Gang Injunction Gunfight

January 31, 2000

Catherine Bridge (The Recorder/Cal Law) –

In the wake of the unfolding Rampart Station police scandal in Los Angeles, state Sen. Tom Hayden has introduced legislation that would provide indigent gang members the right to public counsel even in civil gang injunction hearings.

The bill — SB 167 — would overturn a 1999 appellate court decision that rejected publicly funded counsel for gang members, and the legislation is supported by public defenders who had petitioned for the right to represent members of the 18th Street Rampart gang in L.A.

SB 167 is up for reconsideration in the Senate today after an initial 18-14 defeat on Friday. The vote, in which six Democrats joined Republicans in opposition, surprised the bill’s author because SB 167 had breezed through several committees and even picked up some Republican support. Hayden believes he can reverse the outcome today and says he will immediately reintroduce the same measure in a slightly different version should it fail again.

During its initial Senate hearing Jan. 11, Hayden had said his bill was not just about the effects of gang injunctions but “about the complete breakdown of checks and balances normally associated with individuals threatened with loss of liberty.” Public defenders say providing counsel will prevent civil actions that are stacked against defendants.

But prosecutors contend the legislation will turn every gang injunction hearing into a lengthy criminal trial and set a precedent for extending the right to counsel to a whole range of civil injunction proceedings. The legislation also faces tough sledding should it advance to the Assembly and Gov. Gray Davis.

In SB 167, Hayden is targeting gang injunctions arising out of nuisance abatement laws. Once, such laws formed a municipal tool routinely used to maintain property values by taking down rickety or rat-infested buildings, going after crack houses, or shutting down red-light districts.

But for the past decade, such nuisance abatement actions have been a controversial, hotly litigated and increasingly popular weapon in the war on gangs, a civil remedy used to win injunctions against alleged members, preventing them from associating with each other in public and engaging in a host of gang-related activities in a specific neighborhood under the threat of jail time for any violation.

For civil rights advocates who have challenged these cases in state courts throughout the ’90s, they are de facto criminal proceedings whose targets have no right to public counsel. For prosecutors and the courts that have backed them, they offer swift and effective help to beleaguered neighborhoods where residents are often so terrorized they dare file citizens’ declarations only under court seal out of fear for their lives.

In the Rampart case, L.A. police officers from the Rampart Station are believed to have routinely perjured themselves to win false convictions and gang injunctions. Twenty officers have either resigned or been suspended since September over allegations that they shot and even murdered suspects, dealt drugs, and planted evidence.

Gang injunctions have been suspended in Rampart-related cases, and dozens of convictions are in question in what is being called the worst police scandal in Los Angeles in 60 years.
‘INVITATION TO ABUSE’
Hayden’s SB 167 flew through its first hearing, backed 4-1 in the Senate Public Safety Committee. In pressing for passage, Hayden labeled gang injunction hearings “an invitation to abuse when no lawyers appear on the other side. … The purpose of an injunction is to create loss of liberty, not just [impose] geographical [restraints].”

That is precisely the argument L.A. County Deputy Public Defender Alex Ricciardulli made when he went into court seeking to represent several 18th Street Rampart gang members in injunction proceedings that stretched throughout 1997 and ’98.

But last March, the Second District Court of Appeal, in Iraheta v. Superior Court, Cal.App.4th 1500, ruled that gang members do not have a right to appointed counsel because they are only threatened with loss of liberty in a future contempt prosecution for failure to comply — and at that point they do have the right to public counsel.

That decision spurred Ricciardulli and the California Public Defenders Association into action. “We were thwarted in the courts, so we’re going the legislative route,” he said.

“To a certain extent, we’ve been vindicated by Rampart,” he added. “If those defendants had had attorneys, the wrongdoing could have been uncovered earlier. It sure would have been nice to do a cross-examination of those officers.”

For him and other critics, gang injunction hearings can be travesties of due process. As he watched the injunction proceedings against the 18th Street Gang, Ricciardulli says, he saw prosecutors, police and probation officers file “telephone-book-sized pleadings” against defendants who may not even have been present — “or if they were, were clueless as to self-defense.”

And because proceedings are one-sided, “injunctions filed are basically prosecutors’ wish lists,” he says. “I can’t think of any other procedure where one side invariably and always gets 100 percent of what [it] asks for: that’s not right.”

