Manuel Vasquez v. Tony Rackauckas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL VASQUEZ; MIGUEL No. 11-55795

BERNAL LARA; GABRIEL BASTIDA;

RANDY BASTIDA, D.C. No.

Plaintiffs-Appellees, 8:09-cv-01090-

VBF-RNB

v.

TONY RACKAUCKAS, Orange County

District Attorney, in his official

capacity,

Defendant-Appellant,

and

ROBERT GUSTAFSON, Chief of

Police, Orange Police Department, in

his official capacity,

Defendant.

MANUEL VASQUEZ; MIGUEL No. 11-55876

BERNAL LARA; GABRIEL BASTIDA;

RANDY BASTIDA, D.C. No.

Plaintiffs-Appellees, 8:09-cv-01090-

VBF-RNB

v.

2 VASQUEZ V. RACKACUCKAS

ROBERT GUSTAFSON, Chief of

Police, Orange Police Department, in

his official capacity,

Defendant-Appellant,

and

TONY RACKAUCKAS, Orange County

District Attorney, in his official

capacity,

Defendant.

MANUEL VASQUEZ; MIGUEL No. 11-56126

BERNAL LARA; GABRIEL BASTIDA;

RANDY BASTIDA, D.C. No.

Plaintiffs-Appellees, 8:09-cv-01090-

VBF-RNB

v.

TONY RACKAUCKAS, Orange County

District Attorney, in his official

capacity,

Defendant-Appellant,

and

ROBERT GUSTAFSON, Chief of

Police, Orange Police Department, in

his official capacity,

Defendant.

VASQUEZ V. RACKACUCKAS 3

MANUEL VASQUEZ; MIGUEL No. 11-56166

BERNAL LARA; GABRIEL BASTIDA;

RANDY BASTIDA, D.C. No.

Plaintiffs-Appellees, 8:09-cv-01090-

VBF-RNB

v.

ROBERT GUSTAFSON, Chief of OPINION

Police, Orange Police Department, in

his official capacity,

Defendant-Appellant,

and

TONY RACKAUCKAS, Orange County

District Attorney, in his official

capacity,

Defendant.

Appeal from the United States District Court

for the Central District of California

Valerie Baker Fairbank, District Judge, Presiding

Argued and Submitted

April 8, 2013—Pasadena, California

Filed November 5, 2013

Before: Marsha S. Berzon, Richard C. Tallman,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Tallman

4 VASQUEZ V. RACKACUCKAS

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s order granting declaratory and injunctive relief to

plaintiffs in two class actions which challenged a state court

default judgment and injunction obtained by the Orange

County District Attorney’s Office, on behalf of the State of

California, against the Orange Varrio Cypress Criminal Street

Gang and its individual members and associates in a state

court action to abate gang activity under California’s general

public nuisance statutes.

The panel first rejected appellees’ contention that the

district court should have dismissed the suit under Younger v.

Harris, 401 U.S. 37 (1971), the Rooker-Feldman doctrine or

under various comity and federalism doctrines.

The panel held that plaintiffs’ claim under the procedural

due process clause of the California Constitution against

defendant Rackauckas, sued in his official capacity as the

head of Orange County District Attorney’s Office, was barred

by Pennhurst State School & Hosp. v. Alderman, 465 U.S. 89

(1984). The panel therefore reversed the district court’s

judgment as to that claim.

The panel held that the scope of the state court injunction

was extraordinarily broad, interfering with a wide swath of

plaintiffs’ protected liberty interests, including: family and

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

VASQUEZ V. RACKACUCKAS 5

social relationships; educational and professional

opportunities; freedom of movement; and all manner of

participation in civic life. The panel held that in light of those

interests, some adequate process to determine gang

membership was constitutionally required. The panel held

that had defendants not voluntarily dismissed the individual

plaintiffs from the state court lawsuit before obtaining a

default judgment against the Orange Varrio Cypress Criminal

Street Gang, that process would have been provided.

Because, however, defendants engineered that dismissal,

there could not be enforcement against the individual

plaintiffs without some alternative adequate process. The

panel therefore affirmed the district court’s issuance of

declaratory and injunctive relief barring enforcement of the

state court order against the plaintiffs.

In interpreting the district court’s injunction, the panel

held that if defendants propose a procedure constitutionally

sufficient to determine which members of the plaintiff class

are members of Orange Varrio Cypress Criminal Street Gang

against whom the Order may be enforced, the district court

will consider modifying the federal injunction.

Addressing the district court’s award of attorneys’ fees in

favor of plaintiffs, the panel held that there were “no special

circumstances” that made the fee award unjust. The panel

held, however, that because defendant Rackauckas was not

subject to equitable remedies for violations of state law in this

case, it was possible that there was some difference in the

amount of the fee award that could be applied to him. The

panel left it to the district court in the first instance to

determine whether there was some portion of the fee award

for which defendant Rackauckas was not responsible.

6 VASQUEZ V. RACKACUCKAS

Concurring, Judge Tallman wrote separately to more

thoroughly describe the backdrop of the anti-gang injunction

at issue and to reiterate why the panel’s holding was confined

to the unique procedural and factual record in this case.

COUNSEL

S. Frank Harrell (argued), Norman J. Watkins, and Melissa D.

Culp, Lynberg & Watkins, Orange, California, for Defendant-

Appellant Tony Rackauckas.

Wayne W. Winthers (argued), Senior Assistant City

Attorney; and David A. De Berry, City Attorney, Orange,

California, for Defendant-Appellant Robert Gustafson.

Peter Bibring (argued) and Belinda Escobosa Helzer, ACLU

Foundation of Southern California, Santa Ana, California;

Joseph J. Ybarra, Jacob S. Kreilkamp, and Laura D.

Smolowe, Munger, Tolles & Olson, Los Angeles, California,

for Plaintiffs-Appellees.

Dennis J. Herrera, City Attorney; Alex G. Tse, Chief

Attorney, Neighborhood and Resident Safety Division; and

Jana J. Clark, Deputy City Attorney, San Francisco,

California, for Amicus Curiae City and County of San

Francisco.

Carmen A. Trutanich, City Attorney; Mary Clare Molidor,

Deputy Chief, Criminal & Special Litigation Branch; Anne

C. Tremblay, Assistant City Attorney; Kelly Huynh and

Jeanne Kim, Deputy City Attorneys, Los Angeles, California,

for Amicus Curiae Los Angeles City Attorney’s Office.

VASQUEZ V. RACKACUCKAS 7

Matthew Sloan, Matthew Donald Umhofer, and Christina

Lincoln, Los Angeles, California, for Amici Curiae Orange

County Public Defender, Los Angeles County Public

Defender, California Attorneys for Criminal Justice, and

California Public Defenders Association.

OPINION

BERZON, Circuit Judge:

Since at least 1987, California prosecutors have brought

public nuisance actions in state court to curtail the activities

of street gangs. See Matthew Mickle Werdegar, Note,

Enjoining the Constitution: The Use of Public Nuisance

Abatement Injunctions Against Urban Street Gangs, 51 Stan.

L. Rev. 409, 414 (1999). The scope of this effort has been

broad. According to amicus curiae Los Angeles City

Attorney’s Office, that City, for example, has obtained forty-

four civil injunctions against seventy-two street gangs in the

past two decades. Typically, the injunctions forbid members

of the enjoined gang from engaging in a broad swath of legal

and illegal activities, individually and with others, in certain

areas.

Our question concerns not the substance of such orders

but the procedures constitutionally required before

individuals denied the opportunity to defend against

imposition of the order against them can be subjected to it.

Although California courts have grappled for more than

twenty-five years with various substantive and procedural

issues posed by anti-gang injunctions, no court — either state

or federal — has previously addressed the particular due

process issue presented here.

8 VASQUEZ V. RACKACUCKAS

The district court approached this case with the utmost

care, first denying a preliminary injunction and then, after full

discovery, presiding over an eleven-day bench trial. In a

comprehensive opinion, the district court concluded that

(1) the constitutional issue should be decided, as no

applicable abstention doctrine justified declining to do so;

and (2) in the particular posture of this case, and given the

breadth of the state court injunction at issue, due process

requires that the plaintiff class members be afforded an

adequate opportunity to contest whether they are active gang

members before they are subjected to the injunction. We

affirm the district court in principal part.

I.

California’s Street Terrorism Enforcement and Prevention

(STEP) Act, see Cal. Penal Code §§ 186.20–.33, creates both

a private and a public cause of action to “enjoin[], abate[],

and prevent[]” a “nuisance” created by a “building or place

used by members of a criminal street gang for the purpose of

the commission” of various criminal offenses, see id.

§ 186.22a(a). The California Supreme Court has held that the

STEP Act’s nuisance provision is not the exclusive

“remed[y] . . . to abate criminal gang activities,” and that the

“general public nuisance statutes,” namely California Code of

Civil Procedure § 731 and California Civil Code

§§ 3479–3480, provide independent authority for actions to

enjoin a gang and its members from engaging in nuisance

activity. See People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090,

1119 (1997).

This appeal has its origins in an action to abate gang

activity under California’s general public nuisance statutes.

Our analysis depends in significant part on the procedural

VASQUEZ V. RACKACUCKAS 9

history of the state case. We therefore describe the parties’

litigation decisions and the relevant state and federal orders

in some detail.

In February 2009, the Orange County District Attorney’s

Office (OCDA), on behalf of the State of California, filed a

public nuisance action in Orange County Superior Court

against the Orange Varrio Cypress Criminal Street Gang

(OVC) and 115 named individuals. The named individuals

were alleged to be “members, agents, servants, employees,”

or “persons acting under, in concert with, for the benefit of,

at the direction of, or in association with” OVC. Of the 115

individual defendants, thirty-two were minors. OCDA

further alleged that OVC’s “criminal and nuisance activities”

included: “attempt[ed] murders, shootings, robberies,

assaults, burglaries, felony gang graffiti and the illegal sale of

controlled substances”; the use of private residential yards

and commercial property as “escape routes” from law

enforcement; and “vandalism, loitering, [and] drinking

alcohol in public.” OCDA sought a permanent injunction

restraining OVC and its members from engaging in a broad

range of specified activities, lawful and unlawful, joint and

individual, performed within a 3.78 square-mile area of the

City of Orange. We discuss the scope of the requested relief

— which, as we explain, the state court granted in principal

part — in greater detail below.

Concurrently with its complaint, OCDA filed an

application for a preliminary injunction against all

defendants. In support, OCDA filed various exhibits, many

under seal.1 The Superior Court also granted OCDA’s ex

1

The Superior Court granted orders prohibiting disclosure of sealed

documents to unrepresented defendants.

10 VASQUEZ V. RACKACUCKAS

parte application to serve the complaint on OVC, which had

no known address, via a named defendant, Patrick DeHerrera.

In addition, OCDA served “numerous individuals named in

the state court complaint, including” the current Plaintiffs-

Appellees, with the complaint and the unsealed documents in

support of the preliminary injunction.

Thirty-two individual defendants filed answers or general

denials in the state court action or otherwise formally

appeared. Some juvenile defendants and their parents also

attempted to file pleadings or enter appearances but were not

permitted to do so. The court declined to designate the

defendants’ parents as guardians ad litem; without an

appointed guardian, the juvenile defendants could not appear.

See Cal. Civ. Proc. Code § 372(a).

The Superior Court granted a preliminary injunction

against OVC and the adult individual defendants who had not

appeared. Soon thereafter, the court issued a preliminary

injunction against eighteen adult defendants unrepresented by

counsel, including Plaintiffs-Appellees Manuel Vasquez and

Gabriel Bastida. The court denied OCDA’s motion for a

preliminary injunction as to some adult defendants, and

continued until May 7, 2009 the hearing as to certain other

adult defendants and all juvenile defendants. The court also

set a trial date of July 6, 2009.

In advance of the May 7 hearing, some of the adult

defendants represented by counsel — including Plaintiff-

Appellee Miguel Lara — filed motions opposing the entry of

a preliminary injunction against them as individuals. In

support, they filed their own declarations; declarations of

community members disputing the need for an injunction;

and declarations of experts who averred that the OCDA’s

VASQUEZ V. RACKACUCKAS 11

evidence, including the Orange Police Department (“OPD”)

declarations, was insufficient to establish that the named

defendants were “active members” of OVC. Through

counsel, those defendants also propounded written discovery

requests on OCDA; the parties established a schedule for

twenty depositions during May and June 2009.

