Should MySpace Friends & Photos Be Enough Evidence To Convict Someone Of Criminal Gang Activity

from the guilty-by-myspace-association dept

Wed, Dec 29th 2010 10:37am — Mike Masnick

Gangs and gang violence may be a serious problem in some areas, but does that mean we should make people guilty based on very loose associations? Venkat Balasubramani has a post about a recent appeals court ruling in Ohio, in which some defendants were convicted of "participation in criminal gang activity," almost entirely based on their MySpace friends and photographs. The police officers initially testified that gang members were using social networking sites more and more frequently, and then went full on charging guilt by association:

Officer Criss . . . noted [defendants] were friends on MySpace. Mr. Owens was pictured in two photographs on Mr. McCraney's MySpace page. In one of the photographs, Mr. Owens was wearing all black and he was standing with several other people who were wearing all black, or black and red. Further, several of the people in the photograph were displaying gang hand signs. The other photograph from Mr. McCraney's page depicted [defendants, along with] a known gang member.

Officer Criss also discussed photographs taken from Mr. Owens' own MySpace page. One of the photographs depicted Mr. Owens in a red hat and a fur coat. Officer Criss said this was significant because red is a gang color and the fur coat is a status symbol in the gang community. In addition, Mr. Owens' gold teeth were also alluded to as being a status symbol. Another photograph from Mr. Owens' MySpace page depicted Mr. Owens holding a large sum of cash and wearing red and black clothing. Further, dollar signs are superimposed all over the photograph. Again Officer Criss stated that red and black are associated with the Bloodline gangs and the money symbols and the display of a large amount of cash represented that Mr. Owens was able to get large sums of money.

This was pretty much the crux of the evidence of gang activity. The court also heard that one of the defendants had a previous conviction for dealing marijuana, and the police noted that "gangs primarily are involved with the sale of drugs," but no other evidence was used to tie that conviction to any actual gang activity. That seems like incredibly thin evidence, but the court decided that it was sufficient to prove criminal gang activity.

One judge dissented, noting just how thin the evidence appeared to be:

Essentially, the majority's decision allows one to conclude that someone actively participates in a criminal gang if that person has committed theft or drug crimes in the past, wears one color associated with a gang, and associates with people who are in a gang or who make gang hand signs. I also find it troubling that the majority suggests that despite the lack of evidence concerning the significant indicators of participation in gang activity, the gap in the evidence is satisfied simply because an officer stated that he believed Mr. Owens actively participated in a criminal gang.

That judge also details how even the thin evidence was even thinner than the court suggested. It noted that none of the photographs with gang members even appeared on this guy's own MySpace website, but on another's. And he wasn't seen making the gang hand signs in any of them -- others are. In other words, if you're in a photo on a social network with people making gang signs and wearing some rather common colors that are also associated with a gang, you can be convicted of criminal gang activities. That doesn't seem right.

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Filed Under: evidence, gangs, social networks
Companies: myspace

37 Comments

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Rose M. Welch (profile), 29 Dec 2010 @ 9:45am

What's a gang, anyway?
Great. Now I'm going to be convicted of being in the Wikileaks gang because I retweeted Glenn Greenwald.

Thanks, Ohio.
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:Lobo Santo (profile), 29 Dec 2010 @ 10:41am

Re: What's a gang, anyway?
There's a Wikileaks gang? How does one join?

; P
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Cowardly Anon, 29 Dec 2010 @ 11:04am

Reminds me of when I was in high school and I was pulled into the VPs office for wearing gang colors to school. After I asked him what he was talking about he told me to remove my bandanna and give it to him.

I was wearing a blue bandanna in my hair that day b/c it matched my shirt....
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Rose M. Welch (profile), 29 Dec 2010 @ 11:05am

Re: Re: What's a gang, anyway?
How does one join?

According to this case, by simply being associated with people who are known to be part of the group.
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harbingerofdoom (profile), 29 Dec 2010 @ 11:06am

while i do not agree that in and of itself pictures of someone hanging out with known gang members is not enough to convict them of criminal activity, the dissenting judge is definitely wearing some rose colored glasses.

sorry dissenting judge, but yes, if you hang with known members, dress like known members, make the handsigns like known members you ARE a member of that gang (or else you are going to be very beat up and likely dead very soon).
add to that if all the above are true and then you toss in the added bonus of committing theft and/or drug crimes in the past? ahh drrrrrrrrrr!

now, does that mean you can convict them of anything in the absence of real evidence to show they were involved in actual criminal activity? absolutely not. but lets not be all pollyanna about it huh?
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fogbugzd (profile), 29 Dec 2010 @ 11:08am

Surprised
Wait -- Someone is still using MySpace?
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Stuart, 29 Dec 2010 @ 11:10am

