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Friday, August 03, 2007

Reisig Refiles for Gang Injunction, But Has Anything Changed?

This week, Yolo County District Attorney Jeff Reisig announced that he was refiling for a gang injunction in West Sacramento.

Mr. Reisig told the Sacramento Bee earlier this week:
"They overturned it on technical issues... We'll accept that, and we'll fix it, but the need is still there. This is about public safety, and it's the right thing to do."
Those technical terms being the right to due process under the U.S. Constitution when the then Yolo County Deputy District Attorney noticed only one specific individual about the injunction. Moreover, the court struck down the use of "unincorporated association" as a means by which to target the entire Broderick Boys Gang.

It is not clear that Reisig has really fixed the problems involved in the first injunction being overturned. The original complaint only noticed 1 alleged gang member. This one notices 23 alleged gang members who were listed by name and another 400 unnamed individuals. It is not clear to me how they expect 400 unnamed individuals to know that they are being served and to come and defend themselves.

Moreover, as the Sacramento Bee reports,

The Sacramento-based state 3rd District Court of Appeal also ruled April 23 that prosecutors had failed to show the Broderick Boys were an "unincorporated association" for the purposes of the injunction.

To fix that problem, the new complaint argues the Broderick Boys are a group that not only shares symbols and colors and pursues lawful "social and recreational activities," but also commits robberies and assaults, intimidates witnesses and deals drugs.
To this non-lawyer that appears to be the same argument that was used in the original ruling and struck down. The definition requires that they join for "mutual lawful purposes"--it appeared in the ruling that the judge did not agree that they joined for lawful purposes:
"In California, “‘Unincorporated association’ means an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not.” (Corp. Code, § 18035, subd. (a), italics added.) The record does not show that The Broderick Boys—a criminal gang under the Penal Code, a “terrorist” group with “no social benefits”—was formed, at least in part, for a common lawful purpose."
Based on that reading of the judges ruling, it is not clear how that argument will change his ultimate ruling.

Yesterday, four accused gang members challenged the injunction.
"As a group, they were not represented by an attorney but asked Fall if he might appoint one. The judge said that because it was a civil case -- not a criminal matter -- they were not entitled to court-appointed counsel."
This appears another attempt to circumvent the rights of the accused. By claiming that this is a civil case, the accused are not entitled to court-appointed counsel. It reduces the burden of proof. And it changes the nature of the rights of the accused.

In the end, this seems no more constitutional than the last one. Even accused gang members should been innocent until proven guilty in the court of law. The District Attorney should have the burden of proving that each of the members is a gang member who has committed criminal actions against the population. And if they cannot prove that, then in this country, an individual should not be deprived of constitutional rights. Moreover, the District Attorney should not be able to bypass the legal system by making this a civil action. If it deprives people of their constitutional rights for freedom of association, it must be a criminal proceeding, where the individual is entitled to an attorney and if they cannot afford an attorney they should have the court-appoint one for them.

I sympathize with the citizens of West Sacramento who have to live in areas afflicted with gang activity. I favor all legal means to reduce that gang activity and actual crime. However, this US Constitution is not negotiable. Freedom means little during times of safety and security and only means something when our emotions and our security are challenged. We ask individuals fighting abroad to sacrifice their lives for our freedoms that we all enjoy, we can ask our citizens at home to do no less. For the second one class of people can be punished without due process of law, it becomes only a matter of time before all people can be likewise punished without due process of law.

---Doug Paul Davis reporting