Alleged Gang Members Entitled to Due Process Protections, Ninth Circuit Rules

Alleged street gang members must be afforded hearings and other due process protections before their liberties are curtailed by civil injunctions, the U.S. Court of Appeals for the Ninth Circuit ruled on November 5, 2013.

This first-of-its-kind ruling was a win for Munger, Tolles & Olson attorneys who had represented a group of alleged gang members on a pro bono basis at the trial and appellate court level. The Ninth Circuit, in an opinion by Circuit Judge Marsha S. Berzon, affirmed a 2011 ruling by U.S. District Judge Valerie Baker Fairbank. In affirming, the appellate court held that the enforcement of a 2009 injunction against Munger Tolles’s clients violated their constitutional rights to procedural due process.

In conjunction with the American Civil Liberties Union of Southern California, a Munger Tolles team has worked on the case, Vasquez v. Rackauckas, since 2009. The team led an 11-day bench trial that challenged the enforcement of a civil gang injunction on procedural due process grounds. For work on the case, the ACLU awarded the firm its 2011 Courageous Advocacy Award.

In February 2009, law enforcement agencies sought a civil injunction against the Orange Varrio Cypress street gang and its more than 100 alleged members. After nearly 60 of the named individual defendants appeared, or tried to appear in court to contest the allegations against them, prosecutors voluntarily dismissed those individuals from the case without prejudice. The court then entered a default judgment and a permanent injunction against the gang, which was a named defendant and an alleged unincorporated association.

After securing the default judgment, the OCDA and OPD served the permanent injunction on those originally named individual defendants who had been dismissed from the case prior to judgment, claiming that those individuals were “agents” of the gang. The terms of the permanent injunction included significant restrictions on the individuals’ freedoms of speech and association.

In the action brought by Munger Tolles and the ACLU in federal court challenging the injunction, U.S. District Judge Baker Fairbank held that subjecting the individuals to the injunction constituted a violation of their procedural due process rights and required a pre-deprivation hearing before a neutral decision-maker.

The Munger Tolles team included Joseph J. Ybarra, Jacob S. Kreilkamp and Laura D. Smolowe.