GANG MEMBERSHIP IS CONSTITUTIONALLY PROTECTED AND THE FIRST AND FOURTEENTH AMENDMENTS PROHIBIT CRIMINALIZING GANG MEMBERSHIP PER SE
Like it or not, gang membership is constitutionally protected activity. (Dawson v. Delaware (1992) 503 U.S. 159, 161; see also City of Chicago v. Morales (1998) 527 U.S. 41.) Admittedly, Penal Code § 186.22, which closely parallels § 182.5, has been upheld against a variety of constitutional challenges, including claims based upon the First Amendment and the Due Process Clause of the Fourteenth Amendment. (See People v. Castenada (2000) 23 Cal.4th 743, 752; People v. Gardeley (1996) 14 Cal.4th 605, 622-633; People v. Green, 227 Cal.App.3d 692; People v. Gamez (1991) 235 Cal.App.3d 957, 969-976; In re Alberto R. (1991) 235 CA3d 1309, 1323-1324.) The courts are almost dismissive of the constitutional challenges because, in their opinion, the “terms of the statute” ensure that “mere membership” in a criminal street gang will not be punished and that groups or associations whose primary purpose is not the commission of crime will be excluded from coverage. (See People v. Gamez, supra, Cal.App.3d at 970-971, 973-974; In re Alberto R., supra, 235 Cal.App.3d at 1324.) “It is not the association with other individuals alone which section 186.22 addresses, but the association with others for the purpose of promoting, furthering or assisting them in the commission of crime.” (People v. Gamez (1991) 235 Cal.App.3d 957, 971.)
Penal Code § 182.5 is different from § 186.22 in one very crucial aspect: it imputes criminal liability for mere membership in a criminal street gang. § 182.5 criminalizes “benefit[ting] from” gang felonies, without any personal participation or knowledge of the crimes whatsoever.