That was then, this is now
New improved gang injunction is a lot like the old one
The Yolo County district attorney is back with a new and improved gang injunction targeting the Broderick Boys of West Sacramento. The last injunction got tossed out this spring by the Third District Court of Appeals for what DA Jeff Reisig calls “technical issues.” It was, the court found, technically unconstitutional.
Accordingly, the DA went in and made a couple of quick fixes to the old law, slapped on a fresh coat of paint and took it out for a spin last week.
There are some differences, but mostly similarities, between the old injunction and gang injunction 2.0 that debuted in Yolo County Superior Court on August 2.
The new gang injunction imposes many of the same restrictions on alleged gang members—including lifetime 10 p.m. to 5:30 a.m. curfews for individuals determined by police to be gang members and operating within the 3-square-mile “safety zone” encompassing the West Sacramento neighborhoods of Broderick and Bryte. It features the same prohibitions against socializing with other Broderick Boys in public, consuming alcohol or even being in the presence of alcohol “anywhere in public view or anyplace accessible to the public.” It also includes no-brainers like “no graffiti,” “no trespassing” and, of course, to “obey all laws.” Violating terms of the injunction can earn you a fine of up to $1,000 or six months in jail.
Of course, it’s still not illegal to be a gang member in West Sacramento, or anywhere else in California or the United States. But that doesn’t work in the favor of people who are accused of being gang members—just the opposite. Because gang injunctions are civil and not criminal procedures, they don’t afford those who may be subject to the new rules the same rights as someone accused of a specific crime.
Because it’s not illegal to be a gang member, the DA doesn’t actually have to prove in criminal court that one is, in fact, a gang member. Simply being identified as a Broderick Boy and being served with papers by the police are enough to make one subject to the curfews and other restrictions of the injunction. In the past, people caught up in the injunction have run the gamut from career criminals to people with no record of gang crime at all. (See “Round up the hood,” SN&R News, June 23, 2005.)
“The burden should be on the district attorney to make their case that a person is in a gang,” said Anne Brick, the ACLU attorney who got the last gang injunction thrown out. “One of the big problems with gang injunctions is that it is totally up to the police who they serve and who they don’t serve.”
As in the past, the DA declined to answer SN&R’s questions about this issue.
Leading up to the first gang injunction in late 2004, the DA notified one person, Billy “Bouncer” Wolfington, that the gang injunction was being sought. And he didn’t show up for the preliminary hearing in late 2004. Once the original injunction was finally approved by the Yolo County Superior Court in February 2005, the police then went on to notify approximately 80 individuals that they would have to abide by the new rules. But the federal court later found that notifying “Bouncer” really didn’t give anyone else a chance to argue against the injunction in court.
This time around, the DA served 23 people with notice of an August 2 preliminary hearing on the new gang injunction. But only four showed up in court: Michael Morales, Felipe Valdez Jr., Guillermo Rosales and Rudy Tafoya—the latter three dubbed “Shug,” “Duke” and “Rude Dog” in the DA’s complaint. The new gang injunction will be heard again in September, after the alleged Broderick Boys find lawyers. Again, because the gang injunction is a civil matter, the group is not entitled to court-appointed attorneys.
Is serving 23 supposed gang bangers, instead of just one, enough to pass constitutional muster? That remains to be seen.
“This time, people showed up,” said Brick. “Whatever else happens, there’s going to be a contested hearing, and that’s important.”
She also noted that the new gang injunction also would be imposed on “Does 1 through 400,” alleged gang members who could be brought under its rules in weeks, months, even years later—without a trial.
“It’s very open-ended,” Brick said. “They want to be able to pick and choose who they serve, and the time they get served.”
And deciding who is a gang member and who isn’t is not an exact science. In fact, “it’s junk science,” said attorney Mark Reichel, who plans on representing an alleged Broderick Boy in court this fall.
“If you wear a certain color, if you like a certain sports team, if you’re seen talking to certain individuals, those are all factors,” Reichel said. “It gives way too much power to law enforcement. It makes The Scarlet Letter look soft.”
Earlier this year, SN&R interviewed alleged gang member Jason Swearengin, who was one of four Broderick residents represented by Brick and the ACLU when the last gang injunction got tossed out (See “'I am not a gang member,’” SN&R News, May 3, 2007).
Assistant District Attorney Jay Linden told Superior Court Judge Timothy Fall in open court August 2 that the new gang injunction would not target Swearengin or the other three served under the original injunction. SN&R called Linden to ask whether that’s because the four are no longer believed to be gang members, but he did not return the calls.
Two years ago, the district attorney pursued the gang injunction without notifying West Sacramento elected officials. But a press release from Reisig’s office last week stated the new injunction was being launched “after consulting with civic leaders from the city of West Sacramento.”
SN&R called the most official of city officials, Mayor Christopher Cabaldon, to get his take. Cabaldon told SN&R back in 2005 that he had “a healthy amount of skepticism” about gang injunctions generally. “I don’t think we should be like the movie Minority Report, where we are arresting people because they might commit a crime,” he said then.
This time, it’s harder to gauge the mayor’s enthusiasm for gang injunctions: He also didn’t return our calls.