Defense Attorneys File Appeal Challenging Gang Injunction Ruling

In March of 2011, Judge Kathleen White, following a nearly six-month trial that went from July 12, 2010 to December 15, 2010 on alternate weeks, issued her ruling in favor of upholding the gang injunction in West Sacramento.  Three months later, she issued a final “Judgment Granting Injunction After Trial” against the Broderick Boys criminal street gang in West Sacramento.

The gang injunction issued by the court imposed a curfew and restricted other activities of gang members in a defined area within West Sacramento called the “Safety Zone.”

He also told the Vanguard that he was not surprised at the ruling, offering that his team of defense attorneys 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.

Now, just over two years later, Mark Merin and Cathleen Williams have filed an appellate brief on behalf of 23 named defendants, and 71 persons “also identified as Broderick Boys” by the court.

Mark Merin told the Vanguard on Thursday that one aspect of their appeal is the challenge saying “the entity is not an unincorporated association.”  The problem, according to Mr. Merin, is that if there is no association, “[the gang] is not really amenable to suit so it can’t be properly named as a defendant and also the statements that are made by people can’t be admitted into evidence as statement of agents.”

“But the real critical thing is the question of acting in concert,” Mr. Merin argued.  For the People, the crimes that occurred by the various people over the course of a decade are significant because that comprises the nuisance.

“It’s not really true,” he continued.  “A nuisance is a condition, something that is ongoing, that can only be caused by people who are acting in concert.”  But a completed crime that occurred in the past was “present at the scene of someone else’s activity, which could be considered nuisance activity.  It can’t be attributable to that person, so you can’t aggregate all of this activity and say that’s the nuisance, because they’re not acting in concert.”

Judge Kathleen White, in 2011, found that 17 of the named defendants are “active members of the defendant Broderick Boys, each has been observed in the Safety Zone, and are responsible for the public nuisance.”

Judge White further ruled that the Broderick Boys “has engaged in and continues to engage in a pattern of conduct in the Safety Zone that constitutes a public nuisance under Civil Code §§ 3479-3480.”

She wrote, “Acting individually and/or collectively, defendants have created a public nuisance in the Safety Zone by engaging in, inter alia, violent assaults, robberies, intimidation, trespass, theft, illegal possession of weapons, possession of drugs for sale, and by ‘tagging’ public and private property with gang symbols. They have ‘patrolled’ the Safety Zone, congregating in public view, displaying gang tattoos, symbols, colors and signals to intimidate residents and often announce their gang membership as they have committed criminal acts. They threaten persons whom they perceive to have disrespected the gang, and retaliate against those who speak against them. This activity occurs most frequently after dark and before sunrise.”

Mr. Merin and Ms. Williams argue that some of the crimes identified in the trial “involved co-defendants who acted in concert for the purpose of committing that particular crime, and some incidents resulted in convictions or enhancements for gang related crimes under the STEP Act (Penal Code section 186.22, et seq.).”

However, in this case, “The collective activity described by the Court was simply not shown to exist, and there was no evidence of a gang ‘entity,’ that is, an identifiable group which operated, however informally, to aid or co-ordinate individual crimes.”

Mr. Merin instead argues, “The supposed ‘gang’ in Broderick-Bryte was a social identity, a sense of loose affiliation based on neighborhood and family, particularly among neighborhood youth…”

Mr. Merin argues that hearsay statements “by non-Defendants were admitted over the Defense’s continuing objection as admissions of a party opponent, the gang entity. Defense hearsay and relevance objections were overruled, or rather deferred, subject to the People ‘connecting the dots’ and establishing the foundation for admissibility. Ultimately, these were all admitted after the trial in the SOD.”

In his phone conversation with the Vanguard, Mark Merin indicated that Judge White allowed hearsay evidence “to come in subject to connecting the dots.”

“Then it turned out that, whoops, she never did connect the dots,” he said.  “Until in her statement of decision (SOD) so she said… all of these people that were mentioned were gang members at the time the alleged statements occurred.”

“She had no basis for saying they were gang members,” he argued.

“In addition to failing to substantiate the opinion that admissions of gang membership meant membership in a criminal street gang entity, the People did not introduce any evidence that there was a gang entity to which supposed gang members ‘belonged,’ Mark Merin continued in the appellate brief.