Convict!
Convict him of looking like a fucking thug douche on Myspace at the very least.
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Eugene (profile), 29 Dec 2010 @ 11:16am

So flashing gang signs in Myspace photos can get you arrested now? Uh oh. If that's the case, then millions of 14 year old girls are about to be thrown in jail.
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Chris in Utah (profile), 29 Dec 2010 @ 11:18am

Next up...
Next up... Any appearance of a Gadsden flag cause for being put on the no-fly list. Need a reference see the MAEC report.
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Chris in Utah (profile), 29 Dec 2010 @ 11:30am

Re: Next up...
I don't even remember what Maec stood for but the declassified report is entitled "Right-Wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment"
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Anonymous Coward, 29 Dec 2010 @ 11:34am

Re:
Quoting Mike:

"And he wasn't seen making the gang hand signs in any of them -- others are."

So, he was hanging with known members, dressing like known members, but NOT doing the handsigns like known members.

I do not know how much this changes your conclusion, however.
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The Mighty Buzzard (profile), 29 Dec 2010 @ 11:37am

Re:
Have an acronym for you: RICO

Essentially, if you're a member of a criminal organization that commits certain crimes, you can be convicted and get 20 years even if you had nothing whatsoever to do with the commission of those crimes.

http://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act
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Anonymous Coward, 29 Dec 2010 @ 11:40am

Yes!
And owning a Honda proves you are a japanese citizen.
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Civilly AND Criminally Culpable, 29 Dec 2010 @ 11:49am

Wow. Since when has a "preponderance of the evidence" standard trumped a "beyond a reasonable doubt" standard in a criminal trial? Be afraid.
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Anonymous Coward, 29 Dec 2010 @ 11:54am

Re: Re:
You see not always something that quacks like a duck and walks like a duck is actually a duck.

I know people who don't drink but all her friends are alcoholic, that makes her a drunk bitch?

Hanging out with dubious figures is a sure thing to get in trouble because most people don't care to differentiate between them but the law is different it should be used in the last instance because it is so harsh and unforgiving and it needs a higher bar.
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abc gum, 29 Dec 2010 @ 12:05pm

It might be enough to justify further investigation, stakeout, etc but convicted? ... of what?

If Mr. Owens floats, he may be a witch as well. Better burn him just to be sure.
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trilobug, 29 Dec 2010 @ 12:16pm

Re: I wouldn't tatoo my face either.
To be honest, if you went to High School in LA depending on the neighborhood, there was/is a very real chance you would get shot for wearing a blue bandanna. It has gotten better, but in the 90s it was bad. Bandannas are gang attire, much different than having another garment by that color (though not too much if it is a solid) - BTW, let me guess it was one of those blue with white pattern on it - the quintessential The only exception I make is if you are female or have long hair, because then there is actual reason to wear it but if you are rockin' it like Tupac you are looking for unwanted often dangerous attention.

This is a bad ruling, and I agree with your VP, but that's a school not a court of law.
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Anonymous Coward, 29 Dec 2010 @ 12:21pm

Re: Re: Re:
Hanging around in a garage makes me a car, right? :)
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interval (profile), 29 Dec 2010 @ 12:28pm

Re: Re: What's a gang, anyway?
You start a web site and publish articles. If enough old-dog newsprint editors decide you're not a real journalist, you're in, baby!
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interval (profile), 29 Dec 2010 @ 12:41pm

Re: Re:
Two problems (AND why it doesn't change my conclusion); we are guaranteed the right of association and the right of free speech by the constitution. I don't care if he was dressing like the Taliban or flashing instructions on making an atomic bomb, people (like average_joe here) are way too ready to forget that we have a constitution and don't seem all that bothered that it has been repeatedly ignored the last few years.
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Anonymous Coward, 29 Dec 2010 @ 12:56pm

To take the opposing side, here's a tip: if a bunch of people are dressed up as gang members making hand signs, don't dress up just like them and pose in their pictures.
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nasch (profile), 29 Dec 2010 @ 1:07pm

Re:
No, standing around with people who are flashing gang signs can get you convicted (not just arrested).
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Anonymous Coward, 29 Dec 2010 @ 1:22pm

Re: Re: Re: Re:
or a mechanic
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rooben (profile), 29 Dec 2010 @ 1:39pm

Re:
First, Mr. Owen was not seen throwing gang signs.
Second, if you live in the inner city/urban areas, its pretty much impossible NOT to hang out, or have friends who are associated with gangs. Your childhood friends, relatives, etc all might end up joining gangs; living in these areas, one doesn't just stop associating with people because of that (esp for self protection - you don't want to seem like a person who might be willing to snitch).

Third, if you live in an area controlled by a certain gang, you also must not wear colors of another gang, or will face frequent beatings etc. The color of safety - Black, or, include the gang's color with your other clothing...it doesn't make you part of the gang, but it does make you blend in. Never wear green in a red gang area, if you want to live.

