SB 2459 — Gang act; revise.

SB2459 (COMMITTEE(As SUBSTITUTE)Passed the Senate) - 2020 Regular Session MISSISSIPPI LEGISLATURE Regular Session To:

Senator(s) Wiggins, Boyd Senate Bill 2459 (COMMITTEE(As SUBSTITUTE)Passed the Senate) AN ACT TO AMEND SECTION 97-44-1, MISSISSIPPI CODE OF 1972, TO CHANGE THE SHORT TITLE OF THE MISSISSIPPI STREET GANG ACT TO "THE MISSISSIPPI GANG ACT";

TO AMEND SECTION 97-44-7, MISSISSIPPI CODE OF 1972, TO CLARIFY EVIDENTIARY STANDARDS;

TO CREATE NEW SECTIONSSECTION 97-44-10997-44-109, AND 97-44-111, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR FORFEITURE OF REAL AND PERSONAL PROPERTY;

          (c) * * *  Streetgang member" or  "Gang member" means any person who actually and in fact belongs to a gang, and any person who knowingly acts in the capacity of an agent for or accessory to, or is legally accountable for, or voluntarily associates himself with * * *awith * * * a gang‑related criminal gang activity, whether in a preparatory, executory or cover-up phase of any criminal gang activity, or who knowingly performs, aids or abets any such criminal gang activity.            (d) * * *  Streetgang related" or "gang‑related"  "Criminal gang activity" means * * * any criminal activity, enterprise, pursuit or undertaking directed by, ordered by, authorized by, consented to, agreed to, requested by, acquiesced in, or ratified by any gang leader, officer or governing or policymaking person or authority, or by any agent, representative or deputy of any such officer, person or authority:

                (i) * * * (i)  With intent to increase the gang's size, membership, prestige, dominance or control in any geographical area;

or or The(ii) the commission, attempted commission, conspiracy to commit, or solicitation, coercion, encouragement or intimidation of another person to commit an act or acts that would constitute a criminal offense under the law of this state, the United States or another state in furtherance of the gang's purpose.purpose with intent:

              (ii) (i)  WithTo * * * intent to * * * exact revenge or retribution for the an act or acts against a gang or any member of the a gang;

or obtain or earn membership in a gang or maintain or increase the gang member's status or position in a gang.gang;

              (iii) * * * ( * * *iiiii) * * *  With intent to provide the gang with any advantage in, or any control or dominance over, any criminal market sector, including but not limited to the unlawful manufacture, delivery, possession or sale of controlled substances;

or  To acquire, maintain or possess, directly or indirectly, proceeds derived from the activity or any interest in or control of any real or personal property of any nature, including money.money;

              (iv) * * * ( * * *iviii) * * *  With intent to obstruct justice, or harass, influence, intimidate or eliminate any witness reasonably expected to testify in a legal proceeding against the a gang or any member of the gang member;

                   1.  Punish or retaliate against the person for providing statements to law enforcement or testimony against a gang or gang member or associate on behalf of a government agency.agency;

                   2.  Intimidate, deter, or prevent the person from communicating to any law enforcement or corrections officer, prosecuting attorney, or judge information relating to a gang, gang member or associate of a gang member, or criminal gang activity.activity;

                   3.  Deter the person from assisting a member or associate of a gang to withdraw from such gang.gang;

                   4.  Punish or retaliate against the person for refusing to become or obtain the status of a member or associate of a gang or encouraging another to so refuse.refuse;

              (v) * * * ( * * *viv) * * *  With intent to otherwise, directly or indirectly, cause any benefit, aggrandizement, gain, profit or other advantage whatsoever to or for the gang, its reputation, influence or membership membership.  To cause, encourage, solicit, recruit or coerce another to become a member or associate of a gang or to commit a crime to become a member or associate of a gang.gang;

              (vi) (v)  To hide proceeds or evidence of criminal gang activity, or encourage, influence, solicit or coerce another to hide proceeds or evidence of criminal gang activity.activity;

or               (vii) (vi)  To commit any felony or misdemeanor while an inmate in a prison facility or employed as a corrections officer for purpose of criminal gang activity.

          (e)  "Underlying offense" means the act or acts that constitute a criminalfelony offense and form the basis of criminal gang activity.

     97-44-5.  (1) * * *  A civil cause of action is hereby created in favor of any public authority expending money, allocating or reallocating police, firefighting, emergency or other personnel or resources, or otherwise incurring any loss, deprivation or injury, or sustaining any damage, impairment or harm whatsoever, proximately caused by any criminal activity.  It is unlawful for any person who is eighteen (18) years of age or older to conduct or participate in criminal gang activity.

