Gang-related crime has increasingly become a focal point of criminal law enforcement, and among the new prosecutorial efforts the most praised is the anti-gang injunction. California state courts are leading the way in this trend, using public nuisance laws to enjoin gang members from a range of activities within specified city zones. The most authoritative decision on anti-gang injunctions is the California Supreme Court's 1997 holding in People ex rel. Gallo v. Acuna, which upheld their constitutionality. In this note, Matthew Mickle Werdegar critiques California's model and argues that the anti-gang injunction tool is not only flawed and ineffective, but also unconstitutional. Werdegar argues that the Acuna court should have found that anti-gang injunctions are unconstitutionally vague, and that enforcing them through criminal penalties equates to guilt by association. In addition, Werdegar argues for a due process right to legal representation for named individuals at the entry of the civil injunction. Werdegar concludes that only the abandonment of anti-gang injunctions can cure the constitutional defects, prevent discriminatory enforcement, and provide better solutions to gang-related crime.
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
-- Benjamin Franklin(1)
Even as crime rates nationally are falling to levels not seen since the 1960s,(2) America continues to be preoccupied with crime.(3) Proposals for more police officers and prisons and for increasingly stringent criminal penalties remain extremely popular and continue to reside at the top of legislative agendas.(4) In particular, America's preoccupation with crime has focused on urban street gangs and the drug dealing and violence with which they are associated.(5) Yet urban street gangs and gang-related crime have proven highly resistant to traditional crime fighting methods.(6) Consequently, politicians, law enforcement officials, and legal theorists have devoted more attention to devising and advocating new, non-traditional law enforcement tools to bring gang-related crime under control.(7)
California, the state with the largest and most entrenched urban gang problem.(8) has been at the forefront of this effort to develop aggressive new anti-gang tactics. Most significantly, local governments in California have pioneered the use of public nuisance law to obtain sweeping civil injunctions prohibiting suspected gang members from fighting, trespassing, spraying graffiti, and even from engaging in otherwise legal activities such as appearing in public together or carrying pagers or cellular telephones.(9) Through this new civil remedy, California cities seek essentially to banish gang members from the public streets and parks in a growing number of targeted neighborhoods.
Virtually all of the communities that have employed civil injunctions against gangs have declared them to be unqualified successes.(10) And more importantly, the California Supreme Court recently has given the use of civil anti-gang injunctions the judicial seal of approval by rejecting a constitutional challenge to an anti-gang injunction in People ex rel. Gallo v. Acuna.(11) This landmark precedent by the California Supreme Court paves the way for accelerated deployment of anti-gang injunctions not only in California, but throughout the rest of the United States. However, despite the evident approval of gang injunctions by law enforcement, politicians, and the courts, this new weapon in America's "war on gangs" raises a host of constitutional and public policy concerns. Unfortunately, the California Supreme Court failed to take the lead in adequately addressing these critical concerns. Carefully considered, the inherent constitutional and policy problems should lead courts and legislatures to reject civil gang injunctions as both unconstitutional in principle and ineffective in practice. My purpose in this note is to highlight these concerns and to set out both legal and practical arguments against the further use of civil gang injunctions based on public nuisance law.
I begin by briefly discussing the scope of the street gang problem and by describing the evolution of civil gang injunctions as a response. I then turn to an in-depth analysis of the California Supreme Court's decision in People ex rel. Gallo v. Acuna and challenge the legal reasoning invoked to uphold the use of anti-gang injunctions. In this section, I argue that the court erroneously rejected the defendants' constitutional vagueness arguments and misapplied the landmark Supreme Court cases dealing with guilt by association. I assert the court did so because it failed to understand what urban street gangs are and how they operate. Next, I identify a number of constitutional concerns which the California Supreme Court did not even attempt to address but which are directly relevant to the use of gang injunctions. Serious constitutional questions surround the lack of procedural due process for defendants in gang injunction cases, particularly in the absence of appointed counsel. Finally, I address the efficacy of gang injunctions from a public policy standpoint, arguing that the injunctions are actually ineffective and should be abandoned for practical reasons. As I elaborate below, existing law enforcement tools could be used in a more selective and focused manner to meet the challenge of gang-related crime using the resources cities currently dedicate to obtaining injunctions.
