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					                                   South Carolina General Assembly
                                       117th Session, 2007-2008

S. 78

STATUS INFORMATION

General Bill
Sponsors: Senators Knotts, Courson, Cromer, Sheheen, Richardson, McGill, Leatherman, Setzler, Fair
and Alexander
Document Path: l:\council\bills\ms\7007ahb07.doc
Companion/Similar bill(s): 141, 3049, 3093, 3247

Introduced in the Senate on January 9, 2007
Currently residing in the Senate Committee on Judiciary

Summary: Criminal Gang Prevention Act


HISTORY OF LEGISLATIVE ACTIONS

    Date     Body     Action Description with journal page number
11/29/2006   Senate   Prefiled
11/29/2006   Senate   Referred to Committee on Judiciary
  1/9/2007   Senate   Introduced and read first time SJ-59
  1/9/2007   Senate   Referred to Committee on Judiciary SJ-59

View the latest legislative information at the LPITS web site


VERSIONS OF THIS BILL

11/29/2006
 1
 2
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 5
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 7
 8
 9                       A BILL
10
11   TO AMEND SECTION 14-7-1610, AS AMENDED, CODE OF
12   LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
13   GENERAL ASSEMBLY‟S INTENT TO ENHANCE THE
14   GRAND JURY SYSTEM, SO AS TO INCLUDE CRIMINAL
15   GANG ACTIVITY OR A PATTERN OF CRIMINAL GANG
16   ACTIVITY; TO AMEND SECTION 14-7-1630, AS AMENDED,
17   RELATING TO THE JURISDICTION OF THE STATE GRAND
18   JURY, SO AS TO ADD CRIMINAL GANG ACTIVITY OR A
19   PATTERN OF CRIMINAL GANG ACTIVITY TO THE STATE
20   GRAND JURY‟S JURISDICTION; AND TO DESIGNATE THE
21   EXISTING SECTIONS OF CHAPTER 8, TITLE 16, RELATING
22   TO OFFENSES THAT PROMOTE CIVIL DISORDER, AS
23   ARTICLE 1 AND BY ADDING ARTICLE 3 SO AS TO ENACT
24   THE “CRIMINAL GANG PREVENTION ACT”, TO DEFINE
25   THE TERMS “CONTRABAND”, “CRIMINAL GANG”,
26   “CRIMINAL GANG MEMBER”, “PATTERN OF CRIMINAL
27   GANG ACTIVITY”, AND “GANG-RELATED INCIDENT”, TO
28   PROVIDE IT IS UNLAWFUL FOR A CRIMINAL GANG
29   MEMBER TO USE OR THREATEN TO USE PHYSICAL
30   VIOLENCE AGAINST ANOTHER PERSON WITH THE
31   INTENT TO COERCE, INDUCE, OR SOLICIT ANOTHER
32   PERSON TO ACTIVELY PARTICIPATE IN CRIMINAL GANG
33   ACTIVITY OR TO PREVENT A PERSON FROM LEAVING A
34   CRIMINAL GANG AND TO PROVIDE PENALTIES, TO
35   PROVIDE AN ADDITIONAL PENALTY FOR COMMITTING
36   THIS OFFENSE WITH A FIREARM OR DEADLY WEAPON,
37   TO PROVIDE AN ADDITIONAL PENALTY IF THE PERSON
38   THREATENED IS UNDER THE AGE OF EIGHTEEN, TO
39   PROVIDE THE PERSON THREATENED HAS A CIVIL
40   CAUSE OF ACTION AGAINST A CRIMINAL GANG OR
41   CRIMINAL GANG MEMBER, TO PROVIDE IT IS
42   UNLAWFUL FOR A CRIMINAL GANG MEMBER BY