     SECTION 4.  SectionThe 97-44-7,following Mississippishall Codebe ofcodified 1972,as isSection amended97-44-101, asMississippi follows:Code of 1972:

     97-44-7.  (1) * * *  An action may be commenced under this chapter by the filing of a complaint as in civil cases.  Any evidence reasonably tending to show or demonstrate, in law or in fact, the existence of or membership in any conspiracy, confederation or other association described in this chapter, or probative of the existence of or membership in any criminal gang, or evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs or behaviors, shall be admissible in any action or proceeding brought under this chapter.

     (2) * * *  A complaint filed under this chapter, and all other ancillary or collateral matters arising therefrom, including matter relating to discovery, motions, trial and the perfection or execution of judgments shall be subject to the Rules of Civil Procedure, except as may be otherwise provided in this chapter, or except as the court may otherwise order upon motion of the prosecutor in matters relating to immunity or the physical safety of witnesses.  For purposes of this chapter, it is not necessary to show that a particular conspiracy, combination or conjoining of persons possesses, acknowledges or is known by any common name, insignia, flag, means of recognition, secret signal or code, creed, belief, structure, leadership or command structure, method of operation or criminal enterprise, concentration or specialty, membership, age or other qualifications, initiation rites, geographical or territorial situs or boundary or location, or other unifying mark, manner, protocol or method of expressing or indicating membership when the conspiracy's existence, in law or in fact, can be demonstrated by a preponderance of the competent evidence.

 * * * (3)  The complaint shall name the Attorney General or his designee, if a complainant, each complaining district attorney or his designee, each complaining county attorney, and the public authority represented by him or by them.  (4)  The complaint shall also name as defendants the gang, all known gang officers, and any gang members specifically identified or alleged in the complaint as having participated in a gang‑related criminal activity.  The complaint may also name, as a class of defendants, all unknown gang members.  (5)  When, at any point prior to trial, other specific gang officers or members become known, the complaint may be amended to include any such person as a named defendant.  (6)  Any individual who suffers any injury under the provisions of this chapter shall have the right to file a civil action in his or her name.

     SECTION 5.  The following shall be codified as Section 97-44-101, Mississippi Code of 1972:

     SECTION 6. 5.  The following shall be codified as Section 97-44-103, Mississippi Code of 1972:

     SECTION 7. 6.  The following shall be codified as Section 97-44-105, Mississippi Code of 1972:

     97-44-105.  (1) (1) A A person engaged in criminal gang activity within this state impliedly consent to service of process upon them as set forth in this section, or as may be otherwise authorized by the Rules of Civil Procedure.

     SECTION 8. 7.  The following shall be codified as Section 97-44-107, Mississippi Code of 1972:

     SECTION 9. 8.  The following shall be codified as Section 97-44-109, Mississippi Code of 1972:

     SECTION 10. 9.  The following shall be codified as Section 97-44-111,97-35-53, Mississippi Code of 1972:

     97-44-111.  (1)  Any firearm, ammunition to be used in a firearm, or dangerous weapon in the possession of a member of a gang may be seized by any law enforcement agency or peace officer when the law enforcement agency or peace officer has probable cause to believe that the firearm, ammunition to be used in a firearm, or dangerous weapon is or has been used by a gang in the commission of illegal activity.

     (2)  The district attorney or an attorney for the seizing agency shall initiate, in a civil action, forfeiture proceedings by petition in the circuit courts as to any property seized under the provisions of this section within thirty (30) days of seizure.  The district attorney must provide notice of the filing of the petition to those members of the gang who become known to law enforcement officials as a result of the seizure and any related arrests, and to any person determined by law enforcement officials to be the owner of any of the property involved.  After initial notice of the filing of the petition, the court shall assure that all persons so notified continue to receive notice of all subsequent proceedings related to the property.

     (3)  A person who claims an interest in seized property, in order to assert a claim that the property should not be forfeited, must file a notice with the court, without necessity of paying costs, of the intent to establish either of the following:

          (a)  That the persons asserting the claim did not know, could not have known, or had no reason to believe that the seized property was used by a gang in the commission of illegal activity;

or           (b)  That the law enforcement officer lacked the requisite reasonable belief that the property was or had been used by a gang in the commission of illegal activity.

     (4)  An acquittal or dismissal in a criminal proceeding does not preclude civil proceedings under this section;

however, for good cause shown, on motion by the district attorney, the court may stay civil forfeiture proceedings during the criminal trial for related criminal indictment or information alleging a violation of this section.  Such a stay is not available pending an appeal.

     (5)  Except as otherwise provided by this section, all proceedings hereunder shall be governed by the provisions of the Mississippi Rules of Civil Procedure.