The Orange County District Attorney’s Office and the city of Orange violated the U.S. Constitution by enforcing an anti-gang injunction without giving at least 50 county residents a chance to show they weren’t gang members, a federal appeals court ruled this week.

The ruling by the U.S. Ninth Circuit Court of Appeals means “the [district attorney] and other law enforcement agencies can no longer go behind closed doors and unilaterally decide who is a gang member,” said Belinda Escobosa Helzer, director of the American Civil Liberties Union of Southern California’s Orange County office, one of the groups that asked for the decision.

The decision, handed down Tuesday, could have broad implications, according to the opinion and those who sought the ruling, because gang injunctions in general have been used by prosecutors in California since 1987.

“Our question concerns not the substance of such orders but the procedures constitutionally required before individuals denied the opportunity to defend against imposition of the order against them can be subjected to it,” wrote Circuit Judge Marsha S. Berzon.

“Although California courts have grappled for more than twenty-five years with various substantive and procedural issues posed by anti-gang injunctions, no court — either state or federal — has previously addressed the particular due process issue presented here.”

A news release quoted ACLU of Southern California Senior Staff Attorney Peter Bibring:

It’s common practice in gang injunction cases for prosecutors to name only a gang as a defendant, obtain an injunction by default when no one shows up on behalf of the gang to contest the case and then to apply the injunction to anyone police or prosecutors think may be a gang member, without court approval or a chance for the supposed gang member to be heard. The Ninth Circuit’s ruling calls that practice into question.

In a separate concurring opinion, one federal judge took District Attorney Tony Rackauckas to task for making a “bad tactical decision” that unnecessarily cost Orange County taxpayers millions of dollars on the case.

Rackauckas’ office did not respond to requests for comment on the federal court decision.

The federal ruling was the second high-visibility legal setback for Rackauckas in the past two months and the third in a year.

In September, Rackauckas asked a Superior Court judge to dismiss all charges against a Saudi Arabian princess living in Irvine who had been accused by his office of human trafficking. Rackauckas made the request after determining the “evidence cannot support” the allegations, according to a story in The Orange County Register.

Last fall, a panel of Orange County Superior Court judges ruled the county was illegally banning registered sex offenders from parks because it was preempting state law and creating a confusing patchwork of local restrictions.

Rackauckas had persuaded the county to adopt the ban and then campaigned strenuously to have local cities adopt it.

The gang injunction case began in 2009 when the ACLU of Southern California and the Munger, Tolles & Olson law firm filed a class-action lawsuit against Rackaukas and the Orange Police Department.

The two law enforcement agencies had filed a gang injunction against 115 people, according to the ACLU news release, alleging they belonged to the Orange Varrio Cypress gang.

“When more than 50 people showed up in court to contest the allegations that they were not gang members, the [district attorney] dismissed them rather than try to prove the allegations,” the news release states.

Then, it asserted, the district attorney’s office and the Orange police obtained an anti-gang injunction against the gang and “enforced it against the people they dismissed.”

The very people the [district attorney] had dismissed from the gang injunction action were subjected to the gang injunction and in danger of arrest for a variety of everyday activities such as being in public after 10:00 p.m., associating with other people suspected of being gang members (including immediate family members) or being in a restaurant where alcohol is served.

The Ninth Circuit opinion declared that restricting what individuals may wear, with whom they may associate and when and where they can be in public areas places a “heavy burden” on basic freedoms protected by the U.S. Constitution.

The Ninth 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,” stated Joseph Ybarra, a partner with Munger, Tolles & Olson, in the news release. “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.”

Circuit Judge Richard C. Tallman separately wrote that he agreed with the decision of the other judges on the panel and called the Orange Varrio Cypress street gang “one of the most violent gangs in the City of Orange.”

But, he said, just because gang members may have gone to court to keep from being included in the anti-gang injunction didn’t justify dismissing them and then including them again under the injunction against the overall gang.

“In effect, the district attorney concluded it was costing too much to litigate against well-financed defense lawyers,” Tallman wrote. “Ironically, 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.”

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