1. RichardProvencher
LEG 230
Assignment5
1
Memorandumfor: ACLU
From: Richard Provencher
Re: The Proposed Useof Gang Injunctions by theCity of Columbia
Date: November 22, 2013
“In the past thirty years, gang membership and gang-related violence have proliferated
across the nation as gangs in urban and rural areas fight for territorial control and
market dominance. Today, the U.S. Department of Justice estimates that there are
more than 800,000 gang members and 30,000 gangs in the United States. . . .
Recognizing that traditional law enforcement techniques alone were insufficient to
address the growing problem, leading public officials and residents began to seek new,
innovative solutions to slow the spread of gang violence . . .” Lindsay Crawford, No Way
Out: An Analysis of Exit Processes for Gang Injunctions, 97 Cal. L. Rev. 161-162 (2009)
The City of Columbia recently announced that it is considering the use of civil gang
injunctions and the establishment of “Safety Zones” in an effort to reduce gang related
violence and gang related criminal activities in specified areas of the City, such as Five
Points. It is interesting to note that this announcement comes only 12 days after the
accidental shooting of a USC female student by a suspected gang member firing at a
rival gang member in the Five Points area. A very similar situation occurred in San
Antonio in 1999 when an innocent bystander was killed by a stray bullet fired from a gun
used by a gang member during a drive by shooting. Shortly after this event, residents
of the neighborhood organized efforts that eventually led to the establishment of gang
injunctions in San Antonio (the first gang injunction in the State of Texas). James Leito,
Taking The Fight on Crime from the Streets to the Courts: Texas’s Use of Civil
Injunctions to Curb Gang Activity, 40 Tex. Tech L. Rev. 1040-1041 (2008)
“The civil gang injunction is a unique method for reducing the spread of gang-related
criminal activity. Gang injunctions enjoin gang defendants from engaging in a wide
range of legal and illegal activities within a specified “safety zone” ranging in area from a
few city blocks to several square miles. An injunction may include provisions prohibiting
gang defendants from engaging in illegal activities such as using drugs and alcohol,
discharging firearms, and trespassing on private property. Additionally, an injunction
may prohibit otherwise legal conduct, such as freely associating with other gang
members and using a cell phone. Gang injunctions are a powerful tool because they
grant police and law enforcement personnel the authority “to disperse, or stop and frisk,
or take into custody enjoined [gang defendants] whenever they are seen violating one of
the injunction's broad provisions.” By imposing fines and possible jail time for smaller
offenses, civil gang injunctions are designed to limit more serious crimes before they
occur by restricting disorderly conduct. While violation of any injunction is punishable by

2. RichardProvencher
LEG 230
Assignment5
2
civil or criminal contempt, violation of a gang injunction is prosecuted as criminal
contempt.” Ryan Young, Sharpen the Blade: Void for Vagueness and Service of
Process Concerns in Civil Gang Injunctions, 40 McGeorge L. Rev. 1006-1007 (2009)
Gang injunctions originated in California and have been in use there since 1987.
Injunctions are currently being used in other cities in California and in several cities in
Texas and Utah. Young supra at 1002
This paper will attempt to address the feasibility of the use of gang injunctions by the
City to include an in-depth analysis of the effectiveness of such injunctions and the
constitutional issues they create.
A. Are gang injunctions effective?
“Gang Injunctions have proven to be one of the most effective legal tools available to
law enforcement in suppressing and disrupting the criminal and often violent activities of
Los Angeles street gangs and protecting the communities and neighborhoods they
terrorize. Because of their success, in both the courts and the communities, there are
currently more than 40 permanent Gang Injunctions in place in the City of Los Angeles
enjoining the activities of more than 65 criminal street gangs.” Los Angeles City
Attorney’s Office Criminal and Special Litigation Branch Gang Injunction Program
Guidelines, Office of the City Attorney, City of Los Angeles (2009), Page 2.
