In 1997, the case of People ex rel Gallo v Carlos Acuna challenged the constitutionality of gang injunctions. Lower courts had held that provisions disallowing gang members to associate with one another violated their first amendment right to free assembly. However, the Supreme Court of California upheld the constitutionality of the provision against association on the grounds that it was not constitutionally vague - it only applied to named gang members and only covered four square blocks - and found that gang activity fell under the definition of a public nuisance. Nonetheless, a dissenting opinion authored by Justice Stanley Mosk warned that "The majority would permit our cities to close off entire neighborhoods to Latino youths who have done nothing more than dress in blue or black clothing or associate with others who do so; they would authorize criminal penalties for ordinary, nondisruptive acts of walking or driving through a residential neighborhood with a relative or a friend."
In addition to limiting public association, many new injunctions include provisions against "otherwise legal behavior" like being outside after dark, possession of various objects, making gang related hand signals, and wearing gang colors These later injunctions have come under criticism from academics and law practitioners for violating gang members' due process rights by not naming individual defendants, administering criminal penalties for essentially being guilty by association, and vague wording. Suggested solutions to these critiques include implementing procedural safeguards and gang-specific pleadings to protect defendants' due process rights and avoid the "void for vagueness".
Other criticism includes the violation of gang members' civil liberties due to the broad geographic scope of some injunctions. In re Englebrecht upheld an injunction covering one square mile that included some gang members' residences. The 2005 injunction against the Colonia Chiques gang in Oxnard, California covers 6.6 miles, 24% of the city. Scholars have argued that these broad areas heavily burden gang members' liberties and need be narrowly tailored to the conduct that directly facilitates public nuisance. Others have critiqued the lack of an exit process to remove one's name from the list - a practice currently only used in San Francisco and Los Angeles - due to the fact that non-gang affiliated people often end up on injunction lists and the questionable constitutionality of injunctions. While the United States Supreme Court has not directly addressed the constitutionality of injunctions in 1999 in Chicago v. Morales it upheld the Illinois Supreme Court's ruling that a 1992 anti-"Congregation Ordinance" was unconstitutionally vague, violating due process and arbitrarily restricted personal liberties.
Prosecutors obtain gang injunctions by applying the law of public nuisance to the particular harms criminal street gangs cause. Since gang injunctions started to be used as a tool more than 25 years ago, several cases have shaped how they are drafted and implemented. These cases all stem from common law public nuisances which involve some interference with the interests of the community at large, interests that were recognized as rights of the general public entitled to protection. These restrictions have been attacked on numerous constitutional grounds, specifically on the doctrines of vagueness and over breadth, the First Amendment right to free association, the First Amendment right to freedom of expression, and procedural due process. O’Deane (2007) looked at some of the legal issues surrounding gang injunctions and some of the case law applied to gang injunctions.
Case Law - City of Chicago v. Morales, 119 S.Ct. 1849. (Chicago Anti-Loitering Ordinance)
In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which provided that whenever a police officer observes a person whom he/she reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he / she shall order all such persons to disperse and remove themselves from the area. Any person who did not promptly obey such an order was in violation of the ordinance. This ordinance was later determined to be unconstitutional and some compare this case to the use of gang injunctions still today. The big difference here is that the comparison is between a civil law suit and a city ordinance, which are two very different things. The Illinois Supreme Court concluded that the ordinance violated due process of law because it was unconstitutionally vague and lent itself to arbitrary enforcement. Because the ordinance failed to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. The term "loiter" may have a common and accepted meaning, but the ordinance's definition of that term "to remain in any one place with no apparent purpose" did not. This vagueness about what loitering is covered and what is what eliminated the ordinance. The Illinois Supreme Court correctly concluded that the ordinance did not provide sufficiently specific limits on the enforcement discretion of the police to meet constitutional standards for definiteness and clarity.
Case Law - People v. Gonzalez, 910 P.2d 1366 (Cal. 1996).
This case stems from the Blythe Street gang injunction. Defendant Jessie Gonzales, also known as “Speedy”, fought his case to the California Supreme Court, after he was arrested when he tossed a bottle of beer, ran from police, and forced his way inside a house to evade police without the permission of the home owner. Gonzalez claimed that because the injunction violation case against him was filed in a municipal court, and the injunction was obtained in Superior Court, the defendant did not have an opportunity for proper relief (People v. Gonzalez, 910 P.2d 1366 Cal. 1996). In this case Jessie was found guilty of violating the injunction. The conviction was used as a test case to challenge the validity of the controversial gang injunctions. Gonzalez denied he was a gang member and he felt that a municipal court judge did not have proper jurisdiction to review an order issued by a Superior Court judge. The Court of Appeal held that all criminal cases filed for violations of 166.4(a) PC must be filed directly in Superior Court. The state Supreme Court overruled the Appeal Courts decision and held that a municipal court judge does have “some limited right of review” over an order issued by a Superior Court judge. Since the ruling in the Gonzales case, virtually all gang injunction violation cases have been filed in Superior court as criminal misdemeanor violations. It is the preferred method when compared to civil contempt violations that have a maximum penalty of five days in custody. A criminal violation allows the prosecutor to seek probation and jail time to repeat offenders which increases the severity of the violations.
