9TH CIRCUIT RULES THAT OC DA RACKAUCKAS VIOLATES DUE PROCESS WITH HIS 2009 BAIT AND SWITCH GANG INJUNCTION
In a decision that could conceivably affect the way future gang injunctions are constructed, on Tuesday the 9th Circuit Court of Appeals ruled that by enforcing a 2009 gang injunction against scores of Orange County residents, without giving those residents a meaningful opportunity to contest the allegation that they were, in fact, gang members, Orange County District Attorney Tony Rackauckas violated the due process provision of the United States Constitution.
“The court recognized that you can’t make these decisions that restrict one’s liberties, behind closed doors,” said Peter Bibring, lead attorney for the ACLU of Southern California, which filed the class-action lawsuit, together with the law firm of Munger Tolles and Olson. “They found that to do so simply because the police and the DA believe that someone is a gang member has too much ‘risk of error,’ if done without court approval and a chance for the supposed gang member to be heard.”
THE BACK STORY
The circumstances that led to the ruling began in late March 2009, when Orange County District Attorney Tony Rackauckas filed an injunction against a gang known as Orange Varrio Cypress, or OVC, which generally claims territory in the traditionally Mexican American area of the City of Orange known as Barrio Cypress.
Functionally, a gang injunction works like a restraining order. But, instead of regulating the behavior of a single individual (as a restraining order does), it bans certain activities by purported members of a particular gang. If the people named in the injunction violate any of the restrictions that the injunction lays down, that person can be arrested and go to jail.
In the case of the OVC gang injunction, back in 2009, Rackauckas named 115 people whom his office described as among the “most active participants in” the Orange Varrio Cypress gang.
The physical area that the proposed injunction covered was a 3.8-square-mile section of the city of Orange that the DA designated as the Safety Zone. This particular section, which reportedly amounts to 16 percent of the city, is located mostly in Orange’s downtown sector, west of the 55 Freeway.
According to the injunction’s terms, when in the Safety Zone, the 115 named could not be in the presence of anyone else who was allegedly a gang member, or drink alcohol, or to be nearby to anyone else who is drinking alcohol—which pretty much eliminated eating in or being in proximity to a restaurant. Those named were also prohibited from wearing “gang attire,” and engaging in such conventionally gang-related activities as throwing gang signs,possessing guns or dangerous weapons, fighting, tagging and so on.
In addition, those named in the injunction had to obey a 10 p.m. curfew, and—oddest of all—they could not stand in front of a famous local mural that was designated by the DA’s office as Orange Varrio Cypress’s “flag.”
Like many law enforcement tools, gang injunctions work well or poorly depending on how well they are designed and whether or not they are filed and enforced with solid knowledge and precision.
When a preliminary version of the Orange Varrio Cypress injunction was filed, community protests began to occur. It was not the injunction itself that bothered people the most.
People were particularly upset because they felt that, in many cases, the police and the DA had named individuals who were not in the gang, nor had they ever been, or the people named admitted that they had been involved when they were younger, but had matured and hadn’t been active in years.
In all, 62 of those named in the injunction sought to protest their inclusion in court.
Some of those named also went to the ACLU, which agreed to take on the cases of 5 of the 62.
The idea, the ACLU attorneys hoped, was to use the five to suggest to the presiding Superior Court judge that maybe he ought to take a look at the rest to see if they were really the dangerous gangsters the DA advertised them to be. The ACLU limited themselves to five because representation is time consuming and expensive,and the staff attorneys figured five was better than none.
“The case marks one of the few times that individuals named in a gang injunction have been able to obtain legal representation and defend themselves against the charge they are gang members and should have their activities severely restricted,” said the ACLU’s LA Staff Attorney Peter Bibring
The 2009 judge ruled that the ACLU’s five clients had wrongly included. Then, while he was at it, the judge also excluded the other 57 who contested their status.
After the judge ruled, rather than counter the ACLU’s evidence with his own, DA Rackauckus decided to dismiss all 62 from his own list. In other words, he dropped them from the injunction.
All might have been well had things ended right there. Instead, in an interesting bait and switch, the DA filed a new injunction against the gang—but this time, without naming any actual individuals. This new injunction was approved easily without anyone contesting it.
BAIT & SWITCH
Armed with his nice, shiney new injunction, the DA then came back and slapped its restrictions on, among others, most of the 62 who had gone to court and been dismissed from the first in junction—and whom he and his office subsequently had dropped from that old injunction.
The DA’s office once again claimed that those served were suspected of being part of the OVC gang.
