INTRODUCTION
In its efforts to combat crime committed by street gangs—a societal ill that unquestionably warrants tough measures—California has pursued a range of aggressive tactics. It is axiomatic, however, that the tough measures employed must not violate the protections enshrined in the Constitution. This is particularly true with respect to those rights the Supreme Court has labeled “fundamental,” such as the freedom of individuals to associate with their own family members, a right that promotes the formation of self-identification and provides individuals with companionship, emotional enrichment, and the opportunity “to love and be loved.”[1]
Unfortunately, this fundamental right is in tension with a tactic that California has been using for over thirty years to control and suppress gang activity: civil gang injunctions. Despite acknowledging the restrictions gang injunctions place on the right to associate with family members,[2] California courts have failed to properly assess the issue, and the State of California continues to unduly interfere with enjoined individuals’ freedom of intimate association.
WHAT ARE GANG INJUNCTIONS?
Civil gang injunctions (“CGIs”) are court orders obtained by government officials, declaring alleged street gangs’ activities a public nuisance and imposing certain restrictions on the alleged members’ conduct.[3] Once an alleged gang member is named to an injunction, she becomes enjoined from engaging in a broad range of activities.
Many of the terms prohibit activities that are lawful, ordinary, and innocuous. Previously enjoined activities, for instance, include publicly associating with any other alleged member, leaving home after 10:00 p.m., wearing clothes of certain colors, possessing spray paint and markers, and, ironically, protesting the legality of gang injunctions at the local town hall.[4]
Since the California Supreme Court upheld the constitutionality of gang injunctions in 1997,[5] the use has expanded throughout California and remains widespread there today.[6] Yet, despite their prevalence and judicially-acknowledged legitimacy, CGIs remain controversial for a variety of reasons related to both their substantive terms and the procedures by which city officials obtain and enforce the injunctions.
As to the former, critics and litigants challenging the CGIs have argued that the terms of certain injunctions are impermissibly overbroad[7] and void for vagueness,[8] while others infringe affected parties’ rights to free speech,[9] expression,[10] and movement.[11]
In regards to the latter, critics charge that many individuals currently bound by CGIs were misidentified as gang members.[12] Because of the nebulous concept of “gang membership,” there are no fixed criteria to determine whether an individual is an active gang participant, and the standards used by government representatives to make gang determinations are often inconsistent.[13] In some cases, government officials have designated an individual an active gang member for merely wearing “gang colors”—including neutral colors such as black, white, and blue—or being seen in the presence of other “validated” or “known” gang members.[14]
Additionally, the decision to designate an individual as a gang member is made unilaterally by the state. Neither the prosecutor’s office nor law enforcement agencies are required to produce evidence of the alleged gang membership to any tribunal before serving an individual with an injunction.[15] The Ninth Circuit has stated that these procedures pose “an unacceptably high risk of error.”[16]
Consistent with this observation, a recent audit conducted by the State of California concluded that roughly 23 percent of all individuals entered into the California Department of Justice’s gang database lacked adequate support for their entry.[17] This finding is striking as it suggests that, even if the state’s definition of “active gang membership” is a perfect proxy of gang membership (which it almost certainly is not),[18] the state still lacks sufficient evidence of gang membership for nearly one in four of the individuals the state currently classifies as gang members.
Finally, CGIs’ terms are often imposed against individuals that were not even parties to the suit when the order was handed down.[19] Rather, city officials commonly obtain default judgments against the alleged gang as an entity, and then subsequently serve the injunction on individuals they unilaterally conclude are active gang members—immediately triggering the CGIs’ terms.[20] Even more problematic, enjoined parties lack any meaningful way to challenge their designation before becoming subject to the injunctions’ terms.[21] Although the Ninth Circuit recently declared this practice violative of due process,[22] pending litigation in the Central District of California affirms that it remains in existence in at least some jurisdictions.[23]
FUNDAMENTAL RIGHT TO INTIMATE ASSOCIATION
One of the most oppressive aspects of virtually all CGIs is the failure to except family members from the proscription on public association. As a result, fathers and sons, uncles and nephews, siblings, and cousins named to a CGI are strictly barred from associating with one another in public view inside of a specified “safety zone,” a region most alleged gang members live within.[24] Violating this provision may subject both individuals to arrest and prosecution for contempt for court.[25] Contrary to the opinions of the California Court of Appeals[26] and California Supreme Court,[27] this practice is unconstitutional.
