Sometime in June of this year, the County Attorney, Jose Rodriguez, will receive a much deserved award for his support for civil liberties and civil rights, at a dinner and roast, in his honor, sponsored by the Texas Civil Rights Project. By that time, the initial effect of the latest gang injunction, also the responsibility of Jose Rodriguez, will be realized in the form of arrests and pending convictions for the crime of ‘engaging in organized criminal activity’ by alleged members of the gang known as the ‘Bloods.’
The exact nature of the crimes can actually be reliably predicted well in advance of their commission. A general description of some of these crimes is listed as follows:
1. Associating, standing, sitting, walking, driving, bicycling, gathering or appearing anywhere in public view with any other Defendant herein or with any other individual who the Defendant knows is a member of the Bloods’ Gang
2. Using a cell phone or pager
3. Violation of curfew (by an adult)
4. Possession of a screw driver (by an adult)
5. Possession of alcohol (by an adult)
6. Possession of indelible marker pens or cans of aerosol spray paint
7. Harboring, concealing or warning another in order to evade a law enforcement officer
8. Signaling to, or acting as a lookout for other persons to warn of the approach of police officers, and/or encouraging others to do the same
9. Making, causing, or encouraging others to make unreasonable or unnecessary loud noise of any kind, including, but not limited to yelling, whistling, and loud music at any time of the day or night
In fairness to the authors of the gang injunction as well as citizens threatened by the specter of having the ‘Bloods’ reside in their neighborhood, more ominous and egregious activities are also prohibited by the gang injunction. A general description of some of these crimes is listed as follows:
1. Discharging a firearm on or across a public roadway
2. Possessing a firearm or other deadly weapon in a public place
3. Abusing or threatening a person in a public place in an offensive manner
4. Causing or participating in the use, possession and, or sale of illegal drugs
5. In any manner, confronting, intimidating, harassing, threatening, challenging, provoking, assaulting and/or battering (a) any resident(s) or student(s) or visitor(s) to the ZONE (Devils’ Triangle), (b) any person who is known to Defendants to have complained about gang activities, or (c) any person in an attempt to prevent future complaints, including complaints to law enforcement officers
As regards the latter descriptions of activities, prohibited by the pending gang injunction, all are examples of enumerated crimes for which an appropriate remedy already exists to defend any victim of the action, and, therefore, there is no need to impose a ‘gang injunction’ as a means of enforcement. Of course, the prosecuting party has the burden of proof, and that can be frustrating.
As regards the prior descriptions of activities prohibited by the pending gang injunction, all are examples of lawful activities, that, when prohibited by conventional means, are normally in the form of admonitions describing conditions of parole or probation, as in not possessing alcohol, or in not consorting with undesirables. However, all other examples of lawful activities described are hardly ever prohibited as conditions of ones’ parole or probation.
Herein lies the problematic ‘line drawn in the sand.’
The likely actions triggering arrest for violating the gang injunction are overwhelming those of the first category, simply because their legality would not normally accompany any attempts to conceal the acts. Of relevance here are a couple of quotes from the County Attorney, Jose Rodriquez, and Police Chief, Greg Allen, as reported by a Houston Chronicle article.
As follows from Jose Rodriquez:
“This (gang injunction) prohibits them from riding together in a vehicle. And it covers them throughout the county. Anywhere they gather, they will be violating the court order, and we will be able to arrest them on the spot if they are seen. You do not have the right to meet to plan criminal activities”
As follows from Greg Allen:
“Many times police are reactive. Now we can be proactive. We no longer have to catch them in the act to question them.”
The right to assemble can be prohibited during a persons’ community supervision – in the form of parole or probation. The act of ‘consorting with undesirables’, which refers to associating with other probationers or parolees, can result in revocation of community supervision, and, in turn, result in incarceration for the original prison term. And often the prohibition of alcohol is a condition of parole or probation. What we are seeing here is the imposition of conditions of parole and probation absent the rendering of a conviction.
