Judge: Residents Owed Due Process in Gang Injunction Case

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An Orange County Superior Court judge on Wednesday rejected an effort by District Attorney Tony Rackauckas to enforce a preliminary gang injunction in Santa Ana’s Townsend Street neighborhood against a group of individuals who are contesting their inclusion in the action.

Attorneys defending these individuals – a group of 14 adults and minors – praised Judge Franz E. Miller for ensuring that this group’s freedom of movement and liberties aren’t restricted until they have an opportunity to challenge the DA’s allegations of their active gang participation.

“I was very pleased, and in my opinion, it couldn’t have turned out better for the due process rights of these individuals,” said David W. Paulson, a Santa Ana attorney representing one of those individuals named in the gang injunction.

The DA’s Office filed the complaint against the Townsend Street gang last June, seeking both a preliminary and permanent gang injunction against the Townsend Street gang and “Does 1-100.”

However, the complaint also included 29 individuals alleged to be active gang participants, but did not name these individuals as parties to the lawsuit, a crucial distinction that came bear during Wednesday’s hearing.

When Miller approved the preliminary injunction last August, he ruled that the injunction could not be enforced against 14 individuals who contested their inclusion, until they have their day in court.

A gang injunction is a restraining order that restricts the otherwise legal, everyday activities of the gang’s members in what prosecutors often dub a “safety zone,” in this case a .39-square-mile area bordered by McFadden Avenue, and Raitt, Sullivan and First streets.

Those enjoined would be prohibited, for example, from associating with gang members in public spaces within the safety zone, with the exception of certain spaces such as schools or churches. The order also prohibits gang members from acting as lookouts, trespassing, fighting, blocking free passage or intimidating anyone in public.

The Townsend Street injunction is the 13th gang injunction sought by Rackauckas since 2006. If the court approves a permanent injunction, it would be the second such injunction in the city of Santa Ana.

Prosecutors contend that injunctions are often the only way to clean up gang-infested neighborhoods. But since they are considered such an extraordinary remedy, organizations such as the ACLU Foundation of Southern California have argued in court that due process is required to ensure that the constitutional rights of individuals are protected.

The ACLU made this argument before the U.S. 9th Circuit Court of Appeals, which last year ruled in Vasquez v. Rackauckas that the DA’s office 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.

The court awarded more than $3.2 million in attorneys’ fees to the ACLU, which represented alleged members of a gang located in the city of Orange.

Civil liberties advocates hailed the decision as a clear message to prosecutors that before an individual is subjected to a gang injunction, they cannot be deprived of their due process rights.

At issue on Wednesday was whether the 14 individuals should be enjoined by the preliminary injunction, a motion that the DA’s office filed last month by requesting an immediate hearing to address the question of their membership or active participation in the Townsend Street gang.

Deputy District Attorney Susan J. Eckermann argued as she has at previous injunction hearings, that the level of violence in the neighborhood demands immediate action.

“The situation has not abated and our concern is such that we need this injunction imposed,” Eckermann told the court, noting that her team has been ready to litigate since she filed the case last summer.

Santa Ana criminal defense attorney Douglas D. Potratz, who is representing a minor listed in the complaint, strongly objected to Eckermann’s assertion that the level of violence merited a reversal of the judge’s original decision not to enforce the preliminary injunction against the 14 individuals.

“We don’t believe that there is a crime wave going on out there,” Potratz told the court, citing statistics posted on a Santa Ana city web page for Mayor Miguel Pulido that notes a 64 percent drop in crime in the city over the last 10 years – its lowest rate since 1963.

“For [Eckerman] to come in and claim that there is an immediacy is disingenuous,” Potratz told the court.

In asking the court to deny the motion, Potratz cited the need to carefully review the crime statistics in the Townsend Street neighborhood to determine whether the DA’s office has proven the need for the injunction by clear and convincing evidence.

“…[The injunction is] an extraordinary infringement on people’s rights,” Potratz told the court.

Miller noted that the Vasquez case explicitly acknowledged the need to provide due process to gang injunction defendants who decide to challenge their inclusion in such a restraining order. The distinction between the Vasquez case and the Townsend case is that these 14 individuals aren’t defendants, but were named in the complaint and were also served, said Miller.

Eckermann argued that the individuals would be given an opportunity to contest their inclusion in the preliminary injunction in hearings to be held immediately after if the injunction was approved. Miller said it was a “very close question,” and noted the lack of clear direction from current case law — but in the end he was not persuaded by Eckermann’s argument.

“…If I’m in doubt on any issue, I’m going to err on the side of due process sooner rather than later,” said Miller.

In another matter, Miller denied a motion brought by Potratz seeking to compel Santa Ana Police Chief Carlos Rojas to testify at a deposition. Potratz sought to depose Rojas to ask why he sought the Townsend Street gang injunction, and to obtain crime statistics for the Townsend Street neighborhood and the city of Santa Ana.

Since the minor that Potratz’s is representing is not a named party in the lawsuit, she was not entitled to file a motion to subpoena a witness. After the hearing, Potratz said he might join other defense attorneys in filing a motion to intervene so that their clients can be named defendants in the lawsuit, and then have the ability to request such testimony and evidence.

“When your mayor boasts that crime is the lowest since 1963, and you’re asking for a gang injunction because crime is rampant like the district attorney is trying to allege, there’s an issue there that has to be litigated,” said Potratz.

The next hearing on the injunction, a pre-trial hearing, is scheduled for Dec. 17 at 9 a.m. in Miller’s courtroom.

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

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