Is the Gang Database Unconstitutional? An analysis of the 1988 STEP Act against Fourth Amendment Rights

As the New York City Department of Investigation continues its three-year probe of the New York Police Department’s gang database, questions are being raised about the database’s constitutionality. [1] To determine the constitutionality of the database, we have to look at the decades-long practice of criminalizing gangs in the United States and what implications it has had for policing. In order to prosecute gangs, the term itself must firstly be defined. Yet the term “gang” in U.S. law remains full of ambiguity. As such, while the penalties for alleged gang members are harsh, the grounds on which gang affiliation is determined are unclear—as is demonstrated by an analysis of gang-prosecution laws across the country. 

In California, the first gang injunction laws, which defined gang membership and developed a set of codes to prosecute it, were established from 1982-3 in Los Angeles County. [2] Gang injunctions are civil court orders against alleged gangs that allow law enforcement to establish “safety zones” within which they can arrest and prosecute people for non-criminal activity. However, demographic analysis reveals that these injunctions are issued not in areas experiencing the highest levels of violence, but rather in majority-white areas or areas bordering white communities, suggesting they might not be entirely motivated by safety concerns. [3] By 1987, Los Angeles County made the first computerized database of alleged gang members called the Gang Reporting, Evaluation, and Tracking System (GREAT), consolidating the legacy of this legislation. [4]

Yet the term “gang” was only defined in California law in 1988, when, the Street Terrorism Enforcement and Prevention Act (STEP) was passed, becoming the first law in U.S. history to define a gang. [5] It defines a gang as “an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activity the commission of one or more crimes, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” [6] STEP does not require involvement or conviction in any crime for an individual to be labeled, surveilled, and prosecuted as a gang member. 

With this expansive definition, the STEP Act made gang policing an actionable practice, justified expanding use of funding to suppress gangs across the state, and laid a foundation for how other states could police their own communities’ gangs. [7] Furthermore, it made belonging to a gang a criminal offense, provided penalties for participating in a gang even if one is not a member, and required alleged gang members to register with local law enforcement. [8] Overall, through its broad criteria for gang membership, this law dramatically increased gang prosecution around the state and the country.

As gang policing took hold around the United States, it quickly became a staple of New York Police Department (NYPD) practices. The NYPD, which is the largest police department in the country, adopted the practices foregrounded by the STEP Act as it built New York City’s own gang database in the aftermath of stop-and-frisk laws, which had allowed police officers to detain, interrogate, and search New York citizens. [9] The practice of stop-and-frisk was ruled unconstitutional in Floyd v. City of New York (2013) by the U.S. District Court for the Southern District of New York. [10] The court majority found this policy to be noncompliant with the Fourth Amendment’s requirement of “reasonable suspicion” that a suspect has committed a crime before stopping a subject. [11] The application of stop-and-frisk did not meet the standard of “reasonable suspicion” and was deemed to have been used in a racially discriminatory manner. [12]

This infamous practice has received widespread condemnation since the ruling and has been looked back on as a bleak period of time in the NYPD’s history, during which their power and practices had gone unchecked. While the practice of stop-and-frisk is no longer in usage, its legacy has taken on a new form through digital surveillance and the maintenance of the NYPD’s Criminal Group Database, colloquially known as the gang database, building on the early 1980s precedents from Los Angeles County in California. 

The NYPD loosely defines a gang as “a group of persons with a formal or informal structure that includes designated leaders and members, that engage in or are suspected to engage in unlawful conduct.” [13] Similar to how the NYPD enforced stop-and-frisk, the criteria for who can be incriminated is vague, broad, and casts a wide dragnet over communities of color—particularly youth. One of the primary ways for youth to land on the database is through police monitoring of social media. Possible indicators that may be interpreted as signs of gang affiliation include what an individual wears, who they associate with, where they live, and what they say online in captions or in response to other people’s comments. [14] To see if one is on the gang database, an individual must submit a Freedom of Information Law (FOIL) request, because the NYPD does not automatically alert those who have been placed on the list. Furthermore, there is no process for challenging one’s inclusion on the database if the FOIL request indicates one has been placed on it. [15] The gang database may therefore be in violation of the due process clause of the Fourth Amendment that safeguards individuals against unreasonable search and seizure. 

As of February 2018, the total number of people on the database is 42,334. [16] More specifically, the most recently confirmed number of minors, some as young as thirteen, is 500, according to the June 27, 2019 testimony of NYPD Executive Director of Legislative Affairs Oleg Chernyavsky. [17] Not only is such rampant collection of online activity unjustified, but the database also disproportionately targets minorities: 99 percent of the NYPD’s database is composed of people of color. [18] 

Recent cases provide some guidance on whether there exists a constitutional basis for this secretive database. In Tanvir v. Tanzin (2013), the Supreme Court ruled unanimously that individuals can sue federal law enforcement officials for damages under the Religious Freedoms Restoration Act (RFRA). [19] The federal lawsuit was brought forward because the plaintiffs, four American Muslim men, were placed on the No-Fly List by the Federal Bureau of Investigation (FBI). They were placed on this list unexpectedly without any criminal records—and, without their knowledge; as a result, they were prevented from visiting their families overseas. One plaintiff wanted to visit his gravely ill 93-year-old grandmother, while another was separated from his wife and three daughters for about five years. 

