People Ex Rel. Gallo v. Acuna

KENNARD, J., Concurring and Dissenting.

I concur with the majority in upholding the preliminary injunction’s paragraph (k), one of the two paragraphs at issue in this case. Paragraph (k) enjoins defendants, all of whom are members of either of two gangs (Varrio Sureño Locos (VSL) and Varrio Sureño Treces or Varrio Sureño Town (VST)), from intimidating, harassing, threatening, provoking, or assaulting persons within a four-block area of San Jose known as Rocksprings. At trial, the San Jose City Attorney presented evidence that such conduct by the named defendants and/or other VSL and VST members obstructed the “free use of property” (Civ. Code, § 3479) within the Rocksprings area “so as to interfere with the comfortable enjoyment of life or property” (ibid.), and affected “at the same time an entire community or neighborhood, or any considerable number of persons” (Civ. Code, § 3480), and accordingly constituted a public nuisance (ibid.).

Because the prohibitions set forth in paragraph (k) of the preliminary injunction have the legitimate purpose of ridding the Rocksprings neighborhood of activities that interfered with the residents’ comfortable enjoyment of life or property, paragraph (k) prohibits no more conduct than is necessary to abate the nuisance at hand and therefore is constitutionally permissible. Nor is paragraph (k) unconstitutionally vague. As the majority explains (maj. opn., ante, at p. 1116), the terms of paragraph (k), read within the context of the nuisance proven by the San Jose City Attorney, provide reasonable certainty and specificity. Due process requires no more.

*1127 I do not, however, join the majority in upholding the injunction’s paragraph (a), which prohibits the named defendants from being in the company of any other VSL or VST member while “[standing, sitting, walking, driving, gathering or appearing anywhere in public view” in the four-block Rocksprings area. The evidence presented in this case falls far short of establishing that so drastic a restriction on the rights of defendants and other VSL and VST members to peacefully assemble is necessary to abate the public nuisance.

Under the First and Fourteenth Amendments of the federal Constitution, a state may not make criminal the exercise of the right of assembly simply because its exercise may offend some people. (Coates v. City of Cincinnati (1971) 402 U.S. 611, 615-616 [ 91 S.Ct. 1686, 1689 , 29 L.Ed.2d 214 ].) Otherwise, the Coates court noted, “the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension” and the law would provide “an obvious invitation to discriminatory enforcement against those whose . . . ideas, . . . lifestyle, or . . . physical appearance is resented by the majority of their fellow citizens.” (Ibid.)

As I explained in a dissenting opinion in Planned Parenthood ShastaDiablo, Inc. v. Williams (1995) 10 Cal.4th 1009, 1032 [ 43 Cal.Rptr.2d 88 , 898 P.2d 402 ], when an injunction threatens to infringe on activity protected by the First Amendment, courts “apply a more stringent test than the standard used to evaluate the constitutionality of content-neutral statutes regulating the time, place, and manner of expression.” Such an injunction must be “ ‘ “couched in the narrowest terms that will accomplish the pinpointed objective” of the injunction.’ ” (Id. at p. 1033, quoting Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 767 [ 114 S.Ct. 2516, 2526 , 129 L.Ed.2d 593 ].) Applying this test to paragraph (a), I am not convinced that its prohibition of any public contact between defendants and other members of the VSL and VST gangs within the four-block Rock-springs neighborhood is couched in the narrowest terms possible to accomplish the injunction’s goal of restoring the residents’ “comfortable enjoyment of life [and] property” (Civ. Code, § 3479).

There is no doubt that gang activity presents a serious threat to the peace and security of many a neighborhood. As I pointed out recently in People v. Gardeley (1996) 14 Cal.4th 605, 609 [ 927 P.2d 713 ], which upheld sentence enhancement provisions of the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act, the Legislature has expressly declared that “ ‘California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes *1128 against the peaceful citizens of their neighborhoods.’ ” (Quoting Pen. Code, § 186.21.) When gang activity becomes a public nuisance, prosecutorial agencies may seek injunctive relief to abate the nuisance. (Code Civ. Proc., § 731.) But when a constitutionally protected interest is at stake, such as the right of peaceful assembly in this case, the injunctive relief must be narrowly tailored so as to minimally infringe upon the protected interest.

Here, paragraph (a) does not satisfy this test, for it prohibits defendants from “gathering or appearing anywhere in public view” in the Rocksprings neighborhood with any other member of the VSL and VST gangs. Paragraph (k), by contrast, enjoins no more conduct than is necessary to eliminate the public nuisance in the Rocksprings area, and therefore is constitutionally permissible.

The Court of Appeal in this case invalidated both paragraph (k) and paragraph (a) of the injunction. For the reasons set forth above, I join the majority in reversing that part of the Court of Appeal’s judgment invalidating paragraph (k), but, unlike the majority, I would affirm that part of the Court of Appeal’s judgment invalidating paragraph (a).

CHIN, J., Concurring and Dissenting.

