An Orange County Superior Court judge ruled Wednesday that a group of people law enforcement has labeled as gang members can defend themselves as parties to a gang injunction lawsuit that District Attorney Tony Rackauckas has filed against the Townsend Street gang in Santa Ana.

The decision by Judge Franz E. Miller allows these individuals to challenge the constitutionality of the injunction and contest whether the gang’s activities rise to the level of a public nuisance as alleged in the civil lawsuit filed by the DA’s office, which is seeking a permanent injunction against the gang.

Defense attorneys representing this group praised Miller’s decision as a triumph for the due process rights of these individuals, who are listed in the complaint as alleged gang members, but aren’t named as defendants. Until this ruling, these individuals were not afforded the privileges given to defendants in lawsuits, such as the right to subpoena and depose a witness.

“It’s a big victory,” said criminal defense attorney Shelly Aronson, who filed a motion to intervene on behalf of her client, Ulaio Mendoza, and took the lead in court on Wednesday in asking Miller to grant the various motions to intervene.

“The judge is continuing to carefully scrutinize every issue of this case and doing the right thing by affording due process, and that’s all we wanted,” said Aronson.

Rackauckas filed the complaint against the Townsend Street gang last June, seeking both a preliminary and permanent gang injunction against the gang and “Does 1-100.” The lawsuit also named 29 people alleged to be active gang participants, but did not include them as defendants in the case.

In August, Miller approved the preliminary injunction against the Townsend Street gang, but ruled that the injunction could not be enforced against 14 who contested their inclusion in the injunction, until they have their day in court. Of those, at least three filed motions to intervene.

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 critical tools that allow law enforcement to tackle violence in gang-infested neighborhoods. But because injunctions are considered an extraordinary remedy that restrict otherwise legal activities, organizations such as the ACLU Foundation of Southern California have argued that due process is required to ensure individuals’ constitutional rights are protected.

In court Wednesday, Deputy District Attorney Susan J. Eckermann argued the DA’s decision to file its lawsuit against the gang and those who act on its behalf is constitutional and supported by case law in California.

“These individuals have no right to be named as defendants,” Eckermann told the court, noting that the individuals named in the lawsuit will have “ample due process” to challenge their inclusion during a series of upcoming hearings before Miller.

Eckermann also told the court that the DA’s office was not opposed to the intervention, just “improper intervention.” Specifically she criticized issues cited in the motions to intervene as being “irrelevant,” “not defined enough,” or would broaden the issue to a “scope not permitted.”

Aronson disagreed, saying the individuals named in the injunction have a right not only to challenge the DA’s allegations that they are active gang members, but also to challenge the DA’s allegation that the gang poses a public nuisance in the safety zone and that the injunction is necessary to abate that nuisance.

“If the court doesn’t allow individuals to address whether this is a public nuisance and only allows litigation of membership, then there’s major due process issues,” said Aronson.

During the hearing, Miller acknowledged that the court is treading on uncertain territory because current case law does not provide guidance on the specific issue of due process rights afforded to individuals who are listed in gang injunction complaints, but are not named as defendants.

“There are no appellate opinions that are fully fleshed out,” noted Miller.

But in his ruling, Miller noted that their due process interests outweigh the interests of the DA’s office.

Miller also invited the DA’s office to file a writ with the District Court of Appeal to review his ruling, as a review could provide “guidance” on the issue.

 Miller has scheduled the next court hearing for Jan. 13, but this may be subject to change depending on whether the court of appeal decides to review Miller’s decision.

If the Jan. 13 hearing proceeds, the DA’s office is expected to present evidence regarding the alleged gang participation of the individuals who are contesting their inclusion in the injunction.

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

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