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COMMITTEE REPORT
May 24, 2007
S. 141
Introduced by Senators Knotts, Malloy, McConnell, Ford, Rankin, Cleary, Campsen, Setzler, Sheheen, Richardson, Vaughn, McGill, Elliott, Fair, Alexander and Lourie
S. Printed 5/24/07--H.
Read the first time March 6, 2007.
To whom was referred a Bill (S. 141) to amend Sections 14-7-1610 and 14-7-1630, Code of Laws of South Carolina, 1976, relating to the General Assembly's intent to enhance the grand jury system, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by deleting in its entirety Section 16-8-220, as contained in SECTION 4, beginning on page 9 and line 36.
Amend the bill further, by adding an appropriately numbered SECTION immediately after the enacting clause to read:
/ SECTION ___. The General Assembly finds that:
(1) It is the right of every person, regardless of race, color, creed, religion, national origin, sex, age, sexual orientation, or handicap to be secure and protected from fear, intimidation, and physical harm caused by the activities of criminal gangs and criminal gang members. It is not the intent of this article to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The General Assembly recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject, to lawfully associate with others who share similar beliefs, to petition lawfully constituted authority for a redress of perceived grievances, and to participate in the electoral process.
(2) The State of South Carolina is facing a mounting crisis caused by criminal gangs whose members threaten and terrorize peaceful citizens and commit a multitude of crimes. These criminal gang activities, both individually and collectively, present a clear and present danger. The State has a compelling interest in preventing criminal gang activity, and the General Assembly finds that the provisions of this act are necessary to maintain the public order and safety.
(3) It is the intent of the General Assembly to eradicate the terror created by criminal gangs by providing enhanced penalties and by eliminating the patterns, profits, proceeds, instrumentalities, and property facilitating criminal gang activity, including criminal gang recruitment. /
Amend the bill further, by deleting in its entirety Section 16-8-300, as contained in SECTION 4, page 16, lines 20-23.
Amend the bill further, by deleting in its entirety Section 16-8-320, as contained in SECTION 4, beginning on page 16 and line 33.
Amend the bill further, by deleting Section 16-8-330, as contained in SECTION 4, page 17, lines 3-35, and inserting:
/ Section 16-8-330. (A) Pursuant to achieving the intent and purpose of this article, the State Law Enforcement Division must develop and manage a statewide criminal gang database to facilitate the exchange of information between federal, state, county, and municipal law enforcement agencies pursuant to the intent and purpose of this article.
(B) Further, upon conviction of Section 16-8-240 or Section 16-8-250, a separate judicial proceeding must be conducted to determine by clear and convincing evidence that the person is a member of a criminal gang. No person's name may be entered into a registry prior to the judicial determination of criminal gang membership.
(C) All state, county, and municipal law enforcement agencies must furnish information they acquire relating to criminal gangs and gang-related incidents to the State Law Enforcement Division to be included in the database in accordance with subsection (B).
(D) The State Law Enforcement Division is authorized pursuant to the Administrative Procedures Act in Chapter 23, Title 1:
(1) to promulgate emergency regulations to make the criteria effective for collection of database information until such time as permanent regulations are promulgated and affirmatively approved by the General Assembly; and
(2) to promulgate permanent regulations consistent with the criteria required on the effective date of this act and to amend those regulations to reflect changes made in the criteria that must be affirmatively approved by the General Assembly." /
Amend the bill further, by adding an appropriately numbered SECTION to read:
/ SECTION ___. (A) There is created a Gang Prevention Study Committee consisting of the following fifteen members:
(1) the Attorney General, or his designee, who shall serve as chairman;
(2) three members of the House of Representatives, appointed by the Speaker of the House of Representatives;
(3) three members of the Senate, appointed by the President Pro Tempore of the Senate;
(4) one person appointed by the Chief of the State Law Enforcements Division;
(5) one person appointed by the South Carolina Sheriffs' Association;
(6) one person appointed by the Director of the Department of Juvenile Justice;
(7) one person appointed by the Director of the Department of Corrections;
(8) one person appointed by the Director of the Department of Social Services;
(9) one person appointed by the South Carolina Municipal Association; and
(10) two persons appointed by the Governor, one of which must be a member of the faith-based community.
(B) The members of the committee shall serve without compensation and may not receive per diem, mileage, or subsistence when serving on the committee.
