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Injunction Dysfunction
updated: Nov 16, 2013, 3:00 PM

By Yvette Cabrera

In a decision that will likely have wide implications, the U.S. 9th Circuit Court of Appeals ruled last Tuesday that a City of Orange gang injunction violated the Constitution. The court barred the injunction's enforcement against more than 60 individuals on the grounds that its scope was extraordinarily broad, encroached on the plaintiffs' civil liberties, and failed to give individuals named in the injunction the opportunity to contest allegations of gang membership.

The Vasquez v. Rackauckas decision took up a constitutional due process issue never before addressed by state or federal courts with regard to gang injunctions, sending a message to prosecutors that they will be held to a higher standard of proof when alleging gang membership for the purpose of enforcing gang injunctions.

In raising the issue of whether the plaintiffs were deprived of their due process rights, the case highlighted potential problems for the City of Santa Barbara's proposed permanent gang injunction. Opposing attorneys say it lacks these due process provisions for individuals not currently named in the suit who might be served in the future should the injunction be approved here.

"The 9th Circuit Court clearly stated that before someone is subjected to a gang injunction they need to have some due process," said Belinda Escobosa Helzer, director of the Orange County office of the American Civil Liberties Union of Southern California, which, along with the law firm of Munger, Tolles and Olson, filed the 2009 class-action lawsuit against the Orange County District Attorney's Office and the City of Orange Police Department.

And... are they constitutional? The 9th Circuit Court of Appeals reins in an Orange County injunction. Anti-injunction activist Gabby Hernandez speaks at a PODER-sponsored forum. (Sam Slovick)

"I think that there are things in the decision that prosecutors should really look at and that the community should look at in understanding the complexity of the question of whether you are or aren't a gang member," said Escobosa Helzer. "It's something that requires some safeguards in order to comport with the Constitution."

On Tuesday, the court ruled that given the difficulty in determining whether someone is an active gang member, the risk of erroneously enjoining an individual is considerable when the individual served is not allowed to challenge the determination. The 9th Circuit Court ruling says that in order to comply with constitutional due-process standards, an injunctive order must provide individuals with the right to a hearing before they are served as part of a gang injunction.

"The most significant thing is that the 9th Circuit has recognized that a gang injunction, like the ones sought in Orange County and Santa Barbara have profound implications on civil liberties by restricting the daily activities of the people subject to the injunction," said criminal attorney Stephen K. Dunkle, one of a small cadre of lawyers representing some of the 30 defendants named in the Santa Barbara complaint. "The order in Orange County, like the one sought here is broad enough that it would restrict activity like going to church or participating in a political protest and because of that, the court held that due process is required before people can be subject to such an order."

And while the city has stated that all defendants will be offered the opportunity to challenge their inclusion in the injunction, Dunkle pointed out that the complaint contains no specific language providing due process for individuals who aren't a party to the current case.

"The lack of due process provisions in the proposed injunction does not mean people do not have a constitutional right to contest their inclusion in the injunction," said Dunkle. "However, as a practical matter, it will make it extremely difficult, if not impossible, for people to figure out how to do so."

The due process concerns impact those individuals whom the city might serve in the future, not the 30 defendants currently named in the complaint. Named defendants can contest their inclusion in the complaint at the proposed injunction's March court hearing. The burden of proof will be on the city attorney and district attorney to show by clear and convincing evidence that the 30 defendants are active gang members.

Last month, City Attorney Stephen Wiley and Chief Deputy District Attorney Hilary Dozer clarified to Mission and State that if Superior Court Judge Colleen Sterne approves the permanent injunction as is, law enforcement can then serve whomever it believes meets the definition of an active member of the Eastside or Westside gangs, which are named as defendants along with the 30 individuals.

This week, Wiley reiterated via email that any person served with the injunction in the future, should it pass, will have the due process right to respond to the city's allegations through the judicial process, including a court hearing.

"The injunction cannot and will not apply to a future named defendant unless and until the City [Attorney]/[District Attorney's] office have proved to Judge Sterne's satisfaction with ‘clear and convincing evidence' that he or she is an active gang member of one of the two gangs which we allege to exist in Santa Barbara," said Wiley, via email.

Food for thought: Will the 9th Circuit Court's decision affect how Joyce Dudley and the Santa Barbara County District Attorney's office approach Santa Barbara's proposed gang injunction? (Alex Kacik)

The city, he said, will present evidence of gang membership in court for every defendant and this allegation must be proven before the judge will allow the injunction to be enforced.

"Unlike what the Orange County [District Attorney's office] attempted with its gang injunction suit, the Santa Barbara City Attorney's/[District Attorney's] office have always been clear that, in our case, no one named as a defendant in our suit will be deprived of any due process rights," wrote Wiley.

However, because gang injunctions are civil proceedings, defendants must provide for their own defense, a tall order for some.

Santa Barbara's proposed injunction, as it's currently written, has an opt-out provision for individuals requesting to be dismissed from the complaint. In order to opt-out, an individual must somehow prove that for three years from the time the permanent injunction takes effect, he or she has engaged in no gang-related activity such as claiming gang membership, associating with known gang members, obtaining any gang-related tattoos or getting arrested. The individual must also prove gainful employment for the year prior to applying for the opt-out.

The Vasquez v. Rackauckas case involved a group of individuals who had contested the Orange County District Attorney's allegation that they were active gang members after prosecutors and the Orange Police Department filed a public nuisance complaint against them and the Orange Varrio Cypress Criminal Street Gang.

During the preliminary injunction hearing before the Orange County Superior Court, the judge determined that the Orange County District Attorney did not have sufficient evidence to prove gang membership for nine out of the 11 defendants represented by attorneys, says Escobosa Helzer.

The district attorney dismissed these and other individuals named rather than prove the allegations, but then subsequently obtained a permanent injunction against the gang in general and served the order against previously dismissed individuals. The permanent injunction was challenged in federal district court, which in May 2011 banned Orange from enforcing the injunction without due process for those plaintiffs served.

The district attorney and Orange Police Department's appeal of that decision went to the 9th Circuit Court, which zeroed in on the question of whether police enforced the order against these plaintiffs without first providing them with a constitutionally adequate hearing. The 9th Circuit panel agreed with the U.S. District Court Central District of California's ruling that the gang injunction "profoundly implicates liberty interests" protected by the Constitution's due process clause, such as the right to free movement, association and speech.

Read the full story at MissionAndState.org


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