At the May 7 hearing, the state court denied OCDA’s

preliminary injunction motion as to all unrepresented juvenile

defendants on the ground that any injunction would be

immediately voidable by those defendants. The court also

denied a preliminary injunction as to some adult and juvenile

defendants represented by counsel, including Plaintiff-

Appellee Randy Bastida, on the ground that there was

insufficient evidence of those individuals’ “active”

participation in the gang. Among the other defendants as to

whom the court denied a preliminary injunction for lack of

sufficient evidence was Patrick DeHerrera, the person on

whom OCDA chose to serve the complaint on behalf of OVC

as an entity. The court granted a preliminary injunction as to

other defendants, including Plaintiff-Appellee Miguel Lara.

As of May 7, OCDA had failed to obtain a preliminary

injunction against at least twenty of the defendants originally

named in the complaint.

Shortly thereafter, OCDA filed a request to dismiss from

the case, without prejudice, sixty-two individual defendants,

including the thirty-two adults and juveniles who had filed a

general denial or an answer and all unrepresented juvenile

defendants. OCDA did so because of the “aggressive effort

on the[] part” of those individuals to defend themselves in

court, and because of the concerns that the state court judge

raised regarding entering a judgment against unrepresented

juveniles. The court granted OCDA’s dismissal request.

12 VASQUEZ V. RACKACUCKAS

OCDA then requested and obtained a default judgment,

including a permanent injunction (the “Order”), against OVC

as an entity, including OVC’s “members, participants, agents,

associates, servants, employees, aiders, and abettors whose

membership, participation, agency, association, service,

employment, aid, or abetment is more than nominal, passive,

inactive, or purely technical, and all persons acting under, in

concert with, for the benefit of, at the direction of, or in

association with” OVC. The Order names as parties all

individual defendants who had not been voluntarily dismissed

by OCDA and as to whom the Superior Court had granted a

preliminary injunction.2 We attach a copy of the Order as

Exhibit A.

The Order forbids the enjoined parties from engaging in

a variety of activities in “any public place, any place

accessible to the public, or in public view” within a 3.78

square mile area — the “Safety Zone” — comprising about

sixteen percent of the City of Orange.3 The prohibited

activities include both unlawful and otherwise lawful

conduct, such as:

• “stand[ing], sit[ting], walk[ing], driv[ing], bicycl[ing],”

or “gather[ing] or appear[ing]” with any other enjoined

parties, including family members;

2

Among the defaulting defendants was Plaintiff-Appellee Gabriel

Bastida, who later had the default judgment against him vacated, filed a

general denial, and, as with the others who defended themselves in state

court, was subsequently voluntarily dismissed by OCDA.

3

Except as noted below, see nn. 4–5, the Order included the same relief

OCDA had originally requested.

VASQUEZ V. RACKACUCKAS 13

• “confront[ing], intimidat[ing], annoy[ing], harass[ing],

threat[ening], challeng[ing], provok[ing], assault[ing], or

batter[ing]” anyone, or “remain[ing] in the presence of or

assist[ing] anyone” the enjoined party knows to be

performing such conduct;

• unlawfully using “any drug,” or “remain[ing] in the

presence of or assist[ing] anyone [the enjoined party] know[s]

is unlawfully under the influence of any drug”;

• “possess[ing],” “transport[ing],” or “sell[ing]” guns or

various other weapons, or “remain[ing] in the presence” of

such weapons;

• “us[ing], display[ing], or communicat[ing] by means of

any words, phrases, physical gestures, hand signs, or symbols

that [the enjoined party] know[s] describe, represent, or refer

to the [OVC], or . . . remain[ing] in the presence of or

assist[ing] anyone [the enjoined party] know[s]” is

performing such conduct;

• “wear[ing], display[ing], exhibit[ing], or possess[ing]

any clothes or accessories that [the enjoined party] know[s]

. . . refer[s] to the [OVC] gang, including clothes or

accessories that display, exhibit, or feature . . . the . . . word[]

‘Orange,’ . . . the color orange,4 or . . . remain[ing] in the

presence of . . . anyone that [the enjoined party] know[s] is

wearing” such clothing;

4

OCDA’s original request for injunctive relief included a provision also

prohibiting enjoined parties from wearing tan, beige, black, or blue, but

the Superior Court limited the prohibited color to orange.

14 VASQUEZ V. RACKACUCKAS

• drinking alcohol; possessing an open container of

alcohol; or knowingly remaining in the presence of a person

drinking or possessing such an open container, without

exception for a person eating or working in a restaurant;5

• for minors, being in a “public place, vacant lot, or

business establishment” between 10pm and 5am unless: (1)

accompanied by a parent, legal guardian, or responsible adult;

(2) on an errand at the direction of a parent or guardian; (3)

on a sidewalk in front of or adjacent to the minor’s dwelling;

(4) in, or en route to or from, a “place of lawful

entertainment, recreation, culture, or charity” during that

place’s operating hours, or in or en route to or from lawful

employment or volunteer activity; (5) en route to or from, or

engaged in, “an official school, official religious, or other

expressive activity within the scope of [one’s] rights under

the First Amendment,” where such activity is “supervised or

overseen by an adult person on behalf of” a civic

organization; (6) responding to an emergency situation; or (7)

“in a vehicle engaged in interstate travel”;

• for adults, being in a “public place, vacant lot, or

business establishment” between 10pm and 5am unless: (1)

on a sidewalk in front of or adjacent to the person’s dwelling;

(2) in, or en route to or from, a “place of lawful

entertainment, recreation, culture, or charity” during that

5

Unlike the other provisions, the prohibitions related to alcohol only

extend to such conduct “in any public place” or “any place accessible to

the public,” but not to such conduct carried out “in public view.” The

Superior Court struck the “public view” language from the OCDA’s

requested prohibitions on alcohol, concerned that such a broad provision

would prohibit a person from consuming alcohol in his own home if

adjacent to a window. The Superior Court did not so limit the reach of

any of the other provisions, including the restrictions on association.

VASQUEZ V. RACKACUCKAS 15

place’s operating hours, or in, or en route to or from, lawful

employment or volunteer activity; (3) en route to or from, or

engaged in, “an official school, official religious, or other

expressive activity within the scope of [one’s] rights under

the First Amendment”; (4) responding to an emergency

situation; or (5) “in a vehicle engaged in interstate travel.”

As noted, the Order applies not only to the named parties,

but also to OVC’s “members,” without regard to whether

such individuals were acting on behalf of OVC or, except as

specified in the Order, with other OVC members, when

engaged in proscribed activities. The Order does not provide

any procedures for the parties or the Superior Court to

determine which, if any, unnamed parties were “members” of

OVC and therefore subject to the Order’s terms. The Order

has no expiration date.

A few weeks after default entry of judgment, the OPD, at

OCDA’s instruction, began serving the Order not only on the

individual defendants against whom the injunction had

issued, but also on individuals originally named as defendants

in the state court case but voluntarily dismissed by OCDA.

By September 2009, OCDA and OPD had served at least

forty-eight individuals who had been named in the nuisance

suit against OVC but whom OCDA voluntarily dismissed.

Along with the Order, OCDA and OPD served the

following “Notice”:

YOU ARE HEREBY PUT ON NOTICE

THAT ON MAY 14, 2009, JUDGE

KAZUHARU MAKINO SIGNED AN

ORDER FOR PERMANENT INJUNCTION

16 VASQUEZ V. RACKACUCKAS

AGAINST THE ORANGE VARRIO

CYPRESS CRIMINAL STREET GANG.

ALL MEMBERS OF THE GANG ARE

SUBJECT TO THE TERMS OF THE

PERMANENT INJUNCTION.

ALL MEMBERS OF THE GANG,

WHETHER OR NOT NAMED IN THE

ORIGINAL LAWSUIT . . . AND LATER

DISMISSED FROM THE LAWSUIT . . .

ARE SUBJECT TO THE TERMS OF THE

PERMANENT GANG INJUNCTION. . . .

ALL PERSONS DESCRIBED ABOVE WILL

FACE CRIMINAL PROSECUTION

PURSUANT TO PENAL CODE SECTION

166(a)(4) FOR ANY WILLFUL VIOLATION

OF ANY PROVISION LISTED IN THE

PERMANENT GANG INJUNCTION.

The Superior Court had no role in reviewing or approving the

notice.

About four months after entry of the Order, four

individuals on whom OCDA and OPD served the Order and

Notice filed this action under 42 U.S.C. § 1983 against the

heads of OCDA and OPD — District Attorney Tony

Rackauckas and Chief of Police Robert Gustafson — in their

official capacities (collectively “Orange”). Alleging that

OCDA and OPD’s “dismiss-and-serve strategy” violated the

procedural due process clauses of the U.S. and California

constitutions, Plaintiffs sought a declaration of the

unconstitutionality of Orange’s conduct and an injunction

VASQUEZ V. RACKACUCKAS 17

barring Orange from enforcing the Order against Plaintiffs

“without first providing them with a full constitutionally[]

adequate hearing.” Plaintiffs presented no challenge to the

terms of the Order; they challenged only the adequacy of their

opportunity to contest the application of the Order to them.

The four named Plaintiffs sought to represent two classes:

(1) adults and minors “named as individual defendants” in the

state case, “who appeared . . . in the Orange County Superior

Court to defend themselves and were voluntarily dismissed

by [OCDA],” and (2) minors “named as individual

defendants” in the state case for whom no guardian ad litem

was appointed and who were voluntarily dismissed by

OCDA. The proposed class definitions excluded any

individuals who were already being prosecuted for state

criminal contempt proceedings for violating the Order.6

The district court denied Plaintiffs’ motion for a

preliminary injunction; granted Plaintiffs’ motion to certify

both classes; and denied the parties’ cross motions for

summary judgment. The district court then held an eleven-

day bench trial, hearing testimony from fourteen witnesses,

receiving more than 100 exhibits, and personally touring the

area of the City of Orange covered by the Order. The court

concluded that “Defendants deprived the Plaintiffs and those

similarly situated of their constitutionally protected liberty or

property interests without adequate procedural protections.”

The court also granted “an injunction barring Defendants

from enforcing the Order against the Plaintiffs.” The court

emphasized that it was “not instructing the state court as to

6

The record does not reflect whether, at the time Plaintiffs filed suit,

OCDA had in fact commenced contempt proceedings against anyone not

individually named in the Order.

18 VASQUEZ V. RACKACUCKAS

the nature of any hearing. . . . [T]he Court’s order [is]

directed to the Defendants, and not the state court.” (emphasis

in the original).

Orange timely appealed to this court.

II.

Before turning to the merits of the due process claim, we

address Orange’s contentions that under various comity and

federalism doctrines, the district court should have dismissed

this suit rather than deciding the issue raised and granting

equitable relief.

A.

Orange maintains, first, that the suit should have been

dismissed under the doctrine established in Younger v.

Harris, 401 U.S. 37 (1971), limiting federal courts’ authority

to enjoin ongoing state court proceedings in some instances.

“In addressing Younger abstention issues, district courts must

exercise jurisdiction except when specific legal standards are

met, and may not exercise jurisdiction when those standards

are met; there is no discretion vested in the district courts to

do otherwise.” San Jose Silicon Valley Chamber of

Commerce Political Action Comm. v. City of San Jose,

546 F.3d 1087, 1092 (9th Cir. 2008) (alteration omitted). We

review de novo a district court’s determination as to whether

Younger abstention is warranted. See Gilbertson v. Albright,

381 F.3d 965, 982 n.19 (9th Cir. 2004) (en banc).

As relevant here, “usually, federal plaintiffs who are not

also parties to pending litigation in state court may proceed

with their federal litigation” without being barred under

VASQUEZ V. RACKACUCKAS 19

Younger. Green v. City of Tucson, 255 F.3d 1086, 1099 (9th

Cir. 2001) (en banc), overruled on other grounds, Gilbertson

v. Albright, 381 F.3d 965 (9th Cir. 2005). Only under “quite

limited circumstances” may Younger “oust a district court of

jurisdiction over a case where the plaintiff is not a party to an

ongoing state proceeding.” Id. at 1100. Such circumstances

are present only when a federal plaintiff’s interests are “so

intertwined with those of the state court party that . . .

interference with the state court proceeding is inevitable.” Id.

The district court properly declined to abstain under

Younger. OCDA initially named Plaintiffs as parties in the

Superior Court action but unilaterally dismissed them.

OCDA did so precisely because of Plaintiffs’ “effort . . . to

fight” — that is, to present a defense in state court. “Younger

abstention cannot apply to one . . . who is a stranger to the

state proceeding.” Id. at 1103 (quoting Gottfried v. Med.

Planning Servs. Inc., 142 F.3d 326, 329 (6th Cir. 1998)).

Orange made Plaintiffs “stranger[s]” to the state case by

denying them an opportunity to be heard in state court on the

question whether they were gang members. Id.