With the proliferation of gang injunctions as a law-enforcement tool, there has been a
debate on the effectiveness of gang injunctions in reducing crime. Few studies have
evaluated how effective injunctions have been at combating gang violence and these
studies have reached conflicting conclusions. In a 2004 Los Angeles County Grand
Jury Report, Los Angeles Police Department statistics showed that “overall gang-related
crime fell by 13 percent since 2001, and by as much as 53 percent within the Safety
Zones designated in the injunctions”. Crawford supra at 169
A 2002 report by UCLA professor Jeffrey Grogger addresses the effects of several
injunctions. After analyzing eight years of data, Grogger concludes that “injunctions
result in a 5%-10% decrease in violent crime. But when compared to other “place-
based intervention strategies” that focus on small geographic areas, the effectiveness of
injunctions is low”. Leito supra at 1053-54
In 1997, a study of the results of a gang injunction in Inglewood, California concluded
that there was little indication that the injunction had any positive effects. However, a
2005 study conducted by the same researchers on the effects of injunctions in San
Bernardino, California, concluded that the injunctions resulted in less gang presence in
the area and reduced fear of intimidation and confrontation with gang members among
residents, as compared to a control area. Crawford supra at 169
A 1997 ACLU report analyzed crime statistics both within a Los Angeles safety zone
called the Blythe Street Gang zone and just outside of it over a period of eighteen

3. RichardProvencher
LEG 230
Assignment5
3
months after an injunction became effective. The report reached two principal findings:
(1) a net increase in violent crime in the safety zone immediately after the injunction was
issued and (2) an increase in drug trafficking and crime in the areas immediately
adjacent to the safety zone. In the words of the report, “[t]he Blythe Street gang
injunction failed to achieve its stated objective-an immediate reduction in violent crime
and drug trafficking and an immediate increase in community safety” Leito supra at
1053
“In the nine months after San Antonio issued its first injunction, overall crime decreased
in the safety zone, although the number of assaults increased slightly. But like the
increase in crime in areas adjacent to the Blythe Street safety zone, drug violations,
aggravated assaults, and burglaries increased in the area surrounding the San Antonio
safety zone. Other statistics indicate that crime dropped 22% in the two months after
the issuance of a later San Antonio injunction. Thus, at the very least, the period of time
immediately following the issuance of an injunction may be marked by a reduction in
crime in the safety zone. Id. At 1054
In March 2011, a study entitled the "Evaluation of the Effectiveness of Gang Injunctions
in California" was published in the Journal of Criminal Justice Research (JCJR). The
purpose of the two year study was to determine whether gang injunctions reduce crime,
when compared to baseline and matched control areas. Twenty-Five (25) gang
injunctions from four California counties were evaluated by extracting crime data from
court records and police agencies. Calls for service were evaluated for one year, pre-
injunction, and one year, post-injunction, using paired t-tests which revealed that gang
injunctions reduce crime. This study confirmed that gang injunctions can be a very
beneficial tool if used and implemented correctly and that they can have a
corresponding impact on reducing gang crime in the communities they are
implemented. Matthew O'Deane, Evaluation of the Effectiveness of Gang Injunctions in
California, The Journal of Criminal Justice Research (JCJR), March 2011
Clearly, the use of gang injunctions can produce mixed results. As the City of Columbia
considers the use of gang injunctions, they should be aware that though gang-related
crime in the Safety Zone may decrease, crime in areas adjacent to the Safety Zones
can increase as gangs move their activities to other areas of the city. Injunctions are
not necessarily a panacea to controlling and managing gang related criminal activity.
B. Constitutional Issues with Gang Injunctions.
Vagueness and Overbreadth
“Gang injunctions are most often challenged as vague and overbroad. . . The injunction
provisions most often contested on these grounds are those that limit the enjoined gang
members' ability to associate with other gang members, and those that prohibit gang
members from annoying or harassing residents. . . . one common concern is that
injunctions fail adequately to specify the persons with whom gang members are

4. RichardProvencher
LEG 230
Assignment5
4
prohibited from associating” Crawford supra at171 “With regard to overbreadth, a
regulation is impermissibly overbroad if it deters a substantial amount of constitutionally
protected conduct while purporting to restrict or prohibit non-protected activities. If so,
the Court must then evaluate whether the injunction is vulnerable to selective
enforcement.” Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street
Gangs as Public Nuisances, 89 Nw. U. L. Rev 251 (1994)
In the seminal case on civil gang injunctions, the California Supreme Court in People ex
rel. Gallo v. Acuna, 929 P.2d 596 (1997) reviewed a gang injunction issued by the City
of San Jose which had been contested for being overly vague and broad in scope. The
California Supreme Court is the highest court that has ruled on the constitutionality of
gang injunctions. The Acuna court ruled that the city’s injunction enjoining gang
members from “[s]tanding, sitting, walking, driving, gathering or appearing anywhere in
public with any other defendant herein, or with any other known ‘VST’ . . . or ‘VSL’ . . .
member” (Acuna supra at 630) was not impermissibly vague as the language in the
injunction implied knowledge on the part of the gang member that the person with which
he was associating was a fellow gang member. The dissenting justice in the Acuna
decision raised a concern that since the injunction did not specify “known by whom?”
that the interpretive ambiguity made this provision susceptible to arbitrary enforcement.
