As a wee law student, nearly 20 years ago, one of my mentors tasked me with “becoming an expert on gang law.” I started collecting everything I could get my hands on. Ultimately, I had several binders full of cases, statutes, and other information relating to gang laws. I entertained the idea of writing a law review article titled “Fungible Criminals: California’s STEP Act & the Problem of Guilt by Association.”
Yeah. They’re pretty fat binders. Blame case law. In particular, appellate courts twist themselves into legal pretzels, convoluting, counterintuitivating, and non-sensicalizing gang law in California. In a brief I wrote for a case I argued (as a student!) before the Fifth District Court of Appeal, I quoted the California Supreme Court thusly:
Step by step, [the California Supreme] court continues its struggle through the thicket of statutory construction issues presented by the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act.
I followed it with numerous citations, and my own observation:
Were it not for the difficulties in interpreting the STEP Act, the California Supreme Court would not have to struggle step by step through a thicket of statutory construction issues to provide interpretations so that persons of ordinary intelligence would no longer have to speculate about the meaning of its terms, particularly when, as in each case cited by the California Supreme Court in Sengpadychith, the California Supreme Court’s interpretation comes too late to enable such persons to modify their behavior and avoid the loss of liberty.
And the books.
The books are a sad story. They’re almost all written by real experts: anthropologists, sociologists, and psychologists; in short, people who train to study social groups, like so-called “criminal street gangs.”
When is an expert not an expert?
That anthropologists, sociologists, and psychologists have received years of training on how to study groups, cultures, or individual beliefs and behaviors, to the courts, makes them completely useless. The case law states that “[t]he use of expert testimony in the area of gang sociology and psychology is well established.” This might, therefore, make you surprised to hear that “to the courts,” these bonafide experts are “completely useless.”
The reason is that the people trained in the study of groups, those who spend years learning how to evaluate social groups, and cultures, don’t hold a candle to untrained police officers. Instead of trained experts, “gang cops” testify as “experts.”
I never understood this. Police officers chase people, sometimes tackle them, and fire weapons, that doesn’t make them experts on physics, or chasing, tackling, or ballistics. They arrest lots of burglars, but we don’t deem them experts on the sociology and psychology of burglars, nor allow them to testify as such.
Cops testify as experts because it wins convictions
Why is it that anthropologists, sociologists, and psychologists do not count as experts on gangs, but cops do? I’ve always believed it is because if we allowed true experts in social groups, beliefs, and behaviors; or culture, and attitudes; or individuals’ psychological propensities, or behaviors, it would be harder to get convictions. After all, much of gang cop “expert” testimony consists of saying, “Well, I think the defendant is a dirty, sleazy, criminal street gang member because….” And then you fill in the blank with some really stupid thing that may, or may not, have anything to do with the defendant being a dirty, sleazy, criminal street gang member.
[A gang cop] testified that [defendant having a tattoo that said] “Brand” was “in association with EME gang members.” However, he later testified that he had been mistaken; the tattoo stated, “Brandy,” and it was common for people to have their girlfriends’ names as tattoos. Moreover, the “Brand” tattoo was connected with the Aryan Brotherhood, and someone who had a “Brown Pride” tattoo [which defendant also had] probably would not be in the Aryan Brotherhood.
I wrote once (that I said once) that I could train someone to be a “gang expert” in about 15 minutes, or less.
All that’s needed, really, is to figure out how to take something about your targeted victim, and make a statement that will appear plausible to a jury. If, along the way, you get caught up in a lie, or “make a mistake,” you spin it in a way that preserves your status as an “expert,” but refocuses the jury on your target’s rightful status as a target.
Like that their “Brand” tattoo showed they were Mexican Mafia. Then when you realize that “Brand” associates the wearer with a white supremacist gang, and, moreover that the tattoo actually said “Brandy,” you simply pivot. The “Brand” tattoo no longer matters, because, after all, your real point is that the defendant is a dirty, sleazy, criminal street gang member.
A better reason cops are experts on gangs
As it turns out, I might have been at least partly wrong all these years about why cops are “experts” on gangs. There may be a better reason that cops are experts on gangs.
The deputy who shot and killed 18-year-old Andres Guardado outside a car shop in Gardena was a prospective member of a violent clique inside the Compton Sheriff’s station, according to the sworn testimony of a whistleblower.
And, of course, he’s not the only one,
More than a dozen deputies have matching tattoos and belong to a violent clique called the Executioners at the station, according to Deputy Art Gonzalez, who filed a whistleblower complaint regarding the Executioners in June.
