BILL ANALYSIS
SB 282
Page 1
Date of Hearing: June 16, 2009
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 282 (Wright) - As Amended: May 5, 2009
SUMMARY : Provides that an injunction issued against an
individual who is a criminal street gang member shall have a
duration of not more than five years, and specifies the
circumstances under which the prosecutor may apply for a renewal
of the injunction. Specifically, this bill :
1)States legislative intent to provide a time limit on the
duration of gang injunctions as applied to an individual that
is consistent with related state and federal law regarding
gangs.
2)States legislative findings and declarations that Federal law,
applicable to California, requires a five-year limit on the
retention of names in a gang registry database. [28 C.F.R.
23.20(h).] Further states that California law requires gang
offenders to register with law enforcement for five years,
pursuant to Penal Code Section 186.30.
3)Allows a prosecutor, at any time within three months before
the expiration or an injunction issued against an individual
who is a criminal street gang member, or an order enjoining
criminal street gang activity as a nuisance, under the
California Civil Code, to apply for a renewal of the
injunction by filing a certification that a court has
determined that an individual subject to an injunction has
violated that injunction or has been convicted of a new felony
or misdemeanor.
4)Provides that the court, after a hearing, may extend the
injunction for five years against the person who is the
subject of the extension hearing, as specified.
EXISTING LAW :
1)Defines a "criminal street gang" as any ongoing organization,
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association, or group of three or more persons . . . having as
one its primary activities the commission of one or more
enumerated offenses, having a common name or identifying sign
or symbol, and whose members engage in a pattern of gang
activity." [Penal Code Section 186.22(f).]
2)Defines, under Federal law, "criminal street gangs" as ongoing
groups, clubs, organizations, or associations of five or more
individuals that have as one of their primary purposes the
commission of one or more criminal offenses. [18 U.S.C.
Section 521(a)(A).]
3)Further defines, under federal law, such criminal offenses as
[18 U.S.C. Section 521(c)]:
a) A federal felony involving a controlled substance; or,
b) A federal felony crime of violence that has as an
element the use or attempted use of physical force against
the person of another; and,
c) A conspiracy to commit an offense described in
subparagraphs (a) or (b).
4)Provides that any person who actively participates in a
criminal street gang with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity and who
promotes, furthers, or assists in any felonious conduct by
members of the gang shall be punished by imprisonment in a
county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, two years, or
three years. [Penal Code Section 186.22(a).]
5)States that any person who is convicted of a felony committed
for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to
promote, further, or assist in criminal conduct by gang
members, shall be punished by an additional and consecutive
term of imprisonment in the state prison, ranging from a term
of two, three, or four years to a life sentence with a minimum
term of 15 years. [Penal Code Section 186.22(b).]
6)Provides that any person who is convicted of either a felony
or a misdemeanor that is committed for the benefit of, at the
direction of, or in association with any criminal street gang,
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with the specific intent to promote, further or assist in any
criminal conduct by gang members, shall be punished by
imprisonment in the county jail for up to one year, or by
imprisonment in the state prison for one, two, or three years.
[Penal Code Section 186.22(d).]
7)Defines "pattern of criminal gang activity" as the commission
of two or more of specified offenses, provided that at least
one of the offenses occurred after the effective date of the
statute and the last of the offenses occurred within three
years after a prior offense, and the offenses were committed
on separate occasions, or by two or more persons. [Penal Code
Section 186.22(e).]
8)States that in order to obtain a conviction, or sustain a
juvenile petition, it is not necessary for the prosecution to
prove that the person devotes all, or a substantial part, of
his or her time or efforts to the criminal street gang, nor is
it necessary to prove that the person is a member of the
criminal street gang. Active participation in the criminal
street gang is all that is required. [Penal Code Section
186.22(i).]
9)Provides that any building or place used by members of a
criminal street gang for committing specified felony offenses
is a nuisance subject to an injunction and damages, whether it
is a public or private nuisance. [Penal Code Section
186.22a.]
10)States that the action for the injunction may be brought by
the county district attorney in the name of the people, by the
city attorney, or by any private person. [Penal Code Section
186.22a(a).]
11)Provides, with specified exceptions that the controlled
substance nuisance abatement law set forth in Health and
Safety Code Section 11570 et seq. shall apply to gang nuisance
actions brought under the Penal Code. [Penal Code Section
186.22a(b).]
12)Authorizes the Attorney General, city or district attorney,
upon issuance of an injunction to abate gang activity
constituting a nuisance, as specified, or pursuant to the
general nuisance abatement statute in Civil Code Section 3479,
to seek damages on behalf of the community injured by the
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nuisance. States that the recovered damages shall be
deposited into a fund for payment to the governing body in
whose political subdivision the affected community is
located, for use solely for the benefit of the community that
has been injured by the nuisance. [Penal Code Section
186.22a.]
