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Law Office Management
Jun. 2, 2012
The Fight Over Gang Injunctions
Oakland’s gang injunctions were carefully crafted attempts to avoid lawsuits and accusations of racial profiling. But opponents pushed back, and the city council put further injunctions on hold.
In the daytime, the streets of Oakland's Fruitvale neighborhood could double for the downtown of a thriving small city. Vendors sell tamales and bags of spicy fruit, families shop for clothes, and the shiny new Fruitvale Village development around the BART train station teems with activity.
But after dark, pedestrians are few on International Boulevard. The same goes for Foothill Boulevard, the other main thoroughfare in this predominantly Latino district. In some areas of Fruitvale, violent crime has become a part of everyday life.
"What I'm hearing from my citizens is the fear, after six o'clock, to just go and walk to the store to buy a gallon of milk," says Ignacio De La Fuente, who represents the neighborhood on the Oakland City Council. He has been one of the chief supporters of a gang injunction for Fruitvale, targeting the Norteño gang. Such injunctions are like civil restraining orders against a group and its alleged members, declaring their behavior to be a public nuisance and restricting their activity. According to Oakland police captain Darren Allison, the Norteños are "the biggest, most organized, most violent ... (and) most dangerous street gang in Oakland" - a city that has more than its share of violent crime. They were responsible for 44 percent of the shootings in and around the Fruitvale district between January and November 2010.
The gang injunction, first proposed in October 2010 and approved last February by Alameda County Superior Court Judge Robert Freedman, named 42 alleged members of the Norteños and was aimed at restricting their activities within a zone of roughly two square miles. Like other injunctions throughout California, it would set a 10 p.m.-to-5 a.m. curfew for those named and prohibit individuals on the list from associating with each other. (See People ex. rel. Russo v. Norteños, No. RG10541141 (Alameda Super. Ct. injunction issued Feb. 21, 2012).) Oakland's first gang injunction - for a different neighborhood on the other side of town - had been issued five months earlier against 15 people named as members of the North Side Oakland gang. (See People ex. rel. Russo v. North Side Oakland, No. RG10498901 (Alameda Super. Ct. injunction issued June 2, 2010.) The ACLU of Northern California and the Lawyers' Committee for Civil Rights of the San Francisco Bay Area opposed the North Oakland injunction, and one of the named gang members challenged his inclusion on the list. However, in October of last year an appellate court upheld the North Side injunction. (See People ex. rel. Russo v. North Side Oakland, 2011 WL 5168269 (Cal. Ct. App.) (unpub.).) But even with that victory in hand, nothing could have prepared the city attorney's office for what it would face in Fruitvale.
"The difference between North Oakland and Fruitvale was that the Fruitvale injunction was a political fight. The courtroom just happened to be the scene of it," says John Russo, who initiated both injunctions when he was city attorney. The battle over the Fruitvale injunction involved a year and a half of wrangling in court, a public-relations fight, a power struggle at city hall, and citywide protests in the streets and schools of Oakland. Along the way, the killing in broad daylight of a three-year-old child became ammunition for both supporters and opponents of gang injunctions as a crime-fighting tool.
Oakland City Attorney Barbara Parker says what emerged is a "narrowly tailored" tool for the police department that allows the city "to zealously protect civil liberties at the same time as we protect the community and hopefully curb violence."
Gang-injunction opponents say they've stopped the spread of injunctions dead in its tracks in Oakland, and other cities are taking note. But if nothing else, the issue has polarized the community.
Oakland has long had one of the highest violent crime rates of any major city in California. "A lot of people have died unnecessarily," says De La Fuente, "and I believe that if we give the police the tools, like the gang injunction ... we would [make] a difference." The historic mistrust of police by Oakland's minority communities provided fertile ground for an anti-injunction campaign both inside and outside the courtroom. Controversial ties between Oakland Mayor Jean Quan, a city council member, and members of the Norteño gang's legal defense team fueled speculation about tepid political support for the injunction strategy. In addition, the amount of time and money Oakland eventually spent on the Fruitvale injunction has other municipalities watching, and reevaluating whether other crime-fighting strategies might be more worthwhile.
Although Mayor Quan has been careful not to explicitly oppose gang injunctions, she never expressed any strong support for them either. And even before she took office in 2011, her relationship with the police department was strained. (Quan is also facing a recall effort spurred in large part by people critical of her approach to crime and public safety as well as the Occupy Oakland demonstrations.) Additionally, Quan's unpaid advisor until his resignation last November was Dan Siegel, whose Oakland firm - Siegel & Yee - represented individuals on the Fruitvale injunction list. Russo says he believes Siegel's relationship with the mayor created a conflict of interest, and he says that Siegel's position as a mayoral advisor "made it almost impossible to do my job." Those tensions eventually led to the resignations of both Russo and Police Chief Anthony Batts.