Legal commentators have also expressed vagueness concerns about injunction
provisions restricting gang members from annoying or harassing residents. However,
the Acuna court found that the San Jose injunction enjoining gang members “[i]n any
manner confronting, intimidating, annoying, harassing, threatening, challenging,
provoking, assaulting and/or battering any residents or patrons, or visitors” Id. at 630-
31. . . was not unconstitutionally vague when read in the context of the City's
declarations detailing specific types of terrorizing behavior in the Rocksprings
neighborhood and the objectives of the injunction. . .”Crawford supra at 172-73
The one time that the United States Supreme Court weighed in on the constitutionality
of modern anti-gang legislation it addressed the issue of vagueness in a City of
Chicago’s anti-loitering ordinance. The Court held that two provisions of the law were
unconstitutionally vague: the definition of “loitering” (i.e. “to remain in any one place with
no apparent purpose”) and a provision that empowered police to arrest two or more
persons who refused to disperse if an officer had a “reasonable belief” that at least one
person in the group was a gang member. The Court found that the provisions provided
insufficient standards and problematically vested absolute power in law enforcement.
Chicago v. Morales, 527 U.S. 41, (1999). In her concurrence, Justice O'Connor
attempted to foreclose the applicability of Morales to civil gang injunctions by
emphasizing the “narrow scope” of the Court's holding, and distinguishing the City’s
ordinance from laws “requiring loiterers to have a “harmful purpose”, from laws that
target only gang members, and from laws that incorporate limits on the area and
manner in which the laws may be enforced.” Id. at 67
Another concern for vagueness in enforcing gang injunctions is determining who is a
gang member. “Determining an individual’s gang membership is crucial to the success

5. RichardProvencher
LEG 230
Assignment5
5
of civil gang injunctions. To prosecute a person for violating the injunction, “it must be
proven, beyond a reasonable doubt, that the individual was a gang member at the time
of the violation.” Young supra at 1015 (citing People v. Conrad, 55 Cal. App. 4th 896).
Also, a lack of an explicit definition hinders those injunction defendants who seek to
determine who is a gang member. This lack of certainty regarding gang membership
prevents an enjoined person from knowing how to fully comply with the injunction as it
forces a defendant to guess whether the individual with whom he is associating is a
gang member. Without clear criteria to ascertain who is a gang member, law
enforcement agents lack specific standards for determining if an injunction violation has
occurred. Leito supra at 1081
The California Court of Appeals in People v. Englebrecht, 106 Cal. Rptr. 2d 738 (Ct.
App. 2001) (AKA Englebrecht II) stated that to sustain a civil gang injunction, the state
must prove that the individual defendants are in fact members of the gang being
enjoined. The court, acknowledging that the Acuna court had not defined gang
membership, suggested a definition of: “[A]n active gang member is a person who
participates in or acts in concert with an ongoing organization, association or group of
three or more persons, whether formal or informal, having as one of its primary activities
the commission of acts constituting the enjoined public nuisance, having a common
name or common identifying sign or symbol and whose members individually or
collectively engage in the acts constituting the enjoined public nuisance. The
participation or acting in concert must be more than nominal, passive, inactive or purely
technical”. . Englebrecht II supra at 756-57. Unfortunately, the Englebrecht’s II court
lengthy definition does not provide an objective standard of gang membership but
simply outlines the type of conduct constituting active gang membership. It merely
mirrors the definition of a gang. In the words on one legal commentator, “. . . while the
California Court of Appeal was well-intentioned . . . its definition of gang membership
muddied the waters.” Young supra at 1016
The City of Los Angeles City Attorney’s Office uses a nine factor standard to determine
gang membership. A person must meet two or more of the following criteria to be
identified as a gang member for purposes of gang injunctions:
1. The individual admitted to being a gang member in a non-custodial situation;
2. The individual was identified as a gang member by a reliable informant or source
(such as a registered gang member);
3. The individual was identified as a gang member by an untested informant or source
with corroboration;
4. The individual was witnessed wearing distinctive gang attire;
5. The individual was seen displaying gang hand signs or symbols;
6. The individual has gang tattoos;
7. The individual frequents gang hangouts;
8. The individual openly associates with documented gang members; or
9. The individual has been arrested, alone or with known gang members, for a crime
usually indicative of gang
activity.

