NOTE: California's Two-Prong Attack Against Gang Crime and Violence: The Street Terrorism Enforcement and Prevention Act and Anti-Gang Injunctions

Raffy Astvasadoorian

SUMMARY:
... The struggle between the rights of individual liberty and society's liberty is at the heart of this country's gang dilemma. ... A "criminal street gang" must have committed one of the offenses enumerated in paragraph (e) to be prosecuted under STEP. ... V. CALIFORNIA'S NEWEST INNOVATION FOR FIGHTING GANG CRIME AND VIOLENCE IS THE ANTI-GANG INJUNCTION ... In 1997, the California Supreme Court granted certiorari to review the constitutionality of anti-gang injunctions in the case of People ex rel. Gallo v. Acuna. The California Supreme Court ruled that anti-gang injunctions do not violate the First Amendment right to freedom of association and are not vague or overbroad. ... The defendants in Acuna claimed, and the court of appeal agreed, that paragraph (a), the provision prohibiting gang members from associating in public in the Rocksprings neighborhood, broadly interfered with rights protected by the First Amendment. ... As to the broadness of paragraph (k), the Acuna court referred to United States Supreme Court cases holding that the First Amendment does not protect violence and stated, "'[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.'" ... In reviewing the potential vagueness of the Acuna injunction, the California Court of Appeal held paragraph (a) unduly vague because it prohibited association with any other known gang member. ...

TEXT:
 [*272]  I. INTRODUCTION

"'Wise accommodation between liberty and order always has been, and ever will be, indispensable for a democratic society.'" n1 The struggle between the rights of individual liberty and society's liberty is at the heart of this country's gang dilemma. California, like many other states, faced a dramatic increase in gang crime and violence in the late 1980's. n2 Since that time, the threat of gang crime and violence has persisted as an enduring problem in California. n3 In Los Angeles County alone, total arrests for gang-related incidents increased 189% from 1988 to 1989. n4 California lawmakers implemented a variety of legal tools aimed at eliminating the fear and intimidation that has plagued so many communities throughout the state.

In 1988, the California legislature enacted the Street Terrorism Enforcement and Prevention Act (STEP) as a tool to fight gang crime. n5 The Act prohibits active gang members from associating with one another to commit certain enumerated crimes. n6 The purpose of STEP is to disrupt the pattern of gang association believed to be a  [*273]  major cause of gang crime. n7 STEP is not considered the final solution to gang crime, but rather a tool prosecutors and law enforcement officials may implement in California against gangs. n8

Most recently, California city attorneys have turned to the use of civil injunctions prohibiting gang members from engaging in legal activities, such as associating together in public, possessing a beeper, or using a cellular phone, as another weapon to deter gang crime and violence. These injunctions are civil suits instituted by the city in which the gang operates, against individual defendants specifically named in the injunctions.

Critics of anti-gang injunctions assert that they infringe upon gang members' constitutional right of association. n9 Further, it is claimed that injunctions only serve to remove the crime problem from one area to another without addressing the actual cause of gang crime and violence. n10 However, it should be noted that crime has consistently decreased where these injunctions have been issued. For example, in the Pico Union area of Los Angeles, a thirty-one percent drop in the most violent felonies was reported after an injunction was issued against the 18th Street gang. n11 In North Redondo Beach, California, crime dropped by almost ninety percent, and graffiti was down seventy-one percent, after a preliminary injunction was granted. n12 In Los Angeles's San Fernando Valley, violent crimes decreased from 160 in 1993 (the year the injunction was issued) to 125 in 1994, 132 in 1995, and 117 in 1996 after an injunction was issued against the Blythe Street Gang. n13 Anti-gang injunctions, which have become very popular,  [*274]  have had a significant impact in those specific neighborhoods where they have been implemented. n14

The purpose of this Note is to review California's efforts to confront gang crime and violence and to demonstrate the constitutionality and practicality of these efforts in light of prior Supreme Court decisions. Part I provides historical information leading to the enactment of STEP. Part II describes STEP and its controversial provisions. Part III examines the legislative intent of STEP. It asserts that California's legislature expressly acknowledged an individual's right to freedom of association and sought not to interfere with that right. Rather, the legislature intended to disrupt the pattern of gang association responsible for crime and violence. Part IV determines the constitutionality of STEP in the context of the right to freedom of association, vagueness, and overbreadth. This Note demonstrates that under both United States Supreme Court and California rulings, STEP does not violate the right to freedom of association, and is neither unduly vague nor substantially overbroad. Part V enumerates a brief history of the origin of anti-gang injunctions in California. Part VI analyzes the People ex rel. Gallo v. Acuna n15 ruling and its impact on the future of anti-gang injunctions. The Acuna court held that anti-gang injunctions are constitutional when properly drafted. Part VII concludes that California' STEP statute and anti-gang injunctions are an effective method in battling gang crime and violence.

II. STEP'S CONTROVERSIAL PROVISIONS

STEP is composed of paragraphs (a)-(e). Paragraph (a) is the substantive portion that creates a new crime. Paragraphs (b), (c), and (d) set forth STEP's sentencing scheme. Finally, parapraph (e) defines a "pattern of criminal gang activity," and paragraph (f) likewise defines a "criminal street gang" in the context of STEP. This Note will analyze the contitutionality of paragraphs (a), (e), and (f) separately and collectively as applied in the context of STEP. This portion of the Note will introduce the reader to paragraphs (a), (e), and (f), and present a summary of arguments in favor of and in opposition to these paragraphs.

Paragraph (a) of STEP states:

 
 [*275]  Any person who actively participates in any criminal street gang with the knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists, in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. n16

Critics of STEP argue that parapraph (a) punishes individuals for mere association with gang members in violation of the First Amendment right to freedom of association. However, as the statute plainly states, the law punishes a person for "active participation" in any criminal street gang with knowledge that the members engage in a pattern of criminal gang activity. n17 It does not punish persons for associating with known gang members, but rather seeks to deter a person from actively participating with a known gang member to commit a crime. n18 The Constitution does not protect association for the purpose of committing crime.

