Is It Justice or Just Us?

Questioning the Constitutionality of Civil Gang Injunctions and Sentence Enhancements

By Monica Burke

In 1986 it was estimated that there were more than 600 active gangs in California (Libman, 2012). Between the years of 1981 and 2000 there were reportedly 10,000 gang related crimes committed in California primarily in Los Angeles County (Libman, 2012). Further research claims that more than 3,100 murders in Southern California were linked to gang members (Thompson, 2007).

Legislators claimed that California was in a state of crisis and subsequently passed several “tough on crime” policies such as the Anti-Drug Abuse Act of 1986, the “Three Strikes Law,” and the Street Terrorism Enforcement Protection Act of 1988 (STEP). Although, all of these policies have disproportionately affected vulnerable populations, the implementation of the STEP act has vast unintended consequences that have resulted in the extreme deprivation of liberties and freedom.

Civil Gang Injunctions

There are several factors that make the STEP Act particularly dangerous to individuals and the community. Statutory law created by the courts attempt to provide interpretation and enforcement of civil laws regarding public nuisance, namely civil gang injunctions (CGI). A CGI is a civil court order against an individual or a group of individuals that restricts their behavior and grants law enforcement more power such as allowing officers to detain individuals before a crime has been committed (O’Deane, 2007). California civil code defines a nuisance as an injury that results in the interference with the comfortable enjoyment of life or property (Shiner, 2009). Behavior that is considered to be indecent or offensive to the senses is considered to be a nuisance (Shiner, 2009). A public nuisance is one considered to affect a neighborhood, community or considerable amount of people (Shiner. 2009). The California Code of Civil Procedures authorizes prosecutors to bring public nuisance actions in the name of the people seeking indictment, information, a civil action or abatement (Shiner, 2009). If the interference is found to be both substantial and unreasonable then abatement of a nuisance may be issued in the form of a court ordered CGI (Shiner, 2009). The courts determine an interference to be substantial if “normal persons” within the “locality” are substantially “annoyed” or “disturbed” (Shiner, 2009). Although there may be no actual harm resulting from an individual’s behavior, apprehension of injury may be considered a nuisance (Shiner, 2009). Thus a CGI may be obtained by law enforcement without criminal conduct, actual harm or plaintiffs to bring suit.  Also, the description of what is considered a nuisance is vague and subjective to what “normal persons” deem to be “indecent” or “offensive.”

A CGI, similar to a restraining order, requires only the civil standards of proof be applied: reasonable suspicion or strict scrutiny (Shiner, 2009). The courts have determined that the community’s interest should outweigh the harm to the defendant stating that the provisions “ought to be relatively easy for a law abiding citizen to obey” (Shiner, 2009). These provisions include court orders not to associate with other “known gang members,” not to be knowingly present around firearms or drugs, not to drink alcohol in public places, a 10:00 pm curfew and other provisions the court deems necessary such as wearing specific clothing or displaying gang signs (Shiner. 2009). CGIs also establish areas that individuals are banned from known as “safety zones” (Shiner, 2009). Failure to adhere to the provisions of the CGI is considered contempt of the court and is subject to criminal charges (Shiner, 2009). These provisions may be difficult to adhere to for individuals living in neighborhoods infested with crime or those who have family or friends considered to be “known gang members.” Further these provisions violate an individual’s first amendment right to free association.

However the United States Supreme Court found that an individual’s right to free association is limited to expressions that have “intrinsic intimate value that is instrumental to religious or political expressions” (Shiner, 2009). The courts argued that living in a particular neighborhood or family relationship did not “transform gang activities into intrinsic or intimate” (Shiner, 2009). The courts upheld that freedom of association rights protected under the first amendment did not extend to groups whose members joined for the purpose of depriving others of their lawful rights (Shiner, 2009).

