Man challenges 2009 Nebraska anti-gang law

MARGERY A. BECK

OMAHA, Neb. (AP) — An Omaha man who styled himself as a mobster straight out of the television series "The Sopranos" is asking the Nebraska Supreme Court to declare a relatively new Nebraska anti-gang law unconstitutional — the first challenge of the law to make it to the state's high court.

Steven Scott, 23, was convicted last summer of second-degree assault and use of a deadly weapon for attacking a former roommate with a hammer. He also became one of the first people in the state convicted of unlawful membership recruitment into an organization or association that engages in criminal acts, a law passed in 2009 as part of a package targeting gang violence.

Scott's attorney, Steve Lefler of Omaha, argues that the law is unconstitutional because it infringes on a person's rights to free speech and assembly.

Scott's case began when a one-time high school friend, Samuel Kelley, was kicked out of his parents' home and moved in with Scott, according to court records.

Kelley told authorities Scott was obsessed with the HBO television mafia series, "The Sopranos," and investigators found the walls of Scott's apartment plastered with posters from the show.

Scott, who grew up in a wealthy west Omaha neighborhood, often discussed his role in a group he helped create dubbed the "White Rider Clique," which Scott often called "the family," court records show. The group consisted of Scott and three other friends from high school. Scott and two other members of the group were considered the bosses of "the family;" the fourth member was a "soldier."

Scott soon turned his attention to recruiting Kelley to join the group, Kelley told investigators. Kelley said he sold small amounts of marijuana to friends for Scott's group for the month he lived with Scott, but declined to continue doing so after joining the U.S. Army for fear it could jeopardize his future with the Army.

Kelley told investigators that Scott insisted he sell one more ounce of marijuana for the group. When Kelley declined, Scott told Kelley that he would owe Scott $90, regardless of whether he sold the pot. Kelley soon moved back in with his parents, and several weeks later, Scott and another member of the group showed up at Kelley's parents' house saying he owed them $300, court records show.

Kelley left for basic training without paying the group and returned to Omaha nearly a year later.

Prosecutors say that soon after returning in 2010, Kelley was attacked by someone wielding a hammer as he and a friend were leaving a party in Omaha. Kelley and his friend managed to fight off the attacker, whom they identified as Scott. Kelley needed six stitches in his forehead and two staples for a wound to the back of his head.

Lefler, Scott's attorney, is seeking a new trial based on a number of errors he claims the Douglas County District Court made in Scott's trial. Among those errors, he said, is not finding the unlawful recruitment law unconstitutional. The law is overly broad, he said Friday, and could affect constitutionally protected speech and gatherings.

"What differentiates a 'gang' from a group?" he asks in his brief before the Nebraska Supreme Court. "If the answer is the act of committing crimes, should the state not have to prove that the crimes of robbery, assault, etc., have been committed before they claim this group is actually a gang?"

In Scott's case, prosecutors did not prove that Scott was a member of a gang, nor did they prove that he tried to force Kelley to participate in a criminal gang, Lefler said.

"No testimony was offered other than the victim's testimony that a 'gang' or 'family' existed," Lefler said. "Further, no police officer testified that this was a recognized gang."

"It's ludicrous to think that there's a 'gang' of four people with three bosses," he said.

State prosecutors defend the law, saying it doesn't keep Scott or anyone else from associating with "the family" or recruiting others into it, but does prevent him assaulting someone who refuses to participate.

"The statute is clear," Shannon Kingery, a spokeswoman for the Nebraska Attorney General's office, said Friday. "A person does not have the constitutional right to coerce, intimidate, threaten, or inflict bodily harm upon another person in order to make them join or prevent them from leaving an organization or association."

The state's high court is set to hear arguments in the case on Sept. 4.