A Different Approach to Injunctions
Gang injunctions are used widely throughout California. The state's Street Terrorism Enforcement and Prevention Act (Cal. Penal Code §§ 180.21-180.33), defines a "criminal street gang" to include any ongoing organization, association, or group of three or more persons having as a one of its primary activities the commission of one or more of a list of specified criminal acts; having a common name or common identifying sign or symbol; and whose members individually or collectively engage in a pattern of criminal gang activity. (See § 180.22(f).) But Russo, who was elected city attorney in 2000, says that for years he resisted numerous calls to bring gang injunctions to Oakland, both for legal and practical reasons. "I felt that restraining people without them getting a hearing was problematic, even though the Acuña case said it was acceptable," says Russo. (See People ex rel. Gallo v. Acuña (14 Cal. 4th 1090 (1997).) Russo says he was also uncomfortable with the discretion most injunctions give law enforcement officers to determine - in the heat of the moment on the street - who is a gang member and thus subject to the terms of the injunction. In Acuña the California Supreme Court reversed an appeals court decision and upheld a gang injunction issued by the Santa Clara County Superior court. The state Supreme Court ruled that behavior associated with gang activity, even if it's not illegal, can constitute a public nuisance. In a chilling description, Justice Janice Rogers Brown's majority opinion noted that "[t]he people of this community are prisoners in their own homes. Violence and the threat of violence are constant. Residents remain indoors, especially at night. They do not allow their children to play outside. Strangers wearing the wrong color clothing are at risk." (14 Cal. 4th at 1100.) Acuña also established the permissibility of enjoining the gang itself, including all its members, without having to prove the nuisance status of each individual gang member. (See 14 Cal. 4th at 1122-26.) "Given the litigious nature of Oakland and the relations with the Oakland police, I was concerned that allowing officers to make a determination on the street at the time, even if they made correct determinations every time - I could just see a raft of lawsuits coming," says Russo. "This crime policy is only effective when it's uncontested," says Michael Siegel, an attorney at his father Dan Siegel's firm who represented several Norteños in court). "Gang injunctions worked in Los Angeles because the defendants were not represented." But subsequent legal challenges have caused injunctions to evolve since their creation in Los Angeles in 1993. For example, in 2008, the city of San Francisco created an opt-out process, under which individual gang members could petition the city attorney's office, rather than the superior court, to have their names removed from an injunction list. Los Angeles, which currently has 44 injunctions, developed a similar nonjudicial petition process in 2007. Since then, 9 out of 70 petitioners in Los Angeles have been removed. San Francisco, which has five gang injunctions, also took the step of naming individual defendants rather than just the entire gang, an approach that Jory Steele, managing attorney at the ACLU of Northern California, says "provides more due process" and ensures "fewer civil liberties violations." These tweaks to the standard injunction have also served to placate key public officials with civil liberties concerns, such as Los Angeles Mayor Antonio Villaraigosa, a former president of the Los Angeles chapter of the ACLU. Given these developments, and after a series of gang-related deaths in North Oakland in the fall of 2009 and the arrival of Chief Batts (who had used gang injunctions as chief of the Long Beach Police Department), Russo agreed to pursue injunctions for some of the city's crime-plagued neighborhoods, as long as each individual defendant was named and proved to be a gang member. "This was an evolution from how gang injunctions have generally been done," says Russo. But it satisfied his due process concerns, and it took the worrisome discretion out of the hands of Oakland police officers. Despite resistance from the police, who wanted a quicker process, Russo says he, felt it was "a better reflection of Oakland's values [and]shielded us from charges of profiling." "There's no way to bring a lawsuit against Oakland and Oakland officers for profiling under our injunction, because it isn't the officer who determined that this individual was a member of a gang. It was a judge, by clear and convincing evidence, after an adversarial due process hearing," says Russo. Russo planned to pursue at least three gang injunctions, and after the North Oakland case went relatively smoothly, Fruitvale was next in line. In May 2010 the city attorney's office retained Meyers Nave Riback Silver & Wilson as outside counsel for six months to handle it. But those six months were barely enough to get started. Protesting the Injunctions
