How Not to Fight the War Against Urban Gangs

The California Supreme Court recently declared a four-block section of San Jose, known as Rocksprings, a “war zone.” But the justices neglected to call out the tanks.

Writing for a 4-3 majority in People vs. Acuna, Justice Janet Rogers Brown described the neighborhood: “Rocksprings is . . . claimed as the turf of a gang . . . known as Varrio Sureno Treces (VST). Gang members, all of whom live elsewhere, congregate on lawns, on sidewalks, and in front of apartment complexes at all hours of the day and night. They display a casual contempt for notions of law, order and decency--openly drinking, smoking dope, sniffing toluene and even snorting cocaine laid out in neat lines on the hoods of residents’ cars. The people who live in Rocksprings are subjected to loud talk, loud music, vulgarity, profanity, brutality, fistfights and the sound of gunfire echoing in the streets. . . . Murder, attempted murder, drive-by shootings, assault and battery, vandalism, arson and theft are commonplace.”

To combat this disintegration of law and order, the city attorney obtained an injunction prohibiting gang members from “standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant . . . or with any other known ‘VST’ member.” Gang members fought the injunction on 1st Amendment grounds: the injunction, they contended, infringed on their right to associate with fellow gang members.

Reversing a lower court, the state Supreme Court upheld the injunction. San Jose’s mayor, Susan Hammer, unabashedly claimed that the injunction had pacified Rocksprings. Atty. Gen. Dan Lungren joined the praising chorus, declaring the court’s decision “would resonate far beyond California.” Last week, Mayor Richard Riordan proposed a similar injunction to thwart 18th Street gang members in Pico-Union.

Curiously, not a single quote from a Rocksprings resident can be found in the more than 35 stories on the case published since the ruling.

Maybe there is a good reason for the silence. If Rocksprings is indeed a “war zone,” a piece of paper with the word “injunction” typed on it isn’t going to bring about peace. At most, it gives the San Jose Police Department legal cover for what it has already been doing--rousting suspected members.

But Brown and her brethren may have opened a constitutional door. Rocksprings is now a legally declared “war zone” and, as such, it is time to bring out the big guns. Literally.

Lawyers and judges determine the legal significance of words and phrases by consulting case precedents. In 147 years, the California Supreme Court has used the phrase “war zone” on only one other occasion. In the 1929 case Murnane vs. LeMesnager, the court was required to interpret the will of a Frenchman who returned to his native land to fight the Germans in World War I. Northern France was definitely a “war zone.”

Having established the definition of “war zone,” it becomes necessary to respectfully suggest that Brown may have mis-analyzed the appropriate law. First Amendment “free association” cannot exist in a “war zone,” because, as the court correctly points out, people are shooting at each other on the streets of Rocksprings. No, a “war zone” case calls for the invocation of the 3rd Amendment, because, in effect, Rocksprings is “occupied” by gang members without the consent of its residents.

Granted, there are not many 3rd Amendment cases for the state Supreme Court to rely upon. Actually, there are none. Of the tens of millions of words written by the U.S. Supreme Court, the 3rd Amendment has been mentioned only 15 times since 1789, almost always in a footnote. The California Supreme Court has cited the 3rd Amendment only once, in a dissent that had nothing to do with the amendment.

But one should not be faint of heart when confronting a war zone. Strung between the 2nd Amendment’s right to bear arms and the 4th’s prohibition against unreasonable searches and seizures, the 3rd reads, “No soldier shall in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

Which brings us to Lungren. Invoking the 3rd Amendment would force a distinction between a blue-backed piece of legalese and a 20-ton battle tank. Just ask anyone who happened to be in Berkeley during the spring of 1969.

The battle of People’s Park was between several thousand Berkeley students and residents, on the one hand, and the regents of the University of California, on the other. The “park” was a small piece of land on which the regents wanted to build a student dormitory and the students wanted to turn into a Hyde Park-like “free speech” area. Berkeley’s student body president, Dan Siegel, stood on the steps of UC’s Sproul Hall and announced: “Let’s go down and take the park.” The president of the regents, then-Gov. Ronald Reagan, disagreeing with Siegel’s call for action, “flipped the bird” at the assembly gathered underneath the window of the regent’s conference room.

The students marched to the park and “occupied” it. The governor called out the Highway Patrol, the Alameda County Sheriff’s Department, neighboring law-enforcement agencies from nine counties and, ultimately, the National Guard. The guard deployed infantrymen armed with rifles and bayonets, tanks and a helicopter. Tanks also patrolled streets adjacent to the park. Guess who won.

The object lesson is simple. In a turf dispute, the application of government force to preserve order is directly proportional to the importance of the people whose turf is at stake. The regents got tanks; Rocksprings residents get an injunction, whose legal underpinnings are now in doubt.

In making her argument, Justice Brown analogized to injunctive limitations placed on anti-abortion protesters. But last week, the U.S. Supreme Court, in Schenck vs. Pro Choice Network, ruled, by a vote of 8-1, that large floating “buffer zones” preventing protesters from assembling and moving through neighborhoods traveled by abortion-seekers violated 1st Amendment guarantees of free speech and assembly.

Well, for three weeks, Rocksprings was at peace, at least on paper.