Judge says gang injunction subjects are owed due process


Police and prosecutors can’t enforce anti-gang policies against individuals suspected of belonging to an outlawed group without first giving each one an opportunity to fight that label in court, a federal judge ruled Tuesday.

The decision ordering Orange County authorities to respect the due process rights of suspected gang members was the first of its kind in a federal case and should compel all municipalities to assess their anti-gang initiatives for constitutional compliance, said Peter Bibring of the American Civil Liberties Union of Southern California.

“The idea that police and prosecutors should be able to take away people’s basic freedoms based on their judgment about who is and isn’t a gang member is completely contrary to due process,” said Bibring, a staff attorney with the ACLU. “All this ruling says is that people get some kind of hearing.”


The decision by U.S. District Judge Valerie Baker Fairbank was spurred by a challenge brought by the ACLU and the law firm Munger, Tolles & Olson to a gang injunction originally sought in February 2009 against the Orange Varrio Cypress street gang. The injunction applied to about 150 suspected gang members and barred them from going out in public after 10 p.m. or being in the company of other gang members.

About 60 of the named subjects tried to challenge their designation as gang members in court, which led prosecutors to drop their names from the injunction but didn’t spare them from arrest and prosecution for criminal contempt in violating the injunction’s conditions, Bibring said.

“While we understand and accept the court’s ruling, we disagree with it,” said John Anderson, the Orange County assistant district attorney in charge of the gangs unit. “I think it completely rewrites centuries of injunction law.”

Anderson said that the county considered the issue a matter of state, not federal, law and that an appeal of Fairbank’s decision was being considered.

Fairbank said that being subject to a gang injunction restricts a person’s basic liberties and that whether or not someone is a gang member is a complex factual question that shouldn’t be decided solely by law enforcement.