In a scene somewhat familiar to residents of Yolo County and West Sacramento, there is a legal challenge now being mounted in Fairfield in Solano County Superior Court urging the court to limit the overly broad scope of the proposed gang injunction for the city of Fairfield. At issue is the ability of the police to serve the injunction on an individual without presenting definitive evidence of gang membership and without court approval.
Joining in the case fighting the gang injunction is the Northern California ACLU who had also worked against the first gang injunction in West Sacramento that was eventually thrown out in West Sacramento due to its overly narrow number of alleged gang members that it served.
Said Andre Segura an attorney for the Northern California ACLU:
“This injunction would impose permanent probation-like restrictions on many people who never had their day in court to challenge accusations of gang membership, and without providing a clear way out. Under the injunction, Fairfield police could serve as many as 250 individuals, without having to present any proof to a judge. It would give the police complete discretion to impose these onerous restrictions without oversight, increasing the potential for misuse by targeting and harassing young Latinos.”
Subsequent gang injunctions have learned from the plight of West Sacramento’s in terms of the issue of serving more than a single individual. However, many of the issues now brought up in Fairfield in Solano County are at issue in Yolo County as well and so it will be instructive to watch how the court handles these issues as lawyers prepare once again to challenge the West Sacramento Gang Injunction.
In Fairfield, the proposed injunction would encompass a four square mile area which includes central Fairfield. Currently 28 individuals are named in the proposed injunction, but the police would be able to serve anyone they believe to be affiliated with the Norteno gang.
Opponents argue that
“The terms of the Fairfield gang injunction also infringe on one’s ability to conduct their daily lives, causing them to risk arrest for participating in family events, working at public establishments, and engaging in other positive and lawful activities.
Once a gang injunction is granted it usually lasts indefinitely and imposes ongoing restrictions against those served with the order. These injunctions effectively function like parole or probation, but with no conviction of any criminal offense and with no definite termination date.”
In San Francisco, there was a negotiated agreement with the city to enact an opt-out procedure that would provide a way out of the gang injunction for those individuals who demonstrate they are no longer gang members.
In their brief, the ACLU presents four general concerns about the use of gang injunctions.
First, they believe that gang injunctions “affect and infringe the exercise of constitutional rights of those bound by its terms.”
Second, gang injunctions target what are considered commonplace and generally perfectly legal and lawful activities. They “thus can have a pervasive impact on the everyday lives of those bound and on their families, especially for those who live and work within the area covered by the injunction.”
Third, while they impose “probation-like restrictions” on individuals who stand accused of unlawful activity, they do so with affording “individuals the due process protections that they would have under the criminal justice system.” In particular, as we saw with the defendants in the West Sacramento case, there is no right to have council appointed to them by the court. The dilemma in West Sacramento was mitigated when the attorneys agreed to serve their clients pro bono–but this is likely the exception rather than the rule and it comes at great expense to the attorneys.
“In fact, gang injunctions can impose restraints and sanctions on persons who have not had the opportunity or the means to mount any defense in a civil case. The relative ease and speed with which law enforcement can impose these restraints are undoubtedly a reason for their appeal, but this “efficiency” should also raise cautionary flags in terms of judicial scrutiny.”
Finally, the ACLU argues that while gang injunctions intend to protect the safety of communities, they also may stigmatize broad segments of the community.
“This dilemma is underscored by the fact that every gang injunction in this State of which Amicus are aware has been imposed on predominantly persons of color and in communities of color. The potential for racial profiling and racial stereotyping, something that has been a national problem, cannot be ignored in assessing this law enforcement tool.”
Specifically the ACLU argues that the Fairfield provision represents an overly broad attempt to curtail the constitutionally recognized right of freedom of association.
“Plaintiff proposes to prohibit “driving, standing, sitting, walking, gathering or appearing, anywhere in public view or anyplace accessible to the public, with any known member of Norteno, but not including: (1) when all individuals are inside a school attending class or on school business, and (2) when all individuals are inside a church.””
They continue:
“By choosing to seek an injunction for such a large geographical area, and one which includes social, community, and commercial centers, Plaintiff has insured that the Proposed Injunction will affect a great number of current associational activities and will inevitably chill future expressive and innocent activities.”
One concern they raise is that if an individual performed basic duties in relation to a public service job, they might be in violation of the ordinance if another gang member would patronize that said business.
They suggest to the court the following amendment to the gang injunction:
“Therefore, this Court should amend the association prohibition to allow for other activities essential to daily and productive life, such as presence in the workplace (or while engaging in some lawful business activity), municipal buildings, and counseling or social services offices.”
Moreover they find the curfew provision overly broad.
“The Proposed Injunction’s curfew would prohibit alleged gang members from “being present in public view, in a public place or in any place accessible to the public, between the hours of 10:00 p.m. on any day and 5:00 a.m. of the following day,” with limited exceptions for legitimate business activities, a lawful entertainment event, or a legitimate emergency.
