When the rights of individuals and communities clash, whose should prevail?

As Americans, we are free to associate with whomever we choose, free to pick our friends and our fashions and our lifestyles. We have the freedom of expression, and of assembly. The right to be nonconformists is--at least theoretically--endowed by our Creator.

But communities, like individuals, also have rights, laid out by the same great thinkers and traditions that empowered us as individuals. Collectively, we are entitled to protection from threats to our health, safety, peace, comfort and convenience.

It is when these two categories of rights clash--as they are wont to do in these modern times--that we must weigh the loftier question of liberty versus security. It is a clash being acutely illustrated by the injunction sought by Salinas officials--which would takes away some "Vagos" gang members'' freedom of association--as well as a similar effort in Chicago that will be scrutinized by the US Supreme Court this fall.

The courts place limits on our freedoms of association and assembly when such liberties infringe on the common good. In fact, the California Supreme Court has already validated in principle what Salinas is trying to do.

The city of Salinas argues that beyond any criminal acts the Vagos perpetrate, "their very presence in the neighborhood is injurious to the health and welfare of the residents of the neighborhood and the community at large, as well as to law enforcement personnel," wrote Officer Michael Lazzarini in his declaration seeking the injunctions.

Lazzarini''s declaration paints a frightening portrait of the Vagos, whose visible presence over the years has brought numerous exchanges of gunfire with rival Norte¤o gangs, violent assaults, regular vandalism of the neighborhood, drug use and dealing, and both overt and implied threats to neighborhood residents.

Lupe Garcia, who coordinates neighborhood outreach for Salinas- sponsored programs, says the Garner/Del Monte area residents are angry that the Vagos and lawyers defending them have tried to focus the injunction debate primarily on individual civil rights.

"The residents are saying, ''We have rights, too. We need people to stand up for our right to live in a peaceful neighborhood,''" Garcia said. "They feel the rights of the few are being considered above the rights of the whole."

Yet "these are complicated issues," as even Judge Richard Silver acknowledges, new issues that raise a variety of thought-provoking questions about what it means to be an American, entitled to "life, liberty and the pursuit of happiness."

Which Rights are Right?

Both the decision by Salinas officials to seek an injunction, and the ruling by Judge Silver last week to grant what it seeks pending a full hearing, are based on one case--Gallo v. Acuna--in which the California Supreme Court upheld gang injunctions in the city of San Jose, followed shortly thereafter by a similar injunction in Los Angeles.

Gallo v. Acuna, like the Salinas case, is a complicated web of conflicting rights, complicated enough that a California appeals court decided in 1995 the San Jose injunctions were unconstitutional, before the California Supreme Court reversed that ruling on a divided vote last year.

Reading the majority opinion by Justice Janice Brown (a first-time judge appointed by Gov. Pete Wilson just seven months earlier) and the dissenting opinion by Justice Stanley Mosk (named to the Supreme Court in 1964, one of two on the bench not appointed by Wilson, both of whom dissented in this case), one gets a sense of how dynamic and complex these issues are.

"Often the public interest in tranquillity, security, and protection is invoked only to be blithely dismissed, subordinated to the paramount right of the individual. In this case, however, the true nature of the trade-off becomes painfully obvious," Brown wrote. "Liberty unrestrained is an invitation to anarchy. Freedom and responsibility are joined at the hip."

In her decision, Brown pointed out that individuals have no right to assemble when the intention of that assembly is to commit crimes, and she said the occupation of the Rocksprings neighborhood in San Jose by Sure¤o gang members deprived that community of its basic right to lead peaceful, law-abiding lives.

"From Montesquieu to Locke to Madison, the description of the pivotal compact remains unchanged: By entering society, individuals give up the unrestrained right to act as they think fit; in return, each has a positive right to society''s protection," she writes.

But Mosk, in his dissent, begins with an allusion to these same founding fathers of American democracy: "No doubt Montesquieu, Locke, and Madison will turn over in their graves when they learn they are cited in an opinion that does not enhance liberty but deprives a number of simple rights to a group of Latino youths who have not been convicted of a crime."

Mosk doesn''t accept the notion that individual rights should be shelved to promote the community good: "The majority would permit our cities to close off entire neighborhoods to Latino youths who have done nothing more than dress in blue or black clothing or associate with others who do so; they would authorize criminal penalties for ordinary, non-disruptive acts of walking or driving through a residential neighborhood with a relative or friend. In my view, such a blunderbuss approach amounts to both bad law and bad policy. Justice Block warned in Jay v. Boyd (1956): ''Unfortunately there are some who think that the way to save freedom in this country is to adopt the techniques of tyranny.'' The majority here appear to embrace that misguided belief. Accordingly, I dissent."

Free to be Me

Most of the arguments against the injunctions center on whether we have a right to simply do nothing. Ironically, the very name of the gang being targeted in Salinas, "Vagos," actually means vagrant--begging the question of whether we as Americans have the right to be vagrants, vagabonds, aimless wanderers.

Do we have the right to sit in a public place and do nothing at all--pondering the nature of things, watching the world go by, or just staring out into space--without fear of being hassled by officialdom?

