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Protecting the Bill of Rights in Utah since 1958

Yes, we are still fighting Ogden’s so-called “gang injunction.” Here’s why.

23 May 2017 Published in The ACLU of Utah Activist

On May 24, the ACLU of Utah and cooperating attorneys will be in court arguing about the constitutionality of Ogden’s so-called “gang injunction.” Again.Screen Shot 2017 05 23 at 11.29.46 AM

We’ll be making yet another argument against the constitutionality of Ogden Gang Injunction 1.0. We like to think that, in addition to serving our clients and their constitutional rights, this ongoing litigation has helped to stave off an Ogden Gang Injunction 2.0 (which Ogden officials continually threaten to introduce).

We are determined to ensure that there is never an attempt at another unlawful "gang injunction" in Ogden or anywhere else in Utah.  And so far, there has not been.

More than seven years ago, Weber County rolled out, to much fanfare, its newest law enforcement "tool": an "injunction" casting a broad net of unconstitutional government overreach, 25 miles square, that would smother the otherwise legal activities of hundreds of Ogden City residents. The County called it a “gang injunction.”

Turns out, a more accurate moniker for this law enforcement tactic might be “blanket criminalization of many otherwise legal activities, including First Amendment-protected speech and assembly, for hundreds of mostly Latino residents of Ogden whom officials claim to be in a gang but don’t ask for the evidence because it’s in a secret database.” But that’s hard to fit in a news headline.

It sent up constitutional red flags immediately for the Utah Association of Criminal Defense Lawyers, local First Amendment experts, and, of course, your friends here at the ACLU of Utah.

The injunction labeled the Ogden Trece, a local gang, an “unincorporated criminal association” and accused hundreds of residents (including children!) of being members.

Under the terms of the injunction, those served with the injunction could be criminally prosecuted for legal and constitutionally-protected activities while in Ogden such as: associating with other alleged members (including family, friends, and co-workers), engaging in peaceful protests in public places, traveling together to vote, and even appearing in court together to challenge the injunction. The injunction also imposed a perpetual 11 p.m. to 5 a.m. Ogden-wide curfew on hundreds of individuals that apparently was meant to apply for the rest of their lives as well as permanently prohibiting them from possessing legal firearms, drinking or merely being in the presence of alcohol (on both public and private property), and engaging in any conduct that police, in their unfettered discretion, consider “annoying.”

The First, Fifth, and Fourteenth Amendment violations were clear to us – as were the racial (in)justice implications.

After multiple failed attempts in the lower court to keep the injunction from being issued at all, we eventually found ourselves, in September of 2012, directly arguing to the Utah Supreme Court to overturn the so-called “gang injunction.”

Just slightly more than one year later, the Utah Supreme Court did what we asked: the court vacated the injunction. But the court didn’t do everything we asked. Instead of saying outright that the injunction itself was unconstitutional, the Utah Supreme Court ruled that Weber County hadn’t properly “served” the named plaintiff with the appropriate legal notice of the injunction. This invalidated all of the orders issued by the lower court.

At the time of that court victory, our Legal Director, John Mejia, predicted: “Because the Court did not reach the merits of the injunction, this may only be the beginning of a longer fight.” And he was right.

Within a year of that victory, in 2014, the ACLU of Utah, partenered with Randy Richards of Richards and Brown PC, filed petitions demanding that the Second District Court vacate convictions that had been obtained through the injunction. For example, LeLand McCubbin petitioned to erase his two misdemeanor convictions for violating the injunction (he had been caught out after 11:00 p.m. two different times in violation of the perpetual Ogden-wide curfew).

The court agreed that Mr. McCubbin’s injunction-related convictions should be vacated – yet another victory for the ACLU in our long battle against the injunction, and a relief to Mr. McCubbin.

“Having these unfair convictions off my record is like a weight off my shoulders,” Mr. McCubbin said at the time. “Being wrongly subjected to the injunction was hard enough, but being convicted of breaking it added insult to injury.”

It is Mr. McCubbin - along with Daniel Lucero, our other named plaintiff - who we will be representing in court on May 24. This time, we seek to dismantle any alleged merits of the so-called “gang injunction.” We seek to directly redress the consitutional harms caused by Ogden City and Weber County's policies and practices related to the injunction. We assert that these governmental entitites violated Mr. McCubbin's constitutional rights by, among other things, enforcing the injunction against him even when they knew he was no longer a member of the Ogden Trece. (They knew this because when Mr. McCubbin was hospitalized after being “jumped out” of the gang, he told police exactly what happened). You can read the full complaint here.

We are hopeful that Mr. McCubbin and Mr. Lucero will secure yet another courtroom victory for civil liberties in our fight against this law enforcement "tool." A win here would serve as a warning for other municipalities that may contemplate such injunctions. The cost to civil liberties and constitutional rights – with little to no proven payoff in public safety as investigated and reported by the Ogden Standard Examiner – it simply too high.