Chapter 9.08
GANG ACTIVITY CONTROL
Sections:
9.08.010 Findings and declarations.
9.08.020 Participation in criminal activities of a street gang prohibited – Elements – Punishment.
9.08.030 Buildings or places used by criminal street gangs declared nuisance.
9.08.040 Confiscation of firearms belonging to or used by street gang members.
9.08.060 No mandatory duty of care.
9.08.010 Findings and declarations.
A. Right to be Secure and Protected. The City Council hereby finds and declares that it is the right of every person, regardless of race, color, creed, religion, national origin, sex, age, sexual orientation, physical or mental disability, to be secure and protected from fear, intimidation and physical harm caused by the activities of violent groups and individuals.
B. Constitutional Rights Recognized. The City Council recognizes that individuals and groups have constitutionally protected rights of freedom of expression and association. These rights permit every person to harbor and express belief on any lawful subject whatsoever, to associate with others who share similar beliefs, to petition constituted authority for a redress of perceived grievances and to participate in the electoral process. The City Council recognizes and respects these rights, and does not intend to interfere with them in any way.
C. Violent Street Gangs – Danger to Public.
1. The City Council hereby finds that violent street gangs whose members threaten, terrorize and commit a multitude of crimes against peaceful citizens and their neighborhoods, pose a danger to the public order and to the safety of the citizens of Newman.
2. The City Council hereby finds that organized gang activity is a growing problem in the City. It is the intent of the City Council in enacting this chapter to seek the eradication and prevention of criminal activity by street gangs. To combat the terror inflicted by street gangs, the focus must be upon the patterns of criminal gang activity and upon the organized nature of street gangs.
3. The City Council further finds that an effective means of punishing and deterring the criminal activities of street gangs is through forfeiture of the profits, proceeds and instrumentalities acquired, accumulated or used by street gangs.
D. Determent of Gangs. The City Council hereby finds it necessary to deter the criminal activities of street gangs in order to protect the health and welfare of the citizens of Newman. Therefore, the City Council has a legitimate interest in enacting this chapter. (Ord. 92-21, 12-22-1992)
9.08.020 Participation in criminal activities of a street gang prohibited – Elements – Punishment.
A. Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who wilfully promotes, furthers or assists in any felonious criminal conduct by members of that gang, shall be guilty of a misdemeanor, punishable by a fine not exceeding $1,000, or by imprisonment in the County jail not exceeding six months, or by both.
B. As used in this chapter, “pattern of criminal gang activity” means the commission, attempted commission or solicitation of two or more of the following offenses; provided, at least one of those offenses occurred after the effective date of the ordinance codified in this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons:
1. “Assault with a deadly weapon or by means of force likely to produce great bodily injury,” as defined in Section 245 of the California Penal Code.
2. “Robbery” as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1 of the California Penal Code.
3. “Homicide” or “manslaughter,” as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1 of the California Penal Code.
4. The sale, possession for sale, transportation, manufacture, offer for sale or offer to manufacture “controlled substances,” as defined in Sections 11054 through 11058 of the California Health and Safety Code.
5. Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246 of the California Penal Code.
6. “Arson,” as defined in Chapter 1 (commencing with Section 450) of Title 13 of the California Penal Code.
7. The “intimidation of witnesses and victims,” as defined in Section 136.1 of the California Penal Code.
8. “Grand theft of any vehicle, trailer or vessel” as described in Section 487(h) of the California Penal Code.
C. As used in this chapter, “criminal street gang” means any on-going organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subsections (B)(1) through (8) of this section, inclusive, which has a common name or common identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (Ord. 92-21, 12-22-1992)
9.08.030 Buildings or places used by criminal street gangs declared nuisance.
A. Every building or place, used by members of a criminal street gang for the purpose of the commission of the offenses of NCC 9.08.020(B), or any offense involving dangerous or deadly weapons, burglary or rape, and every building or place wherein or upon which that criminal conduct by gang members takes place, is a nuisance which shall be enjoined, abated and prevented and for which damages may be recovered, whether it is a public or private nuisance.
B. Any action for injunction or abatement filed pursuant to this section shall not apply to:
1. Employees engaged in concerted activities for their mutual aid and protection.
2. The activities of labor organizations or their members or agents.
3. A nonprofit or charitable organization which is conducting its affairs with ordinary care or skill.
4. Governmental entities. (Ord. 92-21, 12-22-1992)
9.08.040 Confiscation of firearms belonging to or used by street gang members.
A. Any firearm, ammunition which may be used with the firearm, or any deadly or dangerous weapon which is owned or possessed by a member of a criminal street gang for the purpose of the commission of any of the offenses listed in NCC 9.08.020(B), or the commission of any burglary or rape, may be confiscated by any law enforcement agency or peace officer.
B. Weapons, ammunition or firearms confiscated pursuant to this section, may be held by law enforcement officials until the law enforcement officials believe it is safe to return the items, or for 30 days, whichever is shorter. If a law enforcement agency believes that upon the return of the weapons, ammunition or firearms, they will be used in street gang activities which will endanger the safety of others, the law enforcement agency shall petition the municipal court to determine if the item confiscated shall be returned or declared a nuisance.
C. No firearm, ammunition or deadly weapon shall be sold or destroyed unless reasonable notice is given to its lawful owner if his or her identity and address can be reasonably ascertained. The law enforcement agency shall inform the lawful owner, at the person’s last known address by registered mail, that he or she has 30 days from the date of receipt of the notice to respond to the court clerk to confirm his or her desire for a hearing and that the failure to respond shall result in a default order forfeiting the confiscated firearm, ammunition or deadly weapon as a nuisance.
D. If the person requests a hearing, the court clerk shall set a hearing no later than 30 days from receipt of that request. At the hearing, the burden of proof is upon the law enforcement agency or peace officer to show by a preponderance of the evidence that the seized item is or will be used in criminal street gang activity or that return of the item would be likely to result in endangering the safety of others. All returns of firearms shall be subject to subdivision (d) of Section 12072 of the California Penal Code.
E. If the person does not request a hearing within 30 days of the notice or the lawful owner cannot be ascertained, the law enforcement agency may file a petition that the confiscated firearm, ammunition or deadly weapon be declared a nuisance. If the items are declared a nuisance, the law enforcement agency shall dispose of the items as provided in Section 12028 of the California Penal Code. (Ord. 92-21, 12-22-1992)
9.08.050 Nonexclusive remedy.
Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law. (Ord. 92-21, 12-22-1992)
9.08.060 No mandatory duty of care.
This chapter is not intended to and shall not be construed or given effect in a manner that imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons and property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. (Ord. 92-21, 12-22-1992)