On March 9, 2010, the challenge to the West Sacramento Gang Injunction will go to trial in Yolo County court. That was determined on Tuesday as Yolo County Superior Court Judge David Reed denied the District Attorney’s office move for summary judgment.
In the meantime, lawyers fighting against the injunction that would place strict limitations on the actions of those deemed to be gang members in West Sacramento, appealed Judge Kathleen White’s ruling from last year that put in place a temporary injunction.
According to a release from the DA’s Office from 2008:
“The injunction prohibits, among other things, gang members from associating with one another, intimidating victims of crime, possessing weapons, drugs, or alcohol in public, and defacing public or private property, within a proscribed three square mile “Safety Zone” located in the city of West Sacramento. The “Safety Zone” is bounded by Harbor Boulevard to the west, the Sacramento River to the north and east, but not including the area previously known as the Lighthouse Marina and Golf Course, and by Highway 50, Business Loop 80 and State Route 275 to the south.”
In March, the District Attorney’s Office will seek a permanent injunction in a case that is expected to last several month sand call literally hundreds of witnesses on both sides.
Appeal of Temporary Injunction
Attorney Mark Merin, who is one of several attorney’s that representing those who have been served notice of being under the injunction, told the Vanguard, “since we believe that the court abused its discretion in entering a preliminary injunction, we asked the court of appeal to vacate the preliminary injunction or modify and basically level the playing field before the trial.” He continued, “Our position was that the court ignored all the evidence that the defendant’s had presented in opposition to the only evidence that the district attorney presented which was declarations from self-styled gang experts and law enforcement without any support from the community and without any evidence other than law enforcement’s word.”
In the brief, Mr. Merin, along with Joshua Kaizuka and Cathleen Williams argue:
“The preliminary injunction is unprecedented in its geographical scope – covering not just a few square blocks but an entire community, with all of its residential and commercial areas. It also “locks down” an entire community, not only the named defendants, but anyone deemed to be a gang member by police on the beat. It imposes strict curfews, restrictions on all activities or travel which might expose the named defendants, or anyone deemed to be a gang member by the police, to the presence of another named, or presently unknown, gang member.”
The original gang injunction was struck down by the courts in part because it was overly broad and failed to properly notice potential defendants. Mr. Merin, et al, argue that little has changed in the new injunction. There is a lack of sufficient evidence in the complaint substantiating the requisite gang activity, and offers that the only visible justification for the revised complaint is the criminal records of a couple dozen of the alleged 400 gang members.
They continued that not only does the complaint fail to demonstrate evidence of a gang, or of the defendants’ participation in such, but also that there is evidence to the contrary about gang existence in the community, and the preliminary injunction itself is vague and over-broad, intruding upon constitutionally protected rights.
A key point at issue was the lengthy statement by Investigator Joe Villanueva that Judge White allowed to be admitted completely into evidence. This he argued was almost the entire evidence the plaintiff relied upon.
Mr. Merin argued that Villanueva’s experience with about 100 “gang members” supplied no foundational evidence about his expertise. Though he talked extensively about gangs in general, he said nothing specific about the defendants.
Deputy Attorney General Rob Nash argued on behalf of the Yolo County District Attorney’s office. He argued that there was no indication that the trial court disregarded other evidence, or gave unfair weight to Villanueva’s declaration. He said that the nature of a public nuisance is such that a variety of conflicting opinions proliferate, and reminded the Court that clear and convincing evidence means that the plaintiff (People) would be likely to prevail on the case’s merits.
Mr. Nash said the injunction is not overbroad, and does not infringe upon protected public activities (and does not forbid alcohol consumption per se, by suspected gang members, just open containers in public). Mr. Nash concluded by saying that there is no evidence that the trial court did not consider all the evidence.
Mark Merin told the Vanguard that while he did not believe the court would reverse the temporary injunction, it might be willing to limit the terms of the injunction and there were suggestions that they may believe that the injunction is overly broad. A decision is expected within thirty days.
Challenge to Permanent Injunction Goes Forward
According to Judge Reed’s ruling, the District Attorney’s office in order to prevail had to “prove that the Broderick Boys gang is responsible for the public nuisance to be abated in the Safety Zone, and Defendants are members of the alleged gang.”
He had one of the clearer explanations of what can and what cannot be used to weigh in on summary judgement.
“In ruling on a summary judgment motion, the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true…” If evidence is controverted by other evidence, there is a “triable issue” of fact and summary judgment must be denied.”
He ruled that there were several triable issues of fact including whether the alleged gang is in fact a “criminal street gang” and whether the defendants that are named, 11 names in the motion, are members of that alleged gang. Moreover, “To prevail on their action for public nuisance, the People must establish the existence of a present condition or the potential or possibility of future injury.”
