State can't prosecute man for giving advice to gang members

By The Associated Press

02.28.02

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SAN FRANCISCO — Arizona cannot prosecute a former gang member for advising a gang on its operations, initiation, expulsion and graffiti practices, a federal appeals court panel ruled this week.

The decision by a panel of the 9th U.S. Circuit Court of Appeals upheld a lower court's decision overturning the 15-year sentence of Jerry Dean McCoy, who was convicted in 1996 of participating in a criminal street gang. The three-judge panel said McCoy's advice to gang members — prosecuted under a 1993 Arizona law — was protected under the First Amendment.

The court pointed out it was mindful of the "serious problems" posed by street gangs and that it was sympathetic to the Arizona Legislature's efforts to protect its citizens from "the evils gangs all too often inflict."

"We are forced to agree that McCoy's speech, at most, constituted mere abstract advocacy of lawlessness, rather than an intentional effort to further illegal activity," Judge Diarmuid F. O'Scannlain wrote in the Feb. 26 decision McCoy v. Stewart.

McCoy's attorney, T.S. Hartzell, said his client advised Arizona gang members at two parties, and the discussions were centered on McCoy saying, "'You guys don't know how to run a gang,'" Hartzell said.

"What the Legislature intended was to stop people from saying, 'Go see so and so and collect money from him and if you have to, hurt him,'" Hartzell said.

Ginger Jarvis, assistant Arizona attorney general, said the state would contest the ruling, either by asking the court to reconsider its decision or by asking the U.S. Supreme Court to review the case.

But Pati Urias, a spokeswoman for the Attorney General's Office, said later that the office hadn't yet made a decision on whether to pursue the case further.

O'Scannlain said a conviction for the speech from the former California gang member "strays dangerously close to a finding of guilt by association. Such a conviction, even in the context of a street gang, cannot be squared with the First Amendment, and thus cannot stand."

The court, however, added that McCoy could be successfully prosecuted if Arizona proved that his speech "actually caused imminent lawless action."

But prosecutors did not present such evidence, O'Scannlain said, adding that speech cannot be punished for advocating illegal action "at some indefinite future time."

Update

Supreme Court won't consider whether gang advice is free speech
Lower federal courts agreed that First Amendment protected Jerry Dean McCoy's conversations with Arizona gang members.  10.22.02