Draft Ver 5.8.24
Adds §1.1.53 Government Gang Activity (Government Context) — a new umbrella offense that imports the operative structure of Utah's criminal-street-gang law (Utah Code § 76-9-802) and applies it to government actors.
§1.1.53 Government Gang Activity (Government Context) — NEW
The offense. A government actor commits government gang activity where the actor commits, attempts, conspires to commit, solicits, directs, or knowingly facilitates an offense under this Act or other criminal law to benefit, advance, protect, or further an identifiable group of three or more government actors, the group's members, or the government institution the group operates within — whether the group operates formally or informally.
The operative premise: the criminal-street-gang definition does not exempt government. Utah Code § 76-9-802 defines a "criminal street gang" as a group of three or more individuals, formal or informal, (a) currently in operation, (b) with the commission of a criminal offense as one of its activities, (c) with an identifying name or sign or symbol, and (d) whose members engage in a pattern of criminal gang activity. Every one of those elements can be satisfied by a group of government actors. Using a fictional Springvale Police Department for illustration: it is a group of more than three individuals, currently operating, with an identifying name and an identifying sign or symbol (the badge, patch, uniform, marked vehicle). Where its members commit offenses — unlawful arrests, unlawful entries, theft during searches, fabrication of evidence, retaliation, coordinated harassment — to benefit the group or the institution, it satisfies every operative element of a criminal street gang.
No group is permitted to commit crimes to benefit the group. That principle contains no government exemption. No person should be committing crimes to benefit government actors or government institutions. That is gang activity.
A single government actor may be charged. The "three or more" element describes the group that is benefited — not a requirement that three or more people be charged. A single officer who fabricates evidence to protect a unit of three or more officers, a single prosecutor who buries exculpatory evidence to advance an office of three or more prosecutors, or a single clerk who alters a record to shield a group of three or more court personnel, is individually chargeable. The benefited group's existence is established by its operative characteristics, not by the charging of its members.
Identifiable group reaches departments and agencies, units/squads/task forces, prosecutor offices, groups of judges or court personnel, regulatory divisions, and inter-agency fusion centers or joint task forces — any operatively identifiable group of three or more government actors with a shared identifying name, sign, or symbol, formal or informal.
Pattern of government gang activity (consistent with § 76-9-802): two or more predicate offenses within five years, committed in association with the group, with specific intent to benefit the group or institution. The Act's substantive offenses (§1.1.3 Battery, §1.1.8 Obstruction, §1.1.12 Terrorism, §1.1.14 Malicious Prosecution, §1.1.32 Pretextualism, §1.1.49–§1.1.52 the warrant/search/seizure cluster, and others) are predicates.
Relationship to existing offenses. Distinct from but chargeable cumulatively with §1.1.6 (Cabalism — coordinated conduct without the gang-structure elements) and §1.1.7 (Government Racketeering — the racketeering-enterprise model). §1.1.53 reaches the criminal-street-gang structure specifically and reaches the single actor whose conduct benefits the group.
Classification: Class 1 felony; capital offense where the conduct produced death, suicide, serious bodily injury, unlawful deprivation of liberty, or seizure of property; entity-level reach under §1.1.1.2 where an entire agency operates as a criminal street gang, with §11.4 decertification and §11 forfeiture applying to the individual actors.
Defenses limited: "it's an official agency, not a gang," "only one person was charged," institutional habit, and following orders are not defenses. Lawful group activity — where the actor did not commit an offense to benefit the group — is a defense.