Rising gang crime in the 1980’s and 1990’s provided motivation for the criminal justice system to “get tough on crime.” Even living in a smaller community in Ventura County—one doesn’t have to look too far to find crime. In 2009 in the quiet City of Camarillo we had 9 rapes, 62 vehicle thefts, and over 1000 property crimes in all. Motivation to combat crime combined with creativity resulted in the implementation of gang injunctions. Even those who know that gang injunctions exist do not understand how they work (and you will be surprised). In addition, scholars who have studied gang injunctions have found they are not effective against crime. Not only is the efficacy of gang injunctions questionable, their legal legitimacy is tenable at best. Three Supreme Court decision regarding similar schemes indicate that gang injunctions might be invalidated if they are challenged in the Supreme Court.
Issuance of Civil Gang Injunctions (public nuisance run amuck)
A civil gang injunction is created by a lawyer from the County Counsel or District Attorney’s office filing a civil lawsuit alleging that a gang and its members are creating a public nuisance. In California, Civil Code § 3479 defines public nuisance as selling drugs, being indecent or “obstruct[ing] the free passage or use” of public areas. Frequently the lawsuit will name the gang and some of its members, but the lawsuit can be limited to a suit against the gang itself. Usually testimony consists of police officers remarks regarding the gang and a few community members who don’t feel safe. Even if individuals are sued as a part of the gang injunction, since it is a civil action, the state is not required to provide them counsel. So—you can be named in a civil gang injunction suit and you have no right to an attorney.
Service with a Gang Injunction (what due process?)
Once a gang injunction has been issued, police officers can serve it on anyone they want. After they serve it on someone—they are included in the gang injunction and have no scheduled opportunity to fight their inclusion and also have no right to counsel.
What do gang injunctions enjoin?
A copy of activities typically enjoined by a gang injunction is available here. It prohibits being present in public with another gang member or gang “associate” (whatever that means). It prohibits riding a bike recreationally. It prohibits loitering (standing on the corner). Most of the activities prohibited by gang injunctions are not illegal activities in and of themselves.
Civil Injunction With Criminal Penalties
Although gang injunctions are civil, violating them is contempt of court—a crime punishable by up to 6 months in jail and a $1000 fine. Violators are afforded counsel for the first time when they are charged with violating the injunction. If violators plead guilty (in order to get probation and not jail time) they have effectively admitted they are a member of a gang. In any future injunction or other action—the prosecution can use their previous plea as proof of gang membership and they can be estopped from denying gang membership in the future. When gang sentencing enhancements can increase sentences up to 20 years, a plea bargain for a simple gang injunction can have sweeping effects.
Efficacy of Civil Gang Injunctions
One of the best studies on the efficacy of gang injunctions was done by Jeffrey Grogger of the Harris School of Public Policy at the University of Chicago. His study concluded that injunctions reduced violent crime by 5 to 10 percent. However, he only followed these affects for one year. Jeffrey Grogger, The Effects of Civil Gang Injunctions on Reported Violent Crime: Evidence from Los Angeles County, 45 J.L. & Econ. 69, 89 (2002). The ACLU of Southern California studied the efficacy of the Blythe Street injunction in Los Angeles and found that not only did in not result in a crime reduction—it increased crime in the neighborhoods surrounding the injunction. Author Beth Caldwell’s article on gang injunctions makes recommendations for making gang injunctions more effective and fair. These recommendations include: 1) creating a way for people to “get out” of injunctions after being included, 2) create exceptions for non-criminal behavior like recreation, 3) exempting non-criminal activities between family members (like a father and son walking down the street), 4) creating a mens-rea (intent) requirement for a violation to occur, and 5) ending the practice of adding additional people to the injunction without a hearing. Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 249 (2010).
Supreme Court Decisions
Papachirstou v. Jacksonville (1972): Vagrancy ordinance which outlawed “wandering or strolling around from place to place without any lawful purpose or object,” was declared unconstitutionally vague.
(Void for vagueness)
Kolendar v. Lawson (1983): Law that allowed police to demand identification and an accounting of one’s whereabouts when a person was “loitering or wandering” was unconstitutionally vague because it gave excessive discretion to the police.
(Void per arbitrary enforcement—too much discretion)
City of Chicago v. Morales (1999): An ordinance’s vague definition of “loitering” and the resulting lack of notice it provided made it unconstitutional.
(Void per arbitrary enforcement—too much discretion)
Why No Challenges?
One need not be a legal scholar to see that gang injunctions could be challenged on the grounds that 1) they are not effective, 2) they are void for vagueness, or 3) they are arbitrary because they give police too much discretion. Why hasn’t anyone challenged a gang injunction and brought these arguments before the Supreme Court? The socioeconomic class impacted by gang injunctions does not have the resources to combat their use. In addition, the lack of a right to counsel until one has been charged with a violation is generally too little too late. Every politician wants to look tough on crime. Every citizen wants to feel safe. Although politicians may win votes and citizens sleep better at night, gang injunctions are causing more harm than good and are probably unconstitutional.