When obtaining a CGI, an Order to Show Cause (OSC) may be filed ex parte by prosecutors to avoid the normal requirements of providing notice (Shiner, 2009). Therefore a letter may or may not be required to inform a “sufficient number” of the alleged gang members of the OSC hearing (Shiner. 2009). During the OSC hearing law enforcement officers are considered to be expert witnesses and evidence such as police reports, personal photos obtained in searches and field interview (FI) cards are utilized to determine an individual’s participation in a gang (Shiner, 2009). Some police reports that list the individual as a victim may contain statements indicating gang membership (Shiner, 2009). FI cards may be utilized to depict a pattern of “antisocial” behaviors such as littering or loud noise for which the individual was not cited or arrested (Shiner, 2009). Prosecutors use photos of the individual’s “gang related” tattoos and “party photos” to show how the individual “presents to the community” and prove gang membership (Shiner, 2009). Prosecutors target individuals with the most documentation, not necessarily the perpetrators or leaders of the gang (Shiner, 2009). If these individuals do not appear at the OSC hearing the prosecutor is granted a default judgment resulting in a CGI (Shiner, 2009). This profiling process is unfairly biased and particularly harmful for youth who are experiencing identity moratorium or attempting to fit in with the norms of their community. Also, the OSC process does not provide due process or require that all individuals be provided notification because the gang is considered to be an unincorporated association (Shiner, 2009).

 Discussion

CGIs play an integral role in implementing the STEP Act because the mandates of the STEP Act apply to individuals considered to be “known gang members” which may be determined by an individual’s placement on a CGI. The primary goals of the STEP Act were to stop “gang-related” crime and deter individuals from organized crime and street gangs through use of sentence enhancements (Libman, 2012). The STEP Act is also the first policy to define a gang and make membership a criminal offense (Muñiz & McGill, 2012). Therefore the civil standard of proof is used to obtain a CGI yet implementation of the STEP act allows punishment on a criminal level.

Some research indicates that CGIs are effective in lowering gang presence and gang intimidation, and reports less fear of gang confrontation within the community (Maxson, et al., 2005). CGIs have also become a tool for law enforcement to protect the community by preventing violent crime (Shiner, 2009). However, there is a lack of evidence showing long-term benefits of CGI’s (Maxson, et al., 2005). Further, other research has found that many individuals join a gang while incarcerated, thus sentence enhancement may encourage the expansion and power of gangs (Libman, 2012). Allowing law enforcement to arbitrarily profile individuals based on vague criteria is dangerous and allows more opportunity for discrimination and disproportionality. It is critical that professional social workers continue the fight for Social Justice and demand that policies and practices provide equal protection under the law.

Monica Burke is a graduate student in the School of Social Work at California State University Long Beach and can be reached at monica_mb@yahoo.com.

REFERENCES

Libman, M. (2012). A policy analysis of the penal code section 186.20-186.33: California street terrorism enforcement and prevention act. (Order No. 1517718, California State University, Long Beach). ProQuest Dissertations and Theses, 66. Retrieved from http://search.proquest.com/docview/1027934537?accountid=10351. (1027934537). [This page requires a log in; is this her personal account id?]

Maxson, C. L., Hennigan, K. M., & Sloane, D. C. (2005). “It’s Getting Crazy Out There”: Can a Civil Gang Injunction Change a Community? Criminology & Public Policy, 4(3), 577-605.

Muñiz A. & McGill, K. (2012). Tracked and Trapped: Youth of Color, Gang Database and Gang Injunctions. Retrieved from http://www.youth4justice.org/wp-content/uploads/2012/12/TrackedandTrapped.pdf.

Thompson, L. (2007, March 7). Ganging up on City Hall. LA Weekly. Retrieved April 23, 2007, from www.laweekly.com/news/news/ganging-up-on-cityhall/15863.[“404! Page Not Found”; and did she really retrieve this page 7 years ago? Or is she looking at a hard copy of that vintage?]

Shiner, M. (2009). Civil Gang Injunctions: A Guide for Prosecuters. National District Attorneys Association.