DOJ Brief in Appeal

8/9/2019 DOJ Brief in Appeal

http://slidepdf.com/reader/full/doj-brief-in-appeal 1/43

No. 14-1848

IN THE UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

MARK PARSONS et al.,

Plaintiffs-Appellants,

v.

U.S. DEPARTMENT OF JUSTICE et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MICHIGAN

BRIEF FOR THE APPELLEES

JOYCE R. BRANDA Acting Assistant Attorney General

BARBARA L. MCQUADEUnited States Attorney

MICHAEL S. RAAB(202) 514-4053

LINDSEY POWELL(202) 616-5372

Attorneys, Appellate StaffCivil Division, Room 7226U.S. Department of Justice950 Pennsylvania Ave., NW

Washington, DC 20530

Case: 14-1848 Document: 29 Filed: 01/28/2015 Page: 1



TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT

STATEMENT OF JURISDICTION ................................................................................... 1

STATEMENT OF THE ISSUES .......................................................................................... 1

STATEMENT OF THE CASE ............................................................................................. 1

A. Statutory and Regulatory Background ........................................................................ 1

1. The Administrative Procedure Act ................................................................. 1

2. The National Gang Intelligence Center and Report .................................... 2

B. Factual Background ....................................................................................................... 5

C. Procedural Background ................................................................................................ 6

SUMMARY OF ARGUMENT .............................................................................................. 8

STANDARD OF REVIEW ................................................................................................. 10

ARGUMENT .......................................................................................................................... 11

I. Plaintiffs Lack Standing To Challenge the 2011 NGIC Report .......................... 11

A. Plaintiffs ’ standing arguments fail at the outset becausethey are premised on plaintiffs having been injured by theReport ’s “gang designation,” but the Report makes no suchdesignation ........................................................................................................ 12

B. Plaintiffs ’ claims of First Amendment and reputationalinjuries additionally fail to establish standing because theyare too speculative and too generalized to establish aninjury-in-fact ...................................................................................................... 14




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C. Plaintiffs ’ alleged injuries caused by third parties fail to establishstanding because the injuries are not fairly traceable to the Reportand would not be redressed by an order setting the Report aside ........... 18

II. The Report Is Not “Final Agency Action” Under the AdministrativeProcedure Act ............................................................................................................... 22

CONCLUSION ...................................................................................................................... 26

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

ADDENDUM




iii

TABLE OF AUTHORITIES

Cases: Page

Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc.,280 F.3d 619 (6th Cir. 2002) ............................................................................................. 10

ACLU v. NSA ,493 F.3d 644 (6th Cir. 2007) ............................................................................................. 23

Ashcroft v. Iqbal ,556 U.S. 662 (2009) ............................................................................................................ 20

Bell Atlantic Corp. v. Twombly,,550 U.S. 540 (2007) ............................................................................................................ 20

Bennett v. Spear ,520 U.S. 154 (1997) ..............................................................................2, 10, 22, 23, 25, 26

Clapper v. Amnesty Int ’ l USA ,133 S. Ct. 1138 (2013) ............................................................................................. 8, 11, 19

Dalton v. Specter ,511 U.S. 462 (1994) ..................................................................................................... 10, 24

Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S. EPA,313 F.3d 852 (4th Cir. 2002) ......................................................................... 10, 24, 25, 26

Foretich v. United States ,351 F.3d 1198 (D.C. Cir. 2003) ..................................................................... 16, 17, 20, 21

Franklin v. Massachusetts ,505 U.S. 788 (1992) ............................................................................................................ 24

Handy-Clay v. City of Memphis ,695 F.3d 531 (6th Cir. 2012) ............................................................................................. 22

Laird v. Tatum ,408 U.S. 1 (1972) .......................................................................................................... 16, 17




iv

Lambert v. Hartman ,517 F.3d 433 (6th Cir. 2008) ...................................................................................... 20, 21

Lujan v. Defenders of Wildlife ,504 U.S. 555 (1992) ..................................................................................................... 12, 19

Meese v. Keene ,481 U.S. 465 (1987) ............................................................................................... 15, 16, 17

Monroe Retail, Inc. v. RBS Citizens, N.A.,589 F.3d 274 (6th Cir. 2009) ............................................................................................. 10

Monsanto Co. v. Geertson Seed Farms ,561 U.S. 139 (2010) ....................................................................................................... 8, 12

Morrison v. Board of Educ.,521 F.3d 602 (6th Cir. 2008) .................................................................................. 9, 15, 19

Rasins Landscape & Assocs. v. Michigan Dep’ t of Transp.,528 F. App ’x 441 (6th Cir. 2013) ...................................................................................... 22

Shearson v. Holder ,725 F.3d 588 (6th Cir. 2013) ............................................................................................. 19

Summers v. Earth Island Inst.,555 U.S. 488 (2009) ....................................................................................................... 9, 12

Virginia v. American Booksellers Ass ’ n ,484 U.S. 383 (1988) ............................................................................................................ 18

White v. United States ,601 F.3d 545 (6th Cir. 2010) ................................................................................ 15, 17, 19

Wuliger v. Manufacturers Life Ins. Co.,567 F.3d 787 (6th Cir. 2009) ............................................................................................. 20

Statutes:

5 U.S.C. § 551(13) ............................................................................................................... 2, 22




v

5 U.S.C. § 704 ..................................................................................................... 1, 2, 10, 11, 22

5 U.S.C. § 706(2) ............................................................................................................... 14, 19

5 U.S.C. § 706(2)(A) .................................................................................................................. 2

28 U.S.C. § 1291 ........................................................................................................................ 1

28 U.S.C. § 1331 ........................................................................................................................ 1

28 U.S.C. § 2201(a) .................................................................................................................. 14

Violence Against Women and Department of Justice Reauthorization

Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006) ....................................... 2, 23

Rules:

FED . R. APP . P. 4(a)(1)(B) ......................................................................................................... 1

Other Authorities:

2 Arrested in attempted Kidnapping , KSL.com (Sept. 10, 2008) ............................................... 3

Beth Brelje, Pocono Teens Charged in Murder Part of Juggalo Gang Known forViolent Rap, Pocono Rec. (Feb. 19, 2009) ......................................................................... 3

Black’s Law Dictionary (9th ed. 2009) ..................................................................................... 18




STATEMENT REGARDING ORAL ARGUMENT

The questions on appeal are whether plaintiffs have standing to challenge a

Report published by the National Gang Intelligence Center and, if so, whether the

Report is final agency action within the meaning of the Administrative Procedure Act.

Plaintiffs have requested oral argument, and the government requests argument to

defend the judgment entered by the district court in the government’s favor.




