Gang Injunctions and The Attack on Civil Rights

By: Kelsey Whalen

Crime has been a major concern in cities throughout the United States. The high rate of crime in some of these cities has been primarily attributed to gangs.[1] Cities have implemented extreme preventative measures to combat gang violence. One more recent strategy being utilized is known as a “gang injunction.”[2] Gang injunctions have caused debate as there is conflicting evidence of their success in decreasing crime.[3] Regardless of their success in combating crime, gang injunctions violate the fundamental civil rights of individuals named on these injunctions.[4]

Gang injunctions are obtained when a prosecutor files a claim in civil court citing gang violence as the public nuisance.[5] The injunction can restrict individuals from engaging in specific activities within a specified area. However, these activities can include perfectly legal behavior such as: carrying a cell phone, drinking alcohol, wearing a certain color, and associating with certain individuals, including family members.[6]

Los Angeles, California was the first city to adopt a public nuisance claim in the early 1990’s in an effort to combat its rising crime rate.[7] These claims have become increasingly common across the country. To date, numerous cities throughout Southern California and New York, along with Austin, TX, San Antonio, TX, Cincinnati, OH, Phoenix, AZ, Albuquerque, NM, Chicago, IL, and Houston, TX have all implemented gang injunctions or explored similar anti-gang strategies.[8]

Gang statistics are notoriously difficult to track for numerous reasons. First, gangs do not keep official records of their members as membership often fluctuates. Second, there are individuals who may associate with a particular gang but were never actually initiated. Third, because federal grants are provided to combat gang violence, it may result in exaggerated statistics by police departments to obtain more funding.[9]

There are several reasons why an individual may join a gang. Some of these reasons include “negative life events, positive values about drugs, and association with delinquent peers.”[10] Gang activity may lead to a source of income for an individual. Gangs may target younger individuals who may not have much parental supervision or willpower to dismiss gang pressure. Living in the inner city, where crime and violence is prevalent, may also push individuals to join a gang as a means of protection.[11]

Many constitutional issues arise as a result of these injunctions. First, because no official record of gang membership exists, prosecutors have been able to file injunctions against the gang as an entity.[12] This prevents the members from ever receiving notice of the injunction, which means no one appears in court to argue against the injunction, often resulting in injunctions being granted by default.[13] Further, because individuals are not named, police officers have wide discretion when serving individuals whom they suspect to be members of the gang.[14] After being served, individuals have the opportunity to challenge the injunction. However, individuals carry the burden of proving they are not a gang member without any information as to why they were alleged to be a member in the first place.[15]

Second, violations of these injunctions can result in criminal or civil sanctions.[16] In California, criminal sanctions are often preferred, which can include, “jail time up to 6 months, a fine up to $1,000, and gang probation conditions.”[17] Gang probation often “increases the punishment for future crimes and gives the police a tool to further monitor the gang member for up to 3 years following their injunction violation arrest.”[18] Civil sanctions can also be severe, including “immediate punishment of 5 days in custody for each violation and a fine up to $1,000.”[19] Unfortunately, these criminal and civil sanctions oftentimes punish individuals for perfectly legal activities, such as sitting on their own front porch talking to a family member. Therefore, these sanctions often unnecessarily contribute to the mass incarceration epidemic in the United States.[20]

Although, gang violence has been a major problem in the United States, and gang injunctions may seem like a good way to combat this problem, there is conflicting research on whether these injunctions are actually effective.[21] Further, even if it is argued that these injunctions are an effective way to fight gang violence, these injunctions are stripping citizens of fundamental civil rights. Gangs may not be the most sympathetic group due to their association with criminal activity, but it is important to consider the negative effects that result from gang injunctions. Racial profiling is a common by-product resulting from police having wide discretion while arresting individuals that they suspect to be gang members.[22] The disproportionate number of people of color targeted by these injunctions also suggests race plays a major role in these injunctions. In California, there has not been a single white gang subjected to an injunction despite their presence in the city.[23] This in turn makes people of color especially vulnerable to police arrests. Gang injunctions also contribute to the much broader problem of mass incarceration and poverty, both of which are reasons individuals may join a gang in the first place.[24]

To combat gang violence and crime, I propose an alternative solution to gang injunctions: adequate funding of social services.[25] These services directly confront some of the main reasons why individuals join gangs. These services could include, “gang intervention and prevention programs, providing jobs and job training, and providing better educational opportunities for young people.”[26] This will likely be more effective long-term in decreasing gang violence while supporting individuals associated in gangs, without infringing on basic civil rights. While the public may be hesitant in funding programs to help individuals in gangs, funding is currently being allotted to these gang injunctions. These social programs will make our communities safer for all individuals in a more cost-effective and constitutional way.[27]

[1] Jeffrey Grogger, The Effects of Civil Gang Injunctions on Reported Violent Crime: Evidence From Los Angeles County, 45 J.L. & Economics 69 (2002).

[2] Id.

[3] Judith Greene & Kevin Pranis, Gang Wars: The Failure of Enforcement Tactics and the Need for Effective Public Safety Strategies, Justice Policy Institute Report (July 2007).

[4] Melanie Ochoa, LAPD Gang Injunctions Gave Cops a License to Harass and Control Black and Latino Residents, American Civil Liberties Union (March 23, 2018), https://www.aclu.org/blog/criminal-law-reform/reforming-police-practices/lapd-gang-injunctions-gave-cops-license-harass.

[5] Grogger, supra note 1.

[6] Ochoa, supra note 4.

[7] Grogger, supra note 1.

[8] Edward L. Allan, Policing by Injunction: Problem-Oriented Dimensions of Civil Gang Abatement in the State of California, U.S. Department of Justice (November 2002), https://www.ncjrs.gov/pdffiles1/nij/grants/197138.pdf.

Grogger, supra note 1.

[9] Ed Grabianowski, How Street Gangs Work, How Stuff Works (September 26, 2006), https://people.howstuffworks.com/street-gang.htm.

[10] Greene & Pranis, supra note 3.

[11] Grabianowski, supra note 9.

[12] Ochoa, supra note 4; People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090 (1997) (stating a district attorney could name a gang as a defendant), People ex rel. Totten v. Colonia Chiques, 156 Cal. App. 4th 31 (2007) (holding a gang is a “jural entity” and an injunction against the gang may properly bind non-parties to the proceedings who are active members of the gang.).

[13] Ochoa, supra note 4.

[14] Id.

[15] Id.

[16] Matthew D. O’Deane & Stephen A. Morreale, Evaluation of The Effectiveness of Gang Injunctions in California, 2 J. Crim. Just. Re. (2011).

[17] Id.

[18] Id.

[19] Id.

[20] Greene & Pranis, supra note 3.

[21] Id.

[22] Gang Injunctions Fact Sheet, ACLU Norcal (May 2010), https://www.aclunc.org/article/gang-injunctions-fact-sheet.

[23] Id.

[24]Greene & Pranis, supra note 3.

[25] Gang Injunctions Fact Sheet, ACLU Norcal (May 2010), https://www.aclunc.org/article/gang-injunctions-fact-sheet.; Matthew D. O’Deane & Stephen A. Morreale, Evaluation of The Effectiveness of Gang Injunctions in California, 2 The J. of Criminal Justice Research (2011).

[26] “Gang Injunctions Fact Sheet” supra note 22.

[27] Greene & Pranis, supra note 3.

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