However, the 3rd District Court of Appeals ruled that Reisig failed to properly notice individuals who would be served with lifetime bans on activities that ordinary people could partake in. In the decision, the court ruled the district attorney failed to “demonstrate that service on one gang member of unknown rank was reasonably calculated to achieve notice in this case” and therefore this was a violation of the federal due process standard.
District Attorney Reisig had reasoned that by telling one individual, word would spread to the rest of the gang. However the judge ruled, “Whether he would tell others was a matter of chance.”
The Sacramento News and Review is reporting that other district attorneys are now concerned that the ruling in this case will threaten their case. Last month, the California District Attorney’s Association attempted unsuccessfully to get the California State Supreme Court to “depublish” the opinion.
As a published case, the ruling binds all courts in the state until and unless it is “depublished” or another Applellate District Court has the same issue come before it and decides it differently. The latter becomes a “split in authority” that only the Supreme Court can settle. Depublishing removes its affect on anyone except the parties to the case.
The News and Review article cites Ventura County Special Assistant District Attorney Mike Schwartz. Unlike Reisig, Ventura County did their job adequately, noticing 65 alleged gang members and also printing notice of the injunction in the local newspaper, according to the News and Review.
Now it seems that despite their dutiful efforts at noticing alleged gang members, their policy is in jeopardy due to another error that Reisig made that was uncovered due in large part to his failure to properly notice alleged gang members.
In addition to the failure to notice, “the Yolo County DA goofed when it defined the gang as an “unincorporated association” under state law, according to the appellate ruling.”
The “unincorporated association” law in California allows for such status when two or more people associate for lawful purposes. The court ruled that since gangs serve no lawful purpose, that the unincorporated association law does not apply.
Many District Attorneys disagree with this ruling arguing that gangs do have lawful purposes such as hanging out or socializing. However it is unclear that those purposes are sufficient for this status. The primary purpose of gangs is for members to associate primarily for unlawful purposes.
According to the News and Review, prosecutors have increasingly relied upon the “unincorporated association” status as a means to enjoin gang members from activities. In fact, “32 gang injunctions against nearly 50 gangs around the state” have used this definition of “unincorporated association” as their principle means by which to gain injunction.
“Thus, by playing fast and loose with the notification process, the Yolo County DA may have exposed the vulnerability of the very foundation of gang injunctions.”
The consequence of this is that defense attorneys will use this ruling to attempt to strike down gang injunctions in other locations.
By attempting to short-circuit the notification process, Yolo County District Attorney Jeff Reisig may in fact bring down the entire gang injunction system in California and prosecutors everywhere may have to go back to the drawing board to design the next tool for fighting gangs. All of this happened primarily because Mr. Reisig had the temerity to attempt to notice only one individual. Had he not, the judge likely never would have looked at the “unincorporated association” clause.
—Doug Paul Davis reporting