There is a tremendous debate between the freedom of speech and assembly versus the police documenting such speech and assembly for criminal trial purposes. In California, the “Street Terrorism Enforcement and Prevention” (S.T.E.P.) Act enacted in 1988 increased punishments for individuals convicted of crimes involving gangs (Cal Penal, 1988, §186.22 et seq.). In modern times, gangs have utilized the power of social media to spread their message of power and control through music videos. Police regularly seize these videos through open source and search warrants and present them as evidence of gang involvement. Community activists often argue these seizures violate the individual’s freedom of speech and assembly. Prosecutors and gang investigators argue music videos involving suspected gang members can and should be used as gang evidence. Defense lawyers and gang activists raise racial and U.S. Constitutional arguments against it. This paper offers a policing solution to mitigate these arguments while affording those accused of gang crimes transparency and redress to social media music videos utilized as gang evidence.
Key Words: Gangs, Gang Members, Social Media, Music, Gangsta Rap, Evidence, Privacy, Surveillance, First Amendment, Fourth Amendment
Gangs are not a new phenomenon. In one of the earliest sociological studies on gangs, Frederic Milton Thrasher (1927) identified 1313 gangs and approximately 25,000 members in the area of Chicago during the 1920’s. He noted, “the feudal warfare of youthful gangs is carried on more or less continuously” (p. 6). As history has unfolded, Thrasher’s assessment of gangs has been accurate. Moving forward to 2021, almost 100 years since this seminal work in Chicago, gangs are prevalent throughout the United States of America. Gangs have waxed and waned in areas depending on many factors, but the sheer number of gangs and gang members has steadily increased with population and urban density (Pyrooz et al., 2015). As the US entered a period of “get tough on crime” and the implementation of other deterrence models, legislatures enacted penalty enhancements for gang participation and crimes committed on behalf of gangs (Cullen et al., 2017). Law enforcement began collecting evidence to prove individuals’ gang membership and render expert opinions to bolster gang evidence in criminal jury trials (Kubrin & Nielson, 2014). As technology has evolved, so has the sophistication of gang evidence. Gang photos collected at homes during searches gave way to gang photos being collected openly on social media accounts. The newest form of gang evidence is music videos uploaded to social media. These videos most often set to the “gangsta” rap genre, host individuals singing or dancing around with lyrics bragging about gang rivalries, gang crimes, and demonstrating gang behaviors (Pawelz et al., 2018). Officers routinely use these videos in trials, against defense objections based on constitutional and prejudicial grounds. This has created a debate as to whether music videos with potential gang members can and should be used in gang trials? By analyzing the evidentiary value of amateur music videos uploaded to social media that contain possible gang members, the foundations of the arguments for and against their usage, and by offering a solution that provides transparency and redress, law enforcement can and should use these videos in criminal trials for those arrested for gang related offenses.
What is a Gang?
Street gang membership encompasses all backgrounds to include race, ethnicity, and gender. Gangs extend from graffiti crews illegally marking territory to full blown prison gangs vying for control of correctional space for an underground economy (Mitchell et al., 2017). For the purpose of this analysis, the definition of a gang coincides with California’s Street Terrorism Enforcement and Prevention Act (S.T.E.P.):
As used in this chapter, “criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission [of specific criminal acts], 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 (Cal Penal, 1988, §186.22(f)).
Those specific criminal acts in the statute are crimes such as murder, robbery, drug sales, burglary, carrying of illegal guns, and auto theft (Cal Penal, 1988, §186.22(e)).
What Constitutes Gang Evidence?
There are many types of evidence that may be collected through street or field interviews such as: self-admission as a gang member, wearing gang clothing, frequenting a known gang area, being labeled a gang member by a reliable informant, collecting gang indicia, associating with other gang members, and noting gang tattoos (O’Deane & Murphy, 2010). Although this list appears exhaustive, it is not. Other evidence may be found in homes and other physical or digital storage areas such as journal writings, inter-gang communications, and photographic scrap books (Boots et al., 2018). Quality gang detectives look for any information that proves the nexus between an individual and the gang.
Since Thrasher’s time (1927), gangs have evolved in a natural technological pattern much like the rest of the world. After all, gang members are humans first. It is their association and criminality that allows law enforcement to investigate their behavior. As Pawelz and Elvers (2018) noted in their article titled, “The digital hood of urban violence: Exploring functionalities of social media and music among gangs,” “the online presence of gangs offers us a deeper understanding of their social structures and new insights into the everyday world of those who usually operate in the underground” (p. 443). Although gang members utilize social media for non-gang purposes e.g., dating, socialization, and commerce, gang members also utilize social media to expand their gang activities. As Pinkey and Robinson-Edwards (2018) noted in their research titled “Gangs, Music and the Mediatisation of crime: Expressions, Violations and Validations” “gangs [utilize] social media as a means to maintain virtual presence, to communicate about their activities, and to establish an identity” (p. 106). Social media messaging programs allow gangs to conduct deeper more elaborate business such as e-commerce services and targeting witnesses for intimidation (Pawelz et al., 2018).
