Ganging Up on Civil Rights--Are Salinas injunctions to stop gang activity fair?
Thursday, June 25, 1998
Under our Constitution, everyone is presumed innocent until proven guilty. The city of Salinas is trying to turn the presumption of innocence around by suing 63 people to prevent them from standing, sitting, or walking together in public, from wearing certain clothing, and from saying certain words. These are not illegal acts. But by asking the court to issue an injunction, Salinas wants to make these acts of speech and association illegal when alleged gang members do them. This is guilt by association: It would permit the police to arrest people solely for being outside together.
An injunction is not only unfair, it is unnecessary. Selling drugs, carrying concealed firearms, and fighting are already illegal and the city does not need an injunction to arrest people doing them. In fact, 17 of the 20 specified acts Salinas seeks to enjoin are already illegal. The remaining three--appearing together in public, using certain words or gestures, or wearing certain clothing or symbols--are not crimes, but expression. Expression is protected under the First Amendment right to freedom of speech and association.
To be presumed innocent, to speak freely, and to associate with the people we choose are fundamental Constitutional rights to be enjoyed by all people. No matter what someone has done in the past, or may do in the future, if a crime is not committed, the government must leave people alone. If a crime is committed, then the accused must face arrest and trial in the criminal justice system. In fact, those on probation or parole for criminal acts have already forfeited many of their Constitutional rights without a civil injunction. Those not on probation or parole for committing crimes deserve to retain their Constitutional rights.
The California Supreme Court upheld an injunction against gang members in San Jose on grounds that criminal gang members have no First Amendment right to freedom of association. In San Jose, it was undisputed that the gang committed crimes and that the defendants were gang members. Salinas is different. Unless the city proves that each named defendant is a gang member and has engaged in illegal activity creating a public nuisance, that individual''s Constitutional rights must be preserved. Stopping gang violence and crime are justifiable reasons for the city to take some police action: But suing innocent people will not help. Arresting and convicting those who commit crimes will.
The entire police and city government resources are being brought to bear against mostly young and poor or working defendants unrepresented by competent counsel. The issues are complex and serious. It is unfair to expect the defendants to represent themselves while the city is represented by its city attorneys and supported by the police department. Since Salinas has filed a civil lawsuit, the defendants are not automatically entitled to a court-appointed attorney. Several of the defendants are minors, and others cannot afford to hire an attorney. This makes the case dangerously one-sided, and threatens basic due process.
The judge in the case has been asked to appoint attorneys for those who cannot afford them, but the city is opposed. But if Salinas is confident that its request for an injunction is justified by the law and that all defendants really are criminal gang members, then let both sides be represented at trial. Only then can the court decide the issues fairly and openly. Public scrutiny of government action is secured by our Constitution to ensure that the government remains of, by, and for the people, not the police.
Two hundred years ago, Thomas Jefferson said "A society that will sacrifice a little liberty for a little order will deserve neither and lose both." By its recent actions, the city of Salinas is well on its way to fulfilling Jefferson''s dire prophecy.
Michelle Welsh is a volunteer attorney for the American Civil Liberties Union, Monterey County chapter.