The Strong Arm of the Law
It is almost 10 p.m. in south Phoenix, and a police gang squad unit spots three black teenagers standing on a street corner. The officers recognize one of the youngsters, a lanky kid wearing several gold chains over his blue Dallas Cowboys jersey.
"He's a banger," one cop says. "Let's go have a chat."
His partner blasts a bright light on the trio, and pulls his cruiser within feet of the boys.
"You guys stay right there," he announces over the metallic speakers.
The youngsters obey.
The officers -- who are both in their late 20s -- step out of their car.
"What are y'all up to?" one of them asks, almost casually.
"Nothin'," the three boys say in unison.
He directs a comment to the gang member, 17-year-old Thomas.
"I haven't seen you out in a while, guy. You keeping your nose clean?"
"I ain't been doin' nothin'," Thomas says. "Why you keep hasslin' us?"
"Hasslin' you?" the cop replies, a bit of whimsy in his tone. "We're just doing our jobs. What business could you guys possibly have out here at this hour? You should be home and tucked into bed."
Thomas shakes his head and smirks, as if he's heard this all before.
He has. Thomas is a school dropout whose juvenile record consists of petty crimes and one bust for possessing marijuana -- nothing violent, so far. He's also an admitted member of the Broadway Gangsters. Months earlier, the cops had added Thomas' snapshot to their collection of known gangbangers.
One of the officers asks his computer if any of the boys are on probation, or are wanted on warrants. They're not.
"You and him run in the same gang?" he asks one of the youngsters, gesturing at Thomas.
"No," the 16-year-old says. "I'm not in no gang."
"You mind if we take your pictures?" the cop says to Thomas' buddies.
The pair shrug, but say nothing.
"You got something to hide?" the officer continues.
The boys finally agree to be photographed, one by one. A few minutes later, the officers tell the boys to go home. The three walk off into the night. Later, the policemen describe how gangs have tormented this working-class neighborhood for years.
"This is a real target area for us," one of the officers says, as they resume their patrol. "One of our big goals is to make it so the people who live here won't be scared of walking around their own streets."
In Arizona, police consider someone a member of a gang if he exhibits one of the following seven criteria: self-proclamation; witness testimony or official statement; written or electronic correspondence; paraphernalia or photography; tattoos; clothing or colors; any indicia of street-gang membership.
With debatable levels of success, authorities here and nationally have been trying to go beyond police gang-squad tactics to make neighborhoods safe.
Around the nation, especially in Southern California, police use court-issued "civil injunctions" to force gangbangers off the streets -- or, at least, to keep them from fraternizing on those streets.
If you're a gang member named in an injunction, or you even associate with gang members in a certain neighborhood -- authorities can tell you where, when, how, and with whom you may associate publicly.
Last weekend, local authorities for the first time incorporated civil injunctions into their anti-gang strategy.
Phoenix police served notice to 13 members of the Los Cuatro Milpas (LCM) gang. A 14th LCM member named is already behind bars. City prosecutors will ask a Superior Court judge to bar the LCM members from "standing, sitting, walking, driving, gathering or appearing anywhere in public view" (in a specified "Target Area") with any other LCM member.
The area borders Seventh and 16th streets, I-17 and Buckeye Road.
". . . The actions of LCM have persisted for years unabated and show no signs of ceasing," assistant city attorney Christina Koehn wrote in her application for the injunction to Maricopa County Superior Court.
"The neighborhood has been robbed of its pride and suffers continuing devastation and deterioration. More fundamentally, an injunction is necessary because of the physical threat LCM poses to residents and visitors of the target area. Tension, fear and intimidation torment the residents every minute of every day."
The requested injunction (an October 20 hearing has been scheduled) also includes several specific restrictions.
The 13 LCM members won't be allowed to carry Magic Markers or spray paint cans -- graffiti mar the neighborhood said to be "controlled" by the gang. The injunction would enjoin them from "signaling, whistling, using a walkie-talkie, pager, beeper, or cellular telephone, or otherwise acting as a lookout for another person known to be engaged in a criminal activity in order to warn such person of the approach of a law enforcement officer. . . ."
Anyone convicted of violating the injunction faces up to six months in jail and a $2,000 fine.
The civil injunction is a controversial law-enforcement technique.
Naysayers contend the anti-gang injunctions allow prosecutors to trample on the constitutional rights of citizens by allowing the police to ignore basic due-process procedures.