"[The Fruitvale injunction] targeted a neighborhood that is certainly suffering from all kinds of social and economic disparities, but [which] also has generations of people organizing," says Isaac Ontiveros, who helped organize the Stop the Injunctions Coalition. Activists denounced gang injunctions as an anti-immigrant tool that "destabilize[s] communities by criminalizing and stigmatizing whole neighborhoods where people live and work." Attorney Michael Siegel had previously taught at two schools in the Fruitvale neighborhood, and he says he heard about the injunction from a former coworker. "Anyone [who] knows Fruitvale knows that it's a largely beautiful neighborhood, [though] there are definitely problems with violence ... and drug dealing, but that's not the whole Fruitvale," says Siegel. "So the idea of putting this stamp on the entire community and saying that the whole area is a gang zone, to me was absurd legally and practically." That's when he persuaded his father's firm to get involved, both in the legal battle and in partnership with the activists' campaign, which Siegel calls "essential to the legal strategy." When the city moved to enjoin the Norteños, protestors packed the courtroom. Demonstrations were also held in the streets, while inside a team of five attorneys working pro bono (Jose Luis Fuentes and Michael Siegel from Siegel & Yee, along with Berkeley lawyer Yolanda Huang and San Francisco attorneys Dennis Cunningham and Jeff Wozniak) challenged the size and scope of the Fruitvale injunction, as well as the inclusion of two of the individuals named as Norteño gang members. The activists and attorneys also took the fight to the Oakland City Council. In December 2010 and January 2011 dozens of people came to meetings of the council's Public Safety Committee, demanding that the committee put gang injunctions on its official agenda for discussion - the first step to getting the issue before the full council. In February the committee relented, and hundreds of members of the public showed up to speak, the vast majority of them in opposition to the injunction. Even some of the people on the injunction list spoke. "My last conviction was five years ago, and I haven't violated probation," said Michael Muscadine, whom the injunction order lists as a Norteños member. "I go to college full time, I work full time. What's the definition of a community member, if not that?" asked David Hernandez, another on the list. A sprinkling of injunction supporters attended the meeting, including the Oakland Metropolitan Chamber of Commerce's then-director of public policy, Scott Peterson. "Trying to attract and keep businesses in Oakland is a major problem because of public safety," he told the committee. Still, the voices of those directly affected by gang violence were largely absent. City Councilman De La Fuente says that fear kept supporters of the gang injunction away from the meeting. "We spent time on the phone trying to get people to come and speak, and could hear the fear in their voices," De La Fuente told the assembly. To demonstrate, he played a voice message from a constituent. The frustrated voice of an elderly woman crackled through the PA system: "My family doesn't want me to open my mouth or get involved ... but I'm an old lady and I don't care." Oakland city attorney spokesman Alex Katz says, "There was a real intentional effort to mislead" by defense attorneys, despite the city's pledge not to seek injunctions against juveniles. He adds that these efforts were directed "especially [to] young people, especially high school students, to get them to feel this [applies] to them, and is going to victimize them, which was never the case." Nevertheless, opponents say the overall crime-fighting strategy that includes gang injunctions makes juveniles relevant to the discussion. "We believe they are criminalizing our youth. They are profiling our youth. They are leading to complete harassment of our communities," says Cesar Cruz, cofounder of the Homies Empowerment Program, a YMCA initiative that encourages community service and reconciliation among rival gang members. "Once the young person is labeled a gang member, they basically can't get out from under that," adds Michael Siegel. Siegel and other injunction opponents also pushed the argument that injunctions were an unwise use of public money, especially for a financially struggling city. Nearly $656,000 had already been spent on both the North Oakland and Fruitvale injunctions by the police department and the city attorney's office combined. Mayor Quan, facing queries from the press, publicly questioned the expenditure, saying, "I could run two youth programs for $700,000." Dan Siegel admits that he offered his opinion to the mayor as her advisor and "urged the city to drop the injunction." But he points out that he was working with Quan pro bono. "There was no monetary incentive [for] me or my firm to try to convince the mayor to oppose the injunction," he says. Says Michael Siegel: "The focus was, 'Well, look how expensive these gang injunctions are, not only with the police time but also lawyer time.'" The younger Siegel served as counsel for five alleged Norteños until May 2011, when Siegel & Yee was removed by the court from the case because of a potential conflict of interest. (City Councilwoman Jane Brunner also is a senior attorney at Siegel & Yee, and the council took an official stance on the injunction in May 2011.) "The overall strategy was if we could convince the city council to kill the injunctions, then we could win," says Michael Siegel. "Because of the state of the law, we knew ... the courts weren't likely the place we were going to win this battle." Nevertheless, Siegel's team argued in court that the 400-square-block area of the injunction was too large, and that the city of Oakland had not shown its clients' "active participation" in a gang and had failed to meet the required "heightened standard of proof" for a proceeding that could result in "loss of good name." They also challenged gang injunctions themselves: their cost, their effectiveness in fighting crime, and the potential for racial profiling. "We highlighted a lot of the procedural problems with [civil] gang injunctions in terms of the lack of due process, the lack of right to counsel, the fact that it could cost [more than] $900 just to appear in