Judge listens to final arguments in Fruitvale gang injunction hearing

A hearing about whether to impose a preliminary gang injunction against 40 alleged Norteño gang members in the Fruitvale neighborhood began nearly three months ago. On Friday afternoon, after weeks of exhibiting evidence and bringing forth witnesses, lawyers from both sides presented their final arguments to Alameda County Superior Court Judge Robert Freedman.

In a courtroom packed with anti-injunction activists, Oakland Deputy City Attorney Rocio Fierro argued for the injunction saying, “safety should not be a luxury in this city, rather it should be the norm and the government must step up to protect the interests of the community.”

Defense attorney Dennis Cunningham argued against the injunction saying that Fierro and her prosecution team “don’t represent the people, they don’t represent the community—they represent the cops,” which drew a spattering of “um-hmm”’s from the crowd.

If Judge Freedman decides to enforce the injunction, the alleged gang members would have to abide by a 10 pm curfew and would not be allowed to associate with one another, wear gang colors or have gang tattoos, along with other restrictions within a 450-block “safety zone.” This would be the city’s second gang injunction. The first was imposed in North Oakland in June 2010 targeting alleged members of the North Side Oakland gang.

Over the course of the Fruitvale gang injunction hearing, the prosecution has argued that an injunction would restrict alleged gang members’ movements within the “safety zone” and help curb gang crime. Defense attorneys have said that the injunction would violate the 40 defendants’ civil liberties and lead to racial profiling and police harassment. The judge is expected to make a decision within the next six weeks.

As the hearing got underway on Friday, Judge Freedman explained that “this is a legal proceeding… it is not a legislative hearing” and although he appreciated an audience observing the hearing, their opinion would have no standing on his decision. He also brought up the fact that the Oakland City Council is also considering the validity of the proposed Fruitvale gang injunction and said that, “whatever decisions the city council makes is independent of this court.”

Fierro was the first to present her argument to the judge, using the phrase “protective order” rather than “injunction,” she repeated the theme of “safety in the community” and focused on the violent crimes caused by the Norteño gang in Fruitvale.

“I must ask myself, ‘Why are we here today?’” she said. “The answer is quite frankly simple. We are here to speak for the Fruitvale community. To ensure they are safe.”

Fierro said that the 40 defendants named in the injunction have committed a total of 300 crimes, and 120 were serious violent crimes, including shootings, armed robbery, and assault with a deadly weapon. One hundred and thirty of the crimes involved a victim, according to Fierro. “For far too long the residents in the safety zone have lived in fear,” she said.

Fierro mentioned that the hearing had not gone as quickly as she wanted. If the slow pace continues, more crimes will be committed and “many more victims will have lost their rights, if not their lives,” she said. “Enough is enough.”

Michael Siegel of Oakland-based Siegel & Yee law firm began the defense’s closing arguments; he asked the judge to wait to make his decision until the city council had first come to its own conclusions about the proposed injunction. “This is an unlicensed and unlawful proceeding,” said Siegel. “The court should defer judgment until the city council rules.”

Siegel then gestured to the people in the courtroom behind him and said, “This is the voice of the people.” He asked that anyone sitting in the courtroom who didn’t agree with the injunction to raise their hands. Over 100 hands shot up.

“That is totally inappropriate, Mr. Siegel,” said the judge. “You should know better.”

As Siegel’s co-counsel, Dennis Cunningham, took the podium, the judge repeated that the hearing was to be based on law, not public opinion. However, Cunningham disagreed. “This is a matter of your conscience,” he said. “It’s not a cut and dry thing.”

Cunningham’s other arguments included the fact that the only gang expert the judge heard from was a witness for the prosecution, Oakland police officer Douglass Keely, which Cunningham said led to skewed information. (The defense stated in court that they were unable to find an expert witness to present testimony against the injunction in the time they had). Cunningham also mentioned that many of the crimes perpetrated by the defendants happened years ago and that this was “stale” information.

In his final argument, Cunningham contradicted the prosecution’s argument that the injunction will make Fruitvale safer. “It’s not a tool, judge,” he said, “it’s a pretext for police running the community.”

Judge Freedman is expected to make a decision on whether to impose the Fruitvale gang injunction within the next six weeks. On June 24, the judge will meet with the attorneys on both sides for a “case management” meeting regarding this hearing.

Since City Attorney John Russo, who filed the gang injunction suit against the Norteños, is stepping down as Oakland’s City Attorney because he accepted a job as Alameda City Manager, the outcome of this injunction could change depending on his successor. The Oakland City Council has yet to announce a replacement for Russo. The city council is expected to discuss the proposed injunction during their May 17 meeting.