BILL ANALYSIS
SB 282
Page 1
Date of Hearing: June 30, 2009
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 282 (Wright) - As Amended: June 24, 2009
SUMMARY : Provides that an individual subject to an injunction
issued against that person who is a criminal street gang member
may petition the court for relief from the injunction under
specified conditions. Specifically, this bill :
1)States that the defendant shall file the original petition to
terminate an injunction with the court that issued the
injunction, and shall serve a copy of the petition on the
agency that prosecuted the case.
2)Provides that the individual shall, in the petition, certify
under penalty of perjury, the following:
a) The individual has not violated the injunction.
b) The individual has not been convicted of committing a
new felony or misdemeanor.
c) Not less than five years have elapsed between the
application of the injunction to the individual and the
filing of the petition.
3)States that if any of the above-required information is
missing from the petition, or if proof of service on the
prosecuting agency is not provided, the court shall return the
petition to the individual and advise him or her that the
matter cannot be considered without the missing information.
4)Requires the prosecuting agency to reply to the petition, if
desired, within 60 days of the date on which the prosecuting
agency is served with the motion, unless a continuance is
granted for good cause.
5)Provides that if the court finds, by a preponderance of the
evidence that the statements in the petition are true, or if
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no reply to the petition is filed, the court shall grant the
petition to terminate the injunction as regards the
individual.
6)Requires the Judicial Council, by September 1, 2010, to do
both of the following:
a) Develop, approve and adopt a petition form that meets
the requirements of the Penal Code, as specified, and
further requires that the form of the petition shall be as
simple as possible, requiring only that the petitioner fill
out his or her name, check any applicable box or boxes, and
provide a signature, under penalty of perjury. The
petition
shall contain a notice that if an individual cannot afford
the petition filing fee, the individual may apply for a
waiver of the fee, as specified.
b) Ensure that an injunction issued against an individual
enjoining criminal street gang activity as a nuisance shall
prominently display a notice, in bold 20-point type, that
states that the individual may, after five years, petition
the court to terminate the injunction by use of the form
described in subdivision (a).
EXISTING LAW :
1) Enacts the California Street Terrorism Enforcement and
Prevention Act (STEP) which finds that the State of
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. States that these activities, both
individually and collectively, present a clear and present
danger to public order and safety and are not
constitutionally protected. [Penal Code Sections 186.20 and
186.21.]
2) Defines a "criminal street gang" as any ongoing organization,
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).]
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3) 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).]
4) 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) above.
5) 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).]
6) 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).]
7) 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, 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).]
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8) 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).]
9) 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).]
10)Defines "burden of proof", and states that except as
otherwise provided by law, the burden of proof requires proof
by a preponderance of the evidence. (Evidence Code Section
115.)
11)States that in civil proceedings, one of the two less
stringent standards will normally apply, and that the least
stringent standard is proof by a preponderance of the
evidence. Proof by a preponderance of the evidence simply
requires the trier of fact to believe that the existence of a
fact is more probable than its non-existence. [Bender,
California Forms of Pleading and Practice, Section 551.92
(2009), citing In Re Winship (1970) 397 U.S. 358, 371.]
12)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.]
13)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).]
14)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
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nuisance actions brought under the Penal Code. [Penal Code
Section 186.22a(b).]
15)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 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.]
16)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.]
17)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).]
18)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.)
19)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.)
20)Defines, in the Penal Code, a "nuisance" as any thing
injurious to health, indecent, or offensive to the senses, or
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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 and 372.)
21)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.)
22)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.]
23)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.)
24)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.)
25)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
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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.)
26)States that perjury is committed when any person certifies
under penalty of perjury and willfully states as true any
material matter which he or she knows to be false. (Penal
Code Section 118.) Perjury is punishable by imprisonment in
the state prison for two, three, or four years. (Penal Code
Section 126.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The amended
version of SB 282 before the Assembly Public Safety Committee
represents a compromise from my original bill which simply put
a five-year statute of limitations on gang injunctions as
applied to an individual only.
"Current law does not provide for any set term when it comes to
gang injunctions as applied to an individual. The reality is
most individuals generally cannot afford an attorney so very
few contest the initial court proceeding and thereafter can
theoretically be subject to the injunction until they die.
This is irrespective of whether they still are, or in fact
ever were, a member of a gang. You can be 90 and still be
subject to a gang violation under current law.
"This practice goes beyond any reasonable law enforcement
approach. Since the typical scope of a gang injunction
prohibits a number of legitimate activities such as visiting
or being present in certain locations or associating with
particular individuals, such restrictions may be very onerous
and prevent an individual, for example, from even visiting a
relative etc. etc. There is no uniform, inexpensive way to be
removed from the list and the onus should not be on the
individual to incur those costs.
