By Matt Coker
By R. Scott Moxley
By Charles Lam
By Nick Schou
By Gustavo Arellano
By Gustavo Arellano
By Steve Lowery
By R. Scott Moxley
* * *
By the time the May 7 hearing rolled around, Elizondo and the committee had staged another protest (this time with a barbecue, Danza Azteca and a vigil), appeared on Spanish- and English-language TV news, and on a widely broadcast evening radio news program.
Anderson sat in the juror section of Makino’s courtroom that morning with pursed lips. He listened closely to what Makino had to say—and how he would rule—with regard to the preliminary gang injunction set to be imposed on some 20 defendants.
By hearing’s end, Makino had dealt another significant blow to the DA’s case: He essentially found that the evidence submitted by prosecutors against 15 of the 20 defendants was not sufficient to consider them active gang members and would not be placing them on the preliminary injunction. Regarding the minors, Makino refused to impose a preliminary injunction that would be “immediately voidable.”
After that, Helzer didn’t think much of a routine hearing scheduled for May 14 to file the paperwork for Louis De Herrera’s case. But that morning, Helzer received news from the DA’s office that they were filing to dismiss the ACLU’s five cases and wanted to cancel that day’s hearing. Not sure what was going on, Helzer went down to the courthouse anyway and was stunned to discover that the DA was filing to dismiss 57 other cases—essentially all those who had submitted denial petitions and had been set to go to trial July 6.
“It was quite a surprise to arrive to court that day and discover that, essentially, the whole case had been dismissed,” Helzer says. The DA dropped the cases one day before the evidence the ACLU had requested—dozens of depositions, police documents and other paperwork—was due to be filed in court.
“What we did was we said, ‘Okay, you make all of these allegations; prove it.’ And they didn’t want to be forced to prove it,” says Helzer. The move, although ultimately good for the defendants, was also disturbing, Helzer says, because of how swiftly injunctions have been pushed through the courts in the past. “[The DA] is not willing to follow through once someone voices opposition, stands up and says, ‘No, you’re not going to do this.’”
The DA’s office has now taken the “LA approach” to the injunction: They’ve sued the gang without naming any defendants. The DA’s office will also serve the suit to many in the neighborhood whose cases they themselves once dismissed, but now on the grounds that the police and the DA’s office have officially concluded those people are gang members, who’ll be held to the same probationary terms of the injunction. In an interview with the Weekly late last year, Anderson himself criticized this method: “In LA, they’ll sue the gang, and then they add people, not by going back to court, but simply by serving them. That’s a huge problem. They get the opportunity to object to their gang status only once they’re arrested for violating the injunction,” he said at the time. In other words, individuals can’t object to the police’s claim that they’re gang members until after they’ve violated the terms of the injunction, been arrested and sent to criminal court.
“We didn’t dismiss the cases because we thought we would lose,” Anderson says now. “We proceeded because we thought we would alter the course a little bit and just proceed against the gang,” Anderson says. He tried to minimize the move to dismiss the cases and said it was part of a bigger plan that predated Orange’s protests. After examining the existing five injunctions, Anderson says, the DA’s office wasn’t getting what they’d hoped for by naming individuals, rather than the entire gang, in the suit. “We believed if they were named, when it came to enforcement, it would be real easy because we had already done it. We found that we were, in fact, still having to prove active participation [in a gang] during criminal cases.”
Anderson’s statement that they were attempting to use civil injunctions as a way to make criminal proceedings “easier,” says Helzer, is troubling. “The burden in criminal court is higher than it is in civil court; they have to prove that someone is an active gang member beyond a reasonable doubt,” Helzer says. “This ‘arrest first, then ask later’—that’s not how our system works. It’s the DA who has the burden before they can deprive someone of their civil liberties.”
Although nothing has changed for the injunctions already in place throughout the county, the course of this injunction was altered by concerted, coordinated efforts by both the community and experienced attorneys. For now, individuals such as Miguel Lara, Emmanuel Gomez and Erika Aranda no longer have their names attached to a permanent lawsuit restricting their behavior and identifying them as active gang members for the rest of their lives.