gang injunction memo

Richard ProvencherLEG 230

Assignment 5Memorandum for: ACLU

From: Richard Provencher

Re: The Proposed Use of Gang Injunctions by the City of Columbia

Date: November 22, 2013

“In the past thirty years, gang membership and gang-related violence have proliferated across the nation as gangs in urban and rural areas fight for territorial control and market dominance. Today, the U.S. Department of Justice estimates that there are more than 800,000 gang members and 30,000 gangs in the United States. . . . Recognizing that traditional law enforcement techniques alone were insufficient to address the growing problem, leading public officials and residents began to seek new, innovative solutions to slow the spread of gang violence . . .” Lindsay Crawford, No Way Out: An Analysis of Exit Processes for Gang Injunctions, 97 Cal. L. Rev. 161-162 (2009)

The City of Columbia recently announced that it is considering the use of civil gang injunctions and the establishment of “Safety Zones” in an effort to reduce gang related violence and gang related criminal activities in specified areas of the City, such as Five Points. It is interesting to note that this announcement comes only 12 days after the accidental shooting of a USC female student by a suspected gang member firing at a rival gang member in the Five Points area. A very similar situation occurred in San Antonio in 1999 when an innocent bystander was killed by a stray bullet fired from a gun used by a gang member during a drive by shooting. Shortly after this event, residents of the neighborhood organized efforts that eventually led to the establishment of gang injunctions in San Antonio (the first gang injunction in the State of Texas). James Leito, Taking The Fight on Crime from the Streets to the Courts: Texas’s Use of Civil Injunctions to Curb Gang Activity, 40 Tex. Tech L. Rev. 1040-1041 (2008)

“The civil gang injunction is a unique method for reducing the spread of gang-related criminal activity. Gang injunctions enjoin gang defendants from engaging in a wide range of legal and illegal activities within a specified “safety zone” ranging in area from a few city blocks to several square miles. An injunction may include provisions prohibiting gang defendants from engaging in illegal activities such as using drugs and alcohol, discharging firearms, and trespassing on private property. Additionally, an injunction may prohibit otherwise legal conduct, such as freely associating with other gang members and using a cell phone. Gang injunctions are a powerful tool because they grant police and law enforcement personnel the authority “to disperse, or stop and frisk, or take into custody enjoined [gang defendants] whenever they are seen violating one of the injunction's broad provisions.” By imposing fines and possible jail time for smaller offenses, civil gang injunctions are designed to limit more serious crimes before they occur by restricting disorderly conduct. While violation of any injunction is punishable by

1


Assignment 5civil or criminal contempt, violation of a gang injunction is prosecuted as criminal contempt.” Ryan Young, Sharpen the Blade: Void for Vagueness and Service of Process Concerns in Civil Gang Injunctions, 40 McGeorge L. Rev. 1006-1007 (2009)

Gang injunctions originated in California and have been in use there since 1987. Injunctions are currently being used in other cities in California and in several cities in Texas and Utah. Young supra at 1002

This paper will attempt to address the feasibility of the use of gang injunctions by the City to include an in-depth analysis of the effectiveness of such injunctions and the constitutional issues they create.

A. Are gang injunctions effective?

“Gang Injunctions have proven to be one of the most effective legal tools available to law enforcement in suppressing and disrupting the criminal and often violent activities of Los Angeles street gangs and protecting the communities and neighborhoods they terrorize. Because of their success, in both the courts and the communities, there are currently more than 40 permanent Gang Injunctions in place in the City of Los Angeles enjoining the activities of more than 65 criminal street gangs.” Los Angeles City Attorney’s Office Criminal and Special Litigation Branch Gang Injunction Program Guidelines, Office of the City Attorney, City of Los Angeles (2009), .