6. RichardProvencher
LEG 230
Assignment5
6
Id. at FN 153
According to the National Gang Center, only fourteen States have created statutory
definitions of a gang member (not including California). South Carolina is among the
fourteen states listed but S.C. Code Ann. § 16-8-230 (3) defines a gang member as “an
active gang member” but does not define what “active” means. Seven of the fourteen
states use a list of criteria, similar to the LA City Attorney’s, some of which a person
must meet to be considered a gang member. Of those seven, six states require that a
person must meet at least two criteria to be considered a gang member. As one of the
six states, the State of Florida defines a gang member as a person who meets at least
two of the following criteria:
• Admits to criminal gang membership
• Is identified as a criminal gang member by a parent or guardian
• Is identified as a criminal gang member by a documented reliable informant
• Adopts the style of dress of a criminal gang
• Adopts the use of a hand sign identified as used by a criminal gang
• Has a tattoo identified as used by a criminal gang
• Associates with one or more known criminal gang members
• Is identified as a criminal gang member by an informant of previously untested
reliability and such identification is corroborated by independent information
• Is identified as a criminal gang member by physical evidence
• Has been observed in the company of one or more known criminal gang members four
or more times. Observation in a custodial setting requires a willful association. It is the
intent of the legislature to allow this criterion to be used to identify gang members who
recruit and organize in jails, prisons, and other detention settings
• Has authored any communication indicating responsibility for the commission of any
crime by the criminal gang
Fla. Stat. Ann.§ 874.03 (cited at
http://www.nationalgangcenter.gov/content/documents/definitions.pdf)
Legal commentators recommend including detailed, gang-specific definitions of gang
membership in the pleadings of each injunction. Young supra at 1022. “The injunction
should incorporate a pre-existing statutory definition of gang membership either on the
face of the injunction itself or by judicial construction.” Yoo supra at 250
Though South Carolina law allows the definition of a gang member to be as vague as
“an active member of a gang”, the City of Columbia should seriously consider using
more detailed and definitive criteria in identifying gang members for inclusion in a gang
injunction.
Freedom of Association
The most controversial and effective provision of civil gang injunctions is the “do not
associate” restriction. “Do not associate” provisions prevent gang members from
“driving, standing, sitting, walking, gathering, or appearing anywhere in public view or

7. RichardProvencher
LEG 230
Assignment5
7
any place accessible to the public” with any known member of a gang within the
specified safety zone. Although, “do not associate” provisions are subjected to
constitutional challenges based on the First Amendment right to free association,
California precedents support their validity. Young supra at 1010
In Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), the U.S. Supreme Court distinguished
two lines of cases protecting the right to associate-those protecting intimate
relationships (intimate association), and those protecting association to exercise First
Amendment rights (instrumental association). Intimate associations are relationships
with family members or of groups that demonstrate “relative smallness, a high degree of
selectivity in decisions to gain and maintain the affiliation, and seclusion from others in
critical aspects of the relationship” (Id. at 609) while instrumental associations are
relationships with other individuals “in pursuit of various political, social, economic,
educational, religious, and cultural purposes.” Id. at 622. Neither intimate nor
instrumental associational rights are absolute. These rights may be infringed to serve
compelling state interests (emphasis added) Roe v. Wade, 410 U.S. 113 (1973). Roe
v. Wade is often cited for justified infringement of intimate association rights and
Roberts v. U.S. Jaycees is cited for justified infringement of instrumental association
rights. The Supreme Court further elaborated on justified infringements of these rights
in a decision involving the rights of protestors at an abortion clinic. In Madsen v.
Women’s Health Ctr, Inc., 512 U.S. 753 (1994) the Court stated “. . . the First
Amendment does not protect those who would associate with others “for the purpose of
depriving third parties of their lawful rights” Id. at 776.
In People ex rel. Gallo v. Acuna, supra, the California Supreme Court reviewed a
freedom of association challenge to a City of San Jose injunction. The court noted that
there is “no generalized right of social association” under the Constitution and after
performing an analysis of elements of intimate and instrumental associations concluded
that the gang involved (known as VST) did not qualify for First Amendment protection
under rights to intimate association because it did not “inculcate and nourish
civilization’s fundamental values.” Nor did the gang deserve protection under
instrumental association rights as the gang members were not engaging in protected
politically expressive or religious activity. Id. at 609
In two cases, In re Englebrecht (AKA Englebrecht I), 79 Cal. Rptr. 2d 89 (Cal. Ct. App.
1998), and People v. Englebrecht (AKA Englebrecht II), supra, the California Court of
Appeals reviewed a City of Oceanside gang injunction non-association provision
identical to the provision reviewed in Acuna. Englebrecht I involved an appeal of a
preliminary injunction while Englebrecht II was the appeal of the permanent injunction.