Since 1972, the answer has been "yes." That was the year the US Supreme Court, in Papachristou v. Jacksonville, ruled unconstitutional a Florida vagrancy law, toppling all such laws across the country, laws that subjected you to arrest if you didn''t have a specific purpose for being where you were.

At the time, according to the Federal Bureau of Investigation, nearly 200,000 Americans were being arrested annually for looking suspicious, or for not being able to "account for their presence," as the Florida law required.

But the Supreme Court ruled that giving police the power to hassle suspicious-looking people is unconstitutional for its vagueness and "because it encouraged arbitrary and erratic arrests and convictions."

What Justice Douglas wrote in his majority opinion at that time offers an interesting perspective on the current debate: "The implicit presumption in these generalized vagrancy standards--that crime is being nipped in the bud--is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the round-up of so-called undesirables. But the rule of law implies equality and justice in its application...The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together."

The freedom to live as we choose is the great value of being an American, concluded Douglas on behalf of the judicial majority, labeling this sense of personal freedom as one of the great, unwritten "amenities of life."

"These amenities have dignified the right of dissent and have honored the right to be non-conformists and the right to defy submissiveness," he wrote. "They have encouraged lives of high spirits rather than hushed, suffocating silence."

The second modern US Supreme Court case to expand our right to simply do nothing without having to explain ourselves came in 1983 in Kolender v. Lawson, when the high court struck down a California law requiring individuals legally stopped by police to produce identification and account for their presence.

That decision essentially took Papachristou even further, holding that individuals legitimately stopped by police have a right to privacy if there is no compelling law enforcement reason to question them.

"Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty," Justice Sandra Day O''Connor wrote for the majority.

We the Community

Think about O''Connor''s reference of "ordered liberty" for a moment. Liberties clash and conflict all the time, making a mess of the idea that we can all simply do whatever we want and call that freedom.

"Wise accommodation between liberty and order always has been, and ever will be, indispensable for a democratic society," the US Supreme Court wrote in Kovacs v. Cooper in 1948, when it decided blasting political messages from a sound truck was not protected on First Amendment grounds.

Offensive and obnoxious exercises of people''s rights to free speech or assembly have been the subjects of legislative and court action for several centuries, creating the legal category of "public nuisances" that can legally be abated.

"The public nuisance doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies the kind of collective ideal of civil life which the courts have vindicated by equitable remedies since the beginning of the 16th century," Justice Brown wrote in Gallo v. Acuna.

Someone Loses

Whenever there is a clash of community and individual rights, someone must lose. We all must put up with hate-spewing KKK rallies, or the woman walking through Custom House Plaza with a sign denouncing homosexuals as degenerates, because these are the prices we pay for our own freedom of speech.

Likewise, with the decision by our government and our courts that the actions of gang members can mean forfeiture of their most basic rights to freedom of assembly and association, people like Juan Sandoval pay a big price, people who have full-time jobs and voice a desire to make something of their lives.

Sandoval is one of the 20 or so people on the injunction list who live in the Garner/Del Monte neighborhood (even more, also like Sandoval, have family there), and is now subject to arrest if he walks down his street with a friend on the list, or if he drinks a beer alone on his front porch (no drinking in public view is one of 20 activities banned by the injunction), or if an officer decides the blue shirt or hat he decides to wear one day represents gang colors.

Public defender Steve Rease sees this as a key difference between the Salinas injunction and the San Jose case, which named about half as many defendants, none of whom lived in the targeted Rocksprings area.

"It''s a much bigger impairment on someone''s liberties when it''s your neighborhood or your mom''s neighborhood that you can''t go into without being subject to arrest," Rease said.

For that reason, Rease said the same Supreme Court that validated the injunctions in the Acuna case could have a problem with Salinas'' version. Which leads back to the basic question: Whose rights should prevail in the Garner/Del Monte neighborhood in Salinas?

Much of what the injunction seeks to ban--drug use, violence, overt acts of intimidation--are already illegal. "Ninety-eight percent of what you asked for are violations of the law that can be monitored without this injunction," Judge Silver told Deputy City Attorney Trisha Aljoe. So it is the simple act of associating with someone else on the list that is at issue.

Some question whether the Vagos members on the list joined the gang with the criminal intent necessary to make their association illegal. Even Officer Lazzarini''s declaration describes the Vagos as a loosely structured group, formed mostly "as a matter of protection from Norte¤o gangs," which he characterizes as the instigator of most gang violence in Salinas.

"There are worse gangs in Salinas, but the rationale for targeting the Vagos is that they are so visible," says Brian Contreras of the Second Chance gang outreach program. "They hang out on the street corners."

Contreras says the gangs of Salinas have formed mostly for social reasons, and that is still their primary purpose in gathering, even as many members get involved in crime and the culture of violence. So he doesn''t necessarily see the criminal intent required by the courts and the Constitution to ban that association.

Still, while Contreras doesn''t agree with the legal basis for the injunctions, he agrees with the effort to regulate the gathering of gang members, and he said it is something they brought on themselves by their actions.

"I applaud this, but I disagree with it," Contreras says. "If it was up to me, we would go forward, [but it would leave] a bad taste in my mouth."

