Injunctions against Street Gangs. by Miles Risley & Kinley Hegglund

Transcription

1 Injunctions against Street Gangs by Miles Risley & Kinley Hegglund

2 Gang injunctions are civil court orders that prohibit members of criminal street gangs from committing a wide variety of criminal activity, acts of intimidation, acts that recruit more gang members and sustain the gang (such as association with other gang members), acts that assist other criminal enterprises, and other antisocial activities.

3 Common Gang Injunction Prohibitions Associating with other known gang members in public; Confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting or battering witnesses; Possessing or knowingly remaining in the presence of anyone who is in possession of any gun, ammunition, or weapon in any public place;

4 Common Gang Injunction Prohibitions (cont'd) Possessing or knowingly remaining in the presence of anyone who is in possession of any controlled substance or drug paraphernalia; Being present on any private property without the written consent of the owner; Defacing property or possessing graffiti tools;

5 Common Gang Injunction Prohibitions (cont'd) Driving a motor vehicle that is unregistered, uninsured, lacking visible license plates, or without operating headlights at night; Consuming or possessing alcoholic beverages or any illegal substance while operating or occupying a motor vehicle; Possessing or operating or occupying a motor vehicle containing illegal contraband, narcotics, any weapons;

6 Common Gang Injunction Prohibitions (cont'd) Consuming alcoholic beverages or illegal substances at night Giving false information to a police officer, including but not limited to, a false name, false date of birth, or false residential address; Using or making words, phrases, physical gestures, hand signs, or symbols, which the Defendant knows to be gang related;

7 Common Gang Injunction Prohibitions (cont'd) Possessing cell phones and pagers at specified times and/or locations; Being in a motor vehicle in a public place at specified times of day; Threatening any person with bodily injury or causing bodily injury with the intent to coerce, induce, or solicit a person to participate in the activities of a criminal street gang; Enabling, encouraging, recruiting, or soliciting another person to become a member of a criminal street gang;

8 History of Gang Injunctions 1982 Los Angeles gang injunction against three street gangs 1987 Los Angeles City Attorney filed gang injunction action against Playboy Gangster Crips: court refused to enjoin activities that were not otherwise unlawful. Court also limited the reach of the injunction to gang members who were specifically named and had been given notice of the action. Court held that indigent gang members had a right to counsel in injunction proceedings. The City Attorney's Office claimed victory, but did not seek another significant gang injunction for five years.

9 History of Gang Injunctions (cont d) Early 1990 s other California cities began to file gang injunctions Legal uncertainty: Do all gangsters need to be served ie. Can the gang itself be sued as an association & be served as notice to future members? Do gang members have a constitutional right to associate with each other? Is there a heightened standard of proof in gang injunctions? Are gang members entitled to attorneys?

10 Major California Court Cases in 1990 s 1997 California Supreme Court decided People ex rel. Gallo v. Acuna OK to limit 1 st Amendment rights of gangsters OK to sue gang as an unincorporated association Iraheta v. Superior Court No req t for appointed counsel in gang injunction cases 2001 People v. Englebrecht Standard of Proof in California gang injunction cases is clear & convincing evidence

11 History since 1990 s Gang injunction programs established in many California cities 2000 s gang injunctions spread to other states Utah Minnesota Texas -- Fort Worth, Austin, El Paso, San Antonio, Houston, and Wichita Falls As of 2011, more than 122 gang injunctions had been issued in California, covering more than 11,000 gang members Overseas equivalent = Anti-Social Behavior Order in Great Britain

12 Legal Basis for Gang Injunctions Public nuisance laws have traditionally been used by governmental authorities to stop conduct that was considered quasi-criminal because, although not strictly illegal, it was deemed unreasonable in view of its likelihood to injure a member of the public. Examples: Blocking of a public roadway Dumping of sewage into a public river Creation of loud noises Slaughtering animals in a neighborhood

13 Requirements for Injunction Common Law Defendant was engaged in a public nuisance and the gang and its members have occupied and used a certain target area in a manner that constitutes a public nuisance. Statutes have broadened the definition of public nuisance in many states.

14 Public Nuisance must be: Injurious to health, including, such as the illegal sale of controlled substances, so as to interfere with the comfortable enjoyment of life or property; Indecent or offensive to the senses, so as to interfere with the comfortable enjoyment of life or property; An obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; Unlawfully obstructing the free passage or use, in the customary manner, of any public park, square, street or highway; or A nuisance per se, which is an activity, or an act, structure, instrument, or occupation which is a nuisance at all times and under any circumstances, regardless of location or surroundings, such as an illegal act that invades the rights of others.