STATEMENT OF JURISDICTION

Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C. § 1331. RE 1,

Page ID # 4. On June 30, 2014, the district court entered an order dismissing the

case for lack of standing. RE 29, Page ID # 309. On July 8, 2014, plaintiffs filed a

timely notice of appeal. RE 30, Page ID # 323-24; Fed. R. App. P. 4(a)(1)(B). This

Court has jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the complaint should be dismissed for lack of standing because

plaintiffs have failed to allege any actual, concrete, or certainly impending injury that is

fairly traceable to the National Gang Intelligence Center’s 2011 Report and

redressable by an order setting the Report aside.

2. Whether, even if plaintiffs have standing, the complaint should be dismissed

because the challenged Report does not determine any rights or obligations and

therefore is not “final agency action” within the meaning of the Administrative

Procedure Act, 5 U.S.C. § 704.

STATEMENT OF THE CASE

A. Statutory and Regulatory Background

1. The Administrative Procedure Act

The Administrative Procedure Act (APA) provides for judicial review of

“[a]gency action made reviewable by statute and final agency action for which there is




2

no other adequate remedy in a court.” 5 U.S.C. § 704. The Act directs that a

reviewing court shall “hold unlawful and set aside” agency action found to be

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” Id. § 706(2)(A). “Agency action” is defined to include “the whole or a part of

an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or

failure to act.” Id. § 551(13). To be final, an agency action must mark the

consummation of the agency’s decisionmaking process, and it “must be one by which

rights or obligations have been determined, or from which legal consequences willflow.” Bennett v. Spear , 520 U.S. 154, 177-78 (1997) (internal quotation marks omitted).

2. The National Gang Intelligence Center and Report

Congress established the National Gang Intelligence Center (NGIC) “to

collect, analyze, and disseminate gang activity information” from federal, state, and

local authorities. Violence Against Women and Department of Justice

Reauthorization Act of 2005, Pub. L. No. 109-162, Title XI, § 1107(a), 119 Stat. 2960,

3093 (2006). A component of the Federal Bureau of Investigation (FBI), NGIC is

directed to make this information available to federal, state, and local law

enforcement, corrections, and prosecutorial agencies, and to submit an annual report

to Congress on gang activity. Id. § 1107(b)-(c). NGIC also prepares reports

identifying gang-related trends and topics of interest so that law enforcement and the

public may better understand current and emerging threats. See RE 20-1, Page ID




3

# 181. NGIC thus “operates as a repository and dissemination hub for gang

intelligence.” RE 20-1, Page ID # 179.

In 2011, NGIC published a report titled 2011 National Gang Threat

Assessment—Emerging Trends (Report). RE 20-1, Page ID # 180. 1 The Report

included information that NGIC received from state and local law enforcement

agencies regarding criminal and gang-like behavior among certain subsets of

individuals who identify as Juggalos—a term used to refer to fans of the musical

group Insane Clown Posse. RE 20-1, Page ID # 181. Twenty-one States reportedcriminal activity among Juggalo subsets, and four of those States identified Juggalos as

a gang. Id. NGIC also obtained open-source information, including media reporting,

regarding criminal activity among individuals identifying as Juggalos.Id. As reported,

Juggalos have been implicated in a variety of crimes, including murder, attempted

murder, aggravated assault, and kidnapping. See, e.g., 2 Arrested in attempted Kidnapping ,

KSL.com (Sept. 10, 2008);2 Beth Brelje, Pocono Teens Charged in Murder Part of Juggalo

Gang Known for Violent Rap, Pocono Rec. (Feb. 19, 2009).3 “[N]o FBI investigation

1 Relevant excerpts from the Report are included in an addendum to this brief.Citations to the Report will use the pagination provided in the addendum (e.g., A1).

The full Report is available at http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment/2011-national-gang-threat-assessment-emerging-trends (last visited Jan. 26, 2015).

2 Available at http://www.ksl.com/?nid=148&sid=4225190 (last visited Jan.26, 2015).

3 Available at http://www.poconorecord.com/article/20090219/NEWS/902190328 (last visited Jan. 26, 2015).




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[was] initiated to identify Juggalos as a gang in the 2011 NGIC Report. Their

inclusion in the 2011 NGIC Report was entirely based upon state and local law

enforcement reporting” and open-source information. RE 20-1, Page ID # 181.

Based on the information received from these sources, the Report included a

discussion of Juggalos in a section addressing the emerging trend of “loosely-

organized hybrid gang[s].” A5 (Report at 22). The Report describes hybrid gangs as

“non-traditional gangs with multiple affiliations” that are generally “fluid in size and

structure” and “difficult to track, identify, and target as they are transient andcontinuously evolving.” Id. Of Juggalos, the Report states: “Although recognized as

a gang in only four states, many Juggalo[] subsets exhibit gang-like behavior and

engage in criminal activity and violence. Law enforcement officials in at least 21 states

have identified criminal Juggalo sub-sets, according to NGIC reporting.” Id. While

“[m]ost crimes committed by Juggalos are sporadic, disorganized, individualistic, and

often involve simple assault, personal drug use and possession, petty theft, and

vandalism,” id., “open source reporting suggests that a small number of Juggalos are

forming more organized subsets and engaging in more gang-like criminal activity,

such as felony assaults, thefts, robberies, and drug sales,” A5-A6 (Report at 22-23). In

addition, “law enforcement reporting suggests that Juggalo criminal activity has

increased over the past several years and has expanded to several other states.

Transient, criminal Juggalo groups pose a threat to communities due to the potential




5

for violence, drug use/sales, and their general destructive and violent nature.” A6

(Report at 23).

B. Factual Background

Each of the six plaintiffs in this case alleges that he self-identifies as a Juggalo,

that he has never knowingly affiliated with a gang, and that he has been injured by

what plaintiffs describe as the Report’s “designation” of Juggalos as a gang. Plaintiffs

contend that this gang designation has had a chilling effect on their expressive and

associative conduct and has harmed their reputations. They allege that, because theReport “classif[ies] the entire group of Juggalos . . . as some form of criminal gang,”

RE 1, Page ID # 25, plaintiffs must “refrain from identifying themselves as Juggalos”

or “associating with other Juggalos” “[i]n order to avoid being subject to police

scrutiny as . . . gang member[s],” RE 1, Page ID # 21. Plaintiffs also assert that the

gang designation has caused “harms to Plaintiffs’ good names, reputations, honor and

integrity.” RE 1, Page ID # 23.

