After nearly five months of on again-off again testimony and hearings, the Gang Injunction trial has finally wrapped up as the plaintiffs presented their closing statement on Wednesday. The defense deferred theirs, and will submit written arguments only.
The plaintiff’s case rested on combining a number of crimes that seemed at times to be almost random and scattered throughout the safety zone, involving individuals that were said by police officials to be gang members.
Showing the existence of a criminal street gang is the first element of the legal requirement to prove the need for the injunction.
Another key element is whether there is a public nuisance. According to Mr. Linden there is. He said that “public nuisance” is defined in the legal sense as anything indecent and offensive to the senses, and an obstruction to the free use of property.
Mr. Linden reminded the Court that they had detailed incidents of shootings, stabbings, beatings, threats, high speed chases. He asked “Did it affect everyone? Maybe not. But it affected a considerable number of people.”
Mr. Linden used the example of graffiti.
He said new houses, schools and entire streets had been attacked with graffiti. He said that on a tour of the safety zone that he had taken, graffiti was plainly visible and widespread.
He referred to “Reisig v. Acuna et al.(2010) 182 Cal. App. 4th 866,” the published case in which Judge White granted the preliminary injunction and held that it is not of relevance who wrote the graffiti, rather that it was the collective action of the gang. Appellate Justices Hull, Scotland and Nicholson affirmed Judge White’s ruling in part, and reversed in part.
The decision included, “Defendants argue no evidence was presented to tie any particular gang member to the graffiti observed in the Safety Zone. However, while such a showing would be necessary to prosecute an individual gang member for criminal vandalism, it is not required in order to use the graffiti as a basis for a gang injunction. It may reasonably be assumed such graffiti was the work product of some member of the gang, even if that member cannot be identified. It is the collective action of the gang, not that of any individual member, that determines whether a public nuisance exists.”
The plaintiff’s argument is that the listing of crimes shows that there is a nuisance and “that nuisance is current and it’s going on now.”
They referenced the attack on the Sikh tax driver, whose assailants had a known gang history.
The plaintiff pointed out that even though the incidents may not have been gang-related, the law states that the relevant issue is whether the person committing the crime is a known gang member. Judge White agreed and so the incident was permitted to be included in the plaintiff’s case.
Mr. Linden went further and argued that the penal code without the gang injunction was not appropriate to deal with this crime. He asked “Is the penal code sufficient to deal with this? The answer is no.”
In referencing several cases, he showed that, according to the law, the penal code is by itself not sufficient to deal with the gang problem because citizens and the public have a right to immediate enjoyment of their surroundings and that the action of the law otherwise is basically too slow to provide that. He stated that the delay in processing crimes is a situation “wherefore the injury is irreparable.”
Mr. Linden, along with his co-counsel Ryan Couzens, also read a court opinion that spoke about the prohibition of validated gang members who are related from meeting in public places, excluding schools and churches, that “The nonassociation provision applies only within the Safety Zone and only in public places other than schools and churches. Although it places an incidental burden on familial relationships, such burden is necessary under the circumstances in order for the injunction to be effective.”
They also cited the Court of Appeals opinion that the curfew provision of the preliminary injunction (in Reisig v. Acuna) “does not sweep too broadly.”
The Court of Appeals found this provision did not unnecessarily impinge upon familial association rights, explaining:
“Collective activity by gang members is at the core of the nuisance the injunction justifiably attempts to abate. While it may be that many gang members are also related by family, and while the injunction’s associational restrictions may affect, in the target area, contact between those family members, those facts are not determinative. The injunction places no restrictions on contact between any individuals outside the target area. In the target area the injunction merely requires gang members not to associate in public. While the injunction may place some burden on family contact in the target area, it by no means has, in our view, a fundamental impact on general family association.”
Deputy DAs Linden and Couzens then attacked the defense’s case, arguing that the defense did not rebut a single crime put forth by the prosecution. He said that their defense was “a flat-Earth defense, that if I don’t see it, it doesn’t exist.”
He said that the defense witnesses, all of them, were either biased, uninformed or coached. He said that most had relatives who were involved in crime or gangs themselves. He said that some said that they did not know of graffiti that was shown to be right in front of their house.
Mr. Linden attacked the credibility of defense expert Professor Hernandez. He argued that his law enforcement experience is well out-of-date.
For example, Mr. Linden argued that Professor Hernandez had protested that anyone can be defined a gang member (even a police officer), but that the CA Supreme Court had already considered that, which is why the law says that the primary activity of the group should be criminal in nature for it to be a gang.