Others say that, constitutional or not, the injunctions are ineffective. They argue that some studies suggest that the injunctions are counterproductive.
But prosecutors, especially in Los Angeles County, have embraced the concept of anti-gang injunctions. The L.A. County District Attorney's Office operates a unit called SAGE (Strategy Against Gang Environment), whose aim is "taking back Los Angeles' streets from gangs and the accompanying problems of drugs and violence. Key to SAGE's success are civil injunctions, which drastically reduce drug dealing, violence, graffiti and loitering."
Another plus for prosecutors is that in civil cases, their burden of proof -- a preponderance of evidence -- isn't as steep as the "reasonable doubt" burden in the criminal arena. Finally, the process is quicker, without delays that mar so many criminal cases.
But using injunctions against a certain group raises many questions, including: In a legal sense, what matters more -- someone's right to associate with whomever he or she wants, or the right to feel safe in your own neighborhood?
The issue came to the forefront last spring, when the U.S. Supreme Court ruled by a 6-3 vote that a Chicago anti-gang ordinance was illegal. Passed in 1992, the ordinance had authorized police to disperse a group of two or more people "loitering with no apparent purpose" in a public place if the officer "reasonably believes" at least one loiterer was a gang member.
Police didn't have to prove their targets ever had been convicted of a crime, had committed any kind of crime or were planning to break the law.
If the suspected gangbangers didn't leave the area as ordered, police then could arrest them -- and did. Chicago cops arrested 43,000 people before defense attorneys in 1995 challenged the ordinance's constitutionality.
"It matters not," Justice John Paul Stevens wrote in his majority opinion, "whether the reason that a gang member and his father, for example, might loiter near Wrigley Field was to rob an unsuspecting fan, or just to get a glimpse of Sammy Sosa leaving the ballpark. If their purpose is not apparent to a nearby police officer, she may -- indeed she 'shall' -- order them to disperse."
Justice Antonin Scalia countered in his dissent, "I would trade my right to loiter any day in exchange for the liberation of my neighborhood."
Undaunted by the high court's recent ruling, authorities in Southern California continue to use injunctions in their anti-gang strategies. Prosecutors there express confidence that those injunctions will continue to pass legal muster.
One reason, says City of Phoenix attorney Phil Haggerty, is that -- unlike the sweeping Chicago ordinance -- the California injunctions are narrowly tailored toward specific gangs and individuals.
"California is our guideline," Haggerty says. "They use fairly small geographic areas that are more reasonably enforceable, and both of those elements are helping an injunction pass legal muster. The California Supreme Court said their test case was okay, and that gives us some degree of comfort."
Haggerty is referring to the 1997 case of Gallo v. Acuna, in which the California high court voted 3-2 to uphold an injunction in the San Jose neighborhood -- an "urban war zone," the government called it -- of Rocksprings.
"The state has not only a right to 'maintain a decent society,' but an obligation to do so," the majority opinion in the Gallo case said in part. "In the public nuisance context, the community's right to security and protection must be reconciled with the individual's right to expressive and associative freedom. Reconciliation begins with the acknowledgement that the interests of the community are not invariably less important than the freedom of individuals."
But others say the public nuisance laws and the injunctions that spring from them are too broad. In effect, legal scholars have noted, the injunctions unfairly create personal criminal codes for those targeted.
If a gangbanger commits a crime, go ahead and bust him, some legal scholars have argued. But if law enforcers want to argue that pre-emptive injunctions actually put a dent in the gangs' stranglehold on certain neighborhoods, think again.
Surprisingly, the Pasadena, California, police chief agreed with just that analysis after assuming the helm in 1997. He said his city's anti-gang civil injunctions had failed, calling them "an intellectual substitute for responsible public policy."
University of Southern California professor Cheryl Maxson -- who completed a study in 1995 about an anti-gang civil injunction in the Inglewood area of Los Angeles -- says, "There is no credible evidence of the success of this strategy to date."
Maxson says crime actually increased in the target neighborhood she studied after the injunction took hold. Other studies suggest that an anti-gang injunction covering one area may cause crime rates to rise in adjoining neighborhoods (after the gangs move operations).
In May 1997, the American Civil Liberties Union of Southern California issued a 48-page report on another Los Angeles-area anti-gang injunction. Titled "False Premise, False Promise -- The Blythe Street Gang Injunction and Its Aftermath," it concluded that crime rates, police calls for service and felony arrests actually had increased over a four-year period.