     [78]                    1
 1   THREAT OR FORCE TO PREVENT OR ATTEMPT TO
 2   PREVENT A WITNESS OR VICTIM FROM ATTENDING OR
 3   GIVING TESTIMONY AT A TRIAL THAT CONCERNS OR
 4   RELATES TO CRIMINAL ACTIVITY AND TO PROVIDE A
 5   PENALTY, TO PROVIDE THAT A PERSON THREATENED
 6   PURSUANT TO THIS SECTION HAS A CIVIL CAUSE OF
 7   ACTION AGAINST A CRIMINAL GANG OR GANG
 8   MEMBER, TO PROVIDE THAT A PRIVATE BUILDING OR
 9   PLACE USED BY MEMBERS OF A CRIMINAL GANG TO
10   ENGAGE IN A PATTERN OF CRIMINAL GANG ACTIVITY
11   MAY BE THE SUBJECT OF AN INJUNCTION OR CAUSE OF
12   ACTION FOR ABATEMENT OF A NUISANCE, TO PROVIDE
13   THE PROCEDURE FOR SEEKING AN INJUNCTION OR
14   ABATEMENT OF A NUISANCE, TO PROVIDE FOR A CIVIL
15   CAUSE OF ACTION IN FAVOR OF THE STATE, A COUNTY,
16   MUNICIPALITY, OR ANOTHER POLITICAL SUBDIVISION,
17   OR AN AGENCY OR INSTRUMENTALITY OF THEM, THAT
18   SUSTAINS ANY DAMAGE, IMPAIRMENT, OR INJURY
19   PROXIMATELY CAUSED BY A PATTERN OF CRIMINAL
20   GANG ACTIVITY, TO PROVIDE A PROCEDURE FOR
21   BRINGING THIS CIVIL CAUSE OF ACTION, TO PROVIDE
22   FOR PROTECTION OF THE IDENTITY OF AN INFORMANT,
23   TO PROVIDE FOR THE SEIZURE OF ANY FIREARM,
24   AMMUNITION, OR DANGEROUS WEAPON IF THE LAW
25   ENFORCEMENT OFFICER REASONABLY BELIEVES IT IS
26   OR WILL BE USED IN A PATTERN OF CRIMINAL GANG
27   ACTIVITY, TO PROVIDE A PROCEDURE FOR SEIZURE OF
28   A FIREARM, AMMUNITION, OR DANGEROUS WEAPON,
29   TO PROVIDE FOR NOTIFICATION OF THE SHERIFF AND
30   CHIEF OF POLICE WHEN A CRIMINAL GANG MEMBER IS
31   RELEASED FROM JAIL, PRISON, OR A CORRECTIONS
32   FACILITY, TO PROVIDE AN EXCEPTION FOR EMPLOYEES
33   LAWFULLY ENGAGED IN COLLECTIVE BARGAINING
34   ACTIVITIES OR THE LAWFUL ACTIVITIES OF LABOR
35   ORGANIZATIONS, TO PROVIDE THE GOVERNING BODY
36   OF A COUNTY, MUNICIPALITY, OR ANOTHER POLITICAL
37   SUBDIVISION OF THE STATE MAY ADOPT AND ENFORCE
38   ORDINANCES CONSISTENT WITH THIS ARTICLE, TO
39   REQUIRE THE STATE LAW ENFORCEMENT DIVISION TO
40   INCLUDE     THE    VIOLENT    GANG     TERRORIST
41   ORGANIZATION FILE AMONG THE NATIONAL CRIME
42   INFORMATION CENTER DATA AVAILABLE FOR DIRECT
43   ACCESS BY CRIMINAL JUSTICE AGENCIES, AND TO

     [78]                   2
 1   REQUIRE STATE, COUNTY, AND MUNICIPAL LAW
 2   ENFORCEMENT AGENCIES TO MAINTAIN A RECORD OF
 3   ALL PERSONS WHO ARE FOUND TO BE CRIMINAL GANG
 4   MEMBERS IN THE VIOLENT GANG AND TERRORIST
 5   ORGANIZATION FILE.
 6
 7   Be it enacted by the General Assembly of the State of South
 8   Carolina:
 9
10   SECTION 1. Section 14-7-1610 of the 1976 Code, as last
11   amended by Act 75 of 2005, is further amended to read:
12
13      “Section 14-7-1610: (A) It is the intent of the General
14   Assembly to enhance the grand jury system and to improve the
15   ability of the State to detect and eliminate criminal activity. The
16   General Assembly recognizes the great importance of having the
17   federal authorities available for certain investigations. The
18   General Assembly finds that crimes involving narcotics, dangerous
19   drugs, or controlled substances, as well as crimes involving
20   obscenity, often transpire or have significance in more than one
21   county of this State. When this occurs, these crimes are most
22   effectively detected and investigated by a grand jury system with
23   the authority to cross county lines.
24      (B) The General Assembly finds that there is a critical need to
25   enhance the grand jury system to improve the ability of the State to
26   prevent, detect, investigate, and prosecute crimes involving
27   criminal gang activity or a pattern of criminal gang activity
28   pursuant to the provisions of Article 3 of Chapter 8, Title 16.
29   Crimes involving criminal gang activity or a pattern of criminal
30   gang activity transpire at times in a single county, but often
31   transpire or have significance in more than one county of this
32   State. The General Assembly believes criminal gang activity
33   poses an immediate, serious, and unacceptable threat to the citizens
34   of the State and therefore warrants the state grand jury possessing
35   considerably broader investigative authority.
36      (C) The General Assembly finds that there is a need to enhance
37   the grand jury system to improve the ability of the State to detect
38   and eliminate public corruption.          Crimes involving public
39   corruption transpire at times in a single county, but often transpire
40   or have significance in more than one county of this State. The
41   General Assembly believes that a state grand jury, possessing
42   considerably broader investigative authority than individual county


     [78]                              3
 1   grand juries, should be available to investigate public corruption
 2   offenses in South Carolina.
 3      (C)(D) The General Assembly finds it fundamentally necessary
 4   to improve the ability of the State to prevent, detect, investigate,
 5   and prosecute crimes that involve the depiction of children under
 6   the age of eighteen in sexual activity, and obscenity crimes that are
 7   directed toward or involve children under the age of eighteen. The
 8   serious and unacceptable threat that these crimes pose to children
 9   is self-evident and impacts the State as a whole even if the actual
10   criminal act occurs only in one county of the State. An effective
11   effort to eliminate these heinous crimes requires a coordinated
12   effort, which is accomplished more effectively through the state
13   grand jury system.          The effective prevention, detection,
14   investigation, and prosecution of these crimes may require the use
15   and application of state obscenity statutes or common law offenses
16   not specifically directed toward the prevention and punishment of
17   obscenity crimes involving children. Because many of these
18   crimes involve computers, statewide jurisdiction over these crimes
19   is consistent with the jurisdiction of a state grand jury over
20   offenses defined in the Computer Crime Act. The General
21   Assembly concludes that a state grand jury must be available to
22   employ its broad investigative powers in the investigation of
23   child-related obscenity by enabling the state grand jury to
24   investigate all obscenity offenses, regardless of their multi-county
25   impact, or whether they transpire or have significance in more than
26   one county of this State.
27      (D)(E) The General Assembly finds that there is a need to
28   enhance the grand jury system to improve the ability of the State to
29   detect and investigate crimes involving the election laws including,
30   but not limited to, those named offenses as specified in Title 7, or
31   common law crimes involving the election laws where not
32   superseded, or a crime arising out of or in connection with the
33   election laws, or attempt, aiding, abetting, solicitation, or
34   conspiracy to commit a crime involving the election laws.
35      (E)(F) The General Assembly finds that there is a need to
36   enhance the grand jury system to improve the ability of the State to
37   detect and investigate knowing and wilful crimes which result in
38   actual and substantial harm to the environment. These crimes
39   include knowing and wilful offenses specified in Titles 13, 44, and
40   48, or any knowing and wilful crime arising out of or in connection
41   with environmental laws, or any attempt, aiding, abetting,
42   solicitation, or conspiracy to commit a knowing and wilful crime
43   involving the environment if the anticipated actual damages,

