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Thursday, January 16, 2020

Inclusion in Texas Gang Membership Database Limits Gun Rights, Might Violate Due Process

By Eugene Volokh - January 16, 2020 at 08:03AM

From Apodaca-Fisk v. Allen, decided Monday by Judge Dadvid C. Guaderrama (W.D. Tex.):

The following facts derive from Plaintiff's [Complaint] and, in this posture, are taken as true.

Plaintiff is a former Army Command Sergeant Major who has served our country in eight combat deployments and has been recognized with numerous combat and service awards, including: the Legion of Merit, two awards of the Purple Heart, and five awards of the Bronze Star for Valor. Plaintiff is now retired and living in Las Cruces, New Mexico with his wife, a schoolteacher with whom he had his four children: a schoolteacher, two college students, and a PhD candidate at an Ivy League university.

Although retired, Plaintiff continues to actively serve his community in a variety of ways, including: serving as the Senior Board Advisor for Mesilla Valley Community of Hope helping the homeless, serving as Co-Chair of Willie's Heroes Community Foundation for Wounded Warriors, serving as a member of the Las Cruces Mayor's Veteran Advisory Board, serving as Vice President of the Dona Ana County Humane Society, and as a board member of the Order of Purple Heart and National Association of Amputees. Plaintiff has also been recognized for his involvement in the community: he was awarded the Red Cross Regional Hero Award in 2016 for his work in raising more than $500,000 for Las Cruces veterans with various organizations.

Plaintiff is also an active member of a motorcycle club named the "Squad Veteran Riders Motorcycle Club," in which he currently serves as President. The Squad Veteran Riders Motorcycle Club is a motorcycle club that is involved in community, charitable, and political activities.  All of its members are military veterans.  Plaintiff is also a board member of the National Council of Clubs and the Chair for the Southern New Mexico Council of Clubs….

Plaintiff alleges that Defendants improperly included him into Texas's law enforcement statewide gang database ("TXGANG").

The TXGANG database is a statewide repository of records related to criminal street gangs and gang members. Texas Code of Criminal Procedure 67.054 sets forth the submission criteria that Texas law enforcement uses to determine who can be classified as a criminal street gang member in the database. Under article 67.054, law enforcement can designate an individual as a criminal street gang member if: (1) a court judgment exists in which the court found that the individual committed a crime as a member of a criminal street gang; (2) an admission in a judicial proceeding exists in which the person admits to being in a criminal street gang; or (3) law enforcement observe two of the following:

"I. a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

"II. an identification of the individual as a criminal street gang member by a reliable informant or other individual;

"III. a corroborated identification of the individual as a criminal street gang member by an informant or other individual of unknown reliability;

"IV. evidence that the individual frequents a documented area of a criminal street gang and associates with known criminal street gang members;

"V. evidence that the individual uses, in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed, that are associated with a criminal street gang that operates in an area frequented by the individual;

"VI. evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity; among other criteria.

"VII. evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

"VII. evidence of the individual's use of technology, including the Internet, to recruit new criminal street gang members."

{Article 67.054(c) states that "[e]vidence described by Subsections (b)(2)(C)(iv) and (vii) is not sufficient to create the eligibility of a person's information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (b)(2)(C)."}

Federal, state, and local law enforcement agencies have access to the database. Once an individual has been designated as a criminal street gang member, the Texas Department of Public Safety's ("DPS") computerized criminal history records will show that the individual is considered a gang member by law enforcement.

On information and belief, Plaintiff alleges that EPPD included him in the TXGANG database in 2017. On or about August 2017, Plaintiff attended another motorcyclist's funeral at a Catholic church in El Paso, Texas. Law enforcement heavily surveilled the funeral and took almost 4,000 photographs of the funeral's attendees and motorcycles, despite the fact that the Catholic church and cemetery are not documented areas of criminal street gang activity. After hearing in 2019 that other motorcyclists that attended the funeral had been included in the TXGANG database, Plaintiff contacted DPS and asked if his name was in it. DPS informed Plaintiff that his information was in fact in the TXGANG database and that the EPPD had input him into the database….

[T]he Court concludes that … Plaintiff … has properly [alleged an injury] in his "stigma-plus" claim under the Fourteenth Amendment's Due Process Clause….

