Injunctions are a powerful legal remedy, particularly in Intellectual Property and Commercial cases, which are a focus of this blog. This topic raises the issue of how injunction rules are applied / stretched to address a particular situation.
Gang injunctions appear to be an exception to most of the traditional injunction rules, which are (supposed to be) time tested equitable principles from English Common Law. Traditional injunctions were supposed to be difficult to obtain and were to address only specifically identified issues in as narrowly tailored a means as possible to avoid irreparable harm, they require a bond by statute and by court rules, and allowed the enjoined party to move to dissolve the injunction. The reference above to “narrowly tailored” is actually borrowed from constitutional principles that apply to statutory laws that infringe on American freedoms, however, here it is also a principle that applies to injunction orders.
In cities across America, local governments are imposing “teen” curfews, and taking steps intended to protect our youth and others from danger. Many times the danger is the teens themselves, and their indefatigable perceived invincibility. We can all remember how much fun it was to be 18 years old and thinking that way, or not thinking at all, not knowing what to think about, etc. Alas, back to Gang Injunctions.
In Columbia, SC, where we live, teens 16 years and younger are not allowed in Five Points between 11 PM and 6 AM. This would be an example of a legislative solution to the issue of gang / teen violence.
The news on this issue is heated now in Oakland, CA. In contrast, in Los Angeles, there was, arguably, less controversy over Gang Injunctions.
According to streetgangs.com, the first gang related injunction, relating to Graffiti, issued in southern California in circa 1983. This site is also an excellent historical resource on this issue as it tracks (and links to) articles on gang related injunctions since 1983. It took almost 4 more years for an order to issue enjoining the gang members themselves from otherwise legal activities, such as “being out late at night, being seen in public with other gang members, or wearing gang paraphernalia.” This historic order overcame obvious Constitutional concerns, such as the right of the people to [peaceably] assemble, and others to enjoin the then “200-plus-member Playboy Gangster Crips” from what was described as “holding hostage” the community members. The ACLU opposed these initial gang injunctions and remains opposed to them today.
If the legal principle stated by Justice Oliver Wendell Holmes as, “Great cases, like hard cases, make bad law,” then the magnitude of the public nuisance to be addressed by gang injunctions may come into better focus.
Controversy over Gang Injunctions In Oakland: Samantha Macias has recently blogged on Gang Injunctions. In her piece, Samantha references the ongoing dispute in Oakland, CA, as well as the “public nuisance” basis for these injunctions that preclude certain gang members from otherwise legal conduct / behavior. Samantha reports that in Oakland, due at least in part to the historical racial issues and inherent fear of police power, that well-intentioned gang injunctions have been called modern day Jim Crow laws and legalized racial profiling.
As with most anything, much can be learned from talking to the people who live in the communities affected by injunctions, and also spending enough time in those communities to at least begin to understand the historical, political, and soci0logical context in which the issue arises.
In Los Angeles: Historically, LA residents were reported to be less objectionable to gang injunctions, at least less than Oakland, however, recently, even LA residents have protested against gang injunctions.
In Chicago: Recently, in Chicago, a gang injunction issued, but not based upon the common law public nuisance doctrine. Instead, Illinois has a statute providing for gang related in junctions, known as the 1993 Streetgang Terrorism Omnibus Prevention Act.
Santa Barbara: In Santa Barbara, there is an ongoing debate about the cost of a gang injunction there. Opponents of the gang injunction allege the costs of same from 2009 to 20012 are approximately $500,000, however, a chart in support of that amount shows mostly an allocation of fixed costs as salaries for the City Attorney, his or her staff and law enforcement.
So “What’s Your Point?“: The public nuisance doctrine will continue to be used in various contexts to address controversial subject matter, like environmental issues and domestic community terrorism.
Another potential concern related to these gang injunctions is that since the enjoined parties are not adverse parties as in the traditional litigated civil case, who will move to dissolve them and when should they be dissolved? Ironically, the goal of gang injunctions is to dissolve the gang.
Additional Resources: Gang Injunctions and Abatement: Using Civil Remedies to Curb Gang Related Crimes (CRC)