"The five-year period is consistent with federal regulations on
retention of criminal intelligence data.
"SB 282 now provides for a procedure to allow an individual to
petition the court to be removed from the injunction after
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five years if the individual did not commit a crime or violate
the law during that period. It also reduces the legal costs
of this procedure by having the Judicial Council create a
uniform petition. This is a modest compromise to partially
end the absurdity of having an indefinite time period for an
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
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)Procedures for Removal From Enforcement of a Gang Injunction :
A number of prosecuting agencies that use gang injunctions
have a gang injunction removal process. The Los Angeles City
Attorney's Office, which has had a removal process for over
two years, requires far more information than that
contemplated by this bill. Such information includes the
petitioner's social security number; a copy of a valid photo
identification; current home address and telephone number(s);
any aliases used by the petitioner; the name, address, and
telephone number of the petitioner's place of employment; a
signed verification that the petitioner no longer is (or never
was) a member of the gang named in the gang injunction; and no
longer is (or never was) a member of any other criminal street
gang; and no longer is (or never was) acting to promote,
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further, or assist any such gang's criminal or nuisance
activity.
Additionally, the Los Angeles City Attorney's process requires,
as to a petitioner who claims to have previously been but no
longer is a gang member, a statement explaining when, why, and
under what circumstances he or she ceased being a gang member.
This process also requires a list of references who could
support the petitioner's claim that he or she no longer is (or
never was) a gang member, and any documentation or information
supporting the petitioner's claim regarding current or former
gang membership.
Nothing in the process as described in the Los Angeles City
Attorney's removal process is complicated, legally technical,
and the process does not require an attorney. The information
required is available on their website in both English and
Spanish, and many people served with gang injunctions have
availed themselves of the process. According to members of
the Los Angeles City Attorney's Office gang unit, in the years
that the removal process has been in place, 62 persons have
applied and 16 additional applications are pending.
Following the receipt of a complete petition, the Removal
Coordinator in the City Attorney's office obtains a
recommendation and information from the Gang deputy in the
office and from the Los Angeles Police Department. The gang
deputy responsible for enforcement of the gang injunction, in
consultation with the gang deputy who procured the gang
injunction and the Los Angeles Police Department shall provide
the Removal Coordinator with a recommendation, which is then
forwarded to the Reviewing Authority.
In addition, the Removal Coordinator will request to interview
the petitioner; during the interview, the petitioner will be
given the opportunity to provide any additional documentation
or information that he or she believes may be relevant. The
Removal Coordinator also seeks, during this interview, to
resolve any questions arising from the initial interview
process.
In making a decision whether or not to remove the petitioner
from enforcement of the injunction, the Reviewing Authority
may consider the following factors, among others:
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a) The petitioner's education;
b) The petitioner's employment;
c) The petitioner's references;
d) The petitioner's criminal history or lack thereof;
e) Any pending criminal charges;
f) Whether the petitioner is on active parole or probation;
g) The petitioner's law enforcement contacts evidencing
gang membership, participation, or other involvement, or
the lack thereof;
h) Information ascertained during the petitioner's
interview; and,
i) Information evidencing the petitioner's gang membership,
participation, or other involvement, or lack thereof.
The Los Angeles City Attorney's removal process also contains
a rebuttable presumption that a person subject to an
injunction qualifies for removal from injunction enforcement
if, during the preceding three years:
a) The person was not at any time in custody or on parole,
probation, or a similar form of supervised release; and,
b) The person has not been convicted of, charged with, or
arrested for a crime of violence, a felony offense, or a
violation of a gang injunction.
4)This Bill Allows An Individual to be Removed from the
Enforcement of a Gang Injunction Without Providing Sufficient
Information To Enable Law Enforcement to Make an Informed
Decision on the Merits of the Petition: It appears to defeat
the purpose of injunctions against criminal street gangs as a
nuisance to remove from the scope of the injunction persons
who may remain active members of the criminal street gang.
This bill, in an apparent attempt to make the petition for
removal process as easy as possible, proposes a series of
check-off boxes to provide the necessary information. For
example, the proposed form of petition requires the individual
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seeking removal from the injunction to certify that he or she
has not violated the injunction; has not been convicted of a
new felony or misdemeanor; and that not less than five years
have elapsed between the application of the injunction to the
individual and the filing of the petition for removal.
