ATFCPA

2002 Annual

Therapeutic Foster Care

Conference

Det. John Treherne, Selma Police Department

The problems associated with the activities of youth gangs have long been thought of as a big-city dilemma. Small-town residents have rested peacefully, secure in the knowledge that they were unaffected by the violence, vandalism and drug usage that seems to go hand-in-hand with youth gangs.

This is no longer the case. Smaller communities lying on the out-skirts of major metropolitan areas increasingly find themselves unprepared to combat the growing presence of gangs and gang members in their neighborhoods. In an article entitled "A Small City Approach to a Big City Problem—Gang Abatement the Civil Way, " published in the March/April issue of the Municipal Attorney, Juli Christine Scott, Chief Assistant City Attorney for Burbank, California, described the problems that confronted police officers who served one neighborhood that was deeply affected by gangs in Burbank:

Ms. Scott goes on the state that the problems grew worse as random shootings and assaults became more commonplace in the neighborhood. Residents of any community where gangs are active can readily identify with these concerns. But how, if arrest and prosecution barely puts a dent in gang activity, can municipalities restrict the actions of gang members?

Ms. Scott’s article described how Burbank used civil injunctions to abate the gang problem as a public nuisance. Recently, in People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), another California municipality, San Jose, successfully defended its use of civil injunctions against gang members before the Supreme Court of California. This article discusses the Acuna case and examines whether Alabama municipalities that may be searching for methods to deal with their own local gang problems can successfully follow the lead of Burbank and San Jose.

The facts of a given situation are extremely important in proving that a public nuisance is necessary. In Acuna, The Court described the San Jose community of Rocksprings as "an urban war zone." The area had been claimed as the turf by a local gang. The Court, citing the declarations of the San Jose City Attorney, found that:

The City identified twelve defendants who it alleged had, for more than 12 months before the complaint was filed, used the Rocksprings area in a manner that constituted a public nuisance. The trial court granted a broad preliminary injunction against the activities of the defendants. The Court of Appeals overturned the injunction, enjoining only activities that constituted crimes under the California Penal Code. This severely limited the relief sought by the City. On appeal, the California Supreme Court reversed the Court of Appeals’ decision and allowed the City’s broad injunction to stand.

The Acuna decision reads like a lesson in civic responsibility. The Court leaned heavily upon the right and duty of municipalities to expect and enforce order among citizens, stating that municipalities not only have a right to maintain a "decent" society, but an obligation to its citizens to do so. The Court stated that:

The Court noted that there are few causes of action that have existed longer than suits seeking public nuisances, stating that the public nuisance "has been the maintenance of public order—tranquillity, security and protection—when the criminal law proves inadequate. . . . The public nuisance doctrine . . . embodies a kind of collective ideal of civil life."

The public nuisance doctrine has a long history in Alabama. As in California, Alabama municipalities have the authority to enforce public nuisances. Section 11-47-117, Code of Alabama, 1975, provides:

Section 6-5-122 of the Code gives municipalities additional authority to abate public nuisances to protect "the health, morals, comfort, or welfare of the community or any portion thereof."

Section 6-5-120 defines a nuisance as "anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of . . . should be such as would affect an ordinary reasonable man." Under §6-5-121, a nuisance becomes public, rather than private, if it is "one which damages all persons who come within the sphere of its operations, though it may vary in its effects on individuals." Black’s Law Dictionary defines a public nuisance as "a condition dangerous to the health, offensive to community moral standards. . . . affecting rights enjoyed by citizens as part of [the] public and must affect a considerable number of people or an entire community or neighborhood."

These nuisance provisions are liberally construed to effect the broadly stated purpose of public protection. Tipler v. McKenzie Tank Lines, 547 So.2d 438 (Ala. 1989). Whether an act constitutes a nuisance rests upon the common-law principle that a person must use his property in a manner that does not injure the property of his or her neighbor. Acker v. Protective Life Ins. Co., 353 So.2d 1150 (Ala. 1977).

