Defense Submits Closing Statements in Gang Injunction Case

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ganginjunction_catThe defense in the West Sacramento Gang Injunction Case deferred making oral closing comments and instead opted to submit a written closing comment, which they did last week on January 14.

While we tend to believe that the plaintiffs in the case, the Yolo County DA’s Office, failed to prove their case, we nevertheless believe that they will prevail in court.

After all, Judge Kathleen White originally ruled on the preliminary injunction, “it was ‘likely that the Plaintiff would prevail’ at the trial on the merits, i.e. establish, by clear and convincing evidence, that there was an on-going public nuisance in a substantial portion of West Sacramento (primarily the Broderick/Bryte community which the Plaintiff dubbed the ‘safety zone’) caused by a criminal street gang (the ‘Broderick Boys’) that should be enjoined to protect the community from continued offensive activities of the gang; and that, on balance, the benefits to be realized from the injunction outweighed any negative impact (harm) likely to be suffered by Defendants and the community.”

The court further found that members of the Broderick Boys “engage in a pattern of criminal and other deleterious activity that is offensive to the senses, significantly harms the property and persons in the Safety Zone, and substantially interferes with the right of community members to comfortable enjoyment of life and property in the Safety Zone.”

How likely is it that Judge White would overrule her own preliminary ruling?  Toward that end, the defendants have made a strong case, citing “testimony from residents of the subject community to establish that there is no public nuisance throughout the Safety Zone or in any portion of it but, to the contrary, the community is a safe, family-oriented, working-class neighborhood, where the residents do not feel intimidated, harassed, or obstructed, and object to the imposition of a gang injunction in their community.”

This is the first of several articles that will look at the defense’s closing statements and also some of the evidence that Judge White chose not to admit into the court’s official record.

We maintain that while the individual crimes indeed are troubling, for the most part they are just that, individual crimes, committed by individuals or groups of individuals, and that there was no evidence any kind of organized crime effort in West Sacramento.

While crime is troubling, we have remedies in existing law that do not require us to reverse burden of proof and enjoin people from conducting what would otherwise be lawful activities.

In our first article looking at the closing arguments, we look at the defense’s proposed statement of decision.  Here they argue that the community is relatively safe and family oriented and that whatever crimes are committed are isolated acts by individuals rather than in furtherance of a criminal street gang.

The defense begins by identifying the Norteno gang member as part of the Norteno gang that is roughly associated with the geographic area of Northern California, and who adorn themselves with certain colors, articles of clothing and tattoos.

They argue that, in some respects, the war between Nortenos and Surenos is an artificial construct of prisons.

They write, “Recognizing the realities of bitter conflict between incarcerated Northerers and Southerners (“Nortenos” and “Surenos” – largely Spanish speakers from southern California), both county jails, including Yolo County jail, and state prisons determine the affinities of their inmates and ‘classify’ them accordingly upon entry into the institutions, designating Hispanics as either Northerner or Southerner (or using one of the synonyms), and separating them inside the facilities as a matter of security.”

This gets to the point that many individuals carry the designation of Norteno based on prison selection process rather than any real affiliation with a criminal street gang.

They further argue, “The word ‘gang’ has no legal definition and could be used benignly to refer to a group of friends, or negatively to refer to an outlaw organization.”

The defense goes on to cite unreliability of police methods for identifying gang members.

They write, “For this reason, among others, ‘self admission’ as a gang member, or ‘classification’ as a gang member or affiliate is ambiguous and not reliable evidence to establish an interconnection sufficient to make all persons ‘admitting’ membership in a gang [to be] co-conspirators, or vicariously liable for the acts of others’ ‘self admitting’ gang membership.”

Next, they cite the Penal code definition of a gang member as “any group of three or more persons, having a common name or identifying sign or symbol which has as ‘one of its primary activities’ the commission of one or more of the criminal acts enumerated in the statute, whose members individually or collectively engage in, or have engaged in a pattern of criminal gang activity. ‘Active participation’ in any criminal street gang by one who, with knowledge that its members engage in criminal gang activity, and who willfully promotes, furthers or assists in felonious conduct by such gang’s members, is a crime.”

They then argue that the Broderick Boys is not a criminal street gang, primarily due to the fact that the “there is no evidence that the group, if it exists at all as an identifiable organization, has any generally accepted or ‘primary’ activities, let alone ‘the commission of one or more of the criminal acts enumerated’ in the statute.”

Instead they argue that there are individuals who have committed crimes over the years, both individually and in groups.

They further argue, “a relatively few teenagers and young adults in West Sacramento have adopted a style of dress consistent with a broader sub-culture displayed throughout northern California which also includes common tastes in music, hair style, and tattoos.”

Furthermore, they argue that “Whether or not ‘Broderick Boys’ is a criminal street gang is not determinative either of the existence of a public nuisance in West Sacramento or its amenability to being abated by an injunction order.”

Instead they suggest, “A criminal street gang could operate entirely covertly without the public even being aware of its presence, except when crimes or arrests are publicized; conversely, a public nuisance could be caused by offensive activity of legal organizations.”