     [78]                              4
 1   including, but not limited to, the cost of remediation, are two
 2   million dollars or more, as certified by an independent
 3   environmental engineer who shall be contracted by the Department
 4   of Health and Environmental Control.
 5        (1) The General Assembly finds that the South Carolina
 6   Department of Health and Environmental Control possesses the
 7   expertise and knowledge to determine whether there has occurred
 8   an alleged environmental offense as defined in this article.
 9        (2) The General Assembly finds that, because of its expertise
10   and knowledge, the Department of Health and Environmental
11   Control must play a substantial role in the investigation of any
12   such alleged environmental offense.
13        (3) The General Assembly finds that, while the Department
14   of Health and Environmental Control must not make prosecutorial
15   decisions regarding such alleged environmental offense as defined
16   in this article, the department must be integrally involved in the
17   investigation of any such alleged environmental offense before and
18   after the impaneling of a state grand jury pursuant to Section
19   14-7-1630.
20        (4) The General Assembly finds that it is in the public
21   interest to avoid duplicative and overlapping prosecutions to the
22   extent that the Attorney General considers possible. Therefore, the
23   Attorney General shall consult with and advise the Environmental
24   Protection and Enforcement Coordinating Subcommittee and
25   cooperate with other state and federal prosecutorial authorities
26   having jurisdiction over environmental enforcement in order to
27   carry out the provisions of Sections 14-7-1630(A)(8) and
28   14-7-1630(C).
29      (F)(G) The General Assembly finds that related criminal activity
30   often arises out of or in connection with crimes involving
31   narcotics, dangerous drugs or controlled substances, criminal gang
32   activity, obscenity, public corruption, or environmental offenses
33   and that the mechanism for detecting and investigating these
34   related crimes must be improved.
35      (G)(H) Accordingly, the General Assembly concludes that a
36   state grand jury should be allowed to investigate certain crimes
37   related to narcotics, dangerous drugs or controlled substances,
38   criminal gang activity, and obscenity and also should also be
39   allowed to investigate crimes involving public corruption, election
40   laws, and environmental offenses.
41      (H)(I) This section does not limit the authority of a county
42   grand jury, solicitor, or other appropriate law enforcement


     [78]                             5
 1   personnel to investigate, indict, or prosecute offenses within the
 2   jurisdiction of the state grand jury.”
 3
 4   SECTION 2. Section 14-7-1630 of the 1976 Code, as last
 5   amended by Act 75 of 2005, is further amended to read:
 6
 7      “Section 14-7-1630. (A) The jurisdiction of a state grand jury
 8   impaneled under pursuant to the provisions of this article extends
 9   throughout the State. The subject matter jurisdiction of a state
10   grand jury in all cases is limited to the following offenses:
11         (1) a crime involving narcotics, dangerous drugs, or
12   controlled substances, or a crime arising out of or in connection
13   with a crime involving narcotics, dangerous drugs, or controlled
14   substances including, but not limited to, money laundering as
15   specified in Section 44-53-475, obstruction of justice, perjury or
16   subornation of perjury, or any attempt, aiding, abetting,
17   solicitation, or conspiracy to commit one of the aforementioned
18   crimes if the crime is of a multi-county nature or has transpired or
19   is transpiring or has significance in more than one county of this
20   State;
21         (2) a crime involving criminal gang activity or a pattern of
22   criminal gang activity pursuant to the provisions of Article 3 of
23   Chapter 8, Title 16;
24         (3) a crime, statutory, common law or other, involving
25   public corruption as defined in Section 14-7-1615, a crime,
26   statutory, common law or other, arising out of or in connection
27   with a crime involving public corruption as defined in Section
28   14-7-1615, and any attempt, aiding, abetting, solicitation, or
29   conspiracy to commit a crime, statutory, common law or other,
30   involving public corruption as defined in Section 14-7-1615;
31         (3)(4) a crime involving the election laws including, but not
32   limited to, those named offenses as specified in Title 7, or a
33   common law crime involving the election laws if not superseded,
34   or a crime arising out of or in connection with the election laws, or
35   any attempt, aiding, abetting, solicitation, or conspiracy to commit
36   a crime involving the election laws;
37         (4)(5) a crime involving computer crimes, pursuant to
38   Chapter 16, Title 16, or a conspiracy or solicitation to commit a
39   crime involving computer crimes;
40         (5)(6) a crime involving terrorism, or a conspiracy or
41   solicitation to commit a crime involving terrorism. Terrorism
42   includes an activity that:


