FOCUS COLUMNBy Max B. Shiner
Gang injunctions are a valuable tool used by law enforcement in combating criminal street gangs. This area of law touches on both civil and criminal matters.
The objective of this article and self-study test is to review the law of gang injunctions. Readers will learn about the underlying authority for issuing injunctions, the constitutionality of injunctions, who may be bound by injunctions, the procedure used to sue gangs and prosecutions for contempt of court for violating the injunctions.
Based on Public Nuisance
To obtain a gang injunction, prosecutors apply the traditional law of public nuisance to the unique harms criminal street gangs inflict on the community. California Code of Civil Procedure Section 731 authorizes a city attorney or district attorney to bring a civil action in the name of the people of the state of California to abate a public nuisance.
The California Civil Code Section 3479 defines nuisance as "[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any ... public park, square, street, or highway." A public nuisance is "one which affects at the same time an entire community or neighborhood, or any considerable number of persons," according to Civil Code Section 3480.
Turf-based street gangs often fit the definition of nuisance. Gangs commit shootings, homicides, assaults, robberies, burglaries, thefts, extortions, threats and other criminal acts - ranging from misdemeanors to felonies - that are injurious to health or property. In addition, otherwise noncriminal acts that are a part of a gang's efforts to claim turf and dominate a neighborhood can interfere with community members' comfortable enjoyment of life or property. Criminal conduct can be enjoined in a nuisance action. Civil Code Section 3369. However, a gang injunction's prohibitions need not be limited to criminal conduct. In re Englebrecht, 67 Cal.App.4th 486 (1998).
Constitutionality of Gang Injunctions
Gang injunctions restrict activities within a defined area (the "Safety Zone"). The restrictions vary from case to case, but normally include a provision barring members of the gang from associating in public anywhere in the Safety Zone with any person known by them to be a member of the gang. The California Supreme Court upheld the constitutionality of this "do not associate" provision in People ex rel. Gallo v. Acuna, 14 Cal.4th 1090 (1997). The court held that the provision was neither unconstitutionally vague nor overbroad, nor did it infringe on either of the categories of association that the First Amendment protects - those with "intrinsic" or "intimate" value. The provision remains constitutional even if some of the enjoined gang members are family members because the limited burden on public association has no "fundamental impact on general family association." People v. Englebrecht, 88 Cal.App.4th 1236 (2001).
Because the interests of the people enjoined are important, a court may only issue a gang injunction if the prosecutor proves the necessary facts by the elevated standard of clear and convincing evidence. However, an indigent person who contests a civil gang injunction lawsuit is not entitled to counsel at public expense. Iraheta v. Superior Court, 70 Cal.App.4th 1500 (1999).
Who Can Be Bound by a Gang Injunction?
Members of a gang can be bound by the injunction "based on a showing that it is the gang, acting through its individual members, that is responsible for the [nuisance]." Individualized proof that a gang member has committed acts constituting a public nuisance is not required, nor is a showing that the enjoined person possessed a "specific intent to further unlawful group aims." For the purposes of a gang injunction, an "active gang member" is defined as a person who participates in or acts in concert with a gang, where the participation or acting in concert is more than nominal, passive, inactive or purely technical.
A gang member need not have been a party to the civil lawsuit to be bound by the injunction issued against the gang itself. In People ex rel. Totten v. Colonia Chiques, 156 Cal.App.4th 31 (2007), the court held that because the defendant gang engaged in nuisance-related misconduct, it "was therefore proper for the trial court to enjoin nonparties who were active members of the gang or who were acting in concert with it." This was simply the application of a long-standing rule applicable to all other injunctions.
The earliest gang injunctions, like the one approved in Acuna, named only individual defendants. Despite this, the Acuna court stated that the injunction was "indistinguishable from time-honored equitable practice applicable to labor unions, abortion protesters or other identifiable groups. Because such groups can act only through the medium of their membership, ... it has been a common practice to make the injunction run also to classes of persons through whom the enjoined person may act, such as agents, servants, employees, aiders [and] abettors."
How to Sue a Gang
Colonia Chiques explicitly held that a gang is a "jural entity" capable of being sued. This confirmed that the now common practice of naming a gang as a defendant - suggested by the California Supreme Court in Acuna - is valid. Therefore, a city attorney or district attorney seeking a gang injunction may choose to sue the gang itself, individual gang members or both. Because gangs can have hundreds of members, "[i]t is simply not practical to require [the People] to name [the gang's] members individually as defendants. ... [M]embership is continually changing. New members are joining the gang, while old members are leaving it or becoming inactive. If the gang could not be sued, [the People] would have to bring a new action for injunctive relief against each new member."