Moreover, as parties dismissed from the state case,

Plaintiffs’ interests are not “intertwined” with those against

whom the Order was issued, namely, OVC and the remaining,

named defendants. Id. at 1100. The question Plaintiffs raise

in this case — the adequacy of OCDA’s and OPD’s gang-

membership determination — arose precisely because

Plaintiffs were dismissed from the state court litigation and so

could not defend against the imposition of an injunction on

them in that litigation. Those covered by name by the Order

did not attempt to present a defense and were not dismissed

from the litigation. The circumstances and interests of those

20 VASQUEZ V. RACKACUCKAS

covered by name in the Order and the Plaintiffs are therefore

entirely divergent as to the procedural issues raised here.

In addition, the relief sought in federal court would not

disturb the validity of the Order as to any of the parties

against whom it issued. Plaintiffs do not challenge the terms

of the Order. There is therefore nothing about Plaintiffs’

interests that is currently “intertwined” with those of the

named state defendants against whom the injunction issued.

B.

Orange’s next federalism-related contention is that

Plaintiffs’ action is a “de facto appeal” of the Superior Court

Order, barred by the Rooker-Feldman doctrine. See D.C.

Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v.

Fid. Trust Co., 263 U.S. 413 (1923). We review de novo the

district court’s decision that Rooker-Feldman does not bar

Plaintiffs’ action. See Bell v. City of Boise, 709 F.3d 890, 896

(9th Cir. 2013).

As this court recently reiterated, the “de facto appeals”

barred by Rooker-Feldman are those in which “a federal

plaintiff asserts as a legal wrong an allegedly erroneous

decision by a state court.” Id. at 897 (quoting Noel v. Hall,

341 F.3d 1148, 1164 (9th Cir. 2003)) (emphasis added). “In

contrast, if ‘a federal plaintiff asserts as a legal wrong an

allegedly illegal act or omission by an adverse party, Rooker-

Feldman does not bar jurisdiction.’” Id. (quoting Noel,

341 F.3d at 1164) (emphasis added). “[E]ven if a plaintiff

seeks relief from a state court judgment, such a suit is a

forbidden de facto appeal only if the plaintiff also alleges a

legal error by the state court.” Id.

VASQUEZ V. RACKACUCKAS 21

Here, Plaintiffs “assert[] as a legal wrong” only OCDA

and OPD’s allegedly unconstitutional enforcement of the

Order. See id. at 897. They present no challenge to the terms

of the Order, nor do they otherwise “allege[] a legal error” by

the Superior Court. See id. Plaintiffs’ suit is therefore “not

a forbidden de facto appeal” under Rooker-Feldman. See id.

C.

Orange also asserts that the district court should have

abstained from hearing Plaintiffs’ case under more general

principles of comity, equity, and federalism, unmoored from

any particular abstention doctrine heretofore endorsed by the

Supreme Court or our court. We review for abuse of

discretion the district court’s decision not to abstain under

doctrines other than Younger. See United States v. Hinkson,

585 F.3d 1247, 1263 n.23 (9th Cir. 2009) (en banc); Green,

255 F.3d at 1092–93 & n.10.

Orange’s argument hinges on three out-of-circuit cases

somewhat similar to this one but, in other respects,

significantly different. In each of those cases, the federal

court plaintiffs sought to enjoin prosecutors from enforcing

state-court-issued injunctions against individuals not named

in the state injunctions. In each case, the district court

abstained from issuing the requested injunction, and the court

of appeals affirmed the abstention. See Gottfried, 142 F.3d

at 330–33; McKusick v. City of Melbourne, 96 F.3d 478,

487–89 (11th Cir. 1996); Hoover v. Wagner, 47 F.3d 845,

850–52 (7th Cir. 1995).

In the case before us, the district court initially relied on

these out-of-circuit authorities in denying Plaintiffs’ request

for a preliminary injunction. At that point, Plaintiffs were

22 VASQUEZ V. RACKACUCKAS

seeking an expansive injunction that would have required

“judicial hearings[s],” with specific, prescribed procedural

protections, before OPD and OCDA could enforce the Order

against them. The district court concluded that such relief

“would result . . . in an inappropriate invocation of the equity

powers of the federal court,” because the remedy would

require the involvement of a state judicial officer.

After Plaintiffs “clarified and narrowed” the injunctive

relief sought, and after trial, the district court issued a

permanent injunction against Orange, simply barring it “from

enforcing the Order against the Plaintiffs.” In so doing, the

court emphasized that it was “not instructing the state court

as to the nature of any hearing.”

We need not address whether the district court would

have abused its discretion in denying an injunction along the

lines originally sought by Plaintiffs. Nor need we decide

whether Gottfried, McKusick, and Hoover properly state the

contours of an abstention doctrine that a district court might

follow under circumstances not present here. We do hold that

in the posture of this case, the district court did not abuse its

discretion in declining to abstain from granting declaratory

and injunctive relief after trial.

First, and most important, in the out-of-circuit cases, the

plaintiffs challenged the terms of the state injunction. Not so

here. Instead, Plaintiffs challenge only Orange’s policy of

enforcing the Order against them, given that they were

dismissed from the state case and so deprived of that

VASQUEZ V. RACKACUCKAS 23

opportunity to adjudicate their membership in OVC before

being subjected to the Order.7

Second, the Plaintiffs here have neither sued the state

judge who issued the relevant injunction, nor sought any

relief from the state court. Instead, they seek to enjoin only

the police and prosecutors whom the district court found,

after trial, to have a policy of enforcing the Order against the

same class of people dismissed from the state case. Cf.

Gottfried, 142 F.3d at 328 (injunction sought against state

judge); Hoover, 47 F.3d at 846, 851 (same).

Third, as we construe the district court’s order, see infra

Section V, the federal relief granted does not pose an undue

risk of “thrust[ing] the federal court into an unseemly,

repetitive, quasi-systematic, supervisory role over

administration of the state court injunction.” McKusick,

96 F.3d at 488. OCDA and OPD retain the broad discretion

to enforce the Order, including against Plaintiffs, provided

they provide the process guaranteed by the U.S. Constitution.

See infra Section V.8 Nor was the relief the district court

7

In Gottfried, for example, the plaintiff’s requested injunction against

enforcement of the state order was premised on her First Amendment

challenge to the terms of the order, see 142 F.3d at 328, 330–31; in

McKusick, the plaintiff argued that the state court injunction “authorize[d]

arrests without probable cause,” see 96 F.3d at 487; and in Hoover, the

plaintiff argued that the injunction was “vague and overbroad” and

“infringe[d]” on First Amendment rights, see 47 F.3d at 846.

8

E.T. v. Cantil-Sakauye, 682 F.3d 1121 (9th Cir. 2011) (per curiam),

cert. denied, 133 S. Ct. 476 (2012), on which Orange relies heavily in its

reply brief, is inapposite. In E.T., the dispositive ground for abstention

was the specter of federal supervision of state judicial proceedings. The

district court here made clear that its injunction does not run against state

judges, state courts, or state court administrators.

24 VASQUEZ V. RACKACUCKAS

granted based on “nebulous and speculative . . . fears” that the

Order would be enforced against them. Hoover, 47 F.3d at

851. As we discuss in Section IV.A, the district court’s

decision was based on particularized evidence introduced at

trial that Orange has sought to enforce the state Order against

the entirety of the Plaintiff class. See Wooley v. Maynard,

430 U.S. 705, 710 (1977) (upholding an injunction against a

state prosecution “when a genuine threat of prosecution

exist[ed]”); Steffel v. Thompson, 415 U.S. 452, 475 (1974)

(holding that “federal declaratory relief is not precluded when

no state prosecution is pending and a federal plaintiff

demonstrates a genuine threat of enforcement”).

These distinctions matter because they eliminate the

danger of an “affront to comity.” See Hoover, 47 F.3d at 851.

Issuing equitable relief against OCDA and OPD does not

create a conflict with any decision by the state court, nor does

it preemptively decide any question the state court may be

called upon to address in any pending proceeding of which

we are aware. Cf. Gilbertson, 381 F.3d at 980 n.14 (noting

that Younger abstention is inappropriate where a federal claim

is “wholly unrelated” “to the issues in [a] pending state

proceeding”).

Orange nonetheless vigorously asserts that the federal

court’s injunction leaves them “caught between conflicting

orders.” That is simply not so. Orange fundamentally

misreads the state court’s Order.

Nothing in that Order authorizes the police or district

attorney to subject Plaintiffs to that Order, much less requires

them to enforce the Order against the individual Plaintiffs in

this case without further procedural protections. Indeed, the

Order does not require that its provisions be enforced against

VASQUEZ V. RACKACUCKAS 25

anyone. And nothing in it states what procedures Orange

should use to determine which unnamed parties are covered

by the Order or against which such parties the Order should

be enforced.9

People ex rel. Totten v. Colonia Chiques, 156 Cal. App.

4th 31 (2007), does not change our understanding of the state

court Order. That case held that a trial court could enter an

injunction against a gang and its “active members,” without

any individuals being named as parties in the case. See id. at

39–43. The court reasoned that:

it is simply not practical to require [the State]

to name Colonia[] Chiques gang members

individually as defendants. There are

approximately 1,000 members, and

membership is continually changing. New

members are joining the gang, while old

members are leaving it or becoming inactive.

If the gang could not be sued, [the State]

would have to bring a new action for

injunctive relief against each new member.

The Legislature surely did not intend to

impose such an onerous burden on officials

9

The Superior Court’s comments before granting OCDA’s motion for

default judgment against OVC as an entity confirm that the Order is silent

as to procedures for enforcement. The court explained that it viewed the

issue whether OCDA might serve the Order on the now-federal-Plaintiffs

“without some sort of judicial process” as an “enforcement issue” not

before the court. When counsel for some of the current Plaintiffs

requested “that if there were some circumstance where the District

Attorney attempts to serve our clients, that they be subject to some judicial

review of that,” the court responded: “That may be, but that’s nothing I

need to decide now. Hopefully I’m not even going to hear that.”

26 VASQUEZ V. RACKACUCKAS

who are trying to mitigate California’s “state

of crisis which has been caused by violent

street gangs.”

Id. at 41 (quoting Cal. Penal Code § 186.21). Colonia

Chiques supports Orange’s position that under California law,

it was not required to name all of a gang’s active members as

parties to obtain an injunction against the gang.10 But nothing

in either Colonia Chiques or the state proceedings that

preceded this case addressed the separate question of what

process is due before a non-party individual can be subjected

to an injunction as a purported member of an enjoined gang.

We note finally that the fact that the equitable relief

sought by nonparties to a state-court proceeding bears some

relationship to that state proceeding would not be a sufficient

basis for a district court to abstain from deciding a federal

constitutional question. As we explained in Green,

The principle that § 1983 plaintiffs need not

exhaust available state judicial or

administrative remedies necessarily means . . .

that the mere availability of a state judicial

proceeding that allows the opportunity to

vindicate federal rights is insufficient to

justify abstention under Younger. . . . There is

no principled difference, with regard to the

comity principles underlying Younger,

between requiring a plaintiff to begin his or

10

Another California Court of Appeal has reached the opposite

conclusion. See People ex rel. Reisig v. Broderick Boys, 149 Cal. App.

4th 1506, 1522 (2007). We express no view as to which California court

is correct on this point.

VASQUEZ V. RACKACUCKAS 27

her own state court or administrative

proceeding when that is possible and requiring

the plaintiff to intervene in someone else’s

state court suit when that is possible. Either

way, the requirement is inconsistent with the

longstanding principle that § 1983 plaintiffs

can ordinarily go forward in federal court if

they choose to do so, and need not bring their

cause to state court first.

Green, 255 F.3d at 1102. That rule is especially apt here, as

any comity concerns are largely of OCDA’s own making.

In short, under the circumstances of this case, the district

court did not abuse its discretion in declining to abstain from

granting relief under general principles of comity and

federalism.

D.

