California Ruling Could Give Accused Gang Members a Chance to Clear Their Names

On January 31, 2013, a California Highway Patrol officer pulled over Carlos David Sanchez for playing his car stereo too loud. During the stop, the officer asked Sanchez, then 19, if he was on probation or parole. He was not, Sanchez said, but he was under a gang injunction, as was his younger brother, also in the car.

The injunction — a court order used by prosecutors to address gang violence — was first issued in 2009 by a Stanislaus County Superior Court judge, against the Deep South Side Norteños (DSSN), also known as Deep South Side Modesto, a local organization allegedly associated with the much larger the Norteños gang. The injunction named alleged members, and prohibits them from engaging in certain actions together, such as walking, driving or gathering, within a designated “safety zone,” or suspected gang turf.

So for Sanchez and his younger brother, who had both been served with the injunction, the simple act of driving down the street together was prosecuted as a misdemeanor offense. The officer arrested both men. Sanchez was taken to jail and his brother, a minor, to juvenile hall. Sanchez stayed in jail until he could be bailed out. His car was impounded — racking up a $300 per night fee, according to Sanchez’s lawyer.

This was not the first time Sanchez had been arrested for violating the gang injunction. In fact, it was his eighth arrest, according to court documents, since he first learned he’d been added to the injunction in 2010, despite having no prior criminal or arrest record. He was never told why he was added in the first place. Like most of the estimated tens of thousands of Californians under similar orders, he was never given the opportunity to contest his affiliation before the government prior to being placed under the injunction.

But that practice could soon change, thanks in part to what happened next.

A court-appointed gang expert filed a report on Sanchez’s behalf. “Carlos David Sanchez is not a gang member,” he wrote in his report, “and furthermore, I believe he has never been a member of the [Deep South Side Modesto] gang, or any other gang.”

The court didn’t say Sanchez was not a gang member, but that he had been deprived due process to argue that he wasn’t when he was originally served the injunction. So, its enforcement against him was unconstitutional, and the charge for violating its rules should be dismissed.

The DA appealed that decision, but last month, the state’s Fifth District Court of Appeal, which covers nine counties in central California, affirmed the decision of the local court. This decision sets precedent that lawyers across the state can use to battle similar injunctions, according to some legal experts.

“Sanchez had no notice or opportunity to be heard before he was subjected to an injunction with profound consequences for daily life,” Judge M. Bruce Smith wrote on December 19, “including family relationships, freedom of movement, and civic participation in the neighborhood in which he lives. The appearance-of-fairness factor under the California Constitution supports our conclusion that applying the injunction against Sanchez violated procedural due process.”

Sean Garcia-Leys, staff attorney at the Urban Peace Institute, heralded the decision. “It’s a little early to tell how prosecutors are going to react,” he says, “but by my reading, it just took as many 25,000 people off of gang injunctions statewide.”

California gang injunctions are notorious for the opaque police intelligenceoften used to identify gang members, and the uphill battle defendants fight to get off the list. “The DA in this case refuses to tell us how many young men were served,” says Mary Lynn Belsher, Sanchez’s court-appointed lawyer. “They refused to tell us what they use to designate these young men as gang members.”

Most often, gang members are not given an opportunity to contest their injunctions. San Francisco and Oakland are notable exceptions: there, as recently as 2013 alleged members are provided some form of pre-deprivation process. And Garcia-Leys says Orange County is granting what are known as active participation hearings more often now, too.

The Fifth District’s decision builds on precedent set in a 2013 federal court ruling. In Vasquez v. Rackauckas, the Ninth Circuit Court of Appeals ruled that those not named in an original injunction but later added were entitled to an “adequate opportunity to contest whether they are active gang members before they are subjected to the injunction.”

In that case, Orange County District Attorney Tony Rackauckas had filed an injunction against the Orange Varrio Cypress gang and 115 people his office alleged were part of it. Thirty-two of those people challenged the allegations in court to fight the allegations. So, Rackauckas’s office asked the court to dismiss a majority of defendants named in the injunction, including all those who defended themselves in court, only to request a permanent injunction against the gang as an entity and its broadly defined “members” — and direct the police to enforce it against the very people it had earlier dismissed.

Defense attorneys hoped the court’s ruling against Rackauckas would turn the tide on gang injunctions, but some prosecutors have argued that it’s not widely applicable since it pertained to a particularly egregious case, says Garcia-Leys of the Urban Peace Institute. He thinks the Sanchez case, which he says reflects a more common situation, could have a broader impact. “Prosecutors at some point are going to say, ‘Ok, look, we can’t win anymore,’” he says. “‘We can’t convict people without active participation hearings, so we’re going to have to start doing those. Or stop enforcing gang injunctions.’”

A case similar to Sanchez’s is playing out in federal court. The Youth Justice Coalition, which includes the ACLU of Southern California and the Urban Peace Institute, filed a class action lawsuit against the city of Los Angeles on behalf of thousands of alleged gang members there who, like Sanchez, were not given a chance to contest their label.

In Modesto, the “safety zone” outlined by the injunction covers neighborhoods in South Modesto, where Sanchez’s family has lived for decades. The injunction prohibits potentially unlawful conduct, such as harassing or assaulting anyone who is thought to be a witness to gang-related activity, as well as otherwise legal behavior like being seen in public with another gang member, staying out past 10 p.m., and wearing red, the color associated with DSSN. According to his lawyer, in 2013 Sanchez was arrested in part for having in the car a winter coat with a red-trimmed lining his grandmother bought him for Christmas.

Since both Sanchez and his brother were under the injunction, their family home came under local law enforcement scrutiny, Belsher says. The family’s yard is visible from the street, so if they wanted to have a barbecue, for instance, only one of them could attend. Belcher says the gang injunction led to frequent police raids on her client’s house.

The Stanislaus County DA’s office did not respond to a query from The Appeal on whether it will change how it handles gang injunctions post-Sanchez. But the appellate court’s opinion noted that, during the appeal, the SCDA lawyer indicated that it had “independently modified, on its own initiative, its procedures related to enforcement of the injunction, evidently to alleviate procedural due process concerns.”

Last August, during the appeal, Sanchez’s lawyer says he was notified by the DA that he is no longer subject to the injunction, so he is now free to walk down the street with his brother, stay out past 10 p.m., and wear red clothing. But Belsher wants to have his entire criminal record cleared. This spring, she’s prepared to go back to court to see that it is. Until it is, he’ll face hurdles with employment, loans, or other applications that require a criminal background check.

“I want an order from the courts to destroy every piece of paper in the District Attorney’s office that has his name on it,” she says. “He shouldn’t have a rap sheet.”