Despite a call from the Orange County District Attorney’s Office for a swift approval of its request for a preliminary injunction against Santa Ana’s Townsend Street gang to quell ongoing street violence, Judge Franz E. Miller on Tuesday delayed his ruling until next week, citing the need to balance competing interests at play in the case.

“I’m very sensitive to the dynamics here,” Miller told a crowd of attorneys, police officers, reporters, and residents listed in the lawsuit as alleged gang members that packed the courtroom and spilled into the outside corridor.

The DA’s Office filed the civil lawsuit last month seeking both a preliminary and permanent injunction against the gang. In the suit, prosecutors declare the gang a public nuisance and cite a litany of crimes committed by its members over a four-and-a-half-year period ranging from two murders and two attempted murders, to eight incidents of graffiti/possession of vandalism tools.

In court, Deputy District Attorney Susan J. Eckermann said that police and prosecutors are using every available tool to fight gang violence. She noted specific instances where two teenagers were shot by gang members, including a 15-year-old caught in the crossfire of gang members while holding her baby brother.

“This is a situation that is in dire need of an injunction,” Eckermann said in asking the court to issue the preliminary injunction “without delay.”

The injunction is a restraining order that would severely restrict the everyday activities of the gang’s members in a .39-square-mile safety zone 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.

Defense attorneys, who appeared on behalf of some of the individuals alleged in the complaint to be active participants in the Townsend Street gang, took issue with the DA’s assertion that the level of violence in the neighborhood merited what they described as drastic measures.

‘Sledgehammer Against an Ant’

Santa Ana criminal defense attorney Douglas D. Potratz, who appeared in court representing one of the minors pro bono, said the injunction isn’t necessary as police officers already have the appropriate tools to combat crime in Santa Ana.

“This is a sledgehammer being used against an ant,” Potratz told the court on Tuesday.

Potratz said it would be premature to issue a preliminary injunction, noting that earlier this year a Santa Barbara Superior Court judge faced a similar situation when the local district attorney asked for both a preliminary and permanent gang injunction. In that case, the judge moved to go to trial directly to hear the case on the permanent injunction only.

In the Santa Barbara case, the judge was not persuaded by the district attorney’s argument that the need for the preliminary injunction was pressing, thus bypassing the need for separate court hearings to present virtually the same evidence required for the preliminary and permanent injunctions.

In the Townsend Street complaint, the DA contends the restrictions are narrowly tailored to restrict only the gang’s specific activities that cause a public nuisance in the safety zone and that the orders don’t “unreasonably infringe” on the members’ daily activities.

The complaint goes on to assert that the county is likely to succeed in getting a permanent injunction because the “overwhelming evidence” it presents in its complaint establishes a cause of action for public nuisance against the gang.

But, in a friend-of-the-court brief opposing the preliminary injunction, the ACLU Foundation of Southern California says prosecutors fail to prove with clear and convincing evidence that a public nuisance exists and that it’s caused by the Townsend Street gang.

Furthermore, the ACLU claims the request for a preliminary injunction would violate the due process rights of the alleged gang members because it fails to demonstrate that each individual named is an active Townsend Street gang member and fails to give each one the opportunity to be heard in court before subjecting them to the restraining order.

The complaint relies on unverified reports that implicates Latinos, rather than the Townsend Street gang specifically for the nuisance complaints, said ACLU staff attorney Bardis Vakili in an interview. He also cited instances where Latino males are implicated in narcotics activity, but the complaint fails to connect them to the Townsend Street gang.

The Townsend Street gang is named as the defendant in the lawsuit, but the complaint also cites 29 individuals, including seven minors, as active participants in the gang. These individuals are not named as defendants in the case, which presents a due process issue, said Vakili, who represented the ACLU in court today.

“By not being named as parties [to the proceeding] the people on the enforcement list are not being given the opportunity to come to court to oppose the injunction; there’s no mechanism,” Vakili said in the interview. “It’s a way of getting around the requirement that they have to give someone notice.”

Minors Without Attorneys

Vakili told the court the injunction is an “extraordinary remedy” that deprives the named individuals of their liberties and thus due process is required.

He also said juveniles listed in the complaint are being denied their due process because they don’t have access to court-appointed attorneys. Minors, unlike adult defendants, are not given public defenders in civil court.