Here’s what we reported in 2009 on the matter:
The reasons why various individuals had been labeled as gang members were often preposterously flimsy. One person was listed as a gangster because an officer had once seen him in clothing that the cop deemed to be gang attire, although no one could say precisely what that clothing was. In another case, an individual was seen talking with gang members who also happened to be neighbors and childhood friends.
Not surprisingly the ACLU filed suit in federal court and, two years later, in May 2011, a federal judge agreed with the ACLU.
Naturally, the DA appealed.
THE 9TH CIRCUIT RULES
Fast forward another two years, and you have this week’s ruling by the 9th Circuit Court of Appeals.
Among other things, the 67-page ruling looks at the particular ways the Orange Varrio Cypress injunction impinged on the daily lives of those named.
(You can read the ruling here.)
The heart of the matter is found the court’s conclusion:
Here’s a clip:
….We are mindful of the great importance of controlling the proliferation of criminal gangs and preventing illegal activity by gang members. Anti-gang injunctions such as the one at issue here broadly restrict the covered individuals’ legal daily activities in a prophylactic effort to prevent illegal activities from taking place. There is no challenge before us as to the propriety of that effort as applied to properly covered individuals.and we express no view whatsoever on the substantive terms of this or any other anti-gang injunction. But the breadth of the injunction, given its prophylactic character, does give rise to unusually strong liberty interests on the part of those putatively covered.
In light of those interests, some adequate process to determine membership in the covered class is constitutionally required….
In other words, you don’t get to legally restrict people’s liberties without some kind of due process, which in the case of the Orange Varrio Cypress injunction, DA Rackauckas deliberately sidestepped.
Oh, and just in case anyone is tempted to dismiss the 9th Circuit’s decision as that of an overly liberal court, it is instructive to also read the Concurring Opinion written by Judge Richard Tallman, the court’s notoriously conservative member.
Here’s a clip from what Tallman had to say:
Orange undoubtedly has a vital interest in protecting its community by suppressing gang violence. But as the court observes correctly, our inquiry….is not whether Orange has a significant interest in combating gang violence, but rather whether it has a significant interest in failing to provide a pre-deprivation process to challenge Orange’s gang membership allegations.
In my view, this inquiry cannot be severed from Orange’s unsettling and indefensible decision to voluntarily dismiss every individual who tried to challenge the injunction in the state court proceeding, and then serve those same dismissed individuals with the injunction it obtained uncontested.
THE PESKY MATTER OF LEGAL COSTS
When writing about this ruling, we couldn’t help thinking of the report we wrote last week about LA County’s refusal to disclose the costs incurred by the county’s hired gun attorneys who defend the Los Angeles Sheriff’s department against the myriad high ticket lawsuits it loses—or settles—each year. Remember, this first of the injunction actions kicked off in 2009, and here we are, four years, two lawsuits and one appeal later—all of which the OC DA’s office lost.
So how much, we wondered, did it cost the Orange County taxpayers to defend DA Rackauckas’ constitutionally problematic behavior?
It seems that the 9th Circuit’s Judge Tallman thought about this question too, and mentioned his musings in his Concurrence:.
“Ironically,” wrote Tallman, “the taxpayers of Orange County now get to pick up a multi-million dollar tab for the litigation that ensued from the district attorney’s bad tactical decision.
LA OPINION OPPOSES BACA’S RUN FOR SHERIFF
Although this editorial in La Opinion ran late last month in La Opinion, we didn’t want you to miss it.
Baca has traditionally had a lock on most of the Hispanic vote, so a pre-emptive anti-endorsement on the part of a publication with La Opinion’s stature is worth noting.
(The editorial is short and to the point, so we hope La Opinion will forgive us this once for running the text in full.)
The difficulties of Los Angeles Sheriff Lee Baca are piling up, making it clear that he should not seek his fourth reelection next year.
A few days ago a federal jury found him personally liable in a human rights violation case involving the beating of an inmate. Baca was not present during the beating, but he was held responsible for the officers’ use of heavy flashlights to beat detainees.
What is new here is that Baca must pay a fine of $100,000 out of his pocket; we already knew about the repeated use of excessive force by officers and the apparent ignorance or complicity of their boss.
Last year the Citizens’ Commission on Jail Violence referred to a “culture of violence” against detainees in county jails. It is even known that some officers formed cliques to attack inmates.
It is true that Baca has implemented many of the Commission’s recommendations. The big problem is that under his leadership, since 1998, the situation has deteriorated to this point. That is his responsibility.
It is also true that under his watch, inmate abuse and inadequate care for the mentally ill spurred investigations, up to the federal level. Meanwhile, lawsuits against the LA Sheriff’s Office are piling up.
That makes for a poor track record to seek reelection.