13)Provides, in case law, that the facts establishing a gang
nuisance, and thus the facts authorizing a gang injunction,
must be proved by clear and convincing evidence. [People v.
Englebrecht (2001) 88 Cal. App. 4th 1236.]
14)Provides that damages for a gang nuisance shall be paid by or
collected from assets of the criminal street gang or its
members. Only members of the criminal street gang who
created, maintained, or contributed to the creation or
maintenance of the nuisance shall be personally liable to
payment of the damages awarded. [Penal Code Section
186.22a(c).]
15)Defines, in the Civil Code, a "nuisance" as any thing which
is injurious to the health, including but not limited to, the
illegal sale of controlled substances, or is indecent or
offensive to the senses, or an obstruction to the free use of
property, or unlawfully obstructs the free passage or use, in
the customary manner, of any navigable lake or river, bay,
stream, canal, or basin, or any public park, square, street,
or highway. (Civil Code Section 3479.)
16)States that a public nuisance is one which affects at the
same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.
(Civil Code Section 3480.)
17)Defines, in the Penal Code, a "nuisance" as any thing
injurious to health, indecent, or offensive to the senses, or
any obstruction to the free use of property, so as to
interfere with the enjoyment of life or property by a
community, neighborhood, or considerable number of persons.
States that a nuisance is also anything that obstructs the
passage or use of any navigable waters, or any public place or
highway. Provides that maintaining a nuisance is a
misdemeanor. [Penal Code Sections 370, 372.)
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18)States that the "touchstone of the public nuisance doctrine"
is the "notion of the community and its collective values."
[People ex. rel Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1109.]
This Supreme Court case also holds that individual gang
members can be enjoined from creating a nuisance through such
acts as intimidating the public and associating in public view
with other known gang members in a specified geographic area.
(Id. at pp. 1110, 1117.)
19)Provides that every building or place used for the purpose of
unlawful acts involving controlled substances is a nuisance
which shall be enjoined, abated and for which damages may be
recovered, whether it is a public or private nuisance.
[Health and Safety Code Section (HSC) 11570.]
20)States that the district attorney, city attorney, or a
citizen may bring an action to abate a nuisance and
permanently enjoin any person maintaining it as to any
building or place used to sell or keep controlled substances.
(HSC Section 11571.)
21)Provides that if the court finds that any vacancy resulted
from closure of a property in a controlled substance nuisance
abatement action, the court may, in lieu of closing the
building, order the owner or person allowing the drug-related
conduct to occur to pay damages in an amount equal to the fair
market rental value for one year. Specifies that damages
shall be paid to the city or county in which the nuisance
exists for purposes of drug abuse prevention and education
programs. (HSC Section 11581.)
22)Further specifies that a court may assess a civil penalty not
to exceed $25,000 against a controlled substances nuisance
defendant. One-half of the civil penalty shall be deposited
in the Restitution Fund, and the other half paid to the city
in which the judgment was entered for the enhancement of
nuisance abatement, if the action was brought by the city
attorney or prosecutor. States that if the action was brought
by a district attorney, one-half of the penalties shall be
paid to the county treasurer. (HSC Section 115811.)
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "SB 282 places a
five-year statute of limitations on gang injunctions as it
applies only to an individual. It provides for an automatic
right to extend the injunction for another five years upon
certification that the person violated the injunction or
committed a crime during the prior five years.
"Current law unbelievably has no time limitation on injunctions.
In other words, you could be 40, 60 or 80 years old and still
be considered a gang member by the courts and law enforcement.
In some cases, family members are technically in violation of
their injunction when they return home for a family meal.
"A five-year limit is not only reasonable but tracks existing
law in related areas.
"There is a five-year limitation under federal law for keeping a
name on the state gang data base. State law also has a
similar limitation for the time period a person must register
as a gang member. SB 282 adopts a similar time period.
"SB 282 is drafted in a manner to minimize law enforcement work
load. A simple certification of a prior violation or crime is
the only requirement to extend the injunction."
2)Background : According to the United States Department of
Justice Gang Unit, "Criminal street gangs are located
throughout the United States and their memberships vary in
number, racial and ethnic composition, and structure. Large
national street gangs pose the greatest threat because they
smuggle, produce, transport, and distribute large quantities
of illicit drugs throughout the country and are extremely
violent. Local street gangs in rural, suburban, and urban
areas pose a low but growing threat, transporting and
distributing drugs within specific areas. The local street
gangs often imitate the larger, more powerful national gangs
in order to gain respect from their rivals.
