By Peter Maguire
By Charles Lam
By Charles Lam
By Andrew Galvin
By R. Scott Moxley
By Gustavo Arellano
By R. Scott Moxley
By R. Scott Moxley
The residents of Barrio Cypress in Orange refused to let the DA’s office slap a gang injunction over their neighborhood without a fight
At about 7:30 on the cool morning of Feb. 23, Emmanuel Gomez arrived on the doorstep of Yvonne Elizondo’s office on Batavia Street in Orange. The shy, baby-faced high-school sophomore with a habit of dressing in collared shirts and pressed slacks didn’t know where else to go. He clutched a 6-inch-thick stack of documents under his arm and sat on the curb.
Before sunrise that day, police had jolted him awake with whacks on his front door. A pulse-pounding commotion had followed, with blinding flashlights and a din of deep voices. His name was called out, and then the daunting packet was dropped into his hands. His mom was crying. She was asked to sign something; Gomez told her not to sign anything.
Elizondo arrived at her office around 8:30 that morning. The community activist remembers that Gomez was groggy, frustrated and “all pissed-off.” She wondered what the cops wanted with him: soft-spoken, hard-working, gang-tattoo-free, with no violent criminal convictions on his record. He had a few misdemeanor charges from when he was younger, but those were dealt with. He wasn’t on probation; he’d made the honor roll in his alternative-education program and often talked with Elizondo, his case manager at the Bridge—the non-profit she works for that serves at-risk, low-income young people—about his dreams of becoming an engineer.
“Then the rest of them started trickling in,” says Elizondo. “They were confused and asking, ‘What is this?’”
Soon, the small conference room was crowded with teens and parents, all clasping the same fat packets, telling of similar SWAT-team scenarios and pleading with her for an explanation.
More than 100 people received that same rude awakening that morning from teams of gang-unit specialists, police officers, sheriff’s deputies and district attorneys. The preliminary injunction against the Orange Varrio Cypress (OVC) gang had been served.
Law-enforcement gang units and the DA’s office say that when serving these special lawsuits, they plow in like they’re doing a drug bust because the defendants are people whom they’ve determined to be active, potentially violent, criminal gang members. The goal is to surprise them with the suit, lest they plan any retaliatory attacks, skip town or, worse, reach for a weapon.
In this case, many instead reached for Yvonne Elizondo. Part den mother, part feisty provocateur, Elizondo came of age in Orange in the 1970s and has a long track record of youth advocacy and outreach.
Flummoxed, Elizondo leafed through the packets—and then looked into the pleading faces, many of them Bridge regulars whom she often affectionately refers to as “my kids,” “my girls” or “my guys,” and delivered the bad news.
“I said, ‘Well, as far as I can tell, they’re suing you guys,’” she says. “They said, ‘For what? We ain’t got no money.’ I said, ‘No, no. What they’re trying to do is they’re trying to put you on a gang injunction.’ They said, ‘What’s a gang injunction?’”
Everyone spoke at once. She felt like she’d been kicked in the stomach: She knew many of their stories intimately—how they’d busted their butts to go back to school, get their degrees, beat their addictions, volunteer, secure full-time jobs, turn their lives around.
“You know they’re doing well, you know they’re going to school, you know they’re going to college, you know they want to change their lives, and they say, ‘God, Yvonne, see? Now we can’t do it,’” she says. “And this is why.”
Elizondo knew these people. She knew that Erika Aranda, a young single mom who had frequented the Bridge, had never been convicted of a crime. Aranda had an uncle who had once been involved with the gang, and she knew some kids in the neighborhood whom the Orange Police Department alleges are gang members; those were the reasons given in the court documents for why Aranda was deemed a gang member.
She knew that the three De Herrera brothers—who are in their 30s and 40s—were too busy taking care of their ailing parents and their young kids, as well as volunteering at a local boxing gym and at church, to be participating in gang activity. She knew Gomez was on top of his homework and grades and that Miguel Lara worked full-time to help his mom and was excited about attending Santiago Community College. There were dozens more like them: people she worked with directly or had known for decades whom she knew were not actively leading criminal gang lives and terrorizing residents, as the lawsuit alleged.