The trial court in Acuna prohibited gang members from participating in 24 activities that were classified as gang-related. The Court of Appeals partially or entirely invalidated 15 of these provisions. The City, though, appealed only two of these to the Supreme Court. Specifically, the two provisions the City sought to enforce banned the listed gang members from:

The majority of the other activities the City sought to prohibit also constituted criminal actions, including actions such as discharging firearms, littering, loitering and trespassing.

In the article cited above on the City of Burbank’s injunction, the author notes:

The term "gang activity" is probably broad enough to embrace a wide range of actions that in a different context would be legal. The key to the success of enjoining individuals from participating in these legitimate pursuits lies in proper investigation of the problems arising from the activities, documentation of the results of the investigations, and in taking a narrow and specific approach in wording and objectives of the complaint.

As the Acuna Court noted, "Of course, not every interference with collective social interests constitutes a public nuisance. To qualify, and thus be enjoinable, the interference must be both substantial and unreasonable."

The California Court of Appeals held that 15 of the activities prohibited by the trial court violated the federal constitution and were overbroad and vague. Essentially, the Court of Appeals ruling meant that only an activity that violates the criminal law could be subject to restriction as a public nuisance.

The Supreme Court disagreed, pointing out that the U.S. Supreme Court has not recognized an unlimited freedom of association in the First Amendment. Rather, the Court noted that there are two types of association which are protected: (1) those with an intrinsic or intimate value, and (2) those that are instrumental to forms of religious and political expression and activity.

The Court held that, "It is evident that whatever else it may be in other contexts, the street gang’s conduct in Rocksprings at issue in this case fails to qualify as either of the two protected forms of association." The Court found that the gang members could not, in any sense, be considered as gathering together for the purpose of engaging in protected speech or religious activities.

The Court also examined the Court of Appeals’ rulings that the injunction was overbroad and vague. In reversing the overbreadth challenge, the Court found that the decree was addressed to identifiable parties and to specific parties, and that the enjoined acts were sufficient described in the trial court’s order. The Court also held that the trial court’s order went no further than necessary to further the legitimate governmental interest in abating the nuisance.

The Court also rejected the defendant’s claim that the injunction was unconstitutionally vague. The Court refused to find either challenged provision void for vagueness. The Court did, however, place one limitation on the enforcement of the prohibition of association with "known" gang members. The court provided that in any action against one of the defendants for violating this provision, the City would have to establish that the defendant himself knew that the person he was with was a gang member. It would not be sufficient, in the Court’s view, if the police knew that the person was a gang member because this would not put the defendant on notice that he was violating the court’s order.

The dissenting Justice in Acuna lists the prohibited activities which, in California at least, may, in the proper circumstances, be enjoined as gang-related :

Does it work.? This is a question that frequently arises during discussions of enjoining gang activity. Why should gang members, who don’t seem afraid of criminal prosecution for their actions, be dissuaded by a court order not to engage in prohibited activities?

Remember that to be effective, the injunction allows officers to arrest violators for activities that are likely to lead to criminal acts. In her article in the Municipal Attorney, cited above, the author notes:

"In the one-year period since the injunction was first issued, we have arrested approximately ten of the named defendants for violation of the order. Most of the arrests have come in the past few months as the gang members seem to ‘forget’ about the injunction. . . . [T]he neighborhood has been remarkably free of criminal activity since October of 1992. Children are once again able to play in their front yards and walk to school and their friend’s homes without the specter of gunshots hanging over them. . . .The results have been clearly worth the effort."

It should be noted that other municipalities have taken a different approach to eliminating gang activity. For instance, Chicago, Illinois, Aurora, Colorado, and others have adopted ordinances which attempt to criminalize certain gang-related activities and behaviors, and to make parents responsible for the certain actions taken by their children.

To date, the League has not located any court cases challenging the enforcement of these ordinances. Some commentators have raised questions regarding the constitutionality of these ordinance in that they may allow police officers to arrest persons for engaging in perfectly legal activities. See, for instance, Poulos, Chicago’s Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Cal. L. Rev. 379 (1995), where the author warns that, in his view, the Chicago ordinance will not withstand a court challenge.

Great care should be taken in the drafting of any ordinances designed to restrict or limit the actions of citizens. These ordinances should be as narrowly and as definitely draw as possible to avoid encroaching on any legal activities.