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Category: Constitutional Rights Content: This is the language of the Councillor Paul Scapicchio's HOME RULEPETITION Regarding Loitering in the City of Boston CITY OF BOSTON IN CITY COUNCIL HOME RULE PETITION WHEREAS, In many neigl]lborhoods throughout the City, the burgeoning presence of criminal street gang members in public places threatens the safety of law-abiding persons; and WHEREAS, One of the methods by which gangs establish control over public spaces is by loitering in thpse spaces and creating a climate of intimidation that discourages law-abiding citizens from entering those areas; and WHEREAS, Loitering in public places by criminal street gang members imperils the safety of I persons and property in the area because of the drug-dealing, violent assaults, robberies, an4 vandalism that accompany the established presence of such groups; and Members of gangs avoid arrest by committing no offense punishable under existing laws when they know police are present, while maintaining control over public areas ~ough their. continued loitering; and WHEREAS, Current laws~0 not effectively deal with problems posed by gang loitering as their enforcement is predicated on the willingness of residents to testify against gang member and drug dealers. Faced with comparable circumstances, the City of Somervillel responded with the passage of an anti-loitering law granting the Somerville Police Department the authority to more effectively address criminal gang activity; and The Boston ity Council seeks to protect the safety and welfare of the residents of, and visito s to, Boston's vibrant and diverse neighborhoods and endeavors to provide the B ston Police Department with the legislative authority needed to preserve the ity's streets and other public places so that Boston's residents and visitors may se such places without fear. THEREFORE BE IT WHEREAS, ORDERED, That a petitio~ to the General Court, accompanied by a bill for a special law relating to th~ City of Boston to be filed with an attested copy of this order be, and hereby is, apriroved under Clause 1 of Section 8 of Article II, as amended, of the Articles of ~endment to the Constitution of the Commonwealth of Massachusett~, to the end that legislation be adopted precisely as follows, except for clerical o~ editorial changes of form only: PETITION FOR A SPECIAL LAW RE: PUBLIC SAFETY IN THE CITY OF BOSTON Section 1. Purpose. The burgeoning presence of street gang members in public places has alarmed, intimidated, and scared many law-abiding persons. Loitering in public places by criminal street gang members, a method for intimidating lawlabiding persons and asserting control over identifiable areas, creates fear for the safety of persons! and property in the area because of the violence, including unacceptably high rates of dIjive-by shootings, drug-dealing, and vandalism often associated with such activity. Members of ctiminal street gangs avoid arrest by committing no offense punishable under existing laws when they know police are present, while maintaining control over identifiable areas by continued loitering for criminal activity when they know police are absent. This Act provides the Boston Police Department with the legislative authority that it needs to protect the public safety and re-open and preserve the City's streets and other public places so that Boston's residents and visitors may use such places without fear. Section 2. Definitions. Unless specifically indicated otherwise, the following definitions shall apply and control in this Act. "Criminal gang activity" sha~l mean an adjudication by reason of or a conviction for one (1) or more of the following offens~s if the offense was committed by two ( 2) or more persons or by an individual at the direction of) or in association with, any criminal street gang, with the specific intent to promote, further, on assist in any criminal conduct by gang members: murder; manslaughter; assault; assault and battery; indecent assault and battery on a child under fourteen (14) years of age; assault and battery to collect a loan; assault and battery upon a public employee; indecent assault and battery on a mentally retarded person; commission of a felony for hire; indecent assault and battery on a person fourteen (14) years of age or older; assault or assault and battery on an emergency medical technician, ambulance operator, or ambulance attendant; assault and battery upon a child; assault and battery upon an elderly or disabled person; mayhem; assault with the intent to murder or maim; assault and battery with a dangerous weapon; assault and battery with a dangerous weapon on a victim sixty (60) years of age or older; assault with a dangerous weapon on a victim sixty (60) years of age or older; attempt to murder; armed robbery; assault with intent to rob or murder; assault with a dangerous weapon in a dwelling house; use of firearms while committing a felony; entry of a dwelling place with persons present within; robbery by unarmed person; assault with intent to rob; stealing by confining or putting in fear; assault or confinement of a person for the purpose of stealing a motor vehicle; rape; rape of a child; rape or abuse of a child; assault with the intent to commit rape; assault of a child with the intent to commit rape; attempted extortion; kidnapping; kidnapping of a minor or incompetent by a relative; drugging persons by kidnapping; use of poison with intent to injure; assault with intent to commit a felony; assault or battery for purpose of intimidation by using weapons; coercion of child under eighteen (18) years of age into criminal conspiracy; burning or aiding in burning of a dwelling house; burning or aiding in burning of a meeting house; burglary; armed burglary; assaulting occupants while committing burglary or armed burglary; unarmed burglary; breaking and entering; breaking and entering at night; breaking and entering iin the day time; breaking and entering with the use of or possession of weapons; breaking and entering into a dwelling house; larceny by stealing from a victim sixtyfive (65) years of age or older; larceny; carrying dangerous weapons; possession of a machine gun or sawed-off shotgun; possession of a large capacity weapon or large capacity feeding device or; possession or carrying of a firearm in violation of the General Laws or any violation of chapter94C of the General Laws or an offense similar to an offense included in this definition in violation of the laws of another state, the United States, or a military, territorial, or Indian tribal authority. "Criminal street gangs" shall mean any ongoing organization, association-in-fact or group of three (3) or more persons, whether fon11al or informal, having as one (1) of its substantial activities the commission of one (1) or more of the criminal acts enumerated in the definition of "criminal gang activity" and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. "Gang loitering" shall mean one who, with the intent to further the common purpose or existence of a criminal street gang: (i) engages in conduct with the intent to control identifiable areas which renders such areas impassable without unreasonable inconvenience or hazard; (ii) threatens to commit a crime; (iii) defaces real or personal property in violation of section 126A of chapter 266 of the General Laws; (iv) intimidates another; or (v) engages in disorderly behavior or a breach of the peace. "Intimidate" shall mean putting in fear for the purpose of compelling or deterring conduct. "Pattern of criminal gang activity" shall mean two (2) or more acts of criminal gang activity, of which at least two (2) such acts were committed within five (5) years of each other. "Public place" shall mean a public way or any other location open to the public, whether publicly or privately owned. Section 3. Designation and Enforcement. The commissioner of the Boston police department shall by written directive designate areas of the city of Boston for enforcement of this Act is necessary because gang loitering has enabled criminal street gangs to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities. Prior to making a determination under this section, the commissioner of the Boston police department shall consult with persons who are knowledgeable about the extent and/or effects of gang activity in areas in which this Act may be enforced. Such persons may include, but not be limited to, members of the Boston police department with special training or experience related to criminal street gangs, other personnel of the Boston police department with particular knowledge of gang activities in the proposed designated area, elected and appointed officials of the area, and community-based organizations. The commissioner of the Boston police department shall develop and implement written procedures for the periodic review and updating of designations made under this Act. Any police officer that observes members of a criminal street gang engaged in gang loitering in any public place designated for the enforcement of this Act shall, subject to all applicable procedures promulgated by the commissioner of the Boston police department: (i) inform such criminal street gang members that they are engaged in gang loitering within an area in which loitering by groups containing criminal street gang members is prohibited, (ii) order all such criminal street gang members to disperse and remove themselves from within sight and hearing of the place at which the order is issued, (iii) inform those criminal street gang members engaged in gang loitering that they will be subject to arrest if they fail to promptly obey the order or if they engage in further gang loitering within sight or hearing of the place at which the order is issued during the next three (3) hours. Section 4. Gang Advisory Board. The city of Boston shall create a gang advisory board which shall consist of a representative of the city of Boston Human Rights Commission to be chosen by such commission, a member of the professional standards office of the Boston police department to be chosen by the commissioner of the Boston police department, the corporation counselor his/her designee, a Boston city councillor selected by the Boston city council, and three (3) represe~tatives of the community, at least two (2) of whom shall be minority representatives, selected by the mayor of the city of Boston and confirmed by the Boston city council to serve for a two (2) year term. The gang advisory board shall confer with the commissioner of the Boston police department regarding the establishment of the written procedures set forth in this Act and shall provide recommendations for the training of police personnel regarding implementation of this Act, including issues raised as a result of complaints, if any. The gang advisory board may make recommendations to the mayor of the city of Boston regarding policies and procedures to address gang Issues. Section 5. Procedures and Regulations. The commissioner of the Boston police department shall, by written directive, promulgate procedures to prevent the enforcement of this section against persons who are engaged in activities that are protected by the Constitution of the United States or the Constitution of the Commonwealth of Massachusetts. The commissioner of the Boston police department shall, by written directive, promulgate procedures to identify current members of criminal street gangs for updating criminal street gang records regularly including, but not limited to, removing former members of criminal street gangs from such lists. The commissioner of the Boston police department shall promulgate regulations to ensure that any required notices under this act are provided in a language reasonably calculated to be understood by the alleged violator. Section 6. Penalties. Any person who fails to promptly obey an order issued under Section 3, or who engages in further gang loitering within sight or hearing of the place at which such order was issued during the three-hour period following the time an order to disperse was issued, shall be punished by a fine of not less than one hundred dollars ($100) and not more than five hundred dollars ($500) or imprisonment in the house of correction for not more than six (6) months or by both such fine and imprisonment. A second or subsequent offense shall be punished by a minimum mandatory sentence of not less than five (5) days imprisonment in the house of correction. Section 7. Forfeiture Proceedings. Any property subject to forfeiture pursuant to section 47 of chapter 94C of the General Laws shall be subject to civil forfeiture if used in any manner or part, to commit or to facilitate a violation of this act. Civil forfeiture proceedings shall be governed by the procedures contained in said section 47 of chapter 94C of the General Laws, except that the final order of the court shall provide that the proceeds of the sale of any conveyance, real property, moneys, or other things of value forfeited under a court order shall be used to pay the reasonable expenses of forfeiture proceedings, including the cost of storage and custody, and the balance shall be distributed to the police department of the city of Boston. Section 8. Severability. If any provision of this act or the application of such provision to any person or circumstance shall be held invalid, the validity of the remainder of this act and the applicability of such provision to other persons or circumstances shall not be affected thereby. Section 9. Implementation. This act shall take effect upon passage. end