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Gang Signs

December 13th, 2011
By Jeff Welty

A caller recently asked me whether it is a crime to use gang signs. First, some background. According to one gang expert, “each gang has their own gang hand signs that they use to show allegiance to their gang or to disrespect . . . rival gang members. Many gangs have created hand signs, using their fingers and hands, to represent letters of the alphabet and other signs to represent a word or a phrase. Most members become highly proficient at this ‘art’ and can communicate with others without speaking.  Displaying these gang hand signs is known as ‘flashing’ or ‘throwing’ the signs.” Signs vary from gang to gang, so there isn’t a universal dictionary of gang signs, but some examples can be viewed here and here.

The first place I looked was the Street Gang Suppression Act, G.S. 14-50.15 et seq. But I didn’t see anything there that would prohibit the use of gang signs. Then I remembered G.S. 14-12.4, which makes it “unlawful for any person to use . . . any signs, grips, [or] passwords . . . in the furtherance of . . . any purpose of violating . . . the laws of the State.” Could that statute apply to gang signs? As a matter of historical interest, G.S. 14-12.4 is part of Article 4A of Chapter 14, entitled “Prohibited Secret Societies and Activities.” That article was enacted in 1953, and was known at the time as the “anti-Ku Klux Klan statute.” A Survey of Statutory Changes in North Carolina in 1953, 31 N.C. L. Rev. 375, 401 (1953).

Turning now to statutory interpretation, I doubt that the use of gang signs automatically constitutes a violation of G.S. 14-12.4. As far as I can tell, the statute has never been cited in an appellate case, so all we have to go on is the text of the statute. And the text requires that the signs be used in furtherance of an illegal purpose. The most common use of gang signs appears to be “claiming,” or asserting membership in a gang. Essentially, the person using the sign is saying “I’m a member of gang X.” Since being a member of gang isn’t a crime in itself, “claiming” doesn’t appear to be in furtherance of an illegal purpose. Similarly, using gang signs to spell out, for example, “I love rainbows and ponies” – I bet that happens all the time – doesn’t seem like it would be in furtherance of an illegal purpose. By contrast, using gang signs to communicate “I’m going to kill you” or “I have drugs for sale” would appear to violate G.S. 14-12.4, as well as other laws.

I should add that there may be constitutional concerns with regulating the use of gang signs. I’m not an expert in that area of law and haven’t researched it extensively, but a few minutes on Westlaw turned up Martinez v. State, 323 S.W.3d 493 (Tex. Ct. Crim. App. 2010) (affirming conviction of defendant for violating injunction prohibiting defendant and others from, inter alia, using gang signs, and finding the injunction consistent with the First Amendment), and People v. Englebrecht, 106 Cal.Rptr.2d 738 (Cal. Ct. App. 4 Dist. 2001) (rejecting First Amendment challenge to anti-gang injunction).

I think the best answer to the caller’s question is no, it isn’t in itself a crime to use gang signs. If you think otherwise or know of cases in which the use of gang signs has been charged as a crime, please weigh in.

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3 Responses to “Gang Signs”

  1. peter oehl says:

    Gang hand signs are not against the law neither is being in a gang. If I see somebody using gang signs (I am a police officer and my duties are to identify and track potential gang members) I use it as an indicator to classify the person as a “gang member”. North Carolina has established criteria to determine if someone is a validated gang member or just an associate. You only need to meet two criteria to validate someone but like anything else, the more you have the better your case.

  2. Jont says:

    Mr. Welty, a question if you will:

    By reading the statute that begins that same article in chapter 14, 14-12.2(a), it would seem that strictly according to the statute’s definition, being a criminal street gang member should be a class 1 misdemeanor. Of course, the statute uses “secret society” but a gang is just that, and follows the definition very closely.

    (1) The term “secret society” shall mean any two or more persons organized, associated together, combined or united for any common purpose whatsoever, who shall use among themselves any certain grips, signs or password, or who shall use for the advancement of any of their purposes or as a part of their ritual any disguise of the person, face or voice or any disguise whatsoever, or who shall take any extrajudicial oath or secret solemn pledge or administer such oath or pledge to those associated with them, or who shall transact business and advance their purposes at secret meeting or meetings which are tiled and guarded against intrusion by persons not associated with them.

    Criminal Street Gangs have 2 or more people combined for the common purpose of violating laws, use grips, signs, and secrete codes, commonly disguise their faces (their trademark bandannas originate from being used as face coverings, and continue to be used as such today), take extrajudicial oaths and pledges as documented in gang “bibles” seized by police, and transact their business at secret meetings held in secrete places which are certainly guarded against intrusion. That’s pretty cut and dry 100% spot on right there.

    14-12.3
    It shall be unlawful for any person to join, unite himself with, become a member of, apply for membership in, form, organize, solicit members for, combine and agree with any person or persons to form or organize, or to encourage, aid or assist in any way any secret political society or any secret military society or any secret society having for a purpose the violating or circumventing the laws of the State. (1953, c. 1193, s. 2.)

    In comparison, under Article 13A (NC Street Gang Suppression Act) defines a criminal street gang as:

    § 14‑50.16. Pattern of criminal street gang activity.
    .
    .
    .
    (b) As used in this Article, “criminal street gang” or “street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, that:

    (1) Has as one of its primary activities the commission of one or more felony offenses, or delinquent acts that would be felonies if committed by an adult;

    (2) Has three or more members individually or collectively engaged in, or who have engaged in, criminal street gang activity; and

    (3) May have a common name, common identifying sign or symbol.

    What are your thoughts on this? Is there any case law related to it?

    The irony…

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