In addition, plaintiffs allege that they have suffered harms by third parties who

were acting in reliance on the Report. Plaintiff Mark Parsons alleges that he was

stopped by a Tennessee State Trooper and questioned about a Juggalo symbol

displayed on his vehicle. RE 1, Page ID # 7-8. Plaintiff Brandon Bradley similarly

alleges that he was stopped on three occasions by local law enforcement officers in

California and questioned about his Juggalo tattoos and merchandise. RE 1, Page ID




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# 11. Plaintiffs Joseph Bruce and Joseph Utsler, who are members of the Insane

Clown Posse, allege that a Michigan music venue cancelled a 2012 performance at the

request of local police. RE 1, Page ID # 14. Plaintiff Scott Gandy alleges that a U.S.

Army recruitment officer told him that the Army would deny his application if he did

not remove or cover his Juggalo tattoos. RE 1, Page ID # 12. After Gandy covered

his tattoos to the recruiter’s satisfaction, his application was nevertheless denied. RE

1, Page ID # 13. Plaintiff Robert Hellin alleges that he has been a corporal in the

Army for six years and fears he will suffer discipline or involuntary discharge from the Army based on his Juggalo tattoos. Id. Plaintiffs allege that the third parties

responsible for these actions relied on the “Juggalo gang designation” in the Report.

SeeRE 1, Page ID # 8, 11-14.

C. Procedural Background

Plaintiffs filed suit against the U.S. Department of Justice (DOJ) and Federal

Bureau of Investigation in January 2014, asserting claims under the Administrative

Procedure Act alleging that NGIC’s 2011 Report was arbitrary and capricious and

violated their rights under the First and Fifth Amendments to the U.S. Constitution.

RE 1, Page ID # 23-35. Plaintiffs also seek relief under the Declaratory Judgment

Act. RE 1, Page ID # 35-36. The government moved to dismiss the complaint,

arguing that plaintiffs lacked constitutional standing and had failed to state a claim




7

under the APA because they had identified no “final agency action” within the

meaning of the Act.

In June 2014, the district court granted the government’s motion to dismiss

based on plaintiffs’ lack of standing. To establish standing, plaintiffs must show that

they have suffered an injury-in-fact, that the injury is fairly traceable to the challenged

action of the defendant, and that it is likely that the injury will be redressed by a

decision in plaintiffs’ favor. RE 29, Page ID # 316. With respect to plaintiff Robert

Hellin, the court found that the first prong of the standing inquiry was not satisfiedbecause Hellin “does not allege that he has suffered any injury at all.” RE 29, Page ID

# 321. “Hellin’s injury relies on his fear that the Army maytake action against him at

some point in the future , despite the fact that by his own allegations, he has been a soldier

for six years.” Id. “There is no indication that Hellin’s discharge is ‘certainly

impending’” as the standing inquiry requires. Id.

With respect to the other five plaintiffs, the court concluded that they had not

adequately alleged that their injuries were fairly traceable to the Report or could be

redressed by the relief requested in the complaint. The court observed that the

Report “does not recommend any particular course of action for local law

enforcement to follow, and instead operates as a descriptive, rather than prescriptive,

assessment of nation-wide gang trends.” RE 29, Page ID # 319. Because each of the

third-party actors alleged to have directly caused plaintiff’s injuries exercised




8

independent authority in deciding what action to take, the injuries are not fairly

traceable to the Report. RE 29, Page ID # 319-20.

The court stated that “[t]his conclusion is further illustrated by the redress

Plaintiffs seek in their complaint.” RE 29, Page ID # 320. As the court explained, “it

is unclear how any of Plaintiffs’ requested remedies would redress the damage they

claim. An injunction mandating the retraction of the 2011 [Report], even if

warranted, would not compel or enjoin any action by the various independent actors

who allegedly caused Plaintiffs’ injuries, and who are not parties to this action.” Id.

Moreover, “there are a multitude of state agencies and media reports that have

described Juggalo gang activity long prior to the 2011 [Report] and would continue to

do so regardless of the outcome of this action.” Id. The court thus dismissed the

complaint for lack of standing.

SUMMARY OF ARGUMENT

I. The district court correctly held that plaintiffs lack standing to challenge the

2011 NGIC Report. To establish Article III standing, a plaintiff must allege an injury

that is “concrete, particularized, and actual or imminent; fairly traceable to the

challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed

Farms , 561 U.S. 139, 149 (2010). The standing inquiry is heightened where a plaintiff

challenges the constitutionality of the act of another branch of government. Clapper v.

Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013). And it is particularly difficult to




9

make that showing where, as here, the plaintiff is not himself the object of the

challenged action. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).

Plaintiffs’ allegations do not suffice to satisfy even the ordinary standing

inquiry, let alone the more rigorous inquiry appropriate in these circumstances.

Plaintiffs allege that they suffered a number of harms as a result of the “gang

designation” in the Report. Pl. Br. 2, 17-18. The First Amendment, reputational, and

third-party harms that they identify are all premised on the view that the Report

makes such a designation. But plaintiffs themselves acknowledge that the Report infact does no such thing. Id. at 6 n.3 (“[T]he 2011 Threat Assessment is not thegang

designation; it merely reflects that designation.”) (emphasis in original). Plaintiffs

nowhere specify where the alleged designation is made or by whom—nor could they,

as defendants nowhere make formal gang designations of this type. At the very least,

it is clear that no such designation was made by defendants in the challenged Report.

It follows that the Report is not the cause of plaintiffs’ alleged injuries and that those

injuries would not be redressed by an order setting the Report aside.

Plaintiffs’ standing arguments fail for the additional reason that the First

Amendment and reputational harms that they allege are too speculative and too

generalized to meet the requirement of an injury that is concrete, particularized, and

actual or imminent. See Morrison v. Board of Educ., 521 F.3d 602, 610 (6th Cir. 2008).

And their claims of harms inflicted by third parties, while more concrete, are not fairly




10

traceable to the Report or likely to be redressed by the relief plaintiffs seek, as they are

the result of the independent actions of third parties not before the court.

II. Even if plaintiffs could establish standing, the complaint should be

dismissed because the Report is not “final agency action” subject to review under the

Administrative Procedure Act. 5 U.S.C. § 704. The Report does not determine any

legal rights or obligations, and it does not otherwise alter the legal regime. See Bennett

v. Spear , 520 U.S. 154, 177-78 (1997). The contention that the Report may have

influenced the decisions of third parties, without more, does not suffice to make theaction final within the meaning of the Administrative Procedure Act. See Dalton v.

Specter , 511 U.S. 462, 469-70 (1994);Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S.

EPA , 313 F.3d 852, 859 (4th Cir. 2002).

STANDARD OF REVIEW

This Court reviews a district court’s determination of standing de novo. Monroe

Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 278 (6th Cir. 2009). Where “this

court’s de novo review involves only application of legal propositions to the

undisputed facts in the record, [it] may affirm on any grounds supported by the record

even if different from the reasons of the district court.” Abercrombie & Fitch Stores, Inc.

v. American Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002).