Although the petitioner may not have been convicted of a new
felony or misdemeanor, he or she may be well known to local
law enforcement as a continuing active member of a criminal
street gang. This bill would allow even petitioners who have
been arrested for gang-related activity to be removed from the
injunction; persons with pending prosecutions for gang-related
crimes, as well as persons whose names appear in established
gang databases all would qualify for approval of their
petitions.
Is it good public policy to allow persons subject to a gang
injunction to be removed from enforcement of that injunction
solely on the basis of a pre-printed form with check-off boxes
requiring only "yes" or "no" responses? Given the "crisis
caused by violent street gangs" (Penal Code Section 186.21)
and the time it takes to investigate and procure a gang
injunction, is it more reasonable to conduct reasonable due
diligence activities by means of personal interviews, law
enforcement officers' input, cross-checking gang databases,
and ascertaining the facts that caused the petitioner to cease
gang membership if that indeed is the case? Should factors
like employment, education and references (showing that the
petitioner has made fundamental changes in his or her
lifestyle) be considered in determining whether to grant the
petition?
Given the time and resources required to obtain a gang
injunction and personally serve all individual gang members,
should a prosecuting office be afforded more than 60 days to
prepare its response to a petition for removal from
enforcement of the injunction?
5)How Is the Judicial Council Expected to Comply with the
Requirements Imposed Upon It By This Bill ? It is within the
general purview of the Judicial Council to develop forms;
however, the Judicial Council cannot ensure that every gang
injunction complies with the requirements of this bill. Since
the Judicial Council's responsibilities do not include the
pre-review of documents used by a law enforcement or
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prosecuting agency, it is unreasonable to require the Judicial
Council to "ensure" that an injunction complies with this
bill. Moreover, this provision of the bill places in the
Judicial Council a matter which is properly reserved for the
exercise of judicial discretion by the court in which the
injunction was filed.
What are the anticipated consequences if a local agency issues
an injunction in 19-point type instead of 20?
The composition and duties of the Judicial Counsel are set forth
in the California Constitution, Article 6, Section 6. The
Judicial Council may make recommendations to the Governor and
Legislature, adopt rules for court administration, practice
and procedure, and perform other functions prescribed by
statute. The duties of the Judicial Council do not include
the prior review of court filings to ensure those filings are
in a proper format, with appropriate type face and content.
6)Opt-Out Provisions in Current Gang Injunctions : As stated in
the Los Angeles County District Attorney's letter, "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."
Similarly, the Los Angeles City Attorney publishes a fact sheet
on their Gang Injunction Removal Petition. The fact sheet
states, "Petitioning for removal from enforcement of an
injunction represents a significant step towards creating a
healthier, safer and more productive future. [I]f your
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petition is granted, the benefits include: the LAPD and City
Attorney will no longer enforce the gang injunction against
you; public association, adult curfew, and 'stay away' orders
are among some of the injunction prohibitions that will no
longer be enforced against you; and, freedom from injunction
enforcement and the opportunity to build a more productive
life for yourself and your family.
"The City Attorney's office accepts applications of any length
and format. During the review process, the City Attorney will
contact personal references, seek input from law enforcement,
and conduct a face to face interview. The applicant's
motivation for removal and authenticity of the petition
documents rank high in determining whether the City Attorney's
Office approves the request. We seek individuals who
demonstrate a strong desire to further their goals and make a
fresh start.
"In addition to the benefits outlined above, the City of Los
Angeles, and those agencies whom the City partners with,
offers many resources to assist you throughout the application
process and beyond. These resources include: job training,
development, and placement; housing assistance; tattoo
removal; educational support; recreational services; and other
beneficial individual and family services. For more
information about the Removal Petition Process, please contact
the Office of the City Attorney [at a specified telephone
number] or visit our website at www.lacity.org/atty/ ."
7)This Bill As Amended Does Not Require the Petitioner to
Provide Credible Documentation to Substantiate Any of the
Statements Answered In the Check-Off Boxes : It is
questionable that a form with check-off boxes can provide the
type or specificity of information necessary to make an
informed decision as to whether the person merits removal from
enforcement of the gang injunction. The check-off boxes are
not evidence based and do not provide a sufficient guarantee
of reliability.
The fact finder needs to know that the petitioner is not an
active member of a criminal street gang, or, if he or she was
previously a member, how, when and why the person terminated
his or her membership. Simply put, the injunction should
remain in place against a gang as long as the gang remains a
menace to the community. The scope of the interview conducted
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by the Los Angeles City Attorney's Office, and the
documentation required by that office in support of the
petition, constitute a good example of a thorough and workable
process.
