Sunday, April 25, 2021

Challenging guilt by (gang) association

How does your state or city define and track criminal street gangs, gang members, and gang associations? What role do those labels play in Terry stops, at trial, or at sentencing? A new lawsuit against the Wichita Police Department's gang list sheds light on how easy it is to land on the list and how hard it is to get off of it---and how unreliable such a listing is for any law-enforcement or truth-finding purpose.

The ACLU, Kansas Appleseed, and others have sued the City of Wichita, challenging the constitutionality of K.S.A. 21-6313 (state law defining "criminal street gangs") as well as Wichita's practices and policies under the law. The complaint alleges, among other things, that the Wichita Police Department's "practices and policies surrounding its Gang List disproportionately target and harm individuals and communities of color and violate the First, Fourth, and Fourteenth Amendments to the United States Constitution."

The next time an officer claims to have stopped your client because he is a "known gang member," demand the evidence to back up that claim, and demand the evidence underlying that evidence. You may find a whole lot of nothing and a decent challenge to reasonable suspicion (or relevance at trial, or a sentencing enhancement).

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