With the proliferation of gang injunctions as a law-enforcement tool, there has been a debate on the effectiveness of gang injunctions in reducing crime. Few studies have evaluated how effective injunctions have been at combating gang violence and these studies have reached conflicting conclusions. In a 2004 Los Angeles County Grand Jury Report, Los Angeles Police Department statistics showed that “overall gang-related crime fell by 13 percent since 2001, and by as much as 53 percent within the Safety Zones designated in the injunctions”. Crawford supra at 169

A 2002 report by UCLA professor Jeffrey Grogger addresses the effects of several injunctions. After analyzing eight years of data, Grogger concludes that “injunctions result in a 5%-10% decrease in violent crime. But when compared to other “place-based intervention strategies” that focus on small geographic areas, the effectiveness of injunctions is low”. Leito supra at 1053-54

In 1997, a study of the results of a gang injunction in Inglewood, California concluded that there was little indication that the injunction had any positive effects. However, a 2005 study conducted by the same researchers on the effects of injunctions in San Bernardino, California, concluded that the injunctions resulted in less gang presence in the area and reduced fear of intimidation and confrontation with gang members among residents, as compared to a control area. Crawford supra at 169

A 1997 ACLU report analyzed crime statistics both within a Los Angeles safety zone called the Blythe Street Gang zone and just outside of it over a period of eighteen

2


Assignment 5months after an injunction became effective. The report reached two principal findings: (1) a net increase in violent crime in the safety zone immediately after the injunction was issued and (2) an increase in drug trafficking and crime in the areas immediately adjacent to the safety zone. In the words of the report, “[t]he Blythe Street gang injunction failed to achieve its stated objective-an immediate reduction in violent crime and drug trafficking and an immediate increase in community safety” Leito supra at 1053

“In the nine months after San Antonio issued its first injunction, overall crime decreased in the safety zone, although the number of assaults increased slightly. But like the increase in crime in areas adjacent to the Blythe Street safety zone, drug violations, aggravated assaults, and burglaries increased in the area surrounding the San Antonio safety zone. Other statistics indicate that crime dropped 22% in the two months after the issuance of a later San Antonio injunction. Thus, at the very least, the period of time immediately following the issuance of an injunction may be marked by a reduction in crime in the safety zone. Id. At 1054

In March 2011, a study entitled the "Evaluation of the Effectiveness of Gang Injunctions in California" was published in the Journal of Criminal Justice Research (JCJR). The purpose of the two year study was to determine whether gang injunctions reduce crime, when compared to baseline and matched control areas. Twenty-Five (25) gang injunctions from four California counties were evaluated by extracting crime data from court records and police agencies. Calls for service were evaluated for one year, pre-injunction, and one year, post-injunction, using paired t-tests which revealed that gang injunctions reduce crime. This study confirmed that gang injunctions can be a very beneficial tool if used and implemented correctly and that they can have a corresponding impact on reducing gang crime in the communities they are implemented. Matthew O'Deane, Evaluation of the Effectiveness of Gang Injunctions in California, The Journal of Criminal Justice Research (JCJR), March 2011

Clearly, the use of gang injunctions can produce mixed results. As the City of Columbia considers the use of gang injunctions, they should be aware that though gang-related crime in the Safety Zone may decrease, crime in areas adjacent to the Safety Zones can increase as gangs move their activities to other areas of the city. Injunctions are not necessarily a panacea to controlling and managing gang related criminal activity.

B. Constitutional Issues with Gang Injunctions.

Vagueness and Overbreadth

“Gang injunctions are most often challenged as vague and overbroad. . . The injunction provisions most often contested on these grounds are those that limit the enjoined gang members' ability to associate with other gang members, and those that prohibit gang members from annoying or harassing residents. . . . one common concern is that injunctions fail adequately to specify the persons with whom gang members are

3


Assignment 5prohibited from associating” Crawford supra at171 “With regard to overbreadth, a regulation is impermissibly overbroad if it deters a substantial amount of constitutionally protected conduct while purporting to restrict or prohibit non-protected activities. If so, the Court must then evaluate whether the injunction is vulnerable to selective enforcement.” Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 Nw. U. L. Rev 251 (1994)

In the seminal case on civil gang injunctions, the California Supreme Court in People ex rel. Gallo v. Acuna, 929 P.2d 596 (1997) reviewed a gang injunction issued by the City of San Jose which had been contested for being overly vague and broad in scope. The California Supreme Court is the highest court that has ruled on the constitutionality of gang injunctions. The Acuna court ruled that the city’s injunction enjoining gang members from “[s]tanding, sitting, walking, driving, gathering or appearing anywhere in public with any other defendant herein, or with any other known ‘VST’ . . . or ‘VSL’ . . . member” (Acuna supra at 630) was not impermissibly vague as the language in the injunction implied knowledge on the part of the gang member that the person with which he was associating was a fellow gang member. The dissenting justice in the Acuna decision raised a concern that since the injunction did not specify “known by whom?” that the interpretive ambiguity made this provision susceptible to arbitrary enforcement.

