Defense Submits Closing Statements in Gang Injunction Case

While we tend to believe that the plaintiffs in the case, the Yolo County DA’s Office, failed to prove their case, we nevertheless believe that they will prevail in court.

The court further found that members of the Broderick Boys “engage in a pattern of criminal and other deleterious activity that is offensive to the senses, significantly harms the property and persons in the Safety Zone, and substantially interferes with the right of community members to comfortable enjoyment of life and property in the Safety Zone.”

How likely is it that Judge White would overrule her own preliminary ruling?  Toward that end, the defendants have made a strong case, citing “testimony from residents of the subject community to establish that there is no public nuisance throughout the Safety Zone or in any portion of it but, to the contrary, the community is a safe, family-oriented, working-class neighborhood, where the residents do not feel intimidated, harassed, or obstructed, and object to the imposition of a gang injunction in their community.”

This is the first of several articles that will look at the defense’s closing statements and also some of the evidence that Judge White chose not to admit into the court’s official record.

We maintain that while the individual crimes indeed are troubling, for the most part they are just that, individual crimes, committed by individuals or groups of individuals, and that there was no evidence any kind of organized crime effort in West Sacramento.

While crime is troubling, we have remedies in existing law that do not require us to reverse burden of proof and enjoin people from conducting what would otherwise be lawful activities.

In our first article looking at the closing arguments, we look at the defense’s proposed statement of decision.  Here they argue that the community is relatively safe and family oriented and that whatever crimes are committed are isolated acts by individuals rather than in furtherance of a criminal street gang.

The defense begins by identifying the Norteno gang member as part of the Norteno gang that is roughly associated with the geographic area of Northern California, and who adorn themselves with certain colors, articles of clothing and tattoos.

They argue that, in some respects, the war between Nortenos and Surenos is an artificial construct of prisons.

They write, “Recognizing the realities of bitter conflict between incarcerated Northerers and Southerners (“Nortenos” and “Surenos” – largely Spanish speakers from southern California), both county jails, including Yolo County jail, and state prisons determine the affinities of their inmates and ‘classify’ them accordingly upon entry into the institutions, designating Hispanics as either Northerner or Southerner (or using one of the synonyms), and separating them inside the facilities as a matter of security.”

This gets to the point that many individuals carry the designation of Norteno based on prison selection process rather than any real affiliation with a criminal street gang.

They further argue, “The word ‘gang’ has no legal definition and could be used benignly to refer to a group of friends, or negatively to refer to an outlaw organization.”

The defense goes on to cite unreliability of police methods for identifying gang members.

They write, “For this reason, among others, ‘self admission’ as a gang member, or ‘classification’ as a gang member or affiliate is ambiguous and not reliable evidence to establish an interconnection sufficient to make all persons ‘admitting’ membership in a gang [to be] co-conspirators, or vicariously liable for the acts of others’ ‘self admitting’ gang membership.”

Next, they cite the Penal code definition of a gang member as “any group of three or more persons, having a common name or identifying sign or symbol which has as ‘one of its primary activities’ the commission of one or more of the criminal acts enumerated in the statute, whose members individually or collectively engage in, or have engaged in a pattern of criminal gang activity. ‘Active participation’ in any criminal street gang by one who, with knowledge that its members engage in criminal gang activity, and who willfully promotes, furthers or assists in felonious conduct by such gang’s members, is a crime.”

They then argue that the Broderick Boys is not a criminal street gang, primarily due to the fact that the “there is no evidence that the group, if it exists at all as an identifiable organization, has any generally accepted or ‘primary’ activities, let alone ‘the commission of one or more of the criminal acts enumerated’ in the statute.”

Instead they argue that there are individuals who have committed crimes over the years, both individually and in groups.

They further argue, “a relatively few teenagers and young adults in West Sacramento have adopted a style of dress consistent with a broader sub-culture displayed throughout northern California which also includes common tastes in music, hair style, and tattoos.”

Furthermore, they argue that “Whether or not ‘Broderick Boys’ is a criminal street gang is not determinative either of the existence of a public nuisance in West Sacramento or its amenability to being abated by an injunction order.”

Instead they suggest, “A criminal street gang could operate entirely covertly without the public even being aware of its presence, except when crimes or arrests are publicized; conversely, a public nuisance could be caused by offensive activity of legal organizations.”

The bottom line is that “there is no ongoing public nuisance throughout the demarcated ‘Safety Zone’ in West Sacramento, or in any identifiable sub-section of that zone,” as nuisance is defined in the Penal Code.

Furthermore, “Crime, itself, is not per se a public nuisance.”

For example, “Prostitutes strolling the streets, drug sales negotiated openly on street comers or in parks, groups of persons blocking the sidewalks challenging residents, are activities which when affecting ‘a considerable number of persons’ may be public nuisances and potentially abatable if the persons causing the public nuisance can be identified and served.”

Instead they argue, “But the sporadic crimes, albeit disturbing or repugnant, vicious or senseless, committed by Defendants herein and others who may know some of the Defendants and/or other criminals who committed crimes in the proposed ‘Safety Zone’ do not, through their nature or frequency, constitute a public nuisance.”

“Rare instances of graffiti were sighted,” the defense acknowledges, based on a walk-through of the community taken by the court, however they add, “but children at play and a relaxed street life seemed to be the norm in this working-class neighborhood, entirely consistent with the refrain from community witnesses attesting to the small-town feel and family centered community, which drew them to and keeps them living in West Sacramento.”

The defense acknowledges the extent of crimes described in the trial by the plaintiffs.

They write, “Plaintiff presented testimony from a few victims of  violent assaults which were chilling and not only instilled fear in those persons, but inflicted significant physical injuries.”

However, “‘What was not introduced by Plaintiff, however, was testimony from community residents, other than crime victims, who could testify that a significant number of persons in the community were denied the use of public property, obstructed in their free passage or use of such property, or were exposed to indecent or offensive activities caused or created by Defendants or alleged members of the “Broderick Boys” that could be abated by an antigang injunction.”

This is the outcome that that the defendants propose that Judge White find.  In the next few articles we will look into some of their arguments in support of these findings and we will also examine some evidence that Judge White did not admit.

—David M. Greenwald reporting