Did ruling sound the death knell for gang injunctions?

MUNICIPAL MATTERS

On March 15, the federal court in Los Angeles entered an order in Youth Justice Coalition v. City of Los Angeles [ruling attached below] expanding a preliminary injunction to protect also members of the newly certified class members. The case gathered substantial media attention because of the subject matter of the injunction being extended -- it had the effect of blocking the city from enforcing approximately 46 gang injunctions against some 1,500 suspected gang members.

Contrary to the headlines, the court's ruling (currently on appeal) does not spell the death knell for gang injunctions.

For several decades, prosecutors throughout California have used civil nuisance law as a supplemental tool to combat street gangs in their communities. The injunctions are widely credited with helping reduce street-gang activity over that time period. They supplement regular criminal-law efforts to control gang activity by prohibiting those subject to the injunctions from engaging in specified activities that are not criminal, including merely "associating with allegedly 'known' gang members in public areas or in public view."

The court's order last month did not find that such injunctions are per se unconstitutional. In fact, the court expressly stated that, "[t]he City retains the ability to ... seek a preliminary injunction against any particular class members that the City deems to be a risk to public safety." Rather, the infirmity the court found with the gang injunctions at issue was the procedure by which suspected gang members, who were not originally named in the suit in which the injunctions were issued, were subsequently served and made subject to their prohibitions.

The class members at issue in the order are defined (by stipulation) as, "[a]ll persons, past and future, whom an authorized agent of the City of Los Angeles has notified ... that they are subject to a Los Angeles Gang Injunction and who (a) were not named as individual civil defendants, or who were not substituted in as Doe defendants, in the civil nuisance abatement action to obtain that injunction, and (b) who do not have contempt proceedings for violation of such an injunction currently pending against them." In addition, the order expressly applies only to such individuals who were made subject to the injunctions prior to Jan. 19, when the city's new procedure for service and enforcement of such injunctions took effect.

After finding that the injunctions at issue implicated fundamental liberty interests, thus triggering due process protections (an issue the 9th U.S. Circuit Court of Appeals already determined in Vasquez v. Rackuackas, 734 F.3d 1025 (9th Cir. 2013)), the court turned to the constitutional sufficiency of the process in place to deprive someone of such interests. As to those individuals at issue in the order, the process available to them was purely post-deprivation. Because they were not named in the original cases in which the state court imposed the injunction, they had no opportunity to be heard prior to the issuance of the injunction. Moreover, the court found that in adding individuals to such pre-existing injunctions, the city "makes its determination of active gang membership unilaterally and without input from alleged members." The alleged gang members then bear the burden to contest that determination by notifying the city in writing that they contest the application of the injunction to them, causing the city then to file a motion with the superior court for an adjudication of that issue. Throughout that process, however, the alleged gang members remain subject to the injunction.

Applying the familiar three-prong Mathews v. Eldridge test (424 U.S. 319 (1976)), the court found that this post-deprivation process is not constitutionally adequate. Relying on 9th Circuit precedent from Vasquez, the court found both that the private interests at stake (i.e., the interests of the alleged gang members to engage in non-criminal conduct) were "truly weighty" and that there was a substantial risk of erroneous deprivation in the city's unilateral determination of gang membership. Thus, the first and second prong favored the plaintiffs.

The court then compared those factors against the government's interest in offering only the post-deprivation process to those class members at issue. The city asserted substantial administrative and fiscal "burdens associated with mandating pre-deprivation process for approximately 1,450 individuals." The court was not persuaded by this argument in light of the city's new guidelines for service and enforcement of gang injunctions post-Jan. 19. Those new guidelines provide for a 30-day forbearance period after service of the injunction during which the injunction will not be enforced, thus allowing "the served individual an opportunity to submit a Removal Petition or to go to civil court to challenge whether the served individual is an active member of the enjoined gang." Thus, the new guidelines provide pre-deprivation notice and opportunity to be heard in opposition to the application of the injunction. In light of the fact that the city can provide such pre-deprivation process to alleged gang members after Jan. 19 severely undercut, in the eyes of the court, the city's case that it could not provide pre-deprivation process to those added to the injunctions prior to that date.

Therefore, the court found that the post-deprivation process offered to the class members at issue (those added to the injunctions prior to Jan. 19) does not meet constitutional requirements, and accordingly blocked the city from enforcing the gang injunctions to those class members who had access only to that inadequate process. It bears repeating that the court did not anywhere find problems with the gang injunctions themselves, only with the unilateral process the city employed to make them applicable to new suspected gang members. The court expressly held that the city could seek an injunction specifically against class members. Moreover, the court left open the possibility of adding class members to the pre-existing injunctions via the pre-deprivation process available under the new guidelines.

Civil injunctions are still a permissible tool to combat street gangs, but in light of the weighty liberty interests at stake, the risk of error present in unilateral determination of gang status, and the availability of pre-deprivation procedures, adding individuals to such injunctions subject only to post-deprivation challenge will no longer suffice.