The American Civil Liberties Union calls Santa Barbara’s proposed gang injunction unconstitutional and filed a brief last week with the Santa Barbara County Superior Court.
It’s in response to the District Attorney and City Attorney’s offices trying to get a temporary injunction for more immediate action, even though Judge Colleen Sterne already set a March trial date for the permanent injunction process.
The next hearing date was pushed to Feb. 10.
It’s unclear if the temporary injunction will go forward, if the case will keep its trial date — and if that will be for a temporary or permanent injunction — and if the ACLU of Southern California will get involved, according to Assistant District Attorney Hilary Dozer.
Since the ACLU is not a party in the lawsuit, its attorneys can’t present evidence or intervene in the court proceedings, Dozer said.
That will be one of the issues being discussed at the case management conference — whether Sterne will allow the ACLU to participate on the trial level, he said.
The ACLU is not representing any of the defendants in the case, but senior staff attorney Peter Bibring filed an amicus curiae, or “friend of the court,” brief last week that calls the preliminary injunction unconstitutional.
The ACLU wanted to present arguments that address the validity of the gang injunction in general, he said. The language "absolutely" opens it up to have more people served under the injunction in the future, he added.
Santa Barbara’s injunction was filed in 2011 and prohibits members of the Eastside and Westside gangs from certain activities within “safety zones” that make up 5.41 square miles of the city — more than a quarter of the total area.
The 30 named defendants would be restricted from certain activities, including associating with other gang members, trespassing, wearing “gang attire,” selling or using controlled substances including alcohol in public places or places within public view, trespassing, or doing graffiti within the safety zones that make up the Eastside, Westside and beach/waterfront areas of the city.
The injunction fails to justify the large size, which includes dense residential areas, parks, schools, government offices and the commercial downtown area, Bibring said.
“For many of those served with this injunction, the enormous area affected by the proposed injunction will include not only their homes, but the homes of most friends and relatives, their schools, their places of employment, the local restaurants they patronize — nearly every place they conduct their daily lives,” he said.
These conditions affect basic liberties of defendants, and the court case hasn’t provided the evidence to justify many of the conditions or blacklisted places, he wrote in his brief.
He also argues that the no association, no alcohol and no gang attire provisions are unconstitutionally vague. Not only is drinking alcohol prohibited in public, but also in public view — which would be any restaurant, backyard party or living room if the curtains are open, he said.
There has been a lot of public backlash to the injunction in the almost three years since it was filed, and one of the biggest concerns is the potential for more people being added in the future. Thirty people are named now, all alleged members of the Eastside or Westside gangs in Santa Barbara, but the gangs themselves are also named.
The government would be able to serve the injunction on people who are not part of this case now, then arrest them for violating its terms without any court hearing to determine whether they are a gang member or not, Bibring said. An appeals court recently ruled that people need an opportunity to challenge evidence that they are a gang member, or it violates due process. As a result, the Orange County District Attorney is paying the ACLU’s legal costs for the trial.
The court can make government agencies file a motion to add any new individuals to an injunction, and then hold hearings on whether the people are active gang members, Bibring said.
He asked Sterne to consider his arguments in her decision on whether to issue a temporary injunction.
"To seek a preliminary injunction four weeks before trial is very unusual," he said.
The next court hearing on this case is scheduled for Feb. 10 in Department 5 of the Santa Barbara County Superior Court.