Trouble With Treble Damages for Third Parties: the Georgia Streetgang Terrorism and Prevention Act
| Publication year | 2021 |
Trouble with Treble Damages for Third Parties: The Georgia Streetgang Terrorism and Prevention Act
S. Meghan Pittman
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A. Criminal Gang Activity: Nationwide
Criminal gang activity creates an area of concern for both law enforcement officials and citizens regardless of the location in the United States. Officials tried numerous ways of combatting the steady increase in this activity, yet the threat of gang violence continues to persist. By the early 1990s, crime rates had continued on a steep upward climb.1 From 1985 to the 1990s, gang activity involving handgun-related homicides had more than doubled.2 As these statistics climbed, so did the fear and aguish of families residing close to areas of high-level activity.
Faced with this issue, states began to pass streetgang prevention acts. These acts varied from state-to-state. However, each act shared a common goal: to promote civil peace and deter acts of streetgang violence within neighborhoods.
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B. Criminal Gang Activity in Georgia: 1992
In 1992, the Georgia legislature decided to pass a variety of statutes to deter criminal gang activity. At this time, gang activity was not considered to be a crisis within the State of Georgia. However, the Georgia legislature decided to pass these laws in response to the increase of gang activity in other states. Ironically, law enforcement officials did not even consider gang violence to pose a serious threat in Georgia.3
Despite these preventive efforts, Georgia's criminal gang activity has increased throughout the years. A report performed by the Georgia Bureau of Investigation ("GBI") in 1995 showed an increase in this activity.4 The GBI's report showed that criminal gang activity was occurring throughout the state and not just in certain parts.5 Notably, gang members from several larger cities out of the state were coming to form gangs in Georgia.6
C. Criminal Gang Activity in Georgia: Present Day
Unfortunately, the proactive efforts of the Georgia legislature were not successful. Not only has gang activity increased in Georgia but also across the entire country.7 Today, almost half of all violent crimes committed are gang-related.8
The Office of the Attorney General for the State of Georgia released statistics estimating that the state now has over 71,000 gang members and over 1,500 gang networks.9 The Georgia Gang Investigators Association conducted a survey, which accounted for 157 counties, that
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displayed a rise in gang activity.10 This survey also reported 155 school districts with suspected gang activity.11
A. Legislative History of the Act
1. 1992
The Georgia Street Gang Terrorism and Prevention Act was first enacted in 1992. The Georgia General Assembly modeled the Act after a California statute.12 While the law was enacted to remedy gang violence, its effects were quite the opposite. Prosecutors and law enforcement officials both noted that the statute reduced penalties for gang violence and would likely be held unconstitutional.13 State prosecutors were also unsuccessful in prosecuting any defendants under this law.14
2. 1998
As a result, to remedy these concerns with the statute enacted in 1992, HB 1391 was introduced to the General Assembly on January 26, 1998.15 HB1391 was carefully drafted by a variety of organizations, including the GBI and American Civil Liberties Union ("ACLU") to ensure the bill would pass the exact statute which was intended.16 On March 27, 1998, Governor Zell Miller signed the bill into law.17
HB 1391 did a variety of things to improve the Georgia Street Gang and Terrorism Prevention Act. Section 2 of the Act expanded the scope of felony acts which could be prosecuted under the juvenile code.18 At the time, gang members had begun seeking out juvenile members to commit
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the more violent crimes because juveniles would receive less serious penalties in juvenile court.19
However, Section 2 remedied this by imposing more serious penalties on juveniles who committed violent gang acts. The Act granted prosecutors the discretion to use rehabilitative measures when appropriate rather than more serious penalties.
