Orange County Gang Injunction Can’t Stand

     (CN) – The Orange County District Attorney’s strategy of fighting gang activity with public-nuisance injunctions violated due-process rights, the 9th Circuit ruled Tuesday.
     Seeking a sweeping injunction against the Orange Varrio Cypress (OVC) criminal street gang in 2009, the county attorney brought an action in state court against 115 named alleged members, associates and employees of the gang, including 32 minors.
     Among other behavior such as wearing the color orange and making certain hand gestures, the injunction prohibited the defendants from associating with other suspected gang members, even family members, within an approximately 4 square-mile “safety zone” in Orange, a city about 38 miles southeast of Los Angeles in Orange County.
     Orange County later dismissed 62 of the defendants from the case, including all of the juveniles and each of the 32 individuals that had filed answers. The county admitted that it had dismissed some defendants because of their “aggressive effort” to defend themselves, the ruling states.
     The Superior Court eventually issued a broad, permanent injunction against the gang and the remaining named defendants, as well as unnamed “members” of the gang. While disseminating the order in later 2009, the Orange Police Department served at least 48 of the defendants that the county had voluntarily dismissed.
     Some of those caught up in the injunction filed a federal class action alleging that the county’s “dismiss-and-serve” scheme had deprived them of a fair hearing as to whether they were indeed associated in any way with the gang.
     After an 11-day bench trial in Santa Ana, U.S. District Judge Valerie Baker Fairbank ruled that for the plaintiffs, and the 9th Circuit affirmed unanimously on Tuesday.
     The three-judge appeals panel was quick to point out that the ruling had nothing to do with the “substantive terms of this or any other anti-gang injunction,” while finding that the breadth of the present one demanded that those subjected to it be granted a hearing.
     “OPD and OCDA’s policy gave plaintiffs a choice between refraining from a wide variety of otherwise lawful, constitutionally protected activities, or going to jail, quite possibly for some time,” Judge Marsha Berzon wrote for the panel.
     In addition to the “unusually strong liberty interests” that the injunction called into question, expert testimony at trial suggested that it is difficult to get a handle on who is and who is not a member of a particular street gang, the ruling states.
     One of the experts also said that the OVC was “one of the less cohesive gangs” he had ever encountered.
     “There was ample testimony before the district court that some of the evidence of gang membership submitted to the district court was of questionable reliability,” Berzon wrote. “By dismissing them from the state court proceedings, OCDA deprived the plaintiffs of an opportunity to take discovery from OCDA and the OPD officers who had submitted declarations in support of a permanent injunction against individual plaintiffs.”
     Adding that “some adequate process to determine membership in the covered class is constitutionally required,” Berzon pointed out that, “had Orange not dismissed the plaintiffs from the state court lawsuit, that process would have been provided.”
     The panel reversed the lower court’s ruling in one respect, dismissing Orange County District Attorney Tony Rackauckas from the plaintiff’s state-level claims in his official capacity.
     His office did not immediately return a request for comment.

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