Two Sides Ready for Battle in Santa Ana Gang Injunction Case

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For weeks, the Orange County District Attorney’s office has painted a grim picture of the Townsend Street neighborhood in Santa Ana as a hotbed of gang activity.

The situation is so dire, immediate action is needed to curb the violence, Deputy District Attorney Susan J. Eckermann told Orange County Superior Court Judge Franz E. Miller last month when she argued on behalf of the DA’s office for a preliminary gang injunction against the Townsend Street gang.

The DA’s complaint cites a range of crimes committed by the gang’s members over a four-and-a-half-year period, including two murders and two attempted murders, and less serious offenses ranging from trespassing to loitering.

But residents and advocates who are speaking out against the injunction say the DA’s office is overstating its case in a neighborhood that has seen its share of gang violence, but doesn’t deserve such an extreme measure.

The prosecutors won round one last week, with Miller granting the preliminary injunction, which is essentially a restraining order that would restrict the otherwise legal, everyday activities of the gang’s members in a .39-square-mile safety zone bordered by McFadden Avenue, and Raitt, Sullivan and First streets.

On Wednesday, Miller is scheduled to determine the appropriate language for the injunction, which, in many respects, will govern the lives of the neighborhood’s residents until Miller decides whether to impose a permanent injunction.

Those enjoined would be prohibited, for example, from associating with gang members in public areas within the safety zone, with the exception of certain spaces such as schools or churches.

This is what has some residents, as well as members of the grass-roots social justice organization, Chicanos Unidos of Orange County, concerned and ready to follow Wednesday’s proceedings carefully.

“The district attorney’s office claimed that it was residents who are asking for this, but based on surveys that we’ve conducted in the community nobody is asking for an injunction. They are asking for an increase in resources,” said Gabriela Hernandez, a Chicanos Unidos member and mental health therapist who works with youth and families in the densely populated, working-class neighborhood.

So far, the group has gathered 120 responses to a written survey created under the guidance of UC Santa Barbara Associate Professor of Sociology Victor Rios, an expert on gang related issues, and plans to continue surveying residents.

Who Are the Targets?

Another issue that will be aired at the hearing is who exactly will be subject to the injunction. Of the 29 individuals alleged to be active gang participants in the complaint, four were not served notice, and seven are incarcerated.

The order will not be enforced against 10 individuals (two minors and eight adults) listed in the civil complaint as active gang participants and who are challenging their inclusion in the lawsuit. The individuals showed up in court or were represented by attorneys at the preliminary injunction hearing late last month.

That leaves only a handful of adults who will be subject to the preliminary injunction, says Bardis Vakili, a staff attorney with the ACLU Foundation of Southern California, which filed an opposing brief.

He noted that the DA’s office strategically filed its lawsuit against the Townsend Street gang without naming individuals as defendants.

“We’re not aware of any case where the gang was sued and someone stepped forward on behalf of a gang,” said Vakili. “Because no one stepped forward the judge is forced to make a decision based on the one-sided evidence in the gang packet presented by the district attorney.”

Vakili was pleased that the judge stayed the injunction on behalf of those individuals who showed up in court, recognizing the due process issues that the ACLU has raised in this case and in last year’s precedent-setting U.S. 9th Circuit Court of Appeals decision in the case of Vasquez v. Rackauckas.

In that 2013 decision involving a city of Orange gang, the court addressed a constitutional due process issue never before addressed by state or federal courts with regard to gang injunctions.

That court ruled that the DA violated the U.S. Constitution and deprived individuals named in the complaint their due process rights by failing to give them the opportunity to contest the prosecutor’s allegations of gang membership, awarding more than $3.2 million in attorneys’ fees to the ACLU Foundation, which represented the plaintiffs.

With Friday’s decision, Judge Miller recognized that before an order can be enforced against these 10 individuals, they must be given their day in court, said Vakili.

“The preliminary injunction is just that; something that the court can put into place while it hears the meat of the case on the permanent injunction,” said Vakili. “So there’s still an opportunity for those 10 individuals to prove that such a drastic measure isn’t necessary in their neighborhood.”

Divergent Descriptions 

This is only the second gang injunction to be enforced in Santa Ana. The first injunction, enforced against the Santa Nita gang in 2006 was also the DA’s first successful attempt to enjoin a gang in Orange County, which now has a total of 13 gang injunctions, 12 of which are permanent.

The DA’s Office, in its effort to convince Miller and the general public that the injunction is needed, has not minced words in its description of the neighborhood.

“The families and residents in this neighborhood have been terrorized and victimized by this gang’s propensity for violence. Children have been caught in the crossfire of this gang and their rivals, including an innocent 15-year-old girl who was shot while holding her baby brother as her mother installed a car seat,” a DA press release stated.

