BB&K Police Bulletin: Gang Injunction: Broad Gang Injunction Violates First Amendment and Due Process Rights


Overview: The Ninth Circuit recently struck down a state court default judgment and injunction obtained by the Orange County District Attorney’s Office (OCDA) against a local gang and its members based on free speech and due process violations. The court called the injunction “extraordinarily broad” because it interfered with a “wide swath” of protected liberty interests, including family and social relationships; religious gatherings; educational and professional opportunities; freedom of movement; and general participation in civic life. The panel held that in light of these interests, some adequate process was required to determine gang membership and to give enjoined parties a hearing to challenge these claims.

Training Points: Gang injunctions require specific prohibitions connected to gang-related activities. General or blanket injunctions can be overturned on appeal. When working with prosecutors, officers should provide as much detail as possible into the activities of the gang to be enjoined. This can be accomplished through various law enforcement tools such as Field Contact Surveys when officers make contact with members of a suspected gang. Using the information provided, it should be as simple as possible for prosecutors to describe to the court the who, what, when, where, why and how about the gang and the activities that should be stopped.

Summary Analysis: In Vasquez v. Rackauckas, Manuel Vasquez was one of four named individuals served with a permanent injunction prohibiting the Orange Varrio Cypress Gang and its alleged members from engaging in a broad range of activities, including “standing, sitting, walking, driving, bicycling, gathering,” or appearing with other enjoined parties, including family members, in any “public place, vacant lot, or business” within a designated gang-free zone. Two classes of adults and juveniles named as individual defendants but dismissed in the state court action filed suit against OCDA Tony Rackauckas and the City of Orange chief of police alleging that the default judgment violated their constitutional rights.

The Ninth Circuit agreed that the permanent injunction directly infringed on the “fundamental right of free movement” and the right to remain in a public place or in the presence of others of one’s choosing. The restrictions were based on the actions of others, over which a person has no control, and prohibited political, social, religious, and cultural activity protected by the First Amendment. The injunction also barred association with family in public places such as schools, churches, parks, libraries, stores, restaurants, and even at home without assessing actual gang membership. Without procedural safeguards, the injunction posed an unacceptably “high risk of error” in depriving individuals of significant private interests and was therefore unconstitutional.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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