When they attempted to challenge their placement, the plaintiffs were told they could fly again if they agreed to work as FBI informants. Yet, this suggested an inconsistency in the FBI’s logic: if their placement on the No-Fly List was because they were profiled as “dangerous,” why would the FBI risk employing them as informants? [20] Tanvir has implications for how individuals placed on gang databases might be able to challenge their inclusion. Gang databases are built off of the secret, potentially discriminatory surveillance of people and communities, which resembles the way in which the plaintiffs in Tanvir were unjustifiably placed on the list without their knowledge.

Yet, Elhady v. Kable (2019) provides further input that may prove the constitutionality of the gang database. In Elhady, the U.S. District Court for the Eastern District of Virginia case upheld the constiutionality of the Terrorist Screening Database (TSDB) maintained by the U.S. federal government. [21] The TSDB differs from the No-Fly list in that placement on it does not prohibit your ability to fly freely. However, twenty-three plaintiffs, all U.S. citizens, alleged that inclusion on the TSBD subjected them to delays, excessive searches, and detention in frigid rooms by Customs and Border Protection agents. In spite of this, the district court ruled that TSDB was constitutional because it fell under the executive branch’s “authority to regulate travel and control the border.” [22] In a similar fashion, the inclusion of an individual on the gang database’s can be considered constitutional in the name of public safety—the grounds under which the TSBD was upheld in court.

No case, on either the federal or state level, has directly addressed the issue of the government compiling alleged gang affiliations; however, courts have decided on other gang-related issues that may also implicate the gang database’s legal standing. The U.S. Supreme Court’s ruling in Chicago v. Morales (1999) highlights the shaky legal ground on which the gang database stands. The case concerned Chicago’s Gang Congregation Ordinance, which had prohibited “criminal street gangs” from loitering in public spaces and gave officers discretion on who they could reasonably believe was a gang member. [23] Such discretion involved individual officers  determining the criteria for the definition of a gang, whether an individual was in a gang, and whether to apprehend those who did not promptly obey a dispersal order. [24]  In 1993, Jesus Morales was arrested and found guilty under the ordinance after ignoring a dispersal order. When his case was ultimately brought to the U.S. Supreme Court, the ordinance was ruled unconstitutionally vague, as it delegated too much discretion to the police by leaving the definition of loitering entirely to the discretion of the officer. [25]

The indistinct qualifiers for the Morales case paired with the harsh ramifications for being labeled a gang member shed some light on the effects of being on a gang database. One of the greatest impacts of being on the database, aside from the blatant violation of privacy, is the possibility of being prosecuted with a Racketeering Influenced and Corrupt Organizations (RICO) charge. RICO, passed in 1970 to try mob-related crimes in a group rather than individually, is applicable to those included in the gang database. [26] RICO charges enable alleged gang members who may have mistakenly been placed on the gang database to be prosecuted with gang members—the sentences resulting from such charges, in turn, can be extended by decades. [27] In addition, one’s inclusion on the gang database is shared with prosecutors through police reports; as a result, police can use the information to prosecute individuals who might not even know that they are on the database. [28] Some individuals have been deported over their inclusion on the database, leading civil rights activists to suspect that police can share inclusion on the gang database with the U.S. Immigration and Customs Enforcement (ICE). [29]

The constitutionality of the gang database continues to be unclear because of the lack of directly salient legal precedents. While cases like Tanvir and Elhady concern whether the database protects public interest, cases such as Morales question the vagueness of gang policing itself. From the STEP Act to the NYPD’s gang database, it remains unclear what being in a “gang” actually means and what can distinguish gang members from non-gang members even when they are in the same environment. Ultimately, gang databases will likely stand unless transparency is demanded and the criteria for gang membership are narrowed—actions necessary to prevent rampant encroachments on privacy and unnecessarily harsh sentencing.

edited by Cole Tom

Sources:

[1] Eileen Grench, Department of Investigation Confirms Probe of NYPD Gang Database After Advocates Rally, The City (July 27, 2021), online at https://www.thecity.nyc/2021/7/27/22597212/department-of-investigation-probes-nypd-gang-database (visited Feb. 14, 2022).

[2] Youth Justice Coalition, Tracked and Trapped: Youth of Color, Gang Databases and Gang Injunctions, RealSearch Action Center, online at https://www.youth4justice.org/wp-content/uploads/2012/12/TrackedandTrapped.pdf (visited January 24, 2022). 