The bottom line is that “there is no ongoing public nuisance throughout the demarcated ‘Safety Zone’ in West Sacramento, or in any identifiable sub-section of that zone,” as nuisance is defined in the Penal Code.

Furthermore, “Crime, itself, is not per se a public nuisance.”

For example, “Prostitutes strolling the streets, drug sales negotiated openly on street comers or in parks, groups of persons blocking the sidewalks challenging residents, are activities which when affecting ‘a considerable number of persons’ may be public nuisances and potentially abatable if the persons causing the public nuisance can be identified and served.”

Instead they argue, “But the sporadic crimes, albeit disturbing or repugnant, vicious or senseless, committed by Defendants herein and others who may know some of the Defendants and/or other criminals who committed crimes in the proposed ‘Safety Zone’ do not, through their nature or frequency, constitute a public nuisance.”

“Rare instances of graffiti were sighted,” the defense acknowledges, based on a walk-through of the community taken by the court, however they add, “but children at play and a relaxed street life seemed to be the norm in this working-class neighborhood, entirely consistent with the refrain from community witnesses attesting to the small-town feel and family centered community, which drew them to and keeps them living in West Sacramento.”

The defense acknowledges the extent of crimes described in the trial by the plaintiffs.

They write, “Plaintiff presented testimony from a few victims of  violent assaults which were chilling and not only instilled fear in those persons, but inflicted significant physical injuries.”

However, “‘What was not introduced by Plaintiff, however, was testimony from community residents, other than crime victims, who could testify that a significant number of persons in the community were denied the use of public property, obstructed in their free passage or use of such property, or were exposed to indecent or offensive activities caused or created by Defendants or alleged members of the “Broderick Boys” that could be abated by an antigang injunction.”

This is the outcome that that the defendants propose that Judge White find.  In the next few articles we will look into some of their arguments in support of these findings and we will also examine some evidence that Judge White did not admit.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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5 thoughts on “Defense Submits Closing Statements in Gang Injunction Case”

  1. E Roberts Musser

    dmg: “Furthermore, “Crime, itself, is not per se a public nuisance.””

    LOL – see below…

    •”What is the definition of “Criminal Public Nuisance”, it’s elements and are damages required as proof?” California Penal Code § 370 defines the elements of this criminal offense thusly: ” Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance.”
    •In terms of damages, the statutory language is very broad. In other words, there is no requirement for a firm showing such as specific damage to property or person. Rather, the burden of proof on the prosecution is quite light — essentially all that is required is a showing of annoyance or offense.”
    http://www.justanswer.com/criminal-law/3aebs-definition-criminal-public-nuisance-it-s.html#ixzz1BVmoD9FK

    dmg: “While we tend to believe that the plaintiffs in the case, the Yolo County DA’s Office, failed to prove their case, we nevertheless believe that they will prevail in court.”

    Either the prosecution made its case, or it didn’t. Let’s just wait and see, rather than guess what might happen…

  2. Fight Against Injustice

    “While we tend to believe that the plaintiffs in the case, the Yolo County DA’s Office, failed to prove their case, we nevertheless believe that they will prevail in court.”

    If the prosecution failed to prove their case, then I hope that Judge White will do the honorable thing and make a judgement against the gang injunction.

    Hopefully Judge White will take into account all the new information she heard during this five month trial. A strong judge should have the courage to change her/his mind about a previous decision when the evidence presented gives her/him a better picture of the circumstances than was previously known.

  3. E Roberts Musser

    FAI: “Hopefully Judge White will take into account all the new information she heard during this five month trial. A strong judge should have the courage to change her/his mind about a previous decision when the evidence presented gives her/him a better picture of the circumstances than was previously known.”

    Absolutely…

  4. Roger Rabbit

    This injunction has never really been about fear or crime, it has been about politics, money and headlines. The system protects the system. It would have to be very over whelming evidence to get a judge to basically reverse her ruling. The odds of this happening is slim to none and slim less town.

    If she over turns her own ruling it leaves her open to questions of why did she rule for it the first time, why didn’t she do more research on the first one, why it may have been a mistake on the first one and many other slanderous comments which I am sure DA Reisig will dish out freely if she does not rule in his favor.

    However if she rules in his favor, the DA will give her praises for her wisdom and knowledge.

    Gee, let’s see, the DA has access and ability to get in print whatever he gives the papers so she can rule against him and get slammed in the media or she can rule with him and get praise in the media…..since the injunction is not being enforced anyway, who really cares if it passes or not, beside DA Reisig.

    Tough call, wonder what will happen?

  5. E Roberts Musser

    RR: “If she over turns her own ruling it leaves her open to questions of why did she rule for it the first time, why didn’t she do more research on the first one, why it may have been a mistake on the first one and many other slanderous comments which I am sure DA Reisig will dish out freely if she does not rule in his favor.”

    I disagree that the judge would necessarily look bad for withdrawing the injunction. It could easily be argued that things have improved enough now that a gang injunction is no longer needed. In fact, I will bet you a quarter that if the injunction is lifted, this is how the DA will spin it…

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