Orange’s final comity-related contention is that the

district court erred under a line of cases originating with

Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), by

“accepting jurisdiction” over Plaintiffs’ action, which

included a claim for a declaratory judgment. The argument

is twofold: first, that the district court was obliged under

Brillhart to state its reasons for exercising its discretion to

consider Plaintiffs’ claim for declaratory relief but did not do

so; second — and closely related — that even assuming the

district court had adequately stated its reasons, its decision to

28 VASQUEZ V. RACKACUCKAS

entertain Plaintiffs’ declaratory relief claim was an abuse of

discretion under Brillhart.11

Orange’s first contention relies on Dizol, 133 F.3d at

1225, which held that when “a party timely objects to [a

district court’s] exercise of discretionary jurisdiction under

the Declaratory Judgment Act,” and the district court fails to

“make a sufficient record of its reasoning” to “exercise . . .

jurisdiction,” “the case must be remanded to the district court

to record its reasoning in a manner sufficient to permit the

‘proper application of the abuse of discretion standard on

appellate review.’” Id. (quoting Wilton v. Seven Falls Co.,

515 U.S. 277, 289 (1995)).12

11

We reject Plaintiffs’ contention that Orange forfeited its Brillhart

argument by not raising it earlier. A Brillhart-based objection “may not

be raised for the first time on appeal.” See Gov’t Emps. Ins. Co. v. Dizol,

133 F.3d 1220, 1225 (9th Cir. 1998) (en banc). But Orange timely raised

the issue in the district court by making the argument in its Objections to

Plaintiffs’ Proposed Additional Findings of Fact and Conclusions of Law

and Proposed Judgment and proposing specific language that the district

court could include in declining to issue a declaratory judgment. The

Brillhart issue was therefore “raised sufficiently for the [district] court to

rule on it,” and so not forfeited. See Walsh v. Nev. Dep’t of Human Res.,

471 F.3d 1033, 1037 (9th Cir. 2006).

12

Countrywide Home Loans, Inc. v. Mortgage Guar. Ins. Corp.,

642 F.3d 849 (9th Cir. 2011) clarified that the language in Dizol and

related cases referring to a district court’s “exercise” or “accept[ance”] of

“discretionary jurisdiction” “in an action seeking declaratory relief” is

“imprecise.” Id. at 852 (internal quotation marks omitted). That is so

because the Declaratory Judgment Act “does not confer jurisdiction, and

therefore also does not afford the opportunity to decline it.” Id. at 853.

The relevant discretion vested in a district court is whether “to provide a

declaratory remedy pursuant to its otherwise proper subject matter

jurisdiction over a dispute.” Id. (emphasis added).

VASQUEZ V. RACKACUCKAS 29

Dizol’s bright-line remand rule “does not apply to claims

that exist independent of the request for a declaration.” Scotts

Co. LLC v. Seeds, Inc., 688 F.3d 1154, 1158 (9th Cir. 2012)

(internal quotation marks and alteration omitted). “[A] claim

is independent” in this context “if it would continue to exist

if the request for a declaration simply dropped from the case.”

Id. Orange acknowledges this standard but argues that it is

not satisfied here, on the theory that Plaintiffs’ claim for

injunctive relief is predicated on an “initial declaration that

Plaintiffs have suffered a violation of their constitutional

rights.”

We disagree. Plaintiffs’ claim for injunctive relief “is

independent because it would be viable without the

declaratory claim.” See id. at 1159. Scotts, for example, held

that a claim for specific performance of a contract — which

is, essentially, an injunction13 — was “independent” of a

claim for declaratory relief “because it would be viable

without the declaratory claim.” Scotts, 688 F.3d at 1159.

Other circuits have similarly rejected the argument that a

request for an injunction is “merely ‘ancillary’” to a request

for declaratory relief. See Black Sea Inv., Ltd. v. United

Heritage Corp., 204 F.3d 647, 652 (5th Cir. 2000); Chase

Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 466

(4th Cir. 2005).

Understood in light of Countrywide, then, Orange’s first contention

is that the district court’s grant of declaratory relief, over Orange’s

objection based on the Brillhart factors, and without reasoned

consideration of that objection, requires us to vacate and remand.

13

See Ariz. Edison Co. v. S. Sierras Power Co., 17 F.2d 739, 740 (9th

Cir. 1927); 4 S. Symons, Pomeroy’s Equity Jurisprudence § 1341, at 941

(5th ed. 1941).

30 VASQUEZ V. RACKACUCKAS

Because Dizol’s discretionary rule does not apply, we

proceed to consider Orange’s second Dizol-related argument,

namely, that the district court abused its discretion in

entertaining Plaintiffs’ claim for declaratory relief in light of

the related state court proceedings. Because the declaratory

judgment claim was “related” to the “independent non-

declaratory judgment claim” — for injunctive relief — we

“evaluate[] under the Colorado River doctrine,” rather than

under Brillhart, the district court’s discretionary decision to

grant relief. See Scotts, 688 F.3d at 1158–59.

“Under Colorado River, considerations of ‘wise judicial

administration, giving regard to conservation of judicial

resources and comprehensive disposition of litigation,’ may

justify a decision by the district court to stay federal

proceedings pending the resolution of concurrent state court

proceedings involving the same matter[.]” Holder v. Holder,

305 F.3d 854, 867 (9th Cir. 2002) (citations omitted). Here,

as the district court recognized, “there is no ongoing state

proceeding” that could “provide” Plaintiffs “relief” on their

due process claim. Id. at 868. As there are no “concurrent”

“state proceedings” that “will resolve” Plaintiffs’ claims, id.

at 870, the Colorado River doctrine does not apply. See Intel

Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th

Cir. 1993). The district court therefore did not abuse its

discretion in carrying out its “virtually unflagging obligation

. . . to exercise . . . jurisdiction,” and to grant declaratory

relief, rather than staying Plaintiffs’ action under Colorado

River. See Gilbertson, 381 F.3d at 982 n.17.14

14

Because we reject Orange’s Brillhart-related argument on the

foregoing grounds, we need not address the parties’ dispute over whether

Brillhart and its progeny set limits on a district court’s discretion to grant

a declaration as to the parties’ rights under federal law where, as here, the

VASQUEZ V. RACKACUCKAS 31

III.

The final issue we must consider before addressing the

merits of Plaintiffs’ due process claim is a narrow one.

Defendant Rackauckas, sued in his official capacity as the

head of OCDA, argues that Plaintiffs’ claim against him

under the procedural due process clause of the California

Constitution is barred by Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89 (1984). We agree.

“A federal court[]” may not “grant” injunctive “relief

against state officials on the basis of state law,” when those

officials are sued in their official capacity. Pennhurst,

465 U.S. at 106; see Pena v. Gardner, 976 F.2d 469, 473 (9th

Cir. 1992) (per curiam). For purposes of § 1983 liability,

whether a California “county district attorney acts as a state”

rather than local “official” depends on the particular acts

challenged in the § 1983 suit. See Weiner v. San Diego Cnty.,

210 F.3d 1025, 1030 (9th Cir. 2000). A “California district

attorney is a state officer when deciding whether to prosecute

an individual,” and when “investigating and proceeding with

criminal prosecutions.” Id. at 1030–31; accord Goldstein v.

City of Long Beach, 715 F.3d 750, 753–62 (9th Cir. 2013).

Plaintiffs’ allegations — all of which attack OCDA’s policies

for enforcing the state Order against Plaintiffs through

criminal contempt proceedings — fall squarely within that

category of state, rather than local, official action. Weiner,

210 F.3d at 1030–31. Given the particular official conduct at

issue, Plaintiffs cannot seek injunctive relief in federal court

against Rackauckas for alleged violations of the California

Constitution. We accordingly reverse the district court’s

district court had federal question jurisdiction as opposed to diversity

jurisdiction.

32 VASQUEZ V. RACKACUCKAS

judgment against Rackauckas on Plaintiffs’ second claim for

relief. See Pennhurst, 465 U.S. at 106; Weiner, 210 F.3d at

1030–31.

Pennhurst, of course, has no bearing on Rackauckas’s

amenability to suit in federal court for alleged violations of

federal law. The district court determined that Plaintiffs were

entitled to relief under the federal Constitution before

proceeding to address their claims under the California

Constitution, and awarded the same declaratory and

injunctive relief on each independent ground. Rackauckas’s

state-law immunity argument does not impact our analysis of

Plaintiffs’ federal due process claim or the corresponding

relief granted, to which we turn.15

IV.

The district court’s grant of declaratory and injunctive

relief was based on its conclusion that “by subjecting

Plaintiffs and those similarly situated . . . to the enforcement

of the Order,” Orange “deprived Plaintiffs and those similarly

situated” of their “constitutionally protected liberty interests

without adequate procedural protections.” Reviewing the

factual findings underlying the district court’s analysis for

clear error and the district court’s legal conclusions regarding

the due process claim de novo, we affirm the district court.

See Hinkson, 585 F.3d at 1260; Ting v. AT&T, 319 F.3d 1126,

1135 (9th Cir. 2003).

“We analyze a procedural due process claim in two steps.

The first asks whether there exists a liberty or property

15

We address in Section VI infra the relevance of the Pennhurst issue

to the fee award.

VASQUEZ V. RACKACUCKAS 33

interest which has been interfered with by the State; the

second examines whether the procedures attendant upon that

deprivation were constitutionally sufficient.” United States

v. Juvenile Male, 670 F.3d 999, 1013 (9th Cir. 2012), cert.

denied, 133 S. Ct. 234 (2012) (internal quotation marks and

alteration omitted).

A.

As to the first step of the procedural due process analysis,

we agree with the district court that the Order profoundly

implicates liberty interests protected by the Due Process

Clause, including rights of free movement, association, and

speech, and that Orange’s conduct interferes with those

protected liberty interests of the Plaintiffs.

“Freedom of speech and the other freedoms encompassed

by the First Amendment always have been viewed as

fundamental components of the liberty safeguarded by the

Due Process Clause.” First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765, 780 (1978). “[T]he freedom to loiter for

innocent purposes is” also “part of the ‘liberty’ protected by

the Due Process Clause.” City of Chicago v. Morales,

527 U.S. 41, 53 (1999) (plurality opinion). The Constitution

likewise guarantees the “fundamental right of free

movement” to both adults and minors. See Nunez ex rel.

Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997)

(invalidating a juvenile curfew ordinance under strict scrutiny

review). The Order places a heavy burden on the exercise of

these protected liberty interests.16

16

Our task at the first prong of the procedural due process analysis is to

determine whether “there exists a liberty or property interest which has

been interfered with by the State,” see Juvenile Male, 670 F.3d at 1013

34 VASQUEZ V. RACKACUCKAS

As noted, the Order prohibits anyone subject to its terms

from associating with any other enjoined parties — including

family members — in “any public place, any place accessible

to the public, or in public view” in the Safety Zone. The “Do

Not Associate” prohibition extends to “stand[ing], sit[ting],

walk[ing], driv[ing], bicycl[ing],” or “gather[ing] or

appear[ing].” The Order also establishes curfews for both

minors and adults, prohibiting nighttime presence in a “public

place, vacant lot, or business establishment” unless an

enumerated exception applies. These provisions directly

interfere with an individual’s “fundamental right of free

movement,” id., and an “individual’s decision to remain in a

public place of his choice,” Morales, 527 U.S. at 54. Related

terms of the Order that bar “remain[ing] in the presence” of

other individuals engaged in various acts — such as

possessing firearms or drinking alcohol — further affect these

same liberty interests. Those terms restrict freedom of

movement and use of public places because of the actions of

others, over which one may have no control, and do so

without regard to whether the individual engaging in the

banned activities is an OVC gang member.

The Do Not Associate provision and other limitations on

association have no exception for individuals to engage in

First-Amendment protected “expressive” activity, such as

attending religious services, participating in political

demonstrations, or otherwise “associat[ing] with others in

(emphasis added), not whether the Order substantially violates the

constitutional protections accorded such interests. The Order’s terms are

thus relevant here only insofar as they implicate the constitutionally

protected liberty interests of those subject to the injunction, which feeds

into our next inquiry, see infra Section IV.B, namely what, if any,

procedural protections the Due Process Clause requires Orange provide

before subjecting individuals such as Plaintiffs to the Order’s terms.

VASQUEZ V. RACKACUCKAS 35

pursuit of [the] wide variety of political, social, economic,

educational, religious, and cultural ends” “protected by the

First Amendment.” See Roberts v. U.S. Jaycees, 468 U.S.

609, 622 (1984). The same provisions also burden the

constitutionally protected freedom of “intimate association,”

see id. at 618, by barring association with family members in

public places such as schools, churches, parks, libraries,

stores, and restaurants (and in some instances, at home), if in

“public view,” see supra n.5.

The “Do Not Use Gang Hand Signs or Symbols”

provision, in turn, restricts freedom of expression by banning

the “use[ or] display . . . by means of any words, phrases,

physical gestures, hand signs, or symbols” that an enjoined

party “know[s] describe[s], represent[s], or refer[s] to the”

OVC gang, or “remain[ing] in the presence” of individuals

using such words or gestures.17 This proscription would, for

example, ban a covered individual from referring to the OVC

gang, or listening to someone else refer to the OVC gang, in

the designated locations, while discussing this lawsuit or the

state court Order. See R.A.V. v. City of St. Paul, 505 U.S.