15 For a court to issue an injunction against a public nuisance, the petition for relief must allege specific facts demonstrating that the defendant was engaged in nuisance. The mere fact that the act is a crime is insufficient to constitute a nuisance. Instead, there must be some interference, actual or threatened, with property or rights. The interference mentioned under this standard must be "substantial and unreasonable" to qualify as a nuisance. Single incident does not suffice.

16 Gang Injunction Requirements Each provision included in the proposed Gang Injunction should be narrowly tailored to abate a particular category of nuisance activity or a precursor to such nuisance activity.

17 Notice Requirements In California, the gang can be sued as a organization, with notice directed at only a few representatives of the gang In Texas, all gangsters must be served with individual notice of the gang injunction petition In all states, enjoined gangsters must be served with a copy of the final order establishing the gang injunction before injunction can be enforced against them

18 Common Questions Does a gang injunction prohibit an enjoined gang member from working or living in the safety zone? No, gang injunctions do not prevent the named individuals from entering the safety zone entirely; they only prohibit certain behaviors within the specified area.

19 Common Question (cont'd) How are gang injunctions enforced? Violations of gang injunctions are treated as violations of court orders. In California, a violation of court order is punishable by up to six months in jail and up to $1,000 in fines. In Texas, gang injunction violations are punishable by civil or criminal contempt or by prosecution as Class A misdemeanor (1 year in jail + up to $4,000 fine)

20 Constitutionality of Gang Injunction Provisions: First Amendment Right to Associate First Amendment Overbreadth Fifth Amendment Void for Vagueness Sixth & Fourteenth Amendment Right to Appointed Counsel Fourteenth Amendment Procedural Due Process Right to Notice Equal protection

21 First Amendment Right to Associate Two kinds of associations entitled to First Amendment protection: Associations with an intrinsic or intimate value, Associations that are instrumental to forms of religious and political expression and activity. Freedom of association, in the sense protected by the First Amendment, does not extend to joining with others for the purpose of depriving third parties of their lawful rights. Gallo v Acuna

22 Overbreadth Invalidates statutes that prohibit more expression than necessary Requires finding of a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court Overbreadth doctrine is strong medicine that is used sparingly and only as a last resort ). Broadrick v. Oklahoma (1973).

23 Vagueness 5 th & 14 th Amendment No one may be required... to speculate as to the meaning of penal statutes claim that a law is unconstitutionally vague can succeed only where demonstrated, not that it affects a substantial number of others, but that the law is vague as to her or impermissibly vague in all of its applications. a gang member s knowledge of another gang member s status (which would put him under the injunction no association provision) is a necessary element of any violation of the no association provision

24 Sixth & Fourteenth Amendment Right to Appointed Counsel Gang injunction defendants have the right to appointed counsel in gang injunction enforcement proceedings that pose the risk of jail time. However, few courts have granted defendants the right to counsel in the initial proceedings to obtain gang injunctions Courts have right to appoint Counsel in equitable proceedings (does not emanate from Constitutional guarantee) Lassiter v. Dept of Soc l Svcs (1981) established a caseby-case analysis for a claimed constitutional right to counsel, coupled with a presumption against the right to counsel so long as the action did not threaten to result in a deprivation of physical liberty. Cloutterbuck No right to appointed counsel in requests for protective orders

25 14th Amendment Procedural Due Process Right to Notice California cases typically proceed against gangs with only a limited number of individual defendants named as defendants Texas cases notify all gang members due to Texas statute on gang injunctions Naming the gang without naming a particular defendant who is subject to the gang injunction potentially abridges gang members' 14th amendment procedural due process rights. Mullane Rule - whether the notice given was reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections Regardless of initial notice, gang members must still be individually served with notice of the final injunction to become liable for the gang injunction obligations

26 Equal Protection Defendant must prove he was treated differently by the government than similarly situated persons and the different treatment was not rationally related to a legitimate government objective Rational basis standard is very low & will have been met by higher equitable standard for granting the injunction

27 Collateral Bar Rule Injunctions are subject to the collateral bar rule, which prevents defendants from challenging the constitutional or legality of an injunction at a contempt of court hearing Does not prevent defendant from raising issues that were not susceptible to litigation in the initial hearing. Therefore, if a gang injunction contempt defendant was not part of the initial proceeding, he can challenge the claim that he is a member of the street gang.