(C) The committee shall study and keep abreast of issues and problems in South Carolina concerning criminal gang activity. Issues that the committee shall study include but are not limited to gang court, gang-out programs, school support programs, counseling and faith-based support programs, and the creation of a gang commission.
(D) The committee shall file a report before January 30, 2008, containing its findings and recommendations and specifically recommending support programs to assist in eliminating gang violence. This report shall be filed with the Governor, President Pro Tempore of the Senate, and the Speaker of the House of Representatives.
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO AMEND SECTIONS 14-7-1610 AND 14-7-1630, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE GENERAL ASSEMBLY'S INTENT TO ENHANCE THE GRAND JURY SYSTEM AND THE JURISDICTION OF THE STATE GRAND JURY, SO AS TO ADD CRIMINAL GANG ACTIVITY OR A PATTERN OF CRIMINAL GANG ACTIVITY TO THE STATE GRAND JURY'S JURISDICTION; AND TO DESIGNATE THE EXISTING SECTIONS OF CHAPTER 8, TITLE 16, RELATING TO OFFENSES THAT PROMOTE CIVIL DISORDER, AS ARTICLE 1, AND BY ADDING ARTICLE 3, SO AS TO ENACT THE "CRIMINAL GANG PREVENTION ACT", TO DEFINE CERTAIN TERMS, TO PROVIDE IT IS UNLAWFUL FOR A CRIMINAL GANG MEMBER TO USE OR THREATEN TO USE PHYSICAL VIOLENCE AGAINST ANOTHER PERSON WITH THE INTENT TO COERCE, INDUCE, OR SOLICIT ANOTHER PERSON TO ACTIVELY PARTICIPATE IN CRIMINAL GANG ACTIVITY OR TO PREVENT A PERSON FROM LEAVING A CRIMINAL GANG AND TO PROVIDE PENALTIES, TO PROVIDE AN ADDITIONAL PENALTY FOR COMMITTING THIS OFFENSE WITH A FIREARM OR DEADLY WEAPON, TO PROVIDE AN ADDITIONAL PENALTY IF THE PERSON THREATENED IS UNDER THE AGE OF EIGHTEEN, TO PROVIDE THE PERSON THREATENED HAS A CIVIL CAUSE OF ACTION AGAINST A CRIMINAL GANG OR CRIMINAL GANG MEMBER, TO PROVIDE IT IS UNLAWFUL FOR A CRIMINAL GANG MEMBER BY THREAT OR FORCE TO PREVENT OR ATTEMPT TO PREVENT A WITNESS OR VICTIM FROM ATTENDING OR GIVING TESTIMONY AT A TRIAL THAT CONCERNS OR RELATES TO CRIMINAL ACTIVITY AND TO PROVIDE A PENALTY, TO PROVIDE THAT A PERSON THREATENED PURSUANT TO THIS SECTION HAS A CIVIL CAUSE OF ACTION AGAINST A CRIMINAL GANG OR GANG MEMBER, TO PROVIDE A PROCEDURE FOR BRINGING THIS CIVIL CAUSE OF ACTION, TO PROVIDE FOR PROTECTION OF THE IDENTITY OF AN INFORMANT, TO PROVIDE FOR THE SEIZURE OF ANY FIREARM, AMMUNITION, OR DANGEROUS WEAPON, WRITTEN OR ELECTRONIC COMMUNICATIONS, RECORDS, MONEY, NEGOTIABLE INSTRUMENTS, OR VALUABLES IF THE LAW ENFORCEMENT OFFICER REASONABLY BELIEVES IT IS OR WILL BE USED IN A PATTERN OF CRIMINAL GANG ACTIVITY OR FOR FURTHERANCE OF THE BENEFITS OF A CRIMINAL GANG, TO PROVIDE A PROCEDURE FOR SEIZURE OF FIREARMS, AMMUNITION, OR DANGEROUS WEAPONS, WRITTEN OR ELECTRONIC COMMUNICATIONS, RECORDS, MONEY, NEGOTIABLE INSTRUMENTS, OR OTHER VALUABLES, TO PROVIDE FOR NOTIFICATION OF THE SHERIFF AND CHIEF OF POLICE WHEN A CRIMINAL GANG MEMBER IS RELEASED FROM JAIL, PRISON, OR A CORRECTIONS FACILITY, TO PROVIDE AN EXCEPTION FOR EMPLOYEES LAWFULLY ENGAGED IN COLLECTIVE BARGAINING ACTIVITIES OR THE LAWFUL ACTIVITIES OF LABOR ORGANIZATIONS, TO PROVIDE THE GOVERNING BODY OF A COUNTY, MUNICIPALITY, OR ANOTHER POLITICAL SUBDIVISION OF THE STATE MAY ADOPT AND ENFORCE ORDINANCES CONSISTENT WITH THIS ARTICLE, TO REQUIRE THE STATE LAW ENFORCEMENT DIVISION TO INCLUDE THE VIOLENT GANG TERRORIST ORGANIZATION FILE AMONG THE NATIONAL CRIME INFORMATION CENTER DATA AVAILABLE FOR DIRECT ACCESS BY CRIMINAL JUSTICE AGENCIES, TO REQUIRE STATE, COUNTY, AND MUNICIPAL LAW ENFORCEMENT AGENCIES TO MAINTAIN A RECORD OF ALL PERSONS WHO ARE FOUND TO BE CRIMINAL GANG MEMBERS IN THE VIOLENT GANG AND TERRORIST ORGANIZATION FILE, AND TO AUTHORIZE THE STATE LAW ENFORCEMENT DIVISION TO DEVELOP AND MAINTAIN A STATEWIDE CRIMINAL GANG DATABASE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 14-7-1610 of the 1976 Code is amended to read:
"Section 14-7-1610. (A) It is the intent of the General Assembly to enhance the grand jury system and to improve the ability of the State to detect and eliminate criminal activity. The General Assembly recognizes the great importance of having the federal authorities available for certain investigations. The General Assembly finds that crimes involving narcotics, dangerous drugs, or controlled substances, as well as crimes involving obscenity, often transpire or have significance in more than one county of this State. When this occurs, these crimes are most effectively detected and investigated by a grand jury system with the authority to cross county lines.