The defense further notes, “The evidence relating to gang activity was summed up in a ‘pin chart’ which located 108 incidents (including 42 incidents that led to criminal prosecution and conviction; 51 individual identified gang members were convicted of crimes in these incidents) from August 7, 2001 to September, 2010; two crimes (the Memorial Park fight on March 19, 2010, and the Amtrak assault April 16, 2007) occurred outside the safety zone. Of the criminal convictions, 38 of the crimes were committed by one individual.”

They add, “Seventeen of the pins located points where West Sacramento P.D. officers documented contacts with persons who ‘admitted’ or were believed to be ‘Broderick Boys’ but where no criminal conduct occurred. Eleven of these contacts occurred within the last five years; two occurred in 2010.”

The total number of assaults committed by 94 identified Broderick Boys was 31 over the course of the entire decade.

The defense argues that their eye-witnesses to the street life, testifying for the defense, “shared a common belief that there was no gang active in Broderick-Bryte (the area of the safety zone), despite the evidence of crimes by identified gang members. It was also on the basis of this day-to-day experience that they opposed the injunction (which some felt was discriminatory, stigmatizing, and harassing) as unnecessary and burdensome.”

The defense argues, “While the court doubted the credibility of these witnesses because, inter alia, some were related to identified gang members, their testimony regarding the lack of a public presence of the Broderick Boys as a gang does not conflict with the People’s witnesses, who also did not observe any regular or continuing public gang presence as a nuisance in the neighborhood.”

The defense adds, “Their testimony concerning the impact of the injunction was unrebutted.”

In their legal arguments, Mr. Merin and Ms. Williams argue that the People failed to show that the Broderick Boys Gang was an unincorporated association “because there was no evidence that membership was based on mutual consent between the supposed gang entity and the ‘member.’ “

The problem that The People face is that, in order to enjoin a legally non-existent entity, it must be qualified as an unincorporated association, if “its members share a common purpose” and “function under a common name under circumstances where fairness requires the group be recognized a legal entity.”

But the defense argues that, “in order to be considered an unincorporated association, the members must join together by ‘mutual consent.'”  In this case, however, “while individuals indicated their allegiance to the Broderick Boys/Norteños gang by distinctive regalia and tattoos, as well as, at times, association, admissions and criminal actions, there was no evidence of mutuality – no evidence that anyone had been (or had to be) accepted into the gang; that the identified gang members shared property or profits with other identified members; that any individual crime was adopted or ratified by those who were not immediate participants; or that supposed members met any requirements or had any obligations whatsoever – other than the ‘generational thing’ of having family members with similar allegiance or identity.”

“Membership was casual, spontaneous, and self-elective,” the defense argues.  And while the People claim that people became members through the act of “putting in work,” the defense claims, that “was no evidence that anyone knew anyone else” was “putting in work.”

Moreover, the defense notes that, while being “jumped in” was an initial requirement for gang membership, there was only one person who alleged to have been jumped in.

Based on this, the defense argues that Judge White’s ruling that the Broderick Boys qualify as an unincorporated association should be reversed.

Next the defense argues that “the “pattern of conduct” found by the court to constitute a public nuisance was not attributable to defendants/appellants because they did not ‘act in concert’ with the supposed gang to create the pattern, and therefore injunctive relief against them was erroneously granted and should be reversed.”

The defense argues, the ” ‘Pattern of Conduct’ cannot be the basis for injunctive relief against defendants/appellants unless it is shown they are personally responsible for ongoing or threatened future harm by reason of their gang membership.”

The defense notes that, in this case, “the court found that the public nuisance resulted from a gang-related ‘pattern of conduct’ consisting, inter alia, of violent crimes, possession of weapons, drugs, congregation, intimidation, and graffiti in a three mile square area of West Sacramento that was denominated ‘gang territory’ “

The defense argues that “proof of concerted action” necessarily requires the people prove that “gang members engaged” in their activity, collectively, in order to further a common plan or design.  Here they argue, “That proof was lacking.”

They argue, “The evidence showed that the Broderick Boys/Norteño gang was a self-elective social organization without internal organization or even cohesion. There was no evidence of group structure, however informal, that agreed upon, directed, coordinated, encouraged, or otherwise aided the development of the ‘pattern of conduct.’ “

They add, “There was absolutely no evidence of rank, leadership, or collective decision making, however informal.”

To this the defense adds, “The people in this case failed to show that defendants/appellants engaged in concerted activity as active gang members at or near the time of the trial such that they can be held liable for any ongoing nuisance activity.”