If the petition is granted, nothing in this bill addresses the
possible reinstatement of the injunction, as to that
petitioner, where the person's continued gang activity becomes
known to law enforcement officials subsequent to the granting
of the petition. This bill should be clear that a successful
petition does not forever exempt the petitioner from being
served with the same gang injunction due to newly discovered
evidence of gang activity.
8)This Bill Requires the Petitioner to Certify His or Her
Statements under Penalty Of Perjury, a Violation of Which Is a
Felony : If a petitioner certifies under penalty of perjury as
to a statement he knows or should have known is false, he or
she may be found guilty of a felony punishable by imprisonment
in the state prison for two, three, or four years. (Penal
Code Section 126.) Do the check-off boxes required by this
bill as amended provide an easy avenue for the commission of
perjury? Without the necessity of providing detailed
information, is it more likely that false information will be
supplied? Does this bill create the opportunity for numerous
additional felony perjury prosecutions? Should the printed
petition form called for by this bill contain language that
informs the petitioner that perjury is a felony punishable by
imprisonment in the state prison? Would this bill as amended
have passed the ROCA (Receiver/Overcrowding Crisis
Aggravation) review conducted on all bills before the Senate
Public Safety Committee?
9)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,
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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, US DOJ Product No.
2009-M0335-001, < http://www.usdoj.gov/criminal/usgangs.html >.)
10)Constitutionality of STEP and Gang Nuisance Injunctions :
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.' "
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11)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
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
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killed, on average, a person a day."
( 12)Should Persons Enjoined from Criminal Street Gang Activity As
A Nuisance Be Provided A Simplified Process for Filing a
Petition with the Court for Termination of Enforcement of the
Injunction ? 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 such a person to fill out a
simple, pre-printed Petition requiring only the insertion of
the petitioner's name and signature and the checking of
various boxes? Should the petitioner also be required to
submit evidence of non-affiliation with gangs that is
sufficiently evidence based to provide a sufficient guarantee
of reliability and credibility? Should the petitioner be
required to submit to a personal interview and follow-up
investigation to document that he or she is no longer a member
of a criminal street gang? Is 60 days a sufficient amount of
time for the prosecuting agency to file a complete,
well-documented response to the petition?
13)Most Civil Injunctions Remain In Place Until the Nuisance Is
Abated : 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 enforcement of the
injunction as to individuals who are able to fill out a simple
form which provides no documented evidence that granting the
petition is the appropriate judicial action? 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 people in criminal street gangs who merely assert that
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they meet this bill's criteria for relief?
There is no evidence that terminating the enforcement of an
injunction on the basis of an unsubstantiated Petition 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.)
14)Arguments in Support :
a) According to the California Public Defenders
Association , "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.
[G]ang injunctions are over broad, often times including
individuals who are no longer active, loosely affiliated
and/or have renounced the gang altogether.
"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."
b) According to the California Attorneys for Criminal
Justice , "Gang injunctions are a civil court order that is
intended to prohibit a gang and its members from conducting
certain specified activities within a defined geographic
area. While gang injunctions are generally viewed as a
positive, effective ways to deter gang violence and
membership, the reality is that gang injunctions enjoin
entire communities that are mostly low income and of color,
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rather than individuals. [SB] 282 would stop this broad
brush approach."
c) 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."
15)Arguments in Opposition :
a) According to the City Attorney of Los Angeles , they are
in "continued opposition to SB 282 despite the author's
recent amendments printed on June 24, 2009. Two years ago,
the experienced prosecutors in the Los Angeles City
Attorney's Gang Division implemented a first-of-its-kind
Gang Injunction Removal Process. The experience gained
from operating this program informs us that the two
proposed amendments are overbroad and unclear.
"We believe that these amendments are unworkable and will
prove to be unnecessarily burdensome and costly to both
courts and law enforcement. Further, both amendments
appear to be inconsistent with the purposes and intent of
the California STEP Act."
The Office of the City Attorney also noted that the opt-out
provisions of this bill are not evidence based. He
compared the provisions of this bill to evidence based
opt-out and exemption clauses used by prosecutors' offices,
which require the petitioner to make a sufficient
evidentiary showing to obtain the relief sought. Since the
check-off boxes of this bill are not evidence based they
are an insufficient guarantee of reliability.
The City Attorney notes that the above letter constitutes
additional comments to those contained in his April 15,
2009, letter in opposition.
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b) According to the California District Attorneys
Association , "We remain opposed to SB 282, as amended on
June 24, 2009, which would codify a procedure to terminate
application of a gang injunction to an individual under
certain circumstances.
