Are All Threats Created Equal?

By Kole Lyons.

Gangs have been documented in Arizona as early as the 1930s. Since then, gangs have increased in number and become involved in more criminal activities around the state. As violent crime in Arizona was reaching a peak in 2005–2006, the state legislature amended the statute criminalizing threats to punish threats made by gang members harsher than threats by non-gang members. For example, if the average citizen makes a criminal threat, he will be charged with a misdemeanor; if a member of a gang makes the same threat, he will be charged with a felony.

“Original Golfos” by El Chico Iwana is licensed under CC BY-NC-ND 2.0

The reasoning behind this amendment likely came from the presumption that when a gang member makes a threat, they are more likely to make good on it, as well as manifesting the legislature’s attempt to deter gang membership by punishing gang members any way they can. This and other gang membership statutes are frequently the subjects of constitutional claims in the courts. In the latest case, on September 1, 2020, the Arizona Supreme Court decided that the law mentioned above violates the due process requirements of the United States and Arizona Constitutions.

In the unanimous decision of State v. Arevalo, the Court ruled that the statute enhanced consequences even if the underlying act had nothing to do with gang membership. It determined that such an enhancement is nothing more than imposing guilt by association.

The Case:

The facts underlying this case involved two separate instances where Christopher Arevalo allegedly threatened others. The first occurred at a store where the clerk recognized Arevalo from previous shoplifting incidents and asked him to leave; as he left, Arevalo mimicked holding a firearm and made gunfire noises in the direction of the store employees. The second involved Arevalo telling a police officer he would bash his head while holding a tire iron.

Based on these facts, the state charged Arevalo with two felonies, rather than misdemeanors, because Arevalo met the standards to qualify as a member of a criminal street gang. The trial court agreed to dismiss the charges, but the court of appeals reinstated the charges holding that the statute doesn’t just punish mere membership; instead, it penalizes the “added menace” that occurs when a member of a gang engages in criminal conduct.

Arevalo appealed to the Arizona Supreme Court, claiming that Arizona is the only state that still had a penalty enhancement based on gang membership alone. Supporting this proposition, Arevalo cited states across the nation that have recently done away with these types of statutes.

In response, the State argued that just two years prior, the Arizona Court of Appeals held the same statute constitutional. Furthermore, the State argued there is a difference between a sentence enhancement and criminalizing mere membership in a gang. The statute doesn’t criminalize only the association. Instead, the crime is the threat or the act of intimidation, and the statute only enhances the sentence. The actual criminal liability comes from making a threat. 

The Supreme Court rejected the State’s arguments. In part, the Court held that this statute wouldn’t even survive the most forgiving standard for constitutional review. This standard, known as the rational basis review, only requires that a statute has any conceivable rational basis to further a legitimate government interest. The Court believed this was not satisfied because the statute did not require a connection between the threat and the gang membership.

While this upholds the critical ideals of personal freedoms and individual liberties, it seems to not adequately account for the gang culture this statute was written to address. Those tasked with policing and prosecuting gang crimes know that even without explicit acts to intimidate, a history of gang violence in an area can create a culture of fear, resulting in people feeling threatened or intimidated absent any express threat. One way to combat this culture would be for a legislature to punish any member of a gang for making threats as the Arizona legislature did in 2007.

It seems that reducing a culture of fear would be a legitimate governmental interest. The Court may have a problem with the other requirement of the rational basis review; the statute does nothing to further that governmental interest. The examples the Court gives would lead one to believe the problem is over-inclusiveness. The current statute, as written, applies even to defendants whom the victims don’t suspect of being gang members.

The inclusion of these defendants seemed to be enough for the Court to declare the statute unconstitutional. To create the connection, the Court seemingly would require the legislature to amend the statute to only increase the punishment when the victim knows about the defendant’s gang affiliations. This would remedy the over-inclusive problem but would likely come with additional problems of its own. For example, along with evidence of the threat, prosecutors would also have to provide evidence that the victim knew, at the time of the threat, that the defendant was a gang member.

Alternatively, other portions of the same statute individually criminalize making a threat to promote the interests of a criminal street gang as a felony. Therefore, when the facts support it, threats made by gang members can still be charged as felonies when there’s evidence that they were made to promote the interests of the gang. This doesn’t fully resolve the culture of fear created in gang communities. Still, it means that this Supreme Court decision has not left police and prosecutors powerless against threats by gang members.

The Court, in this instance, while protecting due process rights, has impeded the government’s progress in breaking down the culture of fear in communities where gangs thrive. By putting too much emphasis on the lack of a connection, the Court did not adequately address these legitimate governmental interests, leaving the legislature with fewer options if they wish to continue to fight against gangs in Arizona communities.

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By Kole Lyons.

J.D. Candidate, 2022

Kole Lyons is a second-year law student and a Staff Writer for the Arizona State Law Journal. Before law school, he earned degrees in Law and Constitutional Studies and Criminal Justice at Utah State University. In his spare time, he enjoys watching sports and going on adventures with his family.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.