Should the DA or Orange Pay the Cost of Civil Rights Case?

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As city leaders in Orange grapple with losing a federal lawsuit over the enforcement of a gang injunction, they’ll likely be weighing whether to ask District Attorney Tony Rackauckas to cover the millions of dollars in legal costs for the case.

The 9th Circuit Court of Appeals ruled last week that Rackauckas and the city violated the U.S. Constitution by, among other restrictions, banning suspected gang members from being in public after 10 p.m. without giving them a chance to show that they weren’t actually in a gang.

“The taxpayers of Orange County now get to pick up a multi-million dollar tab for the litigation that ensued from the district attorney’s bad tactical decision,” wrote Circuit Judge Richard Tallman.

That bill is expected to include at least $3 million for the American Civil Liberties Union, which brought the suit.

Orange city officials say they’ll be following Rackauckas’ lead on whether to appeal.

As for the costs, council members will ultimately decide whether to seek reimbursement from the district attorney. “I think it will certainly be a consideration,” said City Attorney Wayne Winthers.

While it’s unclear whether Rackauckas assured the city that his injunction approach was legal, Winthers said there’s generally a level of trust that the district attorney knows the law. “We would assume they are doing things that are legal,” he said.

The district attorney’s chief of staff, Susan Kang Schroeder, couldn’t be reached for comment late last week.

The case centers on a gang injunction against 115 people who the district attorney and Orange police alleged were in the Orange Barrio Cypress gang.

When more than 50 people came to court to assert that they weren’t actually gang members, the district attorney “dismissed them rather than try to prove the allegations,” the ACLU alleged.

But despite being dismissed, the DA and police still ultimately enforced an injunction against them, according to the ACLU.

The 9th Circuit ruling “recognizes that determining who is and isn’t a gang member isn’t always easy, and police and prosecutors can get it wrong,” wrote Joseph Ybarra, one of the plaintiffs’ attorneys. “That’s why the Constitution doesn’t leave it up to the whim of the government, but gives someone accused of being a gang member the right to be heard before his or her basic freedoms are restricted.”

The DA’s initiatives have put cities in a challenging legal position before.

A similar issue was raised last year, after a panel of Superior Court judges ruled that the county’s ban on sex offenders in parks, which Rackauckas had lobbied for, was illegal.

When Lake Forest council members prepared to repeal their city’s ban amid a federal lawsuit against their city, Rackauckas urged them not do so.

Kathryn McCullough, then mayor, wanted reassurances that her city’s legal costs would be covered if the court found it unconstitutional.

“Are you willing tonight to be able to say, publicly on-record, that you will indemnify us for damages, attorney fees and any other costs connected with this ordinance?” McCullough asked.

Rackauckas fired back.

“You know very well that the district attorney does not indemnify cities in carrying out the law,” Rackauckas replied. “And that is merely a grandstand question, a grandstand play that you are doing to try to get yourself on some kind of an upper level here.”

“I know a disingenuous question when I hear it,” he later added.

Their heated exchange was captured on video.

As for Orange, city officials say they plan to continue enforcing gang injunctions in a way that is legal.

“I think we’re all looking forward to being able to enforce a constitutionally correct injunction in a constitutionally correct manner,” said Winthers.

You can reach Nick Gerda at ngerda@gmail.com, and follow him on Twitter: @nicholasgerda.

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