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Gang injunctions face federal test in OC, skepticism in Oakland

November 19, 2010 | Joshua Emerson Smith


On fronts in Southern California and the Bay Area, the increasingly popular use of legal injunctions to isolate gang members faces a test for its survival.

The ACLU is suing the Orange County district attorney’s office, accusing it of abuse of power and subversion of due process in a gang-injunction lawsuit that went to federal court this week. At the same time, Bay Area officials are expanding the use of injunctions, despite statistics that suggest the approach might not be working.

Since the '80s, gang injunctions have been a popular tool with law enforcement officials looking to get tough on crime. These injunctions are civil restraining orders, restricting individuals from, among other things, going out after 10 p.m. in designated “safety zones” and associating with other people on the list. Violation of a gang injunction can result in fines and jail time.

Recently, Orange County District Attorney Tony Rackauckas found himself entangled in a lawsuit with the civil liberties group after bringing an injunction against 115 people in 2009.

About 62 of the individuals sued by the DA showed up in court to contest the charges. The ACLU defended five of them, a few others hired private attorneys, and the rest (including several juveniles) represented themselves. In such cases, the accused are not provided public defenders. And anyone who doesn’t show up to court is subjected to the terms of the injunction by default.

Rackauckas dismissed the charges against the individuals who showed up, but continued with a lawsuit against the gang in general. One person was chosen by the DA to represent the gang. That person failed to challenge the suit, and the gang injunction was put in place on almost all of the defendants.  

The ACLU decided to countersue the district attorney for “having intentionally deprived these individuals of their day in court,” said Hector Villagra, Legal Director with ACLU of Southern California. 

The Orange County DA "preempted any judicial determination as to whether these individuals, most of whom had no attorney representing them, should be subject to the permanent injunction,” he said.

The ACLU was representing the individual named as the leader of the gang and they “declined to appear on behalf of the gang,” said John Anderson, Orange County assistant DA.

“The procedure we used was allowed by law," he said. "It was acknowledged by them in the state court and yet they did nothing about it. So we don’t know why we’re in federal court.”

While LA wrangles over legality, injunctions have been popping up all over the Bay Area, KALW’s Crosscurrents reports.

Last September, San Francisco approved its fourth injunction and Oakland is moving forward with plans for its second. Public support for the tactic has been mixed.

But controversy recently flared when The Bay Citizen reported that in the six months since the Oakland injunction was first put in place, shootings and killings within the 100-block “safety zone” doubled, compared with the same time period last year.

Oakland City Attorney John Russo called the statistics “illogical” in a recent interview with KQED news. Both Russo and San Francisco officials argue the way to measure the effectiveness of an injunction is to look at whether those on the list are committing crimes. Russo points to the fact that, with one exception, none of individuals have been arrested since the Oakland injunction was put in place.

But anti-injunction activists ask, if violence in safety zones continues despite the inactivity of alleged gang members, can the public be sure the police have the right people?

Michael Siegel, an attorney who has been following Oakland’s gang injunctions, says no. He says Oakland’s latest injunction has already named at least one person who is obviously not a gang member.

Russo "appears to have recklessly relied upon erroneous and outdated information in violation of the defendants’ due process rights," he said. "We hope that the city attorney will take heed of the ACLU’s actions and withdraw the unjust Oakland injunctions."

In the face of recent protest, Oakland law enforcement officials have already taken steps to partially remove one of the people on their newest list. But in general, they maintain those targeted are genuine gang members and point to an overall drop in crime as evidence the program is working.

Opponents, however, point out that while overall crime has dropped, shootings in the city are up 13 percent this year.