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Judge dismisses gang 'safety zone,' says gang validation forms are inadmissible

Chattanooga Times Free Press - 10/10/2018

Oct. 09--Updated at 6:04 p.m. on Tuesday, Oct. 9, 2018, with more information.

Alleged gang members are no longer under threat of fines or jail time for hanging out with each other in East Lake Courts after a judge's order Monday in a highly contested civil injunction case. But some defense attorneys say the ruling has far-reaching implications that could make it harder for the state to prove people are gang members, and prosecutors are hoping to appeal the decision.

In a 17-page order filed Monday in the two-year-old case, Hamilton County Criminal Court Judge Barry Steelman said prosecutors didn't prove by clear and convincing evidence that 31 men were involved in a pattern of criminal activity in the East Lake area that would allow him to declare them a "public nuisance."

District Attorney General Neal Pinkston filed the case in September 2016 and said the men belonged to two criminal gangs: the Grape Street Crips and Gangster Disciples. The prosecutor wanted the courts to declare a swath of East Lake Courts a "safety zone" where the accused men, all black, could not drink beer, own graffiti equipment, alert others to the presence of police, use guns or drugs, or hang out without each other. Otherwise, they could be fined $50 or face up to 30 days in jail.

But in his order, which came six months after a trial in April to determine whether a permanent version of this zone would stand, Steelman said prosecutors didn't introduce the men's criminal convictions into evidence, which prevented him from finding that their "primary activity" was committing crimes. Even if they had, it might not have mattered, Steelman said, because prosecutors mostly relied on police-created validation forms to prove these men were in gangs. And those forms are essentially police reports that aren't admissible on their own under the state's hearsay rules, Steelman found.

"[Consider] an affidavit of complaint based on a police officer's report," said Chrissy Mincy, a Chattanooga attorney who defended some of the men. "With that, you have to have the officer testify to the matters he observed. [The state] always has to be able to bring in the police officer, but this ruling in particular makes the gang validation form a police report like any other. It means you cannot admit those into evidence."

Chattanooga prosecutors, on the other hand, will ask for permission to appeal Steelman's ruling to a higher court, said Pinkston's spokeswoman, Melydia Clewell. And for understandable reason.

Chattanooga police officers regularly validate people they believe are gang members using a points system. Tattoos, self-admittance and associating with other gang members each carry a different amount, and a person only needs 10 points to be validated on those forms. Officers sometimes note in criminal affidavits when defendants are gang members. And in court hearings, defense attorneys have said, a prosecutor's mention of a person's gang validation can sway a judge into increasing someone's bond.

Currently, Pinkston's office is pursuing criminal charges against 55 men and women for their alleged participation in the Athens Park Bloods street gang under the state's racketeering law. Defense attorneys say part of that case involves proving the defendant belonged to the gang, which prosecutors can show through validation forms. Though prosecutors also have recorded jailhouse phone calls, witnesses and other documents at their disposal when it comes to proving gang membership, some defense attorneys said Tuesday they may use Steelman's order to suppress evidence in the racketeering case.

To be sure, there are people charged with violent crimes who admit to being gang members, and in the East Lake Courts "safety zone" case, many of the defendants had criminal convictions or pending charges. During an initial hearing in October 2016, Pinkston called police officers, business owners and a neighbor who all testified to the dangerous impact criminal gangs had on East Lake Courts.

But defense attorneys said prosecutors needed to prove membership and show how each defendant was connected to the violence in East Lake. They argued the "safety zone," used in other cities nationwide, violates a person's First Amendment right to freedom of association by telling them who they can and cannot hang out with. Ultimately, police never enforced it, even when Steelman approved a temporary version in December 2016, because they wanted to ensure everyone had been properly served first.

During a 45-minute trial in April, Mincy said prosecutors never made that connection, never entered convictions into the record and instead relied on gang validation forms. She asked Steelman to throw out the validation forms and said they were hearsay and contained potentially outdated information: For instance, one officer could use information from another to compile a validation without verifying the initial information is still correct.

Prosecutors responded that validation forms should be admitted. At trial, they said crime rates fell between 2016 and 2017 in East Lake Courts because the temporary zone had driven away some defendants. During proceedings, only eight men contested the safety zone, while the other 23 have not come to court, never been served, or stopped hanging around East Lake so much, law enforcement officials said.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.

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