However, in the Englebrecht cases, the area covered by the injunction was sixty square
blocks versus the four block area in Acuna. The appellants in Englebrecht II argued

8. RichardProvencher
LEG 230
Assignment5
8
that the non-association provision should be struck down because the Oceanside
injunction covered a much larger area and some of the enjoined gang members lived in
the area or had relatives who did. The Court of Appeals rejected the arguments and
found that “what matters is whether the Target Area in this case burdened no more
speech that necessary to serve a significant government interest.” In re Englebrecht,
supra at 95. The court noted that the Target Area covered only the gang’s turf, was well
defined by distinct boundaries, and was no larger than necessary to abate the public
nuisance. The court also rejected the agreement that the injunction burdened gang
member’s familial relationships as “The familial nexus is not carte blanche for creating a
public nuisance.” Id. at 96. The Englebrecht II appellate panel reviewed the defendant’s
second appeal of the injunction and continued to reject the agreement that the
injunction imposed unconstitutional restrictions on the enjoined gang members
associational right by stating “while the injunction may place some burden on family
contact in the target area, it by no means has, in our view, a fundamental impact on
general family association.” . . . Any attempt to limit the familial associational impact of
the injunction would make it a less effective device for dealing with the collective nature
of gang activity.” People v. Englebrecht, supra at 758
As the area of a gang injunction safety zone grows in size, from four square blocks in
Acuna, to one square mile in Englebrecht, …., the probability that the injunction will
affect gang members' interactions with their families grows. A larger area increases the
likelihood that more gang members will live in the enjoined area, will have family who
do, or both . . An injunction that impacts gang members' fundamental rights of
association with family is not “narrowly drawn to express only the legitimate state
interests at stake.” Roe v. Wade, supra at 155. Thus, such an injunction should be
rewritten to forbid association in furtherance of illegitimate nuisance activity, not
association generally. Eating at a restaurant with one's family is not a public nuisance,
but it would be barred by an absolute non-association provision nonetheless. Scott E.
Atkinson, The Outer Limits of Gang Injunctions, 59 Vand. L. Rev. 1711 (2006)
In analyzing a gangs’ instrumental associational rights, the Acuna court relied heavily on
the U.S. Supreme Court’s opinion in Madsen v. Women's Health Center, Inc., supra, In
Madsen, the U.S. Supreme Court concluded that the appropriate test for
constitutionality of an injunction is “whether the challenged provisions of the injunction
burden no more speech than necessary to serve a significant government interest.” Id.
at 765. In analyzing the burden the associational provisions of the San Jose gang
injunction placed on enjoined gang members' First Amendment rights, the Acuna court
wrote, “Manifestly, in its activities within the four-block area of Rocksprings, the gang is
not an association of individuals formed for the purpose of engaging in protected
speech or religious activities.”. . . Given the limited area within which the superior court's
injunction operates, the absence of any showing of constitutionally protected activity by

9. RichardProvencher
LEG 230
Assignment5
9
gang members within that area, the aggravated nature of the misconduct, the fact that
even within Rocksprings the gang members may associate freely out of public view . . .
we conclude that this aspect of provision (a) passes muster . . . under the standard of
Madsen.” Acuna supra at 616. The Englebrecht I court followed suit in approving the
larger injunction at issue in that case. Thus, California courts have concluded that
blanket associational provisions pass constitutional muster under Madsen when areas
targeted are limited to the neighborhoods in which the gangs have made themselves a
public nuisance and in which the gangs are not actively engaging in constitutionally
protected activity.
The ordinary nature of the activities typically enjoined by a gang injunction (associating
with fellow gang members, displaying gang symbols/graffiti, etc) require authorities
operating a gang injunction program to meet a higher burden of proof when enforcing
injunctions and in determining the size of “safety zones.” In the words of one legal
commentator “[t]hese tripartite requirements of balancing hardships of the parties,
meeting a heightened standard of proof of nuisance, and proving a cognizable risk of
recurrent violation of residents' rights act to limit the legitimate geographic scope of the
injunction to the area directly affected by the gang's nuisance activity.” Atkinson supra at
1708
Authorities should be cautious in wording injunctions too broadly when restricting gang
associations and avoid establishing large “safety zones”. “While it may be true that an
enjoined gang might not be engaged in (constitutionally) protected activity at the time an
injunction is imposed, that circumstance does not change the fact that a broadly worded
injunction curtails all future collective protected speech, political or religious activity within
the enjoined area. Provisions forbidding all association necessarily include politically
motivated assembly, thereby prospectively abridging gang members' First Amendment
rights--even if the enjoined defendants were not using those rights at the time the
injunction was imposed. A larger target area further increases the burden on gang
members' instrumental associational rights; they must travel farther to associate.”