“I decided we had to have a community meeting to explain all this,” Elizondo says. The following evening, she offered a more detailed explanation: Those named in the lawsuit were being sued in civil court by the DA’s office because they and the Orange P.D. had determined they were all active members of OVC—a gang the police allege has long claimed the historic Barrio Cypress neighborhood where a lot of them had grown up. Her familiarity with injunctions was limited to a story she’d read in the Weekly about San Juan Capistrano’s injunction (see “South Side Story,” Jan. 30) and some scattered news reports.
“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.
* * *
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.
* * *
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.”
Barrio Cypress, which extends outward from the 400 block of North Cypress Street, not far from Old Towne Orange, is home to generations of Mexican-American families who’ve been working and living in the area since the early part of the 20th century.
“We know our rights,” Elizondo says of her neighborhood. “A lot of people [here] are second, third, fourth generations born here now. So that’s why they said, ‘What can we do? We need to do something.’”
Elizondo is energetic, candid and aggressive, her voice raspy from smoking and her edges frayed just enough to foster trust between herself and the young people with whom she works. As a kid, Elizondo split her time between the Barrio Cypress in Orange and Santa Ana, attended and volunteered at St. Joseph’s Church in Orange, and considered becoming a nun; she attended Cal State Fullerton in the early 1970s, but she had to drop out to help her family financially. She later turned down a chance to go to UC Berkeley because her mom lost her house; instead, she wound up moving to Arizona, where she eventually earned her Bachelor of Arts in Behavioral Science from Western University and worked on an American Indian reservation for several years.
Now, she’s raising three kids alone; sits on the Santa Ana Youth Council; and laughs at the way her mild dyslexia tends to surface when she’s composing her ardent e-mails to lawyers, city officials, media outlets and other activists. Her years of work with disenfranchised Native American teens in Arizona and recovering alcoholics and at-risk teens in Santa Ana and Orange have taught her to live what she preaches: Shrug off what holds you back, and keep going.
To deal with the injunction, Elizondo began holding weekly evening meetings at her offices, which overflowed with worried parents and perplexed defendants. She delegated research tasks; the group created targeted committees that would focus on outreach, research and planning. They named themselves the Orange County Youth Injunction Defense Committee.
“We all met together, about 100 people, and we said, ‘First of all, we’ve got to get this judge off here,’” she says of Superior Court Judge Daniel Didier, who had presided over and approved the five other injunction cases in the county. Committee members went to the California Courts Self Help Center website (www.courtinfo.ca.gov/selfhelp/lowcost/help.htm), where they discovered they could petition for his removal.
The other thing everyone named in the suit needed to do, Elizondo says, was figure out what had to be done legally to object to the allegations and fight the inclusion of their names on the preliminary injunction (the first step in the legal process, which, if approved by a judge, imposes the terms of the injunction on defendants soon after the suit is served). Stopping their inclusion on the preliminary injunction was critical to halting their being named on the permanent one. The first hearing date for the preliminary was set for March 27; their research told them that their petitions had to be filed in the courthouse by March 16.
The group was hungry for legal representation, but no one could afford a lawyer. Elizondo began writing letters to the ACLU and well-known law firms, pleading for pro-bono assistance. “I wrote a letter to Hector [Villagra of the ACLU] straight from the heart, man. That’s all I know,” she says, with one of her room-devouring laughs. But time was short, and they had to move on the court petitions, even if they still had a lot of questions and no counsel.
On the eve of their deadline, 100 community members met at the local American Legion (which donated its space) and got down to work. “We brought typewriters, pens, note pads, staplers, everything,” says Elizondo. The group worked late into the night, helping one another sort through paperwork and get packets together. The next day, the groups of volunteers rotated in and out of the courthouse all day, filing paperwork. By early afternoon, says Lisette Gonzales, a longtime Orange resident who became an active committee member and was helping her son and her niece fight the injunction, the clerk said no more petitions were necessary: The request to have Didier removed had been granted.
“It was like they [the clerks] didn’t know what hit them,” Gonzales says. “We couldn’t believe it. We were like, ‘Are you sure? Are you sure?’”
Those whose petitions of denial were accepted had their court dates rescheduled from March 27 to April 10—which bought them time to find representation without being named to the preliminary injunction. “We were the first ones to ever have a judge removed from the case—a major victory,” Elizondo says. “And we didn’t have any lawyers then, either!”
