MCLE Self Study
Edited by Barbara Kate Repa
Pleading and Practice
The Nitty Gritty of Gang Injunctions
By Alex Ricciardulli
Gang injunctions are essential instruments for modern law enforcement. Used properly, a gang injunction can help a community take back its streets. However, wielded as a hammer rather than a scalpel, an injunction can do more harm than good-alienating innocent citizens from the officers who are sworn to protect them and eviscerating citizen's civil rights.
Although it's used in a handful of cities in Texas and Arizona, the gang injunction is primarily a California phenomenon. The city of Los Angeles alone has 20 such injunctions. Dozens of other cities-from Sacramento to Fresno, Oxnard, Oceanside, and San Diego-have similar ordinances.
Although the use of injunctions in such cases was virtually unheard of just two decades ago, the California experience is spreading throughout the country. The growing use of injunctions raises important questions: Why are they so popular? How do they work? Are they constitutional? How can they be successfully implemented?
IN THE BEGINNING ...
Los Angeles is home to 800 gangs, with a total of 56,000 members. With such numbers, it is no wonder that L.A. would be first to resort to the gang injunction as a crime-fighting weapon.
In 1987 then-L.A. City Attorney James Hahn filed the first nuisance-abatement lawsuit against an urban street gang, the 300-member-strong Playboy Gangster Crips. The result was less than complete success.
Nuisance-abatement suits had previously been used to enjoin houses of ill repute from peddling their wares and to stop noise and pollution associated with activities such as urban oil drilling. It didn't take a rocket scientist to deduce that a street gang exhibited all the characteristics of a public nuisance, defined by California law as anything that is "injurious to health,... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." (Cal. Civ. Code § 3479.) Bullets from drive-by shootings, murals of profane graffiti, and daily shakedowns from gang "tax collectors" certainly fit the bill as nuisances.
The judge who considered the 1987 lawsuit agreed that the gang's activities amounted to a public nuisance, yet he refused to give prosecutors the full injunction they sought. The judge merely enjoined the Playboy Gangster Crips from committing illegal acts that amounted to a nuisance-ordering the gang to desist from trespassing, damaging others' property, urinating on the street, and littering. The judge denied the prosecutors' request to prohibit the Playboys from wearing gang clothing, associating with one another, and being out after curfew, finding that these prohibitions were "overbroad in content" and "far, far overreaching." (See, Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 Nw. U. L. Rev. 212, 217-18 (1994).)
This was a hollow victory. The reason an injunction is so desirable for law enforcement is that the police do not have the resources to pursue gang members when they commit bona fide crimes. If innocent activity is enjoined, police have a much easier time detecting such conduct. The police can then arrest the gang members for violating the injunction, and the prosecutor can charge the members with contempt of court-a misdemeanor carrying up to six months in jail and a fine of up to $1,000 under California Penal Code section 166.
Another tremendous advantage of an injunction on innocent activity is that it gives officers added reasons to detain individuals to investigate serious crimes. If an officer stops and searches a person without reasonable suspicion that he or she has committed a crime, evidence seized from the person, such as a gun or drugs, must be suppressed under the Fourth Amendment. (See, In re Tony C., 21 Cal. 3d 888, 893 (1978).) So long as an officer has reason to believe that the person committed some crime, it is irrelevant that the offense is used as a pretext to detain and search the person to uncover a greater or different crime. (Whren v. U.S., 517 U.S. 806 (1996).) Stops for gang clothing thus justify uncovering possession for sale of cocaine-and being out during curfew may yield sawed-off shotguns.
If what is enjoined is already illegal, law enforcement's two purposes are not substantially advanced-at least not enough to make it worth the time and expense needed to get an injunction.
In 1993 prosecutors decided to give it another try. This time the target was the Blythe Street Gang in Van Nuys, and the prosecutors were completely successful. Not only did the judge find the gang's activities were a nuisance, but he also enjoined it from engaging in innocent behavior, such as being out after curfew and annoying pedestrians. (See, Yoo, 89 Nw. U. L. Rev. 212, 221.)
Only one hurdle remained for prosecutors: appellate approval of the gang injunction practice. They got it.
ARE GANG INJUNCTIONS LAWFUL?
