Monday, April 4, 2011

2011-04-04 "No Injunction Needed in West Sacramento" by David Greenwald
Evidence At Trial Shows Neither a Clear Criminal Street Gang nor a Nuisance in West Sacramento -
At the core of the Yolo County judicial problem is the gang case. Time after time, I see these young, relatively innocent, sometimes even harmless looking kids being accused of being gang members and committing some other crime.
As I sit there in the courtroom I cannot help but believe that we as a society have failed these kids, allowing them to get this to point. The term gang and gang member inspires fear more than compassion. It conjures visions of hardened criminal street gang members brazenly shooting and killing helpless and innocent victims.
But you can count on your hands the number of murders in Yolo County each year and you can count on one hand the number of gang murders in Yolo County over even the last decade.
The reality is that the image of gang member is not what you see when you walk into a Yolo County courtroom most of the time. Instead you see young kids, being charged under the most draconian set of laws that the state have created, and charged as though they were the Bloods and Crips of South Central Los Angeles or the masterminds of the Mexican Mafia and Nuestra Familia themselves.
Everyone told me that Judge Kathleen White would rule to impose the permanent gang injunction (in this case permanent is only seven years). She had imposed the preliminary injunction. There was no reason to believe otherwise.
However, still I had hope that the case that the defense was presenting was overwhelming enough to overrule that original judgment. I was wrong.
Last week I presented Judge White's ruling and then I ran an article on Defense Attorney Mark Merin's take. I have run countless articles on the gang injunction trial, but this is my take on how I saw the evidence presented over months of time, sometimes in painfully methodical ways.
Before I get into a deeper analysis, I will say I agree with two key points that Mark Merin raised. First, I was stunned with how little legal or frankly non-legal analysis there was in Judge White's opinion. I suspect that is somewhat strategic, in that it gives the defense less to sink their teeth into on appeal.
Second, the more I think about it, the 92 names is troubling. The defense had argued that if those 92 were going to be enjoined by this decision, they ought to be afforded representation. They were not. And so while the case itself is not binding on those 92 individuals, you can bet the authorities in West Sacramento will take the steps necessary to cover them under the injunction.
And that is the heart of the problem we face here. In the end, it is the idea that someone can have his or her liberty taken away without the due process of law. Yes, the West Sacramento police have an extensive system set up for gang validation that moves up the police ranks. In the end, it is still a police officer making a decision without the individual involved having a real chance for redress, a chance for a hearing, or afforded counsel.
In my opinion, at its core, a gang injunction is a violation of the right to due process under the law and the notion that one is innocent until proved guilty. Aside from the named defendants in this case, every other person subject to the gang injunction will have to prove his or her innocence. The law allows this, this is a decision well above Yolo County and Judge White, but to me at their core, gang injunctions are unconstitutional.
This case comes down to whether there is a criminal street gang called the Broderick Boys in West Sacramento, whether the defendants are members of that gang and whether the criminal street gang presents an ongoing nuisance to West Sacramento.
Judge White ruled that there is a Broderick Boys that "exists and operates within the Safety Zone." She wrote, "The Broderick Boys is an unincorporated association, consisting or two or more individuals, joined together by mutual consent for social, recreational and other common purposes, and that it acted and continues to act by and through its members, both individually and collectively."
She also mentioned that they have a common name, signs and symbols, and its members "individually or collectively engage in a pattern of criminal activity as defined in Penal Code § 186.22(f)."
There are definitely gang members in West Sacramento. But the evidence provided both at trial and in crime reports does not demonstrate to me that there is some kind of organized criminal street gang operating in West Sacramento.
What I saw were a bunch of assertions made by the police focusing in on a group of individuals with no clear affiliation to one another. They did have a common sign and name. They did identify with the Broderick Neighborhood. Some of these individuals were placed into prison and became affiliated through race and geography with the Norteno gang.
Others were kids who were clearly getting into trouble, into the "gangsta" lifestyle and hip hop culture. But to me there is no clear line between these sort of wannabes and real gang members.