Like all curfews, this provision impacts constitutionally protected rights of free expression, freedom of association, and free movement.”
They go on to suggest that if it is the government’s interest in the curfew to abate “evil nocturnal behavior” they suggest that a narrower prohibition against loitering might accomplish the same function. “Even with its exceptions, the curfew provision of the Proposed Injunction would not permit attendance at constitutionally protected political and community meetings, a midnight mass at a church, or an evening vigil.” The ACLU suggests that similar problems have caused other injunctions to be struck down and they move for the court to narrow the curfew restrictions to prohibit loitering and exempt other lawful First Amendment activities.
Much as the current challenge to the West Sacramento Gang Injunction, the ACLU argues that the proposed injunction would give police “unfettered discretion to add undesignated persons to the injunction without presenting any evidence establishing their gang membership or providing such persons with their day in court to challenge the allegations of gang membership.”
They go on to argue:
“a gang injunction can only bind those individuals about whom Plaintiff has presented clear and convincing evidence of active gang membership to this Court. Yet, the Proposed Injunction purports to give the police the complete and unfettered discretion to impose the restrictions of the injunction on potentially at least 222 persons simply by notifying them that they are considered a Nortenio gang member. Those individuals will have been subjected to these new “rules of living” prescribed by the prosecutor and the police without having had any opportunity to be heard in court to challenge their designation, and in fact without this or any other court having received an iota of evidence supporting the police’s claim that the individual is an active gang member.
Furthermore, the Proposed Injunction has no standards, guidelines, or criteria to guide the police’s discretion of whom they can serve with the court’s order; in fact, the OSC does not even limit the injunction’s scope to “active” gang members. And if such an individual cannot afford to retain an attorney to defend him in a civil case, then the only way to effectively challenge the injunction would be to violate its terms and have a public defender challenge the injunction in the resulting prosecution for criminal contempt.”
The court ruled previously in Englebrecht:
“The need for a standard of proof allowing a greater confidence in the decision reached arises not because the personal activities enjoined are sublime or grand but rather because they are commonplace, and ordinary. While it may be lawful to restrict such activity, it is also extraordinary. The government, in any guise, should not undertake such restrictions without good reason and without firmly establishing the facts making such restrictions necessary.”
Moreover as they argue that the Court in the Broderick Boys case (West Sacramento) “made clear that this heightened standard of proof applies to the issues of gang membership, reaffirming that a gang injunction may only bind “active” gang members… that a “person is subject to the injunction if the State proves by clear and convincing evidence that the [EnglebrechtJ definition is met.”
Thus the ACLU argues that the Court should limit the gang injunction to those individuals who have had the opportunity to appear in court and have the Court determine based on the evidence before it that they are indeed active gang members.
This is a case that will have a good deal of bearing on what might happen in West Sacramento and we intend to watch close to see what happens.
—David M. Greenwald reporting
I’m going to dare to be politically incorrect and play devil’s advocate here.
1) I’m not a big fan of the ACLU, which is very selective in who’s free speech rights it protects. Too often it appears to be an arm of the Democratic Party for one.
2) Who are these 250 people that the ACLU suspects will be served an injunction? How does the ACLU know that they will be served with a gang injunction before service even occurs? Are they just guessing, or do they know? If they know, how do they know? Does the ACLU know of 250 shadowy/hidden gang members that it doesn’t want the police to be aware of?
3) Gang members, visiting their gang buddies working at a place of business, can be very intimidating for customers and the business owner. Allowing gang members to visit business establishments where their friends work impinges on the rights of the customers to be free from fear for their lives, and the right of the business owner to carry on a profitable enterprise.
4) It is interesting that gang members were somehow able to obtain “pro-bono” representation when it suited them in West Sacramento. I wonder why that is? I can guess…drug money comes to mind.
5) “Racial profiling” is a perjorative label placed on a logical policing technique. For instance, after 9-11, it makes perfect sense to search for terrorists predominantly among people from Arab nations. If the Norteno gang is made up of mostly Hispanics, then it makes perfect policing sense to look more closely at Hispanics. This may not be a politically correct view, but it is common sense.
6) Yes a gang injunction is trying to curtail freedom of association – curtail the practice of gang members to “hang out” and intimidate, harass and molest the innocent public. Our freedoms given to us in the Bill of Rights are not unfettered and unlimited. Just as you cannot gather to incite a riot, so can you not gather to intimidate, harass or molest the public.
7) To what extent have the neighborhoods themselves tried to address the gang problem, other than to protect gang members and give them a haven to operate from?