"Criminal street gangs will continue to pose a serious domestic
threat to many communities throughout the United States. In
the long term, it is highly probably that United States-based
street gangs will increase their role in trafficking drugs,
particularly involving the smuggling of drugs into the United
States from international sources of supply. Furthermore, it
is highly probable that several United States-based street
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gangs will increase their relationships with international
criminal organizations and drug-trafficking organizations as a
means of obtaining access to the global illicit drug market.
3)United States Department of Justice (US DOJ) National Gang
Threat Assessment 2009 : One of the key findings of this
report was that "local street gangs, or neighborhood-based
street gangs, remain a significant threat because they
continue to account for the largest number of gangs
nationwide. Most engage in violence in conjunction with a
variety of crimes, including retail-level drug distribution.
Additionally, the assessment reported that gang members are
migrating from urban areas to suburban and rural communities,
expanding the gangs' influence in most regions. They are
doing so for a variety of reasons, including expanding drug
distribution territories, increasing illicit revenues,
recruiting new members, hiding from law enforcement, and
escaping other gangs. Many suburban and rural communities are
experiencing increasing gang-related crime and violence
because of expanding gang influence. (US DOJ, The National
Gang Threat Assessment 2009, U.S. DOJ Product No.
2009-M0335-001, )
"[G]angs are responsible for a significant portion of the crime
in many urban communities and in an increasing number of
suburban communities across the country; much of this crime is
associated with their drug trafficking activities. According
to local law enforcement information, gang members are
responsible for as much as 80 percent of the crime in some
locations. Violent disputes over control of drug territory
and enforcement of drug debts frequently occur among street
gangs in urban areas, and, increasingly, in suburban
communities where gangs have expanded their drug distribution
operations. Gang members also engage in a host of other
criminal activities such as auto theft, assault, alien
smuggling, burglary, drive-by shootings, extortion, firearms
offenses, home invasion robberies, homicide, identity theft,
insurance fraud, mortgage fraud, operating prostitution rings,
and weapons trafficking." (Id. at p 8.)
The US DOJ report predicts that "most regions of the United
States will experience increased gang membership, continued
migration of gangs to suburban and rural areas, and increased
gang-related criminal activity. These increases are largely
the result of the continued expansion of gang-operated
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criminal networks. Better-organized urban gangs will continue
to expand their criminal networks into new market areas in
suburban and rural locations, where they can absorb
unaffiliated local gangs, or use violence to intimidate them.
"Gang-related violence is very likely to remain at high levels
or increase as gangs expand their criminal operations into
suburban and rural communities. As these gangs encounter
resistance from local gangs or other drug distributors in
these communities, an increase in violent incidents such as
assaults, drive-by shootings, and homicides can be expected.
"[N]eighborhood-based gangs will continue to consume the
resources of local law enforcement in communities that report
high levels of gang-related criminal activity, but migration
of national gangs into new areas will pose an increasing
threat to such communities."
4)Effectiveness of Gang Injunctions : In the first study
examining how civil gang injunctions affect community members,
researchers at University of California, Irvine and the
University of Southern California found that injunctions
provide short-term benefits, such as reducing residents' fear
of interactions with gang members. However, the findings also
suggest that more significant changes in the community take
root slowly over time and that additional efforts by officials
and community members in the wake of an injunction could
significantly increase the positive effects.
In the abstract of this
study(), researchers
reported that on measures of other changes in the community,
such as whether residents experienced less violence or an
increased sense of social control and more trust in police,
the injunction appeared less effective. These community
changes, researchers said, might only take hold over longer
periods and may be helped along by additional interventions
with residents and gang members.
This study appears to indicate that civil gang injunctions
require a longer period of time to effectuate serious changes.
The study appeared in the Journal of Criminology and Public
Policy (funded by the National Institute of Justice, the
research, development and evaluation section of the US DOJ)
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and it appears that its findings are equally applicable to
civil injunctions against gangs as a nuisance, as well as
injunctions issued pursuant to Penal Code Section 186.22a.
According to the analysis of this bill written by the Senate
Public Safety Committee, "Research on prior bills found that
most injunctions are issued under the general nuisance
abatement and injunction provisions in Civil Code Section
3749, not under Penal Code Section 186.22a. A law review
article has stated: 'In 1988, the California Legislature
enacted the Street Terrorism Enforcement and Prevention Act
(STEP) as a tool to fight gang crime. [Penal Code Section
186.22(a-f).] The Act prohibits active gang members from
associating with one another to commit certain enumerated
crimes. The purpose of STEP is to disrupt the pattern of gang
association believed to be a major cause of gang crime. STEP
is not considered the final solution to gang crime, but rather
a tool prosecutors and law enforcement officials may implement
in California against gangs.'