28 Maximizing effectiveness of Gang Injunctions Closely coordinate with Police Department Police provide intelligence to target gang members Gang injunction enforcement only happens if police actively pursue it Due to differentiation between orders and areas, a dedicated gang unit in Police Department will typically be necessary for effective use of gang injunctions

29 Maximizing effectiveness of Gang Injunctions (cont'd) Select gangs with large numbers of low-level crimes that are visible to police (turf-based gangs) A turf-based gang thrives when it has fostered a reputation for violence and a willingness to retaliate against those who challenge it. A turfbased gang is able to frighten residents of the community into hiding when they become aware of the gang s criminal activities. Witnesses become unwilling to take the risk of reporting the gang s crimes, out of fear of being targeted as a snitch or rat.

30 Maximizing effectiveness of Gang Injunctions (cont'd) Crimes that happen behind the scenes, such as wholesale drug transactions, tax evasion, and smuggling are not as amenable to injunctive relief as low level crimes for several reasons: (1) lower number of detectable crimes, (2) greater penalties associated with high level crimes (3) lack of neighborhood victimization and cooperation

31 Maximizing effectiveness of Gang Injunctions (cont'd) Avoid pre-trial remedies, such as temporary restraining orders and temporary injunctions Temporary orders hearings create opportunity for gang members to request appointed attorneys Equity favors appointment of attorneys for gang members who are facing a short period of time to make a case for defense from gang injunction temporary orders prohibitions

32 Maximizing effectiveness of Gang Injunctions (cont'd) Standardize gang injunction prohibitions early in the program Simpler structure of orders enhances ability of police to enforce Lowers chance of constitutional violations through mistake Avoid publicity of the gang injunction effort until the permanent injunction is obtained Avoids activating ACLU and other civil rights organizations that need publicity for contributions and support

33 Reported Effectiveness of Gang Injunctions 2011 Study of 25 Gang Injunction areas in California found 12.4% net reduction in Part I crimes and 17.5% net reduction in Part II crimes Study of California data prior to 2002 found reductions of 5% to 10% San Antonio found a 22% reduction in crime in its gang injunction zones El Paso reported reductions of specified crimes of between 15% to 33% in gang injunction zone Los Angeles grand jury found 5.5% to 8.8% reductions in Part I crimes in selected areas

34 Gang Injunctions Part II

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36 Texas Gang Injunction Statute In Texas, gang injunctions are statutory in nature and are governed by Texas Civil Practice & Remedies Code Chapter 125, subchapter D states that a combination or criminal street gang that continuously or regularly associates in gang activities is a public nuisance.

37 Gang Injunction Statute Any person who habitually associates with others to engage in gang activity as a member of a combination or criminal street gang may be made a defendant in a gang injunction suit

38 Gang Injunction Statute If the Court finds that a combination or criminal street gang constitutes a public nuisance, the Court may enter an order: (1) enjoining a Defendant in the suit from engaging in the gang activities of the combination or gang; and (2) imposing other reasonable requirements to prevent the combination or gang from engaging in future gang activities (a). Should the Court find that a place is habitually used in a manner that constitutes a public nuisance, the Court may include in the order reasonable requirements to prevent the use of the place for gang activities (b).

39 What is A Criminal Street Gang? Criminal street gang means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities. Tex. Penal Code 71.01(d).

40 Criminal Combination Defined Combination means three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other s identity; (2) membership in the combination may changes from time to time; and (3) participants may stand in a wholesalerretailer or other arm s-length relationship in illicit distribution operations. Tex. Penal Code 71.01(a).

41 What Constitutes Gang Activity in Texas? Gang activity is defined by Section (3) to include: (A) organized criminal activity as described by Section 71.02, Penal Code; (B) terroristic threat as described by Section 22.07, Penal Code; (C) coercing, soliciting, or inducing gang membership as described by Section , Penal Code; (D) criminal trespass as described by Section 30.05, Penal Code; (E) disorderly conduct as described by Section 42.01, Penal Code; (F) criminal mischief as described by Section 28.03, Penal Code, that causes a pecuniary loss of $500 or more; (G) a graffiti offense in violation of Section 28.08, Penal Code, that: (i) causes a pecuniary loss of $500 or more; or (ii) occurs at a school, an institution of higher education, a place of worship or human cemetery, a public monument, or a community center that provides medical, social, or educational programs; (H) a weapons offense in violation of Chapter 46, Penal Code; or (I) unlawful possession of a substance or other item in violation of Chapter 481, Health and Safety Code. Tex. Civ. Prac. & Rem. Code (3)

