A wise politico once asked, “Is it more important for the law abiding public to sleep well at night, or to sleep well all the time?” The current local political theatrical guild is certainly buying into this line, or at least musing over this question. Nothing less than the appearance of sound legal policy as well as any practical notion of equal protection under the law is at stake.
During the month of September, County Attorney Jose Rodriquez is poised to take a stand against the least loved among the public, law abiding or otherwise, by upping the ante, in bidding for a ‘permanent’ gang injunction against the ‘Bloods’ of Northeast El Paso and of the Devil’s Triangle.
This fast track approach was a revised strategy born out of the frustration of not having the luxury of there being no attorneys to represent alleged members of the Bloods gang. The judge, in a hearing occurring in April of 2009, ruled that attorneys must be appointed for members that qualify as indigent, during an initial motion for a temporary restraining order.
The loss of this luxury can be laid at the hands of local civil rights attorney Ed Hernandez. The amicus brief submitted by Ed Hernandez pointed out that, while in most civil proceedings, the appointment of council for indigent respondents was not forthcoming, it does occur in situations in which parental rights are being challenged, as well as situations in which a person is confronted with being incarcerated for alleged mental illness, while being considered to be a potential harm to himself or others. The significant tangible losses described by these examples were comparable to the loss of liberty anticipated for persons named in the current gang injunction.
This was a stunning and unexpected development not previously encountered in the motion for a gang injunction against the ‘Barrio Aztecas’, which was granted with very little deliberation, in largest part due to the absence of attorneys to defend those named in the injunction.
Another comical if not legally questionable aspect of that injunction was the identification of five ‘John Does’ and five ‘Jane Does’. To quote former assistant Police Chief George De Angelis, commenting on the Barrio Azteca gang injunction:
“The last part of the injunction simply amazes me. It lists several "John Doe's". How did this get by? Who are these people supposed to be? How do you enforce an injunction against a John Doe? That is simply too broad and, in my estimation, unconstitutional.”
At the risk of sounding like a broken record, how this got by was through the absence of legal representation for those persons named in the gang injunction. Again, this is due to the supposed ‘civil’ nature of the legal proceeding. Most civil proceedings do not contemplate the loss of liberty of an individual, being Courts of Equity, in the position of awarding claims to one aggrieved party or the other. Occasionally, a civil restraining order is sought against a person barring that person from a specific location, but not an entire area or zone. In such a case, an estranged marriage partner may face a criminal charge for having violated the civil restraining order. The likelihood of violating an overbroad gang injunction covering an area or zone is quite great given some of the trivial acts enjoined.
A general description of some of those acts, enjoined by the ‘Barrio Azteca’ gang injunction, is listed bellow:
1. Associating, standing, sitting, walking, driving, bicycling, gathering or appearing anywhere in public view with any other Defendant herein or with any other individual who the Defendant knows is a member of the Gang
2. Using a cell phone or pager
3. Violation of curfew (by an adult)
4. Possession of a screw driver (by an adult)
5. Possession of alcohol (by an adult)
6. Possession of indelible marker pens or cans of aerosol spray paint
7. Harboring, concealing or warning another in order to evade a law enforcement officer
8. Signaling to, or acting as a lookout for other persons to warn of the approach of police officers, and/or encouraging others to do the same
9. Making, causing, or encouraging others to make unreasonable or unnecessary loud noise of any kind, including, but not limited to yelling, whistling, and loud music at any time of the day or night
An example of how pernicious a gang injunction can be is illustrated in the case of Carlos X, an alleged Barrio Azteca gang member. A motion to quash in Cause # 20030C13966 reveals that Carlos X was arrested for engaging in organized criminal activity by ‘crossing where prohibited’ in the established ‘safe community zone’. In other words, this person was arrested for jaywalking and spent 6 months in jail for the offense - jaywalking being one of the acts that Barrio Azteca gang members were enjoined from.
Herein lies the subtle evil behind the gang injunction. In order to convey the notion that equal protection under the law is a practical political reality as well as an adhered-to law enforcement policy, in poor neighborhoods as well as in affluent neighborhoods, a shortcut is needed. That is -– a shortcut in poor neighborhoods. Instead of fighting crime, it becomes necessary to fight criminals –- as in ex-convicts and ex-arrestees.
One need only pose the following question to oneself: If a golf cart is tagged with graffiti in the El Paso Country Club, and the same message is found tagged on the side wall of Albertson’s at the corner of Dyer and Hondo Pass, which crime scene experiences a quicker law enforcement response time? Without any exhaustive or cursory investigation of crime statistics, we all know that crime fighting in affluent neighborhoods is a priority, while crime fighting in poor neighborhoods is an afterthought. A convenient method of concealing this reality would be to devise a plan to reduce crime statistics in poor neighborhoods by detaining suspects without the benefit of any crime being committed. Of course, not any suspect will do. There must be some past conviction history or arrest history. This is not to belittle the severity of a past record, but the point is those persons named in the gang injunction are out of jail because they have either paid their debt to society or because no criminal prosecution was successful in convicting them. In any case, they are all poor and are likely disenfranchised, and suitable targets for the theater of law enforcement politics.
Now enters the concept of pro-active policing, the well traveled euphemism for detaining suspects in the absence of a crime. One must understand the limitations in a democracy governed by a constitution. It is impossible to assert ‘probable cause’ in the absence of a crime. The very phrase means that the commission of a crime must occur before a suspect can be said to have probably caused it.
Quoting Police Chief Allen from a Houston Chronicle article, commenting on the pending gang injunction:
“Many times police are reactive. Now we can be proactive. We no longer have to catch them in the act to question them.”
Putting it bluntly, ‘we only have to catch them, irregardless of any criminal act.’ It isn’t the most difficult task to stake out a residence of one of the named in the injunction and wait for the named to step outside their residence after 10pm, thereby establishing a curfew violation. Or catch one of the named ‘crossing where prohibited’ in the ‘safe community zone.’ In the very recent past, these ‘offenses’ have accounted for incarceration terms up to seven months. But, nonetheless, this certainly is more efficient than having to meet the burden of proof required by our government, to prove first – that a crime has been committed and second – that a certain person is culpable.
The ultimate dilemma of any democracy seemingly fraught with insoluble problems may rest with the following adages: “The humanity and justice of a society are measured by it s’ treatment of it s’ most hated members.” And from John F. Kennedy: “When one mans’ rights are taken all men’s rights are threatened.”
I don’t think it’s fair to say that the ‘Bloods’ gang is among the most hated. It is probably fair to say that none of them currently merit a key to the city. It is absolutely necessary to say that justice is blind only if the status of the accused as well as the status of the victim is irrelevant. Insuring this standard is both inconvenient and inefficient and not exciting as a topic of political legal theater.
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Corda Shonerd has been active in the El Paso ACLU.
