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

Orange County DA Tony Rackauckas.
Kevork Djansezian / Getty

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.”

Jury For White Man Who Killed Black NFL Player Has One Black Person

Joe McKnight in 2010
Photo by NFL via Getty Images

Jury For White Man Who Killed Black NFL Player Has One Black Person

The Louisiana jury that will decide whether a white man shot a black former NFL player in self-defense during a road rage incident has just one black juror.

The fatal shooting of former New York Jets running back Joe McKnight in December 2016 quickly triggered accusations of racism in Jefferson Parish, Louisiana’s largest county.

The suspect, Ronald Gasser, shot McKnight three times in broad daylight at a stoplight five miles southeast of New Orleans. McKnight was unarmed. Gasser confessed, but was initially released without charges by the Jefferson Parish Sheriff’s Office.

The local NAACP chapter declared McKnight was “lynched” and accused then-sheriff Newell Normand of giving Gasser “special treatment.”

In a defensive press conference on December 6, 2016, then-sheriff Newell Normand insisted “this isn’t about race” before reading aloud a string of racial slurs he claimed protesters had used against him and other officials, and invoking “black-on-black crime.”

Jefferson Parish has a long history of racist law enforcement. Former Jefferson Parish Sheriff Harry Lee famously told reporters in 2006, “We know the crime is in the black community. Why should I waste time in the white community?”

Gasser’s trial for second-degree murder started Friday. But the skewed jury makeup will probably amplify suspicions of unfair treatment. Though African Americans make up more than a quarter of the population in Jefferson Parish, there are no black men on Gasser’s jury and just one black woman, according to local attorney Chick Foret.

Jefferson Parish has a habit of keeping black residents off juries. A 2003 report by the Louisiana Crisis Assistance Center, a capital defense nonprofit, found that Jefferson Parish prosecutors removed black prospective jurors in felony trials at more than three times the rate they removed white ones. Though racial discrimination in juries is unconstitutional, the Louisiana Supreme Court has studiously ignored most challenges.

The high rate of exclusion means that 80 percent of criminal trials in Jefferson Parish have no black representation on the jury, according to the civil rights nonprofit Equal Justice Initiative.

The exclusion of black jurors in Louisiana is no accident. The state has historically gone to great lengths to silence black voices in the criminal justice system. White supremacist lawmakers rewrote the Louisiana constitution in 1898 to allow non-unanimous jury verdicts, hoping to nullify any black influence by requiring only a 10-person majority. The constitutional convention clearly stated its purpose was “to establish the supremacy of the white race in this state.” More than a century later, Louisiana is one of just two states in the country that allows non-unanimous jury verdicts.

The erasure of black jurors has played out as Jim Crow lawmakers likely hoped. It’s far easier to secure convictions with non-unanimous juries, particularly after prosecutors have excluded black jurors. But Gasser’s odds are significantly better than that of the average black defendant — nationally, white men who kill black men are eight times more likely to be ruled justifiedthan any other killers in the U.S.

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Federal Court Hears Constitutional Challenge to a New York Statute that Incarcerates Working Class People of Color

Folding knives like this one have led to thousands of arrests in New York City.

Federal Court Hears Constitutional Challenge to a New York Statute that Incarcerates Working Class People of Color

The Second Circuit Court of Appeals on Thursday heard oral arguments in a challenge to New York’s controversial “gravity knife” statute, the latest chapter in a fight against a law that has drawn broad criticism from criminal justice reform groups, in part for its disproportionate impact on people of color.

Two of the plaintiffs in the case, John Copeland, a visual artist, and Pedro Perez, an art dealer, were arrested in Manhattan nearly a decade ago for possession of folding knives they say they used in their trades. The third, Native Leather, is a Greenwich Village apparel shop accused of selling prohibited knives in 2010.

