Sunday, August 2, 2009

First Amendment rights and criminal defendant

I was appointed to handle several cases involving charges of alleged violation of a court order. In these cases the superior court issued a permanent injunction against a specific gang and its members, ordering it to refrain from certain activities within a specific circumscribed zone in Los Angeles. Under the umbrella of abating a public nuisance-- gang's activities constituting a substantial nuisance to the public [sic utere tuo ut alienum non laedes: one must so use his rights as not to infringe on the rights of others]-- the court ordered among other things the following:

1. Defendant [name of the gang], its members, agents, servants, employees, and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any of them, are enjoined and restrained from engaging in or performing directly or indirectly, any of the following activities in the
Safety Zone:
a. Do Not Associate: Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or any place accessible to the public, with any known member of the gang, but not including: 1) when all individuals are inside a school attending class or on school business, 2) when all individuals are inside a church, and 3) when all individuals are inside a vehicle in transit on the 10 Freeway; provided however that this prohibition against associating shall apply to all claims of travel to or from any of those locations.

Most of my clients charged with violation of this court order were arrested for this provision, allegedly walking in the Safety Zone with allegedly known gang members. Moreover, they were also served with this injunction at some point in time in the streets as part of the enforcement of this order.

Immediate questions that arise for the concerned are the following: 1) whether this injunction on its face is constitutional and 2) whether as it is applied to my clients on the facts of each case is constitutional.

1) Is this a facially constitutional order?
The California Supreme Court has held in People v. Acuna, et al. (1997) 14 Cal.4th 1090 with respect to another similar gang injunction that a) gang activity constitutes a public nuisance as it is defined by legislature b) gang conduct is not protected by the First Amendment c) overbreadth and vagueness challenges are determined in the context of the prohibited activity.

A very badly written case with poor reasoning. The entire case is driven by the evidence of what are the horrors of gang activity in a neighborhood. As a general proposition most would agree that criminal activity in gross violation of other people's human rights is not protected by the First Amendment. But that is a serious generality. The more important and thoughful task is to look at the order on its face and ask, 'Does this order hypothetically infringe upon someone's Constitutional rights?' Sure it does. It is overbroad because it may be applied to those who are not engaged in gang activity and it may infringe upon someone's right to peaceful assembly and freedom of speech. Remember, the First Amendment protects not only speech/words, but also expressive and associational activity. It is also vague because an individual would have to take Herculean efforts to decipher what is allowed and what is prohibited. Where is the Safety Zone? How knowledge of gang membership is imputed to an individual? Walking in the neighborhood where one lives entails associating with neighbors, saying hello and gathering for an evening retreat and passtime.

An important problem with this decision is the following. Basically it implies that a criminal defendant should not be protected by the First Amendment. If gang activity is a criminal offense then gang membership does not and should not receive First Amendment protection. But that goes against the very fundamentals of our U.S. Constitution. The accused enjoys all of the rights that others enjoy, because 1) he is innocent until proven guilty, 2) often a crime in the eyes of the legislature is civil disobedience in the eyes of another. That is the reason that enemy combatants at Guantanamo should have had the protection of the First Amendment. Unless speech gets to the level of fighting words or incites imminent lawless action by its very utterance, it is protected by the First Amendment. Even there the jurisprudence should be revisited.

In this case, a blanket statement that gangs do not get the protections of the First Amendment is so much against the substance of the U.S. Constitution that it really horrifies one. Someone who is in a gang does not have the right to peacefully assemble with his neighbors for expressive activity? That is basically what the case does. Upholding the constitutionality of this injunction has that effect. Obviously, a gang member robbing, burglarizing, murdering or selling drugs is not involved in protected First Amendment activity. But this injunction has a different goal. It is preventative and goes out of its way to enjoin any sort of activity by known gang members. But in that effort, it infringes upon serious constitutionally-protected activity, not only of known gang members but also of others who are not in this gang.

2) Related question is whether it is unconstitutional as applied to my clients. Answering the first question above helps to answer the second. But it is important to note the dangers of injunctions. As it was noted in Madsen v. Women's Health Center, 512 U.S. 753 by the U.S. Supreme Court:
"Injunctions... are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances."

In that case, the Court used intermediate level of scrutiny to uphold parts and strike some parts of an injunction prohibiting activity of anti-abortion protesters around an abortion clinic. The Court said that using the lower level of scrutiny (time,place,manner regulations to be narrowly tailored to serve a significant governmental interest) was not going to be appropriate for an injunction in light of the constituent dangers. The court instead said, "when evaluating a content-neutral injunction, we think that our standard time, place, manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." 512 U.S. 753.

But this was a case where under constitutional analysis it was admitted that 1) the government was regulating not the content of the speech but conduct 2) as a result of regulation of conduct protected speech was also curcimscribed. The threshold question is always whether the activity is protected by the First Amendment. In the Madsen it was.

In Acuna, the California Supreme Court has decided that gang association in public has no protected First Amendment ingredients in the first place. That is the fundamental problem that I see with these injunctions and how they are applied. Depriving the gang member of the First Amendment protection without a specific case-by-case analysis is simply unacceptable to me. What if the gang member is gathering with his associates and says 'Fuck the police', 'let us burn the flag', 'let us go to the City Hall and sit on the stairs' etc. etc. etc. What if their activity falls short of any 'criminal' action against either the public or police. It is simply expressive in nature. That is definitely and absolutely protected by the First Amendment.

As far as the application to several of my clients: this injunction gives absolute discretion to the gang unit of the LAPD in deciding who is subject to it, who should be served with it, and who is in violation of it. My clients have been arrested for innocuous behavior that cannot even come close to criminal activity. For example, driving to El Polo Loco eat, or walking home with friends after a basketball game, or having a ride home with a friend.

The injunction permits the police to arrest anyone who is associating with known to police gang members. Its wording does not even contemplate any sort of criminal behavior.

My question is this: does the societal interest in abating gang activity/nuisance on balance warrant such flagrant violation of one's Constitutional liberties?! Isn't this a slippery slope leading us towards the 'police state' and diminution/dissolution of the U.S. Constitution to prerogatives of the law enforcement?!

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