"Most recently, California City Attorneys have turned to the use
of civil injunctions prohibiting gang members from engaging in
legal activities, such as associating together in public,
possessing a beeper, or using a cellular phone, as another
weapon to deter gang crime and violence. These injunctions
are civil suits instituted by the city in which the gang
operates, against individual defendants specifically named in
the injunctions." (California's Two-Prong Attack Against Gang
Crime and Violence: The Street Terrorism Enforcement and
Prevention Act and Anti-Gang Injunctions, La Verne Law Review
Journal of Juvenile Law 1998, 19 J. Juv. L. 272.)
The California Supreme Court upheld the constitutionality of
anti-gang injunctions in People ex rel. Gallo v. Acuna, (1997)
14 Cal. 4th 1090. According to the article in the La Verne
Law Review, "California Governor Pete Wilson responded to the
Acuna decision by stating, 'Today's ruling sends a clear
message to gang members . . . the safety of our communities
takes priority over gang members' right to hang out on street
corners and prey on the innocent.' "
5)"Promise and Peril in South L.A". : A June 7, 2009 article in
the Los Angeles Times, Promise and Peril in South L.A.: With
Crime in Decline, a Fragile Sense of Hope, by Scott Gold
stated, "Last month, the LAPD began rolling out an injunction
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restricting the movements and activities of gang members in a
13.7 square mile stretch of South Los Angeles - the largest
such injunction in state history. All told, the six targeted
gangs, which include Florencia 13, one of the largest and most
powerful in Los Angeles County, have at least 3,000 members.
The injunction's territory . . . is nearly twice the size of
the City of Santa Monica.
"The neighborhood is poor and transient, creating a vacuum where
a gang ecosystem has formed, according to the city's 276-page
court filing supporting the injunction, 'where each gang
enables and affects the existence of the other gangs.'
[A]nyone served with the injunction will receive papers
spelling out how he can be removed from it. Gang members will
not be targeted while they attend intervention or prevention
programs, and some can avoid jail time if they can prove they
have held a job for 90 days.
"Officers are being instructed to use discretion. [T]he LAPD is
even enlisting civil activists - people who have criticized
the police in the past - to convince a wary public that the
injunction will improve the quality of life.
"It is difficult to overstate the defining influence of gangs
here. Gangsters collect 'taxes' from street vendors and small
businesses, sometimes carrying clipboards in broad daylight.
A few weeks ago, Jefferson High teachers found a student's
drawing of the 'devil horns' hand sign associated with the
Mara Salvatrucha gang. They quickly confiscated and hit the
notebook? because the school is dominated by a rival gang,
38th Street. If the author were identified, a social worker
said, it would mean a 'death sentence.'
"In the two LAPD divisions responsible for the injunction area,
serious crime reported through end of May fell 11% compared
with the same period in 2007. Homicides dropped by a third.
In particular, the declared gang warfare that has been such a
plague has dropped markedly. The city's 167 gang-related
homicides in 2008 were a 26.8% reduction from
2007 - and another world from the early 1990's, when gangs
killed, on average, a person a day."
( SB 282
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6)Should Anti-Gang Injunctions Be Restricted to a Duration of
Not More than Five Years ? In view of the expansion of
criminal street gangs from urban to suburban and rural areas,
as documented in the US DOJ's 2009 National Gang Threat
Assessment, supra, does it further public safety to require a
prosecuting attorney to prove a violation of the injunction or
commission of a new felony or misdemeanor in order to obtain
an extension of a civil injunction for an additional five
years? Is it a wise use of resources to require a prosecutor
to renew gang injunctions every five years, even when the
nuisance presented by the gang activities continues unabated?
Would those resources better be utilized enjoining and abating
new gang nuisances?
If a civil injunction is issued for the abatement of a physical
nuisance, such as noxious weeds, toxic substances, or
graffiti, that injunction remains in place until the nuisance
is abated. [California Department of Toxic Substances Control
v. Payless Cleaners et. al, 2007 U.S. Dist. LEXIS 60703 (U.S.
District Court, E.D. California).] "Where a nuisance is
continuing, plaintiffs may file an action for continuing
nuisance at any time before the nuisance is abated." [Id.,
citing Jordan v. City of Santa Barbara, 46 Cal. App. 4th 1256
(1996).]
If the criminal street gang activity is continuing unabated, is
there a rational basis for terminating the injunction against
that activity at the arbitrary time of five years following
issuance of the injunction? Should case law, establishing
that a civil injunction remains in place until the nuisance is
abated, prevail in all civil injunctions or should there be a
legislative exception for injunctions against criminal street
gangs?