Paragraph (e) defines a "pattern of criminal gang activity" as the commission of, attempted commission of, or solicitation of, or conviction of two or more of the enumerated offenses, provided at least one of these offenses occurred after the effective date of STEP, and the last of these offenses occurred within three years of a prior offense, and that the offenses were committed on separate occasions, or by two or more persons. n19 Paragraph (e) lists twenty-three crimes that qualify for prosecution as a violation of STEP. n20 Parapraph (e) has not been challenged as often as paragraph (a) and (f) simply for the fact  [*276]  that paragraph (e) merely lists the offenses eligible for punishment under STEP.

Paragraph (f) defines a "criminal street gang" as any ongoing organization, association, or group of three or more persons having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraph (e). n21 Further, such a group must have a common name or common identifying sign or symbol, and members (individually or collectively) who engage in or have engaged in a pattern of criminal gang activity. n22

Critics charge that STEP's definition of a "criminal street gang" is overbroad because it could include any organization made up of three or more members with a common sign or symbol. n23 This argument necessarily fails because the organization must be involved in a pattern of criminal activity over a period of time. Where an organization does commit crimes over a period of time, California will certainly have an interest, if not a right, to punish such a group.

III. THE CALIFORNIA LEGISLATURE'S INTENT IN ENACTING STEP IS TO ELIMINATE THE CRIME AND VIOLENCE CAUSED BY STREET GANGS

In 1988, the California legislature declared that California was in a "state of crisis which had been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes  [*277]  against peaceful citizens of their neighborhoods." n24 Crimes committed by street gangs had reached such epidemic proportions that the California legislature felt compelled to reaffirm a right most persons would consider basic: "The Legislature hereby finds and declares that it is the right of every person . . . to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals." n25

The legislature found that "in Los Angeles County alone there were 328 gang-related murders in 1986, and that gang homicides in 1987 had increased 80 percent over 1986." n26 Gang investigators estimated that in 1989, Los Angeles County housed some 70,000 gang members. n27 On the notorious Blythe Street of Los Angeles, knifings, shootings, rapes, and murders were common occurrences. n28 Street gangs such as the Blythe Street Gang terrorized, intimidated, and threatened law-abiding citizens, preventing area residents from peacefully enjoying their own communities. n29

The legislature believed that by focusing on "patterns of criminal gang activity and upon the organized nature of street gangs," STEP would break the grip of terror that street gangs had in neighborhoods. n30 To avoid charges of unconstitutional infringements on the rights of freedom of expression and association, the legislature expressly stated that it did not intend to interfere with these rights by enacting STEP. n31 Rather, California Penal Code section 186.21 reaffirmed citizens' rights to have and express beliefs on any lawful subject and to lawfully associate with others sharing the same beliefs. n32 In analyzing STEP's constitutionality, the legislature's expression of its intention not to interfere with constitutionally protected rights is not conclusive in itself as to the law's constitutionality; however, STEP does provide a powerful obstacle to any constitutional challenge.

 [*278]  IV. STEP IS CONSTITUTIONAL IN ALL RESPECTS

A. STEP Does Not Interfere With the First Amendment Right Freedom of Association

The First Amendment to the United States Constitution states, "Congress shall make no law . . . [abridging] the right of the people peaceably to assemble." n33 The right to freedom of association has been selectively incorporated and made binding upon the states through the Fourteenth Amendment Due Process Clause. n34 Citizens therefore have a constitutional right to freely associate for the purpose of expressing political, religious, or social views without federal or state governmental interference.

The right to freedom of association has been categorized into two distinct categories: 1) those relationships with an "intrinsic" or "intimate" value that must be secured against governmental intrusion to preserve individual freedom; and 2) those activities expressly protected by the First Amendment -- speech, assembly, petition for the redress of grievances, and the exercise of religion. n35 The first type of association is considered fundamental to personal liberty and relates to intimate relationships generally found in marriage, "the creation and sustenance of a family," and "cohabitation with one's relatives." n36 The second form of association protects the right to "associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." n37

1. Gangs Do Not Have a Constitutional Right to Associate For Criminal Purposes

Under the first category of association, street gangs do not provide the type of intimate relationship traditionally protected by the First Amendment. Critics of STEP charge that people "join gangs to find identity, respect, belonging, and support." n38 Gangs substitute as a family for members because they provide an environment where members can express and share their beliefs with others who have intimate and similar beliefs. n39 Under the first category of protected association, the relationship must be intimate or have some intrinsic  [*279]  value. n40 The Supreme Court has traditionally recognized association for the purpose of pursuing political, social, economic, educational, religious, and cultural ends as being protected by the First Amendment as an intimate relationship. n41 The intimacy of the relationship is not to be mechanically determined, but should be evaluated by taking into account factors that may be relevant, such as size, purpose, policies, selectivity, and congeniality. n42 Gangs do not associate to pursue political, social, economic, educational, religious, or cultural ends; and to the extent that they do, it is negligible in light of the gang's other activities. Rather, the purpose of a gang generally is to promote the gang membership and protect its "turf," an activity that is certainly not considered intimate for the purposes of the First Amendment. Furthermore, gangs seek to protect their "turf" from rival gang members and other innocent persons through violent means, thereby demonstrating an activity not protected by the First Amendment. Gang association, therefore, is not protected by the First Amendment as an intimate relationship.

Street gangs also do not fall under the protection of the second category of association protected by the First Amendment. Youths may join gangs to express themselves and perhaps do have close relations with one another to a certain extent; however, this fact does not bring gang association under constitutional protection. As the Supreme Court stated in Dallas v. Stanglin, n43 "It is possible to find some kernel of expression in almost every activity a person undertakes . . . but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." n44 Although gang members may associate to express their beliefs and viewpoints to some degree, it does not necessarily follow that gang association is protected by the First Amendment.

