A new understanding of gang injunctions.

• Author: Harward, Wesley F.

INTRODUCTION

There were over 1.4 million active gang members in the United States as of 2011 (1)--an increase of forty percent in gang membership from 2009. (2) It is estimated that "[g]angs are responsible for an average of 48 percent of violent crime in most jurisdictions and up to 90 percent in several others." (3) Many of the more than 33,000 gangs are increasing in sophistication and organization. (4) Additionally, these "[g]angs are increasingly engaging in nontraditional gang-related crime, such as alien smuggling, human trafficking, and prostitution." (5)

The rise in gang membership and gang violence "has overwhelmed conventional law enforcement techniques." (6) State legislatures, city attorneys, and law enforcement officers have been forced to search for new and innova tive techniques that may prove to be more effective. (7) Enjoining a gang (or its members) as a public nuisance is one such innovation that is increasing in use.

1. Acuna--The Beginning

   Public nuisance actions against criminal street gangs were first upheld by the Supreme Court of California in the seminal case of People ex rel. Gallo v. Acuna. (8) In that case, the City of San Jose (City) sought injunctive relief against a street gang known as the Varrio Sureno Treces (VST). An injunction was granted and appeals followed, which brought the case before the California Supreme Court. (9) The City successfully argued that the gang's behavior was so egregious that it both substantially and unreasonably interfered with a public right--"the comfortable enjoyment of life or property." (10)

   The court began its opinion by detailing the effect of the gang on the neighborhood in question. It described Rocksprings as "an urban war zone." (11) The four-block area was an "occupied territory." (12) Gang members would congregate in the area at all hours and "display a casual contempt for notions of law, order, and decency--openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars." (13) Additionally, "[m]urder, attempted murder, drive-by shootings, assault and battery, vandalism, arson, and theft [were] commonplace" in the community. (14)

   Residents' property was regularly damaged as the gang members "t[ook] over sidewalks, driveways, carports, apartment parking areas, and impede [d] traffic on the public thoroughfares to conduct their drive-up drug bazaar." (15) Residents' "garages [were] used as urinals; their homes commandeered as escape routes; [and] their walls, fences, garage doors, sidewalks, and even their vehicles turned into a sullen canvas of gang graffiti." (16) Rocksprings residents themselves were frequently "subjected to loud talk, loud music, vulgarity, profanity, brutality, fistfights and the sound of gunfire echoing in the streets." (17) They were "prisoners in their own homes." (18) In the community, "[violence and the threat of violence [were] constant" and "[v]erbal harassment, physical intimidation, threats of retaliation, and retaliation [were] the likely fate of anyone who complain [ed] of the gang's illegal activities" or cooperated with the police. (19)

   It was under these extraordinary circumstances that the district court granted the City's request for injunctive relief, deeming the gang to be a public nuisance. The injunction prohibited, among other things, VST members from (1) congregating in public view with other members in Rocksprings, and/or (2) "confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting and/or battering any residents ... or visitors to 'Rocksprings.'" (20) The California Supreme Court ruled that the injunction did not violate the Constitution and that it was validly issued. (21)

2. Common Characteristics and Challenges

   Since Acuna, many other gang injunctions have been issued in California as well as in several other jurisdictions. (22) While the specific terms of the injunctions differ in important ways, all gang injunctions share one common feature--the "safety zone." (23)

   The safety zone is the heart of the injunction. It is the geographical area over which the provisions of the injunction are enforced. In Acuna, the safety zone was only four square blocks. (24) The size of later safety zones, however, quickly increased. A later gang injunction in California covered approximately one square mile, (25) and yet another California injunction covered 6.6 square miles. (26) More recently, a Utah district court issued an injunction against a gang with a safety zone of twenty-five square miles that encompassed almost the entire city. (27) An expansion of the size of the safety zone will obviously increase the burden on the enjoined individuals. Such an increase in the burden may have significance in any challenge requiring the court to balance competing interests--it may be enough to tip the scales in the opposite direction. (28)

