Orange County Superior Court Judge Franz E. Miller hears arguments in Townsend Street gang injunction case. (Photo by Daniel A. Anderson)

Orange County Superior Court Judge Franz E. Miller Wednesday denied for the second time a request from the District Attorney’s Office to impose a gang injunction against a group of people fighting their inclusion in the order against the Townsend Street gang in Santa Ana.

Miller did, however, rule that the injunction – essentially a restraining order against the gang – could be enforced against three individuals, two of whom Deputy District Attorney Susan J. Eckermann said were recently arrested and one who failed to show up Wednesday for a hearing to determine whether he is an active participant in the gang.

“It’s a victory,” said defense attorney Shelly Aronson afterward. “They ask the court at every hearing to lift the stay and the court continually denies their motion.”

Aronson represents one of the individuals challenging both the gang injunction and his inclusion as an alleged active participant in the gang.

The injunction against the Townsend Street gang restricts the otherwise legal, everyday activities of the gang’s members in a .39-square-mile area dubbed a “safety zone,” that is bordered by McFadden Avenue, and Raitt, Sullivan and First streets.

Those enjoined are 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.

Earlier this month, Miller granted a permanent injunction by default against the gang and known gang members who did not appear in court to respond to the DA’s lawsuit.

Miller previously ruled that four individuals from the group contesting their inclusion in the lawsuit will also be able to challenge at an upcoming trial 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.

In August, when Miller approved a preliminary injunction against the gang, Eckermann argued that it should be enforced against even those individuals challenging the lawsuit. But Miller ruled this group must first have their day in court and issued a stay preventing the DA from enforcing the injunction against these challengers.

Last week, Eckermann filed a motion to lift the stay against 10 of these challengers, and cited a rash of gang-related incidents and escalating violence, including the Dec. 24th shooting death of Angel Arellano, a 17-year-old who was among those contesting the DA’s allegation that he was an active participant in the gang.

Saying the violence had reached an “intolerable” level, Eckermann ticked off a list of incidents that have occurred over the past two months, including gang-related graffiti vandalism, incidents where gun shots were fired, the shooting of a victim tied to a rival gang, and the assault of a security guard allegedly by gang members.

Residents “have a right to be free of this senseless violence,” said Eckermann, who filed a similar motion, which was denied by Miller at a November hearing.

Defense attorneys argued that while crimes have occurred in the neighborhood over the last month, there is no conclusive evidence that the incidents were gang-related in general, nor related specifically to the Townsend Street gang.

“It’s fundamentally unfair for the district attorney to be able to come in with allegations of crimes committed that are still under investigation,” said defense attorney Lauren K. Johnson.

In her arguments, Aronson noted that the Arellano shooting is still being investigated by police and that so far Arellano has not been named as a perpetrator, but instead as a victim who was shot while leaving his grandmother’s home.

Aronson also pointed out to the court that many of the police declarations that Eckermann filed in last week’s motion were the same incidents that the DA submitted to the court for the November hearing.

“I would ask the court to deny this motion to lift this stay because nothing has changed,” Aronson said.

Eckermann also argued in her motion that with the stay in place, the individuals challenging their inclusion have no incentive to litigate the case in a timely manner.

Aronson countered that a group of four of the individuals listed in the complaint sought and won the right to intervene in the lawsuit and have filed its responses to the court in a timely manner, but haven’t received evidence, such as police reports, from the DA despite repeated requests.

“That is absolutely disingenuous and false,” Aronson said, referring to Eckermann’s argument.

After hearing the arguments, Miller queried Eckermann as to which of the individuals challenging their inclusion in the injunction had been arrested for gang related crimes since the November hearing.

Of the four people that Eckermann listed, two were already enjoined by the injunction, leaving two others, including one man arrested in November for vandalism and stealing a car, and another man arrested earlier this month on unknown charges, according to Eckermann.

In lifting the stay against the arrested individuals, Miller said an arrest for a gang-related crime doesn’t meet the threshold of clear and convincing evidence that someone is an active member of a gang, but “it’s certainly a notable ingredient.”

Miller also noted that while the existence of a gang injunction is not going to eliminate gang-related crime, it’s been shown to be a useful tool to try to minimize gang activity.

The question to consider, he said, is “how effective a tool is it? For some it will be a deterrence. For some it will not.”

Yvette Cabrera is a long-time Orange County journalist and Voice of OC contributing writer. She can be reached at yvettecabreraoc@gmail.com.

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