The Supreme Court expressly recognized a right to “intimate association” as a fundamental liberty under the First Amendment in the landmark Roberts v. U.S. Jaycees decision in 1984.[28] Expounding upon the type of associations protected by this right, the Court asserted that family relationships were the prototypical “intimate association,” and are therefore entitled to the most stringent protection.[29]
In reaching its decision, the Court relied on past decisions emphasizing the deep attachments and “special community of thoughts, experiences, and beliefs” attendant to familial relationships, in addition to their distinctively private nature.[30] The majority further reasoned that individuals’ identities are heavily shaped by emotional enrichment from close associations, especially family members, and thus governmental interference with such relationships intrudes upon individuals’ ability to independently define themselves.[31] Based on these factors, the Court concluded that “certain intimate human relationships must be secured against undue intrusion by the State.”[32]
CGIs’ routine failure to exempt family members from the prohibition on public association, however, infringes upon this right. A typical example of such a prohibition provides that enjoined parties are restrained from “stand[ing], sit[ting], walk[ing], driv[ing], bicycl[ing],” or “gather[ing] or appear[ing]” in “any public place” with any other enjoined parties, including family members.[33]
When such terms are applied to two or more family members—as is common—the injunction serves to significantly limit the activities the relatives may engage in with one another, the places they may go together, and thus, how much time they spend together. In sum, CGIs place both quantitative and qualitative limitations on the relationship. Consider the experiences of the named plaintiffs in the recent Vasquez decision:
Vasquez no longer goes anywhere in the injunction area with his brother, with whom he lives and who has also been served with the Order. Plaintiff Lara no longer goes with his family, including his twin brother, who also has been served with the Order, to their favorite restaurants, to the local pool where Mr. Lara learned to swim, to parks where the family previously picnicked, or to the City of Orange’s annual street fair. [T]he Bastida brothers . . . no longer drive through the injunction area together or visit family together, or attend family functions that are held outdoors, for fear of violating the Order. When their grandfather had a stroke and was taken to a hospital . . . in the middle of the night, their mother was forced to decide whether to permit the brothers to visit the publicly accessible hospital, an act that would violate . . . [the] association provision[] of the Order.[34]
Other injunctions have similarly limited fathers and sons’ associations.[35] Peter Arellano, for instance, a plaintiff named in pending litigation challenging the City of Los Angeles’ use of CGIs, was served with the same injunction as his father. Mr. Arellano referred to the injunction as “inhumane,” and stated, “It’s pretty cruel. I don’t see how the LAPD can enforce the law saying that you can’t be with your family.”[36]
Such limitations strike at the core of what the Roberts Court sought to protect: the private nature of familial associations; the emotional enrichment familial bonds provide; and the companionship and sense of community afforded by shared experiences.
The Ninth Circuit acknowledged as much in a 2013 decision, albeit in dicta, when it provided that a particular CGI’s provision barring public association “burden[ed] the constitutionally protected freedom of intimate association by barring association with family members in public places such as schools, churches, parks, libraries, stores, and restaurants (and in some instances, at home), if in public view.”[37] The court did not more heavily scrutinize the burden on free association, however, because the action merely challenged CGIs on due process grounds.[38]
Presumably, the challengers did not contest the injunction on intimate association grounds because the California Supreme Court and California Court of Appeals, both of which are binding on the trial court that issued the CGI under review, have affirmed the practice’s constitutionality. Though, in doing so, both courts were profoundly mistaken.
In 1997, the Supreme Court of California held in People ex rel. Gallo v. Acuna that a CGI term barring any defendant from publicly appearing with any other defendant or known gang member did not violate the challengers’ freedom of association because the alleged gang, itself, was not entitled to such protection.[39] The court reasoned that gangs were not sufficiently “intimate,” and do not form for the purpose of engaging in constitutionally protected activities, such as religious worship or political speech.[40]
While this often may be the case, it misses the point. As exemplified by the family members in the Vasquez case, smaller, more salient associations may—and typically do—exist within the framework of an urban gang. Thus, while CGIs may not facially infringe upon enjoined parties associational rights, they are are often applied in a manner that does precisely that.
