Crime unincorporated

The failure of a controversial “gang injunction” in West Sacramento may unravel similar anti-gang tactics in other California cities.

That’s why the California District Attorneys Association attempted—and failed—earlier this month to get the state Supreme Court to “depublish” the opinion that the Third District Court of Appeals issued last spring when it tossed out the injunction against West Sacramento’s Broderick Boys gang. (See “I am not a gang member,” SN&R News, May 3, 2007.)

“Our concern is that it could prohibit us from suing gangs as an entity, rather than individually,” said Mike Schwartz with the Ventura County district attorney’s office.

Prosecutors view suing a gang as one entity an important crime-fighting tool. Otherwise, they would have to drag every alleged gang member into court and prove they are gang members before imposing special conditions against the gang.

“It’s just impractical,” Schwartz said. “The Chiques [gang] has thousands of members, and the membership is always changing.”

Schwartz’s office is defending lawsuits against two gang injunctions there, imposed on the Colonia Chiques and the Southside Chiques.

Similar to the West Sacramento case, prosecutors in Ventura have attempted to impose curfews and strict rules prohibiting the Chiques from associating with each other in public.

Unlike the West Sacramento gang injunction, the Ventura County DA made an attempt to notify the public that the injunction was being sought. Where Yolo County DA Jeff Reisig felt it was adequate to give notice to just one alleged gang member—a man who didn’t live in West Sacramento—the Ventura prosecutors warned a whopping 65 alleged Chiques and printed notice of the injunction in the local daily newspaper.

There were several reasons that the Broderick Boys injunction was found to be unconstitutional. Besides failing to adequately notify individuals who could be subject to an anti-gang injunction, the Yolo County DA goofed when it defined the gang as an “unincorporated association” under state law, according to the appellate ruling.

The California Corporations Code defines “unincorporated association” as “two or more persons joined by mutual consent for a common lawful purpose.” Schwartz is among the DAs who believe the appellate court erred with the West Sac case because most criminal street gangs do gather for common-lawful purposes—like hanging out and socializing.

This is key, because prosecutors increasingly have relied on the “unincorporated association” definition to enforce at least 32 gang injunctions against nearly 50 gangs around the state. Thus, by playing fast and loose with the notification process, the Yolo County DA may have exposed the vulnerability of the very foundation of gang injunctions.

Now that the state Supreme Court has rejected the request to depublish the decision, defense attorneys will be able to cite the Broderick Boys case to attack other gang injunctions. Schwartz already sees the writing tagged on the wall: “The appeals court in our case is definitely very interested in the Broderick Boys case.”