procedures for periodic
196 review and update of area designations made under Subsection (1).
197 Section 6. Section 76-9-806 is enacted to read:
198 76-9-806. Protection of constitutional rights.
199 (1) This section does not affect or limit any individual's constitutional right to engage
200 in collective advocacy activities that are protected by the Constitution or laws of this state or by
201 the Constitution or laws of the United States.
202 (2) The sheriff or chief of police shall issue a written directive to all agency employees
203 that provides information on preventing the enforcement of Section 76-9-803 against persons
204 who are engaged in constitutionally protected collective advocacy activities.
205 Section 7. Section 76-9-807 is enacted to read:
206 76-9-807. Training for participating law enforcement officers.
207 The sheriff or chief of police implementing this part shall ensure that all officers
208 charged with enforcing this part successfully complete appropriate training on identification of
209 gang members and criminal street gangs.

Legislative Review Note
as of 1-22-08 1:24 PM

Office of Legislative Research and General Counsel