Four years later, the California Court of Appeals in People v. Englebrecht acknowledged this distinction and conceded that gang injunctions place “some burden on family contacts,” but rejected the constitutional challenge because, in their view, CGIs do not have a “fundamental impact on general family association.”[41] This logic is indefensible, however. The court cited no authority mandating that governmental actions burdening First Amendment rights have a “fundamental” impact on the “general” right, and indeed, no such requirements exist. Nonetheless, Englebrecht remains good law, and was reaffirmed in 2007 in People ex rel. v. Colonia Chiques.[42]
Had any of these courts applied the appropriate analysis, it would have subjected the CGIs to strict scrutiny review rather than merely balancing the equities at stake.[43] It is well-established that the strictest judicial scrutiny must be applied to governmental restrictions on fundamental rights.[44] More specifically, the California Supreme Court has explicitly held that public nuisance laws placing “restrictions upon the exercise of First Amendment rights must be drawn with a narrow specificity calculated to prevent repression of expressive activities as to which restriction is constitutionally forbidden.”[45]
The freedom of intimate association is a fundamental right, and thus, state actions that have the effect of curtailing the right must be justified by a compelling governmental interest, and must be narrowly tailored to serve only that interest.[46]
While few can argue that suppressing gang crime is not a compelling interest, restricting family members from engaging in ordinary, innocuous activities is not necessary to further that interest. Do municipalities genuinely fear that fathers and sons will plot gang conspiracies while attending church? Or that they will harass or intimidate innocent bystanders while eating dinner with their family? Or that they will rob the local hospital while visiting their sick loved ones?
Such notions are nonsensical. The failure to except relatives, then, is grossly over-inclusive. In an effort to restrict the harmful behavior of potential gang members, government officials have swept up a host of innocent, constitutionally protected behaviors. This fails to satisfy the narrow tailoring mandated by strict scrutiny analysis. Additionally, the injunctions are ineffective. If family members are intent on coordinating criminal activity, but are deterred by a gang injunction from doing so in public view, they will simply do so in private—rendering the injunction against public association useless.[47]
Finally, if the state was truly concerned with furthering only its interests in reducing crime, then it would exempt family members from associating with one another in, at the very least, public locations where relatives are exceedingly unlikely to commit any gang-related conduct, such as churches, restaurants, retail and grocery stores, occupational facilities, and governmental facilities. Failure to do so compels the conclusion that civil gang injunctions are not the least restrictive means of furthering the government’s interest in combating gang-related crime.
CONCLUSION
Justice O’Connor referred to familial associations as “zones of privacy” that must be “protected from government interference.”[48] Indeed, the First Amendment’s freedom of intimate association protects the family against undue intrusion by the state.[49] Despite this promise, various California municipalities impose extraordinarily restrictive injunctions on alleged gang members which prohibit family members from engaging in ordinary, everyday activities with one another. Notwithstanding California appellate courts’ erroneous decisions to the contrary,[50] the Supreme Court’s freedom of association jurisprudence makes clear that this practice is unconstitutional.
[1] Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 630-37 (1980); Joshua P. Roling, Note, Functional Intimate Association Analysis: A Doctrinal Shift to Safe the Roberts Framework, 61 Duke. L.J. 903, 909 (2012).
[2] See People v. Englebrecht, 88 Cal. App. 4th 1236, 1261-62 (2001); People ex rel. Totten v. Colonia Chiques, 156 Cal. App. 4th 31, 45-46 (2007).
[3] See American Civil Liberties Union of Northern California, Gang Injunctions Fact Sheet, (May 2010), https://www.aclunc.org/article/gang-injunctions-fact-sheet.
[4] See, e.g., People of the State of California v. Norteno, Case No. FCS033620, 3-4 (Cal. Super. Ct. Solano County July 24, 2009) (order granting preliminary injunction); Youth Justice Coalition v. City of Los Angeles, No. LA CV 16-079320VBF, 2017 WL 396141, at *1 (C.D. Cal. Jan. 27, 2017); Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013).
[5] People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1126 (1997).
[6] See e.g., Matthew Mickle Werdegar, Note, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 Stan. L. Rev. 409, 414 (1999).
[7] See e.g., Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 Nw. U. L. Rev. 212, 247-52 (1994).
[8] See e.g., id.; Werdegar, Enjoining the Constitution, at 412; Colonia Chiques, 156 Cal. App. 4th at 67 (declaring gang injunction’s curfew provision unconstitutionally vague); Matthew D. O’Deane, Gang Injunctions and Abatement: Using Civil Remedies to Curb Gang-Related Crimes (2011).