(B) The General Assembly finds that there is a critical need to enhance the grand jury system to improve the ability of the State to prevent, detect, investigate, and prosecute crimes involving criminal gang activity or a pattern of criminal gang activity pursuant to the provisions of Article 3 of Chapter 8, Title 16. Crimes involving criminal gang activity or a pattern of criminal gang activity transpire at times in a single county, but often transpire or have significance in more than one county of this State. The General Assembly believes criminal gang activity poses an immediate, serious, and unacceptable threat to the citizens of the State and therefore warrants the state grand jury possessing considerably broader investigative authority.
(B)(C) The General Assembly finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and eliminate public corruption. Crimes involving public corruption transpire at times in a single county, but often transpire or have significance in more than one county of this State. The General Assembly believes that a state grand jury, possessing considerably broader investigative authority than individual county grand juries, should be available to investigate public corruption offenses in South Carolina.
(C)(D) The General Assembly finds it fundamentally necessary to improve the ability of the State to prevent, detect, investigate, and prosecute crimes that involve the depiction of children under the age of eighteen in sexual activity, and obscenity crimes that are directed toward or involve children under the age of eighteen. The serious and unacceptable threat that these crimes pose to children is self-evident and impacts the State as a whole even if the actual criminal act occurs only in one county of the State. An effective effort to eliminate these heinous crimes requires a coordinated effort, which is accomplished more effectively through the state grand jury system. The effective prevention, detection, investigation, and prosecution of these crimes may require the use and application of state obscenity statutes or common law offenses not specifically directed toward the prevention and punishment of obscenity crimes involving children. Because many of these crimes involve computers, statewide jurisdiction over these crimes is consistent with the jurisdiction of a state grand jury over offenses defined in the Computer Crime Act. The General Assembly concludes that a state grand jury must be available to employ its broad investigative powers in the investigation of child-related obscenity by enabling the state grand jury to investigate all obscenity offenses, regardless of their multi-county impact, or whether they transpire or have significance in more than one county of this State.
(D)(E) The General Assembly finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and investigate crimes involving the election laws including, but not limited to, those named offenses as specified in Title 7, or common law crimes involving the election laws where not superseded, or a crime arising out of or in connection with the election laws, or attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws.
(E)(F) The General Assembly finds that there is a need to enhance the grand jury system to improve the ability of the State to detect and investigate knowing and wilful crimes which result in actual and substantial harm to the environment. These crimes include knowing and wilful offenses specified in Titles 13, 44, and 48, or any knowing and wilful crime arising out of or in connection with environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a knowing and wilful crime involving the environment if the anticipated actual damages, including, but not limited to, the cost of remediation, are two million dollars or more, as certified by an independent environmental engineer who shall be contracted by the Department of Health and Environmental Control.