11

ARGUMENT

The National Gang Intelligence Center operates as a repository and

dissemination hub for gang intelligence that is provided by a variety of sources,

including state and local law enforcement. NGIC’s 2011 Report made available

information regarding then-current and -emerging trends in gang activity, including

information that certain subsets of individuals identifying themselves as Juggalos had

been engaging in criminal activity and, in some instances, exhibiting gang-like

behavior. The district court correctly held that plaintiffs lack standing to challenge theReport. Moreover, because the Report does not confer any rights or obligations or

otherwise alter the legal regime, it is not “final agency action” subject to review under

the Administrative Procedure Act. 5 U.S.C. § 704. Accordingly, the Court should

affirm the judgment of the district court dismissing the complaint.

I. Plaintiffs Lack Standing To Challenge the 2011 NGIC Report

The requirements of Article III standing are premised on separation-of-powers

principles and serve to “prevent the judicial process from being used to usurp the

powers of the political branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146

(2013). “In keeping with the purpose of this doctrine, [the] standing inquiry has been

especially rigorous when reaching the merits of the dispute would force [the Court] to

decide whether an action taken by one of the other two branches of the Federal

Government was unconstitutional.” Id. at 1147 (internal quotation marks omitted).




12

To establish standing, a plaintiff must allege an injury that is “concrete,

particularized, and actual or imminent; fairly traceable to the challenged action; and

redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139,

149 (2010);see Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992). Where the

challenged action “neither require[s] nor forbid[s] any action on the part of” the

plaintiff, standing is “ordinarily substantially more difficult to establish.” Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009) (internal quotation marks omitted).

Here, plaintiffs allege that the “gang designation” in the Report has chilled theirexpressive and associative conduct, harmed their reputations, and caused third parties

to take a variety of actions against them. As discussed below, none of these

allegations is sufficient to establish standing.

A. Plaintiffs’ standing arguments fail at the outset because they are premised on plaintiffs having been injured by the Report’s “gang

designation,” but the Report makes no such designation.

Plaintiffs cannot establish standing because each of the injuries they allege

depends on the contention that the Report makes a formal “gang designation” with

respect to Juggalos. SeePl. Br. 2 (urging that this designation “inflicts a stigmatic

reputational injury, causes other governmental harassment and mistreatment of

Plaintiffs, and has a chilling effect on their personal expression and association”). But

the Report makes no such “designation,” whatever plaintiffs may mean by that term.

Instead, the Report provides information on trends in gang activity, as reported to




13

NGIC by other law enforcement entities. Plaintiffs themselves acknowledge as much,

stating that “the 2011 Threat Assessment is not thegang designation; it merely reflects

that designation.” Id. at 6 n.3 (emphasis in original). Plaintiffs do not indicate where

the alleged designation can be found. (Plaintiffs’ omission in this respect is

unsurprising given that defendants nowhere make formal gang designations of the

type plaintiffs suggest.) But it is clear from the Report and from plaintiffs’ own

admission that no such designation is made by the Report itself. It follows that the

Report is not the cause of plaintiffs’ alleged injuries, and those injuries would not beredressed by an order setting aside the pertinent portions of the Report.

Plaintiffs’ argument also fails for its mischaracterization of the Report as

describing “all Juggalos as gang members.” Pl. Br. 26 (emphasis added). Although

the introductory sentence of the Report’s section on Juggalos refers to them as “a

loosely-organized hybrid gang,” the discussion that follows plainly is not categorical.

As the complaint itself acknowledges, the Report states that certain “Juggalo[] subsets ”

have been reported to engage in criminal activity, and that “ a small numberof Juggalos

are forming more organized subsets and engaging in more gang-like criminal activity.”

RE 1, Page ID # 20-21 (quoting A5-A6 (Report at 22-23)) (emphases added). Thus,

the Report’s discussion of Juggalos is not remotely as sweeping as plaintiffs suggest.

To the extent plaintiffs take issue with even this more nuanced discussion of

criminal activity among certain Juggalo subsets, their concern is by no means limited




14

to the Report. By its terms, the Report publishes information provided by a variety of

other sources. Information regarding criminal activity by Juggalo subsets was

provided to NGIC by state and local law enforcement and media reports. Such

information may also be published in other federal databases. As a result, an order

declaring the Report unlawful and setting it aside—the only relief potentially available

in a case under the Administrative Procedure Act or Declaratory Judgment Act, 5

U.S.C. § 706(2); 28 U.S.C. § 2201(a)—would not redress plaintiffs’ alleged injuries.

Plaintiffs essentially concede as much by seeking substantially broader relief, askingfor an order effectively precluding defendants from investigating or reporting on the

criminal activities of Juggalos. SeeRE 1, Page ID # 37. But even such extraordinary

relief against the federal government would not redress plaintiffs’ injuries, as reporting

by state and local law enforcement and other entities not parties to this lawsuit would

likely perpetuate the injuries that plaintiffs allege.

B. Plaintiffs’ claims of First Amendment and reputational injuriesadditionally fail to establish standing because they are toospeculative and too generalized to establish an injury-in-fact.

Plaintiffs’ allegations also fail to establish standing for a number of additional

reasons. With respect to plaintiffs’ alleged First Amendment and reputational harms,

plaintiffs cannot satisfy the first prong of the standing inquiry because the harms they

allege are not sufficiently immediate or concrete to establish an injury-in-fact.




15

“[W]here a plaintiff seeks injunctive or declaratory relief to remedy a First

Amendment violation, a subjective fear of chilling will not suffice for standing absent

a real and immediate threat of future harm.” White v. United States , 601 F.3d 545, 554

(6th Cir. 2010). As this Court has repeatedly recognized, a “‘subjective apprehension

and a personal (self-imposed) unwillingness’ to engage in First Amendment conduct,

‘without more,’ ‘fail to substantiate an injury-in-fact for standing purposes.’” Id.

(quoting Morrison v. Board of Educ., 521 F.3d 602, 610 (6th Cir. 2008)). In such cases,

“federal courts routinely hold that no standing exists.” Morrison , 521 F.3d at 609; see

Meese v. Keene , 481 U.S. 465, 473 (1987) (“If [plaintiff] had merely alleged that the [law]

deterred him by exercising a chilling effect on the exercise of his First Amendment

rights, he would not have standing to seek its invalidation.”)

