When Yolo County Judge Kathleen White allowed the permanent gang injunction to go forward in West Sacramento, one of the key provisions was that now people could be enjoined just by serving them and validating them as gang members. As much as the West Sacramento Police Department had provisions in place to oversee such a process, and as much as they claimed they had no current plans to do so, the possibility that people could be deprived of liberty without the due process of law was in place.
Thus, they cannot enforce anti-gang policies against individuals who are suspected of being gang members without giving each alleged gang member the opportunity to fight that label in court.
According to the LA Times article citing Peter Bibring of the ACLU, “The decision ordering Orange County authorities to respect the due process rights of suspected gang members was the first of its kind in a federal case and should compel all municipalities to assess their anti-gang initiatives for constitutional compliance.”
“The idea that police and prosecutors should be able to take away people’s basic freedoms based on their judgment about who is and isn’t a gang member is completely contrary to due process,” said Mr. Bibring, a staff attorney with the ACLU. “All this ruling says is that people get some kind of hearing.”
How this will impact the West Sacramento Gang Injunction is not immediately clear.
In a 10-page opinion, Federal Judge Valerie Fairbank notes the difficulty with determining just who is and who is not a gang member at any particular time.
She writes, “The testimony of plaintiffs’ experts established that joining a gang is often a ‘fluid process’ in which there is not always a clear point at which a person becomes a member or participant of a gang.”
She concludes, “This lack of clear, objective criteria for initiation into a gang further complicates the determination of who is an ‘active participant.’ “
She adds, “The trial testimony shows that additional procedural protections—such as access to evidence, discovery, and cross-examination—would significantly reduce the risk of error in such a fact-intensive, vaguely defined determination as who is an active gang participant, in particular by helping to distinguish between the parties’ subjective judgments and objective facts.”
She cites an example where “Det. Nigro testified that his determination that one Plaintiff was a gang participant relied in part on field interview cards where an officer had checked a box indicating that the subject was “flying colors/gang attire,” although Det. Nigro admitted that he did not see the clothing and did not know why the officer had checked the box.”
In the case before the federal court, the judge notes, “Plaintiffs were not given pre-deprivation hearings before Defendants subjected them to the Order, especially in light of the dismissals requested by the Defendants.”
She argues that the government has no legitimate interest in failing to provide a pre-deprivation hearing, in other words, a hearing before the individual is enjoined by the injunction.
She writes, “As Assistant District Attorney Anderson recognized, holding an evidentiary hearing before someone is subjected to a gang injunction promotes important government interests, and that allowing only post-deprivation remedies creates “a huge problem.””
While the judge notes that the ultimate effectiveness of gang injunctions is not relevant to the question as to whether a hearing should be required before subjecting a person to one, she does note that there is considerable evidence that studies conflict as to how effective gang injunctions are in reducing crime.
The problem that defendants face in gang injunctions is, “There is no provision for discovery, and the burden is placed on the petitioning individual to demonstrate that he or she is not and has never been an active participant in the gang.”
She adds in the specific case, “Neither does the procedure provide for any right to appeal the decision of the three-person panel. In short, this process strips away many of the critical components of due process, including an adversarial hearing before a neutral decision-maker, prior notice of the evidence, the ability to confront witnesses, and the heightened standard of proof.”
As we understand it, this validation process is similar to the way it works in West Sacramento, where there is an administrative review, but it does not rise to the level of an adversarial hearing in front of a neutral third party who determines facts within the scope of the law. Moreover, the opt-out process places the burden on the petitioner to demonstrate that they are not or are no longer an active member of a criminal street gang.
In the end, Judge Fairbanks rules, “There is no reason that the application of injunctions to non-parties should be categorically exempted from due process scrutiny. In certain circumstances, due process prevents injunctions from being entered against non-parties without a prior hearing on whether they are acting in concert or participation with the defendants.”
She adds, “Defendants’ enforcement of the Order against Plaintiffs based on their purported status as gang members is akin to Defendants attempting to treat Plaintiffs as if they were named in the Order.”
She notes, “Because a gang injunction restricts lawful, commonplace activity, it is an extraordinary remedy and holding, that it must be proven by clear and convincing evidence.”
Judge Fairbanks adds, “Defendants determination as to who was an ‘active participant’ was fact-intensive, based on one-sided and untested evidence and requiring judgmental questions not determined by objective measures. A determination such as this one that is not ‘susceptible of reasonably precise measurement by external standards’ poses a high risk of error.”
She therefore ruled, “Defendants deprived the Plaintiffs, and those similarly situated of their constitutionally-protected liberty or property interests, without adequate procedural protections.”
While this ruling does not invalidate gang injunctions, it may provide those who are not directly named on the injunction the ability to have due process before having their rights curtailed under the terms of the injunction.
The defending district attorney, John Anderson of Orange County argues, “While we understand and accept the court’s ruling, we disagree with it. I think it completely rewrites centuries of injunction law.”
It is doubtless that Judge Fairbanks’ decision would be appealed and that this may not end up the final law.
—David M. Greenwald reporting