They argue that membership must be current and active in order to impose criminal sanctions under the STEP (Street Terrorism Enforcement and Prevention) Act, and the same rules apply in a gang injunction.

As stated in one decision, in the context of a STEP Act case, “[i]t is not enough that a defendant have actively participated in a criminal street gang at any point in time, however. A defendant’s active participation must be shown at or reasonably near the time of the crime.”

The defense argues here, “One of the salient facts about gang membership that all the experts – both those appearing for the People and for the Defense – agreed upon was that gang membership is constantly changing.”

The defense further argues that the “admission of hearsay declarations of supposed Broderick boys, both named defendants and nonparties, and crime victims, was prejudicial, reversible error on a number of grounds.”

Here the defense shows that the Acuña decision, upon which gang injunction case law is largely based, did not rely on “gang members’ hearsay declarations concerning the alleged ‘turf’ of the gang, and the gang’s alleged goal of controlling that turf through crime and intimidation, to establish the existence of acting in concert to further that plan.”

The defense argues, “Hearsay declarations by alleged gang members cannot be used to impose liability on another individual member for pursuance of a common purpose in the absence of independent evidence of a concerted action” and “The fact of conspiracy cannot be proved by evidence of extra-judicial declarations of an alleged conspiracy.”

Instead, conspiracy must be proven before such declarations can be admitted.

The defense further argues that expert testimony must have a factual basis and the “facts on which the people’s expert witnesses based their testimony about the Broderick Boys/Norteño gang were insufficient to permit them to construct opinions on the subject of the gang’s alleged structure and collective activity, and therefore their opinions should be disregarded in the determination of whether substantial evidence supported the judgment.”

Importantly, the defense argues that the People failed to prove that there was an ongoing public nuisance in the safety zone.

Here they argue, “The People did not show that the ‘pattern of conduct’ attributed to the gang entity and the supposed individual members, including Defendants/Appellants, was a public nuisance.”

They argue that the testimony of five crime victims was not sufficient to prove that “a considerable number of persons” were affected “at the same time” by that trauma, as required by statute.  The People identified 42 incidents that led to criminal convictions on the map, but these incidents were spread over a nine-year period.

The defense argues that once or twice a year, the crimes occurred in public, but even then, they were brief, episodic and scattered, and thus did not “result in any repetitive, continued, or sustained disruption of the collective interest in peace and tranquility in the safety zone or any substantial part of it.”

“It cannot credibly be maintained that these incidents, however repugnant, impacted a substantial portion of the neighborhood at the same time,” the defense maintained.  “Nor was there evidence that the presence of a gang called the ‘Broderick Boys’ caused crime in Broderick/Bryte.”

Finally, the defense argues that the provisions of the gang injunction violate the defendants’ constitutional rights without any showing of necessity.

Mark Merin told the Vanguard that in the precedent-setting Acuña case, the defendants were all acting together in a small geographic area – they protected each other, sold drugs openly, intimidated each other, were all together and acted in concert.

In this case, Mr. Merin noted, “People were involved in incidents for a very short time.”

He cited that one of the named defendants was active during a six-month period and was “never heard from again.  Never appears on the transcript again.”

“So how could that person, their activities be contributing to or causing or responsible for an ongoing nuisance?” he asked.

For one of the alleged gang members, the only evidence was that when she was 20-something years old she was asked by a police officer if she were a Broderick Boy, and her answer was, “I was jumped in when I was 11.”

That’s the only time her name appeared on the record and she was not associated with any crime or criminal activity.

Mr. Merin noted that this is a case with no prior precedents.  Other gang injunctions have been able to show a real ongoing nuisance that is visible and is caused by a group of identifiable people.

“We’re going to win on this,” he said.  “This is a case that’s going to get reversed.”

He said their appeal takes on the precedents upon which the District Attorney’s office relied to make their case, and all this case law suggests that there has to be a certain level of activity and acting in concert that “just doesn’t exist here.”

“It’s tissue paper,” he said referring to the thinness of the case and Judge White’s ruling.  “If we have any decent scrutiny on the court of appeal… this case is going to be reversed.”

“It’s just such a travesty of justice,” he said.  “But the problem with these cases is that they don’t allow people to have counsel, so most of these cases don’t get tried.  We’re the first case to really just conscientiously make the record and the record shows that there was just no evidence to support these claims that there was a gang causing a nuisance.”

The attorney general’s office now has one year to respond to this brief, which was itself nearly two years in the making.

—David M. Greenwald reporting

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