Legal commentators have also expressed vagueness concerns about injunction provisions restricting gang members from annoying or harassing residents. However, the Acuna court found that the San Jose injunction enjoining gang members “[i]n any manner confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting and/or battering any residents or patrons, or visitors” Id. at 630-31. . . was not unconstitutionally vague when read in the context of the City's declarations detailing specific types of terrorizing behavior in the Rocksprings neighborhood and the objectives of the injunction. . .”Crawford supra at 172-73

The one time that the United States Supreme Court weighed in on the constitutionality of modern anti-gang legislation it addressed the issue of vagueness in a City of Chicago’s anti-loitering ordinance. The Court held that two provisions of the law were unconstitutionally vague: the definition of “loitering” (i.e. “to remain in any one place with no apparent purpose”) and a provision that empowered police to arrest two or more persons who refused to disperse if an officer had a “reasonable belief” that at least one person in the group was a gang member. The Court found that the provisions provided insufficient standards and problematically vested absolute power in law enforcement. Chicago v. Morales, 527 U.S. 41, (1999). In her concurrence, Justice O'Connor attempted to foreclose the applicability of Morales to civil gang injunctions by emphasizing the “narrow scope” of the Court's holding, and distinguishing the City’s ordinance from laws “requiring loiterers to have a “harmful purpose”, from laws that target only gang members, and from laws that incorporate limits on the area and manner in which the laws may be enforced.” Id. at 67

Another concern for vagueness in enforcing gang injunctions is determining who is a gang member. “Determining an individual’s gang membership is crucial to the success

4


Assignment 5of civil gang injunctions. To prosecute a person for violating the injunction, “it must be proven, beyond a reasonable doubt, that the individual was a gang member at the time of the violation.” Young supra at 1015 (citing People v. Conrad, 55 Cal. App. 4th 896). Also, a lack of an explicit definition hinders those injunction defendants who seek to determine who is a gang member. This lack of certainty regarding gang membership prevents an enjoined person from knowing how to fully comply with the injunction as it forces a defendant to guess whether the individual with whom he is associating is a gang member. Without clear criteria to ascertain who is a gang member, law enforcement agents lack specific standards for determining if an injunction violation has occurred. Leito supra at 1081

The California Court of Appeals in People v. Englebrecht, 106 Cal. Rptr. 2d 738 (Ct. App. 2001) (AKA Englebrecht II) stated that to sustain a civil gang injunction, the state must prove that the individual defendants are in fact members of the gang being enjoined. The court, acknowledging that the Acuna court had not defined gang membership, suggested a definition of: “[A]n active gang member is a person who participates in or acts in concert with an ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of acts constituting the enjoined public nuisance, having a common name or common identifying sign or symbol and whose members individually or collectively engage in the acts constituting the enjoined public nuisance. The participation or acting in concert must be more than nominal, passive, inactive or purely technical”. . Englebrecht II supra at 756-57. Unfortunately, the Englebrecht’s II court lengthy definition does not provide an objective standard of gang membership but simply outlines the type of conduct constituting active gang membership. It merely mirrors the definition of a gang. In the words on one legal commentator, “. . . while the California Court of Appeal was well-intentioned . . . its definition of gang membership muddied the waters.” Young supra at 1016

The City of Los Angeles City Attorney’s Office uses a nine factor standard to determine gang membership. A person must meet two or more of the following criteria to be identified as a gang member for purposes of gang injunctions:

1. The individual admitted to being a gang member in a non-custodial situation;2. The individual was identified as a gang member by a reliable informant or source (such as a registered gang member);3. The individual was identified as a gang member by an untested informant or source with corroboration;4. The individual was witnessed wearing distinctive gang attire;5. The individual was seen displaying gang hand signs or symbols;6. The individual has gang tattoos;7. The individual frequents gang hangouts;8. The individual openly associates with documented gang members; or9. The individual has been arrested, alone or with known gang members, for a crime usually indicative of gangactivity.