8) The Woodland, Fairfield, Dixon “gang triangle” was the subject of an FBI murder investigation not that long ago, which netted several killers who were gang members. This should be of greater concern to the community than protecting the “freedom of association” rights of gang members.
9) A ten o’clock curfew in a gang infested neighborhood seems reasonable to me. Do we want to give unfettered discretion for gang members to cause trouble late into the night? Try a 10 o’clock curfew for a year, then if all goes well, start easing up on the restrictions. As long as behavior continues to be good, keep loosening restrictions until there is no need for a curfew. A ten o’clock curfew gives peace of mind to law abiding citizens, who do not have to live in fear that gang members are going to cause mayhem during the nighttime hours. After all, if things get far enough out of hand, the gov’t can declare martial law.
Now that I’ve riled up all the left wing loonies, who mistakenly believe the freedoms granted us under the Constitution are limitless, let me say this. I found the Guiterrez case troubling. Why?
1) An undercover police unit is stopping citizens, citizens who would have no way of knowing that the group stopping them isn’t gang related. Just saying you are a police officer, while you are dressed in gang clothing, is not enough of a reasonable identification for the average citizen.
2) Why target someone, who appeared to be acting in a lawful manner? In other words, there was no “articulable suspicion” the man was doing anything wrong. The police apparently just decided this guy might be a gang member bc he was Hispanic. This goes against settled law, which indicates the police cannot stop a citizen unless there exists “articulable suspicion” (w the exception of citizens driving an automobile, in which case the police can stop the driver for any reason).
3) Was it really necessary to shoot this man 6 times, and in the back? Couldn’t a less lethal means have been tried? Why is it that Davis Police seem to be able to settle a dispute with a knife wielding citizen in a manner which does not result in the citizen’s death, yet in Woodland a police encounter too ofen results in the death of the alleged suspect, and everyone seems to be a suspect? My take on it is bc gang activity is seen as more prevalent in Woodland, the police shoot first and ask questions later.
The only thing that troubles me about the gang injunction is the lack of a provision that allows someone served a gang injunction the ability to go to court to fight being tagged a gang member by police. The other provisions of the gang injunction, to me, are the natural tension between law abiding citizens rights and the rights of gang members to associate. I would rather err on the side of law abiding citizens. I don’t find the restrictions that onerous, especially if the restrictions will be eased on a showing of good behavior, something else I would require of a gang injunction.
If you don’t put some restrictions on gang members, and allow gangs to operate freely, then you get dead cops, dead citizens, dead gang members, and an extremely frightened community. It is really a question of where the line is drawn. The ACLU would have the police literally handcuffed, in dealing w gang members. The police would have even suspected gang members handcuffed. I think the happy medium is somewhere in between the two.
The trouble here is that there should be an easier way for people to get their supposed gang association label removed and the courts should make this available for people who are misidentified. In Fairfield where you have had a city counselmember murdered you would expect a reaction against violence. The over reaction is totally understandable but a more important question is what is the community doing to help get kids out of gangs?
TEACHING THE VALUES OF PEACE IN INDIAN COUNTRY
Mike (Ali) Raccoon Eyes Kinney
As a Cherokee Native American Activist and a former member of the Richmond California Violence Prevention Movement, I have seen close to 515 homicides in the City of Richmond from 2001 to the present.
The declaration of a ‘war on violence’ by the Richmond city government was not the panacea, instead it failed miserably.
I have often stated in town hall meetings and on television, the best way to win the ‘war on violence’ in Richmond is to ‘TEACH THE VALUES OF PEACE’.
In the killing fields of Richmond, most of the victims of homicides are youth or young adults. Teaching the values of peace begins with our youth and young adults. From a Native perspective, winning the war on violence begins in the home with a strong, spiritual belief and value system.
We believe that Creator made all generations, past, present and those of the future, holy people. This is what our Elders teach us from the time we are born.
Our families and Elders teach our young people that they must tear away the images and stereotypes that mainstream society has placed upon them as Native peoples.
Violence and killing is not traditional in Native culture, it is a learned behavior from mainstream society.
We teach our youths not to attack, punish or beat themselves up for crimes that they have never committed in regards to racism. Our Elders and families teach our young people to have good self-esteem, self-worth and self-value, for as the original holy people this was Creators plan.
Native people know that it is both family and community responsibility to teach the values of peace to our young people.
We teach our young people honesty and accountability concerning violence. It begins with accepting responsibility for self and acknowledging any past use of violence.
Admitting any wrongdoing, communicating openly and truthfully to renounce the use of violence in the future places our youth on the right path. We place a heavy emphasis that all life is sacred.
The final lesson in teaching the values of peace is quite simple. It is helping young people understand their relationship to others and all things in Creation.
Be responsible for your role, act with compassion and respect, and remember ALL LIFE IS SACRED. Native culture is prevention!
Mike (Ali) Raccoon Eyes Kinney