42 Gang Statute: Qualifying Events The Gang Public Nuisance definition requires that the combination or criminal street gang continuously or regularly associates in gang activities. Tex. Civ. Prac. & Rem. Code Continuously or regularly is specifically defined in the Civil Practice and Remedies Code as at least five times in a period of not more than 12 months. Id. at (2). Gang activities include a list of several statutorily defined acts. Id. at (3). These five events of gang activity define or qualify the NSC as a Public Nuisance. They are referred to as Qualifying Events

43 Gang Injunction Statute: Habitual Associations The Gang Statute provides that [a]ny person who habitually associates with others to engage in gang activity as a member of a combination or criminal street gang may be made a defendant in the suit. Tex. Civ. Prac. & Rem. Code

44 Gang Injunction Statute: Gang Safety Zones A majority of a gang s gang activity takes place in a specific geographical area, which Wichita Falls refers to as a Safety Zone, such as the VC Safety Zone #1. A safety zone comprises the boundaries set out in Plaintiff s Original Petition for Permanent Injunction. The dimensions of a Safety Zone are in part a result of observations made by the Wichita Falls Police Department. The dimensions of the zone are reasonably crafted to encompass areas in which members of the targeted gang tend to dwell, gather, and associate. It also incorporates, generally, areas considered to be within the reach and territory of the criminal street gang, and areas that the Wichita Falls Police Department reasonably believes are threatened by the public nuisance created by the criminal street gang.

45 Gang Injunction Statute: Injunction Prohibitions The Texas Gang Statute allows a court to place reasonable restrictions on a defendant of a gang injunction (2).

46 Association Prohibition Associating, standing, sitting, walking, driving, bicycling, or gathering anywhere with any person whom Defendant knows to be subject to a permanent order enjoining gang activity, with any other individual whom the Defendant knows is a member of the NSC, or with another person whom the Defendant knows to be a member of any other criminal street gang. This subparagraph shall not apply to any Defendant while on school property during regular school hours for purposes of mandatory attendance and graduation requirements, nor to any Defendant who is a minor in the company of a parent or guardian, nor to any Defendant while attending a religious activity.

47 Automobile Prohibitions Possessing a cellular phone while occupying a motor vehicle on a public street, unless the cellular phone is not in the passenger compartment of the vehicle. This subparagraph does not apply if the vehicle is a taxi, bus, or other form of public transportation. Driving, riding about, or being in any motor vehicle in any public place between the hours of 9:00 p.m. on any day, and 6:00 a.m. of the immediately following day, unless the Defendant is (1) performing an emergency errand; (2) attending a school, government, civic, or religious activity; (3) going to or coming from a school, government, civic, or religious activity, without detour or stop; (4) engaged in lawful employment, or volunteer work at a recognized charitable institution, or is going to or coming from such activity without detour or stop; or (5) engaged in interstate travel. This subparagraph does not apply to the use of public transportation or private taxi companies. For the purpose of this subparagraph, a public place is any place to which the public or a substantial group of the public has access, and includes, for example, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

48 Additional Prohibitions Consuming alcoholic beverages or illegal substances between the hours of 9:00 p.m. on any day, and 6:00 a.m. of the immediately following day. Using or making words, phrases, physical gestures, hand signs, or symbols which the Defendant knows to be gang-related, or engaging in other forms of communication which Defendant knows describes, refers, or identifies members of the combination or criminal street gang, or wearing clothes that the Defendant knows identifies membership with the combination or criminal street gang. Enabling, encouraging, recruiting, or soliciting another person to become a member of a criminal street gang which, as a condition of initiation, admission, membership, continued membership, rank increase, or prestige increase, requires the commission of gang activity as defined by section of the Texas Civil Practice and Remedies Code or any offense punishable as a Class A misdemeanor or felony.

49 Forfeiture of Property Article 59 of the Texas Code of Criminal Procedure allows the State to seize and forfeit any property used or intended to be used in the commission of a criminal offense under Chapter 71 of the Texas Penal Code. This allows law enforcement to seize and proceed to forfeiture on property used or intended to be used by gang members in violation of a gang injunction. As such, if a gang member was to use his vehicle or cell phone to violate a gang injunction, then that vehicle or phone is subject to seizure and forfeiture.