Atkinson supra at 1716
Due Process
As gang injunctions are administered as civil proceedings, there is a concern that gang
members charged with injunction violations are afforded appropriate protections of their
due process constitutional rights. Although injunctions are civil proceedings, violators
are held in criminal contempt and are subject to fines or incarceration. There is a
concern that violators of these civil actions receive a lower level of procedural
protections such as no right to counsel and a lower burden of proof. The U.S. Supreme

10. RichardProvencher
LEG 230
Assignment5
10
Court held in Matthews v. Eldridge, 424 U.S. 319 (1976) that due process requires
procedural protections even in civil cases. Using a three-part balancing test, a court
must consider the nature and importance of the individual interest at stake; the risk of
an erroneous deprivation or infringement of that interest and the probable value of
additional procedural safeguards, and third, the financial and administrative burdens on
the government that the extra procedures would require. Atkinson supra at 1723. One
legal commentator argues that the Court’s ruling in two cases, U.S. v James Daniel
Good Real Property, 510 U.S. 43 (1993) and Lassiter v. Dept of Social Services, 452
U.S. 18 (1981) suggest that indigent gang members should be afforded appointed
counsel at hearings held before the imposition of an injunction instead of having
appointed counsel after an injunction is violated and gang members appear at a criminal
contempt proceeding. Yoo supra at 255
Ensuring procedural due process in the enforcement of gang injunctions is the
requirement to provide adequate notice to targeted gang members. The legal standard
used to determine adequacy of notice is the U.S. Supreme Court’s holding in Mullane v.
Central Hanover Bank & Trust Co, 39 U.S. 306 (1950). Under Mullane, the appropriate
question is whether the notice given was “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Though California courts have found
that naming gangs as unincorporated associations does not violate procedural due
process rights, some legal scholars feel that naming gangs as defendants without
naming individual defendants does not meet the Mullane court’s guidance. “When no
gang members are named in the suit and served with process at all, notice of the suit is
not “reasonably calculated” to apprise them of the public nuisance suit against them.”
Atkinson supra at 1725.
As officials must assemble detailed information on the gang’s activities in order to
secure an injunction, it would be natural for the government to learn the names and
addresses of at least some gang members so as to provide them individual notice of an
injunction suit. As gang injunctions’ terms often enjoin everyday conduct and the
exclusion from “safety zones”, such restrictions can be especially burdensome and
should warrant the serving of adequate notice.
In order to ensure that their gang injunction program contains sufficient due process
protections, the City of Columbia should strive for serving notice of pending injunction
actions on individually named gang members rather than using a broad approach of
suing the gang as a whole (as commonly practiced in CA). This not only avoids the risk
of police misidentifying gang members when enforcing an injunction but will prevent
claims by non-named members (whose gang membership is suspect) of infringement of
their due process rights.

11. RichardProvencher
LEG 230
Assignment5
11
Equal Protection
Gang injunctions can also present equal protection issues as injunction defendants are
treated differently than non-gang members who participate in the same activities that
are banned by the gang injunction. Authorities operating a gang injunction program
must ensure that a court presiding over an injunction proceeding is provided sufficient
information on gang and individual member activities in order for the court to weigh the
public’s interests for protection against gang activity against the potential infringement of
a gang member’s constitutional rights. Cathy Wang, Gang Injunctions Under Heat from
Equal Protection Selective Enforcement as a Way to Defeat Discrimination, 35 Hastings
Const. L.Q. 287 (2008)
Though gang injunctions are considered civil actions requiring only a preponderance of
evidence burden of proof, the California Court of Appeals, reviewing a gang injunction
appeal in Englebrecht II, noted that this standard may be raised when “particularly
important individual interests or rights are at stake.” The court stated that a “clear and
convincing” standard for a gang injunction “arises not because the personal activities
enjoined are sublime or grand but rather because they are commonplace, and ordinary.
While it may be lawful to restrict such activity, it is also extraordinary. The government .
. . [must] firmly establish the facts making such restrictions necessary.” In re Englebrecht
supra at 751-753. Raising the standard of proof in finding violations of a gang injunction
to a standard above that used in a typical civil suit can also strengthen the equal rights
protection of gang members.
C. Opt-Out Procedures
Cities using gang injunctions have a constitutional and moral imperative to create a
clearly defined and legally valid exit process to help inactive gang members remove
their names from gang injunctions. Crawford supra at 163.
