Reprinted
February 22, 2007
HOUSE BILL No. 1384
_____
DIGEST OF HB 1384
(Updated February 21, 2007 11:29 am - DI 107)
Citations Affected: IC 5-2; IC 10-11; IC 34-6; IC 34-24; IC 35-45;
IC 35-50.
Synopsis: Criminal gangs. Changes the definition of "criminal gang",
for purposes of certain criminal statutes, to provide that a criminal gang
consists of at least three members (instead of five members). Makes it
a Class D felony for an individual to solicit, recruit, entice, or
intimidate another individual to join a criminal gang. Makes criminal
gang recruitment a Class C felony if: (1) the solicitation, recruitment,
enticement, or intimidation to join a criminal gang occurs within 1,000
feet of school property; or (2) the individual being solicited, recruited,
enticed, or intimidated to join a criminal gang is less than 18 years of
age. Requires a court to order a criminal gang member to make
restitution to a victim of a felony or misdemeanor committed by the
criminal gang member. Provides that a victim or certain entities have
a civil cause of action against a criminal gang member for the
commission of a felony or misdemeanor by the criminal gang member.
Requires the criminal justice institute to develop, maintain, and identify
grants and other funds for the criminal gang witness protection
program (program). Establishes a program to provide a person who
witnesses criminal gang crime with certain expenses. Requires the state
police to develop and maintain the criminal gang data base to assist law
enforcement with the exchange of information regarding criminal
gangs. Requires the state police and the criminal justice institute to
identify grants and other funds to operate the criminal gang data base.
Effective: July 1, 2007.
Lawson L, Ulmer, Foley
,
Bardon
(SENATE SPONSORS _ BRAY, MRVAN, LANDSKE)
January 16, 2007, read first time and referred to Committee on Judiciary.
February 13, 2007, amended, reported _ Do Pass.
February 19, 2007, read second time, ordered engrossed. Engrossed.
February 21, 2007, read third time, recommitted to Committee of One, amended; passed.
Yeas 95, nays 0.
Reprinted
February 22, 2007
First Regular Session 115th General Assembly (2007)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
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between statutes enacted by the 2006 Regular Session of the General Assembly.
HOUSE BILL No. 1384
A BILL FOR AN ACT concerning criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 5-2-6-3; (07)HB1384.2.1. -->
SECTION 1. IC 5-2-6-3, AS AMENDED BY P.L.173-2006,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2007]: Sec. 3. The institute is established to do the following:
(1) Evaluate state and local programs associated with:
(A) the prevention, detection, and solution of criminal
offenses;
(B) law enforcement; and
(C) the administration of criminal and juvenile justice.
(2) Improve and coordinate all aspects of law enforcement,
juvenile justice, and criminal justice in this state.
(3) Stimulate criminal and juvenile justice research.
(4) Develop new methods for the prevention and reduction of
crime.
(5) Prepare applications for funds under the Omnibus Act and the
Juvenile Justice Act.
(6) Administer victim and witness assistance funds.
(7) Administer the traffic safety functions assigned to the institute
under IC 9-27-2.
(8) Compile and analyze information and disseminate the
information to persons who make criminal justice decisions in this
state.
(9) Serve as the criminal justice statistical analysis center for this
state.
(10) Identify grants and other funds that can be used by the
department of correction to carry out its responsibilities
concerning sex offender registration under IC 11-8-8.
(11) Administer the application and approval process for
designating an area of a consolidated or second class city as a
public safety improvement area under IC 36-8-19.5.
(12) Develop and maintain a meth watch program to inform
retailers and the public about illicit methamphetamine production,
distribution, and use in Indiana.
(13) Develop and manage the gang crime witness protection
program under section 19 of this chapter.
(14) Identify grants and other funds that can be used to fund
the gang crime witness protection program.
(15) Identify grants and other funds that can be used by the
state police department and law enforcement agencies to
carry out responsibilities concerning the statewide criminal
gang data base under IC 10-11-2-32.
SOURCE: IC 5-2-6-19; (07)HB1384.2.2. -->
SECTION 2. IC 5-2-6-19 IS ADDED TO THE INDIANA CODE
AS A
NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2007]:
Sec. 19. (a) The gang crime witness protection program is
established.
(b) The gang crime witness protection program established by
subsection (a) shall be developed and maintained to assist witnesses
of gang crimes with:
(1) temporary living costs;
(2) moving expenses;
(3) rent;
(4) security deposits; and
(5) other appropriate expenses for relocation or transitional
housing.
(c) The institute shall develop and maintain procedures to
award funds for the purposes described in subsection (b) to an
individual who witnesses a gang crime.