5


Assignment 5Id. at FN 153

According to the National Gang Center, only fourteen States have created statutory definitions of a gang member (not including California). South Carolina is among the fourteen states listed but S.C. Code Ann. § 16-8-230 (3) defines a gang member as “an active gang member” but does not define what “active” means. Seven of the fourteen states use a list of criteria, similar to the LA City Attorney’s, some of which a person must meet to be considered a gang member. Of those seven, six states require that a person must meet at least two criteria to be considered a gang member. As one of the six states, the State of Florida defines a gang member as a person who meets at least two of the following criteria:

• Admits to criminal gang membership• Is identified as a criminal gang member by a parent or guardian• Is identified as a criminal gang member by a documented reliable informant• Adopts the style of dress of a criminal gang• Adopts the use of a hand sign identified as used by a criminal gang• Has a tattoo identified as used by a criminal gang• Associates with one or more known criminal gang members• Is identified as a criminal gang member by an informant of previously untested reliability and such identification is corroborated by independent information• Is identified as a criminal gang member by physical evidence• Has been observed in the company of one or more known criminal gang members four or more times. Observation in a custodial setting requires a willful association. It is the intent of the legislature to allow this criterion to be used to identify gang members who recruit and organize in jails, prisons, and other detention settings• Has authored any communication indicating responsibility for the commission of any crime by the criminal gangFla. Stat. Ann.§ 874.03 (cited at http://www.nationalgangcenter.gov/content/documents/definitions.pdf)

Legal commentators recommend including detailed, gang-specific definitions of gang membership in the pleadings of each injunction. Young supra at 1022. “The injunction should incorporate a pre-existing statutory definition of gang membership either on the face of the injunction itself or by judicial construction.” Yoo supra at 250

Though South Carolina law allows the definition of a gang member to be as vague as “an active member of a gang”, the City of Columbia should seriously consider using more detailed and definitive criteria in identifying gang members for inclusion in a gang injunction.

Freedom of Association

The most controversial and effective provision of civil gang injunctions is the “do not associate” restriction. “Do not associate” provisions prevent gang members from “driving, standing, sitting, walking, gathering, or appearing anywhere in public view or

6


Assignment 5any place accessible to the public” with any known member of a gang within the specified safety zone. Although, “do not associate” provisions are subjected to constitutional challenges based on the First Amendment right to free association, California precedents support their validity. Young supra at 1010

In Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), the U.S. Supreme Court distinguished two lines of cases protecting the right to associate-those protecting intimate relationships (intimate association), and those protecting association to exercise First Amendment rights (instrumental association). Intimate associations are relationships with family members or of groups that demonstrate “relative smallness, a high degree of selectivity in decisions to gain and maintain the affiliation, and seclusion from others in critical aspects of the relationship” (Id. at 609) while instrumental associations are relationships with other individuals “in pursuit of various political, social, economic, educational, religious, and cultural purposes.” Id. at 622. Neither intimate nor instrumental associational rights are absolute. These rights may be infringed to serve compelling state interests (emphasis added) Roe v. Wade, 410 U.S. 113 (1973). Roe v. Wade is often cited for justified infringement of intimate association rights and Roberts v. U.S. Jaycees is cited for justified infringement of instrumental association rights. The Supreme Court further elaborated on justified infringements of these rights in a decision involving the rights of protestors at an abortion clinic. In Madsen v. Women’s Health Ctr, Inc., 512 U.S. 753 (1994) the Court stated “. . . the First Amendment does not protect those who would associate with others “for the purpose of depriving third parties of their lawful rights” Id. at 776.

In People ex rel. Gallo v. Acuna, supra, the California Supreme Court reviewed a freedom of association challenge to a City of San Jose injunction. The court noted that there is “no generalized right of social association” under the Constitution and after performing an analysis of elements of intimate and instrumental associations concluded that the gang involved (known as VST) did not qualify for First Amendment protection under rights to intimate association because it did not “inculcate and nourish civilization’s fundamental values.” Nor did the gang deserve protection under instrumental association rights as the gang members were not engaging in protected politically expressive or religious activity. Id. at 609

In two cases, In re Englebrecht (AKA Englebrecht I), 79 Cal. Rptr. 2d 89 (Cal. Ct. App. 1998), and People v. Englebrecht (AKA Englebrecht II), supra, the California Court of Appeals reviewed a City of Oceanside gang injunction non-association provision identical to the provision reviewed in Acuna. Englebrecht I involved an appeal of a preliminary injunction while Englebrecht II was the appeal of the permanent injunction. However, in the Englebrecht cases, the area covered by the injunction was sixty square blocks versus the four block area in Acuna. The appellants in Englebrecht II argued

