North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

The North Carolina Street Gang Nuisance Abatement Act: Unconstitutionally Criminalizing the Presence of Gang Members in North Carolina

May 3, 2016

94 N.C. L. Rev. Addendum 44 (2016)

 

We should never easily accept the sacrifice of our civil liberties for the sake of a "greater good." Indeed, Americans have traditionally held this to be true. An old adage reminds us that one must carefully consider giving up an "essential Liberty, to purchase a little temporary Safety." Nonetheless, state and local governments increasingly seek to curb gang violence in large cities through sweeping legislation that sacrifices individual freedoms. Is legislation that violates the constitutional rights of a few alleged gang members justified by promises to reduce violence and crime? This Recent Development argues that in the case of the North Carolina Gang Abatement Act, it is not. The government is not justified in egregiously violating the First Amendment rights of alleged gang members in an attempt to rid a city of gang activity by stripping gang members of their associational rights. Even the desirable goal of squelching gang activity does not justify violating gang members' individual rights. 

 

Although reports of gang activity have decreased since the mid- 1990s, gang activity remains ever present in America's biggest cities. Further, compared to its predecessors, this new generation of gangs has even more tools, like social media, at its disposal. The Internet enables gangs to recruit younger members at faster rates and provides gangs with a forum to instigate criminal activity online. By using technologies such as Facebook and Twitter to broadcast their messages and crimes, gangs become even more dangerous than in the past. 

 

Because the reality of gang violence has become increasingly prevalent in our society, Americans have become more willing to sacrifice civil liberties for the sake of safety. Increased knowledge of the threat gangs pose has changed society's mindset; indeed, as one antigang activist put it, "[w]hen you are at war, the rules of engagement are different." Though youth outreach programs are the most successful way to prevent gang recruitment, these programs require long-term commitments to make cognizable differences. In the meantime, law enforcement agencies around the country have created specialized gang units to suppress gang activity, the majority of which collect and maintain intelligence on gang activity.

 

To further such law enforcement efforts, the North Carolina General Assembly, with substantial support from the North Carolina Sheriff's Association, passed the North Carolina Street Gang Nuisance Abatement Act. The Act was designed to help law enforcement combat organized gang activity by providing a vehicle for municipalities to sue and enjoin gang members. The City of Charlotte and the Charlotte-Mecklenburg Police Department (the "Charlotte Police Department" or "CMPD") first used the Act to enjoin a gang known as the Hidden Valley Kings (the "HVK"), a once-notorious gang in northeast Charlotte. The injunction prevented alleged HVK members from associating with one another in public and private. It also prevented the gang members from possessing drugs and weapons and from intimidating or recruiting any person. On appeal, the North Carolina Court of Appeals upheld the injunction on a procedural basis without reaching the merits. Had the court analyzed the constitutionality of the Charlotte injunction, it should have found the injunction to be an unconstitutional violation of the defendants' First Amendment rights.

 

This Recent Development argues that the Charlotte injunction's wide geographic bounds and proscription of innocent associational activities likely violated the HVK's associational rights because the injunction was not sufficiently tailored to the government's interest in public safety.

 

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