[9] See e.g., Werdegar, Enjoining the Constitution, at 414; Englebrecht, 88 Cal. App. 4th at 1263-65 (assessing the challenger’s claim that various provisions of the CGI to which he was bound infringed upon his right to free speech).
[10] See e.g., Yoo, The Constitutionality of Enjoining Criminal Street Gangs, at 224.
[11] See e.g., id. at 224, 245-47.
[12] See American Civil Liberties Union of Northern California, supra note 3.
[13] Vasquez, 734 F.3d at 1047.
[14] See id.; People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1146 (1997) (Mosk, J., dissenting).
[15] See Vasquez, 734 F.3d at 1044, 1048.
[16] Id. at 1053.
[17] California State Auditor, Report 2015-130, The CalGang Criminal Intelligence System: As the Result of Its Weak Oversight Structure, It Contains Questionable Information that May Violate Individuals’ Privacy Rights, 3 (2016).
[18] The State of California defines an “active gang member” for the purpose of CGIs to include “a person who participates in or acts in concert with” a gang where the participation “is more than nominal, passive, inactive, or purely technical.” See People v. Green, 227 Cal. App. 3d, 692, 699-700 (1991); Englebrecht, 88 Cal. App. 4th at 1261 (2001) (providing that gang injunctions may only be applied to “active members” whose participation in gang-related activities must be “more than nominal, passive, inactive, or purely technical”). Given the breadth of this definition, it takes little stretch of the imagination to presume that many persons who are not actual gang members get classified as such merely for associating with gang members, whom may be their family members, friends, or classmates.
[19] See, e.g., id. at 433; Complaint at 5-9, Youth Justice Coalition, 2017 WL 396141.
[20] Id.
[21] Id.
[22] Vasquez, 734 F.3d 1025.
[23] See Youth Justice Coalition, 2017 WL 396141, at *1.
[24] See Complaint at 5-6, Youth Justice Coalition, 2017 WL 396141.
[25] See id. at 4.
[26] Englebrecht, 88 Cal. App. 4th at 1261-62; Colonia Chiques, 156 Cal. App. 4th at 45.
[27] Acuna, 14 Cal. 4th at 1126.
[28] See Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984).
[29] See id. at 620.
[30] See id. at 620-21.
[31] See id. at 619.
[32] Id.
[33] See Vasquez, 734 F.3d at 1032.
[34] Id. at 1044 (internal quotations omitted).
[35] James Queally, LAPD Gang Injunctions Deny targets Due Process, ACLU Lawsuit Says, Los Angeles Times (Oct. 25, 2016).
[36] Id.
[37] Vasquez, 734 F.3d at 1043 (internal quotations omitted).
[38] See id. at 1041.
[39] People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1110-11 (1997).
[40] Id.
[41] Englebrecht, 88 Cal. App. 4th at 1261-62.
[42] See People ex rel. Totten v. Colonia Chiques, 156 Cal. App. 4th 31 (2007)
[43] See Englebrecht, 88 Cal. App. 4th at 1263 (“Any attempt to limit the familial associational impact of the injunction would make it a less effective device for dealing with the collective nature of gang activity.”).
[44] See, e.g., Carey v. Population Servs., Int’l, 431 U.S. 678, 686 (1977) (holding that decisions affecting procreation is a fundamental right that extends to minors and, therefore, governmental actions interfering with minors’ access to contraceptives must pass strict scrutiny to survive); United States v. Kokinda, 497 U.S. 720, 726 (1990) (holding that restrictions on speech in traditional public forums must be subjected to strict scrutiny); Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765 (First Amendment activity may be enjoined only so long as it “burden[s] no more speech than necessary to serve a significant government interest.”).
[45] In re Berry, 68 Cal. 2d 137, 155 (1968).
[46] See, e.g., NAACP v. State of Ala. ex rel. Patterson, 357 U.S. 449, 460-63.
[47] Many thanks to Elizabeth Valentin for this observation.
[48] Id. at 631 (O’Connor, J., concurring).
[49] Roberts, 468 U.S. at 617-18.
[50] Acuna, 14 Cal. 4th at 1126; Englebrecht, 88 Cal. App. 4th at 1261-62; Colonia Chiques, 156 Cal. App. 4th at 45-46.