Gangs do have a First Amendment right to association to the extent that they associate to express and discuss their views. However, when that association transforms from a legal purpose to a criminal aim, the Constitution offers no protection whatsoever. Gang association with the design to commit crime is not protected by the First Amendment. As the United States Supreme Court stated in Madsen v. Women's Health Center Inc., n45 "Freedom of association protected  [*280]  by the First Amendment does not extend to joining with others for the purpose of depriving third parties of their lawful rights." n46 Therefore, gangs do have a First Amendment right to freedom of association for traditionally recognized activities, but not for the purpose of committing crime.

It has been argued that STEP punishes persons for mere association with known gang members who commit crimes. n47 The Supreme Court has held that people may not be constitutionally prohibited from association with known criminals: "The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected." n48 A gang member may not be punished for merely being a member of a criminal gang. A person may lawfully associate with a gang member who has previously committed crime, but he may not associate with a known gang member to perpetrate a crime.

In Scales v. United States, n49 The Supreme Court reviewed the constitutionality of the Smith Act, a statute prohibiting active membership in any organization seeking to overthrow the United States government. Conviction under the Smith Act, like STEP, required active participation by a member of any group with knowledge of the group's unlawful activity. n50 In upholding the statute against a constitutional challenge of a violation of the First Amendment right to freedom of association, the Supreme Court stated,

 
We perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act. n51

 [*281]  It appears that the terms "active" and "knowingly" ensure that the statute does not interfere with a defendant's First Amendment rights. Similar to the statute in Scales, STEP only punishes those individuals who actively participate to further a street gang's unlawful goals, thereby not violating the First Amendment right to freedom of association as ruled by the United States Supreme Court.

In line with the Scales' holding, the California Court of Appeal case, People v. Green, n52 expressly held that STEP does not punish defendants for mere membership in a street gang, but rather makes criminal the active participation and furtherance of a crime with a known gang member. n53 The Green court stated that STEP requires "more than nominal, passive, inactive or purely technical [association] and . . . the person must devote all, or a substantial part of his time and efforts to the criminal street gang." n54 Hence, STEP's "actively participate" requirement necessarily prevents the prosecution of defendants for mere association with a gang. STEP does not require that an individual be punished for merely associating with a street gang. This fact is further evidenced by the Act's legislative intent. n55 California law permits persons to associate with known gang members who engage in a pattern of criminal activity so long as they do not assist those members in committing crime. Therefore, STEP in no way infringes upon gang members' right to freedom of association.

2. STEP is Constitutional Under Strict Scrutiny

Assuming arguendo that STEP does interfere with gang members' right to freedom of association, California must have a compelling state interest to infringe upon this right. The Supreme Court has held that the right to associate is not an absolute right and may be infringed upon when the state has imposed a restriction on that right that is necessary to serve a compelling state interest or narrowly tailored to achieve that end. n56 California has a compelling interest in protecting its citizens from crime and preserving the peace and sanctity of its neighborhoods. In light of the soaring level of crime committed by gang members in 1988, California was forced to act quickly and decisively to end the epidemic of violence. STEP targets those crimes committed as a result of gang membership. This law does no  [*282]  more than prohibit association for the purpose of committing crime. Thus, STEP furthers a compelling state interest.

Furthermore, STEP is narrowly tailored for the sole purpose of deterring gang association for criminal purposes. The Supreme Court held in Scales that the Smith Act constrained no more association than was necessary to protect the United States government: "The membership clause, as here construed, does not cut deeper into the freedom of association than is necessary . . ." n57 Since the Smith Act was broader in scope and coverage than STEP, and it was ruled to be narrowly tailored to achieve a compelling governmental interest, STEP will surely be held to be narrowly tailored to further California's compelling interest. Therefore, STEP is narrowly tailored to achieve a governmental interest and would pass constitutional muster under strict scrutiny.

B. STEP is Not Unconstitutionally Vague

Criminal defendants claim that STEP does not provide adequate and fair notice of the prohibited conduct because it is so vague in its statutory language. n58 It has also been asserted that STEP is arbitrarily and discriminatorily enforced against any person associating with known gang members. n59

The Supreme Court has ruled that "no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." n60 A statute will be void for vagueness where "men of common intelligence must necessarily guess at its meaning and differ as to its application," n61 and where the law "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." n62

 [*283]  The Green case expressly held several portions of STEP to be reasonably certain and therefore not unduly vague. n63 Phrases and words such as "actively participates," "member," "membership," "criminal street gang," "knowledge," "pattern of criminal gang activity," and "willfully promotes, furthers, or assists" were held to be reasonably certain to give potential defendants adequate and fair notice of the proscribed conduct. n64 Therefore, California appellate courts currently hold that STEP is not unduly vague.

On a practical level, STEP's language clearly sets forth the prohibited conduct of actively participating in a criminal street gang and willfully furthering or promoting a criminal street gang's felonious conduct. n65 The statute further defines "criminal street gang" in paragraph (f) and "pattern of criminal gang activity" in paragraph (e), thereby eliminating any possible vagueness in those terms. Paragraph (e) also lists the specific offenses that qualify under STEP as constituting a "pattern of criminal gang activity" and explains the time-frame in which these offenses must be committed to fall under the statute. n66 This language, viewed as a whole, and combined with section 186.21 (the California legislature's intent), provides any person of reasonable intelligence with a reasonably certain understanding of the statute's meaning and enforcement. As the Supreme Court has noted, "It will always be true that the fertile legal 'imagination can conjure up hypothetical cases in which the meaning of (disputed) terms will be in question.'" n67 Notwithstanding the fact that every word has some degree of uncertainty in its definition, the Supreme Court has ruled that a statute need not have mathematical precision in its language to be constitutional, but rather a reasonable degree of certainty. n68 STEP satisfies the requirement of reasonable certainty in its language.