Around that time, Elizondo contacted the media and sounded the alarm over the community’s anger at the inclusion of acclaimed Orange-born muralist Emigdio Vasquez’s large master’s-thesis mural in the injunction as a work that “promoted and glamorized” gang violence (see Gustavo Arellano’s “A Brush With the Law,” April 8). About a week later, the group held a protest at a park that earned them coverage on local television news and in The Orange County Register. Momentum was building, and Elizondo continued with the weekly meetings. Privately, she was also adjusting to life without her 14- and 22-year-old sons.
“The cops started cruising by my work about a week after the protest. I saw that they were harassing my clients, and I thought, ‘Man, they’re going to do something with me,’” she says. “If they don’t get to me, they’ll go after my sons.” She decided to send them to live in other parts of the county while she fought the injunction.
* * *
Days before the rescheduled preliminary-injunction hearing, Elizondo was fretting: She and the committee had still not managed to secure legal representation for the 62 defendants who had been granted extensions. (Those who had either not filed petitions or had been rejected were placed on the preliminary injunction; the handful of defendants already serving time in prison were taken off the injunction after the committee filed petitions on their behalf.)
Then four days before the hearing, Elizondo was told that the ACLU would be taking on the injunction case—the first time it had done so in Orange County—but for only five clients because of the complex nature of the suit and the office’s limited resources. It was a bittersweet victory, but nevertheless significant.
“We’ve never had anyone come to us directly in the time period that is adequate for us to respond,” says Belinda Helzer, one of two staff attorneys who took on the case. Usually, she says, the tiny ACLU office in Orange County only finds out about local cases after the preliminary or permanent injunctions have been issued, when contesting and fighting the injunction at trial is virtually impossible. “This is the first time that you’ve seen a groundswell in the community where they’re saying, ‘We don’t want this in our community, and individuals served are not gang members.’” Although they were only taking five clients, they planned on making arguments that would set a precedent for everyone wrongly named to the injunction, Helzer said.
But that still left 57 other defendants with no real representation. Elizondo kept pleading and making phone calls, and found out the night before the hearing that prominent civil-rights attorney David Haas would be taking on four more cases, including Emmanuel Gomez’s.
* * *
Superior Court Judge Kazuharo Makino’s second-floor courtroom was packed on April 10. At least a dozen armed sheriff’s deputies loomed over mostly young, nervous-looking kids in pressed shirts, dress shoes and the occasional tie. Makino was the new, no-nonsense, slightly impatient judge who had been assigned to the case. DA Mike Hernandez, who oversaw the case of the first injunction issued in Orange, seemed irked and a little perplexed. Makino had just peppered the prosecution with a series of questions involving minors that could undermine the DA’s attempt to include in the injunction kids who didn’t have access to legal representation. The minors, if not represented formally by a guardian (which involves an application process through the court), cannot obtain an attorney. And without an attorney and legally appointed guardian, the injunction is voidable.
“A judgment against a minor is voidable by the minor at any time,” Makino told prosecutors. “So why should I issue a preliminary injunction that is immediately voidable?”
Hernandez and another prosecutor were stumped and attempted to make logical arguments against Makino’s declaration, but they ultimately agreed to allow more time to review the legal code and have the juvenile cases heard on May 7.
Makino also decided that five defendants should be completely dismissed from the lawsuit based on the lack of evidence presented in the DA’s claim. When Makino asked prosecutors if they had any objections to the dismissals, they said no.
“I think the release of those five people with absolutely no opposition from the DA is telling,” Belinda Helzer said after the hearing. “Clearly, the DA’s office and the police department aren’t very good at determining if they’re active gang members. They filed a complaint that said they were active members, and the judge said no. . . . If these individuals hadn’t taken it upon themselves to file the opposition, and if other attorneys hadn’t gotten involved,” they might have easily been included in the injunction, she notes.
* * *
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.
Back at the office that day, Elizondo was elated, but also guarded. “It’s a big deal, but we have to be cautious. They’ll be looking at other ways to do this because they look bad now,” she says. “But we have to keep on going. Communities need to see that they can come together and stand up to these gang injunctions.”