Probable Cause

A post by Gideon gave the final push for this post.  I’ve been thinking for a long time about “legal fictions,” particularly as they relate to gang cases.  Frankly, they irk me more than a bit.

You see, I’m what’s known as an idealist: I think the law should be understandable and it should mean what it says.  Some people think that makes me stupid; some think it makes me naïve; some (few) think it makes me a good guy.

I think it makes me an American.  True Americans are naturally idealists.

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By the time you finish reading this, you will know everything you need to know in order to testify, in court, as a gang cop.

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On June 27, 2008, a terrible tragedy occurred. Of that, there can be no doubt. Three people are dead.

According to reports, a father and his two sons were on their way home, when another car tried to get around them. Dad tried to back up and get out of the way of the other car, so as to let it pass. The people in the car, however, were so angry, so upset, so irritated that someone in the other car just opened fire, killing the father and his sons. A member of MS-13 was later arrested for the murders.

Mom wants the death penalty.

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A storm has been brewing in San Diego for awhile now, whipping up waves of opinion concerning gang charges.

The facts are these: A group of five guys were out drinking one night at a bar. Another guy accidentally bumps one of them and spills beer on him. The lone guy decides maybe he should leave before something bad happens.

The five bandidos — they called themselves the Bird Rock Bandits — follow him out of the bar and, apparently, to the front door of his house, where they confront him. They challenge him to a fight and, when he starts to get the upper hand against one of their homies, he is sucker-punched by their leader. The sucker punch knocks him unconscious. He falls back, hits his head on the pavement and four days later he dies at the hospital.

After the guy dies and the five gang members are arrested, other people come forward to talk about how they, too, had been assaulted by the Bird Rock Bandits.¹

As In Cold Blog reported,

Accusations include throwing punches that break facial bones, requiring surgery; intimidating people with violence and threatening to kill them; accosting beachgoers; crashing parties in a chartered bus, beating up guests and even hitting young women who get in their way.²

Sounds like their primary activities are assaults by means of force likely to produce great bodily injury,³ threats to commit crimes resulting in death or great bodily injury as defined in Section 422,⁴ — at the very least. As if that wasn’t enough,

A gang expert told a judge Tuesday that members of the so-called Bird Rock Bandits had the same gang colors as the Hell’s Angels and wanted to associate with the infamous motorcycle gang.⁵

Apparently, the gang was also known to throw signs.⁶

One expert witness, an investigator for the San Diego District Attorney’s office, said the Bird Rock Bandits showed all the characteristics of a gang including claiming a territory, displaying hand signals, the use of gang defining colors, and most importantly, ongoing criminal activity as a group. ⁷

So how come Judge Einhorn decided on May 22, 2008 that these five did not constitute a criminal street gang?⁸

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1. Scott Bass, “Bird Rock Bandits Case: Preliminary Hearing Decision This Week” (Unknown Date) Surfer Magazine. [↩]
2. Caitlin Rother, “Bird Rock Bandits” (May 15, 2008) In Cold Blog. [↩]
3. See Cal. Penal Code § 186.22(e)(1). [↩]
4. See Cal. Penal Code § 186.22(e)(24). [↩]
5. “Gang Expert: Men Wanted Hell’s Angels Connection” (May 20, 2008) NBCSanDiego.com. [↩]
6. See Cal. Penal Code § 186.22(f). Looks like we’ve got a common name, sign or symbol going here. [↩]
7. Scott Bass, “Bird Rock Bandits Case: Preliminary Hearing Decision This Week” (Unknown Date) Surfer Magazine. [↩]
8. Did I say “five”? See Cal. Penal Code § 186.22(f): “…any ongoing organization, association, or group of three or more persons…” [↩]