Hearing date for North Oakland gang injunction proposal pushed back

The proposed Oakland gang injunction has, in recent weeks, been the focus of heated listserv debates, community meetings and a rally held Thursday afternoon in front of the Alameda County Superior Court.  The injunction, which aims to restrict certain behaviors of members of the North Side Oakland gang, has sparked considerable debate about the balance between crime prevention and individual rights. But supporters and detractors of the injunction will have to wait for a definitive pronouncement on its future.  Due to a procedural issue, a debate on the merits of proposed injunction, which was expected to be heard in front of a judge this Thursday, was postponed until May 27.

Filed by the Oakland City Attorney’s Office in February, the injunction targets 19 members of the North Side Oakland gang  in an attempt to restrict their abilities to commit criminal acts. The catalyst for an injunction was an unusual series of crimes that occurred on May 16, 2009, when four gang members allegedly assassinated Berkeley resident Charles Davis, and then during their getaway attempt also allegedly caused a car accident that killed two innocent bystanders, Todd Perea and Floyd Ross. The incident resulted in the arrest of four accused gang members on three counts of murder.

After over a year’s worth of surveillance, the Oakland Police Department gathered enough evidence to show the existence of the gang and to identify 19 specific members, though they suspect more. According to the Oakland Police Department, the NSO gang was responsible for 18 violent crimes, including 7 murders, in 2009.  If implemented, the injunction will prohibit gang activities in designated “Safety Zones,” which include roughly 100 blocks of North Oakland between the 1-580, the Emeryville and Berkeley borders, and Telegraph Avenue.

Historically, gang injunctions have been criticized for increased police violence and racial profiling in communities where they exist. In fact, previous attempts to establish a gang injunction in Oakland have been denied on the basis of unconstitutionality.

The procedural question posed at Thursday’s hearing by Judge Robert Freedman concerned the number of people named by the City Attorney’s Office that had been served with notice of the proposed injunction.  The defendant in the proposed order is the North Side Oakland gang, not its individual members.  The order named 19 designated gang members, but at this point, only eight of those named had been served with a notice.  After Judge Freedman raised questions about the notification procedure, Rocio Fierro, deputy city attorney and lead counsel for the city on this case, proposed the later hearing date.

“Based on some of the questions we were hearing, we wanted to make sure these issues of notice were resolved before we got into the merits of the case,” said Alex Katz, spokesman for the City Attorney’s Office. “We are not upset at all about continuing this hearing.  The court system moves slowly and we understand that.  And we are not frightened to have the opportunity to confront these guys in court.”

While the hearing itself stuck to matters of legal procedure, there was plenty of debate on the broader merit of the injunction outside the court building.  About 100 protestors carrying signs reading “Don’t legalize racial profiling” attended a rally organized by the group Stop the Injunction.

Doraius Lacy, a 17-year-old from East Oakland, said he came to protest what he considered an ineffective approach to fighting crime in Oakland. “This has divided Oakland because people are desperate for a solution to violence in their community,” Lacy said.  “But gang injunctions are not the answer.”  Instead, he wants to see the resources required for the gang injunction spent elsewhere.  “We could invest in community centers, in rehabilitation centers.  We could help communities rebuild themselves,” Lacy said.

Inside the courtroom, the mood was no less engaged.  The room was filled to capacity and, during one recess of the hearing, there was an animated, and at times heated, debate between injunction supporter Christopher Vernon and opponent Carol Strickman about whether the injunction was narrow enough in whom it would target. Vernon is a member of the Shattuck Neighborhood Crime Prevention Council; Strickman is a prisoners’ rights attorney.  “I don’t trust it not to get abusive to the community,” said Strickland, adding that she believed African-Americans in particular would be targeted.

“The African-American community is being abused by this violence,” Vernon responded.  “Come talk to my neighbors who are African-American.  They are totally behind it.”

The gang injunction has been provoking strong reaction on both sides since it was filed by the city attorney in February.  If enacted, the injunction will limit the presence of the gangs on the streets by setting a curfew between the hours of 10 pm and 5 am for the 19 people named in the injunction. If any of the 19 are caught engaging in prohibited activities like selling drugs or possessing firearms, they face six months in jail and a $1,000 fine.   Other activities that are punishable by jail time and fines include: violating curfews, intimidating or assaulting civilians, committing acts of graffiti, and associating with other gang members—a restriction intended to prevent large groups from loitering on the street. At the February press conference announcing the injunction, OPD Captain Anthony Toribio said, “We are convinced this will be effective in fighting gangs and ending a climate of fear and terror.”