Case Law - People v. Acuna (Cal. App. 1995) April 24, 1995
On April 24, 2005, the court of appeals for the sixth district upheld the issuance of the Sur Trece injunction, but struck down every provision in the order that was not already a violation of statutory law (People v. Acuna, 1995). The decision invalidated 15 of the 24 provisions in the preliminary injunction sought by the Santa Clara District Attorney in February 1993. The California Court of Appeal also ruled that the "harassing, intimidating and annoying" language of the injunction was unconstitutionally vague and overbroad and that the prohibition of the gang members congregating in Rocksprings violated their First Amendment right to free association. The San Jose City Council authorized an appeal of that decision to the California Supreme Court, resulting in the opinion reported in People ex rel. Gallo vs. Acuna (1997) 14 Cal. 4th 1090. The appellate court upheld only those provisions that enjoined criminal conduct, as in the case of the Playboy Gangster Crips from 1987 in Los Angeles. The California Court of Appeals found that the injunction against the Varrio Sureno Treces gang was overbroad and did not sufficiently define the prohibited activities or provide definite standard for police enforcement and ascertainment of guilt. The city of San Jose appealed to the state Supreme Court arguing to reinstate two of the fifteen provisions that were struck down, which included the no association clause and the no confronting, intimidating, harassing, and threatening clause. The appeal to the State Supreme court was filed.
Case Law - People ex rel. Gallo vs. Acuna (1997) 14 Cal. 4th 1090
On January 30, 1997, the constitutionality of gang injunctions as we know them today was established. The California Supreme Court ruled that the City of San Jose may implement a civil gang injunction that restricts non criminal behavior if committed by alleged gang members in a particular neighborhood. The Court overturned the April 1995 appellate court decision in the case. The ACLU and others in opposition to gang injunctions were forced to acknowledge the decision by the state's highest court would add momentum and increase usage of the increasingly popular technique. What the ACLU missed but the courts did not is that the liberty of the peaceful, law abiding residents of the community must be preserved, and the freedom for those whose ill conduct is detritus to the community does not take precedence. The 4-3 ruling, overturning a Court of Appeal decision, upheld a San Jose injunction that barred the gang members from "standing, sitting, walking, driving, gathering or appearing anywhere in public view" with each other in a four-block neighborhood. "Liberty unrestrained is an invitation to anarchy," Justice Janice Rogers Brown wrote for the court. "Freedom and responsibility are joined at the hip." The decision removes a legal cloud over such gang-abatement injunctions, which have been growing in popularity in California as a tool to combat gangs.
This case gave law enforcement the framework for what is needed to seek and obtain gang injunctions. But civil libertarians argue that these injunctions go too far, violating such basic constitutional rights as freedom of speech and freedom of association. Justice Ming W. Chin agreed that courts can prohibit behavior even if it is legal but objected that the injunction. The judge stated, "I do not discount the serious threat to community values that criminal street gangs pose, nevertheless, we cannot turn a blind eye to the necessities of proof. Individuals should not be named as gang members without corroborating evidence that they substantially contributed to the nuisance or intended to do so in the future”. The ACLU argued the case before the high court stating that San Jose's gang injunction was unconstitutionally vague and overbroad and targeted Latino youths without sufficient proof that they have committed any crimes or harassed residents. The ACLU stance was because the defendants are suspected gang members; they are stripped of a variety of constitutional freedoms, the rights to associate, to assemble and the right to due process. The ACLU felt the ruling effectively placed law making power in the hands of judges instead of the legislature, making it unconstitutional. The case submitted contained substantial evidence that the gang was responsible for significant crimes and the named defendants were responsible for some of them. The California Supreme Court held that the gang injunction was neither vague nor overbroad because its terms were reasonably clear in the context of the Varrio Sureno Treces gang. The Court also held that the anti-gang injunction did not violate the free association rights of the Varrio Sur Treces members because there is no cognizable First Amendment right to free association implicated by membership in a criminal street gang. Although the Varrio Sur Treces members sought certiorari by the United States Supreme Court, the writ was denied. Thus, in California, anti-gang injunctions have become an established law enforcement tool.
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