Plaintiffs allege that they must “refrain from identifying themselves as

Juggalos” or “affiliating or associating with other Juggalos” “[i]n order to avoid being

subject to police scrutiny as . . . gang member[s].” RE 1, Page ID # 21; seePl. Br. 24

(“Plaintiffs must get rid of their tattoos, give up their music and put away their

merchandise if they wish to avoid being considered criminal gang members.”). But

plaintiffs’ “choice to chill [their] own speech based on [their] perception that [they]

would be disciplined for speaking” is precisely the type of subjective chill that cannot

suffice to establish standing. Morrison , 521 F.3d at 610. The generalized contention

that plaintiffs feel constrained in their expression and associations, without more,




16

does not demonstrate the type of actual, concrete, or immediately threatened injury

that the standing inquiry requires. See Laird v. Tatum , 408 U.S. 1, 13-14 (1972)

(holding that the injury-in-fact requirement demands “a claim of specific present

objective harm or a threat of specific future harm”).

Plaintiffs’ argument additionally fails because it depends on plaintiffs’

contention that the Report made an “indiscriminate and overbroad designation of all

Juggalos as gang members.” Pl. Br. 27 (emphasis added). This categorical designation

is at the crux of plaintiffs’ alleged First Amendment and reputational injuries becausethere would otherwise be nothing to tie plaintiffs, as “individual law-abiding

Juggalos,” RE 1, Page ID # 21, to the activities described in the Report. Indeed,

plaintiffs’ brief tacitly acknowledges that the alleged harms flow from the Report only

“insofar as it identifies Plaintiffs as gang members because they are Juggalos.” Pl. Br.

22. As discussed above, however, the Report does not in fact make such a sweeping

statement. Instead, it explains that criminal activity has been observed among

“Juggalo sub-sets ” and that “ a small number of Juggalos are forming more organized

subsets and engaging in more gang-like criminal activity.” A5-A6 (Report at 22-23)

(emphases added); RE 1, Page ID # 20-21(same).

The cases on which plaintiffs rely are readily distinguishable on this basis. In

both Meese v. Keene and Foretich v. United States , 351 F.3d 1198 (D.C. Cir. 2003), the

challenged law applied directly to the plaintiff and was alleged to have caused him




17

distinct and specific harms. Keeneinvolved a law that designated as foreign political

propaganda three films that the plaintiff sought to distribute. 481 U.S. at 467-68.

And Foretich involved a statute (which the court held to be a bill of attainder) that

“embodie[d] a congressional determination that [the plaintiff] engaged in criminal acts

of child abuse from which his daughter needed protection.” 351 F.3d at 1211. By

contrast, plaintiffs here are concerned that others will wrongly believe the Report

applies to them even though they are not among the criminal subsets that it describes.

Cf. White , 601 F.3d at 553 (holding that “[t]he risk of false prosecution” was “toospeculative to confer standing on the plaintiffs”).

Plaintiffs’ authorities are further distinguishable because they involved lawsthat

were enforceable against the plaintiffs. As a general matter, where the Supreme Court

has found standing based on alleged First Amendment or reputational harms, “the

challenged exercise of governmental power was regulatory, proscriptive, or

compulsory in nature, and the complainant was either presently or prospectively

subject to the regulations, proscriptions, or compulsions that he was challenging.”

Laird , 408 U.S. at 11 (collecting cases);see Keene , 481 U.S. at 476 (noting that “the

alleged injury stem[med] from the Department of Justice’s enforcement of a statute that

employs the term ‘political propaganda’” (emphasis added)).

Unlike the provisions challenged in such cases, the Report has no legal force or

effect. Contrary to plaintiffs’ suggestion, the Report is not a thing that can be




18

“enforced against them,” Pl. Br. 24 (quoting Virginia v. American Booksellers Ass’n , 484

U.S. 383, 393 (1988)), but rather is a compilation of information intended to serve as a

reference. Although plaintiffs’ claims depend on their contention that they are

“personally covered by the DOJ’s improper rule , and [that] the continued application

of that rule is having [adverse] effects on them,” Pl. Br. 30 n.14 (emphases added),

plaintiffs nowhere explain how the Report can conceivably be characterized as a rule,

see Black’s Law Dictionary 1446 (9th ed. 2009) (defining “rule” as “an established and

authoritative standard or principle; a general norm mandating or guiding conduct oraction in a given type of situation”). For all of these reasons, plaintiffs’ generalized

claims of First Amendment and reputational harms do not suffice to establish

standing.

C. Plaintiffs’ alleged injuries caused by third parties fail to establishstanding because the injuries are not fairly traceable to the Report

and would not be redressed by an order setting the Report aside.

Plaintiffs’ allegations of injury at the hands of third parties also fail to establish

standing for reasons other than the lack of a “gang designation” in the Report. As the

district court held, plaintiff Hellin’s allegations are too conjectural to establish an

injury-in-fact, and the allegations of the remaining plaintiffs fail to show that their

injuries are fairly traceable to the Report or redressable by an order setting it aside. 4

4 As noted above, plaintiffs also seek a variety of other relief, including an orderrequiring defendants to eliminate all references to Juggalos from materials under itscontrol and prohibiting defendants from investigating criminal activities by Juggalos.




19

Hellin alleges that he could potentially be subject to discipline or involuntary

discharge from the Army because of his Juggalo affiliation. RE 1, Page ID # 13. As

the district court correctly held, seeRE 29, Page ID # 321, the alleged possibility of

discipline or discharge is “conjectural” and “hypothetical,” White , 601 F.3d at 551, and

does not serve to establish that the injury is “ certainly impending” as the standing

inquiry requires, Clapper , 133 S. Ct. at 1147. Hellin does not allege that the Army has

given any indication during his six years of service—including during the more-than-

two-year period between the publication of the Report and the filing of the complaintin this case—that the Army is likely to take action against him based on his Juggalo

affiliation. SeeRE 1, Page ID # 13. The Supreme Court has made clear that such

“[a]llegations of possible future injury” are not sufficient to establish standing. Clapper ,

133 S. Ct. at 1147; see Morrison , 521 F.3d at 610.

The district court was also correct in concluding that the injuries alleged by the

remaining plaintiffs are not fairly traceable to defendants and would not be redressed

by an order declaring the Report unlawful and setting it aside. To establish standing,

plaintiffs must demonstrate that the alleged injury was not “th[e] result [of] the

independent action of some third party not before the court,” Shearson v. Holder , 725

F.3d 588, 592 (6th Cir. 2013) (quoting Defenders of Wildlife , 504 U.S. at 560-61)

RE 1, Page ID # 37. Such relief is not available under the APA, which authorizescourts to “hold unlawful and set aside agency action.” 5 U.S.C. § 706(2). Thegovernment’s discussion of redressability focuses on the relief authorized by the APA.




20

(alterations in original), and that “‘it is likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision,’”Wuliger v. Manufacturers Life Ins.