But others in the community are not as convinced.  On Tuesday evening last week at the Bushrod Recreation Center, a property within the borders of the 100-block gang injunction, a dozen or so concerned community members gathered to create an action plan against the injunction.  “We know that gang injunctions don’t work. People in North Oakland, yes they are affected by violence. It’s real and we can’t deny that it’s happening, but the truth is our community knows how to respond to violence without policing. Gang injunctions are not effective,” said Stacie Szmonko, organizer for Critical Resistance and Plan for a Safer Oakland, a community safety group in North Oakland.

On April 8, the Northern California chapter of the American Civil Liberties Union, in conjunction with the Lawyers’ Committee, filed an amicus brief against the City of Oakland’s proposed gang injunction. “I don’t think the cops should just have a roving warrant and serve anybody they want. It will lead to serious problems with racial profiling and put an entire community under siege,” says Jory Steele, the managing attorney at the ACLU.

The amicus brief seeks to rectify what both the ACLU and the Lawyers Committee says are flaws in the injunction. Kendra Fox-Davis of the Lawyers’ Committee says both the physical area and the prohibitions laid out in the injunction are far too broad.  “The injunction would make everyday activities a crime in this huge 100 block area,” she says.

For example, Fox-Davis says, with a curfew, members on the list would have a difficult time working a job that could keep them out after 10 pm or going to the store at night to get medicine for a sick child. Members on the gang injunction list also cannot be seen in public together. “What about going to the grocery store or getting on the bus? Those are unintentional,” says Fox-Davis. “There are not enough exceptions to protect legal non-gang related activity.”

Steele agrees: “We think this goes much further than any injunction would need to, to fight gang violence.”

Another criticism is the lack of an opt-out program, or the ability to remove oneself from the injunction through education or employment. In the original announcement, City Attorney John Russo promised such a program would exist, but it does not at this time.

“People need to be able to get out from under it,” said Steele. “People should get their day in court and be heard. Our concern is that will not happen.”

Margaret White, the mother of an alleged member of the NSO gang who is currently in jail for his involvement in the May 16 incident, agrees that a lack of community programs for young men leads to trouble. “I didn’t raise a gang member,” says White.  “I felt badly for the two pedestrians that were killed, but this is not the life that I planned for him.”

“The opportunities are not there. Until we invest in these kids and try to help them get jobs and take care of themselves, what else are they going to do?” White continued. “We back these kids against the wall that they don’t know what else to do, they’re hopeless. We need a society where we can all prosper.”

Steele, of the ACLU, says that the city should invest in programs that provide part-time jobs, mentorship or after school activities for at risk youth. “That is a much better way to go about it,” she said.

Alex Katz, from the City Attorney’s Office, said he was not surprised by the pushback from groups like the ACLU. “We have a principled disagreement over injunctions as a tool.  They don’t like injunctions and we believe this is a tool we should use,” Katz said.  “Despite that, we’ve met with them a few times and we’ve been going back and forth on specific points.”

Katz does take issue, however, with how some community groups have portrayed the proposed injunction. “I think some of the organizers have given some bad information to people,” he said.  “This is the opposite of racial profiling.  This is not about what somebody looks like or what someone’s race is.  … It’s based on evidence of ongoing, continuous criminal conduct.  This actually is something that prevents racial profiling.”

To make the case for the injunction, Katz said his office has been meeting with neighborhood groups, students and teachers at high schools.  He said they’ll continue to do so between now and the May 27 hearing date, as well as tackling the procedural issue raised by Judge Freedman by serving notice to more of the 19 named individuals.

Margaret Crayton, who supports the injunction and lives blocks away from last year’s deadly accident site, said she hopes that she hopes those notifications will help pave the way for the injunction to be approved. “I know they’ve been working on it a long time,” Crayton said.  “I would hate to see them lose their case because of stupid procedural issues.”

Text by Melanie Mason and Allison Davis.

Lead image: Protestors gathered outside the Alameda County Superior Courthouse to voice opposition to the proposed injunction.