Blacklisting

Many of those involved in fighting the Salinas injunctions have drawn parallels to the McCarthy Era, when having Communist sympathies caused many Americans to be fired from their jobs or imprisoned, simply for exercising what they thought was their constitutional rights to freedom of assembly, association and expression.

"It discriminates against her not on the basis of her behavior, but on her identity," attorney Bill Daniels argued in court, defending a client on the injunction list. "It''s similar to other times in our history, like the McCarthy era."

At that time, the courts went along with the Red Scare mentality. The US Supreme Court ruled that accused Communists being called before the House Un-American Activities Committee did not enjoy First Amendment protections for their actions and beliefs--effectively ruling that our country''s right to be free from Communist infiltration outweighed our personal liberties.

The high court also validated the circulation of "blacklists" that caused accused Communists to be ostracized, and eroded Fifth Amendment rights to remain silent by holding that you gave up that right if you tried to deny or explain being a Communist--and could then be held in contempt of Congress if you refused to name names.

The American Civil Liberties Union and many constitutional scholars say that era represented a dark period in American jurisprudence, a time when the irrational emotion of fear drove public policy and court decisions. Daniels sees the same dynamic with our current fear of gangs and crime.

"Recently, there has been a hysteria about this, and the criteria [for inclusion on the gang injunction list] reflects that," says Daniels, who notes a trend in the last 25 years of courts carving away our civil liberties to facilitate a "get tough" approach to crime.

The trend toward subverting individual rights in favor of community rights has been driven by some frightening social and crime trends that have, in turn, infected the public with a willingness to sacrifice some civil rights for a feeling of greater safety and security.

The other McCarthy Era throwback some see here is the "blacklist." In the Salinas case, both the Monterey County Herald and Salinas Californian published the names of all those listed in the injunction.

It was a news decision that those individuals and their attorneys say could hurt their chance of getting and/or keeping a job, and could further make them targets of attacks by Norte¤o gangs, who now have real names to match with the street nicknames they knew.

"It just blacklists these people before they even have a trial," said Arlene Allan, an attorney representing an injunction target.

Even Salinas city officials are upset with the two daily newspapers for publishing the list. While the city compiled it, they say it was intended for the courts and law enforcement, not to create employment problems for the very people the city wants to become upstanding citizens.

"That was a stupid move. What was the purpose it doing it?" said Salinas City Councilmember Fernando Armenta. "I certainly don''t think it''s good journalism."

Daniels was angry about the newspapers'' decision, but even more so at the city for compiling the list in the first place. "I''m troubled always by list-makers and people who name names," he says, "especially when it''s the state."

Big Picture

Meanwhile, even as Salinas pursues its injunctions with the conceptual blessing of the California Supreme Court, the US Supreme Court could be poised to rule for the first time whether even gang members are entitled to freedom of association, a ruling with the potential to invalidate the Salinas injunctions.

In Chicago, city lawmakers and police in 1992 launched an aggressive crackdown on gangs with a "gang loitering" ordinance that prohibits those whom police "reasonably believe" to be gang members from "loitering in any public place with one or more persons."

With this new tool under their belt, Chicago police swept through the city, arresting more than 43,000 people under the law until 1995 when it was struck down by an appeals court that said it "violates the freedom of association, assembly and expression secured by the First Amendment."

The US Supreme Court has agreed to hear Chicago v. Morales this fall, with a ruling expected early next year. Observers see this as a landmark First Amendment case that could have national implications.

"A lot of these [community versus individual rights] issues will be determined by the Supreme Court this fall," says David Hudson, a research attorney with the Freedom Forum First Amendment Center, a nonpartisan think-tank. "This issue is squarely before the court."

Eileen Pahl, the Cook County public defender who will argue the case before the high court, sees potentially broad implications if the Supreme Court decides to uphold the Chicago law.

"If this one passes, you will see it enacted nationwide, I''m afraid," says Pahl, a trend that she sees as a dangerous encroachment on our most basic civil rights.

Conversely, both Hudson and Pahl say that if the Supreme Court strikes the Chicago law down on broad First Amendment grounds--rather than a more narrow vagueness concern--it could set a precedent that threatens the gang injunctions in Salinas, San Jose and elsewhere.

"I would say I don''t agree with the California Supreme Court [in its Gallo v. Acuna ruling]," says Pahl. "It does clash with your right to freedom of association."

Beyond such philosophical and constitutional concerns, Pahl also worries that laws like these breed contempt for authority in the very people they target, further fueling their lawlessness.

"When they see themselves getting arrested for no reason," Pahl says, "it erodes any respect they had for law and order even further."

At a Glance

&bul; Salinas is seeking an injunction barring 63 purported members of the Vagos street gang from congregating in a five-block area between Garner and Del Monte avenues at Sanborn Road.

&bul; Superior Court Judge Richard Silver has issued a temporary restraining order allowing the prohibition sought by the city, and a hearing on the injunction is set for July 16.

&bul; The California Supreme Court last year ruled on a San Jose case that such injunctions don''t necessarily violate our freedom of association, and the US Supreme Court could weigh in on the issue when it hears a similar case from Chicago this fall.