[3] Ana Muniz. “Maintaining Racial Boundaries: Criminalization, Neighborhood Context, and the Origins of Gang Injunctions.” Social Problems 61, no. 2 (2014): 216–36. https://doi.org/10.1525/sp.2014.12095.

[4] Anne Tiegen, The Controversy Over Gang Databases, National Conference of State Legislatures (Dec. 20, 2019), online at https://www.ncsl.org/blog/2018/12/20/the-controversy-over-gang-databases.aspx (visited Feb. 14, 2022).

[5] Youth Justice Coalition, Tracked and Trapped: Youth of Color, Gang Databases and Gang Injunctions, RealSearch Action Center, online at https://www.youth4justice.org/wp-content/uploads/2012/12/TrackedandTrapped.pdf (visited January 24, 2022). 

[6] Id. 

[7] Keegan Stephan, Conspiracy: Contemporary Gang Policing and Prosecutions, Cardozo Law Review, online at http://cardozolawreview.com/conspiracy-contemporary-gang-policing-and-prosecutions/ (visited February 15, 2022).

[8] Id. 

[9] Fola Akinnibi, NYC’s Violent Crime is Up; So Is the City’s Police Budget, Bloomberg CityLab + Equality (May 6, 2021), online at https://www.bloomberg.com/news/articles/2021-05-06/new-york-city-s-police-budget-is-increasing-again (visited January 24, 2022). 

[10] Floyd v. City of N.Y., 959 F. Supp. 2d 540 (S.D.N.Y. 2013). 

[11] Stop and frisk, Legal Information Institute, online at https://www.law.cornell.edu/wex/stop_and_frisk (visited January 23, 2021). 

[12] Joseph Goldstein, Judge Rejects New York’s Stop-and-Frisk Policy,online at https://www.nytimes.com/2013/08/13/nyregion/stop-and-frisk-practice-violated-rights-judge-rules.html (visited February 15, 2022).

[13] Alice Speri, “NYPD Gang Database Expanded by 70 Percent under Mayor Bill de Blasio,” The Intercept (June 11, 2018), online at https://theintercept.com/2018/06/11/new-york-gang-database-expanded-by-70-percent-under-mayor-bill-de-blasio/ (visited January 4, 2022). 

[14] James Blum, The NYPD’s Gang Database: A New Age of Stop and Frisk, Surveillance Technology Oversight Project (July 23, 2019), online at https://www.stopspying.org/latest-news/2019/7/23/the-nypds-gang-database-a-new-age-of-stop-and-frisk#_ftn14 (visited November 29, 2021).

[15] Jasmine Johnson, “Gang Databases: Race and the Constitutional Failures of Contemporary Gang Policing in New York City,” 94  St. John’s Law Review 1033, 1034 (2022) https://scholarship.law.stjohns.edu/lawreview/vol94/iss4/11/.

[16] Speri, NYPD Gang Database Expanded.

[17] Philip Eure, Groups Urge NYPD Inspector General to Audit the NYPD “Gang Database.” Human Rights Watch (September 22, 2020), online at https://www.hrw.org/node/376457/printable/print (visited December 29, 2021).

[18] Daryl Khan, New York City’s Gang Database Is 99% People of Color, Chief of Detective Testifies, Juvenile Justice Information Exchange (June 24, 2018), online at https://jjie.org/2018/06/14/new-york-citys-gang-database-is-99-people-of-color-chief-of-detectives-testifies/ (visited January 22, 2022). 

[19] Tanvir v. FNU Tanzin, 894 F.3d 449 (2d Cir. 2018)

[20] Id. 

[21] Elhady v. Kable, Casetext (2019), online at https://casetext.com/case/elhady-v-kable (visited January 24, 2022).

[22] Eric Halliday and Rachel Hanna, Case Summary: Fourth Circuit Upholds Terrorism Watchlist Database (June 17, 2021), online at https://www.lawfareblog.com/case-summary-fourth-circuit-upholds-terrorism-watchlist-database (visited February 15, 2022). 

[23] Chicago v. Morales, Oyez, online at https://www.oyez.org/cases/1998/97-1121 (visited November 29, 2021).

[24] Id.

[25] Chicago v. Morales, Cornell Legal Information Institute, online at https://www.law.cornell.edu/supct/html/97-1121.ZS.html#:~:text=Justice%20Breyer%20concluded%20that%20the,that%20he%20remain%20in%20the (visited February 15. 2022).

[26] Criminal Law Racketeer Influenced and Corrupt Organizations (RICO) Law, Justia, online at https://www.justia.com/criminal/docs/rico/ (visited November 29, 2021).

[27] Id. 

[28] Lauren M. Pittman, “Constructing a Compromise: The Current State of Gang Database Legislation and How to Effectuate Nationwide Reform,” 106 Iowa Law Review Rev. 1513 (2021).

[29] Lauren M. Pittman, “Constructing a Compromise: The Current State of Gang Database Legislation and How to Effectuate Nationwide Reform,” 106 Iowa Law Review Rev. 1513 (2021).