ACLU News - The Newspaper of the ACLU of Northern California, Mar/Apr 97

High Court Upholds San Jose's Anti-Gang Injunction

On January 30, the California Supreme Court ruled that the City of San Jose may implement civil anti-gang injunctions to penalize non-criminal behavior if committed by alleged gang members in a particular neighborhood. The Court overturned a 1995 appellate court decision in the ACLU case, People v. Acuna.

"The enthusiastic affirmation of anti-gang injunctions by the state's highest court adds momentum to the broad movement in our state and across the country that advocates criminalizing non-criminal conduct, if such conduct is engaged in by people out of favor -- justifiably or not--with the social mainstream," said ACLU-NC cooperating attorney Amitai Schwartz. Schwartz, a former ACLU-NC staff attorney now in private practice, argued before the high court in November that San Jose's anti-gang injunction is unconstitutionally vague and overbroad and targets Latino youths without sufficient proof that they have committed any crimes or harassed residents.

"Simply because these men and women are suspected gang members, they are stripped of a variety of constitutional freedoms, the rights to associate, to assemble and the right to due process. This ruling effectively places law-making powers in the hands of judges instead of the Legislature," added Schwartz.

In 1995, the City of San Jose branded over thirty young Latinos who congregate in the Rocksprings area as gang members and obtained a preliminary injunction, based on public nuisance law, that imposes up to six months in jail or a $1,000 fine for engaging in such legal activities as being seen in public with another "known gang member," talking to someone inside a car, climbing a tree, making a loud noises, wearing certain clothing, or carrying marbles, screwdrivers, pens, pagers and sparkplugs.

Because the injunction came via a civil suit, those declared gang members were not allowed protections ensured in a criminal proceeding such as the right to an appointed attorney, a jury trial or criminal justice standards of proof.

In April 1995, the California Court of Appeal found that the injunction was overbroad and did not sufficiently define the prohibited activities or provide definite standard for police enforcement and ascertainment of guilt. The California Supreme Court reversed and reinstated the challenged portions of the injunction.

The City of San Jose is not alone in implementing such constitutionally questionable injunctions in an attempt stop gang problems. Seduced by the temporary reduction of violence in specific neighborhoods, cities across the state especially in the Los Angeles area, have issued similar injunctions. Forty-eight cities in California submitted an amici brief in the case supporting the San Jose injunction.

In 1994, the ACLU was successful in preventing one such order sought by the City of Oakland. According to ACLU-NC staff attorney Ed Chen, who successfully litigated Oakland v. "B Street Boys," the perceived success of gang abatement injunctions, is not the pivotal issue. "Whether they work in reducing crime or not, they flagrantly violate the rights of groups targeted specifically because of their age, ethnicity and relationships. Illegal searches may also work, but our Constitution doesn't permit them, lest we were to allow the government to impose a complete police state."

In addition to Schwartz and Chen, the team of attorneys challenging the San Jose injunction included the Public Interest Law Firm attorneys Patricia Price and Amanda Wilson; Sara Campos of the Lawyers' Committee for Civil Rights; and San Jose lawyers Dan Mayfield and Stuart Kirchick.

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