Co., 567 F.3d 787, 793 (6th Cir. 2009) (citation omitted).

Here, plaintiffs’ alleged injuries were in each instance caused by the

independent actions of a third party not before the court. Although plaintiffs assert

that these third parties relied on the Report in undertaking these actions, they provide

no specific allegations to support what is essentially a legal conclusion. SeeRE 1, Page

ID # 8, 11-14. Instead, they offer “[t]hreadbare recitals . . . supported by mereconclusory statements,” which do not suffice as a matter of pleading. Ashcroft v. Iqbal ,

556 U.S. 662, 678 (2009). While the Court must take all of the factual allegations in

the complaint as true for purposes of a motion to dismiss, it is “not bound to accept

as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v.

Twombly , 550 U.S. 540, 555 (2007) (internal quotation marks omitted)).

The more detailed allegations in Lambert v. Hartman , 517 F.3d 433 (6th Cir.

2008), and Foretich v. United States —the cases on which plaintiffs principally rely—

serve to underscore the dearth of factual allegations in this case regarding the

relationship between the Report and plaintiffs’ alleged injuries. The plaintiff in

Lambertalleged that she was injured by the defendants’ publication of her personal

information, which was then used by an identity thief to the plaintiff’s financial

detriment. As this Court explained, “because both the traffic citation” published by




21

defendants “and the fake identification used to make purchases in Lambert’s name

contained the identical, incorrect driver’s license number, Lambert was able to link the

act of identity theft to the personal information that was made available by the Clerk.”

517 F.3d at 437-38. Based on this specific showing, the Court concluded that the

plaintiff “alleged sufficient facts to show that her injuries were fairly traceable to the

publication of her personal information by the Clerk.” Id. The plaintiff in Foretich

provided a similarly detailed account of how the congressional determination that he

had abused his daughter, as expressed in the challenged bill of attainder, directly “ledto harassment by the media, estrangement from his neighbors, and loss of business

and professional opportunities.” 351 F.3d at 1211. In both cases, the plaintiffs

provided much more than the threadbare recitals supplied by plaintiffs in this case.

Even if plaintiffs’ conclusory allegations could be credited, moreover, it is clear

that the third parties whose conduct allegedly harmed plaintiffs enjoy such

independence that an order setting aside the Report would not redress plaintiffs’

alleged injuries. Information about criminal activity among Juggalo subsets is

available from numerous other sources, including law enforcement in the very States

in which plaintiffs allege they were injured. Particularly in light of the widespread

availability of that information, there is little reason to think that law enforcement

agencies, businesses, and other entities that are wholly independent of defendants

would act differently toward plaintiffs in the absence of the Report. Because the




22

allegations do not support “a determination that it is likely, rather than merely

speculative, that a favorable decision from this court will redress [plaintiffs’] injuries,”

plaintiffs have “failed to carry [their] burden of proving redressability.” Rasins

Landscape & Assocs. v. Michigan Dep’t of Transp., 528 F. App’x 441, 445 (6th Cir. 2013).

II. The Report Is Not “Final Agency Action” Under the AdministrativeProcedure Act

Even if plaintiffs had standing, their claims could not proceed because they

have not identified any “final agency action” reviewable under the APA. 5 U.S.C.

§ 704. The government raised this issue in its motion to dismiss, and plaintiffs had a

full opportunity to respond. Although the district court did not reach the issue,

having concluded that plaintiffs lack standing, this Court may affirm the judgment of

the district court on any grounds, including grounds not relied on by that court.

Handy-Clay v. City of Memphis , 695 F.3d 531, 538 (6th Cir. 2012); see Bennett v. Spear , 520

U.S. 154, 166-67 (1997).

The APA provides for judicial review of “[a]gency action made reviewable by

statute and final agency action for which there is no other adequate remedy in a

court.” 5 U.S.C. § 704. Because there is no contention that any other statute provides

for review in these circumstances, plaintiffs can state a claim under the APA only if

the Report is a “final agency action” within the meaning of the Act. The APA defines

“agency action” as “the whole or a part of an agency rule, order, license, sanction,

relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13). To be final,




23

an agency action must mark the consummation of the agency’s decisionmaking

process, and it “must be one by which rights or obligations have been determined, or

from which legal consequences will flow.” Bennett , 520 U.S. at 177-78 (internal

quotation marks omitted).

The Violence Against Women and DOJ Reauthorization Act of 2005 directed

the Attorney General to establish a National Gang Intelligence Center and gang

information database “to collect, analyze, and disseminate gang activity information.”

Pub. L. No. 109-162, Title XI, § 1107(a), 119 Stat. 2960, 3093 (2006). The Act doesnot purport to give NGIC regulatory authority, and NGIC has not claimed to wield

such authority. As the government has consistently explained, “NGIC operates as a

repository and dissemination hub for gang intelligence.” RE 20-1, Page ID # 179; see

A3. And its “reports are intended to provide information on emerging trends so that

law enforcement and the public can better understand the current threats posed by

gang activity.” RE 20-1, Page ID # 180. Consistent with that purpose, the 2011

Report “does not recommend any particular course of action for local law

enforcement to follow, and instead operates as a descriptive, rather than prescriptive,

assessment of nation-wide gang trends.” RE 29, Page ID # 319. Because the Report

does not direct or require any action or determine any rights or obligations, it is not a

final agency action within the meaning of the APA. See Bennett , 520 U.S. at 177-78;

ACLU v. NSA , 493 F.3d 644, 679 n.37 (6th Cir. 2007).




24

Crediting plaintiffs’ conclusory allegation that the Report influenced the actions

of third parties would not change this analysis. Courts have consistently held that a

likelihood of influencing third-party conduct does not suffice to make an agency

report final agency action. See Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S. EPA,

313 F.3d 852, 859 (4th Cir. 2002). “[E]ven when agency action significantly impacts

the choices available to the final decisionmaker, this distinction does not transform

the challenged action into reviewable agency action under the APA.” Id. at 860; see

Dalton v. Specter , 511 U.S. 462, 469-70 (1994);Franklin v. Massachusetts , 505 U.S. 788,798 (1992).

Applying these well-established principles, the Fourth Circuit in Flue-Cured

Tobaccoheld that a report by the Environmental Protection Agency (EPA) that

classified second-hand smoke as a known human carcinogen was not subject to

review. Congress had directed EPA to collect data on indoor air quality, coordinate

research and development efforts, and evaluate potential government actions to

reduce health risks associated with indoor air quality problems. Although EPA’s

conclusion in that report that secondhand smoke increases the risk of lung cancer in

nonsmokers was extensively relied on by third parties, the Fourth Circuit held that the

report was not final agency action because it “create[d] no legal rights or obligations

and ha[d] no direct regulatory effect on plaintiffs.” Flue-Cured Tobacco, 313 F.3d at 858

(internal quotation marks omitted). The court observed that, “while the Report’s




25

persuasive value may lead private groups to impose tobacco-related restrictions, these

decisions are attributable to independent responses and choices of third parties” and

do not transform the nature of the report. Id. at 861.