7


Assignment 5that the non-association provision should be struck down because the Oceanside injunction covered a much larger area and some of the enjoined gang members lived in the area or had relatives who did. The Court of Appeals rejected the arguments and found that “what matters is whether the Target Area in this case burdened no more speech that necessary to serve a significant government interest.” In re Englebrecht, supra at 95. The court noted that the Target Area covered only the gang’s turf, was well defined by distinct boundaries, and was no larger than necessary to abate the public nuisance. The court also rejected the agreement that the injunction burdened gang member’s familial relationships as “The familial nexus is not carte blanche for creating a public nuisance.” Id. at 96. The Englebrecht II appellate panel reviewed the defendant’s second appeal of the injunction and continued to reject the agreement that the injunction imposed unconstitutional restrictions on the enjoined gang members associational right by stating “while the injunction may place some burden on family contact in the target area, it by no means has, in our view, a fundamental impact on general family association.” . . . Any attempt to limit the familial associational impact of the injunction would make it a less effective device for dealing with the collective nature of gang activity.” People v. Englebrecht, supra at 758

As the area of a gang injunction safety zone grows in size, from four square blocks in Acuna, to one square mile in Englebrecht, …., the probability that the injunction will affect gang members' interactions with their families grows. A larger area increases the likelihood that more gang members will live in the enjoined area, will have family who do, or both . . An injunction that impacts gang members' fundamental rights of association with family is not “narrowly drawn to express only the legitimate state interests at stake.” Roe v. Wade, supra at 155. Thus, such an injunction should be rewritten to forbid association in furtherance of illegitimate nuisance activity, not association generally. Eating at a restaurant with one's family is not a public nuisance, but it would be barred by an absolute non-association provision nonetheless. Scott E. Atkinson, The Outer Limits of Gang Injunctions, 59 Vand. L. Rev. 1711 (2006)

In analyzing a gangs’ instrumental associational rights, the Acuna court relied heavily on the U.S. Supreme Court’s opinion in Madsen v. Women's Health Center, Inc., supra, In Madsen, the U.S. Supreme Court concluded that the appropriate test for constitutionality of an injunction is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Id. at 765. In analyzing the burden the associational provisions of the San Jose gang injunction placed on enjoined gang members' First Amendment rights, the Acuna court wrote, “Manifestly, in its activities within the four-block area of Rocksprings, the gang is not an association of individuals formed for the purpose of engaging in protected speech or religious activities.”. . . Given the limited area within which the superior court's injunction operates, the absence of any showing of constitutionally protected activity by

8


Assignment 5gang members within that area, the aggravated nature of the misconduct, the fact that even within Rocksprings the gang members may associate freely out of public view . . . we conclude that this aspect of provision (a) passes muster . . . under the standard of Madsen.” Acuna supra at 616. The Englebrecht I court followed suit in approving the larger injunction at issue in that case. Thus, California courts have concluded that blanket associational provisions pass constitutional muster under Madsen when areas targeted are limited to the neighborhoods in which the gangs have made themselves a public nuisance and in which the gangs are not actively engaging in constitutionally protected activity.

The ordinary nature of the activities typically enjoined by a gang injunction (associating with fellow gang members, displaying gang symbols/graffiti, etc) require authorities operating a gang injunction program to meet a higher burden of proof when enforcing injunctions and in determining the size of “safety zones.” In the words of one legal commentator “[t]hese tripartite requirements of balancing hardships of the parties, meeting a heightened standard of proof of nuisance, and proving a cognizable risk of recurrent violation of residents' rights act to limit the legitimate geographic scope of the injunction to the area directly affected by the gang's nuisance activity.” Atkinson supra at 1708

Authorities should be cautious in wording injunctions too broadly when restricting gang associations and avoid establishing large “safety zones”. “While it may be true that an enjoined gang might not be engaged in (constitutionally) protected activity at the time an injunction is imposed, that circumstance does not change the fact that a broadly worded injunction curtails all future collective protected speech, political or religious activity within the enjoined area. Provisions forbidding all association necessarily include politically motivated assembly, thereby prospectively abridging gang members' First Amendment rights--even if the enjoined defendants were not using those rights at the time the injunction was imposed. A larger target area further increases the burden on gang members' instrumental associational rights; they must travel farther to associate.” Atkinson supra at 1716