377, 382 (1992) (noting that “[c]ontent-based regulations are

presumptively invalid” under the First Amendment); McCoy

v. Stewart, 282 F.3d 626, 633 (9th Cir. 2002). Also possibly

affecting freedom of expression is the prohibition on wearing

orange clothing and clothing that “feature[s] . . . the . . .

word[] ‘Orange.’” Cf. Sammartano v. First Judicial Dist.

Court, in & for Cnty. of Carson City, 303 F.3d 959, 966 (9th

Cir. 2002).

17

The district court also found that “individuals use the term ‘OVC’ to

refer to the historical Cypress Street Barrio located within the Safety Zone,

and thus use of the term ‘OVC’ may not be an indication of gang

membership.”

36 VASQUEZ V. RACKACUCKAS

In sum, a host of the Order’s terms implicate

constitutionally protected liberty interests.

Aside from the terms of the Order itself, Orange’s actions

subjecting Plaintiffs to the Order also constitute further

“interfere[nce]” with liberty interests triggering scrutiny

under the Due Process Clause. See Juvenile Male, 670 F.3d

at 1013. Although the Order did not name Plaintiffs

individually, Orange subjected Plaintiffs to the Order;

notified Plaintiffs they could face “CRIMINAL

PROSECUTION” for violating the Order’s terms; and

testified in this litigation to a “policy [of] arrest[ing],

transport[ing], and book[ing] those Plaintiffs alleged to have

violated the Order and hold[ing] them pending bond or

arraignment, rather than citing and releasing them,” as well

as a “policy of seeking increased bail amounts for violations

of the Order.” OPD and OCDA’s policy gave Plaintiffs a

choice between refraining from a wide variety of otherwise

lawful, constitutionally protected activities, or going to jail,

quite possibly for some time.

Based on the evidence presented at trial, the district court

found that some Plaintiffs have in fact refrained from

exercising their rights, particularly their “right of free

movement.” See Nunez, 114 F.3d at 944. Plaintiff Vasquez,

“who has lived his entire life in the Safety Zone, has curtailed

going to parks, stores, restaurants, and the mall, for fear of

being arrested.” Vasquez “no longer goes anywhere in the

injunction area with his brother, with whom he lives and who

has also been served with the Order.” Plaintiff Lara “no

longer goes with his family,” including his “twin brother,

who also has been served with the Order,” “to their favorite

restaurants, to the local pool where Mr. Lara learned to swim,

to parks where the family previously picnicked, or to the City

VASQUEZ V. RACKACUCKAS 37

of Orange’s annual street fair.” The remaining named

Plaintiffs — the Bastida brothers — no longer “drive through

the injunction area together or visit family together, or attend

family functions that are held outdoors, for fear of violating

the Order.” “When their grandfather had a stroke and was

taken to a hospital in the Safety Zone in the middle of the

night, their mother was forced to decide whether to permit the

brothers to visit the publicly accessible hospital, an act that

would violate both the curfew and association provisions of

the Order.”

The district court similarly found that Plaintiff Lara used

to “participate[] in vigils, demonstrations, and protests within

the injunction area, but ceased doing so after being served

with the Order, for fear he would be violating its terms by

confronting and challenging government policies and

associating with individuals on the injunction list.” “Such

persons include [his] twin brother, who also has been served

with the Order.” The Bastida Plaintiffs likewise “refrained

from participating in protests . . . out of fear of violating the

Order[].”18

Because Orange’s unilateral decision to restrict Plaintiffs’

constitutionally protected liberty interests constituted an

“interfere[nce] . . . by the State,” see Juvenile Male, 670 F.3d

at 1013, we turn to an examination of whether Orange was

obligated to provide Plaintiffs with additional procedural

protections.

18

We have reviewed the record and determined that none of the district

court’s findings of fact, including these, is clearly erroneous. See

Hinkson, 585 F.3d at 1262.

38 VASQUEZ V. RACKACUCKAS

B.

Mathews v. Eldridge, 424 U.S. 319 (1976), provides the

familiar framework for the second step of our analysis,

namely “whether the procedures attendant upon [Orange’s]

deprivation” of Plaintiffs’ liberty interests “were

constitutionally sufficient.” See Juvenile Male, 670 F.3d at

1013. Mathews “directs us to examine:”

first, the private interest that will be affected

by the official action; second, the risk of an

erroneous deprivation of such interest through

the procedures used, and the probable value,

if any, of additional or substitute procedural

safeguards; and finally, the Government’s

interest, including the function involved and

the fiscal and administrative burdens that the

additional or substitute procedural

requirement would entail.

Brittain v. Hansen, 451 F.3d 982, 1000 (9th Cir. 2006)

(quoting Mathews, 424 U.S. at 334–35). In “balancing” the

Mathews factors, we are mindful that “the requirements of

due process are ‘flexible and call for such procedural

protections as the particular situation demands.’” Wilkinson

v. Austin, 545 U.S. 209, 224–25 (2005) (quoting Morrisey v.

Brewer, 408 U.S. 471, 481 (1972)).

The district court correctly determined that the Mathews

factors “weigh clearly in favor” of the conclusion that Orange

violated Plaintiffs’ procedural due process rights by failing to

provide any form of hearing before subjecting them to the

Order.

VASQUEZ V. RACKACUCKAS 39

1. It follows from our analysis of Plaintiffs’ liberty

interests in Section IV.A that Plaintiffs’ “private interest[s]”

are very strong. See Brittain, 451 F.3d at 1000. The scope of

conduct covered by the Order is wide, intruding considerably

on the daily lives of those subject to it. As the district court

found after personally touring the Safety Zone, the

geographical area covered by the Order encompasses “dense

residential areas,” “several schools,” “at least four parks,”

“the Chapman University campus and its surroundings,” “the

historic downtown Orange Area . . . which includes a vibrant

commercial district,” “government buildings and offices

(including Orange City Hall, the police station, and the public

library),” “a hospital,” and “hundreds of retail and

commercial business, and hundreds of homes and

apartments.” As the district court also correctly noted, for

“individuals who have spent much of their lives living in and

around the area,” the Order’s terms “impose[] significant

restrictions on Plaintiffs’ liberty interests.”

Moreover, that the Order is permanent — it lacks an

“expiration . . . or sunset date,”— compounds the deprivation.

“[T]he possible length of wrongful deprivation . . . is an

important factor in assessing the impact of official action on

the private interests.” See Mathews, 424 U.S. at 341.

In sum, under the first Mathews factor, Plaintiffs’

interests are truly weighty.19

19

Orange is mistaken that the interests of “the residents of Orange who

are constantly plagued by the activities of the OVC” are assessed under

the “private interests” factor. The interests of the public, for whom

OCDA advocates in its capacity as a representative of the People of

California, are instead considered under the third Mathews prong, which

addresses the “Government’s asserted interest, ‘including the function

involved’ and the burdens the Government would face in providing greater

40 VASQUEZ V. RACKACUCKAS

2. Under California law, “[f]or the purposes of a gang

abatement injunction,” “an active gang member is a person

who participates in or acts in concert with” a gang, where

“[t]he participation . . . [is] more than nominal, passive,

inactive, or purely technical.” People v. Englebrecht, 88 Cal.

App. 4th 1236, 1258, 1261 (2001); see Broderick Boys,

149 Cal. App. 4th at 1517. California courts have held that

under state law, the state has the burden of demonstrating

active gang membership by “clear and convincing evidence,”

rather than a lower “preponderance” standard, given “the

importance of the interests affected by [such an] injunction.”

Englebrecht, 88 Cal. App. 4th at 1256; see Broderick Boys,

149 Cal. App. 4th at 1517.

In applying the second Mathews factor, we address the

fact-intensive nature of assessing whether an individual is an

active gang member or participant; the adequacy of the

procedures Orange used in making that determination; the

value of additional procedural safeguards; and the sufficiency

of post-deprivation remedies. Mathews, 424 U.S. at 335.

(a) Where a factual issue “depend[s] on [the] credibility

of witnesses and assessment of conditions not subject to

measurement,” and is not “susceptible of reasonably precise

measurement by external standards,” “[t]he risk of error is

considerable when such determinations are made after

hearing only one side.” Chalkboard, Inc. v. Brandt, 902 F.2d

1375, 1381 (9th Cir. 1989). Determining whether an

process.” See Hamdi v. Rumsfeld, 542 U.S. 507, 529–30 (2004) (plurality

opinion) (quoting Mathews, 424 U.S. at 335) (declining to consider under

the first Mathews prong an “immediate threat to the national security of

the United States”); Mathews, 424 U.S. at 347 (noting that the third factor

includes “societal costs” to providing pre-deprivation hearings).

VASQUEZ V. RACKACUCKAS 41

individual is an active gang member presents a considerable

risk of error. The informal structure of gangs, the often

fleeting nature of gang membership, and the lack of objective

criteria in making the assessment all heighten the need for

careful factfinding.

Gangs are often “loose knit[ and] without structure.”

Att’y Gen.’s Youth Gang Task Force, Dept. of Justice of the

State of California, Report on Youth Gang Violence in

California 3 (1981). The STEP Act so recognizes, codifying

a definition of “criminal street gang” that includes groups

“whether formal or informal.” Cal. Penal Code § 186.22(f).20

For our part, we have recognized that many “[g]angs . . .

do not have by-laws, organizational minutes, or any other

normal means of identification.” United States v. Hankey,

203 F.3d 1160, 1169–70 (9th Cir. 2000). California courts

have also so noted. People v. Valdez, 58 Cal. App. 4th 494

20

Other states’ definitions of a “gang” for criminal and other purposes

are similar in reaching informal groups. See, e.g., Ariz. Rev. Stat. Ann.

§ 13-105 (“formal or informal”); Colo. Rev. Stat. Ann. § 18-23-101(1)

(same); Del. Code Ann. tit. 11, § 616(a)(1) (same); Fla. Stat. Ann.

§ 874.03(1) (same); Ga. Code Ann. § 16-15-3(2) (same); Idaho Code Ann.

§ 18-8502(1) (same); Iowa Code Ann. § 723A.1(2) (same); Kan. Stat.

Ann. § 21-6313(a) (same); La. Rev. Stat. Ann. § 15:1404(A) (same);

Minn. Stat. § 609.229(1) (same); Mo. Rev. Stat. § 578.421(1) (same);

Mont. Code Ann. § 45-8-402(1) (same); Nev. Stat. § 193.168(8)

(“combination of persons, organized formally or informally”); N.C. Gen.

Stat. § 14-50.16(b) (“formal or informal”); N.D. Cent. Code § 12.1-06.2-

01(3) (same); Ohio Rev. Code Ann. § 2923.41(A) (same); S.C. Code Ann.

§ 16-8-230(2) (same); S.D. Codified Laws § 22-10A-1(1) (same); Tenn.

Code Ann. § 40-35-121(a)(1) (same); Utah Code Ann. § 76-9-802 (“group

. . . operated formally or informally”); Va. Code Ann. § 18.2-46.1

(“formal or informal”); Wash. Rev. Code § 9.94A.030(12) (same); Wis.

Stat. § 939.22(9) (same).

42 VASQUEZ V. RACKACUCKAS

(1997), for example, concluded that many “gangs are not

public and open organizations or associations like the YMCA

or State Bar association, which have a clearly defined and

ascertainable membership. Rather, gangs are more secretive,

loosely defined associations of people, whose involvement

runs the gamut from ‘wannabes’ to leaders. . . . [D]etermining

whether someone is involved and the level of involvement is

not a simple matter . . . .” Id. at 506–07. Likewise, Colonia

Chiques noted that the gang there at issue had a membership

that was “continually changing,” with “[n]ew members . . .

joining the gang, [and] . . . old members . . . leaving it or

becoming inactive.” 156 Cal. App. 4th at 41.21

At trial, Plaintiffs’ two expert witnesses, James Vigil,

professor of criminology at University of California, Irvine,

and Malcolm Klein, professor of sociology at the University

of Southern California, testified to these same fluid

characteristics of gangs in general and OVC in particular.

Both reported that “most gang members” eventually leave

gangs, making it difficult to determine membership or

participation at any single time based on a past report of an

individual’s involvement in a gang. Klein also stated that

OVC, based in a particular neighborhood in the City of

21

Social science literature confirms the fluid and often fleeting nature

of gang membership. Most juveniles belong to gangs for “1 year or less.”

Chris Melde et al., Identifying Correlates of Stable Gang Membership, 28

J. Contemp. Crim. Just. 482, 483 (2012); see also James C. Holwell,

Menacing or Mimicking? Realities of Youth Gangs, 58 Juv. & Fam. Ct. J.