     [78]                              6
 1           (a) involves an act dangerous to human life that is a
 2   violation of the criminal laws of this State;
 3           (b) appears to be intended to:
 4              (i) intimidate or coerce a civilian population;
 5              (ii) influence the policy of a government by
 6   intimidation or coercion; or
 7              (iii) affect the conduct of a government by mass
 8   destruction, assassination, or kidnapping; and
 9           (c) occurs primarily within the territorial jurisdiction of
10   this State;
11        (6)(7) a crime involving a violation of Chapter 1, Title 35 of
12   the Uniform Securities Act, or a crime related to securities fraud or
13   a violation of the securities laws;
14        (7)(8) a crime involving obscenity including, but not limited
15   to, a crime as provided in Article 3, Chapter 15, Title 16 or any
16   attempt, aiding, abetting, solicitation, or conspiracy to commit a
17   crime involving obscenity; and
18        (8)(9) a knowing and wilful crime involving actual and
19   substantial harm to the water, ambient air, soil or land, or both soil
20   and land. Such a This crime includes a knowing and wilful
21   violation of the Pollution Control Act, the Atomic Energy and
22   Radiation Control Act, the State Underground Petroleum
23   Environmental Response Bank Act, the State Safe Drinking Water
24   Act, the Hazardous Waste Management Act, the Infectious Waste
25   Management Act, the Solid Waste Policy and Management Act,
26   the Erosion and Sediment Control Act, the South Carolina Mining
27   Act, and the Coastal Zone Management Act, or any a knowing and
28   wilful crime arising out of or in connection with environmental
29   laws, or any attempt, aiding, abetting, solicitation, or conspiracy to
30   commit a knowing and wilful crime involving the environment if
31   the anticipated actual damages, including, but not limited to, the
32   cost of remediation, are two million dollars or more, as certified by
33   an independent environmental engineer who shall must be
34   contracted by the Department of Health and Environmental
35   Control. If the knowing and wilful crime is a violation of federal
36   law, then a conviction or an acquittal under pursuant to federal law
37   for the same act is a bar to the impaneling of a state grand jury
38   pursuant to this section.
39      (B) Whenever the Attorney General and the Chief of the South
40   Carolina Law Enforcement Division consider it necessary and
41   normal investigative or prosecutorial procedures are not adequate,
42   the Attorney General may petition in writing to the chief
43   administrative judge of the judicial circuit in which he seeks to

     [78]                              7
 1   impanel a state grand jury for an order impaneling a state grand
 2   jury. This judge is referred to in this article as the impaneling
 3   judge. The petition must allege the type of offenses to be inquired
 4   into and, in the case of those offenses contained in subsection
 5   (A)(1), must allege that these offenses may be of a multi-county
 6   nature or have transpired or are transpiring or have significance in
 7   more than one county of the State. The petition in all instances
 8   must specify that the public interest is served by the impanelment.
 9      (C) In all investigations of crimes specified in subsection
10   (A)(8)(9), except in matters where the Department of Health and
11   Environmental Control or its officers or employees are the subjects
12   of the investigation, the Commissioner of the Department of
13   Health and Environmental Control must consult with and, after
14   investigation, provide a formal written recommendation to the
15   Attorney General and the Chief of the South Carolina Law
16   Enforcement Division. The Attorney General and the Chief of the
17   South Carolina Law Enforcement Division must consider the
18   impaneling of a state grand jury necessary before the Attorney
19   General presents a petition, which includes the commissioner‟s
20   written recommendation, to the chief administrative judge pursuant
21   to Section 14-7-1630(B).
22         (1) In the case of evidence brought to the attention of the
23   Attorney General, the Chief of the South Carolina Law
24   Enforcement Division, or the Department of Health and
25   Environmental Control by an employee or former employee of the
26   alleged violating entity, there also must also be separate, credible
27   evidence of the violation in addition to the testimony or documents
28   provided by the employee or former employee of the alleged
29   violating entity.
30         (2) Where When an individual employee performs a
31   criminal violation of the environmental laws that results in actual
32   and substantial harm pursuant to subsection (A)(8)(9) and which
33   prompts an investigation authorized by this article, only the
34   individual employee is subject to the investigation unless or until
35   there is separate, credible evidence that the individual‟s employer
36   knew of, concealed, directed, or condoned the employee‟s action.
37      (D) The impaneling judge, after due consideration of the
38   petition, may order the impanelment of a state grand jury in
39   accordance with the petition for a term of twelve calendar months.
40   Upon petition by the Attorney General, the then chief
41   administrative judge of the judicial circuit in which a state grand
42   jury was impaneled, by order, may extend the term of that state
43   grand jury for a period of six months but the term of that state

