“GUILTY!”… BY ASSOCIATION: A LOOK AT GEORGIA’S GANG STATUTE (O.C.G.A. 16-15-4)

Georgia law prohibits any person “employed by or associated with a criminal street gang to conduct or participate in criminal gang activity” through the commission of a number of listed offenses. O.C.G.A. 16-15-4 (a). The prosecutor must show three elements: (1) an association (formal or informal) with a street gang; (2) the commission of a predicate act of gang activity; and (3) the commission of the predicate act was in furtherance of the gang. Rodriguez v. State, 284 Ga. 803, 806 (2009).

In analyzing Georgia’s gang statute, first, there must be the commission of a prohibited act. What are the offenses that the law includes in its list of potential “gang activity”? O.C.G.A. 16-15-3 gives a wide list of criminal offenses that, when committed in association with others, instantly become “gang activity.” In fact, the list of prohibited offenses is so wide-ranging that “gang activity” includes literally any criminal conduct. The statute states “any activity” that is deemed to be a violation of the laws of the United States, the law of Georgia, or any other state can constitute gang activity when committed in conjunction with others. O.C.G.A. 16-15-3 (I).

Unfortunately, in Georgia, there is no requirement that a prosecutor have direct proof of one’s involvement in a gang; the prosecutor does not have prove that a person used a gang sign, wore gang paraphernalia, or scribbled gang symbols on a wall. “Gang activity” can be established by the simple association of three or more individuals, regardless of how informal or infrequent the individuals meet or gather, who engage in a prohibited act.

Recently, the Georgia Court of Appeals determined, however, that an association of individuals, coupled with a prohibited act is not enough to establish “gang activity.” In Zamudio v. State, (A14A1783, 04/13/2015). In short, it is the duty of the prosecutor to show a nexus, that is, the prohibited conduct was in furtherance of the goals of the alleged gang.

Simply being in a gang is insufficient. Being in a gang and committing a criminal offense is likewise insufficient. Georgia law requires the finding that the alleged association and the criminal conduct advance the gang’s interests. For example, in the prosecution of an aggravated assault, the vicious attack and beating of a victim for purposes of an attempt to silence the victim could be deemed to be an act in furtherance of the goal of a gang. It is critical that the prosecution show the required nexus in order to substantiate “gang activity.”