WHEREAS, The City of Somerville, like other cities across the nation, faces high rates of violent crimes and of drug offenses; and
WHEREAS, The Board of Aldermen has determined that criminal street gang activity in the City is largely responsible for this unacceptable situation; and
WHEREAS, In many neighborhoods throughout the City, the escalating presence of street gang members in public places has intimidated many law-abiding citizens; and
WHEREAS, One of the methods by which criminal street gangs establish control over identifiable areas is by loitering in those areas and intimidating others from entering/passing those areas; and
WHEREAS, Criminal street gangs establish control over identifiable areas in order to control narcotic sales, violent acts, and other illegal activities in those areas, and to intimidate law-abiding residents; and
WHEREAS, Members of criminal street gangs avoid arrest by committing no offense punishable under existing law when they know that police are present, while maintaining control over identifiable areas by continued loitering; and
WHEREAS, The Board of Aldermen has determined that loitering in public places by criminal street gang members creates a justifiable fear for the safety of persons and property in the areas because of the violence, including unacceptably high rates of drug-dealing and vandalism often associated with such activity; and
WHEREAS, The Board of Aldermen also has an interest in discouraging all persons from loitering in public places with criminal street gang members because persons who are not gang members in those circumstances are at risk from drug dealing and other gang-related violence, and at risk to be recruited by gangs; and
WHEREAS, The use of public places to promote violence and to facilitate trafficking in narcotics and controlled substances has become an increasing problem in certain areas of the City; and
WHEREAS, Aggressive action is necessary to preserve the City's streets and other public places so that the public may use such places without fear; and
WHEREAS, Persons frequently loiter in public places in the course of creating violence including engaging in trafficking in narcotics and controlled substances; and
WHEREAS, When police officers observe individuals engaging in loitering and other suspicious activity they are often unable to make an arrest, even though the persons engaged in that behavior will resume violent behavior and trafficking in narcotics and controlled substances as soon as the police depart; and
WHEREAS, Loitering by individuals in areas where loitering is frequently associated with violence and trafficking in narcotics and controlled substances intimidates law-abiding citizens, diminishes the value of nearby property and has the potential to destabilize communities and attract additional violence; and
WHEREAS, Current laws are inadequate to deal with problems posed by gang loitering and loitering as a means to create a violent atmosphere and to facilitate trafficking in narcotics and controlled substances, principally because conventional laws generally depend upon the willingness of civilians to testify against gang members and drug dealers, and many civilians are understandably reluctant to put themselves in harm's way by providing such testimony; now, therefore
(a) Whenever a police officer observes a member of a criminal street gang engaged in gang loitering with one or more other persons in any public place designated for the enforcement of this Section under subsection (b), the police officer shall, subject to all applicable procedures promulgated by the Chief of Police: (i) inform all such persons 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 persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued; (iii) inform those persons engaged in gang loitering that they will be subject to arrest if they fail to obey the order promptly or engage in further gang loitering within sight or hearing of the place at which the order was issued during the next three hours.
(b) The Chief of Police shall by written directive designate areas of the city in which the Chief of Police has determined that enforcement of this section 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 subsection, the Chief of Police shall consult as he or she deems appropriate with persons who are knowledgeable about the effects of gang activity in areas in which the ordinance may be enforced. Such persons may include, but need not be limited to, members of the department of police with special training or experience related to criminal street gangs; other personnel of that department with particular knowledge of gang activities in the proposed designated area; elected and appointed officials of the area; and community-based organizations. The Chief of Police shall develop and implement procedures for the periodic review and update of designations made under this subsection.
(c) (1) The Chief of Police 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 and/or the Commonwealth of Massachusetts.
(2) There shall be a Gang Advisory Board which shall consist of a representative of the Somerville Human Right's Commission to be chosen by such Commission, a member of the Professional Standards Office of the Somerville Police Department to be chosen by the Chief of Police, the City Solicitor or his/her designee, an alderman selected by the Board of Aldermen, and three representatives of the community, at least two of whom shall be minority representatives, selected by the Mayor and confirmed by the Board of Aldermen to serve for a two year term. The Board shall confer with the Chief in the Chief's establishment of the written procedures set forth in paragraph (c)(1) above and shall provide recommendations on training of police personnel to implement this Ordinance, including issues raised as a result of complaints, if any. The Board may also make recommendations to the Mayor on policies and procedures to address gang issues in the City.
(d) As used in the Section:
(1) “Gang loitering” means one who, with the intent to further the common purpose or existence of a criminal street gang, (1) engages in conduct which would cause a reasonable person to believe that entrance to a specific area may not be made without unreasonable inconvenience or hazard, (2) threatens to commit a crime, (3) defaces real or personal property in violation of Section 126A of Chapter 266 of the Massachusetts General Laws, (4) intimidates or accosts another, or (5) engages in disorderly behavior or a breach of the peace.