THE PROBLEM OF "CRIMINAL" STREET GANGS AND THE DEVELOPMENT OF ANTI-GANG INJUNCTIONS IN RESPONSE
If official estimates are accurate,(12) the scale of the urban street gang problem in the United States is staggering. It is estimated there are more than 16,000 gangs nationwide with over 500,000 members.(13) Gangs reportedly exist in 94% of major American cities and can be found in at least 1130 cities of all sizes.(14) According to a 1993 California Department of Justice report, there could be as many as 200,000 gang members in California.(15) Indeed, the Los Angeles District Attorney's Office stated that Los Angeles County alone has 150,000 gang members.(16)
Members of street gangs are responsible for much of the crime and violence in urban America.(17) In Los Angeles, for example, it is estimated that in 1991 street gangs were responsible for between 20% and 36% of all homicides in the city, while in Chicago they were responsible for 14%.(18) Moreover, despite all the anti-gang efforts of the last decade, the problem of gangs and gang violence continues to grow. Former District Attorney Ira Reiner reported in 1992 that "[b]y every measure, gang violence in Los Angeles is ... spiraling upward with no end in sight,"(19) and the California Department of Justice stated a year later that "[g]ang violence is increasing in magnitude and frequency."(20)
Faced with this huge and intractable gang problem, and goaded by persistent public pressure to solve the problem, law enforcement officials have clamored for years for new anti-gang tools. Legislatures and courts across the United States have responded with tougher criminal penalties for gang-related crimes,(21) strict juvenile curfews,(22) new anti-loitering laws,(23) and relaxed standards for the admission of evidence of gang membership and gang-related criminal conspiracies.(24) The most revolutionary new anti-gang tool added to the arsenal of law enforcement in recent years, however, is not grounded in any new statute or procedural innovation, but is a product of the centuries-old common law public nuisance doctrine.(25) The use of the public nuisance doctrine to combat gangs is revolutionary because it provides a means to proscribe otherwise lawful conduct, and because it is grounded in civil rather than criminal law. Because they are grounded in civil law, there is no need to prove facts beyond a reasonable doubt, to provide defendants with a jury trial, or to provide indigent defendants with counsel before an anti-gang injunction can be imposed.
Perhaps because they are faced with the largest and most entrenched gangs in the country, prosecutors and police in Los Angeles County were the first to attempt to use public nuisance doctrine, and the broad injunctive power it confers on courts, to enjoin urban street gangs out of existence. On October 26, 1987, Los Angeles City Attorney James Hahn filed the first ever nuisance abatement lawsuit against an urban street gang. Two months later, in People v. Playboy Gangster Crips, Los Angeles Superior Court Judge Warren Deering issued the first gang injunction.(26)
This initial injunction was far from a complete success for the city of Los Angeles. Judge Deering granted only six of the twenty-three injunction terms requested by the City Attorney, and all six of the approved terms covered acts already illegal under California law.(27) Judge Deering, for example, refused the city's requests to impose a curfew on gang members, to prohibit them from wearing gang clothing, or to enjoin gang members from publicly associating with each other, stating that these provisions were "overbroad in content" and "far, far overreaching."(28) Nonetheless, Judge Deering's order was a watershed event in the war on gangs, ultimately paving the way for the imposition of much broader injunctions.
The use of injunctions to curtail gang activity did not take off immediately. Five years passed after Judge Deering's order before the second civil injunction was filed against an urban street gang. But between October 1992 and July 1994, gang injunctions were sought in seven different cases in California.(29) Today they have become an almost routine anti-gang tactic, at least in Southern California. As of November 1997, seventeen injunctions were in place in Los Angeles County alone.(30) Communities with injunctions in effect or being sought as of April 1998 include Inglewood, Long Beach, Los Angeles...