The deputy who shot Andres Guardado was “chasing ink.” Trying to impress the Executioners. The “ink” — a tattoo — given at one of the gang’s “998 parties” celebrating his achievement: Andres Guardado’s death.
This is not really a revelation to me. In 2012, I wrote a blog post titled The Gang with Badges, about the similarities between cops, and so-called criminal street gangs. I pointed out that cops form internal groups that are often indistinguishable from street gangs. (And I italicized the word “indistinguishable” then, too.)
Nor are the “Executioners” the only police gang. In East L.A.,
a federal probe follows allegations of beatings and harassment by members of the Banditos, a group of deputies assigned to the Sheriff’s [sic] Department’s East L.A. station who brand themselves with matching tattoos of a skeleton outfitted with a sombrero, bandolier and pistol. The clique’s members are accused by other deputies of using gang-like tactics to recruit young Latino deputies into their fold and retaliating against those who rebuff them.
Just like so-called criminal street gangs. Only they’re cops, so we say “violent clique.”
Anyway, in addition,
[Federal authorities] have asked for information about the tattoos and practices of the Spartans and Regulators in the department’s Century station, and the Reapers, who operate out of a station in South Los Angeles, according to the sources.
Apply the same rules to cops as to others, and all law enforcement is one big gang
In California, the Street Terrorism Enforcement and Protection Act, or STEP Act, spells out what criminal street gangs are, who counts as a criminal street gang member, and how to punish them for that. The law regarding gangs has changed somewhat throughout the years since I first encountered it as a student. The gist of it remains the same: criminal street gangs are groups that the police have identified as criminal street gangs. And,
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.
That quote comes from a case named Sengpadychith. (I could give you the full citation, but I’ve made a conscious decision going forward that these free posts won’t be mini-law-reviews. I’m not saying I’ll never provide citations, but I’m going to deliberately try for a more readable format here. There will likely be exceptions.)
A first important note: there’s more to gang law than just answering the question of “primary activities.” Common names, signs, or symbols, for example, which once boiled down to clothing, hand signs, and tattoos. Among other things.
But I think it is sufficient to look at this particular element of gang law to realize why the whole enterprise is a scam. It intends only to control people of color. (Cops target primarily groups, or “gangs,” consisting of people of color. Cops rarely pursue white supremacy groups, for reasons that should be obvious.)
One of the things that transforms a group of friends and acquaintances into a criminal street gang has to do with the alleged primary activities of the friends and acquaintances.
So how do we determine the primary activities for the group? Well, if we were anthropologists, or sociologists, or even maybe psychologists, we would look at the whole range of things done by the group’s individuals, or “gang members.” We would evaluate how much of their day was spent, as gang members, in doing this thing, or that thing, or some other gang-y things.
If we recognized — as we almost certainly would, if we were trained professionals — that few “gang members” committed crimes specified in the STEP Act, and on few occasions; we would say that while there are criminally-oriented people within identified groups, not every group containing criminally-oriented people has, as a primary activity, the commission of crimes specified in the STEP Act.
That’s a long sentence. Let’s see if I can unpack it a bit.
The 2007 case of In re Alexander L. noted that just because some cop says, “the primary activity of group X” is committing murders, that does not provide sufficient evidence that a group’s primary activity is committing murders.
And, indeed, an appeals court reversed that conviction.
But, as even Sengpadychith noted,
Evidence of past or present conduct by gang members involving the commissions of one or more of the statutorily enumerated [sic] crimes is relevant in determining the group’s primary activities.
And thus, we arrive at People v. Vy, which tells us how to fix the problem presented by Alexander. We simply get an “expert” — remember, that’s a cop who has a lot of experience with gangs — who can testify that,
[T]he [gang] members engaged in these activities ‘often,’ indeed often enough to obtain ‘control’ of the narcotics trade in a certain area of Los Angeles. Evidence of the [charged] robbery and [a gang member’s prior] conviction [for felony possession of cocaine base for sale] further corroborated [the expert’s] testimony, providing specific examples of [gang] members’ commission of robbery and narcotics offenses
That’s it. The cop, a.k.a., “gang expert,” just has to remember to say the magic words: “often,” or “often enough to obtain ‘control.’” Then the conviction he mentions — though previously insufficient — is transmogrified by the incantation into “sufficient evidence.”
Voldemort would be proud.
So…what are the primary activities of American law enforcement agencies?
So here’s what you do, if you were an honest prosecutor. You find a “gang expert.” That could be a problem, as it might have to be a cop. Remember, American courts only count cops as “gang experts.” But you might get lucky. You are, after all, the prosecutor.
