Throughout the United States, in both urban and rural regions, people perceive juvenile crime and gang violence as a menace to society. Although recent statistics show a relative decline in crime rates, gang crime remains the center of attention. Although youth increasingly join street organizations for social status and respect among their peers, the media allege that these gangs disrupt the quality of life of their communities. Tracey L. Meares and Dan M. Kahan (1998) argue that the high rates of crime that continue to plague inner-city communities rob residents of their security, undermine legitimate economic life, and spawn pathological cultures of violence that ruin the lives of victims and victimizers alike.
III. Operationalizing Gang Laws
Community residents, gang experts, and prosecutors have alleged that these so-called superpredators (Krisberg 2005) intimidate citizens and force them to submit to their authority so that they can sell drugs, party in public, stash weapons, and commit crimes with impunity.
Chris Swecker, assistant director of the Criminal Investigative Division of the FBI, said before the subcommittee on the Western Hemisphere of the U.S. House of Representatives Committee on Foreign Affairs that “Gangs are more violent, more organized, and more widespread than ever before. They pose one of the greatest threats to the safety and security of all Americans. The Department of Justice estimates that 30,000 gangs with 800,000 members impact 2,500 communities across the U.S.” (Swecker 2005). Swecker highlights the mainstream discourse and ideology on gang violence, which suggests a threat to communities across the United States by describing gangs as disrupting the moral fabric of U.S. society. Accordingly, advocates of gang injunction laws maintain that these civil codes provide law enforcement with more tools to fight gangs and reduce crime. On the other hand, critics and opponents of gang injunction laws maintain that they are ineffective and a waste of taxpayers’ dollars, which could be better spent on community development and crime prevention.
To date, there are no accurate figures on the number of gangs or gang members or the extent of gang crime in the United States. Sociologist Malcolm Klein, one of the leading experts in this field, estimated in the 1990s that there were between 800 and 1,000 cities with gang crime problems, with more than 9,000 gangs and 400,000 gang members (Klein 1995). In 2002, the National Youth Gang Survey found that cities with gang problems more than doubled Klein’s figures, with a total of 2,300. Figures from the 2006 survey showed the total dropping only slightly (to 2,199). It found a total of 26,500 gangs with an estimated 785,000 members in the United States; these were approximately 46 percent Latino or Latina and 34 percent African American (FBI Law Enforcement Bulletin 2009). Most data on gang members collected by law enforcement derive from self-identification, monikers, tattoo insignia, community input (gang members, community workers, neighbors, teachers, and family members), and gang members’ style of dress and demeanor—among the many characteristics that law enforcement officials use to determine gang membership.
Nevertheless, law enforcement agencies claim they lack the funding and resources to combat gang activity and to protect communities. In addition, law enforcement and politicians pump fear into the public in order to acquire resources and the permission to mount an all-out attack on gangs. The climate of fear nurtured by law enforcement officials has paved the way for the rise of gang injunctions and restraining orders on street organizations. California became the first state to develop a hard-hitting gang injunction procedure by applying public nuisance laws to enforce civil injunctions that prohibit suspected gang members from engaging in either legal or criminal activities in public spaces known as free zones or safety zones (Burdi 2007). Free zones and safety zones map out the areas in a community, usually consisting of a few square blocks, where gang members may not associate with one another.
Gang injunction laws allow prosecutors to use public nuisance doctrines prohibiting lawful and unlawful behavior at their discretion. Civil procedures do not require jury trials, defense counsel, or the burden of proving guilt beyond a reasonable doubt.
Operationalizing Gang Laws
For a gang injunction petition to be honored in civil court, the prosecutors must establish two sources who identify defendants. Prosecutors often rely upon the community residents, law enforcement intelligence, and informants to establish a person’s gang activity. Once this is accomplished, the prosecution must serve gang members with paperwork adjudicating them to the lawsuit, and once served, the injunction becomes effective. During the injunction hearings, the defendant’s preexisting gang activity is exposed, even if he or she has not been arrested or convicted of a crime. This represents a disturbing trend in criminal justice in which crimes are punished before they actually happen. Most requests for gang injunctions are granted; however, the judge has discretionary power to change the terms of the injunction. In addition, the judge may exclude named individuals from the complaint owing to poor evidence implicating an individual to gang affiliation or for failure to serve an individual with a copy of the complaint.
In an effort to expel gang members from a target area, on October 26, 1987, the Los Angeles city attorney and former mayor James Hahn became the first to use a public nuisance abatement lawsuit in People v. Playboy Gangster Crips. This injunction barred 23 individually identified gang members from breaking 6 of 23 injunction terms, which, under California law, were already illegal. Although this injunction was not completely successful, it established a legal precedent in the use of the public nuisance doctrine to combat an entire urban street organization instead of individuals (L.A. City Attorney Gang Prosecution Section 1995, 325–331).