Gang evidence now takes many new forms not envisioned by the original drafters of the S.T.E.P. Act (Cal Penal, 1988, §186.22 et seq.). Facebook, Instagram, YouTube, and other online platforms offer greater access to gang evidence. Using the earlier list of gang membership criteria, gang members self-admit their gang status in public online posts; gang members publicly post gang photos including gang hand signs and gang tattoos; gang members post videos of themselves openly associating in gang neighborhoods with other gang members (O’Deane & Murphy, 2010; Pinkey et al., 2018). All of this evidence is now admissible, upon authentication, in court. After all, “monitoring gang members’ social media accounts…to identify and track gang members, allow law enforcement to investigate gang-related [crimes] without violating the Fourth Amendment” (Behrman, 2015, p. 316). Any astute police officer with the internet and a social media profile can follow, identify, and learn about gangs without having to personally find them and contact them in a law enforcement setting.
One of the most powerful pieces of this new evidence, used to demonstrate gang membership, is the gang members’ presence in music videos glorifying the gang lifestyle. Most of these videos follow the “gangsta rap” musical genre. Individuals who are alleged gang members congregate together in a known gang neighborhood, flash seemingly real weapons, show their personal tattoos, and move around as if live music is playing. Multiple other individuals, possibly gang members, associates, or non-gang affiliates, sing or lip sync with the crowd. Not everyone in the video sings, most are simply present demonstrating the concept of strength in numbers associated with large gangs. Many of the individuals wear shirts with photographs and prints mourning recently killed young males, most likely killed in gang-related homicides. Many individuals in the videos show gang hand signs specific to that local gang. The amount of information in the video is vast and priceless to a gang prosecution (Kubrin & Nielson, 2014).
This specific type of evidence has created a largescale problem in criminal justice. There is a debate surrounding freedom of speech and assembly guaranteed by the First Amendment of the United States of America’s Constitution (U.S. Const. amend I). The difference between a gang admission and a lyric may be as simple as the music (or beat) accompanying the words. The difference between openly associating with known gang members or simply “acting a role” for a video may come down to the criminal records of those in the video. Hypothetically, if an individual admitted to shooting an individual a specific number of times to the police in a custodial interview, that is admissible in court. If that same person self-recorded a music video with the same admission, then defense counsel and experts would argue those words are fictional art and not an admission of guilt (Kubrin & Nielson, 2014).
For example, Gokavi (2018) wrote an article detailing this exact dilemma titled “Is Dayton’s “Diamond Cut” a Music Label or Street Gang? Here’s What Both Sides Say.” In Dayton, Ohio, between the years of 2007 to 2017, authorities investigated a group named “Diamond Cut” (Gokavi, 2018). “Diamond Cut” produced and sold “gangsta rap” music. The founder of “Diamond Cut,” Clarence Winn Jr., admitted having a criminal record, helped sell records (Gokavi, 2018). However, he claimed the name “Diamond Cut” was only for music. By using the definition provided by the California Penal Code (1988) above, “Diamond Cut” fit the definition of a criminal street gang as “Diamond Cut” had more than three documented members, a hand symbol using both hands placed together to form a diamond, and members had tattoos utilizing the name “Diamond Cut.” Most importantly, the group was arrested for a pattern of crimes including drug sales and possession of illegal guns. According to Gokavi (2018):
In a prosecution memo before [a Diamond Cut member’s] sentencing, assistant U.S. attorney Brent Tabacchi wrote the group had more convictions than hit records: ‘While [this member] characterizes this entity as a record label, many of its associates –whether classified as aspiring artists (in the defendant’s view) or members of criminal street gang (in the opinion of law enforcement) –have worn a path into the federal courthouse in Dayton on various drug trafficking charges (p. 2).
This real-life example demonstrates the dilemma law enforcement faces with new gang evidence.
The first element in this debate, to use or not use gangsta rap videos, exists within the confines of the 1st Amendment to the United States Constitution (1789). The 1st Amendment (1789) states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (U.S. Const. amend I). As Pawelz and colleagues (2018) stated,
Our research suggests that music, music videos, and social media fulfill a variety of psychological and social needs for gangs, which can be divided into four primary functions: (a) to glorify gang lifestyle, (b) to display power and send threats, (c) to motivate to carry out criminal activities, and (d) to facilitate social bonding and collective mourning (p. 454).
