Is Gang Affiliation and Activity Illegal in Arizona?
Gang activity seems to be on the rise lately in Arizona.
Access to communities online have made it possible for “hybrid gangs” to form, as the FBI calls them. These gangs are often composed of young members between 14 and 19 years old.
Sgt. David Contreras told the Arizona Daily Star that “easy fame, reputation, and street credibility” hold major attraction for these young gang members. But, is it illegal to be in a gang?
Is being in a gang illegal?
No. Gang affiliation alone is not illegal. At least, it’s generally not enough to prove guilt. A crime must be committed and guilt must be proved for an act to be considered a punishable offense.
Arizona law allows for use of a common name, symbol, or sign. So, identifying yourself as part of a gang isn’t outright illegal. T
hat being said, Arizona law 13-2321 states that participating in a criminal street gang is illegal.
Is gang affiliation a felony?
As we stated, there are technically no gang affiliation charges. However, participation in a criminal street gang qualifies a class 2 felony. Assisting a gang qualifies as a class 3 felony. A crime committed in affiliation with a gang is a felony.
If an offense by a gang member took place but the crime was not related to gang activity, the gang affiliation alone is not enough to enhance a sentence.
This is largely because of a 1961 case, Scales v. United States, where it was decided that “guilt is personal”—meaning, a gang affiliation charge is unconstitutional.
What qualifies as gang participation?
- Organizing, managing, or financing criminal gang activity
- Inciting others to engage in violence
- Using intimidation to promote gang objectives
- Convincing a public servant to violate their duty
- Assisting in the preparation or act of a felony
A recent Arizona Supreme Court decision found it unconstitutional to enhance charges on an individual because of gang affiliation. Generally, in Arizona, a guilty charge of threatening or intimidating a person falls under a class 1 misdemeanor. However, in connection with a criminal street gang, the offense jumps up to a class 6 felony charge.
In the case of State v. Arevalo, Arevalo had been originally charged with a class 6 felony for intimidating an individual and being associated with a gang. Arevalo was in a gang. He did not mention his gang affiliation when he threatened individuals, however. Because of this, he moved to dismiss or reduce all charges related to 13-1202(B)(2), with the defense that enhancing a sentence merely for being affiliated with a gang is unconstitutional.
The court agreed. Because the law violates due process, Arevalo was successful in reducing his gang-related charges. Instead of suffering a felony charge, it was reduced to a misdemeanor.
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photo by: Augusto Ordonez | image used under creative commons license – commercial use (01/29/2021) via Pixabay