Though individuals named in gang injunctions have a legal right, through a court motion,
to seek removal from an injunction, few named gang members have been successful in
doing so. This may be due to a lack of knowledge or understanding by the individuals,
feeling intimidated by the removal process, or an absence of legal assistance resources
afforded to indigent defendants. In the interest of equity and fairness, authorities should
ensure that any gang injunction program includes an administrative process for a
named gang member to request removal from an injunction upon showing substantiated
disassociation from the named gang. In response to growing public pressure that gang
members who had disassociated from a gang had not been successful in being
removed from gang injunctions, the Los Angeles City Attorney’s Office developed a

12. RichardProvencher
LEG 230
Assignment5
12
detailed, yet informal, gang injunction removal process where each gang member
served with an injunction can confidentially file a removal petition with the City
Attorney’s office. The petition must contain adequate evidence of gang disassociation
and receive an in-depth review by senior City Attorney officials. Upon recommendation
by the City Attorney, gang members may be removed by the presiding court. LA City
Attorney’s Gang Injunction Program Guidelines supra at 14-19. A similar process
should be instituted by the City of Columbia if it creates a gang injunction program.
Recognizing the growing threat of criminal gangs in the state, the South Carolina
General Assembly enacted an act titled the South Carolina Criminal Gang Prevention
Act in June 2007. The Act’s introduction section states “The State of South Carolina is
facing a mounting crisis caused by criminal gangs whose members threaten and
terrorize peaceful citizens and commit a multitude of crimes. These criminal gang
activities, both individually and collectively, present a clear and present danger. The
State has a compelling interest in preventing criminal gang activity, and the General
Assembly finds that the provisions of this act are necessary to maintain the public order
and safety.” S.C. Code Ann. § 16-8-210 Section I (2).
The South Carolina Criminal Gang Prevention Act was reviewed to determine how the
Act compares with other state statutes governing gang prevention and whether the Act
contains provisions that raise potential constitution rights issues.
South Carolina is among fourteen states that have statutes that define a “gang member”
(See Brief Review of Federal and State Definitions of the Terms “Gang,” “Gang Crime,”
and “Gang Member” (as of December 2012) at
http://www.nationalgangcenter.gov/content/documents/definitions.pdf). A review of
twelve of the fourteen state statutes (NH, SD, AZ, IL, FL, MS, ID, KS, MI, TN, WA, and
WI ) was conducted for comparison with South Carolina’s statute. South Carolina’s
Criminal Gang Prevention Act contains many provisions similar to those contained in
the other state statutes with two noted exceptions. Most of the states provide a more
detailed definition of a “criminal gang member”. Even Arizona’s statutes, which do not
have a specific gang prevention law, contain a detailed definition of a gang member.
Most of the state statutes reviewed contain specific criteria for defining a gang member.
See previous discussion of Florida’s gang statute. South Carolina’s definition of “who is
an active member of a criminal gang” in unacceptably vague. Legal commentators
recommend the use of specific criteria in defining gang members to avoid the
misidentification and erroneous arrest of individuals suspected of gang activity by law
enforcement officials. Also, South Carolina appeared to be the only state that
categorized the crime of gang membership coercion as a misdemeanor (for first
offense). All the other states categorized the same crime as a felony.
In a 2005 article for the South Carolina Law Review, Jay T. Thompson presented text
for a proposed South Carolina Gang Prevention Act using language from the California
Street Terrorism Enforcement and Protection Act (STEP) which is considered the most
effective (and most legally scrutinized) gang prevention/control statute in the nation.

13. RichardProvencher
LEG 230
Assignment5
13
Some portions of the proposed Act presented in the 2005 article were incorporated into
the final Act enacted by the legislature in 2007. However, several key provisions
addressed in the STEP Act were not incorporated into the South Carolina Act. The
current South Carolina Act omits a specific criteria based definition of a gang member
(discussed previously); punishment enhancements for certain types of gang activities
and the locations where they occur; prohibition of gang recruitment and criminal gang
participation; permitting the use of expert testimony to show that gang activities are
committed for benefit and promotion of the gang; prohibition of graffiti; and identifying
the use of private buildings or places used by gangs to engage in criminal activity as
public nuisances. The amendment of the South Carolina Act to incorporate these
missing provisions would strengthen the effectiveness of criminal gang
prevention/control programs (such as civil gang injunctions) in our state and ensure
such programs can withstand constitutional law tests.