39, 44 (Spring 2007) (“Studies in numerous localities show that more than

half of young gang members stay in the gang for less than a year.”); see

also Report on Youth Gang Violence in California 5 (“[M]embers . . .

move in and out of the gang on the basis of their interest in gang

functions.”).

VASQUEZ V. RACKACUCKAS 43

Orange, was “one of the less cohesive gangs” which he had

encountered in more than forty years studying gangs.

Based on the trial record, including the expert evidence,

the district court determined that whether “an individual is an

active participant of a criminal street gang is” a “multi-

factored, complex[,] and fact specific” inquiry. The district

court also found that OVC membership would be

“particularly difficult to determine . . . because gang members

and nonmembers often grow up together in the same

neighborhood and have social relationships and friendships

unrelated to the gang.” Distinguishing an individual’s social

association with a gang member on a familial or friendship —

i.e. non-gang related — basis, from an association with the

gang as an organization is therefore a nuanced task. The

district court also noted, based on Professor Vigil’s

testimony, that many “individuals who have grown up in the

local neighborhood or who have family members in the gang

may be deemed members of the gang without undergoing any

kind of initiation.” It is therefore often unclear, the district

court found, at what point a “person becomes a member or

participant of a gang.” In light of the evidence before the

district court, its findings regarding the “multi-factored,

complex[,] and fact specific” nature of determining whether

someone is an OVC gang member are not clearly erroneous.

See Hinkson, 585 F.3d at 1262.

Moreover, the fact that the police observe an individual

violate one of the Order’s terms is of little probative value in

assessing whether that individual is in fact an OVC gang

member. The Order prohibits a wide variety of otherwise

legal, quotidian conduct not directly correlated with the

nuisance and criminal activities that gave rise to the Order.

Much of the behavior covered by the Order can occur outside

44 VASQUEZ V. RACKACUCKAS

the presence of any other individual even putatively covered

by the Order.

In short, given the “wide variety of information [that] may

be deemed relevant,” and the difficulty of “reasonably precise

measurement” in assessing whether someone is an active

gang member, “[t]he risk of error is considerable when such

[a] determination[ is] made” without any participation by, or

opportunity to provide evidence on behalf of, the individual

served with the Order and, according to Orange, putatively

covered by it. See Mathews, 424 U.S. at 343; Chalkboard,

902 F.2d at 1381.

(b) As to the procedures actually used to determine which

individuals would be served with the Order and considered

subject to it, the district court characterized those procedures

as follows: “Defendants undertook a unilateral, fact-intensive

determination, based on one-sided and untested evidence and

requiring judgmental questions not determined by objective

measures.” This characterization is well supported by the

record.

Testimony by Deputy District Attorney Michael

Hernandez, Assistant District Attorney John Anderson, Joel

Nigro, and Aaron Drootin, established that Orange lacked

clear standards for determining on whom to serve the Order.

As the district court found, Hernandez, Nigro, and Drootin

“repeatedly testified that they . . . had no fixed list or set

criteria to determine whether an individual was an active

participant of OVC.” Throughout trial, these witnesses noted

that there was no “equation” to determine gang membership;

no “bright line rule”; and “every situation can be different.”

Their testimony indicates that OPD used inconsistent

standards. Nigro, for instance, explained that OCDA did not

VASQUEZ V. RACKACUCKAS 45

provide OPD with an “explanation as to” the meaning of

“active participant.” He believed, based on his

“conversations with gang participants . . . [and] police

officers and detectives” that “association can be enough for

a person to be an active participant” of a gang. Detective

Drootin, in contrast, testified that merely knowing an OVC

member was insufficient to establish membership.

Orange argues on appeal that the Superior Court made

adequate findings at the preliminary injunction stage

regarding gang membership, and that the decision as to which

individuals to treat as bound by the Order was based on those

findings. The district court, as noted, concluded otherwise —

that Orange carried out a “unilateral determination.” The

district court’s determination was not “illogical, implausible,

or without support in inferences that may be drawn from the

record.” See Hinkson, 585 F.3d at 1262.

First, the state court never made any findings of gang

membership regarding juveniles who lacked a guardian ad

litem. The state court denied a preliminary injunction as to

those individuals, but Orange later served them with the

Order nonetheless.

Second, Orange served the Order on a number of plaintiff

class members as to whom the state court denied a

preliminary injunction. Although Orange maintains that it

had new evidence of gang membership not submitted to the

state court as to all but one of these individuals, that

representation only emphasizes that Orange’s coverage

decisions were not determined by whether there had been a

previous judicial indication as to coverage.

46 VASQUEZ V. RACKACUCKAS

Finally, and most important, for those Plaintiffs as to

whom the state court did make preliminary findings of gang

membership, those findings were exactly what they purported

to be — preliminary, not final. Such a preliminary finding

“does not amount to an adjudication of the ultimate” issue,

see Cont’l Baking Co. v. Katz, 68 Cal. 2d 512, 528 (1968),

namely whether there was “clear and convincing evidence”

as to Plaintiffs’ status as active gang members, see

Englebrecht, 88 Cal. App. 4th at 1256. There was ample

testimony before the district court that some of the evidence

of gang membership submitted to the district court was of

questionable reliability. By dismissing them from the state

court proceedings, OCDA deprived the Plaintiffs of an

opportunity to take discovery from OCDA and the OPD

officers who had submitted declarations in support of a

permanent injunction against individual Plaintiffs.

Determination of the ultimate accuracy of the state court’s

preliminary findings was therefore — through no fault of the

state court — entirely undermined by the very procedural

tactic that gave rise to this lawsuit.

(c) “[I]n certain circumstances, a state can cure what

would otherwise be an unconstitutional deprivation of ‘life,

liberty or property’ by providing adequate postdeprivation

remedies.” Zimmerman v. City of Oakland, 255 F.3d 734,

737 (9th Cir. 2001). Assuming, without deciding, that the

deprivation of liberty interests that Plaintiffs have suffered

could conceivably have been remedied by some form of post-

deprivation procedure, we conclude that Orange has provided

no such adequate process.22

22

We proceed in this fashion because the parties have not briefed

whether the “deprivations of liberty” at issue here fall into the “limited

circumstances” in which “[p]ostdeprivation procedures may provide

VASQUEZ V. RACKACUCKAS 47

Orange contends that Plaintiffs had several opportunities

to obtain relief once it provided notice of its intent to enforce

the Order against them: (1) through a “removal process”

administered by OCDA; (2) by intervening in the Superior

Court proceedings, see Colonia Chiques, 156 Cal. App. 4th

at 35–37, 42; Cal. Civ. Proc. Code § 387; (3) by moving to

modify or dissolve the Order, see Cal. Civ. Proc. Code § 533,

and appealing from any order denying such a motion, see Cal.

Civ. Proc. Code § 904.1(a)(6); Iraheta v. Superior Court,

70 Cal. App. 4th 1500, 1514 n.6 (1999), or appealing from

the grant of the Order, see id.; or (4) in criminal contempt

proceedings if arrested for violating the Order. We address

each possibility in turn.

(i) According to Orange, under OCDA’s self-designed

“removal process,” a panel of two Senior Deputy District

Attorneys from OCDA and a Probation Department

representative may review an individual’s request to be

removed from the ambit of the Order. This process is

insufficient to provide an adequate post-deprivation remedy,

for at least two reasons.

adequate due process.” See Albright v. Oliver, 510 U.S. 266, 315 n.37

(1994) (Stevens, J., dissenting); Zinermon v. Burch, 494 U.S. 113, 132

(1990) (noting that “in situations where a predeprivation hearing is unduly

burdensome in proportion to the liberty interest at stake . . .

postdeprivation remedies may satisfy due process”); Bailey v. Pataki,

708 F.3d 391, 405 (2d Cir. 2013) (quoting Zinermon, 494 U.S. at 132)

(“[W]here the State feasibly can provide a predeprivation hearing . . . it

generally must do so regardless of the adequacy of a postdeprivation . . .

remedy.”); Zimmerman, 255 F.3d at 738 (holding postdeprivation

remedies inadequate where a state officer “acted pursuant to some

established procedure,” as opposed to in “random, unpredictable, and

unauthorized ways”).

48 VASQUEZ V. RACKACUCKAS

First, the district court did not clearly err in finding that

“the precise nature of the process and the potential relief it

offers remain unclear.” As the district court found, the only

written information that exists concerning the procedure is a

single-page document served on the named defendants at the

outset of the Superior Court case.23 Orange acknowledged at

trial that the exclusion process “had never been implemented

with regard to OVC or any of the five other injunctions the

OCDA had obtained.” Moreover, there is no indication in the

record that Plaintiffs were again given notice of the removal

process when they were served with the Order. As Plaintiffs

23

The notice served at the outset of the Superior Court case read: “Any

defendant who has been named in and served with this lawsuit which

seeks an injunction or subject to an injunction resulting from this lawsuit

who believes he or she was erroneously included in the lawsuit or

injunction may petition the [OCDA]’s Office for removal from the lawsuit

or injunction. Upon notice from the defendant the [OCDA]’s office will

hold a hearing to be presided over by a panel of two Senior Deputy

District Attorneys not associated with the injunction action, and a

representative from the Probation Department. At the hearing, the

defendant may present evidence, if he or she chooses, to show that the

defendant was never, or at present is not, an active participant in the

named criminal street gang. The [OCDA] may present evidence to the

contrary if there is any. If the panel determines by a preponderance of the

evidence that the defendant was never, or at present is not, an active

participant in the named criminal street gang, the [OCDA] will petition the

assigned court to dismiss the defendant from the lawsuit or remove the

defendant from the injunction. The findings of the hearing will be kept

confidential. If a defendant is dismissed from the lawsuit or removed

from the injunction pursuant to this provision and is subsequently found

to be engaging in behavior indicative of active participation in a criminal

street gang, then that defendant may be re-served with any injunction that

results from this lawsuit and will be required to comply with all of its

terms. This provision does not prevent the defendant from petitioning the

assigned court at any time, to be dismissed from the lawsuit or removed

from any injunction obtained as a result of the lawsuit, or exercising any

other legal or equitable rights or remedies.”

VASQUEZ V. RACKACUCKAS 49

were dismissed from the Superior Court case and were not

named in the resulting Order, it is not clear that the putative

removal procedure applied to them.

Second, the removal process described suffers from

essentially the same defects as the procedures Orange used

unilaterally to determine against which nonparties to the state

court lawsuit to enforce the Order. Most critically, the burden

is on the petitioning individual to demonstrate that he or she

is not an active gang participant, even though the State

ordinarily has the burden of demonstrating active gang

participation by “clear and convincing evidence.”

Englebrecht, 88 Cal. App. 4th at 1256. No enunciated criteria

govern the determination who is or is not a gang member

even though, as discussed earlier, see supra Section

IV.B.2(a), membership is a shifting and sometimes nebulous

standard. Furthermore, there are no provisions requiring an

explanation of the basis for the conclusion that the individual

is a gang member, either before or at the hearing. So the

alleged gang member is left in a factual vacuum, to prove a

negative. Cf. Am.-Arab Anti-Discrimination Comm. v. Reno,

70 F.3d 1045, 1069 (1995) (quoting Joint Anti-Fascist

Refugee Comm. v. McGrath, 341 U.S. 123, 170 (1951)

(Frankfurter, J., concurring)) (“[F]airness can rarely be

obtained by secret, one-sided determination of facts decisive

of rights.”).

(ii) Orange relies on Colonia Chiques for the proposition

that Plaintiffs — as non-parties to the Superior Court case

once dismissed — could have moved under California Code

of Civil Procedure § 387 to intervene in that action on behalf

of OVC. See Colonia Chiques, 156 Cal. App. 4th at 35–37,

42. Intervention in the state case is an inadequate post-

deprivation remedy.

50 VASQUEZ V. RACKACUCKAS

OCDA unilaterally dismissed Plaintiffs from the state

case. The suggestion that Plaintiffs should have moved to

intervene in an action from which they had just been

dismissed has little merit. Having been dropped from the

litigation, the Plaintiffs had no obligation to come back a

second time to assert their interest in the matters at issue;

their interest was evident, but they were excluded from the

litigation precisely because of that. We stress once again, in

this connection, that the procedural due process problems

raised in this case are of Orange’s own creation. They stem

from Orange’s decision to thwart Plaintiffs’ efforts to use the

procedures available in the state court that — all parties agree

— were constitutionally sufficient.

Moreover, there is no indication that Plaintiffs could have

intervened as a matter of right. OCDA would undoubtedly

have opposed any intervention motion, as it had just

dismissed the Plaintiffs as unnecessary to the action. The

Superior Court could have denied an opposed intervention

motion. See Cal. Civ. Proc. Code § 387; City of Malibu v.

