Suffolk plan to keep gangs out may raise legal issues

A pioneering but controversial effort to curtail gang activity in Los Angeles has propelled Suffolk County's current plan to return some of its gang-infested streets to the community.

Since the 1980s, Los Angeles officials have obtained court orders called civil gang injunctions that bar public gang gatherings in neighborhoods deemed to be trouble spots.

Now, Suffolk has drawn an imaginary boundary around a 2-square-mile area in Wyandanch and West Babylon. Police plan to seek an injunction to keep the infamous Bloods from gathering there. The hope is to stem drug trafficking and street shootouts and to help residents feel safer.

Suffolk police say four nationally recognized gangs - the Bloods, Crips, MS-13 and the Latin Kings - operate here with about 2,000 members.

Since New York's criminal code - unlike California's - does not define what constitutes a gang, Suffolk police face a tricky task when identifying gang members, experts say. To fill the gap in the law, Suffolk police rely on criteria used by various law enforcement groups across the country.

Some constitutional attorneys say a Suffolk gang injunction could test basic constitutional rights. They point to legal issues raised by California's gang suppression efforts. Freedom of association and due process of law - covered in the First and 14th amendments - are among the concerns.

Still, some of those with reservations said injunctions can be useful if executed carefully.

"No one can be against taking an action that's going to attempt to deal with issues of gangs and trying to diminish the gang violence that's going on," said Gary Shaw, a constitutional law professor at Touro Law School in Central Islip.

However, Shaw said Suffolk must protect constitutional freedoms by giving advance notice to gangs about actions banning public gatherings. And Shaw said Suffolk's injunction should define what a gang member is.

Safety versus rights

Former Los Angeles Police Chief William Bratton - once New York City's police commissioner - strongly supports injunctions and said that during his seven-year tenure, gang crime decreased 50 percent in Los Angeles. Bratton, who left the Los Angeles police force in 2009, attributes some of that decline to injunctions.

"The beauty of the gang injunction is it prohibits them from hanging together," Bratton said in a phone interview.

As for objections from constitutional lawyers, Bratton said: "Tell it to the judge."

The Los Angeles website states that in January 2010, the city had 43 injunctions covering 71 gangs. Experts say those injunctions cover about 11,000 gang members.

In a 1997 case, the California Supreme Court found gang injunctions to be constitutional.

In another case - Chicago v. Morales, involving gang gatherings but not injunctions - the U.S. Supreme Court found a Chicago ordinance barring gang members from loitering violated the 14th Amendment's due-process clause.

Some experts familiar with gang injunctions worry about adverse effects on the community.

Dana Peterson, an associate professor in the School of Criminal Justice of the University at Albany, said an injunction could make a gang more defiant.

"There is a danger of increasing the cohesion of a gang," Peterson said.

Casting too wide a net?

And in 2009, in Santa Ana, Calif., a Superior Court judge found the district attorney cast too wide a net, including more than 60 people who were not gang members, in an injunction.

"Because [police] officers have such enormous discretion to decide who is subject to the orders, kids who live in neighborhoods where gangs are present get swept up in the injunctions," said Peter Bibring, staff attorney with the ACLU of Southern California, which contested Santa Ana's injunction.

Suffolk County Executive Steve Levy said the planned injunction will focus on specific members, not entire gangs as California's does.

"This is pinpointing specific individuals who have a history of bad deeds," Levy said. "Just hanging out alone is not going to be enough."

Suffolk Police Department attorney Christopher Love said as many as 40 Bloods could be named in the injunction.

Gerard Gigante, deputy inspector of the police patrol special operations bureau, said gang criteria long used by Suffolk will determine those named in the injunction. The criteria include criminal acts, association with gang members, and the wearing of gang tattoos or colors.

Room for reform?

But Hofstra constitutional law professor Eric Freedman takes issue with using clothing or tattoos as criteria.

"You can neither have guilt by fashion choices nor guilt by organizational affiliation," Freedman said.

Some ACLU lawyers worry that those listed as gang members may never be delisted from an injunction - even after they leave a gang.

Anne Tremblay, head of the Los Angeles city attorney's gang unit, said people can seek removal from injunctions there but must prove they are not in a gang. Suffolk plans to offer a similar opportunity.

Under one Los Angeles program, just three people were removed from the list in three years.

Arthur Eisenberg, legal director of the New York Civil Liberties Union in Manhattan, has been in contact with Suffolk and said he sees "serious flaws in the approach used by the county executive."

"Traditional policing and social work are a better way to go," Eisenberg said.

CALIFORNIA'S CRITERIA

In California, where gang injunctions have been used for more than two decades, the state's Street Terrorism Enforcement and Prevention Act includes this definition of a "criminal street gang."

As used in this chapter, "criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

Source: California Penal Code, Chapter 11, Section 186.22