HB 1391 also worked to prevent witness intimidation.20 This was due to threats made on victims of gang activity who chose to cooperate with law enforcement agencies during a case.21 The Bill also expanded the scope of racketeering activity to include threats made in connection with such victims and witnesses.22
Finally, Section 8 of HB 1981 became the heart of what has become the present "Georgia Street Gang Terrorism and Prevention Act" by replacing the previous laws enacted in 1992.23 This section did a variety of things including remedying any issues of constitutionality and defining terms such as "criminal street gang" and "pattern of criminal gang activity." These new definitions shift the focus from being a member of a streetgang to participating in streetgang activity altogether.24
The General Assembly also decided that forfeiture of property would be an "effective means of punishing and deterring the criminal activities of criminal street gangs."25 Thus, law enforcement was gifted with a new weapon by broadening the scope of the Act.
Most importantly, Section 8 of HB 1391 created a civil cause of action to assist in deterring gang activity.26 Under this, a nuisance claim may be brought to close down premises used by gangs.27 However, this cause of action may only be brought "by the district attorney, solicitor-general, prosecuting attorney of a municipal court or city, or county attorney."28 Prior to this, only a district attorney could bring the claim of public nuisance.29 These expansion was modeled after a California law.30
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Furthermore, O.C.G.A. § 16-15-7(c) grants the right to a private cause of action for persons injured by gang activity. In doing so, a private person may recover treble damages as well as punitive damages.31 To succeed with this claim, the finder of fact must find that the cause of action serves the intent of the General Assembly.32 In addition, O.C.G.A. § 16-15-7(d) was drafted to provide another cause of action for injunctive relief for persons being harmed by gang activity.
3. 2010
Subsequently, O.C.G.A. § 16-15-7(d) was amended in 2010. This was the last amendment made to the Georgia Street Gang Terrorism and Prevention Act. Although it was minor, the amendment broadened the scope for persons seeking injunctive relief under O.C.G.A. § 16-15-7(d). Instead of allowing this cause of action for persons "aggrieved by a pattern of gang activity," the subsection now allows "any person aggrieved by a criminal street gang or criminal gang activity."33 Thus, the burden is lowered in what must be proven and allows more opportunities to establish how the plaintiff was aggrieved.34
B. The Scope of O.C.G.A § 16-15-7
The scope of this statute was intended to be broad in order to allow anyone injured by criminal gang activity to have a civil cause of action. The legislature allowed this scope to be broadened in hopes that it would assist in deterring the prevalence of gang activities near neighborhoods. Specifically, the legislature hoped that this could also prevent injuries to innocent third-parties due to gang violence by allowing such remarkable damages to be sought.
Additionally, the scope of the Act was also broadened when the Georgia General Assembly chose to eliminate the requirement that the state must establish a pattern of criminal gang activity. The scope was further expanded in 2006 when the General Assembly broadened the definition of "criminal gang activity" to include more crimes than the Act previously listed.35
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C. Operation of the Law
While O.C.G.A. § 16-15-7 was intended to prevent injuries from and violence deter its existence, the legislature enacted several procedural obstacles that must be conquered in commencing this type of action.36 The complaint must provide adequate particularity or a motion to dismissed must be granted.37
However, this motion to dismiss should rather be treated as a motion for a more definite statement of the facts and proceed forward on this basis.38 O.C.G.A. § 16-15-2 expresses the legislative intent behind the Georgia Streetgang Terrorism and Prevention Act:
The General Assembly finds and declares that it is the right of every person to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals . . . . It is the intent of the General Assembly in enacting this chapter to seek the eradication of criminal activity by criminal street gangs by focusing upon criminal gang activity and upon the organized nature of criminal street gangs which together are the chief source of terror created by criminal street gangs. . . . The General Assembly further finds that an effective means of punishing and deterring the criminal activities of criminal street gangs is through forfeiture of the profits, proceeds, and instrumentahties acquired, accumulated, or used by criminal street gangs.
The statute also requires that for a judgement to be awarded to the plaintiff, the finder of fact must determine that the cause of action is consistent with the intent of the General Assembly.39
While the legislature expressed its intent to deter gang violence, the statute also provides explicit language as to what the legislature does not intend to do with this Georgia Streetgang Terrorism and Prevention Act:
It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The General Assembly recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever, to associate lawfully...
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