Judge White Issues Final Gang Injunction in West Sacramento

According to the DA’s office, “After hearing all of evidence at trial and reviewing the exhibits and the post-trial briefs, Judge White found that the Broderick Boys is a criminal street gang, the Broderick Boys has created a public nuisance in the Safety Zone by its conduct and activities, and the public nuisance caused by the Broderick Boys has created irreparable harm to those who live and work in the Safety Zone.”

Additionally, Judge White “found credible the law enforcement officers who testified about their response to the crimes in the Safety Zone….”  

Discussing the defense witnesses, Judge White found them equally credible in their description of the Safety Zone as a community with strong family ties.” 

However, “The court found less credible the testimony of these defense witnesses as to the nonexistence of the Broderick Boys gang.  These reasons included the witnesses’ relationships to named defendants and their apparent motive to minimize the defendants’ actions, their lack of personal knowledge regarding certain events, their use of the phrase ‘I don’t recall,’ and/or gaps in their knowledge or recollection.” 

Judge White concluded, “Of particular note in the court’s deliberations: much of the evidence presented by the plaintiff [District Attorney’s Office] was uncontroverted, and much of the argument in the defendants’ closing briefs assumed facts not supported by the evidence at trial.”

A team of eight defense attorneys was headed up by Sacramento Civil Rights Attorney Mark Merin, who told the Vanguard in a phone interview in March that, while he was disappointed with the ruling, this was not surprising. They did not expect to win at the trial level, but he felt they would ultimately prevail at the appellate level, primarily because there is no nuisance posed to the community from a criminal street gang.

“I am saddened and disappointed,” he told the Vanguard, “that she didn’t give a little more consideration to the substantial arguments that were made by the defense and consider the rights and interests of the persons who were alleged to be gang members and the community that denies that the gang exists or that there’s any public nuisance in West Sacramento.”

Like many, Mr. Merin was expecting the ruling to come down as it did.  However, he was surprised in what he called the “surface treatment” as to how it addressed the major issues.

“She gave very little consideration to the law,” Mark Merin told the Vanguard.

He argued that she did not have support within the law for her conclusions and noted that she relied almost exclusively on her “credibility resolutions” or, as he described, a way of giving her “cover” because “courts of appeal tend to allow the trier of fact to make credibility resolutions which are not set aside unless they are not clearly supported.  That’s a way for her to add heft to her decision and to avoid actually having to state something which would be so easily penetrated with a legal analysis.”

He refers here to a determination which argues that the “this case turns, in substantial part, on the credibility of the witnesses.  The Court, sitting as trier of fact, made credibility determinations based on the evidence and the totality of the circumstances.”

Judge White would go on to argue, “The court found the testimony of the victims and of percipient witnesses to the crimes described during the trial particularly credible and compelling, notably the testimony of James Hopkins III, Reece Hopkins and their father, James Hopkins, Jr., and also James Kephmi, Jacob Keating and Su Matsumoto.”

On the other hand, as stated above, she wrote, “The court found less credible the testimony of these defense witnesses as to the nonexistence of the Broderick Boys gang. These reasons included the witnesses’ relationships to named defendants and their apparent motive to minimize the defendants’ actions, their lack of personal knowledge regarding certain events, their use of the phrase ‘I don’t recall,’ and/or gaps in their knowledge or recollection.”

Mark Merin expressed a lack of faith in the independence of the judicial system and Judge White in this matter.

“I could’t say I’ve been impressed with Judge White’s independence,” he remarked.  “She appeared to me to buy the prosecution’s version hook, line, and sinker and in part because she sees those people all of the time.  It’s a little harder for her to discount their testimony.”

“The reality is that we’re talking about whether a public nuisance exists.  That’s the nub of this case,” he told the Vanguard.  “Whether there is a public nuisance ongoing in West Sacramento and you can ask anybody who lives there, is there a public nuisance, is it caused by the Broderick Boys?  The answer’s going to be no.”

“It seems to me that she’s way out on a limb concluding that there’s a public nuisance,” he added.

One of the rulings that Judge White made was, “There is no adequate remedy at law in that criminal prosecution has not stopped the nuisance created by the defendants’ activities. Without the injunction, defendants, and each of them, will continue to maintain the nuisance by participating in and encouraging their criminal and nuisance activities, irreparably harming the community and the individuals who live and work in the Safety Zone.”

The question, though, is why would a civil injunction make a difference in stopping this supposed pattern of criminal activity, when the full force of the California Penal Code and the prosecution of individuals for a variety of felonies has not?

Mark Merin agreed with this problem.  He told the Vanguard, “The injunction has no force and effect in preventing crime.  What it does is interfere with people’s ability to associate.  It chills the freedom that they feel in being in their own neighborhood.”

“It imposes some weird and irrelevant – as far as the criminal mind is concerned – restrictions on where people can go, what people can do, and when they can do it,” he added, “But, as far as actually preventing crime or anything of that sort, I can’t see that it has any effect whatsoever.”

In May, a federal judge in Southern California ruled that “because a gang injunction restricts lawful, commonplace activity, it is an extraordinary remedy and holding, that must be proven by clear and convincing evidence.”

Thus, they cannot enforce anti-gang policies against individuals who are suspected of being gang members without giving each alleged gang member the opportunity to fight that label in court.

In a 10-page opinion, Federal Judge Valerie Fairbank notes the difficulty with determining just who is and who is not a gang member at any particular time.

She writes, “The testimony of plaintiffs’ experts established that joining a gang is often a ‘fluid process’ in which there is not always a clear point at which a person becomes a member or participant of a gang.”

She concludes, “This lack of clear, objective criteria for initiation into a gang further complicates the determination of who is an ‘active participant.’ “

She adds, “The trial testimony shows that additional procedural protections—such as access to evidence, discovery, and cross-examination—would significantly reduce the risk of error in such a fact-intensive, vaguely defined determination as who is an active gang participant, in particular by helping to distinguish between the parties’ subjective judgments and objective facts.”

According to the LA Times article citing Peter Bibring of the ACLU, “The decision ordering Orange County authorities to respect the due process rights of suspected gang members was the first of its kind in a federal case and should compel all municipalities to assess their anti-gang initiatives for constitutional compliance.”

“The idea that police and prosecutors should be able to take away people’s basic freedoms based on their judgment about who is and isn’t a gang member is completely contrary to due process,” said Mr. Bibring, a staff attorney with the ACLU. “All this ruling says is that people get some kind of hearing.”

It is not completely clear how this ruling might impact West Sacramento.  The Vanguard was told in April by Police Lieutenant David Delaini that the West Sacramento Police Department had at that time “no plans to go out in teams to serve large groups of people.  Rather, it is our intent to continue with our current practice of serving those persons who are eligible for service when we come across them in the performance of our regular duties.”

He continued, “I have spoken with Chief Drummond and it is our intent to continue with our current practice of serving those persons who are eligible for service when we come across them in the performance of our regular duties.”  He later reiterated that those individuals would be “validated gang members.”

The question is whether those individuals would now be entitled to due process of law before they could be enjoined by the gang injunction.

—David M. Greenwald reporting