"[D]amage to an individual's reputation as a result of defamatory statements made by a state actor, accompanied by an infringement of some other interest, is actionable under § 1983." … "… [A] section 1983 [plaintiff] [must] show a stigma plus an infringement of some other interest." …

Regarding the "stigma" prong of the "stigma-plus" test, drawing all inferences in favor of Plaintiff, the Court concludes that he satisfies it because he pleaded a plausible concrete, false factual representation or assertion by Defendants. Plaintiff pleaded that, despite the fact that he "is not now, nor has he ever been, a member of a criminal street gang," that he is actively serving his community, and that he has never been arrested or had any kind of encounters with Texas law enforcement, Defendants still inputted him into the TXGANG database and labeled him a gang member. "There is no question that being labeled a gang member harms one's reputation." Being labeled a gang member in a law enforcement database carries with it a stigma that is tied with "a host of unfortunate implications such as involvement in criminal conduct." Thus, accepting as true all material allegations of the Complaint, Plaintiff pleaded a concrete, false factual representation or assertion, by Defendants, of wrongdoing on his part….

For the "infringement" portion, Plaintiff pleaded that "[t]he stigma of being in the gang database … affects his Second Amendment right to carry a handgun in his vehicle[.]" Specifically, Plaintiff pleaded that his inclusion in the TXGANG database burdens his right to carry because—despite his valid license to carry—he now fears prosecution under the Texas Penal Code if he carries a firearm in his vehicle during his regular trips to El Paso for veteran services and his occasional flights from the airport. Further, Plaintiff pleaded that Defendants labeled him a "criminal street gang member" in the database and deprived him of his right to carry without due process because he was not afforded notice or opportunity to be heard "to challenge the inclusion before or after it was made." Construing the Complaint in favor of Plaintiff, the Court is of the view that Plaintiff has pleaded enough facts to establish that Defendants "sought to remove or significantly alter [his Second Amendment right to carry, as] recognized and protected by … one of the provisions of the Bill of Rights that has been 'incorporated.'" …

Texas law makes it categorically unlawful for "a member of a criminal street gang" to carry weapons in a vehicle, regardless of whether the gang member has a license to carry. The Texas Penal Code defines "criminal street gang" as "three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." While the Texas Penal Code does not define what is "a member of a criminal street gang," the Operating Policies and Procedures of the TXGANG database provide that a "criminal street gang member" is "an individual who has been identified as a member of a gang through documentation consisting of at least two of the ID criteria listed under [Article 67.054(b)(2)(C)]." … "DPS does not require that an individual must have been arrested for the crime being investigated or any other cri me, before an authorized user can properly submit information to TXGANG identifying:… the individual as a gang member[.]" … This "criminal street gang member" identification—or label—in the database lasts for a period of at least five years, after which, law enforcement can either remove or extend it depending on whether the inputted individuals were arrested or taken into custody within that time period. To that end, drawing all inferences in favor of Plaintiff, it appears to the Court that individuals who have met the two criteria in Article 67.054 and are inputted to the TXGANG database as "criminal street gang members" can be arrested for unlawfully carrying a weapon in a vehicle for a period of at least five years….

In view of the ensuing legal implications from the "criminal street gang member" label, Plaintiff's allegations satisfy the "infringement" prong because they establish that his inclusion in the TXGANG database carries with it "a change of legal status" where he cannot legally carry a firearm in his vehicle during his regular trips to Fort Bliss and the airport in El Paso, which he could otherwise legally do in the past….

[C]onstruing the Complaint in Plaintiff's favor, his "stigma-plus" claim [also] presents an actual controversy because his allegations of future injury sufficiently establish that there is a substantial risk that harm will occur. In particular, Plaintiff pleaded enough facts demonstrating that (1) he intends to exercise his Second Amendment right to carry a firearm in his vehicle for self-defense during his regularly trips to El Paso; and (2) he faces a credible threat of prosecution under § 46.02 (a-l)(2)(C) of the Texas Penal Code for doing so….

"We have only heard one side of the story. After discovery is complete, the district court may well correctly determine that none of [Plaintiff's] claims can survive summary judgment. But at the motion to dismiss stage, we are bound to accept his allegations as true. And on the facts alleged, [Plaintiff] has stated several constitutional claims."

 


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