the case and contest your innocence," says Michael Siegel. But he was right about his odds in court. None of his arguments swayed Judge Freedman, who issued the preliminary injunction against the first five defendants in June 2011. In his ruling Freedman also lashed out at the way the defense litigated the case: "This is a legal proceeding, not a political process before a legislative body. ... Whether the resources devoted is the best use of public funds for the avowed goal (reducing criminal activity in the locale and improving the quality of life for the community) is an issue for the legislative branch of government, not the court. The court does not count the number of partisans (proponents or opponents) attending court proceedings, public hearings or street demonstrations (orchestrated or spontaneous), or media outlets to determine legal issues. Those efforts are an entirely appropriate means of public expression in a democracy, but the appropriate audience is either or both of the two other branches of government." (People ex. rel. Russo v. Norteños, No. RG10541141 (Alameda Super. Ct. notice of intended decision June 24, 2011).) Michael Siegel says Judge Freedman's ruling wasn't a surprise, but maintains that Freedman's recognition of the extrajudicial aspects of the case validated the inside-outside strategy. "What we did as lawyers is create an opportunity for the community to oppose the injunctions," says Siegel. "By raising arguments, by offering representation, and by communicating with community groups we were able to provide a voice that otherwise didn't get into the courtroom." In the meantime, injunction opponents called on the city council to stop both the Fruitvale and North Oakland injunctions, either by directing the city attorney to do so, or by defunding the city attorney's efforts to pursue any injunctions. Although those efforts ultimately failed, the anti-injunction campaigns concerned City Attorney Russo at the time. "I was worried about it as a precedent, because I don't believe the council has the right to go in and determine the city attorney's priorities and budget to that extent," he says. In May 2011 Russo announced his resignation, in part because of disagreements with the mayor and city council on the gang injunctions. Less than two weeks later the council took its first official stand on that issue: It authorized both the Fruitvale and North Oakland injunctions but put a moratorium on any new ones, pending council approval and a thorough study of the effectiveness of the first two injunctions. The council also called for the removal of 70 "John Does" who had been added to the Fruitvale list. (The use of "Does" commonly allows the addition of future identified gang members to injunctions without having to again prove a nuisance case against the gang itself.) The new restrictions were a victory of sorts for injunction opponents, but one that lasted only halfway through the summer. On August 8, when three-year-old Carlos Fernandez Nava was killed by crossfire from a botched drive-by shooting in broad daylight, tensions over unabated violent crime in Oakland resurfaced. Hundreds of people turned out for a candlelight vigil at the scene of the shooting in North Oakland. Police Chief Batts bellowed out a call to arms to the citizens of Oakland to "make the hard decisions" to support the police. City Councilman Larry Reid told a local TV station that the incident made clear his district - east of De La Fuente's - needed to become the site of Oakland's third injunction, for which $20,000 had already been paid to outside counsel Meyers Nave before the city council's decision to put future injunctions on hold. "Those who challenge us on whether or not we should implement a gang injunction talk about the violation of individual civil rights. Well, this three-year-old lost his life [and] his civil rights were violated," said Reid. However, cousins of the slain child publicly spoke out against gang injunctions, and many of those who mourned Nava's death - and the violence in their neighborhood - expressed skepticism that beefed-up law enforcement was the solution. Reid and De La Fuente used the shooting to reopen the city council's discussion on injunctions, along with a push for a youth curfew and an anti-loitering ordinance. But all three proposals were heard together and rejected by the council, with Mayor Quan casting the tie-breaking vote. "The answer to crime is complicated. We need to make sure we actually implement programs that work, and not just ones that make us feel good and feel like we're doing something," said Councilwoman Brunner, who voted with the majority. A week after the vote, Police Chief Batts announced his resignation, saying he was disappointed that the city had not "let the chief be the chief. ... No chief wants to be in a position where he or she is being held accountable, but doesn't have the power to make a dramatic impact," Batts explained. Looking Forward