Based on this research, most of the language from displaying power to collective mourning is protected by the 1st Amendment. Overt threats that classify as terrorist threats would not fall under this protection. Nonetheless, it is the duty of the police to collect any evidence available to demonstrate a potential crime. Gang members have the solemn right to discuss drug sales and pose with illegal guns; police simply have the equal right to collect this from open-source forums and save it for later prosecution (Pawelz et al., 2018).
The theater for this debate does not remain within the confines of the U.S. Constitution. Many activists argue that the targeting of “gangsta rap” music is overtly racist. As Tibbs and Chauncey (2016) argued in their work, “From slavery to hip-hop: Punishing black speech and what’s “unconstitutional” about prosecuting young black men through art:”
There are significant constitutional concerns because the prosecutions infringe on free speech guarantees, and perhaps, equal protection ones as well, since hip-hop, a musical genre that is predominantly populated by young Black men, is the only genre of art targeted this way (p. 38).
By law enforcement collecting these videos as evidence, activists, community groups, and certain scholars argue the videos usage in court instills racist stereotypes that young Black and Brown men are inherently dangerous. Officers working patrol or detectives working gang assignments may use these stereotypes to develop confirmation biases when looking at any specific case. Tibbs and Chauncey (2016) argue:
The practice also constitutes a pernicious tactic that plays upon and perpetuates enduring stereotypes about the inherent criminality of young men of color; the lyrics must be true because what is written ‘fits’ with what we ‘know’ about criminals, where they come from, and what they look like (p. 201).
The most significant gap in the arguments against utilizing music videos as gang evidence regards the association of multiple gang members present in a single music video. Most activists and scholars attack the music or the lyrics as gang evidence, but few discuss the music videos where multiple, if not scores, of potential gang members demonstrate gang hand signs, gang tattoos, and congregate in a gang hotspot. If, in the above example of “Diamond Cut,” a video was produced where only one person was “singing” and the other individuals were congregating demonstrating gang tattoos and symbols, then the argument by activists of freedom of speech or assembly may not apply. Although the individuals have the 1st Amendment right to freedom of assembly, by openly displaying hand signs and tattoos, these individuals are either self-admitting or in the terms of the street, self “snitching” (Papp et al., 2019). No one forced these individuals to get tattoos, associate with identified gang members, or congregate in a gang area.
What is The Solution
Police have collected and retained gang evidence for many years. Since the S.T.E.P. Act of 1988 was introduced, courts relied on gang “experts” to analyze gang evidence and render an opinion as to whether or not a person was a gang member and if the alleged crime was gang related (Kubrin & Nielson, 2014). The modernization of gang evidence from physical items to online content is fair game for court. If gang members willfully “air their laundry” to the public and thereby surrendering their Fourth Amendment rights to unlawful search and seizure, then police can rightfully and lawfully collect and use this evidence against offenders (U.S. Const. amend IV). Gangsta rap videos are no different. If individuals record themselves associating with documented gang members in any manner, this should be collected and displayed for a jury if a person in one of those videos is accused of a crime. However, downloading a video from the internet and openly displaying such in a criminal trial should come with some parameters. Police need to be responsible to not only find this evidence but, document those involved, notify them the evidence may be used in the future, allow those involved to explain or contest participation, provide those identified with a copy of the video that will be used in the future with an admonishment of the consequences.
In 2017, California Assembly Bill (AB) 90 revamped law enforcement’s ability to unilaterally house gang documentation without notification. Law enforcement must allow those documented a redress to such an allegation and a forum to challenge this designation. Although many in law enforcement view this as a problem, this is actually the solution to the musical fiction versus gang reality argument (Cal. 2017, A.B. 90). In order to properly document these videos and use them in gang trials, law enforcement should travel “upstream” to the events surrounding production of the video. Once a gang or artist releases a video on social media, law enforcement should take the following steps to collect it and save it as evidence, not simply as intelligence.
The first step is to identify all evidentiary aspects of the video. Once a video has been located on social media, it should be sent to multiple stakeholders in law enforcement such as detectives, patrol officers, adult and juvenile probation departments, as well as any gang intervention team. Once the video has been disseminated, it should be analyzed to identify all individuals present in the video. There may be more than twenty individuals congregating in one video. This is a cost-effective means of identifying potential gang members in a community without expending patrol and gang tactical unit resources (Petering, 2015). Many will be adults and many may be juveniles. This is the opportunity for law enforcement to work alongside interventionists and social workers. By identifying juvenile participants in these videos, law enforcement can attempt earlier intervention methods rather than simply waiting for the juvenile to commit a crime and become delinquent. Parents may not know their child is associating with gangs and early intervention may provide them the information necessary for change (Boxer et al., 2015).