At the January Senate hearing, a college student from Upland testified that although he had left his gang associates behind five years earlier, he was named as one of 250 gang members on a recent gang injunction.

But because he worked for UPS, a Teamsters lawyer represented him at the hearing and succeeded in clearing his name. He was one of only two alleged members who even showed up at the proceedings to defend themselves, he said.
DANGEROUS PRECEDENT?
But prosecutors who routinely handle such injunctions say that gang members are more often than not represented by pro bono counsel.

When the City of San Jose sought an injunction against a gang in the Rocksprings area, the defendants “must have been ably represented,” says Carol Overton, a senior deputy city attorney involved in the case, “because People ex rel. Gallo v. Acuna, 14 Cal.4th (1997)] was appealed all the way to the [U.S.] Supreme Court,” which declined to hear it.

The Acuna case, prosecutors say, balanced individual rights with the community’s need for relief by establishing that it was legally valid to prohibit freedom of association among established gang members in a defined geographical area.

In Acuna, Overton says, the court characterized the Rocksprings neighborhood as an urban war zone where families couldn’t let children walk to school and daily shootings were routine. She argues that mandating counsel for dozens of gang members in preliminary hearings will inevitably lead to claims of conflicts of interest among the defendants, creating long delays that will “negate the whole purpose of [prompt] public nuisance abatement.”

She also refutes claims that gang injunctions criminalize a whole host of otherwise legal activities ranging from eating a meal with a friend in a public restaurant to carrying pagers or cell phones to being seen with bottles or even pliers (potential weapons or tools used in car theft).

“These are actions for equitable relief, scrutinized by the judge, and the components we’re asking for have been validated by the California Supreme Court,” Overton said. “By law, the injunction has to be narrowly tailored to prevent the type of harm proven by the evidence.”

That means banning pagers and cell phones from gangs that primarily deal in drugs, according to Martin Vranicar Jr., an assistant Los Angeles city attorney who supervises the gang unit. But in one 1993 injunction against a San Fernando Valley gang that specialized in stealing and stripping cars, the court ordered, according to Vranicar: “Don’t be walking around with car parts unless you have a receipt for them.”

Finally, prosecutors warn that SB 167 will set a dangerous precedent. “What’s the difference between these cases and every domestic violence defendant with a temporary restraining order?” asks Vranicar. If SB 167 passes, he warns, “The equal protection argument will be made against any kind of nuisance abatement or forfeiture process.”

Vranicar is the prosecutor who had to ask — along with the L.A. County DA’s office — for the suspension of the 18th Street Gang injunction. “We worked those two gangs for 18 months,” he said. “It drives me nuts because of what [Rafael] Perez did.” Perez is a former police officer who has confessed to perjury and other crimes in the Rampart case.
MORE BILLS TO COME
But Democratic lawmakers typically weren’t buying prosecutors’ arguments during SB 167′s first committee hearing. “Your argument amounts to ‘If they have counsel, it just makes your job tougher,’” Senate President Pro Tem John Burton told Lawrence Brown of the California District Attorneys Association. “District attorneys love to indict when they don’t have to worry about the niceties.”

For Burton, the only valid counterargument came with the specter of dozens of gang members each requiring a separate public defender. Proponents were able to reassure the committee that a single attorney would represent multiple defendants in most instances.

For Hayden, gang injunctions are not about curbing crime in neighborhoods so much as “a civil device that allows you to get around normal evidence of guilt and the checks and balances of the system to stack up [people] in the California Youth Authority and the prisons,” which, he noted were already bulging with 250,000 prisoners, three-quarters of whom are identified as gang members.

He dismissed the as yet unspecified costs of his bill as minimal compared to the tens of millions likely to be paid out to Javier Francisco Ovando and other police victims in the Rampart case.

But while Hayden struggles to pass SB 167 on the Senate floor, the CDAA’s Brown is confident that if prosecutors do not stop it there, they will in the Assembly, where more moderate law-and-order Democrats constitute a formidable voting bloc. Other opponents are less sanguine, predicting that SB 167 — in some form — has a good chance of reaching the governor’s desk, where they anticipate a gubernatorial veto.

Hayden also plans to introduce a second bill stemming from the Rampart case, based on the plight of Ovando. Hayden’s second bill would prohibit a defendant’s apparent lack of remorse and maintaining of innocence from becoming a factor in lengthening a prison sentence.