(1) The General Assembly finds that the South Carolina Department of Health and Environmental Control possesses the expertise and knowledge to determine whether there has occurred an alleged environmental offense as defined in this article.
(2) The General Assembly finds that, because of its expertise and knowledge, the Department of Health and Environmental Control must play a substantial role in the investigation of any such alleged environmental offense.
(3) The General Assembly finds that, while the Department of Health and Environmental Control must not make prosecutorial decisions regarding such alleged environmental offense as defined in this article, the department must be integrally involved in the investigation of any such alleged environmental offense before and after the impaneling of a state grand jury pursuant to Section 14-7-1630.
(4) The General Assembly finds that it is in the public interest to avoid duplicative and overlapping prosecutions to the extent that the Attorney General considers possible. Therefore, the Attorney General shall consult with and advise the Environmental Protection and Enforcement Coordinating Subcommittee and cooperate with other state and federal prosecutorial authorities having jurisdiction over environmental enforcement in order to carry out the provisions of Sections 14-7-1630(A)(8) and 14-7-1630(C).
(F)(G) The General Assembly finds that related criminal activity often arises out of or in connection with crimes involving narcotics, dangerous drugs or controlled substances, criminal gang activity, obscenity, public corruption, or environmental offenses and that the mechanism for detecting and investigating these related crimes must be improved.
(G)(H) Accordingly, the General Assembly concludes that a state grand jury should be allowed to investigate certain crimes related to narcotics, dangerous drugs or controlled substances, criminal gang activity, and obscenity and also should also be allowed to investigate crimes involving public corruption, election laws, and environmental offenses.
(H)(I) This section does not limit the authority of a county grand jury, solicitor, or other appropriate law enforcement personnel to investigate, indict, or prosecute offenses within the jurisdiction of the state grand jury."
SECTION 2. Section 14-7-1630 of the 1976 Code is amended to read:
"Section 14-7-1630. (A) The jurisdiction of a state grand jury impaneled under pursuant to the provisions of this article extends throughout the State. The subject matter jurisdiction of a state grand jury in all cases is limited to the following offenses:
(1) a crime involving narcotics, dangerous drugs, or controlled substances, or a crime arising out of or in connection with a crime involving narcotics, dangerous drugs, or controlled substances including, but not limited to, money laundering as specified in Section 44-53-475, obstruction of justice, perjury or subornation of perjury, or any attempt, aiding, abetting, solicitation, or conspiracy to commit one of the aforementioned crimes if the crime is of a multi-county nature or has transpired or is transpiring or has significance in more than one county of this State;
(2) a crime involving criminal gang activity or a pattern of criminal gang activity pursuant to the provisions of Article 3 of Chapter 8, Title 16;
(3) a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615, a crime, statutory, common law or other, arising out of or in connection with a crime involving public corruption as defined in Section 14-7-1615, and any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615;
(3)(4) a crime involving the election laws including, but not limited to, those named offenses as specified in Title 7, or a common law crime involving the election laws if not superseded, or a crime arising out of or in connection with the election laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws;
(4)(5) a crime involving computer crimes, pursuant to Chapter 16, Title 16, or a conspiracy or solicitation to commit a crime involving computer crimes;
(5)(6) a crime involving terrorism, or a conspiracy or solicitation to commit a crime involving terrorism. Terrorism includes an activity that:
(a) involves an act dangerous to human life that is a violation of the criminal laws of this State;
(b) appears to be intended to:
(i) intimidate or coerce a civilian population;
(ii) influence the policy of a government by intimidation or coercion; or
(iii) affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(c) occurs primarily within the territorial jurisdiction of this State;
(6)(7) a crime involving a violation of Chapter 1, Title 35 of the Uniform Securities Act, or a crime related to securities fraud or a violation of the securities laws;
(7)(8) a crime involving obscenity including, but not limited to, a crime as provided in Article 3, Chapter 15, Title 16 or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving obscenity; and
(8)(9) a knowing and wilful crime involving actual and substantial harm to the water, ambient air, soil or land, or both soil and land. Such a This crime includes a knowing and wilful violation of the Pollution Control Act, the Atomic Energy and Radiation Control Act, the State Underground Petroleum Environmental Response Bank Act, the State Safe Drinking Water Act, the Hazardous Waste Management Act, the Infectious Waste Management Act, the Solid Waste Policy and Management Act, the Erosion and Sediment Control Act, the South Carolina Mining Act, and the Coastal Zone Management Act, or any a knowing and wilful crime arising out of or in connection with environmental laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a knowing and wilful crime involving the environment if the anticipated actual damages, including, but not limited to, the cost of remediation, are two million dollars or more, as certified by an independent environmental engineer who shall must be contracted by the Department of Health and Environmental Control. If the knowing and wilful crime is a violation of federal law, then a conviction or an acquittal under pursuant to federal law for the same act is a bar to the impaneling of a state grand jury pursuant to this section.