Furthermore, STEP's enforcement is not arbitrary or discriminatory because of the statute's prescribed scheme of enforcement. A "criminal street gang" must have committed one of the offenses enumerated  [*284]  in paragraph (e) to be prosecuted under STEP. n69 Paragraph (e) requires that two or more of the listed offenses be committed after enactment of the statute and the last offense to have occurred within three years after the prior offense and to have been committed on separate occasions or by two or more persons. n70 Paragraph (e) provides a specific guideline for police officers, judges, and juries to enforce the law whereby there is no opportunity for arbitrary or discriminatory application. A police officer, judge, or juror cannot arbitrarily or discriminatorily determine that the first offense was committed after the enactment of STEP, that the second offense occurred within three years of the first offense, or that the offense was committed by two or more persons. These requirements are satisfied objectively and by events transpiring outside the control of police officers, judges, and juries.

Assuming arguendo that the term "criminal street gang" is vague under STEP, then any organization consisting of three or more members with a common symbol could potentially be prosecuted under STEP. However, that organization would necessarily have to commit more than one crime over a period of time to be prosecuted under STEP. If such an organization does commit crime over any period of time, then California would have an interest and cause to prosecute it for its crimes. STEP does nothing more than reaffirm the government's ability to prosecute criminal organizations.

C. STEP's Enforcement is Not Unconstitutionally Overbroad

The Supreme Court has held that a penal statute is overbroad where it "sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press." n71 The overbreadth doctrine requires that the overbreadth be substantial as "judged by the legitimate reach of the law." n72 A petitioner may challenge a statute on behalf of himself and others on the belief that an overbroad statute will violate other persons' First Amendment right to freedom of speech. n73 Generally, a law that is vague has a greater potential to be overbroad because of the uncertainty of its application, thereby sweeping into its ambit other constitutionally  [*285]  protected rights. Since STEP is not vague, it has a great likelihood of not being overbroad.

In Lanzetta v. New Jersey, n74 the Supreme Court held the term "gang" to be overbroad as construed in the state criminal statute. n75 The statute in Lanzetta did not limit the reaches of the term "gang" to those persons involved in criminal conduct, but rather applied it to any group of two or more persons. n76 Here, however, STEP overcomes this obstacle because it expressly limits the term "gangs" to a "criminal street gang." It defines a "criminal street gang" as an organization whose primary purpose is to commit one of the offenses listed in paragraph (e), and limits prosecution to those offenses listed in parapraph (e). Paragraph (e) limits STEP's enforcement to crimes such as murder, rape, and arson, all of which are actions that are not constitutionally protected individual rights. Unlike the statute in Lanzetta, these additional definitions and clarifications prevent STEP from being overbroad.

The Green court analogized the term "gang" to the term "enterprise" as used by the federal Racketeer Influenced and Corrupt Organization statutes (RICO). n77 The RICO statutes have used the term "enterprise" in the same manner as STEP has used the term "gang." The Supreme Court has interpreted the designation "enterprise" to mean "'[a] group of persons associated together for a common purpose of engaging in a course of conduct.'" n78 Federal courts have held the term "enterprise," as applied in the RICO statutes, to be certain in its meaning and therefore not overbroad. n79 The Green court believed there to be no difference between an "enterprise" as used in the RICO statutes and the word "gang" as used in STEP. n80 The Green court therefore held that the term "gang" was reasonably certain and therefore was not overbroad. n81

 [*286]  On the other hand, parapraph (f) has the most potential for being overbroad because the statute refers to "any organization with a common symbol or sign." This type of description could conceivably include an organization such as the Boy Scouts or Rotary Club, which do have three or more members and a common symbol. However, this argument fails because the statute limits the applicable group of organizations to those whose primary activity is to commit one or more of the crimes listed in parapraph (e). This limitation to crimes that are not constitutionally protected ensures that STEP does not reach organizations with legitimate ends. Therefore, paragraph (f) is not overbroad.

Beyond any court ruling, STEP is not overbroad because it requires "active participation" in any criminal street gang with "knowledge" that the members have committed crimes and who willfully promote this felonious conduct. n82 A person cannot be charged under STEP merely for passively supporting the goals and ideals of a street gang. The requirement of knowledge and willfulness assures that the statute only reaches those persons knowingly aiding gang members in committing crimes. No conduct other than assisting a gang to commit a crime is proscribed under STEP. Therefore, STEP does not sweep within its ambit constitutionally protected rights.

V. CALIFORNIA'S NEWEST INNOVATION FOR FIGHTING GANG CRIME AND VIOLENCE IS THE ANTI-GANG INJUNCTION

A. Introduction

California's efforts to battle the scourge of gang crime and violence in its communities has led city attorneys throughout the state to create injunctions prohibiting gang members from conducting many activities in the ravaged areas. These injunctions are civil suits enacted by the local city attorney, using the court's equitable powers to enjoin gang members from committing crimes in the targeted community. Anti-gang injunctions declare gang members a public nuisance to the residents of the affected neighborhood. The first anti-gang injunctions were implemented over a decade ago in the city of Los Angeles, California.

B. Summary of Common Terms Used in Anti-Gang Injunctions

On December 10, 1987, the city of Los Angeles enacted the first gang injunction against the three hundred members of the Playboy  [*287]  Gangster Crips, declaring the gang a public nuisance and prohibiting certain activities in a twenty-six block neighborhood. n83 Prosecutors considered the injunction a success, noting that in the six months following the issuance of the injunction, major felony crimes dropped eighteen percent, and gang related crime dropped thirty percent. n84 Despite the success of the Playboy Gangster Crips injunction, no other city sought to enjoin gang activity for almost five years. n85 Between October, 1992, and July, 1994, injunctions were sought and obtained in seven different cases: People ex rel. City Attorney v. Acuna, n86 People ex rel. City Attorney v. Avalos, n87 People ex rel. Fletcher v. Acosta, n88 People v. Blythe Street Gang, n89 People ex rel. Jones v. Amaya, n90 City of Norwalk v. Orange Street Locos, n91 People v. "B" Street Boys. n92 In all seven cases, the injunctions contained comparable restrictions using analogous language. n93 These injunctions included five common prohibitions: (1) association with other gang members; (2) demanding entry; (3) wearing gang clothing and using hand signs; (4) local movement; and (5) annoying or harassing residents. n94