What I saw presented in trial were a listing of crimes committed by individuals who might identify themselves with the Norteno Gang. However, we ran an analysis on those charged and convicted under Penal Code 186.22 and the number was extremely low. We are talking about a handful of convictions each year for actual gang crimes.
As Mark Merin put it, ""All they proved were that there were crimes committed over the course of ten years in this community."
There were only a small handful of incidents that you could objectively look at and say this was a gang crime.
So is there a gang in West Sacramento? I do not know. I don't think that the plaintiffs in this case, the DA's Office, proved that there was. I think they were able to show a lot of people who they could easily label gang members and they inferred a gang from that data. But other data contradicts that notion.
I am going to skip the second question, whether defendants are members of the alleged gang, because it would take too long and I lack the data for discussion, and will move instead to the nuisance issue.
The Vanguard obtained through a public records request a listing of all criminal gang charges, per section 186.22 of the California Penal code, from 2005 until the time of the request, March of 2010.
As we have mentioned in the past, there are two critical provisions in that penal code.

Part A prohibits, "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang."
Part B section 1, "Any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished."
Section 186.22(B)(1) is thus an "enhancement" which is tacked on top of a crime that they committed, whereas 186.22(A) is a stand-alone crime, punishable by up to three years in state prison.
From 2005 until March 2010, there have been a total of 98 individuals charged with gang enhancements, either 186.22(A) or 186.22(B)(1). That comes out to less than twenty gang cases in a year from West Sacramento. Of those 98 defendants, 75 were convicted of some crime. But only 35 were convicted of a gang crime, either 186.22(A) or 186.22(B)(1). That works out to less than seven individuals a year over a five-year period being convicted of gang crimes.
We know from the testimony of several in this case, as well as in other cases, that there were times when the DA's Office offered a "No State Prison Term" plea agreement in which they would admit gang membership in exchange for not having to serve prison time.
But even taken on face value, these numbers do not show a huge threat from a criminal street gang.
Deputy DA Ryan Couzens cited legal precedent that shows that the plaintiffs do not need to show actual gang crimes in order to prove the need for an injunction. According to him, all that is necessary is to show a host of any crime committed by an individual who is a known gang member.
To me this is part of the problem and part of the legal landscape that has failed to differentiate between a hard core gang member and someone who is committing crimes that have nothing to do with criminal street gangs.
We need to address a couple of additional points here.
Judge White argued, "There is no adequate remedy at law in that criminal prosecution has not stopped the nuisance created by the defendants' activities. Without the injunction, defendants, and each of them, will continue to maintain the nuisance by participating in and encouraging their criminal and nuisance activities, irreparably harming the community and the individuals who live and work in the Safety Zone."
This is a key point and it is here that I think the judge is wrong. There is a reason we have a penal code and that these crimes are punishable under that penal code. If someone commits a crime, put them in prison for the appropriate length of time.
I fail to see how the penal code and prison time are not adequate remedies.
She seemed to be arguing that crime will continue even after an individual is incarcerated, and that is correct. We will not stop crime by imprisoning one individual. It does not matter if there is a gang or not, that will not happen. But we do not create a murder injunction because someone else will commit murder after the first murderer is caught.
The question, though, is why would a civil injunction make a difference in stopping this supposed pattern of criminal activity, when the full force of the California Penal Code and the prosecution of individuals for a variety of felonies has not.
Mark Merin agreed with this problem. He told the Vanguard, "The injunction has no force and effect in preventing crime. What it does is interfere with people's ability to associate. It chills the freedom that they feel in being in their own neighborhood."
"It imposes some weird and irrelevant - as far as the criminal mind is concerned - restrictions on where people can go, what people can do, and when they can do it," he added, "But, as far as actually preventing crime or anything of that sort, I can't see that it has any effect whatsoever."
Finally we get down to a key problem, as Judge White early on admonished the plaintiffs that she would be very disappointed if they did not find individuals living in the community would testify that they felt there was a nuisance.