The trio is represented by Knife Rights, an Arizona-based organization that advocates for what it considers the constitutional rights of knife owners. Since 2011, the group has been suing Manhattan District Attorney Cyrus Vance on behalf of their members for what they contend is his unconstitutional enforcement of the nearly 70-year-old statute.

Enacted in 1958, the gravity knife law was initially aimed at a large variety of knives similar to switchblades, which were then common on city streets. But according to public defenders, in a trend driven in part by the NYPD’s unofficial arrest quota system, the statute is frequently used instead to arrest blue-collar workers who often have no idea their weapons are illegal.

At the heart of the case is what has come to be known as the “wrist flick” test, used by police to differentiate “gravity knives” from legal folding knives. Under New York State’s peculiar definition, any folding knife that can be opened and locked in place with the snap of a wrist can be classified as unlawful, regardless of whether it was intended to operate that way.

But a knife’s ability to be “flicked” open relies in part on its user’s strength and skill, Knife Rights argues, and is therefore inherently subjective. With no uniform test to determine what is and is not a gravity knife, the law as enforced is unconstitutionally vague, they say.

“There’s literally no way to know whether you’re engaged in legal conduct,” Daniel Schmutter, an attorney for the plaintiffs, told the three-judge panel on Thursday. Someone seeking to comply with the law, he explained, might set out to perform the wrist flick test themselves, fail, and think the knife is safely “unflickable.” But whether a knife’s owner can “flick” his or her knife is irrelevant if a skilled police officer can do so.

“The problem arises not when [the knife] opens, but when it doesn’t open,” Schmutter said. That vagueness, plaintiffs argue, violates the principles of equal protection under the Fourteenth Amendment.

Vance’s office argues, and state courts have affirmed, that the test is perfectly clear. If a knife can ever be opened with a wrist flick, under any circumstances, then it meets the definition of an illegal knife. Moreover, they say, the wrist flick test has been employed since the law was passed in 1958.

“It’s the same test that’s been used since the inception of the statute,” offered attorney Elizabeth Krasnow, who is representing the Manhattan District Attorney’s office, citing an assistant district attorney and government witness who testified to the uniformity of his tests over the past 30 years.

Legal defense groups like the Brooklyn Defender Services and the Legal Aid Society complain that innocent clients — construction workers, plumbers and other working class New Yorkers — are frequently arrested for knives essential to their work, and which are widely available at city retailers. Invariably, they are unaware that knives sold openly in city stores can be considered illegal.

Even worse, public defenders say, while the charge is normally a misdemeanor, anyone with a prior criminal conviction can be hit with a felony by the DA’s office, and face up to seven years in prison. Tens of thousands of people have been arrested under the law in the past decade, according to a Legal Aid analysis, and of those defendants, 84 percent were Black or Latino. The state legislature in 2016 and 2017 passed reform measures that would have stemmed the arrests, but each was ultimately vetoed by Governor Andrew Cuomo.

Vance, the titular target of Knife Rights’ suit, has become the focus of much of the reformers’ ire, in part because his office has zealously prosecuted gravity knife cases. According to an amicus brief filed by the Legal Aid Society in support of the plaintiffs, over a five-month period in 2015, Vance pursued more than four times as many felony gravity knife possession cases as all other New York City DA’s combined. He has also been the most vocal opponent of amending the statute, lobbying against every iteration of the reforms since 2014.

The case has created some strange courtroom scenes, not to mention some unlikely alliances. The NAACP Legal Defense Fund, for example, has thrown its support behind legislative changes to the law, as has the National Rifle Association.

Evidentiary hearings have also been tricky. In the district court, some exhibits — knives which the government, after all, contends are illegal weapons — had to be transferred by police through a complicated chain of custody. Circuit Judge Rosemary Pooler referred to that particular challenge in a quip to Knife Rights attorney Schmutter on Thursday. If he had wanted to bring an exhibit to help with his presentation, she noted, he might have run into problems at a secure federal courthouse.

“You probably couldn’t get it through the guards,” she said.

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