The mechanism of control starts with a hearing petitioning the court for a ‘temporary restraining order.’ Since this is a civil rather than criminal procedure, no guarantee is available that insures the defendants, named in the petition, will have the advice and defense of counsel, while being indigent. In a normal petition seeking a restraining order, the defendant must be properly served with a summons, before any hearing, on the merits, of the petition occurs. Rarely in criminal or civil matters, is this an automatic procedure. It is frequently the case that a process server, Constable or Sheriff’s deputy will make more than one trip to a residence to properly serve a defendant. The question here is, are the alleged gang members likely to receive proper service? With no counsel available to raise the issue, during the hearing, the likely answer is no.
A more basic question is, ‘By what criteria are persons identified as gang members?’ One criteria used in a prior gang injunction upon the ‘Barrio Aztecas’ was that of self admission. This method must raise the question, ‘Can a policeman be relied on to be truthful when the reality is that the allegation of membership is the policeman’s word against the defendant’s?’ Why would the gang member admit membership? While there may be many nefarious reasons to conceal membership, depending on circumstances, any person, accused, convicted or completely innocent has the right to remain silent.
Furthermore, is the suspect here being detained in custody while being asked about gang membership?
If so, then the policeman must give a ‘Miranda warning’. This is especially true when the policeman realizes that such an admission will be used against the detained in a court of law. I can only say, having witnessed the initial hearing on a petition for a temporary injunction against the ‘Barrio Aztecas’, that no such ‘Miranda warning’ issue was raised during the testimony, at that hearing. The reason why was obvious. The accused defendants had no benefit of counsel, while being indigent, because the proceeding was civil in nature and not criminal. Very clever, but is it right?
Getting back to the quote by Jose Rodriguez, “You do not have the right to meet to plan criminal activities.” While I am not a lawyer, I must assert, nonetheless, that this statement is not true. Keep in mind what we are talking about here – thought. The Supreme Court, over time, has generally held that advocating violence or any other crime absent the immediate or perceptual means to carry out the act is protected speech. Admittedly, this has not always been the case. In 1925, the Supreme Court upheld a New York law that made advocating the use of force in overthrowing a government a crime. The crime was known as ‘criminal anarchy’, and the case was known as ‘Gitlow versus New York’.
What Benjamin Gitlow said addressing a gathering of socialists was, “We need to overthrow the powers that be by whatever means necessary”. The Supreme Court by a 7 to 2 margin upheld the New York law and his conviction for ‘criminal anarchy’. The two dissenting votes were those of Oliver Wendell Holmes and Louis Brandeis. Both generally held that the statement was made in the absence of any mechanism to carry out the act and, therefore, should not be considered a threat.
Some forty years later, in 1965, William Epton, addressing an angry gathering in Harlem, made the following statement: “We need our own country, and we may have to kill a few judges and policeman along the way”. This is certainly more inflammatory a statement than that made by Benjamin Gitlow, but nonetheless, Mr. Eptons’ conviction for criminal anarchy was overturned by the New York State Supreme Court. This case was not reviewed by the U.S. Supreme Court, as far as my research can determine. This is likely because Mr. Epton was convicted of conspiracy along with some other counts, resulting from this event.
The reasons for the evolution of free speech have a very deep, core meaning in the United States. Advocating the use of force, to change government, was indeed the toast of the town during Americas’ colonial days. And, unlike many examples of wayward speech, the colonies had the physical mechanism to make good on what could be called a threat.
There is certainly a threat perceived by the mere existence of the Bloods. We have all been entertained or titillated by the lurid tales of violence emanating from the ‘hoods’ of Los Angeles. However, the first amendment problem here is actually the opposite of what is described in the case law of political speech. What is being prohibited by the granting of the gang injunction is the mere observed gathering of gang members. There is no burden on the part of the Police to show, in any way, that a discussion, involving the commission of a crime, is actually taking place, when members are seen gathering. It is the mere association that becomes the crime. Again, the key mechanism is in the prohibiting of the act, by enjoining it. After the injunction, performing a constitutionally protected activity such as associating, using a cell phone, or private consumption of alcohol now becomes grounds for an arrest.
Perhaps, the best question to pose is, Who can’t be identified as a gang member? Returning again to the quote by Jose Rodriquez, the following statement raises some concerns:
“This (gang injunction) prohibits them from riding together in a vehicle. And it covers them throughout the county. Anywhere they gather, they will be violating the court order, and we will be able to arrest them on the spot if they are seen.”