Due Process

As gang injunctions are administered as civil proceedings, there is a concern that gang members charged with injunction violations are afforded appropriate protections of their due process constitutional rights. Although injunctions are civil proceedings, violators are held in criminal contempt and are subject to fines or incarceration. There is a concern that violators of these civil actions receive a lower level of procedural protections such as no right to counsel and a lower burden of proof. The U.S. Supreme

9


Assignment 5Court held in Matthews v. Eldridge, 424 U.S. 319 (1976) that due process requires procedural protections even in civil cases. Using a three-part balancing test, a court must consider the nature and importance of the individual interest at stake; the risk of an erroneous deprivation or infringement of that interest and the probable value of additional procedural safeguards, and third, the financial and administrative burdens on the government that the extra procedures would require. Atkinson supra at 1723. One legal commentator argues that the Court’s ruling in two cases, U.S. v James Daniel Good Real Property, 510 U.S. 43 (1993) and Lassiter v. Dept of Social Services, 452 U.S. 18 (1981) suggest that indigent gang members should be afforded appointed counsel at hearings held before the imposition of an injunction instead of having appointed counsel after an injunction is violated and gang members appear at a criminal contempt proceeding. Yoo supra at 255

Ensuring procedural due process in the enforcement of gang injunctions is the requirement to provide adequate notice to targeted gang members. The legal standard used to determine adequacy of notice is the U.S. Supreme Court’s holding in Mullane v. Central Hanover Bank & Trust Co, 39 U.S. 306 (1950). Under Mullane, the appropriate question is 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.” Though California courts have found that naming gangs as unincorporated associations does not violate procedural due process rights, some legal scholars feel that naming gangs as defendants without naming individual defendants does not meet the Mullane court’s guidance. “When no gang members are named in the suit and served with process at all, notice of the suit is not “reasonably calculated” to apprise them of the public nuisance suit against them.” Atkinson supra at 1725.

As officials must assemble detailed information on the gang’s activities in order to secure an injunction, it would be natural for the government to learn the names and addresses of at least some gang members so as to provide them individual notice of an injunction suit. As gang injunctions’ terms often enjoin everyday conduct and the exclusion from “safety zones”, such restrictions can be especially burdensome and should warrant the serving of adequate notice.

In order to ensure that their gang injunction program contains sufficient due process protections, the City of Columbia should strive for serving notice of pending injunction actions on individually named gang members rather than using a broad approach of suing the gang as a whole (as commonly practiced in CA). This not only avoids the risk of police misidentifying gang members when enforcing an injunction but will prevent claims by non-named members (whose gang membership is suspect) of infringement of their due process rights.

10


Assignment 5

Equal Protection

Gang injunctions can also present equal protection issues as injunction defendants are treated differently than non-gang members who participate in the same activities that are banned by the gang injunction. Authorities operating a gang injunction program must ensure that a court presiding over an injunction proceeding is provided sufficient information on gang and individual member activities in order for the court to weigh the public’s interests for protection against gang activity against the potential infringement of a gang member’s constitutional rights. Cathy Wang, Gang Injunctions Under Heat from Equal Protection Selective Enforcement as a Way to Defeat Discrimination, 35 Hastings Const. L.Q. 287 (2008)

Though gang injunctions are considered civil actions requiring only a preponderance of evidence burden of proof, the California Court of Appeals, reviewing a gang injunction appeal in Englebrecht II, noted that this standard may be raised when “particularly important individual interests or rights are at stake.” The court stated that a “clear and convincing” standard for a gang injunction “arises not because the personal activities enjoined are sublime or grand but rather because they are commonplace, and ordinary. While it may be lawful to restrict such activity, it is also extraordinary. The government . . . [must] firmly establish the facts making such restrictions necessary.” In re Englebrecht supra at 751-753. Raising the standard of proof in finding violations of a gang injunction to a standard above that used in a typical civil suit can also strengthen the equal rights protection of gang members.

C. Opt-Out Procedures

Cities using gang injunctions have a constitutional and moral imperative to create a clearly defined and legally valid exit process to help inactive gang members remove their names from gang injunctions. Crawford supra at 163.