There is no evidence that terminating an injunction after five
years has any reasonable relationship to the purposes of the
STEP. (Penal Code Section 186.20 et. seq.) In legislative
findings and declarations set forth at Penal Code Section
186.21, the Legislature found that California is in a state of
crisis, caused by violent street gangs whose members threaten,
terrorize and commit a multitude of crimes against the
peaceful citizens of their neighborhoods. "These activities,
both individually and collectively, present a clear and
present danger to public order and safety and are not
constitutionally protected." (Id.)
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A comparison between the five-year limitation on gang
registration and this bill's proposed five-year limitation on
injunctions against continuing, unabated street gang
activities appears to be misplaced. The five-year limitation
cited by the author relate to matters of criminal law and
federal grant management. If the issuing court determines
that an injunction without a specific time limit is
appropriate in certain circumstances involving long-standing
and well-entrenched criminal street gangs, should the
Legislature interfere with this exercise of judicial
discretion? As stated by the Los Angeles County District
Attorney, "The membership of [the gangs targeted for a civil
injunction project] is permanent gangs with long held
traditions and loyalty. The membership of these gangs goes
back for several generations in both history and family ties .
. . .
"The core tradition of these gangs is that you never leave . . .
. To limit gang injunctions to an arbitrary time period is to
ignore the time-honored nature of nuisance injunctions, which
is that they remain in place until the nuisance activity has
been abated."
7)Arguments in Support :
a) According to the California Public Defenders
Association , they state "support SB 282 as a first step
toward placing time limitations on the imposition of gang
injunctions. As of March 2009, in the City of Los Angeles,
there are 41 injunctions covering 66 gangs. Ten thousand
men and women are named in gang injunctions in Los Angeles.
A gang injunction is a civil court order that prohibits a
gang and its members from conducting certain specified
activities within a defined geographic zone known as a
'safety zone.' While gang injunctions are generally viewed
as a positive, effective way to deter gang violence and
membership, the reality is that gang injunctions enjoin
entire communities that are mostly low income and of color.
The most recent gang injunction sought by the Los Angeles
City Attorney was for the 'San Fer' gang in the San
Fernando Valley. The injunction covers nine square miles
and lists 500 'Does' (individuals that may or may not be
named later.) Due to the large areas covered and the large
number of 'Does' named in injunctions, invariably
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individuals who are not gang involved or gang members are
swept into the wide net cast by its imposition. Gang
injunctions are over broad, often times including
individuals who are no longer active, loosely affiliated
and/or have renounced the gang altogether.
"When a gang injunction is imposed on an individual, there is
no time limit enforced. Existing law does not provide a
time limit on the duration of a gang injunction as applied
to an individual. Therefore, current injunctions are
imposed indefinitely. SB 282 would impose a five-year time
limit to the duration of gang injunctions. Other
legislation pertinent to regulating gang involvement also
employs a five-year time limit. Federal Law, 28 C.F.R.
23.20(h), places a five-year time limit on the retention of
names in the California Gang Database. Once an
individual's name is placed into the Cal Gang database, it
is automatically purged after five years, if there is no
contact with law enforcement. Similarly, California State
Law imposes a five year limit on gang registration for gang
offenders pursuant to Penal Code Section 186.32(c).
"SB 282 would impose a five year limit on individuals named
in a gang injunction, commensurate to existing Federal and
State law aimed at curtailing gang involvement. SB 282
also allows an extension of the five year time limit, for
an additional five year term, if the prosecution can
demonstrate, through a noticed hearing, that the individual
has violated the injunction or committed a new crime.
While SB 282 does not set forth what specific evidence must
be proven in order to get an extension, it is important
that it provides for a judicial process for an individual
to challenge their name remaining on the injunction.
"The Los Angeles City Attorney has employed an 'Exit
Strategy' [pursuant to which] individuals can apply for
removal from an injunction. However, since its inception
in the summer of 2008, only one person has been removed.
The application process is unduly onerous, often times
requiring individuals to hire an attorney to complete the
form correctly. In addition, the removal process can be
viewed as inherently biased in that the applications for
removal are not reviewed by an independent body, but
rather, by the City Attorney itself, the same entity who
sought to have them enjoined. To date it has not been
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proven to be an effective way for an individual to have his
or her name removed from the injunction.
"SB 282 would provide a viable alternative for individuals to
be removed from a gang injunction after five years. In
addition, it provides for a much needed judicial process
which will protect the freedoms of those individuals who
are enjoined."
b) According to the Los Angeles Youth Justice Coalition ,
gang injunctions "have become a main component of our
country's multi-billion dollar 'War on Gangs.' Yet today
we have twice as many alleged gang members and at least six
times as many gangs as we did 25 years ago.
"While the intent of the gang injunction is to decrease
violence and stabilize communities, it has been our
experience working and living in several injunction areas
that the practice actually increases stress and decreases
positive opportunities for youth and other residents. The
constant arrests and detentions caused by the enforcement
of injunctions' civil court orders, disconnects people from
employment, education, housing, and other services
essential for their survival and progress. Injunctions
actually serve to destabilize communities and eventually
increase, rather than decrease, reliance on gangs and other
underground economies.
