California appeals court strikes down ban on carrying pagers
By The Associated Press
10.28.1998
SAN DIEGO — Gang members can keep their pagers after a state appeals court decided the devices cannot be included in court orders prohibiting members from meeting or conducting some other normally legal activities in certain neighborhoods.
An absolute ban on a common, legal communications device goes too far, even though injunctions intended to rid neighborhoods of gang activity have been upheld by the state Supreme Court, the 4th District Court of Appeal said Monday in a case from Oceanside.
“Pagers and beepers are not only used for illicit reasons, but have countless lawful, legitimate and everyday uses,” said Justice Judith Haller in the 3-0 ruling. She said they are used to contact workers in the field and to keep in touch with family members at home.
Even if gang members use the devices to sell drugs, forbidding possession of pagers for all purposes violates their freedom of speech, Haller said.
Similar bans have been included in some other anti-gang injunctions, said Deputy District Attorney Thomas Lovett.
Cities and counties across California have sought such injunctions in the last few years to control gang activity. The court orders typically name certain people and gangs and prohibit them from meeting, associating, drinking, using drugs, or bothering people in a particular neighborhood.
The state Supreme Court upheld such an injunction in a San Jose case in January 1997, ruling that gang members had no legal right to meet in a neighborhood plagued by gang violence. One question unanswered by that ruling was how far an injunction could go in restricting freedom of expression, the issue in the current case.
The court upheld the central terms of an injunction issued last December by San Diego County Superior Court Judge John Einhorn, prohibiting members of Varrio Posolo Locos from meeting with any other member in an east Oceanside neighborhood.
One man named in the injunction, David Englebrecht Jr., was found in contempt by Einhorn in April after being seen with two gang members in the neighborhood, the court said. He was sentenced to five days in jail and fined $1,000 but has remained free during his appeal. Deputy Public Defender DawnElla Gilzean said yesterday that Englebrech denies he is an active gang member.
The court said Englebrecht could be held in contempt for associating with other gang members but not for carrying a pager found on him.
Lovett, who represented the prosecution in the appeal, said the ruling shouldn’t hamper the effort to move gangs out of neighborhoods.
He said it might be possible to meet the court’s concerns by proving a closer connection between pagers and gang activity. He also said another part of the injunction, still in effect, bars gang members from acting as lookouts or using any method — whistles, hand signals or pagers — to warn one another about police.
