A Gang By Any Other Name

In days of yore, Shakespeare asked, “What diff does it make what you call them?”

Well, actually what he said was: 

’Tis but thy name that is my enemy;
Thou art thyself though, not a Montague.
What’s Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O! be some other name:
What’s in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call’d,
Retain that dear perfection which he owes
Without that title. Romeo, doff thy name;
And for that name, which is no part of thee,
Take all myself.

But, truth is, ’tis not thy name which makes you my enemy, but by the name I assign thee, thou becomest mine enemy. That, of course, is why, in 1991, the Fourth District Court of Appeal for California stated:

Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department.1

And, therefore, the LAPD could not be considered a criminal street gang under California law.

Why? Because the court said so. No one had testified to this “fact” — neither a gang expert cop, nor anyone else. The court simply stated, with no evidence one way or the other, that this is the way it is. We can’t admit that an even-handed application of the criteria used to convict gang members would mean that cops are also gang members, because to so label them would be to name them our enemies.

I had the opportunity to think of this again the other day, when my friend and colleague, Brenda Linder, pointed me to a story and asked,

Doesn’t this further prove your assertion re law enforcement departments qualifying as gangs?

The answer, unfortunately, is “no.”

As the story, and “Justice” Antonin Scallywag of the United States Supreme Court, point out today’s police are too professional for all that. And Mitch Librett, a former-police-officer-turned-associate-professor-of-criminal-justice-who-wrote-a-scholarly-article-about-cop-motorcycle-clubs — so you just know he knows what he’s talking about — agrees.

Police officer motorcycle clubs that emulate the outlaw gang culture appeal to older officers who miss the macho days when they could knock heads and not be held accountable, said Mitch Librett, a former police officer who is now an associate professor of criminal justice at Bridgewater State University in Massachusetts.

“It’s the vehicle for expressing certain opinions, views, even prejudice that is no longer acceptable for police officers,” Librett said.

These guys aren’t going to qualify law enforcement departments as gang members, because they’re just “older officers who miss the macho days when they could knock heads and not be held accountable.” Like these older officers, and this ancient old biddy, and this old fart, and these clearly decrepit geezers, and…well, okay, some people might think 42 is “old.” Plus, everyone decided that, ultimately, his stomping on the head of a handcuffed suspect was “acceptable.”

And you just know the entire Little Rock, Arkansas, police force is comprised entirely of dinosaurs.

I mean, really, who would want to be a cop there?

But cops, as the Fourth District Court of Appeal in California says, can’t possibly have, as their primary activities, the commission of crimes.

I mean, that’s impossible right? Wouldn’t it take a lot of evidence to prove primary activities? I mean, you’d have to show their activities, and then sort of rank them, right? These are primary; these over here are occasional; these here are….

For another thing, there are sooooo many different groups of police officers. Besides the Fresno County Sheriff’s Department, and the San Mateo Police Department, and the California Highway Patrol, there’s the Blue Knights International Law Enforcement Motorcycle Club, Inc. (incorporated! just like the Hell’s Angeles Motorcycle Club!), the Iron Brotherhood MC, the Untouchables MC, the Iron Pigs Motorcycle Club, and the Reapers, to name just a few.2 ,3

And make no mistake: the Hell’s Angels call themselves a Motorcycle Club (because that’s what they are), but are considered by law enforcement to be a “gang,” or, to be more correct, a “criminal street gang” partly because some of them allegedly commit crimes. The Iron Pigs — who some also say commit crimes, but get away with it — go a step farther. Allegedly, the Massachusetts Chapter proclaims on their website that they are members of the largest gang in the world — although I can no longer find their website. The Iron Brotherhood — also law enforcement only — have also been accused of committing crimes. The Wild Pigs — the group from which the Iron Pigs split off — has one “set” which also has been accused of crimes, including obstruction of justice. And, allegedly, New Jersey deems them to be an “outlaw mc gang,” apparently for consorting with the enemy.

But even if one of those “law enforcement motorcycle clubs” could somehow “qualify” as a criminal street gang, that couldn’t impugn all cops, can it?

Maybe we should ask the Third District Court of Appeal for the State of California.

On appeal, defendant contends there was insufficient evidence the Norteños qualify as a criminal street gang for purposes of the gang enhancements. In support of his argument, defendant relies on People v. Williams (2008) 167 Cal.App.4th 983 [86 Cal. Rptr. 3d 130] for the proposition that where a larger group–like the Norteños–consists of different, smaller subsets, the larger group cannot be treated as a criminal street gang for purposes of section 186.22 unless there is evidence of collaborative activities or collectives organizational structure between the subsets. As we explain, to the extent Williams can be understood to support this proposition, we disagree withWilliams on this point because there is nothing in the statute that requires such evidence.4

So, the court says, if one of the smaller groups that shares part of its name, or is somehow allied with the larger group, is accused of being a criminal street gang, that evidence, or evidence that other parts of the larger group committed crimes, makes the larger group culpable, which filters back down to the other smaller groups. In short, yes: the guilt of one part of the larger group impugns them all.5

The appellant in the above case, the court states, wrongfully argued that,

the People, “treated all Norteño subsets as fungible goods, without providing substantial evidence that such treatment was warranted.” Stated another way, defendant contends the People wrongfully “conflate[ed] multiple gangs into one.”6

The court then rejects the view that “the People” wrongfully conflated multiple gangs into one. Thus, in theory, if you can find a group that is somehow affiliated with another group, then the crimes of the one group can be counted against that other one.

So says the court. So say we all.

So, okay. I guess we don’t have to prove the primary activities of the one group, after all. As long as there are other groups where we can satisfy the primary activities prong of the gang allegations, we’re good. So maybe Brenda is on to something here, because we have one gang of cops — they’re clearly cops, and from various different agencies. And just like, say, Eastside, Northside, or Parkside are all Bulldogs, well, all members of the Iron Brotherhood MC, Iron Pigs MC, and Untouchables MC are cops. Plus, anyone who has read this blog long enough knows that there are all kinds of crimes committed by cops from the various agencies from which the Iron Brotherhood, Iron Pig, and Untouchables sets were formed. So all we have to do is present this evidence in court and — voilà — we can prove the Gamez court wrong!

How do we do that?

In every single case I know of — those in which I’ve participated in trial, those I’ve heard of from colleagues, those I’ve heard about at defense conferences, and those where I’ve read the case law — this is done through the testimony of…a cop masquerading as a “gang expert.”

And now we know the real reason why,

Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department.7

No matter what name you refuse to give it, something here clearly stinks.


Endnotes:

  1. People v. Gamez, 235 Cal. App. 3d 957, 970-971, 286 Cal. Rptr. 894 (1991), overruled on other grounds at People v. Gardeley, 14 Cal. 4th 605, 624, 59 Cal. Rptr. 2d 356 (1996). []
  2. Some cops just bypass these groups altogether and go right to the source. []
  3. Naturally, this blog post about “motorcycle clubs” does not exhaust the issue. Other gangs with badges, even more closely resembling criminal street gangs, include the Jump-Out Boys (a secret gang for LA deputies who have shot “regular,” or non-police, gang members), the 3000 Boys (violent deputies who work the 3000 block of the LA County Jail, routinely abuse inmates, and even attack other deputies), and the Green Staff (correctional officers who smuggle contraband into California’s prisons), to name just a few “non-MC law enforcement gangs.” []
  4. People v. Prunty, 214 Cal.App.4th 1110, 1112 (March 2013). []
  5. Id. []
  6. Id. at 1114. []
  7. Gamezsupra. []

About Rick

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.