In limiting defendants' association with other gang members, the Avalos, Acuna, and Acosta injunctions prohibited gang members from "'standing, sitting, walking, driving, gathering or appearing anywhere in public view'" with any other defendant or gang member. n95 The  [*288]  Blythe Street injunction similarly enjoined the defendants from "congregating with any other member or affiliate of the Blythe Street Gang for the purpose of threatening or intimidating others in any public place." n96 Likewise, the Orange Street Locos injunction contained language equivalent to the Blythe Street Gang injunction, limiting gang members' ability to publicly associate. Unlike other anti-gang injunctions, the court in Playboy Gangster Crips struck down a provision banning all association with any other gang member. n97

In Avalos and Blythe Street, gang members routinely forced entry in residents' homes to evade arrest by the police. n98 The Blythe Street injunction prohibited gang members from "demanding, or by threat of force, entering into another's residence," while the Avalos injunction proscribed defendants from "'demanding entry into another person's residence at any time of the day or night.'" n99

Injunctions also restricted gang clothing and hand signs. n100 The Avalos and Acuna injunctions prohibited gang members from "'wearing clothing which bears the name or letters'" of the specified gang and banned the use of hand signs referring to the particular gang. n101

City attorneys curbed movement in affected neighborhoods by proscribing gang members from being on rooftops, climbing trees, walls, and passing through tunnels or holes in walls or fences. n102  [*289]  These restrictions on movement were designed to prevent gang members from eluding arrest and from alerting other members of approaching law enforcement. n103 Furthermore, all the anti-gang injunctions implemented curfews preventing juvenile gang members from being in public in the restricted neighborhoods after dark. n104 The Orange Street Locos and the Blythe Street injunctions also contained curfews for adults which were held constitutional. n105 A similar curfew for adults was denied in the Playboy Gangster Crips injunction. n106

All the injunctions included a provision prohibiting gang members from annoying or harassing neighborhood residents. n107 For example, the Avalos, Acuna, and Acosta injunctions proscribed gang members from "confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting and/or battering" residents. n108

This summarizes the common terms used in California anti-gang injunctions from 1987 until 1997. Anti-gang injunctions have been held constitutional by the California Court of Appeal. In 1997, the California Supreme Court granted certiorari to review the constitutionality of anti-gang injunctions in the case of People ex rel. Gallo v. Acuna. n109 The California Supreme Court ruled that anti-gang injunctions do not violate the First Amendment right to freedom of association and are not vague or overbroad.

 [*290]  VI. THE ACUNA RULING HOLDS ANTI-GANG INJUNCTIONS CONSTITUTIONAL

A. Anti-Gang Injunctions Declare Gangs a Public Nuisance

The Acuna court began its analysis by reviewing the evolution of nuisance laws in the United States and California. n110 The court noted that injunctions against public nuisances originated as private actions in California. n111 Currently, California Civil Code section 3479 defines a public nuisance as anything that is "injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." n112

Courts have equitable jurisdiction to enjoin public nuisances under California Penal Code section 370. n113 This section essentially mirrors the civil definition of a public nuisance. Section 372 of the Penal Code makes it a misdemeanor to continue to operate an activity that is a public nuisance. Therefore, California courts have equitable jurisdiction to enjoin a public nuisance and to provide for penalties for a violation of an injunction.

The California Supreme Court recognized that California's public nuisance scheme has two limitations. First, "the courts lack power to extend the definition of the wrong or to grant equitable relief against conduct not reasonably within the ambit of the statutory definition of a public nuisance." n114 This first principle limits the courts' jurisdiction to enjoining only those acts which have been deemed illegal by the legislature, thereby reducing and nearly eliminating arbitrary and capricious rulings. Second, public and social interests are entitled to the protection of equity just as private property rights. n115 California has reaffirmed the right to protect the "minimum conditions for a civilized society." Based upon these guidelines, the Acuna court concluded that "acts or conduct which qualify as public nuisances are enjoinable  [*291]  as civil wrongs or prosecutable as criminal misdemeanors . . . ." n116

In the Acuna case, the California Supreme Court briefly summarized the procedural history of Acuna by referring to the City's complaint which set forth the conditions that made the gang members' actions a public nuisance to the residents of Rocksprings. n117 The complaint found that a four square block neighborhood of Rocksprings (a suburb of San Jose, California) was claimed as the turf of a gang named Varrio Surreno Town, Varrio Suereno Treces (VST), or Varrio Sureno Locos (VSL). n118 Gang members lived in other areas but congregated in Rocksprings to commit crime. n119 Residents were subjected to "loud music, vulgarity, profanity, brutality, fistfights, and the sound of gunfire echoing in the streets." n120 The complaint further alleged that "murder, attempted murder, drive-by shootings, assault and battery, vandalism, arson, and theft are commonplace." n121 Gang members verbally and physically harassed residents and even threatened retaliation against residents who reported the gang's illegal activities to the police. n122 Based upon these facts, the City Attorney requested that all thirty-eight members of the gang be considered a public nuisance because they injured the public health, were offensive to the senses, and obstructed the use of property so as to interfere with the residents' enjoyment of life or property. n123 The Superior Court granted an ex parte temporary restraining order enjoining gang members from performing a variety of activities in the four square block of Rocksprings. n124 On appeal, the California Court of Appeal  [*292]  struck down, either partially or entirely, fifteen of the twenty-four provisions issued by the trial court as being unconstitutionally overbroad or vague. n125 The City appealed paragraphs (a) and (k) because  [*293]  these prohibitions confronted the heart of the violence committed by the VST gang. n126

Prior to the Acuna decision, few injunctions had ever been appealed. Of those cases that were appealed, there was uncertainty and inconsistency in the application of the law to anti-gang injunctions. The Acuna ruling laid to rest many questions concerning the constitutionality of anti-gang injunctions. California Governor Pete Wilson responded to the Acuna decision by stating, "'Today's ruling sends a clear message to gang members . . . the safety of our communities takes priority over gang members' right to hang out on street corners and prey on the innocent.'" n127

