by Dale Chappell

The Supreme Court of Arizona held on September 1, 2020, that a statute increasing a misdemeanor charge to a felony for merely being part of a gang is unconstitutional on its face as a violation of substantive due process, affirming a trial court’s dismissal of the charges.

In two separate incidents, Christopher Arevalo allegedly verbally threatened someone and was charged with two counts of threatening or intimidating someone under A.R.S. § 13-1202(B)(2). Normally, such a charge would be a misdemeanor under Arizona law, but it was further alleged that Arevalo was a gang member. As such, the charges were automatically bumped up to felonies.

Arevalo moved in the trial court to dismiss the charges or to at least reduce them to misdemeanors, arguing that the gang-association enhancement under the statute making them felonies is unconstitutional. The court agreed and dismissed the charges, holding that § 13-1202(B)(2) violates due process by punishing someone for associating with a gang.

The State appealed and won. The court of appeals held that § 13-1202(B)(2) “does not penalize mere membership in a criminal street gang — it penalizes the added menace inflicted when a criminal street gang member is engaged in criminal conduct.” The Arizona Supreme Court granted review to answer whether the gang-association provision is unconstitutional, characterizing it as “a recurring issue of statewide importance.”

Under § 13-1202(B)(2), threatening or intimidating someone “is a class 1 misdemeanor, except that it is a class 6 felony if ... the person is a criminal street gang member.” The question was whether mere association with a gang violates the Due Process Clause of the U.S. and Arizona Constitutions, which both state that no person shall be deprived of “life, liberty, or property without due process of law.”

In this “facial” constitutional challenge to the statute, Arevalo was required to show that “no set of circumstances exists under which the act would be valid,” the Court explained, quoting United States v. Salerno, 481 U.S. 739 (1987). Reviewing a statute for constitutionality, the Court was required to “presume” it is constitutional and then to follow one of three levels of review. First, under strict scrutiny, a statute is constitutional “if it is necessary to promote a compelling state interest and the statutory restriction is narrowly tailored.” The next level is intermediate scrutiny, which the statute survives if the state’s interests are “reasonable, not arbitrary, and have a fair relation to those goals.” Under the lowest level, the rational basis standard, a statute survives if it “has any conceivable rational basis to further a legitimate governmental interest.”

“We conclude that § 13-1202(B)(2) fails even rational basis review,” the Court said, “because it does not require a nexus between threatening or intimidating and gang membership.” The Court pointed to Scales v. United States, 367 U.S. 203 (1961), in which the U.S. Supreme Court ruled that “the punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity.” And that link (or nexus) between the status and the criminal activity “must be sufficiently substantial” to satisfy the Due Process Clause, the Scales Court explained.

The Court here found that § 13-1202(B)(2) does not require a nexus between gang association and criminal conduct. “Indeed, it permits sentencing enhancement based on gang status even if the crime is wholly unrelated to a defendant’s gang membership,” the Court observed.

The Court also found that the court of appeals erred by adding an “added menace” criterion to the statute, rewriting the statute to make it constitutional. “We cannot, and will not, rewrite the statute to save it,” the Court said and “disavowed” prior cases that had included such a criterion to save the statute such as State v. Meeds, 421 P.3d 653 (Ariz. Ct. App. 2018).

Noting that other courts in Tennessee and Florida, for example, have similarly held gang membership penalties unconstitutional for lack of nexus, the Court concluded that § 13-1202(B)(2) is facially unconstitutional in all respects.

Accordingly, the Court affirmed the trial court’s dismissal of Arevalo’s charges and remanded to the trial court. See: State v. Arevalo, 470 P.3d 644 (Ariz. 2020). 

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