Perhaps more interesting than the denial of summary judgment, which is generally a formality, is the fact that a large amount of evidence including some declarations were excluded as hearsay or lacking evidentiary support.
Mark Merin told the Vanguard, “What was very interesting is that they submitted essentially the same declarations that they submitted in front of [Judge] Kathleen White who had issued the preliminary injunction and the trial court judge in this case, Judge [David] Reed, basically threw out all of the declarations as based on hearsay, without foundation, so he stripped the District Attorney’s case down to nothing. So that’s why they were denied their summary judgment, because basically they submitted no competent admissible evidence.”
The defense had made objections to thousands of these assertions alleged by the District Attorney and Judge reed threw out many of them. While, this only applies to the motion for summary judgment, it may be an indication of the weakness of the District Attorney’s case if they believe that they can get away with attempting to submit unsubstantiated hearsay into evidence.
The Gang Injunction case is expected to last for a number of months and the Vanguard will have extensive and exclusive coverage of much of the trial.
—David M. Greenwald reporting
David, you’re not gonna like what I have to say about this, but I truly believe you’re getting in the way of the law and standing up for criminals. There should absolutely be a gang injunction. I’m glad the DA is tough on crime and gangs. They are EVERYWHERE…permeating throughout our society like a cancerous tumor. They enter into law enforcement and serve as information for the gangs, they enter into society and their crimes are pervasive. I’m tired of liberals (sad to say, in this case I am embarassed to be one) standing up for the supposed “rights” of these assholes. They use and manipulate our laws to their own advantage. They commit a crime and when they get caught they turn around and shout “discrimination.”
you see there are a few comments in this section because we don’t care what happens to the gangs. What we hope is the law will continue to do their stand up job of defending the rights of law abiding citizens, and continue to protect us. If they don’t want to follow the law, they can go to jail. You know it’s that place where criminals go.
The price of protecting your rights is the price of protecting the rights of bad people because the law cannot discern the difference without due process. You deny bad people due process and you end up denying your own. You may not care what happens to gangs, but shouldn’t someone have the right to be innocent until proven guilty? Shouldn’t the burden of proof be on the state rather than the defendant? That’s what this is about. If you want to crack down on gang members, that’s great, prove that they committed a crime first and then punish them for that crime, don’t deny them rights because the DA claims that they are gang members.
well David when the crime is so rapant and out of control, when the gangs have infiltrated 95% of the households, sometimes you can’t be so discerning. let the cops do their jobs. if you don’t like it and aren’t happy with it, then become a cop and you’ll see just how hard it is.
i don’t give a damn about the gangs. quite frankly i wish we could send them all back to mexico. they are over loading our jails, our prisons, our social services. go to texas and california and there are towns that are overrun by illegal immigrants who get to stay and stay and stay untill they get citizenship. they hate americans they hate white ppl, they take as much free goodies from the social services, they stay within their own communities and never intermingle, they are completely overrunning the system.
they are taking advantage of our civil liberties and justice system and are seeking to get away with crimes at every step of the way.
not all are the same, but pretty much for the most part David, this place is being taken over by Mexico.
so great, they get their revenge on America. cool. let’s let california and texas be annexed into mexico. let mexico then take care of all the white folks, mexican americans and african americans. let them give us welfare and social security, education and food stamps. i’m all for it.
let’s see how that works out. i’d love to become the first mexican american to be annexed into mexico. i’ll learn the language, get a job, get laid off and get unemployment benefits in the form of pesos.
sounds good to me David. then you can write your articles about the REAL corruption in Mexico, cause David, it’s rife with corruption and you’ll have plenty of fodder for your blogathon!
[i]well David when the crime is so rapant and out of control, when the gangs have infiltrated 95% of the households, sometimes you can’t be so discerning.[/i]
As Benjamin Franklin said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
It typically begins with wild exaggerations, like the claim that gangs have infiltrated 95% of the households. (Did you know that 80% of statistics are made up?) I was just reading about how the US set up Japanese internment camps in California. The unscrupulous general in charge floated the wild claim that Japanese planes had scouted the Bay Area to bomb it. They hadn’t been anywhere near the Bay Area — the man lied for a purpose.
When making a decision to made take away the rights of others we must contemplate the point in which ours will be taken away as well. If an individual commits a crime, arrest that person and prosecute. The mere idea that a person in the United States of America can be arrested and prosecuted for associating with others is INSANE!
By the way, I don’t remember ever learning that “all” gangs come from Mexico. I think the KKK are really going to be unhappy.