B. Anti-Gang Injunctions Do Not Violate the First Amendment Right to Freedom of Association

The Acuna court recognized that the United States Constitution protects the right to freedom of association in those relationships having an "intimate" or "intrinsic" value and those associations that are directly related to political, social, economic, educational, religious, and cultural ends. n128 The court believed that while the association of VST gang members in Rocksprings may provide some personal enrichment to all or some of the members, it did not fall within the protection of the First Amendment because it was not of the type of "intimate" or "intrinsic" relationship traditionally recognized by the Supreme Court as being protected by the First Amendment. n129 The VST gang did not associate for any political or religious objective within the Rocksprings neighborhood. Rather, the gang members associated to commit crimes, and the court noted that freedom of association "'does not extend to joining with others for the purpose of depriving third parties of their lawful rights.'" n130 The California Supreme Court therefore held that the injunction enjoining VST gang members from publicly congregating in the four square  [*294]  block of Rocksprings did not interfere with their First Amendment right to freedom of association. n131

C. Anti-Gang Injunctions Generally Are Not Unconstitutionally Overbroad

The defendants in Acuna claimed, and the court of appeal agreed, that paragraph (a), the provision prohibiting gang members from associating in public in the Rocksprings neighborhood, broadly interfered with rights protected by the First Amendment. n132 The foundation of the overbreadth doctrine permits litigants to argue on behalf of parties not before the court, that a statute sweeps within its ambit constitutionally protected First Amendment rights. n133 As a threshold matter, the Acuna court pointed out that the injunction was not overbroad because it was solely directed at the thirty-eight named defendants. n134 No persons other than the named defendants were subject to the prohibitions of the injunction, thereby preventing the injunction from infringing upon other persons' First Amendment rights. n135

The Acuna court further explained that there was a significant difference in analyzing the overbreadth of a statute and an injunction. n136 A statute has the potential of being more abstract and broad in its scope because it is not directed towards any particular person. On the other hand, an injunction is more focused and aimed towards specific parties for a particular purpose. As the court stated, "'an injunction may be more effective at stopping the activity at which it is aimed, but it is also more narrowly confined. There is less risk of deterring activities beyond the adjudicated target of suppression . . . .'" n137 The Acuna court therefore held the injunction not to be overbroad as to the First Admendment right of third parties not before the court. n138

The Acuna court next considered whether the injunction was overbroad as to the defendants' right to association. The restriction on First Amendment rights must "burden no more speech than necessary  [*295]  to serve an important governmental interest." n139 Paragraph (a) prohibited gang members from publicly congregating in any manner in the Rocksprings neighborhood. The Acuna court noted that the injunction sought to deter the collective force of gang members only in the confined space of the Rocksprings neighborhood. n140 The injunction placed no restrictions on gang members outside of Rocksprings and members were free to associate with one another outside that area. The court therefore concluded, "Given the factual showing made by the City in support of preliminary relief -- the carnival-like atmosphere of collective mayhem . . . we cannot say that the ban on any association between gang members within the neighborhood goes beyond what is required to abate the nuisance." n141 The seriousness and the frequency of the crime and violence caused by the VST gang allowed for almost any injunction against it to not be overbroad.

As to the broadness of paragraph (k), the Acuna court referred to United States Supreme Court cases holding that the First Amendment does not protect violence and stated, "'[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.'" n142 Paragraph (k) simply prohibited VST gang members from retaliating against residents for reporting illegal activities to the police. It is axiomatic that no person, let alone a group of persons, would have the right to threaten to or physically assault any other person without prior justification. No law in any country would grant such a right. The Acuna court therefore held that the provision prohibiting gang members from threatening or harassing residents did not impede on a First Amendment right and therefore was not overbroad as implemented against gang members. n143

D. Anti-Gang Injunctions Generally Are Not Vague

The Acuna court explained that a law is unconstitutionally vague when it does not provide fair notice to defendants so that they may conform their conduct to the law. n144 The law must be unduly vague when applied to the litigant or "impermissibly vague in all its applications." n145  [*296]  The Acuna court emphasized its belief that the context of the words is all important when reviewing a law for vagueness and that the law need only be reasonably certain to grant fair notice to the defendant.

In reviewing the potential vagueness of the Acuna injunction, the California Court of Appeal held paragraph (a) unduly vague because it prohibited association with any other known gang member. The court of appeal reasoned that such language was vague because a defendant could potentially be punished for associating with a person known to be a gang member by the police but not by the defendant. The California Supreme Court, however, believed that the element of knowledge "is fairly implied in the decree," and that to the extent that it was not, the trial court would impose a knowledge requirement when and if paragraph (a) of the injunction was enforced. n146

Paragraph (k) was also held unconstitutionally vague by the court of appeal because "it failed to provide a standard of conduct for those whose activities are proscribed." n147 This provision, like paragraph (a), punished those gang members who retaliated against residents known to have complained to the police of the gang's activity. The Acuna court held that the knowledge requirement in paragraph (k), just as the knowledge requirement in paragraph (a), was reasonably certain to provide fair notice to the defendants. n148

Additionally, the terms "confront," "annoy," "provoke," "challenge," and "harass" in paragraph (k) were held by the court of appeal to not be reasonably certain so as to provide a clear and understandable standard of conduct. Upon its own analysis, the Acuna court cited Madsen v. Women Health Center Inc., n149 in which the United States Supreme Court held terms such as "'intimidating, harassing, touching, pushing, shoving, crowding or assaulting persons'" to not be unduly vague in the context of an injunction. n150 The California Supreme Court believed there to be no difference between the terms used in the Madsen injunction and the Acuna injunction. n151 Since the terms were ruled constitutional in Madsen, the Acuna court held them to be constitutional in the Acuna injunction.

