PASADENA, Calif. (CN) - The 9th Circuit seemed unlikely to revive an injunction that limits contact between suspected members of a gang in Orange County, Calif.
California has used civil public nuisance injunctions as a way to deal with criminal street gangs since 1997.
After the Orange County Superior Court issued a permanent injunction against the Orange Varrio Cypress Criminal Street Gang in May 2009, Manuel Vasquez led Orange County residents in a federal class action that claimed the order made them prisoners in their own homes.
They said the injunction gave the city of Orange broad powers to stop 265 alleged members of the Orange Varrio Cypress street gang from associating with each other in a 3.78 mile area, or roughly 16 percent of the city.
The order also barred members from wearing orange clothing or gang accessories, and imposed curfews on adult and juveniles members of the gang.
Anyone violating the injunction faced up to six months in jail and a $1,000 fine.
Among other things, the state court injunction criminalized otherwise "commonplace and lawful activities - such as going outside in the evening, walking into a restaurant or onto a bus, or attending a political meeting or religious service," according to the complaint.
The class claimed that the "safety zone" in the anti-gang injunction included their homes, the residences of friends and family members, schools, and the places they go to work - "nearly every place they conduct their daily lives."
They said city officials "intentionally short-circuited the judicial process" by dismissing 61 alleged gang members from its civil nuisance abatement complaint and "depriving them of their day in court."
Orange then allegedly obtained a default judgment in the state court to serve those same individuals with the anti-gang injunction, "without the apparent nuisance of having to prove its case against them."
After an 11-day court trial in 2011, U.S. District Judge Valerie Fairbank found that the injunction robbed the class of their procedural due-process protections under the 14th Amendment to the U.S. Constitution and the California Constitution.
Ruling that the anti-gang injunction restricted "some of their most basic liberties," Judge Fairbank noted that the facts showed "an absence of clear, objective criteria for determining whether a person" was actually in the gang.
In addition to enjoining Orange officials from future violations, Fairbank barred them from enforcing the order against individual plaintiffs and members of two certified plaintiff classes.
S. Frank Harrell, an attorney for Orange County District Attorney Tony Rackaukas, told a three-judge panel of the 9th Circuit on Monday that this case represents a "cautionary tale."
Fairbank's judgment directly conflicts with the Superior Court's anti-gang injunction," said Harrell, an attorney with Lynberg & Watkins.
The doctrine of "comity," or legal reciprocity, requires reversal, Harrell added, noting that the superior court could have considered the issue of due process.
Judge Marsha Berzon repeatedly asked Harrell to address the "legal issues" of the case.
Judge Milan Smith was also skeptical. He noted that comity is "a rarely successful defense because it's so broad and so general."
"I'm frankly more concerned about who selected these people on the basis of what evidence," Smith said.
Those issues have "nothing to do with comity" and everything to do with constitutional law, he added.
Judge Richard Tallman seemed somewhat more receptive than his colleagues to Harrell's argument. But Tallman also wondered why the city and county had dismissed plaintiffs from their initial complaint.
Berzon interrupted when Harrell contended that Vasquez and the other named plaintiffs were active gang members.
"That's not going to solve our case because there are a chunk of people here in members of the class for whom that isn't true," Berzon said. "Particularly the juvenile class."
Smith noted that that the case did not hinge on California law but was a "federal constitutional issue."
"Now I have great empathy for the city; I have great empathy for the counties and so on," Smith added. "These are serious problems that have to be worked out. But, by the same token, we're charged with defending the Constitution of the United States, and that's what we're wrestling with in these individual matters."
Peter Bibring of the ACLU Foundation of Southern California addressed the due-process merits of the case for the plaintiffs. He said his clients were not challenging the terms of the injunction.
"They are not even arguing that defendants can never enforce this injunction against them," Bibring said.
Tallman voiced concern that the hands of city and county officials were tied because of the orders in state and federal court.
"At this point, the safest thing that can guarantee that the chief and the district attorney are not in violation of the federal court injunction is to do nothing with regard to enforcing the state court injunction," Tallman said.
But Bibring reiterated that his clients were still subject to the injunction even though the city had dismissed them.
"The plaintiffs' claim here is not that any of the terms of the state court injunction are improper or unconstitutional," Bibring said. "Simply that defendants' actions in enforcing the injunction against plaintiffs to which they were not parties, without any due process to determine that they are in fact are participants or associates of the gang, violates due process."
Toward the end of proceedings, Smith encouraged the parties to mediate the case.
"This is an important issue," he told Bibring. "We understand that. We don't want to deprive anyone of due process. And we don't want to deprive the governmental entities of their right to do their job. But the difference is between a sword and scalpel. And it may very well be that a scalpel is what's required here."
Smith offered similar advice to the defendants.
"You're going to get an opinion from this court that you may or may not like," he said. "And that may affect a lot of other people. So, if you've got a scalpel in your hand, you might want to use it, and see if you can work something out."
City of Orange attorney Wayne Winthers also argued for Police Chief Robert Gustafson.