Idaho high court upholds gang-recruiting law
A provision of Idaho’s Criminal Gang Enforcement Act that prohibits gang members from recruiting others does not violate freedom of association, the state high court has ruled.
The Idaho Legislature passed the law in response to concerns over growing gang activity in the state. A “recruiting provision” provides:
“A person commits the offense of recruiting criminal gang members by:
“(a) Knowingly soliciting, inviting, encouraging, or otherwise causing a person to actively participate in a criminal gang; or
“(b) Knowingly using force, threats, violence or intimidation directed at any person, or by the infliction of bodily injury upon any person, to actively participate in a criminal gang.”
In 2007, the state charged Simona Lisa Manzanares with violating the new gang law in part by allegedly recruiting Jackie Trinidad to join the East Side Locas — the female branch of the East Side Locos — in Canyon County, which includes Caldwell. The police contended that the gang engages in house burglaries and car-stealing.
Manzanares eventually entered into a conditional-plea agreement. She pleaded guilty to violating the anti-recruiting provision in exchange for the state’s dropping another charge under the gang law related to firearms. Under the conditional-plea agreement, Manzanares retained the right to challenge the recruiting provision on constitutional grounds.
This she did, contending that the recruiting provision was unconstitutionally overbroad and infringed on protected free-association rights under the First Amendment and the Idaho Constitution.
On Jan. 6, the Idaho Supreme Court upheld the law by a 4-1 vote in State v. Manzanares.
Writing for the majority, Chief Justice Roger S. Burdick said that to examine an overbreadth challenge, the court had to examine two issues: (1) whether the statute regulates constitutionally protected conduct; and (2) whether the statute precludes a significant amount of constitutionally protected conduct.
Burdick found that the recruiting provision “implicates the First Amendment right to free association, even though the organizations at issue are involved in criminal activity.” However, he determined that the law was not overbroad because it did not infringe upon a “significant amount of constitutionally protected conduct.”
Manzanares had argued that the state high court should dismiss the charges, because the Idaho law failed to include a provision requiring that a defendant have the specific intent to further the gang’s criminal activities. She pointed to two 1961 U.S. Supreme Court decisions — Scales v. United States and Noto v. United States — that rejected laws limiting members of the Communist Party on similar grounds.
Burdick did not agree with the analogy, finding that even though the Idaho law did not require specific intent, it still did not limit a substantial amount of protected conduct. He noted that the law does require that a defendant “knowingly” solicit another to join the gang.
“While knowledge is a different mens rea (“guilty mind”) than specific intent, we find that the Recruiting Provision is sufficiently narrow to avoid implicating a substantial amount of protected conduct,” Burdick wrote.
Justice Joel D. Horton dissented on the question of the constitutionality of the recruiting provision. Horton cited the Supreme Court’s Communist Party cases for the principle that the “government may not criminalize association with a group merely because it includes criminal factions.”
Horton also said the law was overbroad because it would affect a substantial amount of protected conduct. He said the recruiting provision would enable law-enforcement officials to target extremist environmental groups and animal-rights activists.
“While the First Amendment permits the government to prosecute the criminal conduct of members of activist groups; it precludes one’s prosecution for mere membership in, or association with, such an organization,” Horton wrote. “Prosecution and conviction on such grounds amounts to guilt by association, a concept repeatedly rejected by the United States Supreme Court.”