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

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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."

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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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