Court Rejects Municipal Law Curbing Gangs : Appeal: Ruling bars San Jose ordinance banning acts that are otherwise legal. It could affect similar measures in other cities.

Limiting a popular anti-gang strategy employed by many Southern California cities, an appeals court has ruled that San Jose lacks the power to control gangs through injunctions prohibiting behavior that is otherwise legal.

If upheld on appeal, the ruling could have the effect of voiding controversial portions of several court orders now in effect in Los Angeles, Norwalk and Burbank, authorities said.

The decision “narrowed” and “limited” the San Jose injunction, said San Jose City Atty. Joan Gallo.

Cities across the state have enacted ordinances that allow judges to issue orders designed to limit crime by banning gang members from performing normally legal acts, such as possessing cellular phones or congregating in public.

The 6th District Court of Appeal on Monday upheld an injunction issued against a San Jose gang, but ruled that many of the acts prohibited by the injunction are not crimes, regardless of whether they are committed by gang members.

As a result, it is constitutionally impermissible for the city of San Jose to prohibit gang members from possessing beepers in public places, signaling or acting as lookouts to warn others that police are approaching, or engaging in a laundry list of otherwise legal acts.

“The net effect is that the police departments can’t use overly broad and unconstitutional mechanisms for picking up people when they haven’t committed criminal acts,” said Amitai Schwartz, a San Francisco attorney who represented half a dozen gang members who challenged the injunction.

In 1993, the city of San Jose obtained an injunction against two street gangs, the Varrio Sureno Locos and Varrio Sureno Treces, prohibiting them from doing a list of activities in a four-block area of San Jose known as Rock Springs, which had been plagued by drug-dealing and graffiti.

The appeal court found that five of the youths who challenged the court order could be named in the injunction because they were suspected of possessing, using or selling drugs. But the court dismissed a sixth youth, Blanca Gonzalez, as a defendant because she only had dressed in gang clothing, claimed gang membership and hung out in Rock Springs.

The case had been closely watched by prosecutors and defense attorneys in Los Angeles, where similar injunctions have been granted.

Burbank authorities won a court order in 1992 banning suspected gang members from being seen together on a section of West Elmwood Avenue, including some who lived there, after two people were shot and injured within hours of each other.

The slaying of apartment owner Donald Aragon on Blythe Street in Van Nuys later that year prompted the Los Angeles city attorney’s office to obtain an injunction to curb the acts of a gang it said had taken over an entire block. Issued in 1993, the injunction prohibited gang members from possessing beepers and standing on rooftops, among other restrictions.

Most recently, county prosecutors obtained an injunction against a Norwalk gang that established curfews and forbade 22 members of the Orange Street Locos from carrying crowbars and baseball bats.

“Assuming that it stands, (the appeal court decision) has pretty much rendered the Blythe Street injunction useless,” said Alex Ricciardulli, a Los Angeles County deputy public defender. “All along we’ve been saying that there are criminal laws out there and to take a shortcut is illegal.”

Debbie Lew, supervising attorney for appeals for the Los Angeles city attorney’s office, said her office could still prevail in court if it is able to distinguish differences between the San Jose and Blythe Street injunctions.

“I think in most cases they’re distinguishable,” Lew said.

Meanwhile, both the Los Angeles city attorney’s office and the county public defender’s office have petitioned the state Supreme Court to review the Blythe Street injunction. Earlier this year, charges based on violations of the injunction were thrown out by an appellate judge who ruled that prosecutors had filed the case in the wrong court.

Gallo, the San Jose city attorney, said a decision on whether to appeal the 6th District’s ruling will be made Tuesday by the San Jose City Council.

“Whether or not we appeal,” Gallo said, “there will be a gang-abatement program in San Jose.”