Mr. Linden concluded that the professor is a poor researcher, he did not talk to a single witness, he relied only on police reports, and he claimed to have spoken to students in his class who were gang members but could not name any of them.
The plaintiffs tried to play a 911 call, however, it was hard to decipher what was being said and it did not appear to add to the case. At one point the screams became disturbing, almost like that from a horror movie. Judge White had the recording stopped and stated for the record that this was a 911 call from Ms. Viegas made while watching her husband get slashed during an attack.
It seemed that the plaintiffs were attempting to sensationalize this portion of the tape. Certainly this is not the sort of thing that will impact a judge’s ruling. It appeared aimed more towards the newspaper reporters in the audience than the judge.
It seemed like a cheap ploy trivializing and sensationalizing someone’s suffering. It did not speak to any of the issues before the court. The defense has never denied that attacks and crimes happened – that was never at issue in this case. To play a horrifying 911 call to strengthen a case is offensive.
While this report is largely intended to present the plaintiff’s case, there is a need for brief commentary. The defense has never denied that attacks and crimes happened. So when the plaintiffs argue that the defense has never rebutted a single crime put forward by the plaintiffs, they are missing a point.
The question, in the minds of the defense, is really whether the series of crimes that were put forward by the plaintiffs, which over a ten-year period really do not amount to a whole lot of crimes, constitute a pattern of criminal street gang activity, or just a group of criminals who happen to be randomly committing crimes near where they live.
The plaintiffs argued in their closing that the law is not sufficient to deal with these crimes, but we think that is a point very much in question. The crime rates in West Sacramento and the safety zone are not that high. Crimes happen in urbanized areas, but these areas do not appear to have a higher than normal crime rate and the number of murders, for instance, that occur are very small in the scheme of things.
Really, the question here is whether these crimes represent a pattern of criminal street gang activity and whether they need additional remedies.
There was an interesting comment on the Vanguard the other day by a former student of Professor Hernandez.
He wrote, “Are the Broderick boys a ‘gang,’ yea they are, they are a group of kids who hang out together.”
However he continues, “Are they a criminal street gang, that answer would be no.”
He goes on to argue, “The crimes they commit are out of boredom and because of immaturity and stupidity. A crime with a gang enhancement is suppose to be a crime to enhance something for the gang.”
He continues, “I don’t see their crimes enhancing anything for Broderick Boys. They don’t do specific crimes to enhance their name or group, but themselves as individuals. Their crimes don’t gain them money for all the group to share.”
He concludes, “I have actually taken a class with Professor Hernandez, and while we didn’t see eye to eye on everything, I think he is very [knowledgeable] in this area and the judge should listen to him. I think Hernandez has good points of view on some things, and an old way of thinking on others that he needs to re evaluate. Times change and situations change and he doesn’t realize that. But I think in this case, he is right all the way.”
To us, it does not make a lot of sense that a civil remedy would succeed where criminal remedies have failed.
There was an article last week in the Palm Springs paper on their gang injunction just filed against 125 purported members of a gang known as the South Side Indio gang.
“It deters gang members from doing anything that’s listed in the gang injunction itself. From a common sense perspective, they’re fantastic tools,” said Riverside County Deputy District Attorney Kristi Daw, who filed the Indio injunction in Superior Court the day after a massive anti-gang sweep of the city.
But critics question whether gang injunctions go too far in restricting lawful behavior. “They have a severe effect on civil liberties,” Peter Bibring, a staff attorney with the American Civil Liberties Union of Southern California.
“It takes a broad brush to the huge social problems we have,” said Riverside County Supervising Deputy Public Defender William Belden to the Palm Springs paper.
Gang injunctions “May just drive things underground,” Belden said. “They’re not going to change behavior and they do impinge on civil liberties.”
On the other hand, others argue that it does two things. First it give residents a voice and second it prevents gang members from congregating.
“Citizens began to report crime because they knew something would be done,” one city official said. “They were no longer afraid of the neighborhood thug.”
The bottom line there, as here, is whether the violation of individuals rights are justified by the threat that gang may pose to public safety. It is difficult to understand how a civil remedy is going to prevent gang violence in an urbanized area. The research is rather limited, but has generally shown an immediate impact and then a gradual return to normal.
The defense will be submitting a 20-page closing statement by mid-January. Judge White indicated that she would decide on the case by mid-February.
Most observers tend to believe that she will affirm her original opinion in the preliminary injunction, but that remains to be seen.
