Bont: Government’s gang reports not clowning around

As a 15-year-old, I pretended to like rap-metal in an attempt to fit in with other teenagers who actually liked that music. Fortunately, this was a brief diversion from an otherwise straight-laced adolescence. Listening to people scream with the deep sound of drums and the shriek of an untuned electric guitar is not healthy for one’s teen angst. Also, had I strayed much further, I may very well have found myself on the wrong side of the law. That’s what my parents said at the time, and it turns out they were not completely wrong.

Fans of the music group Insane Clown Posse (ICP) refer to themselves as “Juggalos.” According to Wikipedia, they commonly sport tattoos of wicked clowns, wear face paint to look like wicked clowns and drink/spray the inexpensive soft drink Faygo. (My research did not reveal any other connection between Faygo and wicked clowns.) If, as I hope, you are unfamiliar with ICP lyrics, they are dark. Very dark. As the 6th Circuit described in Parsons v. U.S. Department of Justice, ICP’s songs often use harsh language and themes that deal with social, political, religious or countercultural issues. 878 F.3d 162 (6th Cir. 2017). That is putting it mildly. In 2011, the FBI’s National Gang Intelligence Center (NGIC) Report identified the Juggalos as a “hybrid gang,” which was nebulously defined as a loosely organized group of individuals with multiple affiliations and a high propensity for random criminal activity. They were, in fact, the only “gang” recognized by title (e.g., Bloods, Crips, MS-13, etc.) in the report’s Table of Contents. The basis for their inclusion in the 2011 report was that was the Juggalos committed “sporadic, disorganized, individualistic” crimes such as “assault, personal drug use and possession, petty theft, and vandalism.” Granted, the Juggalos are probably a step above a problematic fraternity, but this seems like a pretty strained effort to label something a “gang.”

NGIC reports are submitted annually by the Department of Justice to Congress. The 2009, 2011, 2013 and 2015 reports are available on the FBI’s website. In the 2015 NGIC Report, “gang” is formally defined as an association of individuals with an identifiable structure with rules for joining and operating and with the objectives of generating revenue and gaining control over a geographic region. (The 2011 report did not similarly define “gang.”) The 2015 report contains sections describing street gangs, prison gangs, motorcycle gangs and extremist gangs. Some gang activity is predominately attributable to a particular type of gang, e.g., alien smuggling and street gangs, and some illegal activity transcends all gangs, e.g., drug trafficking. Interestingly, the report finds that, “Over the last few years, street gangs have become more involved in white-collar crimes due to weaker sentencing guidelines and the ease of making money.” Similarly, “over the past several years, there has been reporting of [motorcycle gang] members retaining employment in various white-collar professions.” The 2015 report also states that “the most common social media platforms that street gangs use are Facebook, YouTube, Instagram, and Twitter.” (Think twice before agreeing to your join your accountant’s Facebook motorcycle group.)

In 2014, the Juggalos sued the government under the Administrative Procedure Act, claiming their status as a gang in the 2011 report resulted in multiple unnecessary law enforcement encounters and arrests and violated their constitutional rights. In Parsons, the 6th Circuit affirmed the dismissal of the case, holding that a gang designation in the report did not directly impose liability, determine legal rights or limit government actors. Rather, reliance on the report by law enforcement was a “practical consequence,” which was not a reviewable government action. Though not discussed in Parsons, under existing Supreme Court precedent, a law enforcement officer’s state of mind (i.e., whether he or she was motivated by gang affiliation) is irrelevant to the existence of probable cause. Devenpeck v. Alford, 543 U.S. 146, 153 (2004). As long as there are objective facts establishing probable cause, that the officer was motivated by his or her perception that a person is a member of a recognized gang does not invalidate the search or arrest. In practical terms, this means there is no right not to be identified by law enforcement as having a high propensity for criminal activity based on your affiliation(s). Further, once identified as being part of a gang, a law enforcement officer’s inclination to act based on that gang status is almost unreviewable.

Still, the Juggalos’ lawsuit may have indirectly achieved one of its goals. The 2015 report does not use the term “hybrid gang,” more formal criteria are listed in defining a “gang,” and there is no mention of the Juggalos, Delta Tau Chi or any other loosely organized group of individuals with multiple affiliations and with a high propensity for random criminal activity.•

• Jonathan Bont practices in the areas of criminal defense, business litigation and government compliance at Paganelli Law Group. Opinions expressed are those of the author.