Jeffrey Grogger, professor of urban policy at Harvard University, dispels the myth that all gang injunctions operate in the same way. He argues that prohibited activities vary somewhat, but they typically include a mix of activities already forbidden by law, such as selling drugs or committing vandalism, and otherwise legal activities, such as carrying a cell phone or associating in public view with other gang members named in the suit. Once the injunction is imposed, prosecutors can pursue violations of the injunction in either civil or criminal court. The maximum penalty for civil contempt is a $1,000 fine and five days in jail. The maximum penalty under criminal prosecution is a $1,000 fine and six months in jail. Although civil procedures result in less stringent penalties, they have the advantage that their penalties can be imposed without criminal due process (Grogger 2002).
In 1993, the most complete gang injunction issued thus far took place in the community of Rocksprings in San Jose, California, an area that gang members from Varrio Sureno Trece, Varrio Sureno Town, or Varrio Sureno Locos (VSL) claimed as their turf (Castorena 1998). Silicon Valley residents felt unsafe and threatened because gang members congregated on sidewalks and lawns, where it was alleged that VST and VSL gang members engaged in a plethora of drug sales, violent activities, loitering, and lewd conduct. The residential condition made people afraid of having their children play outside and deterred residents from having visitors because they were afraid of gang reprisal in the four-square-block neighborhood.
As a result, the city of San Jose issued a gang injunction against 38 members of the three named gangs. It enjoined and restrained these individuals from engaging in the following activities: intimidating witnesses, which meant confronting, annoying, harassing, challenging, provoking, assaulting, or battering any person known to be a witness to or victim of a crime; grouping together (driving, gathering, sitting, and standing) with other known Trece/VSL associates in public or any place accessible to the public; carrying any firearms (imitation or real) and dangerous weapons on their persons or in the public view or any space accessible to the public; fighting anywhere in public view (streets, alleys, private and public property); using gang gestures (hand signs, physical gestures, and discourses) describing or referring to any of the three gangs; wearing clothing bearing the name or letters spelling out the name of a gang; selling, possessing, or using illegal drugs or controlled substances without a prescription (prohibiting anyone from knowingly remaining in the presence of such substances as well); the public consumption of alcohol anywhere in public view or in any place accessible to the public; spray painting or applying graffiti on any public (alleys, block walls, streets) or private property (residences or cars); possessing any graffiti paraphernalia (spray cans, paint markers, etching tools, white-out pens, acrylic paint tubes, various paint cap tips, razor blades, or other known graffiti tools) unless going to or from art class; or trespassing on private property. Gang members were also required to honor a daily curfew from 10:00 p.m. to sunrise unless they were going to a legitimate meeting or entertainment activity, engaging in a business trade, profession, or occupation, or involved in an emergency situation. They were enjoined from looking out for another person to give warning that a law enforcement officer was approaching by whistling, yelling, or signaling and also violating the law in any other way (thus prohibiting violence and threats of violence, including assault and battery, murder, rape, and robbery by force or fear).
Defendants from the three gangs challenged the unconstitutional vagueness of this court order in People ex rel. Gallo v. Acuna, and an appeals court threw out 15 of the 25 original provisions. As a result, the San Jose city attorney appealed two provisions to the California Supreme Court: the terms that prohibited gang members from congregating in safe zones and one barring them from harassing or threatening inhabitants who complained about gang activities. The California Supreme Court approved the use of civil antigang injunctions by rejecting the constitutional challenge to the use of a public nuisance abatement injunction against street gangs. This decision took into consideration the interest of the community while restricting the First Amendment rights of free speech and association of gang members.
According to Justice Janice Brown, “To hold [that] the liberty of the peaceful, industrious residents of Rocksprings must be forfeited to preserve the illusion of freedom for those whose ill conduct is deleterious to the community as a whole is to ignore half the political promise of the Constitution and whole of its sense. . . . Preserving peace is the first duty of government, and it is for the protection of the community from the predations of the idle, the contentious, and the brutal that government was invented” (People ex rel. Gallo v. Acuna 1997). The People ex rel. Gallo v. Acuna, a landmark California Supreme Court decision, paved the way for municipal government across the state to use similar gang suppression tactics to curtail gang activities.