(B) Whenever the Attorney General and the Chief of the South Carolina Law Enforcement Division consider it necessary and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the chief administrative judge of the judicial circuit in which he seeks to impanel a state grand jury for an order impaneling a state grand jury. This judge is referred to in this article as the impaneling judge. The petition must allege the type of offenses to be inquired into and, in the case of those offenses contained in subsection (A)(1), must allege that these offenses may be of a multi-county nature or have transpired or are transpiring or have significance in more than one county of the State. The petition in all instances must specify that the public interest is served by the impanelment.
(C) In all investigations of crimes specified in subsection (A)(8)(9), except in matters where the Department of Health and Environmental Control or its officers or employees are the subjects of the investigation, the Commissioner of the Department of Health and Environmental Control must consult with and, after investigation, provide a formal written recommendation to the Attorney General and the Chief of the South Carolina Law Enforcement Division. The Attorney General and the Chief of the South Carolina Law Enforcement Division must consider the impaneling of a state grand jury necessary before the Attorney General presents a petition, which includes the commissioner's written recommendation, to the chief administrative judge pursuant to Section 14-7-1630(B).
(1) In the case of evidence brought to the attention of the Attorney General, the Chief of the South Carolina Law Enforcement Division, or the Department of Health and Environmental Control by an employee or former employee of the alleged violating entity, there also must also be separate, credible evidence of the violation in addition to the testimony or documents provided by the employee or former employee of the alleged violating entity.
(2) Where When an individual employee performs a criminal violation of the environmental laws that results in actual and substantial harm pursuant to subsection (A)(8)(9) and which prompts an investigation authorized by this article, only the individual employee is subject to the investigation unless or until there is separate, credible evidence that the individual's employer knew of, concealed, directed, or condoned the employee's action.
(D) The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve calendar months. Upon petition by the Attorney General, the then chief administrative judge of the judicial circuit in which a state grand jury was impaneled, by order, may extend the term of that state grand jury for a period of six months but the term of that state grand jury, including any an extension thereof of the term, shall not exceed two years.
(E) The chief administrative judge of the circuit wherein a state grand jury is sitting shall preside over that state grand jury during his tenure as chief administrative judge. The successor chief administrative judge shall assume all duties and responsibilities with regard to any a state grand jury impaneled before his term, including, but not limited to, presiding over the state grand jury and ruling on petitions to extend its term. This judge is referred to in this article as the presiding judge.
(F) The presiding judge may discharge a state grand jury prior to the end of its original term or any an extension thereof of the term, upon a determination that its business has been completed or upon the request of the Attorney General.
(G) If, at any time within the original term of any a state grand jury or any an extension thereof of the term, the presiding judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the presiding judge may limit the investigation so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under pursuant to subsection (F) shall does not become effective less than ten days after the date on which it is issued and actual notice given to the Attorney General and the foreman of the state grand jury, and may be appealed by the Attorney General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as is otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal."
SECTION 3. Sections 16-8-10, 16-8-20, and 16-8-30 of the 1976 Code are designated as Article 1 of Chapter 8, Title 16.
SECTION 4. Chapter 8, Title 16 of the 1976 Code is amended by adding:
Section 16-8-210. This article may be cited as the 'Criminal Gang Prevention Act'.
Section 16-8-220. The General Assembly finds that:
(1) It is the right of every person, regardless of race, color, creed, religion, national origin, sex, age, sexual orientation, or handicap to be secure and protected from fear, intimidation, and physical harm caused by the activities of criminal gangs and criminal gang members. It is not the intent of this article to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The General Assembly recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject, to lawfully associate with others who share similar beliefs, to petition lawfully constituted authority for a redress of perceived grievances, and to participate in the electoral process.
(2) The State of South Carolina is facing a mounting crisis caused by criminal gangs whose members threaten and terrorize peaceful citizens and commit a multitude of crimes. These criminal gang activities, both individually and collectively, present a clear and present danger. The State has a compelling interest in preventing criminal gang activity, and the General Assembly finds that the provisions of this act are necessary to maintain the public order and safety.