Of the seven minors listed in the complaint, only two were represented in court by attorneys today. Eight adults listed in the complaint appeared in court as well, and told the judge they did not have attorneys to represent them.

Potratz told the court he would seek to find pro-bono attorneys for the eight individuals, and by Tuesday afternoon had secured lawyers for three. He said he was hopeful he would find attorneys for the remaining five by the end of the day.

Vakili also took issue with the crime statistics included in the complaint, telling the court the numbers don’t provide a complete picture of the level of crime in the neighborhood, especially as compared to other areas in the city.

“Those things have to be probed through the adversarial process,” Vakili said in court, referring to the need for defense attorneys to examine the evidence, cross-examine witnesses, and present arguments.

Also at issue was whether the DA’s office received permission from the Orange County Juvenile Court to release confidential juvenile case file information.

Under the Welfare and Institutions Code, California has strict confidentiality provisions protecting juvenile records, and unless special permission from the Juvenile Court is granted, only a limited and specified group of individuals from the state’s juvenile justice system is given authority to inspect a juvenile’s case files.

Those include, for example, child protective agencies or law enforcement officers who are “actively participating in criminal or juvenile proceedings involving the minor.” To release such information without a court order is a violation of this law, and is a misdemeanor punishable by a fine up to $500.

Prosecutors submitted a court order that Miller cited as “problematic” because it applied to criminal cases, not civil cases, and he declined to review the sealed juvenile documents submitted by the plaintiffs until the district attorney’s office obtains the proper court order.

“They took significant liberties with a fairly clear-cut state law that forbids the sharing of that information, said Vakili. “They were careless with juveniles’ information by not going to the Juvenile Court first.”

Because all of these issues must still be addressed, Vakili praised Miller’s decision to delay his decision on the preliminary injunction while he reviews the arguments both sides made in court today.

“I was extremely pleased that the judge recognized the significance of the issues on both sides and that he’s taking the time to make an informed decision that balances the concerns on all sides of the matter,” Vakili said after the hearing.

DA’s 13th Injunction Request

The Townsend Street injunction is the 13th gang injunction sought by the district attorney’s office in Orange County since 2006, and if approved would be the second in the city of Santa Ana.

“Fighting gang crimes is [District Attorney] Tony [Rackauckas’] No. 1 priority and this is one of the tools in the four prongs in our war against gangs,” said DA Chief of Staff Susan Kang Schroeder, noting the other three prongs include prosecution of “hard core” gang members, targeting gang leaders, and preventing children from joining gangs through its GRIP program.

While many gang injunctions across the state have been granted without a legal challenge, this most recent effort comes at a time of heightened scrutiny by civil rights attorneys, juvenile justice advocates and community activists who oppose such measures as draconian.

Gabriela Hernandez, a member of Chicanos Unidos, a grass-roots social justice organization in Orange County that has worked directly with Townsend Street residents to raise awareness about the proposed gang injunction, said that she is particularly concerned that minors have been targeted in the Townsend gang injunction.

“What happens is they get criminalized for the rest of their lives,” said Hernandez, noting the obstacles individuals face when trying to opt-out of a gang injunction.

Community activists, youth advocates, and Townsend Street residents have vociferously opposed the injunction since the DA’s Office began serving alleged Townsend Street members with copies of the lawsuit last month.

Uriel Ramirez, a 16-year-old Townsend Street resident and member of Chicanos Unidos who organized a community potluck on Sunday to raise awareness about the court hearing, said the neighborhood desperately needs more resources to address issues tied to poverty and other obstacles faced by its youth.

“We need the thousands of dollars that are going into the gang injunction and police department to go into something we need,” said Ramirez, who has lived on Townsend since he was in third grade and is also a member of the Santa Ana Boys and Men of Color, an initiative launched locally in 2012 to keep youth in school and out of the juvenile justice system.

Ramirez recalls that when he first moved to Townsend, the level of gang violence was much higher. Today, despite several high profile homicides, he says gang violence has diminished.

Because of his concerns regarding the gang injunction, he’s dedicated his free time to educating residents about the impact the injunction will have in his neighborhood. But he’s also working to address the lack of resources, and volunteers at a nearby teen center because he knows that providing tutoring, mentoring and positive role models is one way to keep youth away from gangs.

“More than anything, it’s about bringing the community together as one,” he said.

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

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