"[G]ang injunctions require significant police and prosecutor
resources to develop the evidence necessary to support the
grant of the injunction. Evidence establishing 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 the evidence' standard
required for all other injunctions. Gang injunctions have
often been the subject of significant and lengthy
litigation prior to their granting.
"While we appreciate the fact that you have removed the
automatic five-year washout that was formerly part of your
bill, we must remain opposed. This bill is unnecessary as
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. Furthermore, there is nothing in existing law
that precludes an individual who is subject to a gang
injunction from petitioning for removal from the
injunction.
"The bill as amended [allows]a person who had not violated
the injunction or been convicted of a new felony or
misdemeanor, to petition for removal after five years even
if he or she was still an active gang member and had a
felony charge pending. All the person would have to do is
prove by a preponderance of the evidence (a lesser standard
than clear and convincing evidence, which is the standard
required for the enactment of the injunction, that he or
she had not been convicted of a crime or per se violated
the injunction within the last five years and the judge is
required, upon such proof, to terminate the injunction as
to that individual.
"Further, it is important to note that this bill could flood
courtrooms all over the state with petitions for
termination . . . . Courts and prosecutor offices could be
overwhelmed with the check box petitions, and it is
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foreseeable that some [petitions] might succeed simply
because the 60 day window for response will have run. This
is unacceptable given the amount of time and resources that
goes into the creation of the typical gang injunction and
the activities they seek to curtail."
c) According to the City Attorney for the City and County
of San Francisco , continues to oppose this bill, as
amended, and states that that gang injunctions "are
effective because they disrupt the gang's turf, impact the
gang's ability to recruit new members, and provide an
excuse to stop hanging out with the gang. They are also
effective because they remain in effect until the public
nuisance is finally abated, and the injunction is no longer
needed. Because they do not automatically expire, the
injunctions provide much needed deterrence, giving gang
members incentive to turn away from gang life.
"[M]any injunctions, including ours, already contain an
opt-out provision, allowing individual members to petition
for their removal after a period of crime-free life.
Imposing a new, statewide procedure will inevitably create
conflicts with existing opt out provisions, cause
confusion, and undermine the effectiveness of existing
injunctions.
" Due process and fairness require that judges consider all
relevant factors to assess whether a gang member should be
released from the constraints of a gang injunction , not
just the three factors set forth in the proposed
legislation. Otherwise, anomalous undesirable results may
occur. Judges must be afforded reasonable latitude to
undertake this assessment on a case by case basis,
considering the totality of each individual's
circumstances."
d) 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 . . . The core tradition of
these gangs is that you never leave. The injunctions
issued against these gangs should therefore also be
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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?
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.
"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?
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.
Gang crime on average has fallen between 30 to 50 percent
in the communities protected by a civil gang injunction.
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Businesses thrive and families return to the local parks?
In short, the quality of life for the residents in the
community improves vastly."
e) According to the District Attorney of Fresno County , "As
a resident of Fresno, [Assemblyman Arambula] 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. Studies in each
injunction safety zone have shown a remarkable decrease in
criminal activity following the imposition of the
injunction. In surveys conducted within the 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.
"Injunctions afford the defendant gang member due process in
both civil and criminal courts. Each member of the gang
can appear in civil court to oppose the injunction on
behalf of the gang. Additionally, a member of the
defendant gang cannot be subjected to the injunction until
they have been personally served, again providing them an
opportunity to both object and request to be removed from
the injunction. Further, if a personally served member of
the defendant gang is arrested for violating a provision of
the court-ordered injunction, they are afforded the right
to litigate the matter in criminal court, and the
prosecution must prove the case of the violation beyond a
reasonable doubt."
f) According to the City of Fresno Chief of Police , "The
Central Valley has seen firsthand the effectiveness of gang
injunctions . . . . 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."
16)Related Legislation : SB 492 (Maldonado) increases 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 pending hearing by the Assembly
Appropriations Committee.
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17)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.
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 Attorneys for Criminal Justice
California Public Defenders Association
Los Angeles Youth Justice Coalition
Opposition
California District Attorneys Association
California Gang Investigators Association
City and County of San Francisco
City Attorney, City and County of San Francisco
City Attorney, City of Los Angeles
City of Torrance Police Department
County of Fresno District Attorney
County of Los Angeles Board of Supervisors
District Attorney, County of Orange
District Attorney, County of San Bernardino
District Attorney, County of Ventura
District Attorney, Los Angeles County
Police Chief, City of Fresno
Police Chief, City of Reedley
Police Chief, City of Selma\
Police Chiefs' Association of Los Angeles County
Police Chiefs' Association, Los Angeles County
Ventura County Law Enforcement Coordinating Committee
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Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744