I am in general agreement with the majority, and in particular with its conclusion that a court may enjoin as a public nuisance acts not in themselves crimes. I disagree with the majority, however, on one narrow, but important issue. I would hold that the evidence is insufficient to enjoin two of the thirty-eight named defendants: Rafael Ruiz and Blanca Gonzalez.

The legal principle at issue is quite simple. The law requires some link between each defendant who is subject to an injunction and the problem the injunction addresses. The majority argues that in this case gang membership and a one-time presence in Rocksprings is enough to establish this link. The majority reasons the trial court could have enjoined the gangs as a whole, and therefore it could enjoin individual gang members instead. (Maj. opn., ante, at p. 1125.) I agree that, in an appropriate case, a court may enjoin individuals based on group membership. (Cf. Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 759, fn. 1 [ 114 S.Ct. 2516, 2521 , 129 L.Ed.2d 593 ] (Madsen).) But the requirement of proof is no less rigorous in such a case. “For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.” (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 920 [ 102 S.Ct. 3409, 3429 , 73 L.Ed.2d 1215 ], fn. omitted (Claiborne Hardware).) I do not believe the City of San Jose (the City) has met this standard with respect to Rafael Ruiz and Blanca Gonzalez.

*1129 The majority relies on Drivers Union v. Meadowmoor Co. (1941) 312 U.S. 287, 291 [ 61 S.Ct. 552, 554 , 85 L.Ed. 836 , 132 A.L.R. 1200 ] (Drivers Union), in which the trial court enjoined “all union conduct.” But Drivers Union did not involve the issue whether a court may enjoin individuals based on group membership. Rather, at issue was whether a court may enjoin peaceful acts of picketing when those acts are “enmeshed with contemporaneously violent conduct.” (Id. at p. 292 [ 61 S.Ct. at p. 554 ].) The United States Supreme Court upheld the injunction, but emphasized the fact-finder’s determination that the peaceful picketing “was set in a background of violence” and therefore had the character of a threat. (Id. at p. 294 [ 61 S.Ct. at p. 555 ].) The trial court in this case made no similar finding with respect to the conduct of Rafael Ruiz and Blanca Gonzalez.

The majority also relies on Madsen , in which the trial court enjoined members of Operation Rescue (and other organizations) from impeding access to an abortion clinic in Melbourne, Florida. The United States Supreme Court again upheld parts of the injunction, but reaffirmed the necessity of a link between each defendant and the problem the injunction addresses. (Madsen, supra, 512 U.S. at p. 765, fn. 3 [ 114 S.Ct. at p. 2524 ].) Significantly, the high court did not even discuss the evidentiary showing necessary for including individual members of an organization within the scope of an injunction. The parties apparently did not raise the issue, perhaps because the record amply supported including organization members within the scope of the injunction.

The parties did, however, raise the issue in Claiborne Hardware, supra, 458 U.S. 886 . Claiborne Hardware concerned a boycott of certain White merchants in Claiborne County, Mississippi. The boycott turned violent at times, and the Mississippi Supreme Court upheld an award of damages against, among others, certain members of the National Association for the Advancement of Colored People who supported the boycott. The United States Supreme Court agreed Mississippi could impose tort liability when violence or threats of violence resulted in business losses. (Id. at p. 916 [ 102 S.Ct. at p. 3427 ].) But the high court added: “[T]he presence of activity protected by the First Amendment imposes restraints ... on the persons who may be held accountable for those damages.” (Id. at pp. 916-917 [ 102 S.Ct. at p. 3427 ].) The court concluded: “Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” (Id. at p. 920 [ 102 S.Ct. at p. 3429 ].) “[M]ere association with [a] group—absent a specific intent to further an unlawful aim embraced by that group—is an insufficient predicate for liability.” (Id. at pp. 925-926 [ 102 S.Ct. at p. 3432 ].)

Drivers Union and Madsen are perfectly consistent with the standard the high court announced in Claiborne Hardware . Whether a court can enjoin *1130 individuals based on group membership depends on the nature of the group and the implications of membership under the circumstances. In the case of some groups, membership evidences a common purpose. If one purpose or activity of the group is the creation of a public nuisance, a court may enjoin both the group and its members. But the Sureño street gangs at issue in this case have fluid membership, no organizational structure, and no express purpose except perhaps to compete with members of rival Norteño gangs. The fact that many Sureño gang members commit crimes in Rocksprings does not establish that the gangs have crime as a universal purpose, primary activity, or condition of membership. The Sureño gangs might have some subdivisions that are criminally inclined and others that are not. Obviously, courts cannot enjoin all Mexican-Americans because some Mexican-Americans contribute to the nuisance in Rocksprings. Gang membership is no different, absent some evidence that contributing to the nuisance is an express or implied condition of membership.

