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Tattoos not testimonial, court says

“Body, unity, love, lust and soul.” If it sounds like a modern marketing campaign, it is. It represents the five-point star of the Bounty Hunter Bloods street gang.

Gang member Gary Toliver sports some of these values as body art. Police took pictures of his eight tattoos after his arrest in 2008, and the photos were introduced at his Norfolk federal trial on racketeering and related charges.

Toliver, a/k/a Lil Gary, said photos of his tattoos violated his Fifth Amendment right against self-incrimination. In an unpublished opinion, the court said tattoos are a physical trait, like his voice or handwriting, and are not testimonial. Nor did an agent’s testimony interpreting the tattoos violate the Sixth Amendment Confrontation Clause, the court said.

The decision upholding Toliver’s convictions offers a chilling tutorial in gang life.

The panel traced the origins and present-day outlines of Norfolk’s BHB. Established in the early 1990s by an “Original Gangster” from New York, the gang allegedly controls Norfolk neighborhood “chapters” led by “generals.” Generals command “young gangsters” or “little homies.”

The most common way to join the BHB is “to shoot a 31.” The applicant stands in the middle of BHB members in a five-pointed star formation, and submits to a 31-second beating by current gang members. Members also can be “blessed” in and “women, called rubies, can be ‘sexed in,’ by having sexual intercourse with five members of the gang.”A gang leader estimated up to 400 members in the BHB at the time of trial, mostly teenagers, but some as young as nine.

At regular chapter meetings, members were encouraged to “represent their flag” and to engage in fundraising through home invasions, robberies and sales of narcotics. Little homies who refused to “put in work” might have to shoot a 31 again. The 31-second fight also is cited in a Portsmouth case decided the same day by the Virginia Court of Appeals. Little homies get “G Checked,” challenged by an older member on gang protocol.

The tattoos, hand signs, lingo and dress code all “serve to brand the gang, both within its membership and to rival gangs and the public,” the panel said.
By Deborah Elkins

One comment

  1. Seems testimonial to me – aren’t they testifying to what they are affiliated with – if the “body art” their bodies?


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