The challenge to the Gang Injunction was originally to begin today (March 9), however last week, Judge David Reed suddenly recused himself citing a number of cases that he was involved in as a defense attorney that the District Attorney’s Office intends to use. That move was likely a ploy by the District Attorney’s Office to remove Judge Reed who seemed to view their case more unfavorably than others.
The trial will now proceed in April with Judge Kathleen White presiding as she did over the preliminary injunction. Yesterday, a three judge panel in the Third Court of Appeals issued a ruling on a challenge to that preliminary injunction.
They conclude that “sufficient, credible evidence supports the trial court’s conclusion the Broderick Boys are a criminal street gang whose activities have created a public nuisance in the designated area.”
However, they also conclude that “two provisions of the preliminary injunction, one dealing with controlled substances and the other dealing with the consumption of alcoholic beverages, are unenforceable.”
They, “therefore reverse as to those provisions but otherwise affirm the order.”
The District Attorney’s office had originally filed for the injunction on December 30, 2004. On appeal, the Third Court of Appeals concluded that the District Attorney’s office had failed to properly notice the enjoined of the injunction against them and therefore reversed the judgment of the lower court.
The new complaint has been filed naming 23 named individuals in addition to Does 1 through 400.
The first amended complaint contains a single cause of action alleging a public nuisance in an area described as follows: “located in the City of West Sacramento, bounded by Harbor Boulevard to the West, the Sacramento River to the North and to the 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” (the Safety Zone).
When the trial court issued the preliminary injunction, the court indicated that “plaintiff met his burden of proving he is likely to prevail on the merits of his public nuisance claim and that any harm caused by continuation of the nuisance is not outweighed by the effects on defendants of granting the temporary injunction.”
In challenging the court’s findings, the defendants argue:
“there was insufficient evidence a gang named the Broderick Boys exists in West Sacramento or that the alleged gang or its members create a public nuisance within the Safety Zone. They further contend the trial court erred in concluding there is a greater risk of harm from denying the temporary injunction than granting it. Finally, defendants contend various provisions of the injunction are vague, overbroad or otherwise violate their constitutional rights.”
However, given the fact that the court is merely reviewing the ruling under an abuse of discretion standard, the review is limited to the question as to whether
the trial court abused its discretion in “evaluat[ing] two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued.” [Citation.] And although we will not ordinarily disturb the trial court’s ruling absent a showing of abuse, an order granting or denying interlocutory relief reflects nothing more than the superior court’s evaluation of the controversy on the record before it at the time of its ruling; it is not an adjudication of the ultimate merits of the dispute.”
While the decision is lengthy, there are two key points that ought to be brought to light. The judge’s basically ruled that there was enough evidence that was brought forth by the prosecution to rule out any sort of abuse of discretion charge.
“In light of the evidence of harm caused by the Broderick Boys within the Safety Zone, which harm will presumably continue absent injunctive relief, we find no abuse of discretion in the trial court’s determination that the potential harm to residents of the Safety Zone if the preliminary injunction is denied is not outweighed by the potential harm to the defendants and other active gang members if the injunction is granted.”
However, they also give insight into the notion of an injunction against a group of individuals as opposed to a criminal charge against a particular individual.
“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.”
Moreover,
“defendants overstate the harm they will suffer from granting the interim relief. Defendants, of course, cannot claim harm from any restrictions in the activities that constitute the public nuisance. As to nonnuisance conduct, the injunction applies only to “active members” of the Broderick Boys, where that term is defined to encompass only those who participate in or act in concert with the gang to an extent more than nominal, passive, inactive, or purely technical. Furthermore, the injunction applies only within the Safety Zone. And, as we shall explain in the following sections, the proper breadth of the injunctive relief is not as extensive as defendants claim.”
Another interesting point that illuminates the scope of the gang injunction:
“Defendants contend the foregoing definition of “active member” fails to specify how a particular individual will be validated as a gang member and, therefore, confers too much discretion on law enforcement authorities.”
However, the judge’s rule:
“Inasmuch as defendants themselves are subject to the preliminary injunction by virtue of being named defendants in the action and being the subject of proof that they have actively participated in gang activities, and not because of the foregoing definition, they lack standing to challenge that definition on behalf of parties not before the court.”
And for that matter:
“At any rate, we disagree with defendants that the definition of “active member” in the injunction is unconstitutionally vague. Of necessity, the definition cannot be much more specific.”
The court does however limit how far the injunction can go, striking down two provisions of it. In particular, they struck down a portion that limited activities between the hours of 10 pm and 6 am.
Paragraph (1)(g) of the preliminary injunction contains the following curfew restriction: “Remaining upon public property, a public place, on the premises of any establishment, or on a vacant lot, between the hours of 10:00 p.m. on any day and 6:00 a.m. the following day. . . .”
It goes on to define these terms. The gang injunction prohibited members from [b]eing outside [in the Safety Zone] between the hours of 10:00 p.m. on any day and sunrise the following day, unless (1) going to or from a legitimate meeting or entertainment activity (specifically excluding activities where other gang members are present); (2) actively engaged in some business, trade, profession or occupation which requires such presence (including directly driving to or from work); or (3) involved in a legitimate emergency situation that requires immediate attention.?”
The defense argues:
“this provision infringes on their constitutional freedom of movement and is otherwise vague and overbroad. They argue the Fourteenth Amendment protects a person?s right to remain in a public place for a lawful purpose.”
The court in part agreed.
“The Court of Appeal found this provision unconstitutionally vague. First, the court found the provision vague in failing to define “outside.”” [Moreover], “the court also found the provision unconstitutionally vague in failing to define the “meeting or entertainment activity” exception to the curfew provision.” [Furthermore], “The court also found the term “entertainment activity” vague. According to the court, “entertainment” “could encompass practically any lawful activity that provides diversion or amusement, such as a walk in the park.””
The court however finally rules that the curfew provision is clear enough,
“the curfew provision, which applies only to public property, public places, private establishments open to the public, or vacant lots within the Safety Zone, with certain limited exceptions, does not sweep too broadly or invade protected freedoms of defendants and other active gang members.”
The court also struck down a portion of the alcohol provision.
“The danger described by Investigator Villanueva was that gang members would drink alcoholic beverages and consume narcotics out in the open in view of the public, thereby creating an intimidating atmosphere. Plaintiff?s counsel argued that this is what the provision is intended to do. Nevertheless, the language used is at least susceptible of a broader interpretation that would include the consumption of alcoholic beverages in restaurants or bars open to the public. Under these circumstances, the provision does not provide adequate notice of what is prohibited, and violates due process.”
Given that the court was only ruling on an abuse of discretion standard, the final outcome is not completely surprising, although it is interesting that the court did strike down two of the provisions of the temporary injunction. The broader questions will have to be determined in the trial of the permanent injunction and probably in subsequent appeals. Remember that with the initial injunction, the trial court granted it but it was struck down on appeal.
—David M. Greenwald reporting
I have been watching this particular case with extreme concern. Gangs have long been a part of the Yolo county culture. Biker gangs have frequented bars and restaurants in the area for decades. The fact that this is focused on “the Broderick Boys” seems suspicious at first blush. The law enforcement community has taken the opportunity to label anyone they deem undesirable a Broderick Boy member. The sooner the trial on the permanent injunction is heard the better.
biddlin your premise – that le [to the effect] labels anyone is innaccuraate at best. There is a set protocol & it is not based on a whim.