The statement claims that the gang injunction will have the power to banish one from the entire County of El Paso. This constitutes the prohibited practice of ‘outlawry’ forbidden by the Texas Constitution, Article 1 Section 20.
For a ‘motion to quash’ a gang injunction, making additional arguments, click here.
What assurances are there, within this policy, that prevent mistaken identification? How likely is it that a black person wearing a bandana and sporting some tattoos riding in a car with similarly clad individuals will be pulled over? I think the likelihood is great. Is it considered something of a consolation that the main enforcement officer of this policy, the Police Chief, is himself black? Keep in mind the following quote from Chief Allen:
“Many times police are reactive. Now we can be proactive. We no longer have to catch them in the act to question them.”
What this means is that the police can now arrest people in the absence of a crime. One, as a general definition, in responding to a reported crime, can only react. What is entailed in the definition of ‘probable cause’ if not that a crime must be committed first in order to then ascertain who probably caused it? In the absence of that condition, the police while being ‘proactive’ can identify a suspect without the commission of a crime. Instead of asking, Who can’t be identified as a gang member?, the question should be, Who can’t be identified as a suspect? Add in the so-called science of profiling, and a government could develop a list of suspects ready to be matched to non-existent crimes.
The only exception, prior to the experiment of the ‘gang injunction’, of an investigatory stop made in the absence of probable cause is what is known as a ‘Terry stop’ or a ‘Terry search’. Named for the case that was argued before the Supreme Court, ‘Terry versus Ohio’, it involves the authority of a policeman to externally pat down an individual that the policeman believes is acting suspiciously. In such a situation, no crime has been committed, prior to the stop of the subject. The reasonableness of such a search is based on its’ limited detention and limited scope, in the form of an external pat down, and that the search is for weapons only.
There is some hope for those that can see through the scheme of gang injunctions. The following statements are made by a judge reviewing a similar petition in New York City seeking an injunction against the ‘Bloods’ of Queens:
“I emphatically reject the notion that this court may serve as an ad hoc alternative to the Criminal Court.” … “The City seeks here to use the court's civil equity powers to enforce the criminal law. This is not permissible.” …“ That a court of equity will not undertake the enforcement of the criminal law, and will not enjoin the commission of a crime, is a principle of equity jurisprudence that is settled beyond any question.”
For the complete ruling, click here.
Additionally, there is an inspiring quote from a dissenting opinion regarding the case known as Gallo v Acuna. This was a California State Supreme Court case which decided narrowly (4 to 3) to uphold a ‘gang injunction’. As follows from Supreme Court Justice Stanley Mosk:
“The majority [opinion] would permit our cities to close off entire neighborhoods to Latino youths who have done nothing more than dress in blue or black clothing or associate with others who do so; they would authorize criminal penalties for ordinary, nondisruptive acts of walking or driving through a residential neighborhood with a relative or friend. In my view, such a blunderbuss approach amounts to both bad law and bad policy. Chief Justice Warren warned in Jay v. Boyd, “Unfortunately, there are some who think that the way to save freedom in this country is to adopt the techniques of tyranny.” The majority here appear to embrace that misguided belief.
No doubt Montesquieu, Locke and Madison will turn over in their graves when they learn that they are cited in an opinion that does not enhance liberty but that deprives a number of simple rights to Latino youth who have not been convicted of a crime.”
Above and beyond all the case law, there is a human face to the enforcement of the ‘gang injunction’. During Carl Starr’s tenure as legal panel chair for the local ACLU chapter, several years ago, he interviewed an alleged ‘Barrio Azteca’ gang member, seated in the ‘jail court’. The first words out of this person’s mouth were, “I ain’t no gang member”. For obvious reasons, I can’t identify this person, and for equally obvious reasons, the reader can choose to not believe the event took place.
The person in question was a thin, defeated, ashen young man, 19 years of age with some tattoos, and, as we found out later, some juvenile criminal history. He had just served six months in the county jail for a curfew violation. He claims he was arrested at 9:45 p.m, fifteen minutes before the 10 p.m. curfew started.
In the final analysis, he obviously had to be lying. Anybody who spent that long in jail must have deserved it. After all, we all know that El Paso is one of the safest cities in the country, and our policemen never tell lies.
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Corda Shonerd has been active in the El Paso ACLU.
