WATCH: DA’s War on Gangs Runs Into Constitutional Problems

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Local police are facing a potential setback in their battle against gangs.

A federal court has ruled that in one crackdown, the Orange County district attorney violated suspected gang members’ civil rights.

For years, police have been fighting gangs with injunctions, controlling where gang members can go, what they can do and even what they can wear.

Dozens of gang injunctions are in place in Los Angeles County, for example, and about a dozen in Orange County.

In 2009, Orange County District Attorney Tony Rackauckus and the Police Department in Orange filed an injunction against more than 100 people suspected of belonging to the Orange Varrio Cypress Gang.

When about half of them showed up in court claiming they were not gang members, the DA simply dismissed them from the case.

The legal maneuver still enabled Rackauckas to get an injunction against the gang itself and to again target the 50 or so people who had been dismissed.

That’s when the American Civil Liberties Union stepped in, claiming those suspects were denied due process.

Now a federal appeals court has agreed.

It’s a decision that could affect the way law enforcement targets gangs throughout the region and could cost local taxpayers more than $3 million.

For years, the ACLU had questioned the manner in which the district attorney and local law enforcement agencies imposed gang injunctions, also known as “nuisance abatement orders.”

The DA would use them to target a neighborhood with gang members and prevent them from engaging in certain activities, both legal and illegal.

For instance, no violence, drug use or intimidation. Or it could be as simple as not wearing certain colors, associating with certain people or being out past certain hours. 

It’s a common practice by prosecutors that’s been used in California since the 1980s.

The ACLU spent at least $3.2 million on behalf of the accused gang members to fight Rackauckas and Orange in court, claiming the injunctions violated their right to due process.

“At its very base, fundamental level, this is a constitutional issue,” said ACLU attorney Bardis Vakili.

“If I’m accused of committing a crime, if I’m accused even of murder, the Constitution gives me the right to go to court and defend myself and say, ‘I didn’t do it,’ if I didn’t do it. There’s no reason it should be any different with being accused of being in a gang.”

Meanwhile, DA officials say they sought the injunctions in good faith and are simply following procedures they believe are constitutional.

“We respectfully disagree with the court’s ruling, and we feel it’s unfortunate that basically the only thing that this court ruling did was line the pockets of folks who defend gang member rights with the tune of $3.2 million of taxpayer money,” said Susan Schroeder, the DA’s chief of staff.

“We think that’s extremely unfortunate,” she said.

The DA’s office is vowing to continue seeking and enforcing gang injunctions.

Since the ACLU case, the DA has implemented six more injunctions in four cities throughout Orange County, citing the method as a tremendous crime deterrent.

“We believe that gang injunctions are one of the most effective ways to go after gangs and to keep the quality of life for those folks who have to suffer from these gangs in those neighborhoods,” said Schroeder.

“The proof is in the numbers. When you have these gang injunctions, the violent crime rate goes down dramatically. The call for services — people who feel empowered to call the police — they go up. And the statistics are there.”

Does the ACLU attorney think gang injunctions are, in theory, a good thing?

“They certainly deprive people of their liberty. They are deeply intrusive into people’s liberties,” replied Vakili.

“When trying to fight crime, you can’t cast such a wide net that you … don’t give innocent people a chance to prove that they’re innocent.”

What about statistics across Southern California that show that crime decreases with these gang injunctions?

“I don’t necessarily doubt those numbers,” said Vakili. “That may be accurate. Of course you could see crime decrease through any number of draconian unconstitutional measures. The question is how do they go about doing it?”

And he takes issue with the claim that the ACLU is defending gang members’ rights.

“Far from it,” said Vakili. “First of all, everybody has the right to be defended. That’s a fundamental principle of our court system.

“But, more than that, we’re defending the people who want to say that they’re not in the gang, that the DA got it wrong, that the DA can’t sit up on high and say, ‘You’re in a gang,’ and that be the end of it,” he added.

“We’re defending the folks that want to be able to say, ‘I’m trying to find a way out. I live in this neighborhood where the gangs are, but I’m not in the gang.’ And we’re defending those folks.”

Looking forward, one of the questions is who exactly is on the hook for the ACLU’s $3.2 million.

Is it the county, the city of Orange, or both?

County Supervisors Todd Spitzer and Shawn Nelson, who have an oversight role over the district attorney’s major financial decisions, aren’t responding to this issue.

Meanwhile, Orange’s city attorney says it’s still an unknown, but the county and city might split it 50-50.

This story was adapted for print by Nick Gerda.

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