(3) It is the intent of the General Assembly to eradicate the terror created by criminal gangs by providing enhanced penalties and by eliminating the patterns, profits, proceeds, instrumentalities, and property facilitating criminal gang activity, including criminal gang recruitment.
Section 16-8-230. As used in this article:
(1) 'Contraband' means any real or personal property, including money, that is owned by, in the possession of, or subject to the control of a criminal gang member and which is acquired by, derived from, or traceable to criminal gang activity.
(2) 'Criminal gang' means a formal or informal ongoing organization, association, or group that consists of five or more persons who form for the purpose of committing criminal activity and who knowingly and actively participate in a pattern of criminal gang activity.
(3) 'Criminal gang member' means an individual who is an active member of a criminal gang.
(4) 'Pattern of criminal gang activity' means the commission or attempted commission of, commission as an accessory before or after the fact to, or solicitation or conspiracy to commit, by a criminal gang member, while knowingly and actively participating in criminal gang activity, four or more of the following offenses occurring within a two-year period, provided that at least three of these offenses occurred after July 1, 2007:
(a) a violent offense as defined in Section 16-1-60 committed as a part of criminal gang activity;
(b) financial transaction card crimes as defined in Chapter 14 of Title 16 committed as a part of criminal gang activity;
(c) first degree lynching as defined in Section 16-3-210 committed as a part of criminal gang activity;
(d) second degree lynching as defined in Section 16-3-220 committed as a part of criminal gang activity;
(e) breaking into a motor vehicle as defined in Section 16-13-160 committed as a part of criminal gang activity;
(f) grand larceny as defined in Section 16-13-30 committed as a part of criminal gang activity;
(g) blackmail as defined in Section 16-17-640 committed as a part of criminal gang activity;
(h) malicious injury to property as defined in Sections 16-11-510, 16-11-520, 16-11-530, and 16-11-535 committed as a part of criminal gang activity;
(i) drug offense as defined in Sections 44-53-370 and 44-53-375 committed as a part of criminal gang activity;
(j) harassment, stalking, or aggravated stalking as defined in Article 17, Chapter 3 of Title 16 committed as a part of criminal gang activity;
(k) pointing a firearm at any person as defined in Section 16-23-410 committed as a part of criminal gang activity;
(l) discharging a firearm at or into dwellings, structures, enclosures, vehicles, or equipment as defined in Section 16-23-440 committed as a part of criminal gang activity;
(m) the common law offense of assault and battery of a high and aggravated nature committed as a part of criminal gang activity; or
(n) the common law offense of obstruction of justice committed as a part of criminal gang activity.
(5) 'Gang-related incident' means an incident that, upon investigation, meets any of the following conditions:
(a) the participants are identified as criminal gang members acting collectively to further a criminal purpose of the criminal gang;
(b) a reliable informant identifies an incident as criminal gang activity based upon first-hand knowledge or personal observation; or
(c) a person other than a reliable informant provides information that identifies an incident as criminal gang activity, and it is corroborated by independent information.
Section 16-8-240. (A) It is unlawful for a criminal gang member to use or threaten to use physical violence against another person with the intent to coerce, induce, or solicit that person or another person to actively participate in criminal gang activity, or to prevent another criminal gang member from withdrawing from or leaving a criminal gang. A criminal gang member who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than one thousand dollars or imprisoned not more than two years, or both. A criminal gang member convicted for a second or subsequent offense pursuant to this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned for not more than five years, or both.
(B) A criminal gang member who uses a firearm, any other deadly weapon, or physical violence to coerce, induce, or solicit another person to actively participate in a criminal gang, or to prevent another criminal gang member from withdrawing or leaving a criminal gang, in addition to the punishment prescribed in subsection (A), may be punished by an additional fine of not more than ten thousand dollars or by imprisonment for an additional period of not more than ten years, or both.
(C) If the person solicited, recruited, coerced, or threatened in violation of this section is under the age of eighteen, an additional term of three years may be imposed in addition and consecutive to the penalty prescribed for a violation of this section.
(D) A person who has been coerced, intimidated, threatened, or injured in violation of this section has a civil cause of action against a criminal gang or criminal gang member violating this section for treble the amount of the actual damages, for punitive damages, an injunction, and any other appropriate relief in law or equity. Upon prevailing in the civil action, the plaintiff may recover reasonable attorney's fees and costs from the criminal gang or criminal gang member.