California Coastal Comm’n, 128 Cal. App. 4th 897, 902

(2005). It would have little choice but to do so with regard to

the class of unrepresented juveniles; those individuals

remained without a guardian ad litem, and the Superior Court

had already declined to appoint guardians for them. Cal. Civ.

Proc. Code § 372. As to the rest of the plaintiff class, the

contingent right to file an opposed motion to intervene,

subject to discretionary denial, is not an adequate assurance

of due process to meet constitutional standards.

(iii) A motion to modify or dissolve the Order is an

inadequate post-deprivation procedure because Plaintiffs take

no issue with the terms of the Order itself. Plaintiffs’ quarrel

is only with Orange’s decision, without any judicial or

VASQUEZ V. RACKACUCKAS 51

administrative proceeding, to subject Plaintiffs to the Order.

For the same reason, it is no answer to say that Plaintiffs

could appeal from the denial of a motion to modify or

dissolve the Order, or could appeal from the grant of the

Order. Their contention is unrelated to any action of the

Superior Court with regard to the Order.

Broderick Boys is not to the contrary. There, the court

held that “without having to admit membership in the gang,”

four men were “sufficiently aggrieved by” an anti-gang

injunction that they had standing to move to set aside the

injunction. 149 Cal. App. 4th at 1518. Broderick Boys

establishes that Plaintiffs could have challenged the terms of

the Order in state court, or, as in Broderick Boys, argued that

the Order in its entirety was void for lack of proper notice.

But nothing in Broderick Boys suggests that Plaintiffs could

have litigated in state court the question presented in their

federal action — namely, assuming the validity of the Order,

whether the Order could be enforced against them.

(iv) Finally, post-arrest criminal contempt proceedings

would not be adequate to provide “full relief” from the

deprivation of being subjected to the Order. See Mathews,

424 U.S. at 331.

In California, “[c]ontempt . . . may be punished in two

ways”: in a civil proceeding, for which the maximum penalty

is a fine and five days imprisonment, see Cal. Civ. Proc. Code

§§ 1209, 1218, or in a criminal misdemeanor proceeding, see

Cal. Penal Code §§ 166(a)(4), (10),24 for which the maximum

24

California Penal Code § 166(a)(4) criminalizes the “[w]illful

disobedience of the terms as written of any process or court order.”

Section 166(a)(10) criminalizes the “[w]illful disobedience of the terms

52 VASQUEZ V. RACKACUCKAS

penalty is six months imprisonment. See People v. Gonzalez,

12 Cal. 4th 804, 816 (1996). At trial, Orange testified to a

policy of prosecuting violations of the Order under the latter

provision, and of “arrest[ing], transport[ing,] and book[ing]

[any individual] alleged to have violated the Order and

hold[ing] them pending bond or arraignment.”

OCDA representatives also specified that OCDA has a

policy of seeking “increase[d] bail” for violations of the

Order, “to ensure that bail would be higher than it might

otherwise be for a misdemeanor offense.” A person charged

under the criminal contempt provision may spend up to thirty

days in jail between arraignment and trial under California’s

speedy trial statute. Cal. Penal Code § 1382(a)(3). Under

Orange’s policy for enforcing the Order, then, Plaintiffs can

expect to face considerable difficulties posting bail and will

likely be forced to spend up to a month in jail before

obtaining the opportunity to contest their gang membership

in a contempt proceeding.

As noted, the Order binds OVC’s “members, agents,

servants, employees,” or “persons acting under, in concert

with, for the benefit of, at the direction of, or in association

with” OVC. In that wording, the Order is not unlike many

abortion buffer zone or labor picketing injunctions. See, e.g.,

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 759 n.1

(1994) (order directed at anti-abortion organizations); In re

Berry, 68 Cal. 2d 137, 141–42 (1968) (anti-picketing

injunction). What is unique, however, is the combination of

Orange’s enforcement policy — including the avowed policy

of immediate arrest and a request for heightened bail — and

of an injunction that restrains the activities of a criminal street gang or any

of its members.”

VASQUEZ V. RACKACUCKAS 53

the breadth and nature of the Order. Again, the Order

proscribes a broad range of basic, daily activities by OVC’s

members, and it proscribes such conduct without regard to

whether the individual is engaged in that conduct in concert

with, as a member or agent of, or with the intent to further the

purposes of the gang.

In these respects, this case differs from other contexts in

which an injunction runs against an organization and its

members, and, we shall assume for present purposes,

unnamed members are accorded sufficient process through

the opportunity to defend criminal contempt accusations. The

abortion and labor cases, for example, involve injunctions

restricting a narrow range of conduct — e.g., demonstrating

in a certain location or with a certain object. Engaging in

those activities is likely to be highly correlated with whether

an individual is in fact a member of the enjoined

organization, which had engaged in similar activities. In

contrast, the Order prohibits an enormous range of quotidian

conduct that, on its face, is not indicative of an individual’s

gang membership, or any other connection to the enjoined

gang.

Moreover, the difference in the scope of the injunctions

in these various contexts is relevant because “[t]he more

important the interest” affected by state action, “and the

greater the effect of its impairment, the greater the procedural

safeguards the state must provide to satisfy due process.”

Haygood v. Younger, 769 F.2d 1350, 1355–56 (9th Cir.

1985). Further, the lack of an inherent correlation between

the enjoined activities and membership in the group covered

by the Order exacerbates the already significant risk of error

in identifying accurately the members of OVC.

54 VASQUEZ V. RACKACUCKAS

Under the particular circumstances of this case, then,

including the Order’s pervasive interference with Plaintiffs’

liberty interests and the lack of adequate pre-deprivation

procedural safeguards, post-arrest contempt proceedings are

insufficient to “cure . . . [the] unconstitutional deprivation of”

liberty, including jail time, that would occur before a criminal

contempt trial would be held. See Zimmerman, 255 F.3d at

737.

3. At the final stage of the Mathews inquiry, we consider

“the Government’s interest” “in providing (or not providing)

specific procedures,” “including the function involved and the

fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” See

Mathews, 424 U.S. at 335; Haygood, 769 F.2d at 1356. Here,

“the operative question is not whether [Orange] has a

significant interest in [combating gang violence] — no one

doubts that [they] do[] — but rather whether [they] ha[ve] a

significant interest in” failing to provide a pre-deprivation

process through which an individual can challenge Orange’s

allegations of his active gang membership. Humphries v.

Cnty. of L.A., 554 F.3d 1170, 1194 (9th Cir. 2008), rev’d on

other grounds, 131 S. Ct. 447 (2010).

As the district court noted, Orange presented no evidence

of “an administrative, fiscal or other substantial burden[] in

providing . . . pre-deprivation safeguards.” In fact, OCDA

Assistant District Attorney Anderson testified at trial that it

was “standard procedure” in the five other state court

proceedings in which OCDA previously sought anti-gang

injunctions to name each defendant individually in the initial

filing. Moreover, at the time OCDA chose to dismiss

Plaintiffs from the Superior Court proceedings, OCDA had

obtained preliminary injunctions against OVC as an entity,

VASQUEZ V. RACKACUCKAS 55

thereby satisfying any government interest in promptly

obtaining relief against OVC itself.

Additionally, the record indicates that at least two

jurisdictions in California — San Francisco and Oakland —

regularly provide some form of pre-deprivation process for

individuals in anti-gang injunction proceedings, rather than

simply seeking injunctions against the gang as an entity and

its unnamed members. We need not decide whether these

jurisdictions’ procedures are constitutionally required as a

matter of due process; we simply cite them as examples of

procedures, in addition to the procedures OCDA followed in

cases prior to this one, that cast further doubt on Orange’s

claimed administrative burden in providing pre-deprivation

protections of some kind.

There is no evidence in the record that further pre-

deprivation procedures would reduce the efficacy of the

injunction against OVC and its members. Orange’s expert

testified that he had “no opinion on whether providing a

hearing before subjecting somebody to an injunction would

make a gang injunction more or less effective.”25

In sum, the district court properly concluded that Orange

established no “administrative, fiscal or other substantial

25

Moreover, the governmental interests that have historically supported

the enforcement of injunctions against nonparties to the underlying

litigation do not exist here. See, e.g., Nat’l Spiritual Assembly of the

Bahá’ís of the U.S. of Am. Under the Hereditary Guardianship, Inc. v.

Nat’l Spiritual Assembly of the Bahá’ís of the U.S. of Am., Inc., 628 F.3d

837, 848–49 (7th Cir. 2010) (allowing enforcement of an injunction

against nonparties who “aid[] or abet[] an enjoined party in violating an

injunction” — or are “in ‘privity’ with[,]” “successors in interest to[,]” or

are “otherwise ‘legally identified’ with the enjoined party”).

56 VASQUEZ V. RACKACUCKAS

burden[] in providing” some procedure for Plaintiffs to

challenge Orange’s gang membership determination before

they were subjected to the terms of the Order. See Mathews,

424 U.S. at 335; Haygood, 769 F.2d at 1356.

4. All the Mathews factors, taken together, weigh

decisively in favor of Plaintiffs. The scope of the Order is

extraordinarily broad, interfering with a wide swath of

Plaintiffs’ protected liberty interests, including: family and

social relationships; educational and professional

opportunities; freedom of movement; and all manner of

participation in civic life. Given the fact-intensive nature of

assessing gang membership, Orange’s procedures posed an

unacceptably high risk of error. Additional procedural

safeguards would have been of considerable value. In light

of the significant private interests at stake, the proffered post-

deprivation remedies, to the extent they were even available,

were insufficient to provide Plaintiffs with full relief. Finally,

Orange has not established any governmental interest

justifying the failure to provide some measure of additional

procedural safeguards before subjecting Plaintiffs to the

Order. Given these considerations, the district court correctly

concluded that Orange violated Plaintiffs’ rights under the

Due Process Clause of the federal Constitution.

Orange raised no challenge to the district court’s entry of

an injunction other than to dispute the district court’s

application of the Mathews factors. We therefore affirm the

district court’s issuance of declaratory and injunctive relief in

Plaintiffs’ favor.26

26

OPD does not separately challenge Plaintiffs’ entitlement to an

injunction under the due process clause of the California Constitution —

which provides greater procedural due process rights for private parties

VASQUEZ V. RACKACUCKAS 57

V.

For the first time in their reply brief, Orange argues that

the district court injunction does not “describe in reasonable

detail . . . the act or acts restrained or required.” Because we

do not consider issues raised for the first time in reply briefs,

we deem this late-raised argument forfeited. See Eberle v.

City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).

We nonetheless provide some brief comments regarding

our interpretation of the relatively terse federal court

injunction, so as to guide the parties in any further

proceedings. The district court’s injunction states simply that

Orange is “barr[ed]” “from enforcing the Order against the

Plaintiffs,” without providing any further indication of what

actions, if any, Orange may take to enforce the Order while

remaining in compliance with the federal injunction.

At oral argument in this court, Plaintiffs represented that

under their interpretation of the federal injunction, Orange

remains free to take any of the following actions without

facing liability for contempt: First, Orange may enforce the

Order against any alleged members of OVC who are not

than does the federal Constitution. See Today’s Fresh Start, Inc. v. L.A.

Cnty. Office of Educ., 57 Cal. 4th 197 (2013). We therefore affirm the

district court’s grant of equitable relief against OPD on Plaintiffs’ state

law claim as well.

OPD does dispute the district court’s separate determination that OPD

conspired with OCDA to violate Plaintiffs’ constitutional rights. We need

not and do not reach this argument. The district court also concluded that

OPD was “liable individually” for violating Plaintiffs’ due process rights

under the federal and California constitutions, and OPD does not contest

that independent basis for its liability.

58 VASQUEZ V. RACKACUCKAS

members of the Plaintiff class. Second, Orange is free to

return to the Superior Court to move to add any members of

the plaintiff class as named parties to the existing Order. If

Orange is successful in convincing the Superior Court by

“clear and convincing evidence” that a Plaintiff is an active

gang member, see Englebrecht, 88 Cal. App. 4th at 1256, any

resulting state-court order would supersede the current Order,

and the federal injunction would not bar enforcement of such

a new order. Third, Orange could propose to the district court

a plan for modifying the injunction and allowing enforcement

of the Order against Plaintiffs, contingent on affording

additional pre-enforcement procedural protections, such as a

robust, neutral administrative process. The district court

could then determine whether the proposed procedure cures

the current constitutional deficiencies. See, e.g., Brown v.