You present evidence like that tallied up recently in an opinion regarding Qualified Immunity by Judge Reeves in Jamison v. McClelland. I summarize here, from an upcoming article of mine to be published elsewhere:
It is a short, and not so sweet, litany: Michael Brown, shot dead for jaywalking; Tamir Rice, shot dead for being a child playing with a toy gun; Elijah McClain, killed for “look[ing] like a ‘suspicious person[,]’”; Eric Garner, killed for selling “loosies”; George Floyd, killed after suspicion of passing a $20 counterfeit bill; and on, and on, and on, and continuing on so that even on the day I write this sentence, new protests have erupted over a video of police shooting an unarmed black man named Jacob Blake “in the back multiple times, in broad daylight.” Seven times, to be exact.
The victims are all black, by the way. And,
In a footnote containing references to back this up, Judge Reeves quotes figures of 5,400 shot and killed since 2015; 28,400 since January 1, 2000.
Your expert then testifies that the primary activities of police officers involve shooting black people often, or often enough to obtain control. Like their ancestors, the Slave Patrols, and later, the enforcers of the Black Codes, the primary purpose of police officers is to control blacks, and other people of color. A secondary purpose, in which some cops are engaged much of the time, and which almost all cops do some of the time, is to investigate crimes, and arrest those who commit them.
Occasionally, the two kinds of activities overlap.
Nor is there anything new to this story. Law enforcement has not evolved beyond its historical antecedents. If anything, lethality increased. In addition to the “short, and not so sweet, litany” above, literally thousands more can be added, like this, from the Introduction to Just Another Gang: “When the Cops are Crooks Who Can You Trust?” in the Winter 1998 Howard Law Journal:
[N]early 80 officers carrying guns, sledgehammers and crowbars stormed the [ [ [dwelling] … . Rushing through [one woman’s] door, police began kicking her, while a visiting male friend … was knocked to the floor, handcuffed, and then thrown like a cord of wood through the open door and onto … [the] parched front lawn … . The lawn was already overflowing with residents of raided [homes] … randomly netted by the police. Most had been handcuffed and were now lying face down where they had been thrown … . Among those manacled on … [the] lawn was [a woman] … who’d been grabbed naked from her bathtub by onrushing police while her young children watched. Clothed now, she was lying not far from … a passer-by who [was] particularly noted because the police had kicked in his mouth so much that there was blood all around him … . All the toilets … were broken to pieces and torn from the floor … . The … walls were smashed in with sledgehammers, and so too were the bedroom and living room sets … . Couches and chairs were cut and slashed with knives, jars of baby food … were emptied onto clothes and bedding, dishes and glasses were shattered … .
By the way, out of that incident, the LAPD dragged “33 beaten, handcuffed, and humiliated individuals” to the police station. “[O]nly six were booked.” The 80 officers found “only a scant amount of cocaine and a small measure of marijuana for their destructive efforts.”
The author, André Douglas Pond Cummings, as Judge Reeves did recently in his Jamison opinion quoted above, later added to this another litany, which I partly quote, and partly paraphrase, here:
- “Black driver, white cops.” — Los Angeles. Rodney King. Acquittals. Riots.
- “[B]lack insurance executive … beaten to death by four Miami police officers.” The officers then demolished his motorcycle in order to use it as proof of his fatal motorcycle accident. Acquittals. Riots.
- Unarmed individual beaten down by Compton law enforcement officer. Video showed an unprovoked attack on the Hispanic youth.
- In Philadelphia, numerous officers plead guilty to three-year rampage planting drugs, making false arrests, filing false reports, and robbing their victims in the 39th Police District.
- San Diego, 1995. Several Mexicans “ruthlessly brutalized” by U.S. Border Patrol. Numerous other allegations against INS officers include a pattern of “[r]obbery, assault, rape, excessive force upon arrest, and even death.”
- New York City, 1983. Michael Stewart arrested for defacing a subway wall. He would die after arriving at the hospital “bruised, hog-tied, and comatose.” A classic cover-up followed. All six officers later acquitted.
- Pittsburgh, Pennsylvania. Two white officers charged with suffocating a black motorist; one of the officers “stood on the back of Gammage’s neck and pressed down with a metal club.”
And on, and on, and on, and on.
To paraphrase Sengpadychith,
Though members of the virtually every Police Department throughout the United States may commit an enumerated offense while on duty, the commission of crime is not a primary activity of those departments.
It just helps to explain how it is that cops know so much about what it means to be in a criminal street gang, as a criminal street gang member.