In her decision she wrote, "Defendants, and each of them, collectively, individually and in concert, through their criminal conduct, have created an atmosphere that is injurious to the health of those who work and live in the Safety Zone."
But did they? The plaintiffs did bring forth civilian victims of two incidents to establish their point and address the judge's concerns.
She wrote, "The court found the testimony of the victims of and percipient witnesses to the crimes described during the trial particularly credible and compelling, notably the testimony of James Hopkins III, Reece Hopkins and their father, James Hopkins, Jr., and also James Kephmi, Jacob Keating and Su Matsumoto."
The case of the Memorial Park incident is instructive. This is a case where James and Reece Hopkins were badly beaten by members of the Broderick Boys "gang."
But what appears to have happened on the stand is something a little different.
What had been portrayed by both the DA and the media as a pair of innocent brothers who went to the park to play basketball, and instead were brutally attacked by the Broderick Boys gang, emerged in a very different light after a of day of 17-year-old victim James Hopkins both testifying and being placed under an intense cross-examination in the Gang Injunction case by defense attorney David Dratman.
In fact, I found him not so credible on the stand, as his testimony differed wildly from what he told police. In essence, he admitted to having arranged what he thought was going to be a one-on-one fight between his brother and a guy named Abel Morales.
However, when Chris Castillo, an adult, showed up instead of Abel Morales, Mr. Hopkins fought him himself. It began as a one-on-one fight but quickly other cars arrived on the scene and a large group of people rushed him.
In letters to the judge, he had acknowledged that they had gone to Memorial Park in order to fight. He admitted they had not gone to the park to play basketball as they had originally told police. At first, he said on the stand, "To me it was just kids fighting, it would be over," he said, "We didn't want to fight."
Under cross-examination, he acknowledged that the story he had told Officer Kinney was untrue. He did this not by saying he had told the Officer a bunch of falsehoods that day, but simply by denying the information that Officer Kinney had testified to.
Regardless of the truth in this case, based on Mr. Hopkin's testimony, he and his brother were not simply innocent victims who had come to the park to play basketball. They came looking for a fight.
When Mr. Hopkins' father, James Hopkins, Jr. testified he said until this incident he was unaware that there was even a gang in West Sacramento. Now to me that demonstrates how limited the impact of this gang really is.
One of the core incidents involves a kid looking for trouble and finding it. But that is not proof of the nuisance of the gang, that is simply a matter of kids getting out of control with their behavior - gang members and non-gang members alike.
At the end of the trial, what I saw was a litany of criminal events but no clear orchestration or organization to them. I did not see a number of events that benefited the criminal street gang. What I saw were a lot of random crimes committed by people who happened to have tattoos and wear colors, and I am just not convinced that this is not a bunch of kids listening to rap videos pretending to be thugs as they commit a bunch of petty and a few not so petty crimes.
How this will impact the community and whether this will get overturned on appeal, we will find out. As Mr. Merin put it, "We didn't spend five months in trial on this making a record in order to listen to what the judge had to say in her [opinion] - and take that as the final word. Everyone knows this case is going on appeal."
Mark Merin remains confident they will prevail in the appellate courts.
"This is a case where they have pushed the law beyond its limit," he said. "You can't have a civil injunction of a public nuisance that doesn't exist. So I think it falls of its own weight. It doesn't get out of the starting gate, frankly."
An appellate court had previously allowed the preliminary injunction to remain in place, finding sufficient evidence, except in two limited circumstances, to show a reasonable likelihood for success, provided the claims of the DA's Office were proved out in court.
Mark Merin argues that this did not happen.
"What the court said in the preliminary injunction is that if the stuff gets proved out then you've made a case," he said. "The stuff didn't get proved."
"All they proved were that there were crimes committed over the course of ten years in this community," Mr. Merin said.
"They didn't say there were more crimes than in other communities. They didn't show that the people that they alleged to be Broderick Boys even still live in the community," he added. "Most of them that they identified are in custody."

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