Wednesday, May 26, 2010

A Guide to the North Oakland Gang Injunction

By Tessa Stuart
Wed, May 26, 2010 at 7:51 AM

With Oakland’s gang injunction request going before a judge on Thursday, May 27, we thought it made sense to put together a guide about what it would do:

What is a Gang Injunction?
Essentially, a gang injunction is a civil suit, similar to a restraining order, filed by the city against a group of people considered a “public nuisance.” Section 3479 of the California Civil Code defines as a nuisance “Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property...” Normally, this section of the code is invoked in suits to halt the activity of a large-scale polluter, like a manufacturer of lead-paint for instance, but in California it has been used a tool to restrict gang activity.

Who is included in the injunction?
The North Side Oakland gang, 15 members of which are explicitly named in the suit, in addition to “Doe One through Doe Seventy.”

Who are these “Does”? Could I be enjoined and not know it?
The American Civil Liberties Union has voiced concerns in a brief filed with the court, stating that the injunction, as originally proposed, “purports to give the police complete and unfettered discretion to impose the restrictions of the injunction on at least 62 unnamed persons simply by notifying them they are considered a North Side Oakland gang member. … It has no standards, guidelines, or criteria to guide the police as they determine whom they can serve with a court order.”

But the Oakland City Attorney’s Office has responded by stressing the fact that any person added to the injunction will be explicitly named as a defendant. The inclusion of “Does One through Seventy,” the city maintains, is standard legal practice to indicate that more defendants could be added in the future. “Any additional person included in the injunction will also be named as an individual defendant… [they] will have the opportunity to argue their case in court, and they will only be subject to the injunction after approval from a judge.” In other words, Oakland cops will not be able to decide on their own who to add to the injunction. The City Attorney’s office says there will also be an “opt-out” process through which a person named in the suit could petition to be removed if they are no longer associated with the gang.

What activities are illegal?
The injunction prohibits the persons named from participating in certain activities outlined in the suit. Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or any place accessible to the public with any “known member” of the North Side Oakland gang (not just those named in the suit) is forbidden, though there are exceptions to attend church, school, and places of employment. Loitering in public, trespassing on private property, intimidating witnesses, and recruiting new gang members are also explicitly prohibited by the order, as is possessing of any kind firearm, weapon, graffiti paraphernalia, or drugs. Those listed in the order are also subject to a 10 p.m. curfew.

What happens if someone violates the injunction?
Every violation is punishable by $1000 fine or 6 months in jail.

Doesn’t this violate the constitution? How is it legal?
The California Supreme Court upheld the legality of gang injunctions in the 1997 ruling People ex rel Gallo v. Acuna. The appellant challenged the constitutionality of an injunction imposed in San Jose, arguing it violated the freedom of assembly guaranteed by the constitution. But the high court ruled that gang activity could be considered a public nuisance, and cities could impose civil restraining orders to limit it.

Why North Oakland?
Gangs are a problem in a number of areas of Oakland, and some ask why North Oakland, which has fewer gang troubles than other areas, is being targeted for the injunction. Oakland City Attorney says that violence has escalated recently in the neighborhood, citing figures that crimes involving homicide, shootings, or gun possession in the area rose in 2007, 2008, and 2009. The City Attorney’s Office also says the injunction is being filed in response to requests from North Oakland residents and merchants.
North Oakland also is quickly becoming one of the most desirable neighborhoods in the region, and some people have contended that the injunction is part of a larger gentrification of the area, that is pushing out long-time residents. In the beginning of this year, according the national real estate brokerage ZipRealty, more houses sold above the asking price in the 94608 zip code where the injunction will be imposed than almost anywhere else in country (North Oakland was second only to Chicago’s Loop neighborhood).

Do injunctions work?
The city thinks so. City Attorney John Russo has referenced a study that found “in the first year after the injunctions are imposed, they lead the level of violent crime to decrease by 5-10 percent.”

But the ACLU disagrees: “Los Angeles has numerous gang injunctions — more than any other city, yet lost more than 10,000 youth to gang violence in the last twenty years. New York is a major city with the potential for serious gang problems, yet in 2005 Los Angeles had more than 11,000 gang-related crimes, while New York faced 520.”
Some studies also question the effectiveness of injunctions. Researchers at the University of California, Irvine found that, six months after an injunction in San Bernardino County, residents reported decreases in fear of gangs, incidences of intimidation by gang members, and gang-visibility. But the injunction did not, according to the study, appear to have any effect on the rate of violence experienced by residents, nor did it increase trust of police or sense of social control.

In addition, when instituted in less violent areas, researchers found that injunctions had a negative effect. The study included a neighboring area which initially experienced less gang violence; when the injunction was later extended to that area, it brought with it increased indicators of gang-visibility and feelings of victimization. The researchers hypothesized that gang activity may have relocated to that area after the first injunction was imposed.

Who is opposes the injunction?
The ACLU, for one. When articulating their opposition the ACLU points to four reasons:
1. Injunctions impose restrictions without affording those named in the suit the normal due process protections of the criminal justice system, most importantly the right to a lawyer.
2. Injunctions prevent the exercise of basic rights guaranteed by the constitution — the right to peaceably assemble, for example.
3. Injunctions target a broad range of activities, including some perfectly legal ones. For instance, if more than one member of a family is listed in the injunction, then simply attending a family get-together becomes a punishable offense.
4. Injunctions have the potential to stigmatize members of the community and increase racial polarization. The ACLU says: “Every gang injunction in this State of which [they] are aware has been imposed almost exclusively on persons of color and in communities of color. The potential for racial profiling and racial stereotyping … cannot be ignored in assessing this law enforcement tool.”

Who supports it?
Oakland Chief of Police Anthony Batts, who oversaw a number of gang injunctions in the city of Long Beach before coming to Oakland, says he’s seen their effectiveness first-hand: “It was another area much like this, we had a gang … that basically took over that community. Good people couldn’t walk down the street, they couldn’t drive down the street, and within the first year of the injunction you had kids back out playing in the streets.”

Oakland City Attorney John Russo has echoed that sentiment, saying: “This is just a tool; it is one of many. But it is a tool that has worked well in other cities. It makes it harder for the gang to plan or carry out the crimes that allow it to exist as an organization.”

On a recent visit to Youth Uprising in Oakland, US Attorney General Eric Holder said that the injunction was one example of law enforcement’s efforts to try new tactics to reduce crime: “We don’t want to get tough on crime, we want to get smart on crime … We have to find all kinds of ways to be creative.”

The Oakland Tribune also voiced its support in an editorial published Tuesday, writing: “We urge the court to approve Oakland's request [to impose the injunction].”

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