(d) The institute shall adopt rules under IC 4-22-2 to implement
this section.
(e) The director of the Indiana criminal justice institute may
delay the implementation of this section until the earlier of the
following:
(1) A date set by the director.
(2) The date funding becomes available by a grant through the
criminal justice institute or by an appropriation from the
general assembly.
If the director of the criminal justice institute delays
implementation of this section, the director shall notify each
prosecuting attorney of the director's action.
SOURCE: IC 5-2-6-20; (07)HB1384.2.3. -->
SECTION 3. IC 5-2-6-20 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2007]: Sec. 20. (a) The gang crime witness protection fund is
established. The institute shall administer the fund.
(b) The institute shall use money in the fund for costs described
in section 19(b) of this chapter.
(c) The institute shall identify grants and other funds that can
be used to fund the gang crime witness protection program under
section 19 of this chapter.
(d) Money in the gang crime witness protection fund at the end
of a state fiscal year does not revert to the state general fund.
SOURCE: IC 10-11-2-32; (07)HB1384.2.4. -->
SECTION 4. IC 10-11-2-32 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2007]: Sec. 32. (a) The department shall develop and manage a
statewide criminal gang data base.
(b) The statewide criminal gang data base established by
subsection (a) shall be developed and maintained to assist law
enforcement in the exchange of information concerning:
(1) membership in criminal gangs;
(2) arrest records and criminal convictions of criminal gang
members;
(3) activities of criminal gangs; and
(4) other information that can assist law enforcement with
monitoring criminal gangs.
(c) The department shall develop and maintain procedures to
obtain and disburse information regarding criminal gangs.
(d) Data and information in the statewide criminal database are
for law enforcement purposes only and cannot be disclosed to
individuals who are not law enforcement officers or entities that
are not law enforcement agencies.
(e) The department shall share information contained in the
statewide criminal gang data base regarding gang affiliations and
gang activity with any law enforcement agency that may benefit
from the information.
(f) The department shall adopt rules under IC 4-22-2 to
implement this section.
(g) The department and the criminal justice institute shall
identify grants and other funds that can be used by the department
and law enforcement agencies to carry out responsibilities
concerning the statewide criminal gang data base.
SOURCE: IC 34-6-2-32; (07)HB1384.2.5. -->
SECTION 5. IC 34-6-2-32 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 32. "Criminal gang",
for purposes of:
(1) section 6 of this chapter; and
(2) IC 34-24-5;
has the meaning set forth in IC 35-45-9-1.
SOURCE: IC 34-24-5; (07)HB1384.2.6. -->
SECTION 6. IC 34-24-5 IS ADDED TO THE INDIANA CODE AS
A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2007]:
Chapter 5. Criminal Gang Liability
Sec. 1. (a) A person who:
(1) commits or conspires to commit a crime; and
(2) is a criminal gang member;
is liable for civil damages as provided in this chapter.
(b) A law enforcement officer or agency, the state, or a person
acting at the direction of a law enforcement officer or agency or
the state is not liable under this chapter for actions that further an
official investigation of a criminal gang.
Sec. 2. The following persons may bring an action for damages
concerning a crime committed by a person described in section 1(a)
of this chapter:
(1) A victim of the crime.
(2) A:
(A) parent;
(B) legal guardian;
(C) child;
(D) spouse; or
(E) sibling;
of a victim of the crime.
(3) A medical facility, an insurer, a governmental entity, an
employer, a law enforcement agency, a fire department, an
emergency medical service provider, or other entity that
spends any funds or uses any resources:
(A) investigating; or
(B) responding to an incident related to;
the crime.
(4) A person injured as a result of the willful, reckless, or
negligent actions of a person described in section 1(a) of this
chapter in the course of committing the crime.
(5) Any neighborhood association registered with the
municipal governing body, the official geographic boundaries
of which encompass the location where the crime occurred.
Sec. 3. A complaint under section 2 of this chapter may be
amended at any time to add additional defendants who committed
or conspired to commit the crime.
Sec. 4. A person described in section 2(1) through 2(5) of this
chapter may recover the following damages:
(1) Economic damages, including costs for the following:
(A) Treatment and rehabilitation.
(B) Medical expenses.
(C) Loss of economic or educational potential.
(D) Loss of productivity.
(E) Absenteeism.
(F) Support expenses.
(G) Accidents or injury.
(H) Any other pecuniary loss proximately caused by the
felony or misdemeanor.
(2) Noneconomic damages, including costs for the following:
(A) Physical and emotional pain and suffering.
(B) Physical impairment.
(C) Emotional distress.
(D) Medical anguish.
(E) Disfigurement.
(F) Loss of enjoyment.