The first appellate opinion on gang injunctions did not reach the merits of the practice. In People v. Gonzalez (12 Cal. 4th 804 (1996)), the California Supreme Court considered whether a gang member charged with contempt for violating the Blythe Street injunction was wrongfully convicted. The defendant in the case was a gang member who violated the injunction by possessing glass bottles, being present on someone's property without prior written consent, and obstructing pedestrian and vehicular traffic.
The lower courts refused to allow the defendant to challenge the conviction by asserting that the underlying injunction was unconstitutional. The supreme court in Gonzalez, without ruling on the injunction's constitutionality, held that the defendants must be allowed to defend contempt of court charges by arguing that the underlying injunction was invalid.
The constitutionality of gang injunctions was tackled head-on by the state Supreme Court the next year in People ex rel. Gallo v. Acuna (14 Cal. 4th 1090 (1997)). The case dealt with a gang injunction in the neighborhood of Rocksprings in San Jose. In its opinion, the court provided a ringing endorsement of nuisance-abatement gang injunctions.
The court in Acuna agreed that the activities of the gang qualified as a public nuisance, characterizing the affected neighborhood as "an urban war zone" and finding that gang members "display a casual contempt for notions of law, order, and decency-openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars." (Acuna, 14 Cal. 4th at 1100.)
Two other issues were before the court: whether an injunction could validly enjoin lawful acts and whether provisions barring gang members from "annoying" or "harassing" neighbors and from associating with one another in public were legal.
Acuna fully approved enjoining innocent acts. The supreme court reasoned that the impact on a community that makes an act a nuisance does not necessarily depend on whether or not an act is criminal: The question of whether acts can be enjoined "derives not from their status as independent crimes, but from their inherent tendency to injure or interfere with the community's exercise and enjoyment of rights common to the public." (Acuna, 14 Cal. 4th at 1109.)
Acuna further upheld the constitutionality of the two provisions before it. Regarding enjoining "annoying" or "harassing" community members, the court ruled that there was no constitutional right to be "annoying." The court further ruled that even though being annoying was not otherwise against the law, and it could apply to a great range of behavior, this provision provided gang members reasonable specificity regarding what type of activities were barred. (Acuna, 14 Cal. 4th at 1116-17.) Responding to the argument that barring gang members from meeting in public violates the First Amendment right to freedom of association, Acuna concluded that such meetings do not enjoy constitutional protection. The court found that gang members associating with one another in public were not akin to associations with "intrinsic" or "intimate" value, such as marriages or family, and they are also not directed toward pursuing any legitimate "political, social, economic, educational, religious [or] cultural ends." (Acuna, 14 Cal. 4th at 1110-11.)
Following Acuna, very few avenues of attack were left for defendants ensnared by an injunction. The Gonzalez case had given defendants the authority to vent their complaints, but Acuna eliminated virtually all challenges.
THE DEVIL IN THE DETAILS
A handful of residual issues remained unanswered after Acuna. One concerned the balance of forces in gang-injunction proceedings.
The contempt of court charge is a criminal action, meaning the defendant enjoys the right to appointed counsel if he or she is indigent. However, the initial filing occurs in civil court: The gang-abatement public nuisance action is a civil proceeding. The general rule is that indigents are given lawyers only to defend against criminal charges. (See, Gideon v. Wainwright, 372 U.S. 335 (1963).) Indigent defendants are thus not provided lawyers at the civil injunction phase, meaning that when prosecutors and investigators file their proof that the gang is a nuisance and that the individuals served with the action are gang members, the defendants either fail to appear for the lawsuit or respond in court that their rights are being violated.
When L.A. prosecutors sued the 18th Street Gang in 1998, defendants argued that the proceedings were unlawful because they were not provided lawyers, despite the "civil" label given to the lawsuit.
The court of appeal in Iraheta v. Superior Court (70 Cal. App. 4th 1500 (1999)) disagreed. Iraheta held that the right to appointed counsel is limited to proceedings that place a defendant in immediate danger of the loss of physical liberty. The court reasoned that although violating the gang injunction can result in jail, this is a future consequence that does not entitle the defendant to counsel at the injunction stage. Iraheta further found that there was no need for lawyers because there is "little risk that the procedures will lead to an erroneous decision" at the injunction stage. (Iraheta, 70 Cal. App. 4th at 1512.)