"In 26 years, only one person, just last year, has ever been
removed from a Los Angeles County gang injunction. SB 282
offers youth and others an opportunity for a clear and fair
process for removal from an injunction."
8)Arguments in Opposition :
a) According to the City Attorney of Los Angeles
(referencing the June 7, 2009 Los Angeles Times article),
"This article is the result of an independent study by the
Los Angeles Times of the impact of Los Angeles City
Attorney's gang injunction within the 'Florence - Pueblo
Del Rio Safety Zone' in historic South Los Angeles.
"[T]he Times Article highlights, among other things both: 1)
the success of the gang injunction as part of an overall
crime reduction strategy; and 2) the existence of the Los
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Angeles City Attorney's Gang Injunction Removal Process
which affords every person in the Safety Zone access to an
informal exit from gang injunction enforcement.
"The article is further independent evidence of what we have
learned from our extensive experience with civil and
criminal gang remedies: namely, that the gang injunction
is one of the most effective parts of any long term,
comprehensive effort to reduce gang violence and gang
membership.
"As we have noted before, civil gang injunctions are large,
long term, civic projects, carried out under court order
and with cooperation between police, prosecutors, and the
communities where injunctions are located. We believe that
the enforcement of the 42 gang injunctions in Los Angeles
is both focused and reliable. In Los Angeles, it is the
policy of the Los Angeles Police Department and the Los
Angeles City Attorney's Office that only persons who have
been individually served with notice of an injunction will
be prosecuted for a violation of the court order. And, as
noted above, authorities also make available an informal
process for removal for qualifying individuals served or
named in injunctions.
"Moreover, with regard to enforcement, city prosecutors only
pursue cases against persons for whom admissible evidence
exists establishing those persons as members of the
enjoined gang. And every defendant in every criminal
prosecution is afforded all the constitutional rights and
guarantees afforded all criminal defendants in California,
including the right to counsel.
"In addition, the evidence of gang membership upon which
police and prosecutors rely in court must be relatively
recent - typically within the past two years - a practice
and policy which both further safeguards potential abuse
and further enhances the credibility of the prosecutions.
"In sum, it is our experience that gang injunction
prosecutions in Los Angeles are among the most safe and
reliable of any in the criminal justice system.
"As a result, we believe that the limitations proposed in [SB
282] will serve neither any practical purpose nor the
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public interest. Instead, it is our conclusion that the
proposed legislation will, if passed into law, only serve
to limit the success and effectiveness of gang injunctions
and hinder law enforcement in its ongoing efforts to reduce
both gang violence and gang membership. For all of the
reasons above, as well as the original reasons set forth in
our letter of April 15, 2009, we respectfully oppose the
proposed legislation."
In his original letters of opposition, the City Attorney
states, "The Los Angeles City Attorney's Office is very
concerned that [this bill] would inappropriately and
broadly preempt local law enforcement in its ongoing effort
to suppress gang violence across the City and County of Los
Angeles, as well as the State of California.
"In Los Angeles, we currently have 41 court-ordered civil
gang injunctions in place, more than any other jurisdiction
in the nation. With these injunctions in place, we have
seen dramatic reductions in gang crime and gang violence in
the city. In addition, at my direction, in Los Angeles our
current injunction practice already affords former gang
members an 'exit strategy' from the gang life by allowing
them to be removed from enforcement of the injunction where
they can establish that they have made a sincere change in
lifestyle and no longer represent a threat to the public.
"Our injunctions have been obtained against many of the most
notorious, dangerous and entrenched criminal street gangs,
including, to name only a few, the 18th Street Gang, the
MS-13 Gang, the Bounty Hunter Bloods Gang, the Rolling 60s
Crips Gang, and the Avenues Gang. Notably, criminal
behavior of each of these gangs has plagued Los Angeles for
m ore than 20 years. Sadly, individual gang members and
gang leaders of each of these gangs, known as 'shot
callers' or 'OGs', can trace criminal histories well in
excess of ten years.
"To meet this continuing threat to public safety, our civil
gang injunctions are both painstakingly constructed and
narrowly tailored to meet exacting legal standards in court
and then carefully enforced to maintain public safety in
the face of the continued threat of gang crime and gang
violence in Los Angeles. Indeed, it is the experience of
the Los Angeles City Attorney that both the Los Angeles
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Police Department, our partners in the effort to obtain and
enforce civil gang injunctions, and the residents of the
communities where the gang injunctions are currently in
place firmly believe that the injunctions are a much-needed
tool for the ongoing suppression of gang violence and
intimidation.