Plata, 131 S. Ct. 1910, 1946 (2011) (noting that “[t]he power

of a court of equity to modify a decree of injunctive relief is

long-established, broad, and flexible”).

Orange has not disputed Plaintiffs’ reasonable

interpretation of the federal injunction. We agree with the

proffered interpretation, and with the understanding that if

Orange proposes a procedure constitutionally sufficient to

determine which members of the Plaintiff class are members

of OVC against whom the Order may be enforced, the district

court will consider modifying the injunction.27

27

If an appropriate motion is made, it may be useful for the district court

to set up a process for the parties to propose and comment on possible

alternative procedures. See, e.g., Armstrong v. Davis, 275 F.3d 849, 883

(9th Cir. 2001) (Berzon, J., concurring) (describing the district court’s

issuance of “an umbrella injunction,” followed by district court oversight

of the parties’ “directed negotiation process” aimed at “develop[ing]

specific policies and procedures” for complying with the broad

injunction).

VASQUEZ V. RACKACUCKAS 59

VI.

Throughout the extensive district court proceedings,

including litigation of a motion for a preliminary injunction,

cross-motions for summary judgment, and an eleven-day

bench trial, counsel for Plaintiffs incurred more than 5900

hours in billable hours. As prevailing parties under 42 U.S.C.

§ 1988, Plaintiffs ultimately obtained an award of $3,237,249

in attorney’s fees. On appeal, Orange challenges the fee

award in only a single respect: it asserts error in the district

court’s finding that “no special circumstances” made a fee

award “unjust.” Orange asserts as special circumstances both

its “good faith,” and its powerlessness to “issue” the Order

and to “ignore” it once “signed.” We review the district

court’s award of attorney’s fees for abuse of discretion.

Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1124 (9th

Cir. 2008).

The “special circumstances” exception to an award of

attorney’s fees to a prevailing party under 42 U.S.C. § 1988

“applies only in unusual cases.” Id. at 1126. “‘[A] court’s

discretion to deny fees under § 1988 is very narrow and . . .

fee awards should be the rule rather than the exception.’”

Barnard v. Theobald, 721 F.3d 1069, 1077 (9th Cir. 2013)

(quoting Mendez, 540 F.3d at 1126). “The defendant has the

burden of showing [that] special circumstances warrant a

denial of fees, and the defendant’s showing must be a strong

one.” Herrington v. Cnty. of Sonoma, 883 F.2d 739, 744 (9th

Cir. 1989) (internal citations omitted). To determine whether

such circumstances exist, we evaluate “whether (1) allowing

attorney’s fees would further the purposes of § 1988, and (2)

whether the balance of equities favors or disfavors the denial

of fees.” Mendez, 540 F.3d at 1126 (internal quotation marks

omitted).

60 VASQUEZ V. RACKACUCKAS

The first factor is clearly satisfied. The fee award

“further[ed] the statutory purpose of § 1988[, namely] to

enable private citizens who could otherwise not afford to

vindicate their civil rights to do so.” Herrington, 883 F.2d at

743 (internal quotation marks omitted). Given the lack of

precedents regarding the due process protections required in

circumstances such as these, there was no “strong likelihood

of success on the merits . . . at the outset of the litigation.”

See Mendez, 540 F.3d at 1126. Nor, given the fact that

Plaintiffs sought only equitable relief, was there “a strong

likelihood of a substantial judgment” from which Plaintiffs’

counsel could anticipate obtaining compensation. See id.

With regard to the “balance of equities” factor, we find no

support in our caselaw for the proposition that Orange’s

“good faith” and its powerlessness to “issue” or “ignore” the

Order qualify as special circumstances precluding the few

award.

First, a “defendant’s good faith belief that it was

following the law does not,” at least “by itself,” “qualify as a

‘special circumstance.’” See Saint John’s Organic Farm v.

Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1064

(9th Cir. 2009) (quoting Teitelbaum v. Sorenson, 648 F.2d

1248, 1250 (9th Cir. 1981) (per curiam)).

Second, Orange’s contention that it “obvious[ly] . . . had

no power to issue the [Order] itself, and [it] certainly had no

discretion to ignore the [Order] once it was signed” rests on

the same erroneous interpretation of the Order we have

already rejected. The Order did not, by its terms, require

Orange to enforce it against the Plaintiffs or anyone else,

much less require them to do so without the procedural

protections due under the federal and California

VASQUEZ V. RACKACUCKAS 61

constitutions.28 Instead, it was Orange that determined to cut

short Plaintiffs’ access to a fully adequate adjudicatory forum

by dismissing them from the state court lawsuit once they

sought actively to present a defense.

CONCLUSION

We are mindful of the great importance of controlling the

proliferation of criminal gangs and preventing illegal activity

by gang members. Anti-gang injunctions such as the one at

issue here broadly restrict the covered individuals’ legal daily

activities in a prophylactic effort to prevent illegal activities

from taking place. There is no challenge before us as to the

propriety of that effort as applied to properly covered

individuals, and we express no view whatsoever on the

substantive terms of this or any other anti-gang injunction.

But the breadth of the injunction, given its prophylactic

character, does give rise to unusually strong liberty interests

on the part of those putatively covered.

In light of those interests, some adequate process to

determine membership in the covered class is constitutionally

required. Had Orange not dismissed the Plaintiffs from the

state court lawsuit, that process would have been provided.

28

Because Defendant Rackauckas is not subject to equitable remedies

for violations of state law in this case, see supra Section III, it is possible

that there is some difference in the amount of the fee award (which

included a state-law multiplier) that can be applied to him. We leave it to

the district court in the first instance to determine whether there is in fact

some portion of the fee award for which Defendant Rackauckas is not

responsible.

62 VASQUEZ V. RACKACUCKAS

Because Orange engineered that dismissal, there cannot be

enforcement against these plaintiffs without some alternative

adequate process. That is all we decide today, nothing more.

Defendants shall bear the costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.

Exhibit A

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(1740

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302

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302

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302

VASQUEZ V. RACKACUCKAS 63

TALLMAN, Circuit Judge, concurring:

I concur in the opinion but write separately to more

thoroughly describe the backdrop of the anti-gang injunction

at issue and to reiterate why today’s holding is confined to the

unique procedural and factual record in this case.

My colleagues insist that they are “mindful of the great

importance of controlling the proliferation of criminal gangs

and preventing illegal activity by gang members.” Maj. at 61.

While I do not doubt their sincerity, they devote scant

attention in an otherwise comprehensive opinion to

explaining why the anti-gang injunction at issue was so vital

to City of Orange residents and law enforcement. I write

separately to fill that void.

The Orange Varrio Cypress street gang (OVC) is one of

the most violent gangs in the City of Orange, California, a

suburb of Los Angeles.1 There is no serious dispute that the

enterprise engages in on-going criminal activity involving

attempted murders, assaults with deadly weapons, terrorist

threats, intimidation of victims and witnesses, illegal

possession of firearms, robberies, burglaries, thefts, drug

sales, and acts of felony vandalism.

1

In providing this overview of the OVC’s activities, I draw primarily

from the February 10, 2009, expert declaration submitted by Detective J.

Nigro of the Orange Police Department in support of the anti-gang

injunction. At the time of his declaration, Detective Nigro had been a

sworn peace officer for 13 years, had served in the Orange Police

Department’s gang unit for six years, had investigated hundreds of gang-

related cases, and had interviewed over 1,000 gang participants regarding

their gangs, graffiti, tattoos, crimes, families, and gang culture.

64 VASQUEZ V. RACKACUCKAS

These criminal activities frequently spill over into the

community, hurting innocent people. OVC members have

robbed and assaulted Chapman University students, beaten up

a 13-year-old boy for whistling on his way home from school,

and led police on high-speed chases through residential areas.

Gang members have stabbed people in the head and back,

shot others in the torso and neck, attacked people with bats

and pipes, and hit, kicked, and threatened to kill female

victims. The gang distributes drugs, using its members to

both peddle and stand as lookouts to protect narcotic activity.

They also deface community property by painting gang

graffiti on buildings, sidewalks, doors, walls, and fences, and

etching it into benches, street signs, and glass windows.

Even schools are not immune to the OVC’s violence. The

local high school unwillingly plays host to dozens of fights

each year between members of the OVC and rival gangs.

Still more concerning is that the OVC draws its membership

from the pool of pupils attending the same high school, as

well as a number of middle schools, to fill its ranks.

Unsurprisingly, many local residents have voiced their

concern with the OVC to local law enforcement officers,

demanding action to restore law and order to a city whose

residents have good reason to fear the OVC’s activities.

Many of the complainants live in fear of OVC gang members,

and are cautious about using their front yards or even being

outside after dark. Still more complain about vandalism,

gang graffiti, robberies, and assaults that take place where

they live and work. Many citizens are also reluctant to

cooperate with police for understandable fear of retaliation,

which undoubtedly hinders police efforts to effectively curb

gang violence through traditional criminal prosecution.

VASQUEZ V. RACKACUCKAS 65

This is not to say that the OVC is the largest or most

dangerous gang in California, or even in Orange County. But

this case is emblematic of the legislature’s declaration 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.” Cal. Penal Code § 186.21. It also provides

much-needed context for why the Orange County District

Attorney’s Office and the Orange Police Department

(collectively, Orange) sought and obtained a tough superior

court injunction that, as my colleagues put it, “broadly

restrict[ed] the covered individuals’ legal daily activities in a

prophylactic effort to prevent illegal activities from taking

place.” Maj. at 61.

In conducting our procedural due process analysis, we

must take into account the government’s and the public’s

interest. Mathews v. Eldridge, 424 U.S. 319, 335 (1976)

(instructing us to consider “the Government’s interest,

including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail”). Orange undoubtedly

has a vital interest in protecting its community by suppressing

gang violence. But as the court observes correctly, our

inquiry under this prong in Mathews is not whether Orange

has a significant interest in combating gang violence, but

rather whether it has a significant interest in failing to provide

a pre-deprivation process to challenge Orange’s gang

membership allegations.

In my view, this inquiry cannot be severed from Orange’s

unsettling and indefensible decision to voluntarily dismiss

every individual who tried to challenge the injunction in the

state court proceeding, and then serve those same dismissed

66 VASQUEZ V. RACKACUCKAS

individuals with the injunction it obtained uncontested. By its

own admission, Orange adopted this strategy in part because

of Plaintiffs-Appellees’ “aggressive effort[s]” to “fight” the

injunction. Those efforts included several motions and

supporting declarations opposing the entry of a preliminary

injunction, written discovery requests, and a schedule of 20

depositions. In effect, the district attorney concluded it was

costing too much to litigate against well-financed defense

lawyers. Ironically, the taxpayers of Orange County now get

to pick up a multi-million dollar tab for the litigation that

ensued from the district attorney’s bad tactical decision. The

type of “aggressive effort[s]” that Orange sought to sidestep

come with the territory. If Orange can rely on our judicial

system to pursue its injunction, so too can those being

targeted by the injunction who seek to resist it.

I thus share my colleagues’ views that “the procedural

due process problems raised in this case are of Orange’s own

creation” and that “[t]hey stem from Orange’s decision to

thwart Plaintiffs’ efforts to use the procedures available in the

state court[.]” Maj. at 50. Indeed, Orange’s dismiss-and-

serve strategy is the linchpin to its procedural due process

violation because today’s opinion applies only to those

individuals whom Orange dismissed and later served.

We need not hold, and I do not read today’s opinion as

holding, that the post-deprivation procedural remedies that

Orange proffered are constitutionally inadequate as to any

other class of individuals. Orange may well have a stronger

argument under Mathews’ governmental and public interest

prong if today’s challenge came from individuals who never

appeared in the state court proceeding to contest the

injunction and who are actually gang members. But this is

not the challenge before us. And to stretch today’s holding to

VASQUEZ V. RACKACUCKAS 67

individuals who never challenged the injunction in the state

court action—whether named in the lawsuit or not—would

effectively force Orange to “bring a new action for injunctive

relief against each new member” of the OVC. See People ex

rel. Totten v. Colonia Chiques, 156 Cal. App. 4th 31, 41

(2007). Such a rule would dangerously impede law

enforcement efforts to curb unlawful gang activity where

“[gang] membership is continually changing.” See id.

Importantly, today’s holding does not reach so far.

In sum, the ideal procedural protection to avoid being

inadvertently included in a proposed injunction will often be

to seek relief from a neutral judge before the injunction is

entered. Orange’s dismiss-and-serve tactic effectively

stripped Plaintiffs-Appellees of that opportunity. That

strategic maneuver—when combined with the post-

deprivation procedural protections that Orange did

provide—is what constituted a procedural due process

violation of the United States Constitution.

With those observations, I concur in the opinion.