50 Violation of Gang Injunction Statute A person who violates a temporary or permanent gang injunction is subject to the following sentences for civil contempt: (1) a fine of not less than $1,000 nor more than $10,000; (2) confinement in jail for a term of not less than 10 nor more than 30 days; or (3) both fine and confinement In an action brought under this subchapter, the court may award a prevailing party reasonable attorney s fees and costs

51 Criminal Enforcement of Gang Injunctions Gang injunction violations constitute a Class A misdemeanor in Texas. Penal Code They are punishable by up to one year in jail & a fine not to exceed $4,000. The Wichita County DA s office has been very successful in obtaining convictions for these violators, and there are generally multiple injunction violations per arrest. Convictions typically result in 10 months incarceration per incident.

52 Martinez Injunction: Texas Court of Criminal Appeals Mario Rico Martinez, a Varrio Carnales ("VC") gang member, admitted to VC gang membership and in 2007 was placed under the gang injunction through an Agreed Order. This injunction prohibited certain activity within the VC Safety Zone #1, a geographic area with dimensions clearly delineated to Martinez in the Agreed Order. Martinez nevertheless appealed the injunction to the Fort Worth Court of Appeals when he was charged with violating it at a later date, arguing that: (1) Section (a)(2) of the Texas Civil Practice and Remedies Code, which permits a judge to impose "reasonable requirements" when enjoining criminal street gang activity, violates the separation of powers doctrine by imposing penalties not set by the Legislature; and (2) The prohibition in the VC injunction prohibiting Martinez from making "gang signs" and wearing gang clothing violated the First Amendment and was unconstitutionally vague.

53 Martinez Opinion The Court of Criminal Appeals, in an 8-0 decision (Justice Meyers did not participate), affirmed the Fort Worth Court of Appeals and agreed with the position of the City Attorney and District Attorney that the injunction passes all constitutional muster. They further noted that Martinez is estopped from challenging the permanent injunction because he agreed that the requirements were "reasonable" when he signed the Agreed Order.

54 Martinez Opinion: Reasonable Requirements The Court observed that Martinez agreed to the order setting him under the terms of the injunction, and that he did not appeal the order. When later charges were filed under the order, Martinez objected, arguing that Section (a)(2) unconstitutionally allows judges to make criminal laws with criminal penalties in violation of separation of powers. This argument has been rejected by both the Fort Worth Court of Appeals in Goyzueta v. State and the Beaumont Court of Appeals in Beasley v. Molett, which support the contention that the Legislature explicitly authorized trial courts to impose "reasonable requirements not specifically listed in the statute to prevent known gang members from engaging in criminal activity. The Court observed that the Legislature normally possesses sole authority to make law, including criminal penalties. However, the Legislature may designate authority through an authorized agent when it is unable to outline every possible reasonable application of the law. The Court presumed that the delegation to judges to determine "reasonable requirements" was constitutional, and that the Legislature clearly intended to delegate this authority to judges when passing Section , so long as the restrictions imposed by judges are tailored to prevent one of the many crimes listed in the statute as "gang activity."

55 Martinez Opinion 1 st Amendment & Gang Signs & Colors The Court of Criminal Appeals rejected Martinez's argument that a prohibition on making gang hand signs or wearing gang clothing violated his First Amendment rights. The Fort Worth Court of Appeals argued that restrictions on "gang signs" were contentneutral. The Court of Criminal Appeals rejected this argument and instead elected to hold the restriction to an even higher constitutional standard. Even so, the court held that it was "narrowly tailored to serve a compelling state interest," noting that restricting the use of gang hand signs was directly related to a compelling interest of the City and State in protecting individuals within the VC injunction safety zone, and that the restriction itself was sufficiently narrow to target only gang hand signs and gang clothing within a specific area. The Court stated that "gang hand signs and clothing represent an integral part of VC's illegal exploits, and prohibiting gang hand signs and the wearing of gang clothing was one essential tool in eliminating the gang's public-nuisance activities."

56 Martinez Opinion: Vagueness of the Injunction Because Martinez raised the issue only with respect to one prohibition, the Court restricted their vagueness analysis only to the provision prohibiting Martinez from making "gang signs" or wearing gang clothing. It held that the provision was clear enough that Martinez could understand that these were prohibited within the safety zone. The Court went further, noting that Martinez, who was aware of his own status as a VC gang member by Agreed Order, and who told the arresting officer that his clothing colors were his "gang colors," made a "somewhat disingenuous" challenge on this point. It was also held that the prohibition did not permit arbitrary or discriminatory enforcement, as officers have a recognized ability to rely on their training and experience in determining what constitutes "gang signs" or gang colors. The Court therefore deferred to the district court's determination that the Wichita Falls Gang Task Force used their training and experience in determining whether Martinez was in violation of the injunction.