"Therefore, we fully concur with the analysis of CDAA which
observed in its April 10, 2009 letter of opposition to this
measure as follows: 'To limit their duration to an
arbitrary time period is to ignore the time-honored nature
of nuisance injunctions, which is that they remain in place
until the nuisance activity has been abated.'
"Like the CDAA, we also know of no basis in fact for the
imposition of an arbitrary five year time limitation on the
exercise of court-ordered civil injunctions against
criminal street gang members. Based on our experience, we
believe that such an arbitrary restriction would actually
upset the delicate legal balance struck by our existing
gang injunctions and serve to severely hamper law
enforcement in its ongoing efforts to stop the gang
violence that impacts far too many of our neighborhoods.
"Moreover, the proposed measure would also appear to limit
the ability of prosecutors across the state both to seek
and collect money damages from those criminal street gang
members and gang leaders under injunction who have caused
actual h arm to a community and to return any damages
collected to the communities and neighborhoods harmed by
the nuisance activity. Indeed, just this year, my office
obtained a $5 million dollar judgment against the criminal
street gang which was running the largest heroin sales
syndicate in the region and put them out of business in the
city. Thus, the proposed measure, by limiting the duration
of the underlying injunction, may well allow criminal
street gang members and gang leaders to avoid paying the
full legal measure of responsibility for their harmful
activities to the communities they have damaged for so
long."
b) According to the California District Attorneys
Association , "Gang injunctions have proven to be a powerful
law enforcement tool in the fight against gang violence and
the corresponding nuisance-related activities engaged in by
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criminal street gang members. Communities long plagued by
decades of senseless violence, intimidation, rampant drug
dealing, and predatory street crimes have been given an
opportunity to take back their neighborhoods as a result of
gang injunctions. The June 7, 2009 Los Angeles Times
feature article by Scott Gold entitled With Crime In
Decline, a Fragile Sense of Hope highlights the success of
a wide-ranging injunction targeting six gangs in a poor Los
Angeles neighborhood. This injunction is credited with
spurring development, bringing in needed community
services, and fostering hope in an area considered by some,
as stated in the article, to be 'the cradle of the thug
life . . . . '
"Across the state, gang injunctions have been credited with
significant decreases in gang crime. In addition, gang
injunctions have changed behaviors of criminal street gang
members, impacted the ability of gangs to recruit new
members, and provided excuses for others to avoid 'hanging
out' with the gang. [This] legislation would have a
significant impact on the utility of the gang injunction as
the preferred tool for the recovery of communities impacted
by years of gang violence.
"Gang injunctions require significant police and prosecutor
resources to develop the evidence necessary to support the
grant of the injunction. As an example, preliminary work
and evidence gathering for the injunction described in the
Los Angeles Times article began in early 2007. Targeting
the six criminal street gangs whose collective membership
numbered in the thousands required a major investment of
police and prosecutor resources to accomplish. Evidence
establishing the nuisance activities and crimes committed
by the criminal street gang members must be presented to
meet the 'clear and convincing' standard of proof as
required by case law, rather than the 'preponderance of
evidence' standard required for all other injunctions.
Gang injunctions have often been the subject of significant
and lengthy litigation prior to their granting.
"[SB 282], by its language, applies to 'criminal street gang
members' who, by virtue of the [proposed] five-year
wash-out period, would be free to continue nuisance
activity without the necessity of renouncing the gang
lifestyle, leaving the gang, or even attempting to reform
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their behavior. To limit gang injunctions to an arbitrary
time period is to ignore the time-honored nature of
nuisance injunctions, which is that they remain in place
until the nuisance activity has been abated.
"Furthermore, many injunctions already have provisions
allowing individuals to be removed after a period of both
crime-free life and renunciation of both gang membership
and the gang lifestyle. Many gang injunctions also contain
provisions allowing attendance at gang prevention and
intervention programs with the stated goal of providing 'a
roadmap off the injunction.' These provisions would lose
all effectiveness under the proposed legislation.
"Additionally, SB 282 would burden police and prosecutors
with the requirement of going back to court after a gang
member was convicted of a new crime or violating the
injunction to ensure that the five-year 'wash-out'
provision did not apply. At a time when public safety
resources and the criminal justice system are under extreme
stress due to the current economic climate and budget
problems, this proposed legislation is neither
cost-effective nor prudent."
c) According to the District Attorney of Los Angeles
County , "Although there are almost 1000 gangs in Los
Angeles County, only seventy or so have been targeted for a
civil gang injunction project. The gangs we sue are
permanent gangs with long held traditions and loyalty. The
membership of these gangs goes back for several generations
in both history and family ties. They have established
pecking orders with shot callers, prison returnees, new
members trying to prove themselves, etc. The core
tradition of these gangs is that you never leave. The
injunctions issued against these gangs should therefore
also be permanent.
