(CN) – Failure to personally serve a gang “shot caller” with an injunction against member association made the order unenforceable, the Utah Supreme Court ruled.
In August 2010, a state judge granted Weber County, Utah, a permanent injunction under nuisance law against Ogden Trece, a criminal street gang that has operated in the county for over 30 years.
The injunction prohibited Trece members from associating with one another, threatening any person, possessing a firearm in public, or violating an 11 p.m. curfew within the 25-square-mile area of Ogden, Utah.
Violation of the injunction was punishable by up to six months in prison and up to a $1,000 fine.
The county went to great lengths to serve the gang with a copy of the injunction.
In addition to personally serving five alleged Trece members, and mailing notice to 12 more alleged members of the gang, the county also served published the notice in the Ogden Standard Examiner and on www.utahlegals.com.
On the appeal of several individual gang members, however, the Utah Supreme Court overturned the injunction on Friday for improper service. The ruling begins with acknowledgment that was properly sued as an unincorporated business.
“There is no logical reason why business transactions and criminal activity are mutually exclusive,” Justice Jill Parrish wrote for the five-person court.
Additionally, the unlawfulness of an unincorporated association’s business does not make it immune from suit, according to the ruling.
“Under petitioners’ proposed interpretation of the rule, a criminal organization would be immune from suit simply because the business it transacts is illegal,” Parrish wrote. “But it would be illogical to interpret rule 17(d) in a manner that allows organizations that operate illegally to escape suit when such organizations are exactly the kind of enterprise on which the justice system should be brought to bear.”
Service here was improper, however, because the rules of civil procedure state that an unincorporated association must be served by “delivering a copy of the summons and the complaint to an officer, a managing or general agent,” according to the ruling.
Testimony before the trial court indicated that Trece has a highly organized management structure, known to other gang members, in which a few members known as “shot callers” give orders to other members and keep most of the proceeds of the gang’s criminal activities.
While the gang’s management structure may not be known to the county, the county still has the burden of trying to identify and serve an officer of the gang, and to present this evidence to the court before requesting notice by publication, the court ruled.
Although the county described the difficulty of personally serving five members of the gang, it never claimed that these members were “shot callers,” or otherwise an agent of the gang, according to the ruling.
In addition, “the fact that Trece ‘shot callers’ may have been aware of the injunction neither displaces the requirements of personal service nor excuses the county’s failure to demonstrate that it exercised reasonable diligence before seeking service by publication,” Parrish wrote.
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