In the meantime, the question remains, Do gang injunctions work? And will they work in Oakland? Last November an Oakland police report found that although overall crime in the North Oakland injunction zone was down slightly during the first 16 months of the injunction there, violent crime increased by 43 percent - nearly triple the citywide average. During the same period, Oakland police arrested only 1 of the 15 named gang members inside the safety zone. De La Fuente, who has said he will run for mayor if the Quan recall winds up on the November ballot, says he'll continue to call for more injunctions, pointing to increasing crime in the first two months of 2012. "I don't think that cities like Oakland have the luxury not to try every damn tool that is available ... If we can save a couple of people from dying, I think obviously the expense is irrelevant, up to a point," says De La Fuente. However, according to Michael Siegel, "The city council no longer has the stomach to persist in authorizing these injunctions." He continues: "If each defendant claims their right to a hearing, claims their right to call favorable witnesses, it becomes an extremely expensive proposition. The policy is ultimately doomed to fail because now there are civil rights attorneys who are willing to oppose these injunctions, and that's going to make it too expensive to implement." Other local governments have been watching the developments in Oakland. Budget cuts in neighboring Contra Costa County shelved efforts by District Attorney Mark Peterson to pursue gang injunctions there. And plans to pursue an injunction in nearby Hayward also have been put on hold, according to City Attorney Michael Lawson. "Judge Freedman is clearly communicating, at least to cities in Alameda County, that if [a gang injunction is] opposed - and we assume that it would be opposed in Hayward - that he's going to allow these individual gang members to have due process hearings," says Lawson. "That raises the evidentiary bar ... because not only must we have evidence about the gang, but we also have to have admissible evidence about gang members. ... So one has to assess the value of this process and the resources that go into getting an injunction for what is essentially nuisance-type behavior." In February, Judge Freedman issued a preliminary injunction for the remaining Norteños on the Fruitvale list. The defense was able to get what defense attorney Huang calls "minor ameliorations": Defendants can attend their children's school activities, such as sporting events, that continue past 10 p.m., and they won't be arrested for noncriminal violations but instead cited and given three weeks to appear in court. The city of Oakland also refined the opt-out process for gang members who want to get their name off the injunction list, creating a three-person board to receive and evaluate such petitions. City Attorney Parker says that although she has the authority to pursue further injunctions, the city council's freeze on funding for the lawsuits involved means she'll wait for direction from the council before doing so. "We made substantial gains," says community activist Ontiveros. "You don't read about gang injunctions anywhere in the United States, or in the world, without reading the adjective controversial. ... Making it a controversy, making it something that doesn't just get rammed through, is significant," he says. Andrew Stelzer is an award-winning radio producer and news reporter, currently working as a producer at the National Radio Project in Oakland.
Gang injunctions are used widely throughout California. The state's Street Terrorism Enforcement and Prevention Act (Cal. Penal Code §§ 180.21-180.33), defines a "criminal street gang" to include any ongoing organization, association, or group of three or more persons having as a one of its primary activities the commission of one or more of a list of specified criminal acts; having a common name or common identifying sign or symbol; and whose members individually or collectively engage in a pattern of criminal gang activity. (See § 180.22(f).) But Russo, who was elected city attorney in 2000, says that for years he resisted numerous calls to bring gang injunctions to Oakland, both for legal and practical reasons. "I felt that restraining people without them getting a hearing was problematic, even though the Acuña case said it was acceptable," says Russo. (See People ex rel. Gallo v. Acuña (14 Cal. 4th 1090 (1997).) Russo says he was also uncomfortable with the discretion most injunctions give law enforcement officers to determine - in the heat of the moment on the street - who is a gang member and thus subject to the terms of the injunction. In Acuña the California Supreme Court reversed an appeals court decision and upheld a gang injunction issued by the Santa Clara County Superior court. The state Supreme Court ruled that behavior associated with gang activity, even if it's not illegal, can constitute a public nuisance. In a chilling description, Justice Janice Rogers Brown's majority opinion noted that "[t]he people of this community are prisoners in their own homes. Violence and the threat of violence are constant. Residents remain indoors, especially at night. They do not allow their children to play outside. Strangers wearing the wrong color clothing are at risk." (14 Cal. 4th at 1100.) Acuña also established the permissibility of enjoining the gang itself, including all its members, without having to prove the nuisance status of each individual gang member. (See 14 Cal. 4th at 1122-26.) "Given the litigious nature of Oakland and the relations with the Oakland police, I was concerned that allowing officers to make a determination on the street at the time, even if they made correct determinations every time - I could just see a raft of lawsuits coming," says Russo. "This crime policy is only effective when it's uncontested," says Michael Siegel, an attorney at his father Dan Siegel's firm who represented several Norteños in court). "Gang injunctions worked in Los Angeles because the defendants were not represented." But subsequent legal challenges have caused injunctions to evolve since their creation in Los Angeles in 1993. For example, in 2008, the city of San Francisco created an opt-out process, under which individual gang members could petition the city attorney's office, rather than the superior court, to have their names removed from an injunction list. Los