"Our injunctions generally require a year or more to
investigate the gang and its activities, and to assemble
the evidence for presentation in civil court. It further
takes six months to a year to complete the court hearings,
service of paperwork and implementation of the court order.
Proposed civil gang injunctions are not merely
rubber-stamped by the local judges, but often challenged by
the American Civil Liberties Union and other organizations
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or private attorneys. Judges have also made deletions and
changes to proposed court orders on their own accord. The
Deputy District Attorneys working in this unit file 750 -
1000 pages of documentary evidence and pleadings in each of
these cases in order to prove by clear and convincing
evidence that the targeted gang has maintained a public
nuisance for decades and to accurately establish the
boundaries of the nuisance area or Safety Zone. These
boundaries are not neatly contained within one city or law
enforcement agency, but instead flow across borders of
cities, counties, and law enforcement agencies.
"Civil gang injunctions do not outlaw gang membership or
eliminate freedom of association. They simply curtail gang
members' ability to congregate in their 'turf' or engage in
criminal and nuisance activity that has proven to impact
the quality of life for the residents in these communities.
They are akin to zoning laws that require permits for
congregating in certain well-defined and limited areas
(such as the annual Rose Parade). These well-defined areas
(the Safety Zone) must be justified to the Court. Gang
members are free to congregate outside the Safety Zone at
any time of day or night.
"Some of the injunction orders themselves also include an
opt-out provision or application for an exemption. The
opt-out provision is not technically difficult and no
attorney is necessary. The gang member must show that he
or she has not been involved in gang activity, maintained a
job or been a student, and renounced his or her membership
in the gang. Only a handful of gang members, out of the
thousands affected in Los Angeles County, have afforded
themselves of this opportunity.
"The exemption provision, included in the newest injunctions,
requires only that a gang member explain the reason he/she
needs an exemption from a particular provision. For
example, a gang member may request an exemption to the
curfew provision every day from 3:00 a.m. to 4:00 a.m. if
he lives within the safety zone because he/she works a
night shift and travels home at that time. To date, no
gang member has applied for an exemption.
"[S]tatistics show that the injunctions successfully serve
the communities that have been gripped by gang violence.
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Gang crime on average has fallen between 30 to 50 percent
in the communities protected by a civil gang injunction.
Businesses thrive and families return to the local parks.
Participation in Neighborhood Watch and other community
projects increase ten fold. In short, the quality of life
for the residents in the community improves vastly.
"Our office believes the safeguards employed by law
enforcement agencies and the courts are more than
sufficient to honor the due process rights of the gang
members while reducing gang violence and nuisance activity
in the safety zones."
d) According to the City of Fresno Chief of Police , "The
Central Valley has seen firsthand the effectiveness of gang
injunctions. Currently, there are five gang injunctions in
effect in Fresno County and two gang injunctions in Tulare
County. In surveys conducted within the gang injunction
safety zones, the residents and business owners have
overwhelmingly supported the continuation of the
injunctions as a way to minimize the effect of gang
nuisance and criminal activity on their neighborhoods.
"[T]o impose a time limitation of five years on these
injunctions would in effect nullify the success of these
injunctions. Central Valley law enforcement agencies would
have to devote additional scarce resources to re-institute
these gang injunctions, even though a procedure giving the
defendant gang and its members ample opportunity to be
heard has already been established."
9)Related Legislation : SB 492 (Maldonado) proposes to increase
the penalties for loitering at any school or place where
children regularly congregate, if the defendant is required to
register with the chief of police or sheriff for committing
specified gang offenses. SB 492 is scheduled to be heard by
this Committee today.
10)Prior Legislation :
a) SB 1126 (Cedillo), Chapter 38, Statutes of 2008, allows
damages to be collected from any of the assets of members
of the criminal street gang who created or contributed to
the creation of the nuisance that was the subject of the
nuisance action.
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b) SB 2034 (Lockyer) Chapter 631, Statutes of 1998,
authorizes the Attorney General, after an injunction has
been issued against members of a criminal street gang, to
maintain an action for money damages on behalf of the
community injured by the nuisance.
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Defenders Association
Los Angeles Youth Justice Coalition
Opposition
California District Attorneys Association
City and County of San Francisco
City Attorney, City and County of San Francisco
City Attorney, City of Los Angeles
County of Fresno District Attorney
District Attorney, County of San Bernardino
District Attorney, County of Ventura
District Attorney, Los Angeles County
Peace Officers Research Association of California
Police Chief, City of Fresno
Police Chief, City of Reedley
Police Chief, City of Selma
Ventura County Law Enforcement Coordinating Committee
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744