Busted on Myspace: Two men headed to court for gang material on Web sites


Posted July 28, 2009 at 7:39 p.m.

LEE COUNTY — Elvis Rodriguez, 30, flashed Latin Kings hand signals on his Myspace.com page and called himself “King Kamel,” according to his arrest report.

Richard Figueroa-Santiago, 22, used his Myspace page to post pictures of friends making “Eastside” hand gestures, detectives said.

Now, in the first cases of their kind in Florida and in the nation, both Lee County men face five years in state prison for the gang-related content of their Web pages.

Their prosecutions are the first under a state law passed last year that criminalizes the use of electronic media to “promote” gangs.

Attorneys for both are challenging the law as unconstitutional.

“It violates his right to free speech, to associate,” said Joseph Cerino, Rodriguez’s lawyer.

The bill’s sponsor, a retired police officer, calls the law a modern response to increasing gang violence in some Florida cities.

“We have seen from day one until now that none of our freedoms are absolute, and the freedom of expression is not absolute,” said Rep. William D. Snyder, R-Stuart.

The defendants appear to share little in common — Rodriguez has been arrested seven times in the past 10 years for a variety of non-violent crimes. Figueroa-Santiago has no apparent criminal background and, according to his father, was a student at Southwest Florida College at the time of his arrest.

Both were nabbed last November as part of “Operation Firewall,” a slate of arrests by the Lee County Sheriff’s Office that netted 15 people, including a Bonita Springs felon charged with stockpiling weapons, six juveniles with flashy Myspace.com accounts and a pair of middle-aged men accused of recruiting gang members.

Their arrests came weeks after a new anti-gang law hit the state books. House Bill 43, a 95-page bill that created or tweaked some 35 different statutes, stiffened penalties for gang-related crimes, upping certain charges when a documented gang member is involved.

One of its statutes applies to “any person” who uses “electronic communication … to intimidate or harass other persons, or to advertise his or her presence in the community.” The law covers Web sites, e-mail, faxes and texts, among forms of media.

The Lee County prosecutions appear to be the first in the state, according to officials with the Florida Association of Criminal Defense Lawyers. The law itself is unique across the nation, according to the National Gang Center, a federal program that tracks anti-gang legislation and methods.

Snyder, a former Miami police officer, said he’s watched gang violence grow since leaving the city in 1993.

“It’s increased exponentially since I left Miami,” he said. “We knew there were gangs down there, but the traditional hardcore (Los Angeles)-street gangs had not yet arrived.”

Now they have, he said, and they’ve grown membership in other parts of the state, as well. The new law brings anti-gang efforts into the present day, Snyder said, where members are more likely to post messages and boasts on Facebook walls instead of building sides.

“Gangs are evolving, they’re changing,” Snyder said. “I would challenge that once someone said spraying walls was freedom of expression.”

Becky Steele, director of the Tampa branch of the American Civil Liberties Union, said the statute raises First Amendment issues, and she calls it “guilt by association.”

“The statute is so broad that you could be arrested for something you’re not aware has anything to do with gang activity,” Steele said.

Derek Byrd, a director of the Florida Association of Criminal Defense Lawyers said the law was a “ridiculous” effort that cast too wide a net.

“I’m a member of a gang,” he said. “I coach my Little League baseball team. We all wear uniforms, we flash signs, we all wear the same colors.”

The law reflects a national trend of preventing gang members from associating with one another, according to John Moore of the National Gang Center. He mentioned gang injunctions, in which documented gang members are prohibited from being in the same area together, even when not under probation.

“They’re well-intended,” Moore said. “Some can be, I think, quite effective. Others of them are quite limited by the burden of proof on the state that these kids meet all the tests (of being gang members).”

Ensuring that the right people are being prosecuted — gang members over posers — relies on prosecutors and other court players doing their jobs, he said.

“Authorities have to be judicious in the way they use these laws,” he said. “Otherwise, public resentment will build up.”

Samantha Syoen, a spokeswoman for the State Attorney’s Office, said prosecutors have used the law successfully in at least five juvenile cases from the November arrests. All received probation.

In motions filed before Lee Circuit Judge Ramiro Manalich, attorneys for Rodriguez and Figueroa-Santiago argue that their clients’ postings are protected expressions under the state constitution.

“We looked at the statute and talked with some other defense attorneys about it,” said Robert Gary Hines, who represents Figueroa-Santiago. “It clearly looks to me like it’s unconstitutional.”

Their motions will be heard together in early August. Regardless of the result, higher courts will likely be asked to decide for themselves.

The challenge comes as no surprise to Snyder.

“I fully anticipated that it would be appealed,” he said. “And it should be completely vetted and thought through at the trial level.”

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