In the words of Judge Marsha Berzon, suspected members of an Orange County street gang could choose “between refraining from a wide variety of otherwise lawful, constitutionally protected activities, or going to jail, quite possibly for some time.”
They chose none of the above and private attorneys, along with the American Civil Liberties Union (ACLU), filed a class-action lawsuit on their behalf, claiming an injunction against them was overly broad and restricted their constitutional rights. Last week, the U.S. Ninth Circuit Court of Appeals agreed with them (pdf) and U.S. District Judge Valerie Baker Fairbank that the injunction denied them due process and can’t be enforced.
The main sticking point was the inclusion of people in the injunction who were not given an opportunity to respond to accusations that they were members of the Orange Varrio Cypress gang. Court watchers said the ruling did not appear to attack the validity of gang injunctions in general, a tool widely used by prosecutors to control gang activity.
But John Anderson, Orange County assistant district attorney in charge of the gangs unit, disagreed. When the district judge ruled in May 2011, he told the Los Angeles Times, “I think it completely rewrites centuries of injunction law.”
The injunction was originally filed in Orange County Superior Court in March 2009 by OC District Attorney Tony Rackauckas and named 115 people as the most active members of the gang operating in a 3.5-square-mile section in the city of Orange. None of the 115 was allowed to be in the presence of each other, wear gang attire, possess weapons, be in places where alcohol was served or break a 10 p.m. curfew. There are reportedly 12 active gang injunctions in the county.
More than 60 of those named in a temporary injunction showed up in court to protest their inclusion, and the OC district attorney quickly dropped them from the order. The final, permanent injunction included a reference to unnamed “members” of the gang and the police proceeded to make those 60+ subject to its provisions. They were arrested and prosecuted for contempt of court.
The ACLU took the case to federal court and the district judge ruled in its favor in May 2011. The three-judge appellate court unanimously upheld the verdict and Judge Berzon wrote: “Some adequate process to determine membership in the covered class is constitutionally required.”