Federal appeals court rules against O.C. gang injunction

A federal appeals court has ruled that a 2009 Orange County gang injunction couldn’t be enforced against dozens of people because it violated their rights by not allowing them to challenge their alleged gang member status.

The 9th Circuit Court of Appeals upheld a federal court’s findings that the injunction against suspected members of the Orange Varrio Cypress gang restricted the plaintiffs’ constitutional rights and used inconsistent standards to determine whether someone was a gang member.

The Orange County district attorney’s office and the Orange Police Department filed the gang injunction against 115 people they alleged were part of the Orange Varrio Cypress gang in February 2009. More than 50 people showed up in state court to fight the allegations and were dismissed from the case.

But prosecutors and police were able to get the injunction against the gang as a group and served the very same people they had dismissed, according to court documents. The ACLU filed a class-action lawsuit against Orange County Dist. Atty. Tony Rackauckas and the Orange Police Department.

A federal district court found that prosecutors and the police department violated the plaintiffs’ due process rights by failing to provide them with any form of hearing before serving them with the injunction.

“Had Orange not dismissed the plaintiffs from the state court lawsuit, that process would have been provided,” the ruling, issued Tuesday, said.

The ruling upheld the basic principle that the government doesn’t have the ability to take away a citizen’s rights based on accusations made behind closed doors, said Peter Bibring, an attorney with the ACLU.

“Police and prosecutors have to tell people what they’re accused of and give them the chance to contest those allegations before imposing harsh consequences,” Bibring said.

The ruling could have implications on other gang injunctions, Bibring said.

“The opinion calls in question the common practice of serving gang injunctions on new individuals,” he said, “who have never been adjudicated by a court to be a gang member, without first providing them a meaningful opportunity to contest the allegations.”

Gang injunctions have been in use since at least 1987 by California prosecutors as a way to limit a gang’s activities. The Orange Varrio Cypress injunction forbid members from gathering, throwing gang signs and being out after 10 p.m., among other restrictions.

The injunction, which still stands, was limited to a 3.78-square-mile area, about 16% of the city of Orange, according to court documents.

Despite the ruling, Orange County Assistant Dist. Atty. Tracy Rinauro said the injunction is a useful tool in fighting violent street gangs. The ruling doesn’t affect those who didn’t challenge their inclusion, she said.

“The court said it only applies to this specific case and to only a handful of defendants,” Rinauro said. “It didn’t change the law in any way.”

There are 12 gang injunctions in the county.

Rinauro added that the federal appeals court did give prosecutors and police several ways to enforce the injunctions against the individuals.

“The D.A.’s office believes ... in being aggressive and prosecuting violent gang members,” she said.

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