(G) Loss of companionship, services, and consortium.
(H) Any other nonpecuniary loss proximately caused by
the felony or misdemeanor.
(3) Exemplary damages.
(4) Reasonable attorney's fees.
(5) Court costs, including reasonable expenses for expert
testimony.
Sec. 5. (a) An action by an individual brought under this chapter
is governed by the principles of comparative liability under
Indiana law. Comparative liability attributed to a plaintiff does not
bar recovery, but diminishes the award of compensatory damages
proportionally according to the measure of responsibility
attributed to the plaintiff.
(b) The burden of proving the comparative liability of the
plaintiff in an action brought under this chapter:
(1) is on the defendant; and
(2) must be shown by clear and convincing evidence.
Sec. 6. (a) A person who is subject to liability under this chapter
has a right of action for contribution against another person
subject to liability under this chapter.
(b) Contribution may be enforced in:
(1) the original action; or
(2) a separate action brought for that purpose.
(c) A plaintiff may seek recovery under this chapter and any
other applicable law against a person whom a defendant has
asserted a right of contribution.
Sec. 7. Proof of the commission of or conspiracy to commit a
crime by a criminal gang member must be shown by clear and
convincing evidence. Unless otherwise provided in this chapter,
other elements of an action brought under this chapter must be
shown by a preponderance of the evidence.
Sec. 8. (a) Subject to subsection (c), a plaintiff in an action
brought under this chapter may request an ex parte prejudgment
attachment order from the court against all assets of a defendant
sufficient to satisfy a potential award. If attachment is instituted,
a defendant is entitled to an immediate hearing. Attachment may
be lifted if the defendant:
(1) demonstrates that the defendant's assets will be available
for a potential award; or
(2) posts a bond in an amount that is sufficient to cover a
potential award.
(b) A person against whom a judgment has been rendered under
this chapter may not exempt any property from process to levy or
process to execute on the judgment.
(c) Any assets that are:
(1) sought to satisfy a judgment under this chapter; and
(2) involved in a forfeiture action or that have been seized for
forfeiture by any state or federal agency;
may not be used to satisfy a judgment until the assets have been
released following the conclusion of the forfeiture action or
released by the agency that seized the assets.
Sec. 9. (a) Except as otherwise provided in this section, a claim
under this chapter must be brought not more than two (2) years
after the date the criminal gang member is convicted of the
underlying felony or misdemeanor.
(b) The statute of limitations under this section is tolled for a
plaintiff while the individual potential plaintiff is incapacitated due
to injury resulting from the underlying felony or misdemeanor.
Sec. 10. The attorney general may represent the state or a
political subdivision of the state in an action brought under this
chapter.
Sec. 11. This chapter may not be construed to alter any law
regarding tort immunity within a family.
SOURCE: IC 35-45-9-1; (07)HB1384.2.7. -->
SECTION 7. IC 35-45-9-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 1. As used in this
chapter, "criminal gang" means a group with at least five (5) three (3)
members that specifically:
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or
(2) requires as a condition of membership or continued
membership;
the commission of a felony or an act that would be a felony if
committed by an adult or the offense of battery (IC 35-42-2-1).
SOURCE: IC 35-45-9-5; (07)HB1384.2.8. -->
SECTION 8. IC 35-45-9-5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2007]: Sec. 5. (a) Except as provided in subsection (b), an
individual who knowingly or intentionally solicits, recruits, entices,
or intimidates another individual to join a criminal gang commits
criminal gang recruitment, a Class D felony.
(b) The offense under subsection (a) is a Class C felony if:
(1) the solicitation, recruitment, enticement, or intimidation
occurs within one thousand (1,000) feet of school property; or
(2) the individual who is solicited, recruited, enticed, or
intimidated is less than eighteen (18) years of age.
SOURCE: IC 35-45-9-6; (07)HB1384.2.9. -->
SECTION 9. IC 35-45-9-6 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2007]: Sec. 6. In addition to any sentence or fine imposed on a
criminal gang member for committing a felony or misdemeanor,
the court shall order a criminal gang member convicted of a felony
or misdemeanor to make restitution to the victim of the crime
under IC 35-50-5-3.
SOURCE: IC 35-50-2-1.4; (07)HB1384.2.10. -->
SECTION 10. IC 35-50-2-1.4, AS ADDED BY P.L.109-2006,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2007]: Sec. 1.4. For purposes of section 15 of this chapter,
"criminal gang" means a group with at least
five (5) three (3) members
that specifically:
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or
(2) requires as a condition of membership or continued
membership;
the commission of a felony or an act that would be a felony if
committed by an adult or the offense of battery (IC 35-42-2-1).