In a letter at that time to District Attorney Gil Garcetti and City Attorney James Hahn, ACLU of Southern California executive director Ramona Ripston noted:
"Not only did the injunction not lead to a reduction in violent crime and drug trafficking . . . but crime increased enormously in the LAPD report district for that area. In our experience and we're sure in yours, it's not uncommon for tactics that are conceived with the best and most noble intentions to prove to have effects that are diametrically opposite of what was intended. We believe that is what has happened here."
However, the ACLU's study did nothing to sour authorities on injunctions.
Like most other states, Arizona has enacted laws aimed at criminal street gangs that enhance sentences for gang-related felonies. Other laws allow for forfeiture of gang assets under the racketeering statutes.
But Arizona's anti-gang laws are broader than most. The laws make it unlawful to lead, participate in or assist a "criminal syndicate," which is defined, put simply, as a group of people who get together to break the law.
Under Arizona law, a criminal street gang "means an ongoing formal or informal association of persons whose members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act, and who has at least one individual who is a criminal street gang member." (Emphasis added.)
That sounds as if Arizona recognizes the possibility of a one-person gang. Not so, says Jim Rizer, chief of the Maricopa County Attorney's gang/repeater offender unit:
"I think that the 'at least one person' must be a criminal street gang member was put there to eliminate some other social groups that get together legally -- for instance, the Elks. Early on, the defense counsel would ask us, 'How do you differentiate a street gang from the Boy Scouts or the Girl Scouts?' Well, for starters, we have something called a criminal element. . . ."
What effect the proposed Phoenix injunction will have on LCM is uncertain, even to city officials.
"The key is whether the people in the neighborhood will support it," says Phoenix's Phil Haggerty.
"We have had people tell us that they will come through and report things to the police. If they come through on the witness stand, then we'll have a good case. If this works -- and it will take a while before something like this can bear results -- we'll certainly go after other gangs in other areas. But that's up to the police to tell us. The police think this injunction is a worthwhile thing to try, and they are the best judges of that."
Haggerty says there's no doubt that the men listed in the injunction papers are full-fledged LCM members:
"All of them have admitted to the police on at least one occasion that they are members of the gang. They've described to the police when they got 'jumped in' the gang -- that means to become a member. We have photographs of most of them flashing their gang signs. They are identified beyond any reasonable question at all. The real crux of the injunction is the prohibition of association of those people. Now, it will be up to the neighborhood to tell the police if violations are occurring, and to go from there."
ASU law professor Gary Lowenthal says the Maricopa County Attorney's Office has steered away from anti-gang injunctions -- and with good reason.
"They will get a gang member on any felony they can -- riding around in a stolen car and so forth," says Lowenthal. "Once they do, they put gang terms on the probation sentence, and those terms include everything you can possibly pack into an injunction.
"If someone violates [the terms], you're not talking about a slap on the wrist where you get thrown in jail for a few days. Probation violations usually land an offender in prison. It's a much more effective law enforcement tool, without a question of its constitutionality."
Lowenthal says the recently overturned Chicago ordinance "gave police unlimited discretion to do just what the NAACP has been concerned about in south Phoenix. Basically, they see any two black people in the street, they can break them up. This really does deal with difficult constitutional problems. It sweeps up everyone who happens to live in an area and their ability to associate, even when there's no indication of criminal activity.
"But a lot of these neighborhoods are intimidated. The purpose of some Hispanic street gangs is basically to intimidate everyone in the neighborhood. Some people don't have any choice where they live, and they don't feel safe to go outside because of the thugs who are hanging around."
One of Lowenthal's law students wrote a paper last year about anti-gang civil injunctions.
"The civil injunction is not a cure for the gang problem," Linnette Flanigan concluded. "It is not an effective tool to combat the gang problem. The civil injunction's sole purpose is to provide relief to a community under siege. Other remedies, especially social programs targeted at at-risk youth, need to be instituted to rid our streets of this gang violence.
"Unfortunately, in a society of quick fixes, i.e., microwave ovens, fast food, gas 'on the run' and ATM machines, to name a few, the American public is looking for a quick fix to gang violence."
See previous stories in the Hard Core series here.
Contact Paul Rubin at his online address: firstname.lastname@example.org
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