The City’s criteria for establishing Sureño gang membership do not include the intent to further the Sureño gangs’ aims. Under these criteria, the City would consider a person to be a member of a Sureño gang if, for example, that person on two occasions wore baggy pants, blue clothes, or “Los Angeles Raiders” garments. The City also identifies persons who admit gang membership as gang members, regardless of the circumstances of their admission. As the declaration of Juan Pineda Hernandez indicates, people who are not gang members may assert membership for a variety of reasons, including youthful arrogance or a desire to be placed in protective custody. Thus, a person who merely claims membership in one of the Sureño gangs may not fully share that gang’s aims. (See Burrell, Gang Evidence: Issues for Criminal Defense (1990) 30 Santa Clara L.Rev. 739, 750 [“Law enforcement officials admit that there are many different levels of (gang) membership. [Fn. omitted.] Thus, to simply identify a person as a ‘gang member’ conveys little about that person’s true level of involvement or activity. [Fn. omitted.]”].)

Accordingly, I do not agree the trial court was free to enjoin individual Sureño gang members simply because it could have enjoined the Sureño gangs as a whole. Moreover, the majority does not convince me the record in this case would have allowed the trial court to enjoin the Sureño gangs as a whole. As the majority emphasizes, the record paints an ugly picture of life in Rocksprings. Crime and contempt for authority are so pervasive that criminals would seem to be in charge. Sadly, despite all our technology and resources, utter lawlessness is the all-too-common mark of American urban life at the close of the 20th century. A society that is committed to protecting civil rights and civil liberties is not helpless to prevent such shameful *1131 atrocities. Dire problems demand bold solutions, and circumstances like those in Rocksprings warrant highly aggressive law enforcement. Nevertheless, the City must prove its case. A court’s judgment may not stand on a visceral prejudice against street gangs or on a pervasive mood of public hysteria in the face of a law-and-order crisis; rather, that judgment must stand on evidence.

Though the majority refers to “48 declarations submitted by the City in support of its plea for injunctive relief’ (maj. opn., ante, at p. 1100), most of this evidence establishes only that some gang members commit crimes in Rocksprings, contributing to the general state of lawlessness in the neighborhood. The evidence describing the nature of the Sureño gangs, and thus establishing a possible link between the gangs themselves (as opposed to gang members) and the nuisance in Rocksprings, consists primarily of the declarations of Officer Mikael Niehoff and Sergeant Richard Saito. Those declarations describe the Sureño gangs as “criminal street gangs,” but the San Jose Police Department’s definition of “criminal street gang” states nothing about the purpose or primary activity of the gang as a whole. Under its definition, any association of persons who individually engage in crime, even a sports team, would be a criminal street gang.

Of course, numerous declarations state the crime in Rocksprings is “gang related,” but the San Jose police classify as gang related any crime a gang member commits. By that method of classification, much of the crime in Rocksprings might also be football related because the perpetrators of the crimes are football fans. The City’s standard hardly establishes a logical link between the gang and the crime, particularly in light of the City’s loose definition of gang member. Moreover, even under the City’s overinclusive standard, only 12 to 14 percent of documented crimes in Rocksprings during the year preceding the date of Sergeant Saito’s declaration had indicia of being gang related. The City argues this percentage may actually be higher because it did not keep track of whether crimes were gang related. I agree. The percentage may actually be higher. But it may not be. The City did not keep track, so it has not proved its case.

Considering the record as a whole, I agree an assertion of Sureño gang membership is an indication of unlawful purpose. But I would not conclude that a person’s assertion of gang membership and a one-time presence in Rocksprings is sufficient to establish the necessary link between that person and the nuisance in Rocksprings. Accordingly, I would uphold the injunction in the case of a person who is an actual gang member only if the record includes some corroborating evidence showing that person substantially contributed to the nuisance in Rocksprings or intends to do so in the future.

*1132 The only evidence linking Blanca Gonzalez with the nuisance in Rock-springs is that she was in Rocksprings “wearing a black top and black jeans,” which according to police was “consistent with members of Sureño criminal street gangs,” and she claimed gang membership. This evidence is not sufficient to prove (even at the preliminary injunction stage) that she “held a specific intent to further [the gangs’] illegal aims,” assuming the Sureño gangs have illegal aims. (Claiborne Hardware, supra, 458 U.S. at p. 920 [ 102 S.Ct. at p. 3429 ].) Thus, I agree with the Court of Appeal that the trial court should not have enjoined Blanca Gonzalez.

The question is closer with respect to Rafael Ruiz. Ruiz also admitted gang membership. Moreover, some evidence indicates he committed a crime in Rocksprings, but this evidence is very thin. Ruiz was in a group that loosely matched the description of a group that had reportedly been selling drugs in the Rocksprings area. While I am sympathetic to the need for aggressive law enforcement, I conclude this evidence does not link Rafael Ruiz with the nuisance in Rocksprings sufficiently to support preliminary injunctive relief. Accordingly, I would hold that the trial court should not have enjoined him.

The gangs in question here are loosely organized associations of individuals with no express common purpose or central leadership. Some people may dress as gang members or claim membership in the gangs because of peer pressure or out of fear; the people primarily responsible for the public nuisance in Rocksprings may be a small minority of gang members. I do not discount the serious threat to community values that criminal street gangs pose. Nevertheless, we cannot turn a blind eye to the necessities of proof. I believe the majority has done so in the case of Rafael Ruiz and Blanca Gonzalez.