Though individuals named in gang injunctions have a legal right, through a court motion, to seek removal from an injunction, few named gang members have been successful in doing so. This may be due to a lack of knowledge or understanding by the individuals, feeling intimidated by the removal process, or an absence of legal assistance resources afforded to indigent defendants. In the interest of equity and fairness, authorities should ensure that any gang injunction program includes an administrative process for a named gang member to request removal from an injunction upon showing substantiated disassociation from the named gang. In response to growing public pressure that gang members who had disassociated from a gang had not been successful in being removed from gang injunctions, the Los Angeles City Attorney’s Office developed a

11


Assignment 5detailed, yet informal, gang injunction removal process where each gang member served with an injunction can confidentially file a removal petition with the City Attorney’s office. The petition must contain adequate evidence of gang disassociation and receive an in-depth review by senior City Attorney officials. Upon recommendation by the City Attorney, gang members may be removed by the presiding court. LA City Attorney’s Gang Injunction Program Guidelines supra at 14-19. A similar process should be instituted by the City of Columbia if it creates a gang injunction program.

Recognizing the growing threat of criminal gangs in the state, the South Carolina General Assembly enacted an act titled the South Carolina Criminal Gang Prevention Act in June 2007. The Act’s introduction section states “The State of South Carolina is facing a mounting crisis caused by criminal gangs whose members threaten and terrorize peaceful citizens and commit a multitude of crimes. These criminal gang activities, both individually and collectively, present a clear and present danger. The State has a compelling interest in preventing criminal gang activity, and the General Assembly finds that the provisions of this act are necessary to maintain the public order and safety.” S.C. Code Ann. § 16-8-210 Section I (2).

The South Carolina Criminal Gang Prevention Act was reviewed to determine how the Act compares with other state statutes governing gang prevention and whether the Act contains provisions that raise potential constitution rights issues.

South Carolina is among fourteen states that have statutes that define a “gang member” (See Brief Review of Federal and State Definitions of the Terms “Gang,” “Gang Crime,” and “Gang Member” (as of December 2012) at http://www.nationalgangcenter.gov/content/documents/definitions.pdf). A review of twelve of the fourteen state statutes (NH, SD, AZ, IL, FL, MS, ID, KS, MI, TN, WA, and WI ) was conducted for comparison with South Carolina’s statute. South Carolina’s Criminal Gang Prevention Act contains many provisions similar to those contained in the other state statutes with two noted exceptions. Most of the states provide a more detailed definition of a “criminal gang member”. Even Arizona’s statutes, which do not have a specific gang prevention law, contain a detailed definition of a gang member. Most of the state statutes reviewed contain specific criteria for defining a gang member. See previous discussion of Florida’s gang statute. South Carolina’s definition of “who is an active member of a criminal gang” in unacceptably vague. Legal commentators recommend the use of specific criteria in defining gang members to avoid the misidentification and erroneous arrest of individuals suspected of gang activity by law enforcement officials. Also, South Carolina appeared to be the only state that categorized the crime of gang membership coercion as a misdemeanor (for first offense). All the other states categorized the same crime as a felony.

In a 2005 article for the South Carolina Law Review, Jay T. Thompson presented text for a proposed South Carolina Gang Prevention Act using language from the California Street Terrorism Enforcement and Protection Act (STEP) which is considered the most effective (and most legally scrutinized) gang prevention/control statute in the nation.

12

http://www.nationalgangcenter.gov/content/documents/definitions.pdf


Assignment 5Some portions of the proposed Act presented in the 2005 article were incorporated into the final Act enacted by the legislature in 2007. However, several key provisions addressed in the STEP Act were not incorporated into the South Carolina Act. The current South Carolina Act omits a specific criteria based definition of a gang member (discussed previously); punishment enhancements for certain types of gang activities and the locations where they occur; prohibition of gang recruitment and criminal gang participation; permitting the use of expert testimony to show that gang activities are committed for benefit and promotion of the gang; prohibition of graffiti; and identifying the use of private buildings or places used by gangs to engage in criminal activity as public nuisances. The amendment of the South Carolina Act to incorporate these missing provisions would strengthen the effectiveness of criminal gang prevention/control programs (such as civil gang injunctions) in our state and ensure such programs can withstand constitutional law tests.

