Wednesday, October 13, 2010

No Free Speech Right to Flash Gang Signs

“Gang hand signs represent an integral part of [a gang’s] illegal activities.” As a tool to help eliminate gang-related public-nuisance activities, a Wichita Falls judge, pursuant to his authority under Section 125.065(a)(2) of the Texas Civil Practices and Remedies Code, issued a permanent injunction prohibiting members of a certain local gang from exhibiting gang hand signs (and from wearing “gang-related clothing”) . The injunction applied only to a small area of town (1.2 miles by 1.4 miles).

When one of the gang members that was subject to the injunction was later observed flashing “gang signs” while (surprise, surprise) wearing gang-related clothing, he was charged with violating the injunction. The gang member then challenged the injunction as a violation of his 1st Amendment right to free speech and as being unconstitutionally vague. Martinez v. State (CCA slip opinion of 6 October 2010 designated for publication)

First Amendment
The court’s first task in a free speech case “is to determine whether [the provision] is a content-neutral or a content-based time, place, and manner restriction. “ If the provision is content-based, the court must apply the strict scrutiny standard and the State must then show that the provision was narrowly tailored to serve a compelling state interest. In this case:
The court of appeals held that the gang hand sign restriction was not content-based because it prohibited all gang hand signs, not just those used by the VC street gang, and therefore was not focused on the particular message.
(See 2nd Court's unpublished memorandum opinion HERE).  The Court of Criminal Appeals, however, disagreed with the Fort Worth court's conclusion, stating:
The court of appeals’s reasoning would apply had provision sixteen banned all hand signs. However, the content of the gang hand signs and clothing provided the basis for the restrictions in provision sixteen and the purpose was to ban the message conveyed by such signs and clothing.
Nevertheless, the CCA upheld the injunction, holding that:
[t]he State has a recognizable compelling interest in ensuring the safety of citizens in the VC Safety Zone by preventing crime, and the judge’s order in this case was issued to protect that interest…The making of hand gang signs and the wearing of gang clothing are a primary feature of street gangs. A street gang is identified first and foremost though hand signs and attire; it puts public, and most of all, rival gangs, on notice of its existence and presence. Rivalries exist between street gangs, and the use of gang hand signs and clothing, the identifier, contributed to the onset of violence between gangs.
The CCA further explained that the provision was narrowly tailored by geography, noting that the judge’s order contained well-delineated geographic boundaries outside of which Appellant remained free to engage in making gang hand signs and wearing gang clothing.

"A Law is unconstituionally vague when it fails to define the criminal offense with sufficient definteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement." Rejecting the notion that the injunction was unconstitutionally vague, the CCA concluded that the judge’s order was “sufficiently clear so that [Appellant] could understand that VC gang hand signs and clothing were prohibited conduct. The CCA went on to state:
[Appellant], determined to be an active VC gang member by the district court judge (a fact he has never contested and ultimately admitted when pleading guilty), must have been aware of the gang’s identifying hand signs and clothing and therefore the precise conduct that he was charged with, and convicted of, violating.  Indeed, we note that the arrest report in cause number 39396-F reflects that [Appellant] told the arresting officer that the color of clothing that he was wearing were “his gang colors.” Thus, we find that his vagueness challenge to the gang-clothing prohibition to be somewhat disingenuous.
It appears from this holding that the CCA will give great deference to the reasonable requirements imposed by a judge under Section 125.065(a)(2) of the Texas Civil Practices and Remedies Code enjoining criminal street gang activity. Perhaps this case will serve as a license for more judges to get creative of dealing with Texas gangs. We’ll see.

Note:  Appellant also challenged the trial judge's authority to issue the injunction on a Separation of Powers theory.  It failed, but was interesting (at least to a nerd like me).