Daily Development for
Thursday, July 3, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONSTITUTIONAL LAW; FREE ASSOCIATION; PUBLIC AREAS: California Supreme Court holds that an injunction against certain parties loitering in certain areas subject to high crime was an appropriate remedy to "clean up" such areas and was not unconstitutional.

People Ex. Rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997).

To understand the court's visceral reaction to the facts of this case, it may be useful to quote the statement of facts with which the court opens up:

"The four square block neighborhood [Rocksprings] claimed as the turf of [the gang] is an occupied territory. Gang members, all of whom live elsewhere, congregate on lawns, on sidewalks, and in front of apartment complexes at all hours of the day and night. They display a casual contempt for the notions of law, order and decency - openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. The people who live in Rocksprings are subjected to loud talk, loud music, vulgarity, profanity, brutality, fistfights and the sound of gunfire echoing in the streets. Gang members take over sidewalks, driveways, carports, apartment parking areas, and impede traffic on the public thoroughfares to conduct their drive up drug bazaar. Murder, attempted murder, drive-by shootings, assault and battery, candalims, arson, and theft are commonplace. The community has become a staging area for gang-related violence and a dumping ground for the weapons and instrumentalities of crime once the deed is done. Area residents have had their garagres used as urinals; their homes commandeered as escape routes; their walls, fences, garage doors, sidewalks and even their vehicles turned into a sullen canvas of gang graffiti.

The people of this community are prisoners in their own homes. Violence and the threat of violence are contant. Residents remain indoors, especialy at night. They do not allow their children to play outside. Strangers wearing the wrong color clothing are at risk. Relatives and friends refuse to visit. The laundry rooms, the trash dumpsters, the residents' vehicles , and their parking spaces are used to deal and stash drugs. Verbal harassment, physical intimidation, threats of retaliation, and retaliation are the likely fate of anyone who complains of the gang's illegal activities or tells police where the drugs may be hidden."

Not exactly Happy Valley, eh? After these activities had continued for some time, the city petitioned for an injunction enjoining thirty-eight defendants from hanging out in the area at all. The injunction prevented the named parties from "Standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant . . . or with any other known [member of the target gang]" in the identified four block zone. But can the court just tell gang members to stay away, even when there is no allegation or evidence that many of the named defendants in fact have committed any of the alleged crimes or intend to do so? The court of appeals said no, but the California Supreme Court here (in a dramatically split opinion) said yes, yes, yes.

The court held that San Jose's proposed efforts to clean up an area within the city were reasonable given that the area had turned into an "urban war zone." It minimized the associational and free speech interests of the named defendants, essentially holding that their objective in grouping together was the commission of crim, and not the various associational goals for which Constitutional rights of speech and association were created. [Note that the court reached this conclusion without evidence that the defendants in fact ahd committed the crimes in question within this area.]

The court also held that the ordinance was not vague, even though many of its provisions appeared to prohibit association or conduct in connection with "known gang members" or against persons who had "complained about gang activities" without also requiring specific knowledge on the part of the defendant that the persons in question fit these categories. The court simply read the knowledge requirement into the ordinance.

On the critical question of whether the prohibition on any social intercourse is the narrowest means to accomplish the desired public goal, the court stated that the nature of gang activity required a focus on collective action by the gang members. The court emphasized that the gang members are not enjoined from social activities together outside of the protected area. Because of their freedom to gather outside of the area, the court did not view a prohibition of any associational activities inside the area as unduly harmful to the gangs. [Note that the court subtly moved away here from the question of whether barring any such activity in the area was necessary to the purpose.]

The court held that simple membership in the gang and prior presence in the neighborhood, which were the sole common threads linking all the named defendants, were sufficient to justify an injunction against each of them in order to carry out the public purpose of protecting Rockland from gang takeover.

The dissenting judges agreed that the city could enjoin non-criminal conduct as a public nuisance, but disagreed, to varying degrees, with the breadth and scope of the injunction.

Comment 1: Here is a California Supreme Court that has travelled a long, long way from the days of Roger Traynor (not to mention Rose Byrd.) But the U.S. Supreme Court has proven more protective of the Bill of Rights, particularly in the areas of association and speech. If the various rights groups involved in this case get the high Court's attention, watch for a close review.

Comment 2: Many cities have been concerned about the validity of their anti-loitering ordinances as applied against homeless people and panhandlers. They'll certainly welcome the sweeping permission granted by the California court here. But what about communities concerned about various other kinds of unpopular activity - even activity that the majority find offensive? Are we comfortable that the California court has drawn a line between permitted and unpermitted "tyranny of the majority?"

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