     [78]                             8
 1   grand jury, including any an extension thereof of the term, shall
 2   not exceed two years.
 3      (E) The chief administrative judge of the circuit wherein a state
 4   grand jury is sitting shall preside over that state grand jury during
 5   his tenure as chief administrative judge. The successor chief
 6   administrative judge shall assume all duties and responsibilities
 7   with regard to any a state grand jury impaneled before his term,
 8   including, but not limited to, presiding over the state grand jury
 9   and ruling on petitions to extend its term. This judge is referred to
10   in this article as the presiding judge.
11      (F) The presiding judge may discharge a state grand jury prior
12   to the end of its original term or any an extension thereof of the
13   term, upon a determination that its business has been completed or
14   upon the request of the Attorney General.
15      (G) If, at any time within the original term of any a state grand
16   jury or any an extension thereof of the term, the presiding judge
17   determines that the state grand jury is not conducting investigative
18   activity within its jurisdiction or proper investigative activity, the
19   presiding judge may limit the investigation so that the
20   investigation conforms with the jurisdiction of the state grand jury
21   and existing law or he may discharge the state grand jury. An
22   order issued pursuant to this subsection or under pursuant to
23   subsection (F) shall does not become effective less than ten days
24   after the date on which it is issued and actual notice given to the
25   Attorney General and the foreman of the state grand jury, and may
26   be appealed by the Attorney General to the Supreme Court. If an
27   appeal from the order is made, the state grand jury, except as is
28   otherwise ordered by the Supreme Court, shall continue to exercise
29   its powers pending disposition of the appeal.”
30
31   SECTION 3. Sections 16-8-10, 16-8-20, and 16-8-30 of the 1976
32   Code are designated as Article 1 of Chapter 8, Title 16.
33
34   SECTION 4. Chapter 8, Title 16 of the 1976 Code is amended by
35   adding:
36                            “Article 3
37
38                        Criminal Gang Prevention
39
40     Section 16-8-210. This article may be cited as the „Criminal
41   Gang Prevention Act.‟
42
43     Section 16-8-220. The General Assembly finds that:

     [78]                              9
 1      (1) It is the right of every person, regardless of race, color,
 2   creed, religion, national origin, sex, age, sexual orientation, or
 3   handicap to be secure and protected from fear, intimidation, and
 4   physical harm caused by the activities of criminal gangs and
 5   criminal gang members. It is not the intent of this article to
 6   interfere with the exercise of the constitutionally protected rights
 7   of freedom of expression and association. The General Assembly
 8   recognizes the constitutional right of every citizen to harbor and
 9   express beliefs on any lawful subject, to lawfully associate with
10   others who share similar beliefs, to petition lawfully constituted
11   authority for a redress of perceived grievances, and to participate
12   in the electoral process.
13      (2) The State of South Carolina is facing a mounting crisis
14   caused by criminal gangs whose members threaten and terrorize
15   peaceful citizens and commit a multitude of crimes. These
16   criminal gang activities, both individually and collectively, present
17   a clear and present danger. The State has a compelling interest in
18   preventing criminal gang activity, and the General Assembly finds
19   that the provisions of this act are necessary to maintain the public
20   order and safety.
21      (3) It is the intent of the General Assembly to eradicate the
22   terror created by criminal gangs by providing enhanced penalties
23   and by eliminating the patterns, profits, proceeds,
24   instrumentalities, and property facilitating criminal gang activity,
25   including criminal gang recruitment.
26
27      Section 16-8-230. As used in this article:
28      (1) „Contraband‟ means any real or personal property,
29   including money, that is owned by, in the possession of, or subject
30   to the control of a criminal gang member and which is acquired by,
31   derived from, or traceable to criminal gang activity.
32      (2) „Criminal gang‟ means a formal or informal ongoing
33   organization, association, or group that consists of five or more
34   persons who form for the purpose of committing criminal activity
35   and who knowingly and actively participate in a pattern of criminal
36   gang activity.
37      (3) „Criminal gang member‟ means an individual who is an
38   active member of a criminal gang.
39      (4) „Pattern of criminal gang activity‟ means the commission
40   or attempted commission of, commission as an accessory before or
41   after the fact to, or solicitation or conspiracy to commit, by a
42   criminal gang member, while knowingly and actively participating
43   in criminal gang activity, four or more of the following offenses

     [78]                             10
 1   occurring within a two-year period, provided that at least three of
 2   these offenses occurred after July 1, 2007:
 3        (a) a violent offense as defined in Section 16-1-60
 4   committed as a part of criminal gang activity;
 5        (b) financial transaction card crimes as defined in Chapter
 6   14 of Title 16 committed as a part of criminal gang activity;
 7        (c) first degree lynching as defined in Section 16-3-210
 8   committed as a part of criminal gang activity;
 9        (d) second degree lynching as defined in Section 16-3-220
10   committed as a part of criminal gang activity;
11        (e) breaking into a motor vehicle as defined in Section
12   16-13-160 committed as a part of criminal gang activity;
13        (f) grand larceny as defined in Section 16-13-30 committed
14   as a part of criminal gang activity;
15        (g) blackmail as defined in Section 16-17-640 committed as
16   a part of criminal gang activity;
17        (h) malicious injury to property as defined in Sections
18   16-11-510, 16-11-520, 16-11-530, and 16-11-535 committed as a
19   part of criminal gang activity;
20        (i) drug offense as defined in Sections 44-53-370 and
21   44-53-375 committed as a part of criminal gang activity;
22        (j) harassment, stalking, or aggravated stalking as defined in
23   Article 17, Chapter 3 of Title 16 committed as a part of criminal
24   gang activity;
25        (k) pointing a firearm at any person as defined in Section
26   16-23-410 committed as a part of criminal gang activity;
27        (l) discharging a firearm at or into dwellings, structures,
28   enclosures, vehicles, or equipment as defined in Section 16-23-440
29   committed as a part of criminal gang activity;
30        (m) the common law offense of assault and battery of a high
31   and aggravated nature committed as a part of criminal gang
32   activity; or
33        (n) the common law offense of obstruction of justice
34   committed as a part of criminal gang activity.
35      (5) „Gang-related incident‟ means an incident that, upon
36   investigation, meets any of the following conditions:
37        (a) the participants are identified as criminal gang members
38   acting collectively to further a criminal purpose of the criminal
39   gang;
40        (b) a reliable informant identifies an incident as criminal
41   gang activity based upon first-hand knowledge or personal
42   observation; or


