The Nebraska Supreme Court has helped strengthen law enforcement's hand in the fight against criminal gangs.
The court upheld a new state law against gang recruitment. It was passed by the Nebraska Legislature as part of a wide-ranging initiative designed to give authorities more tools for combating gang violence.
The Supreme Court ruled in the case of Steven Scott, 23, who was convicted in 2011 of second-degree assault and use of a deadly weapon for attacking a former roommate with a hammer. He also became the first person convicted under the anti-gang recruiting law.
The case centered on a gang started by Scott and three friends from Westside High School that they called “The Family.” It mostly engaged in small-scale drug dealing, although the intention was to expand into a more powerful criminal enterprise by recruiting more members. Scott's friend sold marijuana several times but refused to join the gang. Scott threatened the man and carried out that threat by striking him several times with a hammer when they met at a party in 2010.
In appealing his conviction, Scott challenged the gang recruitment law as a violation of his First Amendment rights of free speech and association.
This is sensitive legal ground. Saying what we like and associating with whom we please are fundamental liberties guaranteed by the Bill of Rights.
State legislators needed to tread carefully in crafting this law, making certain they continue to guard those individual rights while still providing law enforcement with an effective tool. The Supreme Court — whose job is to rigorously scrutinize the legal details in such matters — concluded that lawmakers struck a proper balance.
The law's provisions are not so broad as to make it invalid, the court's analysis said, and the law includes protections for defendants.
The law did not penalize Scott for belonging to a gang but for using coercion and threats to recruit others. The law does not criminalize every method a person might use to recruit or retain members. “Simply asking or peacefully encouraging a person to join a group would not constitute coercion, intimidation, threats, or the infliction of bodily harm” as the law requires for it to be a crime, the court said.
In addition, the court said, the law is limited to groups “whose members engage in criminal activity, which ... is at least part of the purpose of the association.” That narrow definition of a gang “is not so broad as to encompass constitutionally protected association.”
Beyond the anti-recruiting provisions, the law gave law enforcement officials and Nebraska communities a number of other resources, blending tougher penalties for gang-related crimes with prevention and intervention measures.
Passage of the 2009 law followed a difficult time in Omaha. The city saw 30 shootings in 30 days during June 2007, and police considered 11 of the city's 44 homicides in 2008 to be gang-related.
The recent shooting that killed 16-year-old Omaha South High student Montrell Wiseman and wounded another teen — innocent victims shot by alleged gang members while simply wearing Husker red — underscores the continuing need for these efforts.
The Legislature's response, affirmed by the Nebraska Supreme Court, appears to be a well-measured step toward combating gangs while protecting critical individual rights.