Jay-Allen Eisen who is one of several defense attorneys representing some of those named as alleged Broderick Boys said:
“These (gang injunction) cases seem to be coordinated. The complaints look pretty much the same around the state… “They all ask for the same thing, so as the court rules one part of one of these injunctions is okay or is bad, that affects the other cases… They don’t tell you what ‘outside’ means. In your own front yard, in your own backyard? The curfew language is so vague that nobody can understand it.”
As I have suggested for sometime on this blog, the West Sacramento Gang Injunction pushes up against constitutionality by its very nature. Instead of trying people for what they have done and can be proven to have done, it attempts to somehow distinguish people in advance and then permanently enjoin them for participating in activities that are permissible to all other citizens.
The problem now is that in order to cover a broad range of activities, the laws have had to be very vague. This had led to legal challenges and portions of laws being thrown out.
For instance, the last gang-injunction was so broad that it only named one individual by name and that individual did not even live in West Sacramento. So the individuals affected eventually by the injunction had no opportunity to challenge it in a court of law.
They also used a portion of the law known as unincorporated association in order to tie gang members together in some sort of common bond, again as a means to make their very association illegal and thus enjoin them from specific activities.
The tragedy of all of this is that there are enough laws on the books already that make gang activities illegal. The difficulty apparently with following those laws is that they have to actually wait for a crime to be committed and then to convict an individual in a court of law.
It would seem to me that if you want to use the law as a preventative rather than reactive measure here, then you simply need to prove with the burden of proof on the prosecution that the individual is an actual and current gang member and if you can prove that, then you have a good chance of having the law upheld.
There seems to be resistance for that. Proponents of this and other gang injunctions have argued that the law has worked and reduced crime. I would counter that the law does not work when it gets repeatedly thrown out by various courts.
And having laws that are written vary similarly are a double-edged sword. On the one hand, there is clearly a joint and collective understanding of how laws need to be written in order to pass constitutional muster.
On the other hand, what we see here is that a law that is thrown out in one location, affects many other locations. When the West Sacramento law got thrown out last summer primarily due to a failure to properly notice defendants, another clause–the unincorporated association clause–got thrown out as well which caused a number of jurisdictions to face either similar challenges or to hastily re-write their laws.
In the end, attempts to skirt constitutional protections put both law breakers and law abiders in peril.
Critics have argued that some of those specifically named are not involved in criminal activity or gangs. Some have turned their lives around. Others are already in prison.
So while there are many who swear by it, one has to wonder if they have actually achieved what they have hoped to achieve and in the meantime, they have to re-write the law yet again–probably not for the last time.
—Doug Paul Davis reporting