—David M. Greenwald reporting
dmg: “Another key element is whether there is a public nuisance. According to Mr. Linden there is. He said that “public nuisance” is defined in the legal sense as anything indecent and offensive to the senses, and an obstruction to the free use of property.”
Ironically, the gang injunction to some could be considered indecent and offensive to the senses, and an obstruction to the free use of property…
dmg: “The bottom line there, as here, is whether the violation of individuals rights are justified by the threat that gang may pose to public safety. It is difficult to understand how a civil remedy is going to prevent gang violence in an urbanized area. The research is rather limited, but has generally shown an immediate impact and then a gradual return to normal.”
Then research shows that initally a gang injunction has a positive impact on the neighborhood that has a gang problem, hence the justification for using them…
DMG, “He said that ‘public nuisance’ is defined in the legal sense as anything indecent and offensive to the senses, and an obstruction to the free use of property.”
Has this elemental standard been used to address other societal problems or just criminal street gangs and the subsequent nuisance that allegedly comes with them? Can a “nuisance” be tied to something other than criminal street gangs to get rid of other things and/or people?
“Mr. Linden reminded the Court that they had detailed incidents of shootings, stabbings, beatings, threats, high speed chases. He asked ‘Did it affect everyone? Maybe not. But it affected a considerable number of people.’”
Was “considerable” quantified at any point or does this figure have little influence on the outcome of the case?
ERM,
“Then research shows that initally a gang injunction has a positive impact on the neighborhood that has a gang problem, hence the justification for using them…”
Yet…“He [Linden] said new houses, schools and entire streets had been attacked with graffiti. He said that on a tour of the safety zone that he had taken, graffiti was plainly visible and widespread.”
Interesting that the plaintiffs to focus on the poor state of the neighborhood by mentioning the very behavior the injunction has sought to eradicate from the community over the years. Or is DDA Linden referring to a pre-injunction time or a time shortly after its implementation? Or has the initial impact worn off and the neighborhood has descended back to what it once was…a community riddled with the colorful street art of dangerous criminal street gangs?
DMG,
“The plaintiff pointed out that even though the incidents may not have been gang-related, the law states that the relevant issue is whether the person committing the crime is a known gang member. Judge White agreed and so the incident was permitted to be included in the plaintiff’s case.”
So what matters is only that they committed these crimes and that they are validated gang members? Were the crimes committed in the designated “Safety Zone?”
Isn’t it important to ask why or how the Gang Injunction would have protected these individuals (those mentioned by the plaintiffs during the trial to show the pattern) if allowed to remain in effect in W Sac? I mean…if these crimes took place after the injunction had been in full effect then what good would the gang injunction have done to prevent these crimes (ie Sikh driver incident) and protected those victims if it isn’t doing that presently?
So, we have the case of the gang members committing a crime that although deplorable, is not gang related. Great, so how is the injunction going to stop this stuff from happening and why didn’t it in this case?
“He [Linden] said that most had relatives who were involved in crime or gangs themselves.”
Did he substantiate his claim?
“He said that some said that they did not know of graffiti that was shown to be right in front of their house.”
And he provided specifics?
“Crimes happen in urbanized areas, but these areas do not appear to have a higher than normal crime rate and the number of murders, for instance, that occur are very small in the scheme of things.”
It’s not clear to me what this means
Re: the former student of Professor Hernandez…
“Are they [Broderick Boys] a criminal street gang, that answer would be no.”
Evidenced by what exactly? Here’s how the CA Penal Code defines a criminal street gang:
“‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
“The crimes they commit are out of boredom and because of immaturity and stupidity. A crime with a gang enhancement is suppose to be a crime to enhance something for the gang.”
The crimes being said to have been committed out of boredom and immaturity preclude them from meeting the elements required for one to be eligible for 186.22 (a) or the gang enhancement?
A crime born out of boredom and immaturity can’t “enhance something for the gang?”
“I don’t see their crimes enhancing anything for Broderick Boys.”
It would help to know how intimate this individuals knowledge of the Broderick Boy and the neighborhoods of B&B is.
“They don’t do specific crimes to enhance their name or group, but themselves as individuals.”
But is a group only a strong as the sum of its parts? Are the benefits from the act, of which the individual Broderick Boy is the sole recipient, not ever beneficial for the Broderick Boys group or gang as a whole? If the individual act benefits the individual gang member, the case could then be made that the gang indirectly benefits too, could it not?