Gangs do not usually have appointed officers or agents designated for service of process. This raises the question of how to properly serve the gang with the summons and complaint. A gang may be sued as an unincorporated association pursuant to California Code of Civil Procedure Section 369.5(a). According to Colonia Chiques and Reisig v. Broderick Boys, 149 Cal.App.4th 1506 (2007), gangs may not be sued as an unincorporated associations when there is evidence that the gang was formed, at least in part, for a common lawful purpose. Upon application and a showing that service on a designated agent is not feasible, a court may order service on an unincorporated association via personal delivery to one or more of the association's members designated in the order. California Corporations Code Section 18220; Code of Civil Procedure Section 416.40. Counsel must obtain an order excusing the requirement that the summons be mailed where the gang has no last known address.
This method satisfies California's statutory requirements; but due process requires that notice of a lawsuit be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950). Service on just one designated gang member was held to be inadequate to provide notice to the gang where that member was of unknown rank in the gang and stated he would not appear. Therefore, strict compliance with the statutory requirements may not suffice - the efforts to notify the gang's members should be robust. Gang members may be very good at evading service, but this will not avail them - the focus is on the reasonableness of the means employed to give notice. It is not necessary to actually inform the members of the gang.
Prosecution for Contempt
A violation of an injunction may be punished as either civil contempt or criminal contempt, but violations of a gang injunction are typically prosecuted as criminal contempt charged under Penal Code Section 166(a)(4). A prosecution for violating a gang injunction resembles a prosecution for violating a restraining order; it requires proof that: a court lawfully issued a written order; the defendant had notice of the order; the defendant possessed the ability to comply; and the defendant willfully violated the order. Contempt of court is a general-intent offense; no proof that the gang member intended to violate the order or to further the gang's nuisance activities is required. People v. Greenfield, 134 Cal.App.3d Supp. 1 (1982).
A person must be bound by an injunction to violate it. The fact that a person is subject to the court's order may be evident from its face, such as when a party to the prior proceeding in which the injunction was issued is named in the order. But when, as is more common with gang injunctions, the defendant charged with contempt is not named in the order, the fact bringing the defendant within the terms of the order - his gang membership - must be proved in the criminal contempt proceeding. The fact that the defendant was a member of the gang at the time of the violation must be proved in each and every contempt prosecution of a nonparty to the civil proceeding.
A defendant must have notice of the gang injunction before he may be found in contempt. Prosecutors almost always establish notice by presenting proof of personal service of the injunction on the defendant. But proof of service is not required; prosecutors need only prove that the defendant had knowledge of the order. People v. Saffell, 74 Cal.App.2d Supp. 967 (1946); Golden Gate Consolidated Hydraulic Mining Co. v. Superior Court, 65 Cal. 187 (1884). Therefore, lack of service or service that would be defective for a summons or subpoena is not a defense to a contempt charge; the prosecution must only prove that the defendant knew about the injunction. In addition, though the defendant must have had an opportunity to have read the order, the prosecutor need not prove that the defendant actually read it. People v. Poe, 236 Cal.App.2d Supp. 928 (1965).
Only a violation of a "lawfully issued" order is punishable as contempt, and a defendant may raise this issue in the criminal contempt proceeding. People v. Gonzalez, 12 Cal.4th 804 (1996). This "collateral attack" is, however, limited to a determination of whether the injunction was issued in excess of the issuing court's jurisdiction and is further limited to defects appearing on the face of the record. Hogan v. Superior Court, 74 Cal.App. 704 (1925). Jurisdiction refers to "any acts which exceed the defined power of the court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis." In re Berry, 68 Cal.2d 137 (1968). However, "to be attackable collaterally for lack of jurisdiction, the judgment must be void on its face, and it is not void on its face unless the record affirmatively shows that the court was without jurisdiction to render the judgment. ... Extrinsic evidence is wholly inadmissible, even though it might show that jurisdiction did not in fact exist." Therefore, the defendant in the criminal contempt proceeding may not challenge the issuing court's factual findings such as that the gang constitutes a nuisance or that the method of service was reasonable.
Though the use of gang injunctions is still evolving in the courts and on the streets, the underlying concept is simple - gang injunctions result from a lawsuit against an organization, not just individuals. Whether personally named in the lawsuit or not, individuals are bound by the injunction when the evidence is sufficient to prove they are members of the gang. This makes gang injunctions a powerful and effective tool in fighting gang violence, discouraging gang membership in the bargain.
Max B. Shiner is a deputy city attorney in Los Angeles.
This article appears on Page 7