     [78]                            11
 1        (c) an informant of previously untested reliability identifies
 2   an incident as criminal gang activity, and it is corroborated by
 3   independent information.
 4
 5      Section 16-8-240. (A) It is unlawful for a criminal gang
 6   member to use or threaten to use physical violence against another
 7   person with the intent to coerce, induce, or solicit that person or
 8   another person to actively participate in criminal gang activity, or
 9   to prevent another criminal gang member from withdrawing from
10   or leaving a criminal gang. A criminal gang member who violates
11   the provisions of this subsection is guilty of a misdemeanor and,
12   upon conviction for a first offense, must be fined not more than
13   one thousand dollars or imprisoned not more than two years, or
14   both. A criminal gang member convicted for a second or
15   subsequent offense pursuant to this subsection is guilty of a felony
16   and, upon conviction, must be fined not more than five thousand
17   dollars or imprisoned for not more than five years, or both.
18      (B) A criminal gang member who uses a firearm, any other
19   deadly weapon, or physical violence to coerce, induce, or solicit
20   another person to actively participate in a criminal gang, or to
21   prevent another criminal gang member from withdrawing or
22   leaving a criminal gang, in addition to the punishment prescribed
23   in subsection (A), may be punished by an additional fine of not
24   more than ten thousand dollars or by imprisonment for an
25   additional period of not more than ten years, or both.
26      (C) If the person solicited, recruited, coerced, or threatened in
27   violation of this section is under the age of eighteen, an additional
28   term of three years may be imposed in addition and consecutive to
29   the penalty prescribed for a violation of this section.
30      (D) A person who has been coerced, intimidated, threatened, or
31   injured in violation of this section has a civil cause of action
32   against a criminal gang or criminal gang member violating this
33   section for treble the amount of the actual damages, for punitive
34   damages, an injunction, and any other appropriate relief in law or
35   equity. Upon prevailing in the civil action, the plaintiff may
36   recover reasonable attorney‟s fees and costs from the criminal
37   gang or criminal gang member.
38      (E) Nothing in this section limits prosecution under any other
39   provision of law.
40
41    Section 16-8-250. (A) It is unlawful for a criminal gang
42   member by threat or force to:


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 1        (1) prevent a witness or victim from attending or giving
 2   testimony at a trial, proceeding, or inquiry authorized by law that
 3   concerns or relates to any criminal activity; or
 4        (2) attempt to prevent a witness or victim from attending or
 5   giving testimony at a trial, proceeding, or inquiry authorized by
 6   law that concerns or relates to any criminal activity.
 7      (B) A criminal gang member who violates a provision of this
 8   section is guilty of a felony and, upon conviction, must be
 9   punished by a fine of not more than ten thousand dollars or
10   imprisoned for not more than ten years, or both.
11      (C) A person who has been coerced, intimidated, threatened, or
12   injured in violation of this section has a civil cause of action
13   against a criminal gang or criminal gang member violating this
14   section for treble the amount of his actual damages, for punitive
15   damages, an injunction, and any other appropriate relief in law or
16   equity. Upon prevailing in the civil action, the plaintiff may
17   recover reasonable attorney‟s fees and costs from the criminal
18   gang or criminal gang member.
19      (D) Nothing in this section limits prosecution under any other
20   provision of law.
21
22      Section 16-8-260. (A) Any private building or place used by
23   members of a criminal gang to:
24         (1) engage in a pattern of criminal gang activity;
25         (2) commit a criminal act; or
26         (3) benefit, promote, or further the interests of a criminal
27   gang, is a nuisance and may be the subject of an injunction or
28   cause of action for damages or for abatement of a nuisance as
29   provided for in Chapter 43, Title 15 and in this article.
30      (B) A person may file a petition for injunctive relief with the
31   appropriate court seeking eviction from or closure of any premises
32   used for commission of a pattern of criminal gang activity by a
33   criminal gang. Upon proof by the plaintiff that the premises are
34   being used by members of a criminal gang for any of the acts
35   enumerated in subsection (A), the court may order the owner of
36   record or the lessee of the premises to remove or evict criminal
37   gang members from the premises. To abate the nuisance, the court
38   also may order the premises sealed and prohibit the premises from
39   being used for any of the acts enumerated in subsection (A).
40      (C) An action for injunction, damages, abatement, or other
41   relief filed pursuant to this section must proceed according to this
42   article and the provisions of Chapter 43, Title 15 relating to the
43   abatement of nuisances.