(E) Nothing in this section limits prosecution under any other provision of law.
Section 16-8-250. (A) It is unlawful for a criminal gang member by threat or force to:
(1) prevent a witness or victim from attending or giving testimony at a trial, proceeding, or inquiry authorized by law that concerns or relates to any criminal activity; or
(2) attempt to prevent a witness or victim from attending or giving testimony at a trial, proceeding, or inquiry authorized by law that concerns or relates to any criminal activity.
(B) A criminal gang member who violates a provision of this section is guilty of a felony and, upon conviction, must be punished by a fine of not more than ten thousand dollars or imprisoned for not more than ten years, or both.
(C) A person who has been coerced, intimidated, threatened, or injured in violation of this section has a civil cause of action against a criminal gang or criminal gang member violating this section for treble the amount of his actual damages, for punitive damages, an injunction, and any other appropriate relief in law or equity. Upon prevailing in the civil action, the plaintiff may recover reasonable attorney's fees and costs from the criminal gang or criminal gang member.
(D) Nothing in this section limits prosecution under any other provision of law.
Section 16-8-260. (A)(1) Any firearm, ammunition to be used in a firearm, or dangerous weapon in the possession of a member of a criminal gang may be seized by a law enforcement officer or agency when the law enforcement officer or agency reasonably believes that the firearm, ammunition to be used in a firearm, or dangerous weapon is or has been used in a pattern of criminal gang activity or in the commission of a criminal act for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
(2) Any written or electronic communications, records, money, negotiable instruments, or valuables may be seized by a law enforcement officer or agency when the law enforcement officer or agency reasonably believes that the written or electronic communications, records, money, negotiable instruments, or valuables have been used in a pattern of criminal gang activity or have been used for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
(3) Any contraband, as defined in Section 16-8-230, or other asset owned or titled in the name of the gang or an individual gang member may be seized by a law enforcement officer or agency when the law enforcement officer or agency reasonably believes that the contraband or asset has been used in a pattern of criminal gang activity or has been used for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
(B) The solicitor or another prosecuting attorney shall initiate, in a civil action, forfeiture proceedings by petition in a court of competent jurisdiction regarding any property seized pursuant to the provisions of this section within ninety days of seizure. The solicitor or another prosecuting attorney must provide notice of the filing of the petition to those criminal gang members who become known to law enforcement officials as a result of the seizure and any related arrests, and to any person learned 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 must ensure that all persons so notified continue to receive notice of all subsequent proceedings related to the property.
(C) A person who claims an interest in any seized property, in order to assert a claim that the property should not be forfeited, must file a notice with the court, without the necessity of paying costs, of the intent to establish either of the following:
(1) that the person asserting the claim did not know and could not have known of the property's use in the commission of a pattern of criminal gang activity or in furthering the interests of the criminal gang; or
(2) that the law enforcement officer lacked the requisite reasonable belief that the property was or would be used in the commission of a pattern of criminal gang activity or in furtherance of the interests of the criminal gang.
(D) In any hearings held and determinations made, pursuant to this section, the court may receive and consider, in making a determination of reasonable cause, all evidence admissible in determining reasonable or probable cause at a preliminary hearing together with inferences arising from the evidence presented.
(E) An acquittal or dismissal in a criminal proceeding must not preclude civil proceedings under this section. However, for good cause shown, on motion by the solicitor or another prosecuting attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of this section. A stay is not available pending an appeal.
(F) Except as otherwise provided by this section, all proceedings under this section are governed according to the common law, by statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit court. Additionally, any action under the provisions of this section may be consolidated with any other action or proceeding pursuant to this section relating to the same property on motion of the solicitor or prosecuting attorney.
(G) The forfeiture provided for in this section must be decided by the court. The hearing on the claim must be held within sixty days after service of the petition, unless continued for good cause. The solicitor or prosecuting attorney has the burden of proof to establish by a preponderance of the evidence that the property is subject to forfeiture.
(H) A person who asserts a successful claim in accordance with subsection (C) must be awarded the seized property by the court. All property to which no claim is filed, or to which no successful claim is made may be destroyed, sold at a public or private sale, retained for use by the seizing agency, or transferred without charge to any law enforcement agency of the State for use by the agency.