 [*297]  In its analysis of paragraph (k)'s language, the Acuna court stressed the importance of reading the words of the injunction in the context of its objectives. The court reasoned that when the words of an injunction are read in the abstract, as the court of appeal did, they will surely be vague. n152 However, where the language is viewed in the context of the injunction's objectives, it makes clear the prohibited conduct. n153 When the terms "confront," "annoy," "provoke," "challenge," and "harass" are read with the knowledge of the gang's activity towards neighborhood residents in mind, it is clear that any conduct by the gang which is intended as retaliation against residents will be prohibited. Any conduct which reasonably resembles a confrontation, an annoyance, a provocation, a challenge, or harassment will be unlawful. Therefore, paragraph (k) of the Acuna injunction was held not unduly vague.

E. Anti-Gang Injunctions Apply to Both the Gang Itself and Those Members Specifically Named in the Injunction

The defendants in Acuna argued that they were not subject to the injunction without showing that each defendant specifically intended to further an illegal purpose endorsed by the gang itself. They cited the United States Supreme Court case of NAACP v. Claiborne Hardware Co., n154 which held that "'mere association with [the] group -- absent a specific intent to further an unlawful aim embraced by that group -- is an insufficient predicate for liability.'" n155 In response to this claim, the Acuna court distinguished Claiborne Hardware factually from the situation in Rocksprings, noting that in Claiborne Hardware defendants were members of a civil rights group that had for the most part peacefully boycotted merchants over a seven year span. n156 Specifically, the Supreme Court invalidated an award of damages in Claiborne Hardware because the acts of violence were isolated incidents occurring over a seven year period. In the case of Rocksprings, unlawful acts occurred daily over a period of at least one year, creating and sustaining an atmosphere of violence and mayhem. Further, the Acuna court cited two United States Supreme Court cases creating the proposition that "an organization and its individual members are enjoinable without meeting the 'specific intent to further unlawful  [*298]  group aims . . . .'" n157 Based on these two Supreme Court rulings, the Acuna court concluded that the defendants could be enjoined without having to show each member's specific intent to carryout the gang's unlawful objective.

VII. CONCLUSION

The problem of gang crime and violence undoubtedly is an epidemic spreading across the nation. The disease of gang crime appears to primarily affect juveniles because they are more susceptible to the influences that surround them. California has taken the initiative and lead in the United States in confronting the plague of gangs through its enactment of STEP and anti-gang injunctions.

Critics of STEP and anti-gang injunctions argue that these measures are unconstitutional because they violate the First Amendment right to freedom of association, are vague and overbroad. They assert that these measures are extreme because they interfere with constitutionally protected rights. Critics claim that when the government creates a new means of invading constitutionally protected rights, all persons are subject to the government's tyranny. The critics' rationale is that once a particular right is infringed upon, there is nothing to prevent the government from infringing upon other constitutionally protected rights.

Arguments of this nature would have merit if STEP did interfere with constitutionally protected rights. No rational person would assert that a group of people who conjointly and consistently violate the law have a constitutionally protected right to do so. In the context of crime prevention, and gang crime and violence in particular, this type of reasoning is utter nonsense. The threat of gangs is itself sui generis in the realm of law enforcement because of the tremendous threat posed by a large group of persons assembled for the explicit purpose of committing crime. Crime committed by one person is certainly dangerous to the community. However, when a group of persons congregates to commit crime over an extended period of time, the magnitude  [*299]  of the harm is amplified. The law seeks to deter crime when committed in a conspiracy because the danger posed by a group of persons to the safety of the community is greater than the danger posed by an individual acting alone. In the same manner, society has an immense interest in preventing crime committed by gangs.

Furthermore, the conduct that STEP seeks to outlaw is presently criminal in itself. No person, let alone a group of persons, has the right to congregate in an area to commit crimes such as the sale of drugs, robbery, drive by shootings, and fist-fights. These activities are illegal in and of themselves. STEP simply punishes those individuals that actively promote this type of activity conducted by criminal street gangs. As numerous California Court of Appeal cases have held, STEP neither interferes with the right to freedom of association, nor is vague or substantially overbroad. If STEP is ever reviewed by either the California Supreme Court or the United States Supreme Court, it will certainly pass constitutional muster.

Anti-gang injunctions, on the other hand, do have the potential of violating gang members's constitutional rights because each injunction is separately issued by different city attorneys. Certain provisions could potentially be vague or overbroad in their application. However, where a city attorney does create an injunction that is unconstitutional, the trial court will certainly strike down such a document. For example, in Acuna, the judge eliminated fifteen of twenty-four paragraphs, and the City only appealed two of them, thereby showing that the legal system will protect gang members' constitutional rights if infringed upon.

The state has a right and a duty to "maintain a decent society." n158 As H.G. Wells once stated, "Crime and bad lives are the measure of a State's failure, all crime in the end is the crime of the community." n159 California's local governments have an obligation to assure citizens of a safe, quite, and peaceful neighborhood where they may enjoy life. For society to function in an organized and peaceful manner, the liberty of the individual must be balanced with the needs of society. In some situations, the individual's interest must yield to that of the majority. Common sense dictates that the needs of the many outweigh the needs of the few. Where gang members are restricted, it is done for the good of the community as a whole. Every person in society relinquishes some amount of liberty in order for society to function properly. California's STEP and anti-gang injunctions merely restore  [*300]  and ensure the quiet and peace that every person in America deserves, in a manner that reasonably balances the rights of the individual and society.