By contrast, the report at issue in Bennettdirectly affected the rights of regulated

parties. At issue in that case was a biological opinion issued by the Fish and Wildlife

Service (FWS) in accordance with the Endangered Species Act of 1973 (ESA). The

ESA required any agency proposing to take action that could adversely affect an

endangered species or its habitat to consult FWS and obtain a written agencystatement explaining the effect of the proposed action. In some instances, FWS

would provide the agency with an Incidental Take Statement specifying the measures

the agency should take to minimize the adverse impact. Bennett , 520 U.S. at 158. If

the agency complied with that report, its action, as a matter of law, would not be

considered to be a prohibited taking, whereas actions in disregard of the report would

risk violating the law and incurring penalties. Id. at 170. As the Supreme Court

concluded, the report thus “constitutes a permit authorizing the action agency to

‘take’ the endangered or threatened species so long as it respects [FWS’s] ‘terms and

conditions.’” Id. Because the Incidental Take Statement “alter[ed] the legal regime to

which the action agency is subject,” the Court held that it was a final agency action.

Id. at 178.






CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I

hereby certify that the foregoing brief contains 6,365 words according to the count of

this office’s word processing system.

s/ Lindsey PowellLINDSEY POWELL




CERTIFICATE OF SERVICE

I hereby certify that on January 28, 2015, I electronically filed the foregoing

brief with the Clerk of the Court for the United States Court of Appeals for the Sixth

Circuit by using the appellate CM/ECF system. All participants in the case are

registered CM/ECF users and will be served by the appellate CM/ECF system.

s/ Lindsey PowellLINDSEY POWELL




DESIGNATION OF RELEVANTDISTRICT COURT DOCUMENTS

Pursuant to Sixth Circuit Rule 28(b)(1)(A)(i), the government designates the

following district court documents as relevant:

Record Entry Description Page ID # Range

RE 1 Complaint 1-38

RE 20-1 Declaration of Diedre D.Butler

178-184

RE 29 District Court Opinion 309-322

RE 30 Notice of Appeal 323-25




ADDENDUM






2 0 11 N a t i o n a l G a n g T h r e a t A s s e s s m e n t

N a t i o n a l G a n g I n t e l l i g e n c e C e n t e r 3

2011 National Gang Threat Assessment – Emerging Trends

Preface . . . . . . . . . . . . . . . . . . . . . . . . 5

Scope and Methodology . . . . . . . . . . . . . . . 5

About the NGIC . . . . . . . . . . . . . . . . . . . . 6

Gang Denitions . . . . . . . . . . . . . . . . . . . 7

Regional Breakdown . . . . . . . . . . . . . . . . . 8

Executive Summary . . . . . . . . . . . . . . . . . 9Key Findings . . . . . . . . . . . . . . . . . . . . . 9

Current Gang-Related Trends and Crime . . . . . 11

Gang Membership and Expansion . . . . . . . 11

Gang-Related Violent Crime . . . . . . . . . . 15

Gang-Related Drug Distributionand Traf cking . . . . . . . . . . . . . . . . . 17

Juvenile Gangs . . . . . . . . . . . . . . . . . 18

Gang Alliances and Collaboration. . . . . . . . 18

Gang Sophistication . . . . . . . . . . . . . . 18

Expansion of Ethnic-Based and Non-Traditional

Gangs . . . . . . . . . . . . . . . . . . . . . . . . 19

Asian Gangs . . . . . . . . . . . . . . . . . . 19

East African Gangs . . . . . . . . . . . . . . . 19

Somali Gangs . . . . . . . . . . . . . . . . 19

Sudanese Gangs . . . . . . . . . . . . . . 20

Caribbean Gangs . . . . . . . . . . . . . . . . 20

Dominican Gangs . . . . . . . . . . . . . . 20

Haitian Gangs . . . . . . . . . . . . . . . . 21

Jamaican Gangs . . . . . . . . . . . . . . 21

Non-Traditional Gangs . . . . . . . . . . . . . 22

Hybrid Gangs . . . . . . . . . . . . . . . . 22

Juggalos . . . . . . . . . . . . . . . . . . 22

Gangs and Alien Smuggling, Human Trafcking,

& Prostitution . . . . . . . . . . . . . . . . . . . . 24

Alien Smuggling . . . . . . . . . . . . . . . . . 24

Human Traf cking. . . . . . . . . . . . . . . . 25

Prostitution . . . . . . . . . . . . . . . . . . . 25

Gangs and Criminal Organizations. . . . . . . . . 26

Gangs and Drug Traf cking Organizations . . . 26

Mexican Drug Traf cking Organizations . . . 26

Gangs and Organized Criminal Groups . . . . . 28

Gangs and Corrections Issues . . . . . . . . . . . 30

Prison/Street Gang Connections . . . . . . . . 30

Prison/Family Connection. . . . . . . . . . . . 30Communication . . . . . . . . . . . . . . . . . 31

Contraband Cell Phones . . . . . . . . . . 31

Leadership . . . . . . . . . . . . . . . . . . . 32

Prison Radicalization . . . . . . . . . . . . . . 32

Gang Inltration of Corrections,

Law Enforcement & Government . . . . . . . . . . 33

Gangs and Indian Country . . . . . . . . . . . . . 34

Gangs and the Military . . . . . . . . . . . . . . . 35

Gangs and the US Border . . . . . . . . . . . . . 39

The Southwest Border . . . . . . . . . . . . . 39The Northern Border . . . . . . . . . . . . . . 40

Gangs, Technology, and Communication . . . . . 41

Gangs and Weapons . . . . . . . . . . . . . . . . 43

Gangs and White Collar Crime . . . . . . . . . . . 44

Law Enforcement Actions and Resources. . . . . 45

Outlook . . . . . . . . . . . . . . . . . . . . . . . 46

Maps – Gang Presence in the United States . . . 47

Appendix A. Gangs by State . . . . . . . . . . . . 49

Appendix B. MDTOs Alliances and Rivals . . . . . 80

Appendix C. Federal Gang Task Forces . . . . . . 82

Appendix D. Acknowledgements . . . . . . . . . 88

Endnotes . . . . . . . . . . . . . . . . . . . . . . 94

A2






6 N a t i o n a l G a n g I n t e l l i g e n c e C e n t e r

jurisdictions. In the 2010 NDTS, the key assumption was

that individual respondents provided estimates on gang

members for their jurisdictions only and not included

other jurisdictions. However, NGIC acknowledges that

there may be some duplication or underreporting of

gang members because of variations in each jurisdic-

tion’s process to estimate gang activity.