Section 16-8-270. (A) A civil cause of action is created in favor of the State of South Carolina, a county, municipality, or another political subdivision, or an agency or instrumentality of them, that sustains any damage, impairment, or injury proximately caused by a pattern of criminal gang activity as defined in this article, or the commission of a criminal act for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. The cause of action created by this section may be brought against a criminal gang, a criminal gang member, or any other person who intentionally directs, participates, conducts, furthers, or assists in the commission of a pattern of criminal gang activity, or any other person who commits a criminal act or delinquency for the purpose of benefiting, promoting, or furthering the interests of a criminal gang.
(B) Except as provided in this section, an action for injunction, damages, or other relief filed pursuant to this section must proceed according to the common law, statutory provisions relating to civil remedies and procedures, and the rules of civil procedure established for the circuit court.
(C) For purposes of venue, an action under this section for the recovery of damages may be brought in the county where the wrongful conduct occurred, or in the county where the damages were sustained. An action to enjoin the commission of an offense or an unlawful act may be brought in the county where the wrongful conduct occurred or may occur. For purposes of service of process, service of process upon a member of a criminal gang or a person representing a criminal gang member by appointment of court, operation of law, or mandate constitutes adequate service upon a criminal gang.
Section 16-8-280. In all civil actions brought under the provisions of this article, the identity of an informant, identifying information relating to an informant, and all matters exempt from disclosure under Chapter 4, Title 30, the Freedom of Information Act, are exempt from discovery or disclosure under the rules of civil procedure.
Section 16-8-290. When a criminal gang member is released from the custody of a jail, prison, or corrections facility, and the criminal gang member was in the custody of the jail, prison, or corrections facility for a violation of the provisions of this article, the jail, prison, or corrections facility must transmit notice of the release of the criminal gang member to the sheriff of the county in which the crime was committed. Notice also must be given to a sheriff that the criminal gang member is being released and has provided an address within the jurisdiction of that sheriff for the county in which the criminal gang member intends to reside. If the crime was committed in a municipality, or if the criminal gang member will reside in a municipality upon release, that law enforcement agency must transmit the same notice to the chiefs of police of those municipalities.
Section 16-8-300. This article does not apply to employees lawfully engaged in collective bargaining activities for their mutual aid and protection or the lawful activities of labor organizations or their members or agents.
Section 16-8-310. Nothing in this article prohibits the governing body of a county, a municipality, or another political subdivision of the State from adopting and enforcing ordinances consistent with this article relating to criminal gangs, criminal gang members, and gang violence. When local ordinances duplicate or supplement this article, this article provides alternative remedies.
Section 16-8-320. The State Law Enforcement Division must include the Violent Gang and Terrorist Organization File of the Federal Bureau of Investigation's National Crime Information Center among those National Crime Information Center data available for direct access by authorized criminal justice agencies. State, county, and municipal law enforcement agencies must maintain a record of all persons who are found to be criminal gang members in the Violent Gang and Terrorist Organization File in accordance with the National Crime Information Center entry criteria. All gang-related incidents must be appropriately annotated in the South Carolina Incident Based Reporting System pursuant to the intent and purpose of this article.
Section 16-8-330. (A) Pursuant to achieving the intent and purpose of this article, the State Law Enforcement Division must develop and manage a statewide criminal gang database to facilitate the exchange of information between federal, state, county, and municipal law enforcement agencies pursuant to the intent and purpose of this article.
(B) All state, county, and municipal law enforcement agencies must furnish information they acquire relating to criminal gangs and gang-related incidents to the State Law Enforcement Division to be included in the database.
(C) The State Law Enforcement Division may determine if information relating to criminal gangs, gang-related incidents, patterns of gang activity, or members or associates of criminal gangs received from federal law enforcement agencies and law enforcement agencies of other states is to be included in the database.
(D) Criminal information relating to a criminal gang and collected pursuant to this article must be consistent with the criteria required on the effective date of this act by the Violent Gang and Terrorist Organization File of the Federal Bureau of Investigation's National Crime Information Center. The State Law Enforcement Division is authorized pursuant to the Administrative Procedures Act in Chapter 23, Title 1 of the Code of Laws:
(1) to promulgate emergency regulations to make the criteria effective for collection of database information until such time as permanent regulations are promulgated and approved by the General Assembly; and
(2) to promulgate permanent regulations consistent with the criteria required on the effective date of this act and to amend those regulations to reflect changes made in the criteria.
(E) Information relating to a person who does not have a criminal arrest record and is not a member of a criminal gang must be used only for intelligence, investigative, and tracking purposes."
SECTION 5. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, the holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 6. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 7. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, June 22, 2009 at 2:29 P.M.