As the South Carolina Gang Prevention Act (and its counterpart in other states) does not specifically address the use of civil gang injunctions as a means of criminal gang control it authorizes cities and counties to adopt and enforce their own ordinances in managing criminal gangs and their activities (S.C. Code Ann. § 16-8-310). The City of Columbia can use the provisions of Chapter 14, Article IV – Offenses Against the Public Peace and Order of its Code of Ordinances to employ nuisance abatement as a civil gang injunction strategy. Columbia, S.C., Code of Ordinances ch. 14, art. IV (2013)

Conclusion

City officials must be careful that in their desire to curb gang activity they adhere to constitutionally permissable standards in enforcing injunctions.

Table of Authorities

13


Assignment 5Statutes/OrdinancesS.C. Code Ann. § 16-8-210 to 340 (2012)Fla. Stat. Ann. § 874.03 (2012)Columbia, S.C., Code of Ordinances ch. 14, art. IV (2013)

Case Law

City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849 (1999)Gallo v. Acuna, 14 Cal.4th 1090, 929 P.2d 596 (1997)In re Englebrecht, 67 Cal.App.4th 486, 79 Cal.Rptr.2d 89Madsen v. Women’s Health Ctr, Inc., 512 U.S. 753 (1994)Matthews v. Eldridge, 424 U.S. 319 (1976)Mullane v. Central Hanover Bank & Trust Co, 39 U.S. 306 (1950)People v. Acuna, 182 Cal.App.4th 866, 106 Cal.Rptr.3d 560 (2010)Roberts v. U.S. Jaycees, 468 U.S. 609 (1984),

Journals

Matthew O'Deane, Evaluation of the Effectiveness of Gang Injunctions in California, The Journal of Criminal Justice Research (JCJR), March 2011

Law Reviews

Scott E. Atkinson, The Outer Limits of Gang Injunctions, 59 Vand. L. Rev. 1693-1733 (2006) Lindsay Crawford, No Way Out: An Analysis of Exit Processes for Gang Injunctions, 97 Cal. L. Rev. 161-193 (2009)James Leito, Taking The Fight on Crime from the Streets to the Courts: Texas’s Use of Civil Injunctions to Curbe Gang Activity, 40 Tex. Tech L. Rev. 1039-1088 (2008)Ryan Young, Sharpen the Blade: Void for Vagueness and Service of Process Concerns in Civil Gang Injunctions, 40 McGeorge L. Rev. 1001-1037 (2009)Jay T. Thompson, South Carolina or South Central? Proposing Comprehensive Criminal Gang Prevention Legislation for the Palmetto State 56 S.C. L. Rev. 735- 752 (2005)Cathy Wang, Gang Injunctions Under Heat from Equal Protection Selective Enforcement as a Way to Defeat Discrimination, 35 Hastings Const. L.Q. 287 (2008)Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 Nw. U. L. Rev 212-267 (1994)

Other References

14


Assignment 5Los Angeles City Attorney’s Office Criminal and Special Litigation Branch Gang Injunction Program Guidelines, Office of the City Attorney, City of Los Angeles (2009)Brief Review of Federal and State Definitions of the Terms “Gang,” “Gang Crime,” and “Gang Member” (as of December 2012) at http://www.nationalgangcenter.gov/content/documents/definitions.pdfGang Prevention Study Committee Initial Report (2008) http://www.statelibrary.sc.gov/scedocs/A3G154/000806.pdf

Wang-Once the prosecution makes a successful showing that the gang's activity constitutes a public nuisance, CivilCode section 3494 authorizes “any public body or officer” to abate the nuisance. [FN23] Civil Code section3491 defines the statutory remedies for a public nuisance in California as indictment or information, civil action,or abatement. [FN24] Based on this section, courts impose the injunction. [FN25] If a defendant violates the injunction,the prosecution can file criminal misdemeanor charges under Penal Code section 372. [FN26] PenalCode section 372 states that any person who maintains or commits any public nuisance is guilty of a misdemeanor.[FN27] Each violation is a separate offense, and may provide strong evidence that he is creating a publicnuisance. [FN28] Rather than bring a misdemeanor charge under section 372, the prosecution will more thanlikely prosecute the defendant for contempt of court. [FN29] Hence, criminal consequences are a great possibilityfor any named defendant on the losing side of a gang injunction case

The prosecuting agency typically alleges in the complaint that the gang and its members have occupiedand used a certain target area in a manner that constitutes a public nuisance under Civil Code sections3479 and 3480. [FN18] Section 3479 defines a nuisance as:

15

http://www.nationalgangcenter.gov/content/documents/definitions.pdf

gang injunction memo

Documents