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 1      (D) The court shall not issue an injunction or assess a civil
 2   penalty against any owner of record or the lessee of a private
 3   building or place, unless that person knew or should have known
 4   or had been notified of the use of the premises as a pattern of
 5   criminal gang activity. Any injunctive relief other than that
 6   specifically authorized in subsection (F) must be limited to that
 7   which is necessary to protect the health and safety of the residents
 8   or the public or that which is necessary to prevent further criminal
 9   activity. In addition to any other damages or injunction awarded,
10   the court may assess a civil penalty not to exceed five thousand
11   dollars against any or all of the defendants, as provided in
12   subsection (F)(4).
13      (E) A petition for injunction must not be filed until thirty days
14   after notice of the unlawful use or criminal conduct has been
15   provided to the owner of record or the lessee by mail, return
16   receipt requested, postage prepaid, to the last known address, or by
17   personal service. If the premises are abandoned or closed, or if the
18   whereabouts of the owner of record or lessee is unknown, all
19   notices, process, pleadings, and orders required to be delivered or
20   served under this section may be posted on a door of the premises,
21   and this has the same effect as personal service on the owner of
22   record or lessee. Injunctive relief authorized by subsection (F)
23   may not be issued in the form of a temporary restraining order.
24      (F) If the court previously has issued injunctive relief ordering
25   the owner of record or the lessee of the premises to close the
26   premises or otherwise to keep the premises from being used for the
27   commission of a pattern of criminal gang activity, the court, upon
28   proof of failure to comply with the terms of the injunction and that
29   the premises continue to be used for the commission of a pattern of
30   criminal gang activity, may:
31        (1) order the premises demolished and cleared at the cost of
32   the owner;
33        (2) order the premises sold at public auction and the
34   proceeds from the sale, minus the costs of the sale and the
35   expenses of bringing the action, delivered to the owner;
36        (3) order the defendant to pay damages to persons or local
37   governing authorities who have been damaged or injured or have
38   incurred expense as a result of the defendant‟s failure to take
39   reasonable steps or precautions to comply with the terms of an
40   injunction issued pursuant to the provisions of this article;
41        (4) assess a civil penalty not to exceed five thousand dollars
42   against the defendant based upon the severity of the nuisance and


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 1   its duration. In establishing the amount of any civil penalty, the
 2   court must consider:
 3           (a) actions taken by the defendant to mitigate or correct
 4   the problem at the private building or place or the reasons why no
 5   such action was taken;
 6           (b) the failure of the plaintiff to provide notice as required
 7   by subsection (E); or
 8           (c) any other factor considered by the court to be relevant;
 9         (5) impose any combination of the penalties contained in
10   this subsection.
11      (G) A government entity or a nonprofit or charitable
12   organization which is conducting its affairs with ordinary care or
13   skill must not be enjoined pursuant to the provisions of this article.
14      (H) Nothing in this article prohibits an aggrieved person from
15   seeking another remedy provided by law.
16
17      Section 16-8-270. (A) A civil cause of action is created in
18   favor of the State of South Carolina, a county, municipality, or
19   another political subdivision, or an agency or instrumentality of
20   them, that sustains any damage, impairment, or injury proximately
21   caused by a pattern of criminal gang activity as defined in this
22   article, or the commission of a criminal act for the purpose of
23   benefiting, promoting, or furthering the interests of a criminal
24   gang. The cause of action created by this section may be brought
25   against a criminal gang, a criminal gang member, or any other
26   person who intentionally directs, participates, conducts, furthers, or
27   assists in the commission of a pattern of criminal gang activity, or
28   any other person who commits a criminal act or delinquency for
29   the purpose of benefiting, promoting, or furthering the interests of
30   a criminal gang.
31      (B) Except as provided in this section, an action for injunction,
32   damages, or other relief filed pursuant to this section must proceed
33   according to the common law, statutory provisions relating to civil
34   remedies and procedures, and the rules of civil procedure
35   established for the circuit court.
36      (C) For purposes of venue, an action under this section for the
37   recovery of damages may be brought in the county where the
38   wrongful conduct occurred, or in the county where the damages
39   were sustained. An action to enjoin the commission of an offense
40   or an unlawful act may be brought in the county where the
41   wrongful conduct occurred or may occur. For purposes of service
42   of process, service of process upon a member of a criminal gang or
43   a person representing a criminal gang member by appointment of

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 1   court, operation of law, or mandate constitutes adequate service
 2   upon a criminal gang.
 3
 4      Section 16-8-280. In all civil actions brought under the
 5   provisions of this article, the identity of an informant, identifying
 6   information relating to an informant, and all matters exempt from
 7   disclosure under Chapter 4, Title 30, the Freedom of Information
 8   Act, are exempt from discovery or disclosure under the rules of
 9   civil procedure.
10
11      Section 16-8-290. (A) Any firearm, ammunition to be used in
12   a firearm, or dangerous weapon in the possession of a member of a
13   criminal gang may be seized by a law enforcement officer or
14   agency when the law enforcement officer or agency reasonably
15   believes that the firearm, ammunition to be used in a firearm, or
16   dangerous weapon is or will be used in a pattern of criminal gang
17   activity or in the commission of a criminal act for the purpose of
18   benefiting, promoting, or furthering the interests of a criminal
19   gang.
20      (B) The solicitor or another prosecuting attorney shall initiate,
21   in a civil action, forfeiture proceedings by petition in a court of
22   competent jurisdiction regarding any property seized pursuant to
23   the provisions of this section within ninety days of seizure. The
24   solicitor or another prosecuting attorney must provide notice of the
25   filing of the petition to those criminal gang members who become
26   known to law enforcement officials as a result of the seizure and
27   any related arrests, and to any person learned by law enforcement
28   officials to be the owner of any of the property involved. After
29   initial notice of the filing of the petition, the court must ensure that
30   all persons so notified continue to receive notice of all subsequent
31   proceedings related to the property.
32      (C) A person who claims an interest in any seized property, in
33   order to assert a claim that the property should not be forfeited,
34   must file a notice with the court, without the necessity of paying
35   costs, of the intent to establish either of the following:
36         (1) that the person asserting the claim did not know and
37   could not have known of the property‟s use in the commission of a
38   pattern of criminal gang activity; or
39         (2) that the law enforcement officer lacked the requisite
40   reasonable belief that the property was or would be used in the
41   commission of a pattern of criminal gang activity.
42      (D) In any hearings held and determinations made, pursuant to
43   this section, the court may receive and consider, in making a

