Civil Liability
of Law Enforcement Agencies & Personnel

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Gang Activity

     Monthly Law Journal Article: Use of Injunctions Against Gang Activity--Part 1: Basis of and Advantage of Injunctive Relief, 2009 (10) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Use of Injunctions Against Gang Activity--Part Two: Constitutional Challenges, 2009 (11) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Use of Injunctions Against Gang Activity--Part Three: and Procedural Issues, 2009 (12) AELE Mo. L. J. 101.

     A man arrested and charged with misdemeanor criminal contempt for allegedly violating a permanent anti-gang injunction. He argued that he was not an active gang member covered by the injunction and that enforcement of the injunction against him violated his right to procedural due process. The trial court ruled that the injunction burdened the defendant’s constitutionally-protected liberty interests, and that he was entitled to some adequate predeprivation process to determine whether he was an active gang member covered by the injunction. Because no predeprivation process was available to him to challenge the determination that he was covered by the injunction, the trial court held that enforcement of the injunction against him violated his right to procedural due process. An intermediate California appeals court affirmed the dismissal of the misdemeanor criminal contempt charge based on the application of the injunction to the defendant. People v. Sanchez, #F071330, 2017 Cal. App. Lexis 1137.

     Insane Clown Posse, a Michigan music group, performs songs with “harsh language and themes.” Its fans, who call themselves “Juggalos,” wear distinctive tattoos, clothing, and insignia, including clown face paint and the “hatchetman” logo. The Attorney General’s National Gang Intelligence Center's (34 U.S.C. 41507) 2011 gang-activity report, described Juggalos as “a loosely-organized hybrid gang.” Four states currently recognize Juggalos as a gang. Juggalos who claim that they do not knowingly affiliate with any criminal gang, but have suffered violations of their Fifth Amendment due-process rights and a chill in the exercise of their First Amendment expression and association rights due to the designation, sued the Justice Department and FBI under the Administrative Procedures Act, 5 U.S.C. 701(b). Some claimed that they had been detained. An Army Corporal with Juggalo tattoos alleged that he is “in imminent danger of suffering discipline or an involuntary discharge.” Local law enforcement caused a musical event to be canceled. A federal appeals court upheld the dismissal of the lawsuit. The designation was not reviewable because it was not a final agency action and was committed to agency discretion by law. The group’s gang designation did not limit or compel action by other government actors and no government officials were required to consider or abide by the gang designation. Further, the gang designation did not result in legal consequences since the harms that the group suffered were caused by third parties who discretionarily relied on the gang designation, and the harms suffered by the group constituted a decision to act that rested on the shoulders of others and not the agency action. Parsons v. United States Department of Justice, #16-2440, 2017 U.S. App. Lexis  25446 (6th Cir. 2017).

     A county district attorney obtained a public nuisance injunction against a gang and its members, seeking to abate their activities. Individuals served with the injunctive order challenged the prosecutor's and police department's alleged "dismiss-and-serve" actions. An injunction was granted against the gang and its "members, and individual defendants who had expressed a desire to challenge the action or its application to them were voluntarily dismissed from the case, arguably denying individuals the ability to challenge the order. The order, the appeals court found, profoundly impacted liberty interests protected by the due process clause and a number of factors weighed in favor of a finding that the defendants violated the plaintiffs' procedural due process right by failing to provide any form of hearing before subjecting them to the injunctive order by serving it on them. The trial court properly entered declaratory and injunctive relief in the plaintiffs' favor. Vasquez v. Rackauckas, #11-56166, 2013 U.S. App. Lexis 22464 (9th Cir.).
     A number of individuals, named as active gang members in a court proceeding to enjoin public nuisance gang activity, appealed from an injunctive order barring specified gang activities in a designated area. The court found sufficient evidence had been presented to establish the existence of a criminal street gang, and the need for an injunction. The appeals court upheld portions of the injunctive order that prohibited public association of gang members with each other, trespassing, and curfew violations. Restrictions on controlled substances and alcohol in the order, however, were vague and could not be enforced because it was not clearly stated whether gang members were allowed to enter pharmacies and bars. People ex rel. Reisig v. Acuna, #C059375, 2010 Cal. App. Lexis 301 (3rd Dist.).

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