But in interviews over the last month, residents who live on Townsend Street and adjoining neighborhoods, have said they are baffled by the DA’s descriptions of the neighborhood as being terrorized by gang members. They point to a significant drop in violence since the 1990s, when violence was rampant.

“Back in the day… there was war. Shootings everywhere: day and night, night and day, drive-by shootings. I know it’s calmed down a lot,” said Veronica Rodriguez, 35,who lives less than half a mile away from Townsend Street, has family members who live on Townsend, and has lived in the same Santa Ana neighborhood her entire life.

Two of Rodriguez’s nephews are alleged to be active Townsend gang participants in the lawsuit, and a third nephew, 25-year-old Alex Serrano was shot and killed last February on Townsend Street in what police say was a gang-related shooting.

“I’m so uncomfortable not knowing what’s going to happen. Are we going to be safe? Am I going to not be able to associate with my own family,” said Rodriguez, a mother of four who helps support her family by catering neighborhood events.

At a community meeting in July, parents in the neighborhood cited child abuse/neglect, drug sales, and police abuse as their top concerns, says Alfonso Alvarez, a member of Chicanos Unidos.

They called for a collaborative community approach where agencies and residents can tackle issues such as school drop out rates, said Alvarez, who is working with a local nonprofit to find a way to address those needs with parenting classes and support groups, mentoring for youth and self-esteem workshops.

“The gang injunction, instead of facilitating the process, [law enforcement] is coming in heavy-handed and saying: this is the solution,” said Alvarez,

Last month, Townsend Street resident Vanessa Cerda went before the Santa Ana city council to point out that she too has been targeted by the police department because her partner is a former gang member.

“I live with harassment in that neighborhood because of who I am and who I’m married to,” Cerda told the council.

On Saturday, as her three children played on the sidewalk near her, she said the police presence on her street has only gotten worse since then. Last week, dozens of Santa Ana police officers descended onto Townsend Street and served search warrants on two alleged gang members in the pre-dawn hours of a work day, blocking alleys and thus preventing residents from heading to work, she said.

Now with the preliminary injunction approved, Cerda predicts that such scenes will become commonplace in the neighborhood.

“We will be affected. We might not be on the list, but eventually they will add me or my partner and most of the young men and women here just because they think we might be [gang members],” said Cerda, 27.

Determining who is and who isn’t a gang member and whether they are active or not is a challenging and complex process.

In Vasquez v. Rackauckas, the U.S. District Court judge noted evidence from two expert witnesses, including UC Irvine Criminology Professor James Diego Vigil, who testified about the difficulty in determining gang membership because gang members and nonmembers often grow up in the same neighborhood and have relationships and friendships unrelated to the gang.

“Distinguishing an individual’s social association with a gang member on a familial or friendship – i.e. non-gang related – basis, from an association with the gang as an organization is therefore a nuanced task,” wrote the district court.

In its friend of the court brief, the ACLU noted that because gang injunctions place such a heavy burden on fundamental and constitutionally protected activities, the courts require that prosecutors show with “clear and convincing evidence” that only active gang participants are subject to injunctions, and each person subject to an injunction is provided due process to challenge whether he or she is an active gang participant.

The ACLU brief asserts that the DA’s office failed to meet these requirements in its request for a preliminary injunction, noting that prosecutors did not make an effort to articulate the DA’s standard for proving active participation.

In its response to the ACLU brief, the DA’s office asserted that it had submitted an “abundance of supporting evidence” and met the standard of proof required by the courts with its declaration from Santa Ana Police Department detective Jeff Launi, described as one of the county’s most experienced and respected gang detectives, along with more than 90 declarations from officers that document specific crimes and nuisance activities committed by the 29 alleged active participants.

“While crime statistics, citizen statements and photographs help to illustrate the magnitude of the nuisance, it is impossible to fully realize the intangible effects of the gang’s stronghold on the neighborhood,” the DA’s reply stated.

“How can one quantify the burden of having to keep children inside at all times to protect them from gunshots fired by one gang at another due to some perceived disrespect, altering one’s path in order to avoid gang members acting as sentries in the neighborhood, or having a secured personal garage repeatedly burglarized to be used for a gang hangout and weapons storage.”

Santa Ana criminal defense attorney Douglas D. Potratz, who is representing one of the minors on the injunction list pro bono, tapped his Facebook network of fellow attorneys to obtain pro-bono lawyers for the eight adults who appeared in court last month because he wants to ensure they are afforded their due process.

Regarding Miller’s decision to grant the preliminary injunction, Potratz noted that the judge obviously did some “serious thinking” about it.

“He gave us a fair shot,” said Potratz. “But we are looking forward to fighting this in court.”

Yvette Cabrera is a long-time Orange County journalist and Voice of OC contributing writer.

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