As the South Carolina Gang Prevention Act (and its counterpart in other states) does
not specifically address the use of civil gang injunctions as a means of criminal gang
control it authorizes cities and counties to adopt and enforce their own ordinances in
managing criminal gangs and their activities (S.C. Code Ann. § 16-8-310). The City of
Columbia can use the provisions of Chapter 14, Article IV – Offenses Against the Public
Peace and Order of its Code of Ordinances to employ nuisance abatement as a civil
gang injunction strategy. Columbia, S.C., Code of Ordinances ch. 14, art. IV (2013)
Conclusion
City officials must be careful that in their desire to curb gang activity they adhere to
constitutionally permissable standards in enforcing injunctions.
Table of Authorities

14. RichardProvencher
LEG 230
Assignment5
14
Statutes/Ordinances
S.C. Code Ann. § 16-8-210 to 340 (2012)
Fla. Stat. Ann. § 874.03 (2012)
Columbia, S.C., Code of Ordinances ch. 14, art. IV (2013)
Case Law
City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849 (1999)
Gallo v. Acuna, 14 Cal.4th 1090, 929 P.2d 596 (1997)
In re Englebrecht, 67 Cal.App.4th 486, 79 Cal.Rptr.2d 89
Madsen v. Women’s Health Ctr, Inc., 512 U.S. 753 (1994)
Matthews v. Eldridge, 424 U.S. 319 (1976)
Mullane v. Central Hanover Bank & Trust Co, 39 U.S. 306 (1950)
People v. Acuna, 182 Cal.App.4th 866, 106 Cal.Rptr.3d 560 (2010)
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984),
Journals
Matthew O'Deane, Evaluation of the Effectiveness of Gang Injunctions in California, The
Journal of Criminal Justice Research (JCJR), March 2011
Law Reviews
Scott E. Atkinson, The Outer Limits of Gang Injunctions, 59 Vand. L. Rev. 1693-1733
(2006)
Lindsay Crawford, No Way Out: An Analysis of Exit Processes for Gang Injunctions, 97
Cal. L. Rev. 161-193 (2009)
James Leito, Taking The Fight on Crime from the Streets to the Courts: Texas’s Use of
Civil Injunctions to Curbe Gang Activity, 40 Tex. Tech L. Rev. 1039-1088 (2008)
Ryan Young, Sharpen the Blade: Void for Vagueness and Service of Process Concerns
in Civil Gang Injunctions, 40 McGeorge L. Rev. 1001-1037 (2009)
Jay T. Thompson, South Carolina or South Central? Proposing Comprehensive
Criminal Gang Prevention Legislation for the Palmetto State 56 S.C. L. Rev. 735-
752 (2005)
Cathy Wang, Gang Injunctions Under Heat from Equal Protection Selective
Enforcement as a Way to Defeat Discrimination, 35 Hastings Const. L.Q. 287 (2008)
Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public
Nuisances, 89 Nw. U. L. Rev 212-267 (1994)
Other References

15. RichardProvencher
LEG 230
Assignment5
15
Los Angeles City Attorney’s Office Criminal and Special Litigation Branch Gang
Injunction Program Guidelines, Office of the City Attorney, City of Los Angeles
(2009)
Brief Review of Federal and State Definitions of the Terms “Gang,” “Gang Crime,” and
“Gang Member” (as of December 2012) at
http://www.nationalgangcenter.gov/content/documents/definitions.pdf
Gang Prevention Study Committee Initial Report (2008)
http://www.statelibrary.sc.gov/scedocs/A3G154/000806.pdf
Wang-Once the prosecution makes a successfulshowing that the gang's activity constitutes a public nuisance, Civil
Code section 3494 authorizes “any public body or officer” to abate the nuisance. [FN23] Civil Code section
3491 defines the statutory remedies for a public nuisance in California as indictment or information, civil action,
or abatement. [FN24] Based on this section,courts impose the injunction. [FN25] If a defendant violates the
injunction,
the prosecution can file criminal misdemeanor charges under Penal Code section 372. [FN26] Penal
Code section 372 states that any person who maintains or commits any public nuisance is guilty of a misdemeanor.
[FN27] Each violation is a separate offense, and may provide strong evidence that he is creating a public
nuisance.[FN28] Rather than bring a misdemeanor charge under section 372, the prosecution will more than
likely prosecute the defendant for contempt of court. [FN29] Hence, criminal consequences are a great possibility
for any named defendant on the losing side of a gang injunction case
The prosecuting agency typically alleges in the complaint that the gang and its members have occupied
and used a certain target area in a manner that constitutes a public nuisance under Civil Code sections
3479 and 3480. [FN18] Section 3479 defines a nuisance as: