The Arizona Supreme Court today determined that an Arizona law that makes it a felony for an individual to engage in threatening or intimidating behavior simply because the person is a member of a criminal street gang. Threatening/intimidating is normally a misdemeanor.
The Court did not consider the First Amendment aspects of belonging to a group. Rather, the Justices unanimously found that such an automatic bump from misdemeanor to felony violates the defendant's constitutional due process rights.
The Opinion vacates the Court of Appeals decision, but affirms the Maricopa County Superior Court Judge's decision. The case involved two incidents in 2017 where Christopher Arevalo threatened convenience store employees by pretending he had a gun, and threatened police officers one month later. The Maricopa County Attorney's Office prosecuted him for felonies, but did not allege that there was a connection between the threats and his gang affiliation.
Justice John R. Lopez IV wrote for the Court, and determined that "(w)e cannot, and will not, rewrite the statute to save it." He provided a clear example for why Arizona's statute violates due process.
We hold that § 13-1202(B)(2) violates Scales’ due process standard because it enhances criminal penalties based solely on gang status without a sufficient nexus between gang membership and the underlying crime of threatening or intimidating. Indeed, it permits sentencing enhancement based on gang status even if the crime is wholly unrelated to a defendant's gang membership. An example is illustrative. Assume a teenager is, unbeknownst to his mother, a gang member. In the midst of a domestic disturbance, he threatens to strike his mother and is subsequently charged with threatening or intimidating. Under the State’s argument and the court of appeals’ reasoning, the defendant would be subject to a (B)(2) sentencing enhancement for gang membership even though his mother was unaware of his affiliation, he never invoked it to bolster his threat, and the crime was altogether unrelated to his gang activity. And even if the mother knew of her son’s gang membership, the State would not have to prove that knowledge or otherwise relate his membership to the offense to invoke (B)(2)’s enhancement. By its terms, § 13-1202(B)(2) permits sentencing enhancement absent any nexus between gang membership and the crime.
The Court also considered what it calls an "expansive definition" of "criminal street gang."
Justice Clint Bolick, joined by retired Justice John Pelander (sitting in because Justice Bill Montgomery had to recuse himself), took the opporunity to write about trying to get rid of the prevalent judicial presumption that statutes are constitutional.
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