The next step is to notify each individual via personal service, mail or social media messaging that they were identified in a video involving possible gangs or gang members. This serves as part of a two-fold strategy. If the individuals are actually gang members, this notices the individual that law enforcement is active in seeking evidence against the gang. This may simply drive some gang members below ground and less flamboyant. However, it may also serve as a deterrent (Cullen & Jonson, 2017). In the notification letter, law enforcement can clearly write what the gang enhancement means and the number of extra years an individual may receive for participation in a gang-related crime. Although it is not a guarantee to prevent gang-related crimes in the future, the notification begins the upstream documentation that allows law enforcement to testify in trial that this person was identified and noticed as to the punishments for gang criminal behavior (Kubrin & Nielson, 2014).
The third step is the most valuable step, redress. Once gang members or associates are identified and notified, gang detectives should seek an interview with the individual offering an opportunity to challenge the gang “label” (Cullen & Jonson, 2017). True gang members will not wish to speak to the police about their association because such an action would violate the code of the streets. The notion a gang member is a “snitch” or a “rat” strikes fears into most gang members. The outcome for snitching is typically violence and ostracism (Papp et al., 2019). Police, however, have a duty to allow people to explain their participation. By taking a recorded statement where the person either lies about the participation, minimizes participation, or acknowledges participation. That statement can be introduced at future court proceedings. The jury can watch the video, see the notification law enforcement attempted, and listen to the words/view the actions of the actual person (Caudill et al., 2017).
The final step is to provide the person a certified law enforcement copy of the video. Once the individual has agreed to meet with law enforcement and provide a statement, he or she should leave with a tangible reminder of the event. This serves as the final deterrent (Cullen & Jonson, 2017). The CD/DVD collection of the video will have a clear label spelling out the gang enhancement, the code sections, and numbers for self-help, such as gang intervention counselors. Once the videos enter the mainstream population, gang members will know police are serious about collecting gang evidence and serious about prosecuting gang members for gang-related offenses. This solution can work for any genre of music where individuals discuss gangs and/or racial hatred. This solution overcomes the arguments of free speech and racial bigotry. Any individual at any time could receive notice for their actions, receive information as to the consequences, be allowed to challenge the law enforcement narrative, and possess the evidence with rehabilitation resources (Reid & Valasik, 2018).
Gangs have existed for much longer than history reports. The most notable work in the United States began in Chicago in 1927 (Thrasher, 1927). This work, throughout the years, has provided valuable resources to understanding the causes and reasons for gangs. However, during the incapacitation and “get tough” on crime periods of the 1980’s and 1990’s, legislatures passed gang enhancement laws to deter gang criminal behavior (Cullen et al., 2017). Those investigating gangs began collecting evidence to prove such gang allegations (Kubrin & Nielson, 2014). As technology evolved to allow low-cost self-produced videos to be uploaded to social media, gangs found a new medium to spread their identity, members, message, and crimes to the community. Detectives and prosecutors also found a new source of gang evidence (Pawelz et al., 2018). Defense lawyers and community activists argued these videos, most in the gangsta rap genre, were mere fiction such as early folk music meant to describe fictional life events and not meant as a self-admission to gang participation. Many activists also argued the use of these videos disproportionately attack the Black and Brown communities (Tibbs & Chauncey, 2016). With any new technology or new evidence, parameters must be established in order to provide transparency as well as redress. The solution to this debate may be found by paralleling similar laws passed in California. California Assembly Bill 90 established guidelines for gang databases such as notification, redress, and data controls. As music videos with possible gang evidence are published online, gang detectives and other stakeholders, should identify all evidentiary value, notify each individual as to the potential consequences, allow those individuals a voice to address the allegation, and finally provide those people a copy of the evidence with resources for self-help (Cal. 2017, A.B. 90). Should these people commit gang related crimes after this law enforcement process/action, then the video and process surrounding its collection should be admitted as evidence against that person.
