Federal court strikes down gang injunction used by police

Opinion states 'considerable' risk of error in identifying gang members under ban, problems with law enforcement unilaterally identifying individuals as gang members

By Associated Press Staff

SAN FRANCISCO — A federal appeals court on Tuesday struck a blow against widely used gang injunctions, ruling that a sweeping Orange County ban cannot be applied to dozens of people because it gave them no way to challenge claims that they were gang members.

The 9th U.S Circuit Court of Appeals said the 2009 injunction granted by a state court against alleged members or associates of the Orange Varrio Cypress gang was extraordinarily broad, impinging on constitutional liberties and everyday activities, and that there was a "considerable" risk of error in identifying alleged gang members.

"The OCDA and other law enforcement agencies can no longer go behind closed doors and unilaterally decide who is a gang member," said Belinda Escobosa Helzer, director of the Orange County office of the American Civil Liberties Union of Southern California, which filed a lawsuit over the injunction.

A call to the county district attorney's office was not immediately returned after hours Tuesday.

Gang injunctions have been used in California since at least 1987 to curb street gang activities by obtaining public nuisance injunctions that prevent reputed gang members from various activities in their gang territories, ranging from drug-dealing and shootings to simply gathering together.

The use of gang injunctions has proliferated across the nation and even overseas.

Advocates argue that the injunctions have reduced gang crime while opponents say they cast too wide a net and unfairly brand young men as gang members without due process.

As with many other orders, the Orange County injunction barred suspected members of the gang from associating in public, wearing gang clothing or being out late at night within an area of Orange that was deemed the gang's territory.

In its ruling, the appellate court said the injunction "profoundly implicates" and interferes with liberties such as the rights of free movement, association and speech. It noted that the injunction was permanent and its prohibitions had no exceptions for those named to attend religious services, take part in political demonstrations, or even associate with some family members at parks, libraries or churches within certain areas.

It cited the lower court's finding that in one case, the mother of two brothers had to decide whether they could visit their grandfather in a hospital after he had a stroke.

The appellate court's ruling, however, honed in on a unique issue in the Orange County case: Prosecutors dismissed 62 people from the injunction after they challenged their inclusion in the temporary injunction. However, those people were nonetheless named in the permanent injunction.

The appellate court agreed with a portion of the lower court ruling that barred enforcement of the injunction against the people who had been dismissed from the temporary injunction.

"Today's ruling recognizes that determining who is and isn't a gang member isn't always easy, and police and prosecutors can get it wrong. That's why the Constitution doesn't leave it up to the whim of the government, but gives someone accused of being a gang member the right to be heard before his or her basic freedoms are restricted," said Joseph Ybarra, partner with the law firm of Munger Tolles & Olson LLP, which took part in the suit.

Copyright 2013 The Associated Press

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