Angeles, which currently has 44 injunctions, developed a similar nonjudicial petition process in 2007. Since then, 9 out of 70 petitioners in Los Angeles have been removed. San Francisco, which has five gang injunctions, also took the step of naming individual defendants rather than just the entire gang, an approach that Jory Steele, managing attorney at the ACLU of Northern California, says "provides more due process" and ensures "fewer civil liberties violations." These tweaks to the standard injunction have also served to placate key public officials with civil liberties concerns, such as Los Angeles Mayor Antonio Villaraigosa, a former president of the Los Angeles chapter of the ACLU. Given these developments, and after a series of gang-related deaths in North Oakland in the fall of 2009 and the arrival of Chief Batts (who had used gang injunctions as chief of the Long Beach Police Department), Russo agreed to pursue injunctions for some of the city's crime-plagued neighborhoods, as long as each individual defendant was named and proved to be a gang member. "This was an evolution from how gang injunctions have generally been done," says Russo. But it satisfied his due process concerns, and it took the worrisome discretion out of the hands of Oakland police officers. Despite resistance from the police, who wanted a quicker process, Russo says he, felt it was "a better reflection of Oakland's values [and]shielded us from charges of profiling." "There's no way to bring a lawsuit against Oakland and Oakland officers for profiling under our injunction, because it isn't the officer who determined that this individual was a member of a gang. It was a judge, by clear and convincing evidence, after an adversarial due process hearing," says Russo. Russo planned to pursue at least three gang injunctions, and after the North Oakland case went relatively smoothly, Fruitvale was next in line. In May 2010 the city attorney's office retained Meyers Nave Riback Silver & Wilson as outside counsel for six months to handle it. But those six months were barely enough to get started. Protesting the Injunctions
"[The Fruitvale injunction] targeted a neighborhood that is certainly suffering from all kinds of social and economic disparities, but [which] also has generations of people organizing," says Isaac Ontiveros, who helped organize the Stop the Injunctions Coalition. Activists denounced gang injunctions as an anti-immigrant tool that "destabilize[s] communities by criminalizing and stigmatizing whole neighborhoods where people live and work." Attorney Michael Siegel had previously taught at two schools in the Fruitvale neighborhood, and he says he heard about the injunction from a former coworker. "Anyone [who] knows Fruitvale knows that it's a largely beautiful neighborhood, [though] there are definitely problems with violence ... and drug dealing, but that's not the whole Fruitvale," says Siegel. "So the idea of putting this stamp on the entire community and saying that the whole area is a gang zone, to me was absurd legally and practically." That's when he persuaded his father's firm to get involved, both in the legal battle and in partnership with the activists' campaign, which Siegel calls "essential to the legal strategy." When the city moved to enjoin the Norteños, protestors packed the courtroom. Demonstrations were also held in the streets, while inside a team of five attorneys working pro bono (Jose Luis Fuentes and Michael Siegel from Siegel & Yee, along with Berkeley lawyer Yolanda Huang and San Francisco attorneys Dennis Cunningham and Jeff Wozniak) challenged the size and scope of the Fruitvale injunction, as well as the inclusion of two of the individuals named as Norteño gang members. The activists and attorneys also took the fight to the Oakland City Council. In December 2010 and January 2011 dozens of people came to meetings of the council's Public Safety Committee, demanding that the committee put gang injunctions on its official agenda for discussion - the first step to getting the issue before the full council. In February the committee relented, and hundreds of members of the public showed up to speak, the vast majority of them in opposition to the injunction. Even some of the people on the injunction list spoke. "My last conviction was five years ago, and I haven't violated probation," said Michael Muscadine, whom the injunction order lists as a Norteños member. "I go to college full time, I work full time. What's the definition of a community member, if not that?" asked David Hernandez, another on the list. A sprinkling of injunction supporters attended the meeting, including the Oakland Metropolitan Chamber of Commerce's then-director of public policy, Scott Peterson. "Trying to attract and keep businesses in Oakland is a major problem because of public safety," he told the committee. Still, the voices of those directly affected by gang violence were largely absent. City Councilman De La Fuente says that fear kept supporters of the gang injunction away from the meeting. "We spent time on the phone trying to get people to come and speak, and could hear the fear in their voices," De La Fuente told the assembly. To demonstrate, he played a voice message from a constituent. The frustrated voice of an elderly woman crackled through the PA system: "My family doesn't want me to open my mouth or get involved ... but I'm an old lady and I don't care." Oakland city attorney spokesman Alex Katz says, "There was a real intentional effort to mislead" by defense attorneys, despite the city's pledge not to seek injunctions against juveniles. He adds that these efforts were directed "especially [to] young people, especially high school students, to get them