The irony in the court of appeal's words regarding the risk of erroneous decisions was borne out a mere five months after they were written. One of the people who submitted declarations supporting the 18th Street injunction was none other than Rampart police officer Rafael Perez. An incident described in court papers used to justify enjoining the gang was the now-infamous Javier Ovando case in which the officers lied about Ovando pointing a weapon at the police. ("The LAPD: Over-Creative Policing," The Economist, Sept. 25, 1999, available at 1999 WL 7364657.) Faced with uncertainty regarding how much more evidence in the injunction was based on perjured testimony, the injunction court, at the prosecutors' request, permanently suspended the injunction proceedings. (Robert J. Lopez and Rich Connell, "Targets of Gang Injunctions Were Named by Officers in Police Probe," Los Angeles Times, Sept. 23, 1999.)
A tack that was successful regarding a court considering granting an injunction was the argument that the prosecutors should have to prove that the injunction was appropriate by more than just a mere preponderance of the evidence. In a case dealing with the Posole Street gang in Oceanside, People v. Englebrecht (88 Cal. App. 4th 1236, 1255 (2001)), the court of appeal found that "the importance of the interests affected by the injunction in this case requires that the finding of facts necessary to justify its issuance be proved by clear and convincing evidence," not merely by a preponderance.
Yet another successful attack involved the same defendant from the Posole gang. The court of appeal in In re Englebrecht (67 Cal. App. 4th 486 (1998)) ruled that an injunction condition that the defendant not possess pagers or beepers was unconstitutionally overbroad. The court found that because these devices are often used for legitimate purposes covered by the First Amendment, some attempt should have been made in drafting an order to "narrow the provision so that it enjoins the use of these devices to abet criminal activities-e.g., to facilitate drug sales or to assist fellow gang members to elude police-the type of conduct that has contributed to the public nuisance." The court distinguished Acuna on the basis that no activities protected by the First Amendment were at issue in Acuna. (Englebrecht, 67 Cal. App. 4th at 498-99.)
THE SCALPEL, NOT THE HAMMER
The only comprehensive study on the effectiveness of injunctions indicated that there was a positive impact on crime reduction. Relying on eight years of data from various L.A. injunctions, the study concluded that injunctions reduced violent crime by 5 percent to 10 percent per neighborhood. (Jeffrey Grogger, The Effects of Civil Gang Injunctions on Reported Violent Crime: Evidence from Los Angeles County, 45 J.L. & Econ. 69, 89 (2002).)
However, even when an injunction succeeds in lowering an area's crime rate, if the injunction is not accompanied by efforts to foster an understanding between area residents and the officers, the very community members the injunction is in place to protect can turn against the police and treat them as an occupying force. This is a real possibility if innocent people who happen to share a gang's ethnicity or fashion preferences are targeted by police due to the injunction. Judges who issue injunctions readily recognize that they must be alert that the antigang measures not be used to discriminate against people based on their race or color. (See, Claude Walbert, "Jurist Probes Profiling Claims But Issues Gang Injunction," Los Angeles Daily Journal, Apr. 19, 2004.)
According to Father Gregory Boyle, a Jesuit priest and executive director of Jobs for a Future/ Homeboy Industries, a nonprofit organization aimed at rehabilitating ex-gang members, there are three essential components of any effective antigang strategy: prevention, intervention, and enforcement. "You prevent kids from joining gangs by offering after-school programs, sports, mentoring, and positive engagement with adults. You intervene with gang members by offering alternatives and employment to help redirect their lives. You deal with areas of high gang crime activity with real community policing." (Gregory J. Boyle, "Gang Bill Panders to Irrational Fear," Los Angeles Times, Dec. 18, 2003.)
A gang injunction will likely be most successful when used as part of a comprehensive gang-eradication strategy. Provided that the gang injunction is accompanied by outreach efforts and an investment in a neighborhood's infrastructure, an injunction can turn the tide in a neighborhood's war against gangs.
Alex Ricciardulli is a Los Angeles County deputy public defender, adjunct professor at Loyola and U.S.C. Law Schools, and coauthor of California Criminal Law (West, 2003).