This type of law is intentionally left vague, so that not much is needed to convict. There is absolutely no proof whatsoever that this guy had done anything criminal, except to be photographed with gang members, and having a grill.
With that as evidence, just about every rapper right now should be convicted for the same crime.
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Joseph, 29 Dec 2010 @ 2:58pm

I was on a jury
The last time I did jury duty I was on a criminal case that used photos from FaceBook as evidence. These photos included hand signs, but not gang colors.

In this case the photos were used by the defense, who pulled them off of FaceBook.

It was a rape trial. Not an anonymous attacker, but a case of friendship maybe going too far and ending in a sexual relationship. The alleged victim claimed to have been raped in the afternoon, and the photos showed her in a bar that same night partying and smiling and mugging for the camera while making sexual hand signals. She was hardly acting like someone who had just been raped.

When it was time for the defense to cross-examine her, she got an "oh crap" look on her face when she was presented with the photos and asked about them.

There was other evidence of course, but the photos had a big effect on the jury.
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Rose M. Welch (profile), 29 Dec 2010 @ 4:00pm

Re: Re: Re:
Man. I misread what you wrote and was really disappointed when I clicked through and saw that average_joe didn't flash instructions for an atomic bomb.
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Rose M. Welch (profile), 29 Dec 2010 @ 4:01pm

Re: I was on a jury
She was hardly acting like someone who had just been raped.

Wow, I wasn't aware that there was a standard way to act when you've just been raped. Thanks for letting me know that anyone who isn't huddled up into a ball is faking it.
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vivaelamor (profile), 29 Dec 2010 @ 4:11pm

Re: Re: I wouldn't tatoo my face either.
"This is a bad ruling, and I agree with your VP, but that's a school not a court of law."

I'd probably agree with the VP too if they were doing it to protect a kid from getting shot.. Hard to compare that to the courts reasoning regardless of responsibility.
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vivaelamor (profile), 29 Dec 2010 @ 4:17pm

Re:
"So flashing gang signs in Myspace photos can get you arrested now? Uh oh. If that's the case, then millions of 14 year old girls are about to be thrown in jail."

I wonder if they'll try and extradite me if I innocently fabricate an association with a known American gang over MySpace.
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harbingerofdoom (profile), 29 Dec 2010 @ 5:52pm

Re: Re:
i was basing that on the quote of the judge, not the actions of this particular person... so, no... it doesnt really change my outlook much.
and, keep in mind, im still saying that none of that is enough to convict anyone of anything.

the only time associating with "known" criminals is an issue (to my knowledge at least) is when you are already on parole.
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btrussell (profile), 30 Dec 2010 @ 2:50am

Re: Re: Re: Re: Re:
or a husband.
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Anonymous Coward, 30 Dec 2010 @ 7:27am

Re: Re: Re:
>> while i do not agree that in and of itself pictures of someone hanging out with known gang members is not

Did you intend for that "not" at the end to be there?

In any case, who defines "member"? Perhaps to be recognized as a member by most of those who consider themselves to be in the gang you have to pass a test that includes mugging on three different occasions.

This person might have liked the social component of this (a wanna-be member) or feels pressured to gain the favor of this particular group.

I agree that without more evidence either the law was misapplied or there is a violation of free speech/association.

PS: the prosecutor might want to pressure this person to perhaps open up and reveal more information about the gang or maybe wants to convince this person to stay away from the gang.
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Anonymous Coward, 30 Dec 2010 @ 12:01pm

Re:
That assumes the person knows what is "dressed up as gang members". If you never had any contact with gangs, you might have no idea which kinds of clothing are considered as "dressed up as gang members" and which are not.
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cynthiadarden, 31 Dec 2010 @ 9:54pm

mybest friend
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Christopher (profile), 2 Jan 2011 @ 8:47am

Re: Re: Re:
Hanging out with 'dubious figures' should not be anywhere near enough to arrest someone for. It's like if you hang out with people who are homosexuals, you are automatically deemed as being a homosexual.

Or hanging out with a pedosexual, you are automatically deemed as being that yourself.

This ruling is going WAY WAY WAY over the line, to be blunt.
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Christopher (profile), 2 Jan 2011 @ 8:49am

Re: Re: Re: Re:
He doesn't have any right to pressure this person, Anonymous Coward (living up to your name here). If he does that, that is abuse of prosecutorial power, and he should be stomped on for doing that.

All of this is basically coming from our illegalization of the drug trade in the first place. If we would legalize it and regulate it, most of the problems with gangs, the Mafia, etc. would disappear.
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Eugene (profile), 4 Jan 2011 @ 2:18pm

Re: I was on a jury
Great story bro
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