9th Circuit Court Rules OC DA's Gang Injunction in Orange Violates Due Process

The Ninth Circuit Court of Appeals dealt a heavy blow Tuesday against OC District Attorney Tony Rackauckas in a class-action lawsuit challenging the constitutionality of an Orange gang injunction.

The long-standing legal battle stems from his filing of a civil restraining order in 2009, with the help of the Orange Police Department, against 115 alleged members of the Orange Varrio Cypress (OVC) street gang. The federal appeals court ruled that the injunction's provisions were so sweeping that enforcement of them constituted a "heavy burden" on an individual's basic freedoms.

It was also found that the OCDA's means of determining OVC gang affiliation carried a "considerable risk of error."

The ACLU of Southern California and the law firm Munger Tolles and Olson, LLP brought suit against the OCDA and Orange police in Vasquez v. Rackauckus and are naturally pleased with the most recent developments.

"The OCDA and other law enforcement agencies can no longer go behind closed doors and unilaterally decide who is a gang member," says Belinda Escobosa Helzer, director of the ACLU's OC office. "This ruling brings to light the complexity of identifying active gang members and underscores that the Constitution cannot be ignored."

Keith May
Vasquez and his mural

Under the Orange gang injunction, restrictions were placed on attire, social associations in public, and curfew restrictions within the imposed "safety-zone." There existed no exceptions for those named to attend church services or exercise their right to take part in demonstrations. And, as the Weekly reported at the time, congregating by a historic Chicano mural by legendary artist Emigdio Vasquez--itself classified by Orange detectives as subversive and crime-inspiring--was considered gang activity.

The historic barrio rooted in the county's citrus industry organized against the injunction as Daffodil Altan chronicled during her time with the Weekly. Community activist Yvonne Elizondo contacted the ACLU and a legal challenge was mounted. More than 50 of the total 115 people alleged as gang members showed up to court to contest the notion. Rather than prove their case, the OCDA simply dismissed the individuals in the temporary injunction. When it became permanent, those dismissed were subjected to its provisions nonetheless and were at risk of arrest for everyday activities, even as simple as being in a restaurant where alcohol is served.

For her outspokenness, Elizondo recounted when her children were targeted by Orange Police and fingerprinted during a traffic stop. They were served STEP (Street Terrorism Enforcement and Prevention Act) cards on the alleged basis that a person in the car was a member or an associate of the OVC gang.

Those types of law enforcement encounters proved to be pivotal under the scrutinizing eye of the federal appeals court. The ACLU believes that this week's ruling may also have ramifications beyond Orange County.

"It's common practice in gang injunction cases for prosecutors to name only a gang as a defendant, obtain an injunction by default when no one shows up on behalf of the gang to contest the case and then to apply the injunction to anyone police or prosecutors think may be a gang member, without court approval or a chance for the supposed gang member to be heard," says ACLU of Southern California Senior Staff Attorney Peter Bibring.

"The Ninth Circuit's ruling calls that practice into question."

Follow Gabriel San Román on Twitter @dpalabraz

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18usc241 topcommenter

If there is an NSA/FISA secret court stye-rubber-stamp-fraud-of-a-judge in Orange County, CA who never sees an opportunity to harm Hispanic people he doesn't like - maybe this disgrace can explain how his cops in Orange County, CA were stupid enough to treat the Hispanic American man risking his life on law enforcement engineering projects in Bogota, Colombia as if he were a gang member. And while your at it confident- Bernie-Madoff-fraudster figure out which wannabe mafia cop defrauded this genius District Attorney into convicting me of using a false name or DOB while under 24/7 surveillance/harassment by the same mobster trash cops.

Let me help you out with a tip: you have a bunch of cocaine traffickers pretending to be cops here in lil old OC. That answer would explain EVERYTHING that I've witnessed in terms of this police communities' behavior behind the backs of the people who have almost a religious trust in them.

And besides harboring garden variety sociopathic character traits the other reason that your cops behave this way is because of idiots like you. You know, as if the violent gang member problem wasn't enough of a problem - your police have to go be exactly like the very thing that they arrest ; bullies, intimidators reputation destroyers, property destroyers, attempted murderers (which by default means murderers). And that's not the complete list rubber stamp genius.

And finally genius judge, figure out who in Orange County , CA law enforcement is using Hispanic gang member types to commit crimes for them. Refer back to the aforementioned short list of crimes. Hypocrisy much?

Just doing my civic duty as an American. Especially if you don't like it.


What is also not mentioned is that the injunctions are CIVIL suits and not CRIMINAL suits, this is important because under a criminal suit the defendants are entitled to an attorney, while under a civil suit, there is no such entitlement. This is just the latest higher court that ruled these injunctions unconstitutional, but the OCDA has ignored all these rulings and kept going back to the one and only OC judge that will sign off on these illegal in junctions!  the arrogance of the OCDA never ceases to amaze me!!!!  My son, a special education student whom is African-American, was placed on the first OC Mexican gang injunction in the San Clemente area, and has been repeatable violated for not doing a crime, but for just being "in the area" of San Clemente!

Daniel Rubalcava Jr.
Daniel Rubalcava Jr.

Let me get this straight...115 were named in the injunction. Fifty "alleged" gang members contest the injunction. The DA decides to dismiss only the 50 that contested but still wants to enforce the injunction on them. I'm glad the 9th Circuit reminded the DA that due process is still a part of our justice system. It usually is not a good sign for DA's to get embarrased like this.


Restricting a person's freedom of movement because of a crime they MIGHT commit? How is this NOT unconstitutional?

18usc241 topcommenter

The judge which you refer to is Daniel Didier correct?

18usc241 topcommenter

These were dismissed because the allegations were fraudulent. And this is why there are going to be a lot of folks wearing lederhosen with federal prison numbers stamped on the front here in good ole OC.

Nineteen twenty five kicked up a notch.

20ftjesus topcommenter

@FishWithoutBicycle Gang members commit crimes for a living; there's no "maybe" about it.  The police are losing a valuable public safety tool.  Let's hope no one dies because of it.


@20ftjesus @FishWithoutBicycle  

But what about the family members and/or neighbors who aren't gang members? They are innocent, but the injunction clearly affects them too. Consider also: there are dangerous White Supremacist gangs out there but  there are no similar injunctions filed against their actual/supposed members. Why is that?

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