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OC Gang Injunction Invalidated Over End-Run Around Due Process

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By William Peacock, Esq. on November 11, 2013 3:11 PM

The California Street Terrorism Enforcement and Prevention (STEP) Act is a comprehensive piece of anti-gang legislation that, amongst other remedies, allows the state to ask for an injunction prohibiting gang gatherings and other related behaviors.

In 2009, the Orange County District Attorney filed for an injunction against alleged members of the Orange Varrio Cypress (OVC) street gang. The terms of the injunction, which covers a 3.78-square mile area in the City of Orange, prohibited the affected members from gathering, throwing up gang signs, and being out after 10 p.m.

But when more than 50 of the alleged 115 people listed on the injunction showed up to challenge it, the prosecutors dismissed the injunction against the objectors -- then had it enforced against the group as a whole, including those who had previously objected.

Due Process, Duh

If the the "dismiss-and-serve" strategy screams due process! at you, well, you're probably a lawyer or law student. Indeed, that was the district court's grounds for invalidating the injunction against those who initially challenged it. The Ninth Circuit agreed with the lower court, but limited its holding carefully:

"[T]he 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. Had Orange not dismissed the Plaintiffs from the state court lawsuit, that process would have been provided.

Because Orange engineered that dismissal, there cannot be enforcement against these plaintiffs without some alternative adequate process. That is all we decide today, nothing more."

In short: end-runs that completely deprive individuals of due process are unacceptable, no matter what their alleged affiliations may be.

Judge Tallman Explains it All

In a concurrence, Judge Tallman wrote separately to expound on why such injunctions are necessary, especially in this case, as well as why the OCDA's strategy backfired -- miserably.

OVC members have robbed and assaulted Chapman University students, beaten up a 13-year-old boy for whistling, led police on high-speed chases, shot, stabbed, murdered, and as one would predict, been involved in the drug trade. They recruit at the local high school and middle school, and terrorize the community to prevent cooperation with the police.

But, Mathews v. Eldridge requires a evaluation of the government's interest in failing to provide pre-deprivation due process. And the only interest here was cost. The district attorney admitted that the "dismiss-and-serve" strategy was implemented to avoid costly legal challenges by gang members' lawyers.

"Ironically, 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."

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