In calculating the number of street and outlaw motor-

cycle gang members, respondents in each region were

asked to select from a series of ranges of numbers.The median numbers of each range were aggregated

to generate an estimate for the total number of gang

members. In calculating the number of street and

outlaw motorcycle gangs, the low end of each range

was aggregated to generate an estimate for the total

number of gangs and gang members. Prison gang

member estimates were derived directly from the US

Federal Bureau of Prisons (BOP) and state correctional

institutions across the country.

About the NGICThe NGIC was established by Congress in 2005 to sup-

port law enforcement agencies through timely and ac-

curate information sharing and strategic/tactical analysis

of federal, state, and local law enforcement information

focusing on the growth, migration, criminal activity, and

association of gangs that pose a signi cant threat to

communities throughout the United States. The NGIC is

comprised of representatives from the Federal Bureau of

Investigation (FBI), US Drug Enforcement Administration

(DEA), US Bureau of Alcohol, Tobacco, Firearms, andExplosives (ATF), US Bureau of Prisons (BOP), United

States Marshals Service (USMS), US Immigration and

Customs Enforcement (ICE), US Department of Defense

(DOD), National Drug Intelligence Center (NDIC), and

US Customs and Border Protection (CBP). This multi-

agency fusion center integrates gang intelligence assets

to serve as a central intelligence resource for gang

information and analytical support.

To assist in the sharing of gang intelligence with law

enforcement, the NGIC has established NGIC Online,

an information system comprised of a set of web-

based tools designed for researching gang-related

intelligence and sharing of information with federal,

state, local and tribal law enforcement partners. Thesystem’s Request for Information (RFI) portal encour-

ages users to contribute new data as well as conduct

gang research through custom threat assessments

and/or liaison with NGIC’s network of national subject

matter experts. NGIC Online functions include RFI

submissions and responses; Gang Encyclopedia WIKI;

General Intelligence Library; and a Signs, Symbols, and

Tattoos (SST) database with user submissions.

A4




22 N a t i o n a l G a n g I n t e l l i g e n c e C e n t e r

The expansion of hybrid gangs—non-traditional gangswith multiple af liations—is a continued phenomenon inmany jurisdictions nationwide. Because of their multipleaf liations, ethnicities, migratory nature, and nebulousstructure, hybrid gangs are dif cult to track, identify, andtarget as they are transient and continuously evolving.Furthermore, these multi-ethnic, mixed-gender gangs

pose a unique challenge to law enforcement becausethey are adopting national symbols and gang membersoften crossover from gang to gang. Hybrid gangs are ofparticular concern to law enforcement because mem-bers often escalate their criminal activity in order to gainattention and respect.

Hybrid gangs, which are present in at least 25 states,are uid in size and structure, yet tend to adopt similarcharacteristics of larger urban gangs, including theirown identi ers, rules, and recruiting methods. 11 Likemost street gangs, hybrid gang members commit amultitude of street and violent crime. 12 Law enforce-ment reporting suggests that hybrid gangs have evolvedfrom neighborhood crews that formed to expand drugtraf cking, or from an absence of loyalty to nationallyrecognized gangs in their region.

Law enforcement of cials in many jurisdictionsnationwide report an increase in juvenile gangmembership and violent crime among hybrid andlocal gangs, according to 2010 NGIC reporting.

NGIC reporting indicates that hybrid gangs aredominating nationally recognized gangs in some jurisdictions and merging with other gangs toexpand their membership.

The Juggalos, a loosely-organized hybrid gang, arerapidly expanding into many US communities. Althoughrecognized as a gang in only four states, many Jug-galos subsets exhibit gang-like behavior and engage incriminal activity and violence. Law enforcement of cialsin at least 21 states have identi ed criminal Juggalosub-sets, according to NGIC reporting. e

NGIC reporting indicates that Juggalo gangs areexpanding in New Mexico primarily because theyare attracted to the tribal and cultural traditionsof the Native Americans residing nearby.

Most crimes committed by Juggalos are sporadic,disorganized, individualistic, and often involve simple

assault, personal drug use and possession, pettytheft, and vandalism. However, open source reporting

e Juggalos are traditionally fans of the musical group the InsaneClown Posse. Arizona, California, Pennsylvania, and Utah are theonly US states that recognize Juggalos as a gang.

Hybrid and Almighty Latin KingNation (ALKN) Gang Members Arrestedon Drug Charges

In November 2010, hybrid gang members inPontiac, Michigan, known the “New World Order,”were charged along with members of the ALKNfor numerous drug offenses. Several guns, drugs,dozens of cell phones and $10,000 in cash wereseized by FBI, DEA and local police departments.

Many of the gang members arrested were juve-niles and young adults.

A5




2 0 11 N a t i o n a l G a n g T h r e a t A s s e s s m e n t

suggests that a small number of Juggalos are formingmore organized subsets and engaging in more gang-likecriminal activity, such as felony assaults, thefts, robber-ies, and drug sales. Social networking websites are apopular conveyance for Juggalo sub-culture to commu-nicate and expand.

In January 2011, a suspected Juggalo membershot and wounded a couple in King County,Washington, according to open source reporting. 13

Juggalos’ disorganization and lack of structure withintheir groups, coupled with their transient nature, makesit dif cult to classify them and identify their membersand migration patterns. Many criminal Juggalo sub-sets are comprised of transient or homeless individuals,according to law enforcement reporting. Most Juggalocriminal groups are not motivated to migrate basedupon traditional needs of a gang. However, law enforce-ment reporting suggests that Juggalo criminal activ-ity has increased over the past several years and hasexpanded to several other states. Transient, criminalJuggalo groups pose a threat to communities due to thepotential for violence, drug use/sales, and their generaldestructive and violent nature.

In January 2010, two suspected Juggalo associ-ates were charged with beating and robbing anelderly homeless man. 14

Juggalos

Although law enforcement of cials in Arizona,California, Pennsylvania, Utah, and Washingtonreport the most Juggalo gang-related criminalactivity, Juggalos are present in Colorado, Dela-ware, Florida, Illinois, Iowa, Kansas, Massachu-setts, Michigan, New Mexico, New Hampshire,North Carolina, Oklahoma, Oregon, Pennsylva-nia, Tennessee, Texas, and Virginia, according toNGIC reporting.

Figure 5. Juggalo member


Documents

DOJ Brief in Appeal