If a Broderick Boy individually commits a crime in the name of the Broderick Boys, how would that be classified? Not for the benefit of the group/gang?
SM:
“Has this elemental standard been used to address other societal problems or just criminal street gangs and the subsequent nuisance that allegedly comes with them? Can a “nuisance” be tied to something other than criminal street gangs to get rid of other things and/or people? “
That’s an interesting question that I don’t know the answer to.
“Was “considerable” quantified at any point or does this figure have little influence on the outcome of the case?”
At one point they created a diagram of the links between gang members, but I don’t know that they ever attempted to chronicle the number of victims. One thing that really struck me during the trial was when the father of the “victim” of the Memorial Park attack made the comment that he wasn’t aware of the gang until his sons got caught up in it. That suggests to me that perhaps the reach of the gang isn’t nearly as encompassing as the DA’s office wants people to believe.
SM:
“Interesting that the plaintiffs to focus on the poor state of the neighborhood by mentioning the very behavior the injunction has sought to eradicate from the community over the years. Or is DDA Linden referring to a pre-injunction time or a time shortly after its implementation? Or has the initial impact worn off and the neighborhood has descended back to what it once was…a community riddled with the colorful street art of dangerous criminal street gangs? “
That’s an interesting point. Their argument has been that the injunction is working but there is still a nuisance.
“So what matters is only that they committed these crimes and that they are validated gang members? Were the crimes committed in the designated “Safety Zone?” “
That’s what they are claiming. I think they have some backing in the case law, but it seems a thin point unless you can connect the gang to criminal activity rather than a bunch of thugs to it.
“Isn’t it important to ask why or how the Gang Injunction would have protected these individuals (those mentioned by the plaintiffs during the trial to show the pattern) if allowed to remain in effect in W Sac? I mean…if these crimes took place after the injunction had been in full effect then what good would the gang injunction have done to prevent these crimes (ie Sikh driver incident) and protected those victims if it isn’t doing that presently? “
Again a good point.
“So, we have the case of the gang members committing a crime that although deplorable, is not gang related. Great, so how is the injunction going to stop this stuff from happening and why didn’t it in this case? “
That’s my point as well, if you have felonies failing to prevent gang crimes, how is a civil remedy with only misdemeanor charges for violation going to prevent them.
“Did he substantiate his claim? “
They tried to show that during cross-examinations of the defense’s witnesses.
“And he provided specifics? “
THere was a point or two raised during cross.
“It’s not clear to me what this means “
I was trying to say that if their standard is crime, then they will find it in West Sac, but it is not clear that the crime rate in West Sac is that much higher that it warrants additional remedies.
SM: “”Has this elemental standard been used to address other societal problems or just criminal street gangs and the subsequent nuisance that allegedly comes with them? Can a “nuisance” be tied to something other than criminal street gangs to get rid of other things and/or people? ”
The answer is yes. From Wikipedia:
“A public nuisance is an unreasonable interference with the public’s right to property. It includes conduct that interferes with public health, safety, peace or convenience. The unreasonableness may be evidenced by statute, or by the nature of the act, including how long, and how bad, the effects of the activity may be.[4]
A private nuisance is simply a violation of one’s use of quiet enjoyment of land. It doesn’t include trespass.[5]
To be a nuisance, the level of interference must rise above the merely aesthetic. For example: if your neighbour paints their house purple, it may offend you; however, it doesn’t rise to the level of nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it is an expected part of quiet enjoyment of property and does not constitute a nuisance.
Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of interests in real property (whether owners, lessors, or holders of an easement or other interest) have standing only to bring private nuisance suits.”
SM: “Isn’t it important to ask why or how the Gang Injunction would have protected these individuals (those mentioned by the plaintiffs during the trial to show the pattern) if allowed to remain in effect in W Sac? I mean…if these crimes took place after the injunction had been in full effect then what good would the gang injunction have done to prevent these crimes (ie Sikh driver incident) and protected those victims if it isn’t doing that presently? “
The pertinant question is not whether the previous injunction removed all crime, but if it REDUCED crime – was it effective. If the plaintiff can show that criminal activity was reduced by the gang injunction, but is still an ongoing problem (such as the alleged gang assault on the taxi driver), then the plaintiff could argue 1) the gang injunction has been effective; 2) there is still need to continue the gang injunction. So my question is was there any evidenced to show the initial gang injunction did help in bringing the crime level down?
They didn’t present any evidence in trial to that effect.
If you look at the crime rate in West Sac, it pretty much mirrors that of the rest of the region.
crimes yes gangs no