   The most controversial, and arguably the most important, prohibition common to gang injunctions is the "no-association" provision. While the exact function of a no-association provision differs in important ways from injunction to injunction, the idea remains the same. Gang members are prohibited from publicly associating with other gang members inside the safety zone. (29) This prohibition extends to all associations and includes noncriminal and seemingly harmless, commonplace activities. (30) These prohibitions are attacked on both nuisance law and constitutional grounds. (31)

   One common hurdle throughout most gang injunctions is a challenge in determining the proper entity or individual to sue. The simplest solution is to name specific gang members and sue them individually. This was the procedure followed in Acuna. (32) While this method is certainly the easiest to accomplish procedurally, it has its drawbacks. Many criminal street gangs have hundreds, if not thousands, of members. As is to be expected in organizations of that size, membership is constantly changing with new members joining the gang and other members leaving. In response to these challenges, city and county attorneys frequently choose to bring suit against the gang as an entity, either in combination with (33) or in lieu of naming individual members. (34) When the gang is sued as an entity, suit is brought under the theory that the gang is an unincorporated association. (35) Due process concerns arise when the injunction is served on individuals who were never party to the original suit. (36)

3. The Aims of This Note

   This Note argues that no-association provisions can be constitutional, given a requisite factual background, even in the face of an increase in size of the safety zone. Furthermore, it argues that it is possible to bring suit against a gang as an unincorporated association without naming individual defendants and not violate due process requirements. It is also possible to construct the injunction in such a way as to enjoin gang members without violating their due process rights.

   Part I of this Note will explain how public nuisance doctrine applies to criminal street gangs. Part II will then analyze the constitutionality of the no-association provisions of gang injunctions, especially in light of the ever-increasing size of the safety zone. Part III then examines the due process considerations, namely the practice of serving gang injunctions on individuals who were never parties to the suit itself. This Part relates and comments on and relates a recent federal case, which involves the first court, either federal or state, to consider these issues. Finally, Part IV concludes by making recommendations for the factual inquiries that must be made at the trial level and suggests further areas of research.

   1. THE PUBLIC NUISANCE DOCTRINE

   As the Acuna court stated: "There are few 'forms of action' in the history of Anglo-American law with a pedigree older than suits seeking to restrain nuisances, whether public or private." (37) At its core, the public nuisance doctrine is about "balancing individual liberty against the liberties of others." (38) A public nuisance is, by its very nature, "characterized by an unreasonable exercise of an individual is [sic] right at the expense of a public right." (39)

   In determining whether an activity is a nuisance, the courts must consider the totality of the circumstances and determine whether the activity amounts to a substantial and unreasonable interference with a public right. (40) The Restatement (Second) of Torts classifies public rights into five categories: "the public health, the public safety, the public peace, the public comfort or the public convenience." (41) As Justice Brown stated in Acuna, "[i]n the public nuisance context, the community's right to security and protection must be reconciled with the individual's right to expressive and associative freedom." (42) Although the common law doctrine is increasingly being replaced by statutes, (43) they generally rely on common law principles and definitions. (44)

   Anti-gang injunction suits are brought under a theory of public nuisance, so a correct understanding of a gang's behavior is critical. It is the nuisance activity of the gang, barring constitutional challenges, (45) which will govern the scope of the injunction. Since an injunction is an equitable action, the court must balance the restrictions on gang members' liberties (the provisions of the injunction) with the public's liberties of being protected. Thus, the greater the nuisance activity of the gang, the greater the court's ability to impose restrictive provisions in the injunction. There are many common gang activities that may be properly classified as a nuisance, especially illicit activities. (46) Walston has explained:

   A neighborhood occupied as gang "turf" becomes unsafe for local residents. Residents' property rights become subservient to the mob rule of the gang members, who enter residents' homes, deface their...