Assembly Bill (A.B.) No. 90 – Criminal Gangs. Weber. Reg Sess. 2017. (Ca. 2017) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB90
Behrman, M. (2015). When gangs go viral: Using social media and surveillance cameras to enhance gang databases. Harvard Journal of Law & Technology, 29(1), 315. http://jolt.law.harvard.edu/articles/pdf/v29/29HarvJLTech315.pdf
Boots, D. P., Wareham, J., Stevens-Martin, K., & Barbieri, N. (2018). A preliminary evaluation of the supervision with immediate enforcement probation program for adult Gang–Affiliated offenders in Texas. Criminal Justice and Behavior, 45(7), 1047-1070. https://doi.org/10.1177/0093854818774386
Boxer, P., Kubik, J., Ostermann, M., & Veysey, B. (2015). Gang involvement moderates the effectiveness of evidence-based intervention for justice-involved youth. Children and Youth Services Review, 52, 26-33. https://doi.org/10.1016/j.childyouth.2015.02.012
Caudill, J. W., Trulson, C. R., Marquart, J. W., & DeLisi, M. (2017). On gang affiliation, gang databases, and prosecutorial outcomes. Crime & Delinquency, 63(2), 210-229. https://doi.org/10.1177/0011128714541203
Cullen, F. T., & Jonson, C. L. (2017). Correctional theory: Context and consequences (2nd ed.). Sage.
Gokavi, M. (2018). Is Dayton’s diamond cut a music label or street gang? Here’s what both sides say. Cox Newspapers, Inc. https://www.daytondailynews.com/news/crime–law/dayton-diamond-cut-music-label-street-gang-here-what-both-sides-say/v3Pb5jpEZuFCNkzYlyCAsI/
Kubrin, C. E., & Nielson, E. (2014). Rap on trial. Race and Justice, 4(3), 185-211. https://doi.org/10.1177/2153368714525411
Lane, J., Ramirez, F. A., & Pearce, K. E. (2018). Guilty by visible association: Socially mediated visibility in gang prosecutions. Journal of Computer-Mediated Communication, 23(6), 354-369. https://doi.org/10.1093/jcmc/zmy019
Mitchell, M. M., Fahmy, C., Pyrooz, D. C., & Decker, S. H. (2017). Criminal crews, codes, and contexts: Differences and similarities across the code of the street, convict code, street gangs, and prison gangs. Deviant Behavior, 38(10), 1197-1222. https://doi.org/10.1080/01639625.2016.1246028
O‘Deane, M., & Murphy, W. (23 Sept 2010). Identifying and Documenting Gang Members.
Police The Law Enforcement Magazine. https://www.policemag.com/340392/identifying-and-documenting-gang-members
Papp, J., Smith, B., Wareham, J., & Wu, Y. (2019). Fear of retaliation and citizen willingness to cooperate with police. Policing and Society, 29(6), 623-639. https://doi.org/10.1080/10439463.2017.1307368
Patton, D. U., Eschmann, R. D., Elsaesser, C., & Bocanegra, E. (2016). Sticks, stones and
Facebook accounts: What violence outreach workers know about social media and urban-based gang violence in Chicago. Computers in Human Behavior, 65, 591-600. https://doi.org/10.1016/j.chb.2016.05.052
Pawelz, J., & Elvers, P. (2018). The digital hood of urban violence: Exploring functionalities of social media and music among gangs. Journal of Contemporary Criminal Justice, 34(4), 442-459. https://doi.org/10.1177/1043986218787735
Petering, R. (2015). The Potential Costs of Police Databases: Exploring the Performance of
California’s Gang Database (CalGang). Journal of Forensic Social Work, 5(1-3), 67-81. http://doi.org/10.1080/1936928X.2015.1109399
Pinkney, C., & Robinson-Edwards, S. (2018). Gangs, music and the mediatisation of crime: Expressions, violations and validations. Safer Communities, 17(2), 103-118. https://doi.org/10.1108/SC-01-2017-0004
Pyrooz, D. C., & Sweeten, G., (2015). Gang membership between ages 5 and 17 years in the United States. Journal of Adolescent Health, 56(4), 414-419. http://doi.org/10.1016/j.jadohealth.2014.11.018
Reid, S. E., & Valasik, M. (2018). Ctrl+ALT-RIGHT: Reinterpreting our knowledge of white supremacy groups through the lens of street gangs. Journal of Youth Studies, 21(10), 1305-1325. http://doi.org/10.1080/13676261.2018.1467003
Thrasher, F. M. (1927). The gang: A Study of 1313 gangs in Chicago. University of Chicago Press.
Tibbs, D. F., & Chauncey, S. (2016). From slavery to hip-hop: Punishing black speech and what’s “unconstitutional” about prosecuting young black men through art. Washington University
Journal of Law & Policy, 52, 33. https://openscholarship.wustl.edu/law_journal_law_policy/vol52/iss1/9/
Street Terrorism Enforcement and Prevention Act (S.T.E.P). (1988). California. § 186.22 PC et seq.
U.S. Const. amend. I.
U.S. Const. amend. IV.
Areas: Criminal Justice
Categories: Criminal Justice