to feel this [applies] to them, and is going to victimize them, which was never the case." Nevertheless, opponents say the overall crime-fighting strategy that includes gang injunctions makes juveniles relevant to the discussion. "We believe they are criminalizing our youth. They are profiling our youth. They are leading to complete harassment of our communities," says Cesar Cruz, cofounder of the Homies Empowerment Program, a YMCA initiative that encourages community service and reconciliation among rival gang members. "Once the young person is labeled a gang member, they basically can't get out from under that," adds Michael Siegel. Siegel and other injunction opponents also pushed the argument that injunctions were an unwise use of public money, especially for a financially struggling city. Nearly $656,000 had already been spent on both the North Oakland and Fruitvale injunctions by the police department and the city attorney's office combined. Mayor Quan, facing queries from the press, publicly questioned the expenditure, saying, "I could run two youth programs for $700,000." Dan Siegel admits that he offered his opinion to the mayor as her advisor and "urged the city to drop the injunction." But he points out that he was working with Quan pro bono. "There was no monetary incentive [for] me or my firm to try to convince the mayor to oppose the injunction," he says. Says Michael Siegel: "The focus was, 'Well, look how expensive these gang injunctions are, not only with the police time but also lawyer time.'" The younger Siegel served as counsel for five alleged Norteños until May 2011, when Siegel & Yee was removed by the court from the case because of a potential conflict of interest. (City Councilwoman Jane Brunner also is a senior attorney at Siegel & Yee, and the council took an official stance on the injunction in May 2011.) "The overall strategy was if we could convince the city council to kill the injunctions, then we could win," says Michael Siegel. "Because of the state of the law, we knew ... the courts weren't likely the place we were going to win this battle." Nevertheless, Siegel's team argued in court that the 400-square-block area of the injunction was too large, and that the city of Oakland had not shown its clients' "active participation" in a gang and had failed to meet the required "heightened standard of proof" for a proceeding that could result in "loss of good name." They also challenged gang injunctions themselves: their cost, their effectiveness in fighting crime, and the potential for racial profiling. "We highlighted a lot of the procedural problems with [civil] gang injunctions in terms of the lack of due process, the lack of right to counsel, the fact that it could cost [more than] $900 just to appear in the case and contest your innocence," says Michael Siegel. But he was right about his odds in court. None of his arguments swayed Judge Freedman, who issued the preliminary injunction against the first five defendants in June 2011. In his ruling Freedman also lashed out at the way the defense litigated the case: "This is a legal proceeding, not a political process before a legislative body. ... Whether the resources devoted is the best use of public funds for the avowed goal (reducing criminal activity in the locale and improving the quality of life for the community) is an issue for the legislative branch of government, not the court. The court does not count the number of partisans (proponents or opponents) attending court proceedings, public hearings or street demonstrations (orchestrated or spontaneous), or media outlets to determine legal issues. Those efforts are an entirely appropriate means of public expression in a democracy, but the appropriate audience is either or both of the two other branches of government." (People ex. rel. Russo v. Norteños, No. RG10541141 (Alameda Super. Ct. notice of intended decision June 24, 2011).) Michael Siegel says Judge Freedman's ruling wasn't a surprise, but maintains that Freedman's recognition of the extrajudicial aspects of the case validated the inside-outside strategy. "What we did as lawyers is create an opportunity for the community to oppose the injunctions," says Siegel. "By raising arguments, by offering representation, and by communicating with community groups we were able to provide a voice that otherwise didn't get into the courtroom." In the meantime, injunction opponents called on the city council to stop both the Fruitvale and North Oakland injunctions, either by directing the city attorney to do so, or by defunding the city attorney's efforts to pursue any injunctions. Although those efforts ultimately failed, the anti-injunction campaigns concerned City Attorney Russo at the time. "I was worried about it as a precedent, because I don't believe the council has the right to go in and determine the city attorney's priorities and budget to that extent," he says. In May 2011 Russo announced his resignation, in part because of disagreements with the mayor and city council on the gang injunctions. Less than two weeks later the council took its first official stand on that issue: It authorized both the Fruitvale and North Oakland injunctions but put a moratorium on any new ones, pending council approval and a thorough study of the effectiveness of the first two injunctions. The council also called for the removal of 70 "John Does" who had been added to the Fruitvale list. (The use of "Does" commonly allows the addition of future identified gang members to injunctions without having to again prove a nuisance case against the gang itself.) The new restrictions were a victory of sorts for injunction opponents, but one that lasted only halfway through the summer. On