Prosecutors Forced to Redefine ‘Gang Member’

Two years ago, some longtime residents of Placentia, California, were disturbed when Orange County District Attorney Tony Rackauckas announced his plan to fight a problem they didn’t think they had: violent street gangs. “The residents in these neighborhoods that consist of families, children and the elderly have been in the crossfire of these rival gangs for too long. Injunctions are tools that we will keep using to make communities safe from criminal-street-gang activity,” Rackauckas wrote in a 2015 press release. But crime rates in the small bedroom community were the lowest they had been since the 1950s. In fact, that year a home security consultation company, SafeWise, ranked it among the 50 safest communities in California. And yet, the DA’s office proposed two gang injunctions against the Plas and La Jolla street gangs in the city’s two historic Mexican barrios restricting the activities of 51 suspected gang members.

For the past 25 years, law enforcement and prosecutors in California have touted injunctions as powerful tools to crack down on gang violence. They work like this: a prosecutor files an action, called an injunction, against a particular gang that puts a series of restrictions on alleged members while they are in a certain geographic area. For people included in the injunction, it is a crime to talk or otherwise engage with other alleged members (including family), drink alcohol, stay out past the 10 pm curfew, and wear gang colors or communicate through gang sign gestures.

But critics say injunctions constitute a restriction of civil liberties without due process, and prosecutorial overreach targeting black and brown residents. In short, opponents hold that prosecutors use thin evidence to include someone in an injunction and make it difficult to be removed. This argument made it to the 9th Circuit Court of Appeals in 2013 in a case called , Vasquez v. Rackauckas. The Court handed down an opinion saying that given the “breadth” and “prophylactic character” of injunctions, there must be a meaningful process to determine who is a member of a gang.

In Placentia, Lawyers from the Urban Peace Institute, a non-profit legal aid organization, are using this ruling to argue that Rackauckas’ office needs to bring forward a higher standard of evidence that the individuals in the Plas and La Jolla case are an active threat to the community. So far, they’ve stalled the cases for two years, a significant delay on a process that has previously been swift and uncontested. This is the first time that lawyers have been involved in an injunction case from the beginning in Orange County post-Vasquez.

“There are ten pages of legal reasoning in Vasquez that I don’t think any judge would ignore, saying that you have to have an active hearing in a gang injunction,” said Sean Garcia-Leys, staff attorney at the Urban Peace Institute who has been representing Plas and La Jolla.

Yet, the opinion did not lay out exactly who can adequately determine a person’s gang involvement. In the Plas and La Jolla cases, Garcia-Leys and his colleagues have successfully argued that the former status-quo, a quick hearing — if any at all — using evidence such as papers signed by clients as part of past plea bargains admitting gang affiliation — does not meet due-process standards. In the spring of 2016, the judge on the case, Kim Dunning, laid out three criteria for people to be legitimately included under the injunctions, Garcia-Leys explained: First, they cannot be incarcerated because inmates cannot pose a threat to the community, and would be unable to be present at an active participation hearing. Second, they must not be under court supervision because if they are, the injunction is redundant and gang involvement becomes a criminal, not civil, matter. Finally, they must have open or recent charges that demonstrate their dangerousness.

Thus far, Rackauckas’ office has not brought forward a single eligible person. Garcia-Leys predicts that the injunction will be dismissed for undue delay when it hits the three-year mark a year from this November.

Rackauckas’s office contends that the injunctions are, “a response to pleas from the community regarding criminal street gangs and the crime they inflict upon the residents of Orange County,” spokesperson Michelle Van Der Linden wrote in an email. “Courts have long deemed gang injunctions a legal tool to combat gang violence and gang crimes. Injunctions work to prohibit gang members from hurting innocent citizens and acting like gang members,” she wrote.

But people living in those barrios say they felt the proposed injunctions were a response to gentrification, not an increase in crime or violence. “Some people in the community felt that the injunction was along the lines of political interest and or business interest because there had been such a decrease in gang activity over the years,” said resident Josh Correa. a local minister who has spoken on behalf of people named in the injunctions in court to argue that they are not a threat to the community.

“If it was the Bloods and Crips we may not have intervened,” Correa said, “But in our community, there is a longer history of racial oppression than there is of gang oppression.”

Correa points out that the injunction affects not only those named, but the entire community. “In our community, there are not many households that don’t have seven to 10 people living together,” he said. In effect, the injunction would force men to leave their families, or displace entire families to an area outside of the safe zone. “You’re not talking about affecting 50 people — you’re talking more like 500,” he said.

To be sure, youth from the La Jolla and Plas neighborhoods have been scuffling for decades. But the case that they are menacing the community is relatively weak. Individuals named in the injunctions who were convicted of recent, violent crimes are already incarcerated. The rest have only minor convictions, such as graffiti.

In other parts of the state, the once-popular injunctions seem to be somewhat going out of vogue as a tool to fight gangs. In 2014 a Santa Barbara judge struck down a proposed injunction, saying that the police failed to give adequate evidence that the alleged gangs posed a threat to the community. In Oakland, two active injunctions were dissolved in 2015. “The injunctions were intended to be temporary measures to disrupt criminal behavior of specific members of gangs within specific neighborhoods. They were not intended to last for the lifetime of the defendants,” City Attorney Barbara Parker wrote in a statement at the time. In April, the Ventura County DA’s office and the Oxnard Police Department recently sent letters to the thousand-plus enjoined individuals there telling them that they have the right to a court hearing to be removed, this is seen as a preemptive move as injunctions are receiving more scrutiny.

Riverside County did implement an injunction in June, but for the first time the court required the DA to re-establish that the enjoined individuals are gang members every five years. Meanwhile, in Los Angeles the ACLU filed a law suit against the LAPD alleging that they served injunctions to people without giving them the opportunity be removed. The city attorney’s office said it will propose a revised policy later this year.

In Placentia, Correa said that he wishes the city would funnel resources towards crime prevention such as education and employment training. “We’re not pro-gang, we’re pro-people,” he said.