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 1   determination of reasonable cause, all evidence admissible in
 2   determining reasonable or probable cause at a preliminary hearing
 3   together with inferences arising from the evidence presented.
 4      (E) An acquittal or dismissal in a criminal proceeding must not
 5   preclude civil proceedings under this section. However, for good
 6   cause shown, on motion by the solicitor or another prosecuting
 7   attorney, the court may stay civil forfeiture proceedings during the
 8   criminal trial for a related criminal indictment or information
 9   alleging a violation of this section. A stay is not available pending
10   an appeal.
11      (F) Except as otherwise provided by this section, all
12   proceedings under this section are governed according to the
13   common law, by statutory provisions relating to civil remedies and
14   procedures, and the rules of civil procedure established for the
15   circuit court. Additionally, any action under the provisions of this
16   section may be consolidated with any other action or proceeding
17   pursuant to this section relating to the same property on motion of
18   the solicitor or prosecuting attorney.
19      (G) The forfeiture provided for in this section must be decided
20   by the court. The hearing on the claim must be held within sixty
21   days after service of the petition, unless continued for good cause.
22   The solicitor or prosecuting attorney has the initial burden of
23   establishing probable cause for forfeiture of the property. If the
24   state or governmental entity bringing the action establishes
25   probable cause, the claimant has the burden of showing by a
26   preponderance of the evidence that the claimant‟s interest in the
27   property is not subject to forfeiture.
28      (H) A person who asserts a successful claim in accordance with
29   subsection (C) must be awarded the seized property by the court.
30   All property to which no claim is filed, or to which no successful
31   claim is made may be destroyed, sold at a public or private sale,
32   retained for use by the seizing agency, or transferred without
33   charge to any law enforcement agency of the State for use by the
34   agency.
35
36      Section 16-8-300. When a criminal gang member is released
37   from the custody of a jail, prison, or corrections facility, and the
38   criminal gang member was in the custody of the jail, prison, or
39   corrections facility for a violation of the provisions of this article,
40   the jail, prison, or corrections facility must transmit notice of the
41   release of the criminal gang member to the sheriff of the county in
42   which the crime was committed. Notice also must be given to a
43   sheriff that the criminal gang member is being released and has

     [78]                              17
 1   provided an address within the jurisdiction of that sheriff for the
 2   county in which the criminal gang member intends to reside. If the
 3   crime was committed in a municipality, or if the criminal gang
 4   member will reside in a municipality upon release, that law
 5   enforcement agency must transmit the same notice to the chiefs of
 6   police of those municipalities.
 7
 8     Section 16-8-310. This article does not apply to employees
 9   lawfully engaged in collective bargaining activities for their
10   mutual aid and protection or the lawful activities of labor
11   organizations or their members or agents.
12
13     Section 16-8-320. Nothing in this article prohibits the
14   governing body of a county, a municipality, or another political
15   subdivision of the State from adopting and enforcing ordinances
16   consistent with this article relating to criminal gangs, criminal
17   gang members, and gang violence. When local ordinances
18   duplicate or supplement this article, this article provides alternative
19   remedies.
20
21      Section 16-8-330. The State Law Enforcement Division must
22   include the Violent Gang and Terrorist Organization File of the
23   Federal Bureau of Investigation‟s National Crime Information
24   Center among those National Crime Information Center data
25   available for direct access by authorized criminal justice agencies.
26   State, county, and municipal law enforcement agencies must
27   maintain a record of all persons who are found to be criminal gang
28   members in the Violent Gang and Terrorist Organization File in
29   accordance with the National Crime Information Center entry
30   criteria.   All gang-related incidents must be appropriately
31   annotated in the South Carolina Incident Based Reporting System
32   pursuant to the intent and purpose of this article.”
33
34   SECTION 5. If any section, subsection, paragraph, subparagraph,
35   sentence, clause, phrase, or word of this act is for any reason held
36   to be unconstitutional or invalid, the holding shall not affect the
37   constitutionality or validity of the remaining portions of this act,
38   the General Assembly hereby declaring that it would have passed
39   this act, and each and every section, subsection, paragraph,
40   subparagraph, sentence, clause, phrase, and word thereof,
41   irrespective of the fact that any one or more other sections,
42   subsections, paragraphs, subparagraphs, sentences, clauses,


     [78]                              18
 1   phrases, or words hereof may be declared to be unconstitutional,
 2   invalid, or otherwise ineffective.
 3
 4   SECTION 6. The repeal or amendment by this act of any law,
 5   whether temporary or permanent or civil or criminal, does not
 6   affect pending actions, rights, duties, or liabilities founded thereon,
 7   or alter, discharge, release or extinguish any penalty, forfeiture, or
 8   liability incurred under the repealed or amended law, unless the
 9   repealed or amended provision shall so expressly provide. After
10   the effective date of this act, all laws repealed or amended by this
11   act must be taken and treated as remaining in full force and effect
12   for the purpose of sustaining any pending or vested right, civil
13   action, special proceeding, criminal prosecution, or appeal existing
14   as of the effective date of this act, and for the enforcement of
15   rights, duties, penalties, forfeitures, and liabilities as they stood
16   under the repealed or amended laws.
17
18   SECTION 7. This act takes effect upon approval by the Governor.
19                            ----XX----
20




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