August 8, when three-year-old Carlos Fernandez Nava was killed by crossfire from a botched drive-by shooting in broad daylight, tensions over unabated violent crime in Oakland resurfaced. Hundreds of people turned out for a candlelight vigil at the scene of the shooting in North Oakland. Police Chief Batts bellowed out a call to arms to the citizens of Oakland to "make the hard decisions" to support the police. City Councilman Larry Reid told a local TV station that the incident made clear his district - east of De La Fuente's - needed to become the site of Oakland's third injunction, for which $20,000 had already been paid to outside counsel Meyers Nave before the city council's decision to put future injunctions on hold. "Those who challenge us on whether or not we should implement a gang injunction talk about the violation of individual civil rights. Well, this three-year-old lost his life [and] his civil rights were violated," said Reid. However, cousins of the slain child publicly spoke out against gang injunctions, and many of those who mourned Nava's death - and the violence in their neighborhood - expressed skepticism that beefed-up law enforcement was the solution. Reid and De La Fuente used the shooting to reopen the city council's discussion on injunctions, along with a push for a youth curfew and an anti-loitering ordinance. But all three proposals were heard together and rejected by the council, with Mayor Quan casting the tie-breaking vote. "The answer to crime is complicated. We need to make sure we actually implement programs that work, and not just ones that make us feel good and feel like we're doing something," said Councilwoman Brunner, who voted with the majority. A week after the vote, Police Chief Batts announced his resignation, saying he was disappointed that the city had not "let the chief be the chief. ... No chief wants to be in a position where he or she is being held accountable, but doesn't have the power to make a dramatic impact," Batts explained. Looking Forward
In the meantime, the question remains, Do gang injunctions work? And will they work in Oakland? Last November an Oakland police report found that although overall crime in the North Oakland injunction zone was down slightly during the first 16 months of the injunction there, violent crime increased by 43 percent - nearly triple the citywide average. During the same period, Oakland police arrested only 1 of the 15 named gang members inside the safety zone. De La Fuente, who has said he will run for mayor if the Quan recall winds up on the November ballot, says he'll continue to call for more injunctions, pointing to increasing crime in the first two months of 2012. "I don't think that cities like Oakland have the luxury not to try every damn tool that is available ... If we can save a couple of people from dying, I think obviously the expense is irrelevant, up to a point," says De La Fuente. However, according to Michael Siegel, "The city council no longer has the stomach to persist in authorizing these injunctions." He continues: "If each defendant claims their right to a hearing, claims their right to call favorable witnesses, it becomes an extremely expensive proposition. The policy is ultimately doomed to fail because now there are civil rights attorneys who are willing to oppose these injunctions, and that's going to make it too expensive to implement." Other local governments have been watching the developments in Oakland. Budget cuts in neighboring Contra Costa County shelved efforts by District Attorney Mark Peterson to pursue gang injunctions there. And plans to pursue an injunction in nearby Hayward also have been put on hold, according to City Attorney Michael Lawson. "Judge Freedman is clearly communicating, at least to cities in Alameda County, that if [a gang injunction is] opposed - and we assume that it would be opposed in Hayward - that he's going to allow these individual gang members to have due process hearings," says Lawson. "That raises the evidentiary bar ... because not only must we have evidence about the gang, but we also have to have admissible evidence about gang members. ... So one has to assess the value of this process and the resources that go into getting an injunction for what is essentially nuisance-type behavior." In February, Judge Freedman issued a preliminary injunction for the remaining Norteños on the Fruitvale list. The defense was able to get what defense attorney Huang calls "minor ameliorations": Defendants can attend their children's school activities, such as sporting events, that continue past 10 p.m., and they won't be arrested for noncriminal violations but instead cited and given three weeks to appear in court. The city of Oakland also refined the opt-out process for gang members who want to get their name off the injunction list, creating a three-person board to receive and evaluate such petitions. City Attorney Parker says that although she has the authority to pursue further injunctions, the city council's freeze on funding for the lawsuits involved means she'll wait for direction from the council before doing so. "We made substantial gains," says community activist Ontiveros. "You don't read about gang injunctions anywhere in the United States, or in the world, without reading the adjective controversial. ... Making it a controversy, making it something that doesn't just get rammed through, is significant," he says. Andrew Stelzer is an award-winning radio producer and news reporter, currently working as a producer at the National Radio Project in Oakland.
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Kari Santos
Daily Journal Staff Writer
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