(2) “Criminal street gangs” means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
(3) “Criminal gang activity” means an adjudication by reason of or a conviction for the following offenses, provided that the offenses are committed by two 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 or assist in any criminal conduct by gang members:
The following sections of the Massachusetts General Laws: M.G.L. c. 265, Section 1 (murder); M.G.L. c. 265, Section 13 (manslaughter); M.G.L. c. 13A, (assault or assault and battery); M.G.L. c. 265, Section 13B (indecent assault and battery on a child under fourteen); M.G.L. c. 265, Section 13C (assault and battery to collect loan); M.G.L. c. 265, Section 13D (assault and battery upon public employees); M.G.L. c. 265, Section 13F (indecent assault and battery on mentally retarded person); M.G.L. c. 265, Section 13G (commission of a felony for hire); M.G.L. c. 265 Section 13H (Indecent assault and battery on person fourteen or older); M.G.L. c. 265, Section 13I (assault or assault and battery on emergency medical technician, ambulance operator, or ambulance attendant); M.G.L. c. 265, Section 13J (assault and battery upon a child); M.G.L. c. 265, Section 13K (assault and battery upon an elderly or disabled person); M.G.L. c. 265, Section 14 (mayhem); M.G.L. c. 265, Section 15 (assault; intent to murder or maim); M.G.L. c. 265, Section 15A (assault and battery with dangerous weapon; victim sixty or older); M.G.L. c. 265, Section 15B (Assault with dangerous weapon; victim sixty or older); M.G.L. c. 265, Section 16 (attempt to murder); M.G.L. c. 265, Section 17 (armed robbery); M.G.L. c. 265, Section 18 (assault with intent to rob or murder); M.G.L. c. 265, Section 18A (dangerous weapon; assault in dwelling house); M.G.L. c. 265, Section 18B (Use of firearms while committing a felony); M.G.L. c. 265, Section 18C (entry of dwelling place; persons present within); M.G.L. c. 265, Section 19 (robbery by unarmed person); M.G.L. c. 265, Section 20 (simple assault; intent to rob); M.G.L. c. 265, Section 21 (stealing by confining or putting in fear); M.G.L. c. 265, Section 21A (assault, confinement, etc. of person for purpose of stealing motor vehicle; weapons); M.G.L. c. 265, Section 22 (rape); M.G.L. c. 265, Section 22A (rape of child); M.G.L. c. 265, Section 23 (rape or abuse of child); M.G.L. c. 265, Section 24 (assault with intent to commit rape); M.G.L. c. 265, Section 24B (assault of child; intent to commit rape); M.G.L. c. 265, Section 25 (attempted extortion); M.G.L. c. 265, Section 26 (kidnapping); M.G.L. c. 265, Section 26A (kidnapping of minor or incompetent by relative); M.G.L. c. 265, Section 26B (drugging persons by kidnapping); M.G.L. c. 265, Section 28 (poison; use with intent to injure); M.G.L. c. 265, Section 29 (assault; intent to commit felony); M.G.L. c. 265, Section 39 (assault or battery for purpose of intimidation; weapons); M.G.L. c. 265, Section 44 (coercion of child under eighteen into criminal conspiracy); M.G.L. c. 266, Section 1 (dwelling house; burning or aiding in burning); M.G.L. c. 266, Section 2 (meeting house; burning or aiding in burning); M.G.L. c. 266, Section 14 (burglary; armed; assault on occupants); M.G.L. c. 266, Section 15 (burglary; unarmed); M.G.L. c. 266, Section 16 (breaking and entering at night); M.G.L. c. 266, Section 17 (entering without breaking at night; breaking and entering in the day time; weapons); M.G.L. c. 266, Section 18 (dwelling house; entry at night; breaking and entry in the day time; weapons); M.G.L. c. 266, Section 25 (larceny by stealing; punishment; victim sixty-five or older); M.G.L. c. 266, Section 30 (larceny); M.G.L. c. 94C (Controlled Substance Act), and M.G.L. c. 269, Section 10(a),(b),(c), and (j) (carrying dangerous weapons; possession of machine gun or sawed-off shotguns; possession of large capacity weapon or large capacity feeding device).
(4) “Intimidate” means putting in fear for the purpose of compelling or deterring conduct.
(5) “Obstruct” means renders impassable without unreasonable inconvenience or hazard.
(6) “Pattern of criminal gang activity” means two or more acts of criminal gang activity of which at least two such acts were committed within five years of each other.
(7) “Public place” means the public way and any other location open to the public, whether publicly or privately owned.
(e) Any person who fails to obey promptly an order issued under subsection (a), or who engages in further gang loitering within sight or hearing of the place at which such an order was issued during the three hour period following the time the order was issued, is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months for each offense, or both. A second or subsequent offense shall be punishable by a mandatory minimum sentence of not less than 5 days imprisonment.
SECTION 2. NARCOTIC-RELATED LOITERING
(a) Whenever a police officer observes one or more persons engaged in narcotics-related loitering in any public place, the police officer shall: (i) inform all such persons that they are engaged in loitering within an area in which such loitering is prohibited; (ii) order all such persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued; and (iii) inform all those persons that they will be subject to arrest if they fail to obey the order promptly or engage in further narcotics-related loitering within sight or hearing of the place at which the order was issued during the next three hours.
(b) As used in this Section:
(1) “Narcotics-related loitering” means remaining in one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to facilitate the distribution of substances in violation of the Controlled Substance Act (M.G.L. c. 94C).
(2) “Public place” means the public way and any other location open to the public, whether publicly or privately owned.
(c) Any person who fails to obey promptly an order issued under subsection 2(a), or who engages in further narcotics-related loitering within sight or hearing of the place at which such an order was issued during the three hour period following the time the order was issued, is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months for each offense, or both. A second or subsequent offender shall be punishable by a mandatory minimum sentence of not less than 5 days imprisonment.
In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service.
SECTION 3 FORFEITURE OF PROPERTY
Property subject to forfeiture pursuant to G. L. c. 94c § 47 shall be subject to civil forfeiture under this ordinance. Civil forfeiture proceedings shall be governed by G. L. C. 94c § 47, 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 city of Somerville police department.