For example, in 2006, Dennis Herrera, the San Francisco city attorney, sought an injunction against the Oakdale Mob Gang because of their reputation for distributing drugs and contributing to an increasing rate of violent crime, including harming and killing rival gang members and witnesses. To protect residents, Herrera pushed for punishing any gang member who violated a curfew order of 10:00 p.m. or who congregated with other gang members within a four-block safety zone. There were also many other restrictions (Martin 2006). Similarly, in 2005, San Diego County District Attorney Terri Perez filed a court order prohibiting known gang members from grouping together with other associates, displaying gang signs, wearing gang attire, carrying weapons, selling illegal narcotics in public, or fighting in areas of downtown Vista (Klawonn 2005). The widespread use of injunction laws to combat neighborhood gang problems has now appeared in Austin, Los Angeles, Phoenix, Sacramento, San Antonio, San Diego, San Francisco, San Jose, and Stockton.
Many law practitioners believe that the relative reduction of crime in communities derives from law agencies holding an entire group of gang members accountable for the actions of individuals. From a law enforcement standpoint, gang injunction laws address status offences and nuisance activities before they become felonious. Julie Bishop, the leading project attorney on gang injunctions for the Los Angeles city attorney’s office, argues that communities benefit from gang injunction laws:
-[T]hey have an amazing, immediate deterrent effect on the entire [gang] group’s activity, not just the few who are “sued” by the City Attorney. They complement Neighborhood Recovery Efforts and address the gang problem from a group perspective. They save traditional law enforcement response for the chronic serious offenders. They have a preventive aspect in that they repeatedly warn defendants of the consequences of continuing their behavior. (Bishop 1998, 2)
As local and federal agencies attempt to ameliorate the gang problem, recent trends reveal a drop in the overall crime rate. At the core, these Draconian gang injunction laws attempt to deter individuals from committing future crimes at the expense of their constitutional rights while exacerbating police repression and extending the prison system in communities of color. As noted in the 1998 National Youth Gang Survey, approximately 80 percent of gang members are African American and Latino or Latina. Gang injunction laws disproportionately affect youth and adult gang members of color.
Victor M. Rios, sociology professor at the University of California–Santa Barbara, argues that the ever-expanding power and punitiveness of criminal justice policies and practices affect every member of poor racialized communities in multiple ways, especially urban youth of color. For example, law enforcement often applies gang injunctions to minorities because of their race, not because they have demonstrated substantial evidence of gang activity or crime. This process has increased the probability of harassment of many law-abiding people of color. Rios notes that this so-called hypercriminalization of communities of color is derived from surveillance, security, and punitive penal practices centered on controlling black and brown populations preemptively—before they have even committed a criminal act (Rios 2006).
Lawrence Rosenthal argues that the enforcement of conventional laws, accordingly, allows the police enormous freedom to undertake a variety of quite heavy-handed measures against the residents of inner-city minority communities—authority that officers who may harbor racial biases are frequently accused of misusing (Rosenthal 2002). The taking away of constitutional rights of expression and assembly, like forbidding gang members from interacting with lifelong friends, brothers, and sisters in the same family or banning street attire, does not address the systemic conditions that create gangs. Gang injunction laws exacerbate institutional racism when youths of color—blacks, Latinas, Latinos, and Southeast Asians, for example—are deemed to be suspicious and criminal even if they do not belong to a gang. This means that anyone who fits a gang member profile within the confines of a safe zone may be detained, searched, and arrested without probable cause.
Rebecca Romo and Xuan Santos
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- Bishop, Julie, Gang Injunctions: A Primer. Los Angeles, CA: City Attorney’s Office, 1998.
- Burdi, Jerome, “City Safe Zones Would Ban Gangs.” Sun Sentinel. January 27, 2007. http://articles.sun-sentinel.com/2007-01-27/news/0701270064_1_gang-members-gang-violence-gang-unit
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- People ex rel. Gallo v. Acuna, 929 P.2d 596, 623 (Cal., 1997) ( J. Mosk, dissenting) cert. denied, 117 S. Ct. 2513.
- Rios, Victor M., “The Hyper-criminalization of Black and Latino Male Youth in the Era of Mass Incarceration.” Souls 8, no. 2 (2006): 40–54.
- Rodriguez, Luis, Hearts and Hands: Creating Community in Violent Times. New York: Seven Stories Press, 2001.
- Rosenthal, Lawrence, “Gang Loitering and Race.” Journal of Criminal Law and Criminology 91, no. 1 (2002): 99–160.
- Swecker, Chris, “Statement of Chris Swecker, Assistant Director, Criminal Investigative Division, Federal Bureau of Investigation, Before the Subcommittee on the Western Hemisphere, House International Relations Committee, April 20, 2005.” http://www.fbi.gov/news/testimony/fbi-efforts-to-combat-gangs-with-ties-to-central-america-and-mexico