By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
“We had the people come from San Juan, and we had them tell everyone exactly what was going on in their neighborhoods [with the injunction]—and it was nightmares. Nightmares,” she says. “That’s how it all started.”
“It” was a legal battle unprecedented in Orange County. For the first time, a gang-injunction process that prosecutors normally wrap up in a few quick months faced vociferous protests and vigorous legal challenges from the affected community—not coincidentally, one of the county’s oldest Mexican neighborhoods. Though the case is still ongoing, the efforts of Elizondo, her neighbors and their attorneys have shown that a community that doesn’t want to be tarred with the gang-injunction brush can get its day in court—and win.
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No matter how you look at them, gang injunctions are big, hairy, confounding legal beasts. In their simplest explanation, they’re civil lawsuits filed by local governments against an “unincorporated association” (the gang) and its “associates” (alleged gang members) that don’t ask for damages or restitution, but instead for the implementation of permanent restraining-order-like prohibitions that carry criminal consequences (jail time, fines, probation) if their terms are violated. In Los Angeles County’s 30-year history of injunctions, only one person has been able to successfully remove himself from such a suit. Tony Rackauckas’ office filed its first injunction in 2006. Now there are five in the county—in Santa Ana, Orange (an earlier one imposed last year on the Orange County Criminals gang), San Juan Capistrano, Anaheim and San Clemente. All of the injunctions name both a specific gang and individual members of that gang as defendants whom law enforcement allege are creating a public nuisance in a specific neighborhood in the community (the “safety zone”)—which the suit seeks to curb by creating restrictions on the basic civil rights of named defendants, similar to probation terms.
Determining who is and isn’t a gang member is wholly at the discretion of law enforcement. Many of the defendants named in the Orange Varrio Cypress suit and similar injunctions in the county are like Emmanuel Gomez: in school, not on probation and only tenuously tied, because of where they grew up, to other people the DA’s office claim are members of the gang. Profiles of named defendants are sometimes only based on police interviews with them in the neighborhood. If officers see that someone is hanging out with someone else they believe is a gang member, they can jot it down in their notes and later submit it in the lawsuit as “expert testimony” without a crime ever having been committed.
“Letting officers decide who is or isn’t subject to the injunction invites abuse and racial profiling,” says Peter Bibring, an ACLU attorney who has long challenged the officer-discretion policy of the Los Angeles injunctions.
This body of evidence is much different from the higher, more stringent burden of proof prosecutors are required to produce in criminal court, where defendants also have access to a public defender. With gang-injunction lawsuits, defendants don’t have a right to a public attorney, not that most people can afford to hire one.
A 2003 injunction filed in Los Angeles targeted 31 members of a south LA gang who had allegedly committed 30 murders in the injunction’s “safety zone” over one year. The OVC injunction targeted 115 people at the outset who had committed not a single murder in the past four years. The lawsuit cited allegations against the defendants of 16 attempted murders, 29 assaults, and a slew of minor drug and graffiti incidents during that span of time.
According to the city’s website and stats, crime is down in Orange: Since 2006, there have been only three homicides; all other incidents—from rapes to assaults to burglaries—have steadily decreased. There were more incidents of violent crime committed in Garden Grove, Huntington Beach, Fullerton and Costa Mesa last year. Yet, according to the claim originally submitted by the DA’s office, “There are more than 115 to 170 active [OVC gang] participants currently on the street or in custody that maintain and continue to enforce the interests of OVC through an ongoing pattern of criminal activity.”
It’s not just about violent crime, but about the perceived “nuisance” a gang association creates in the community, says John Anderson, senior assistant DA in charge of gang injunctions. “It’s a weighing and balancing of the rights of the community to the peace and comfort and enjoyment and safety of the community vs. the rights of association.” Included in the suit are 10 sealed affidavits from community members testifying to the nuisance the presence of the gang creates.
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The 2007 San Juan Capistrano injunction met with some community resistance. Sergio Farias, a San Juan Capistrano resident, organized protests over the injunction, but his efforts fizzled out, partly because very little was done on the legal front to challenge the suit. Elizondo points that the injunction zone in San Juan has a large immigrant population—much like the area covered under the earlier Orange injunction, filed in May 2008.
“I think that was a trial period for the Orange P.D. to see who would resist,” she asserts. “They didn’t do anything about it, and I think that was because most of the parents were Spanish-speaking and didn’t understand.”