Texas gang law is overly broad, applies to almost every conceivable association imaginable, and unjustly denies the constitutional rights of individuals that have not engaged or conspired to engage in criminal activity. The implications of an overly broad law includes chilling 1st Amendment associations. The implications also include mass arrests redefining the principle that probable cause requires individualized and specific evidence establishing that an individual actually committed a crime. All of the 177 individuals arrested and the 106 so far indicted by the Waco Grand Jury were arrested and indicted based on the argument that an overly broad Texas gang statute was violated.
Texas Law
Texas Penal Code 71.01 defines the term “criminal street gang”:
(d)  “Criminal street gang” means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.
According to the Waco prosecution’s theory, if an organization is labeled a gang under a broadly worded Texas statute, and an individual associated with such an organization happens to be present when another individual associated with the same organization commits a crime, then they can be arrested and charged for engaging in organized crime under Texas law. Whether an individual commits an actual crime is immaterial. Mere association is sufficient.
The Texas Gang Laws are Overly Broad
The problem is obvious. Most organizations have three or more persons that often wear common identifying signs/symbols and have identifiable leadership. And many organizations have individuals that have committed crimes and are even felons. This includes military organizations, rotary clubs, social clubs, corporations, legislative bodies, 12 Step groups, car clubs, fan clubs, churches, etc. A law denying constitutional rights to individuals that have committed no crimes themselves, merely because of their associations with others that have committed crimes, would seriously impact the exercise of 1st Amendment freedoms.
The best example of the absurdity of this definition may be that even law enforcement agencies would meet the definition of criminal street gangs. There are more than three officers in every agency and department, they use common symbols and signs, they have identifiable leadership, and some officers have been convicted of criminal activities (see the Cato Institute, Police Misconduct Survey).
While most law enforcement officers join up to prevent crime, obviously there are bad apples. Some officers have been convicted of felonies. Some departments have been convicted of RICO. Criminal activity is not restricted to criminal enterprises. Church members have been known to embezzle funds, priests have committed heinous acts. Statistically, larger numbers of police are convicted of felonies every year than members of motorcycle clubs, including “1% ers”. So, just how sensible is such a broadly applied gang law, when just about any club or organization will qualify? Who do we entrust to selectively decide who qualifies and who does not?
The Gang Law Chills The Exercise Of 1st Amendment Rights
Texas’ overly broad gang statute deters individuals from joining legal associations. Obviously, huge prosecutions like Waco could discourage people from joining motorcycle clubs. Consider the horror stories of innocent people’s lives being destroyed merely because they belong to a club, not because they themselves committed a crime. And the impact extends beyond motorcycle clubs. What about any type of club or association that has individuals that commit (or have committed) crimes? The definition of a criminal gang in Texas statute is so broad that it could apply to members of almost any organization or association.
There is every reason to believe that individuals will be discouraged from associations, especially considering the additional implications on gun ownership.
According to Texas Penal Code 46.02
A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun…. that is owned by the person or under the person’s control at any time….the person is a member of a criminal street gang, as defined by Section 71.01.
Anyone in an identifiable group or organization that has individuals that have committed crimes could be denied the right to carry a gun. That threat alone is enough to discourage the exercise of 1st Amendment freedoms.
How much sense does it make to implement laws that define almost every conceivable association as a criminal street gang, including law enforcement? Do we not remember the concept of reasonable and articulable suspicion? Do we not remember McCarthyism? Is it not so completely obvious that the Texas definition of “criminal street gang” is so overly-broad as to be intellectually and Constitutionally bankrupt?