FOOTNOTES:
n1 People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1102 (1997) (quoting Kovacs v. Cooper, 336 U.S. 77, 89 (1949)).

n2 Terrence R. Boga, Turf Wars: Street Gangs, Local Governments, and the Battle for Public Space, 29 HAR. C.R.-C.L. REV. 477, 477 n.2 (1994) (citing Larry Gordon, Gang Bullets Kill Child in Mother's Car, L.A. TIMES, Nov. 21, 1993, at A1).

n3 LOS ANGELES COUNTY SHERIFF'S DEPARTMENT, SAFE STREETS BUREAU CUMULATIVE COUNTYWIDE TOTALS FOR ARRESTS (1988-89, 1992-97). The Los Angeles County Sheriff's Department compiles annual totals for gang related arrests for all counties in Los Angeles. Id.

n4 Id.

n5 CAL. PENAL CODE §§ 186.22(a-f) (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n6 Id.

n7 CAL. PENAL CODE §§ 186.21 (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n8 Bob Baker & Edwin Chen, New Anti-Terrorism Law Used Against L.A. Gangs, L.A. TIMES, Apr. 21, 1989, available in 1989 WL 2309650.

n9 See Richard Lee Colvin, City Going to Court in Bid to Pressure Gang Blythe Street: Lawsuit Paints Vivid Picture of Heavily Armed, Organized Criminals Who Sustain a Lucrative Drug Enterprise in Panorama City, L.A. TIMES, Feb. 22, 1993, available in 1993 WL 2347305; and Maura Doland and Alan Abrahamson, State High Court Allows Injunctions to Restrict Gang Safety: Ruling Stresses Public Concerns, Lets Cities Ban Legal Activities of Alleged Members. Officials in O.C., Elsewhere Exult But Civil Libertarians Denounce the Decision., L.A. TIMES, Jan. 31, 1997, available in 1997 WL 2177982.

n10 Andrew Blankstein, Valley' Top Cop Assails Anti-Gang Injunctions Police: Bostic Calls the Tactic Too Costly and Frequently Ineffective. He Recommends That Beat Officers be Better Equipped to Catch Parole Violators, L.A. TIMES, Nov. 11, 1997, available in 1997 WL 14003428.

n11 Id.

n12 South Bay Crime Drops 90% Since Filing of Gang Injunction, L.A. TIMES, Nov. 2, 1996, available in 1996 WL 12752258.

n13 Julie Tamaki, Valley Gang Injunction Only Shifted Crime, ACLU Says Law: Report Maintains Illegal Actions Dropped in Target Area But Rose Nearby. Authorities Defend Tactic, L.A. TIMES, May 29, 1997, available in 1997 WL2215091.

n14 See Andrew Blankstein, Valley's Top Cop Assails Anti-Gang Injunctions Police: Bostic Calls the Tactic Too costly and Frequently Ineffective. He Recommends That Beat officers Be Better Equipped to Catch Parole Violators, L.A. TIMES, Nov. 11, 1997, available in 1997 WL 14003428.

n15 14 Cal. 4th 1090 (1997).

n16 CAL. PENAL CODE § 186.22(a) (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n17 Id.

n18 Id.

n19 CAL. PENAL CODE § 186.22(e) (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n20 Id. Paragraph (e) limits a pattern of criminal gang activity to the following offenses:
(1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.
(2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1.
(3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1.
(4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code.
(5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.
(6) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034.
(7) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.
(8) The intimidation of witnesses and victims, as defined in Section 136.1.
(9) Grand theft, as defined in Section 487, when the value of the money, labor, or real or personal property taken exceeds ten thousand dollars ($ 10,000).
(10) Grand theft of any vehicle, trailer, or vessel, as described in Section 487h.
(11) Burglary, as defined in Section 459.
(12) Rape, as defined in Section 261.
(13) Looting, as defined in Section 463.
(14) Moneylaundering, as defined in Section 186.10.
(15) Kidnapping, as defined in Section 207.
(16) Mayhem, as defined in Section 203.
(17) Aggravated mayhem, as defined in Section 205.
(18) Torture, as defined in Section 206.
(19) Felony extortion, as defined in Sections 518 and 520.
(20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594.
(21) Carjacking, as defined in Section 215.
(22) The sale, delivery, or transfer of a firearm, as defined in Section 12072.
(23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101. Id.

n21 CAL. PENAL CODE § 186.22(f) (West, WESTLAW through 1997 of the 1997-98 Legis. Sess.).

n22 Id.

n23 Alexander A. Molina, California's Anti-Gang Street Terrorism Enforcement and Prevention Act: One Step Forward, Two Steps Back?, 22 SW. U. L. REV. 457, 475-76 (1993).

n24 CAL. PENAL CODE § 186.21 (West, WESTLAW through 1997 of the 1997-98 Legis. Sess.).

n25 Id.

n26 Id.

n27 Edwin Chen, New Anti-Terrorism Law Used Against L.A. Gangs, L.A. TIMES, Apr. 21, 1989, available in 1989 WL 2309650.

n28 Richard Lee Colvin, City Going to Court in Bid to Pressure Gang Blythe Street: Lawsuit Paints Vivid Picture of Heavily Armed, Organized Criminals Who Sustain a Lucrative Drug Enterprise in Panorama City, L.A. TIMES, Feb. 22, 1993, available in 1993 WL 2347305.

n29 Id.

n30 CAL. PENAL CODE § 186.21 (West, WESTLAW through 1997 portion of the 1997-98 Legis. Sess.).

n31 Id.

n32 Id.

n33 U.S. CONST. amend. I.

n34 U.S. CONST. amend. XIV, § 1.

n35 Roberts v. United States, 468 U.S. 609, 617-18 (1984).

n36 Id. at 619.

n37 Id. at 622.

n38 Alexander A. Molina, California's Anti-Gang Street Terrorism Enforcement and Prevention Act: One Step Forward, Two Steps Back?, 22 SW. U. L. REV. 457, 463 (1993).

n39 Id.

n40 Roberts v. United States, 468 U.S. 609, 619-20 (1984).

n41 Id. at 620.

n42 Id.

n43 490 U.S. 19 (1989).

n44 Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

n45 512 U.S. 753 (1994).

n46 Madsen v. Women's Health Center Inc., 512 U.S. 753, 776 (1994).

n47 Alexander A. Molina, California's Anti-Gang Street Terrrorism Enforcement and Prevention Act: One Step Forward, Two Steps Back?, 22 SW. U. L. REV. 457, 467 (1993).

n48 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982).

n49 367 U.S. 203 (1961).

n50 Scales v. United States, 367 U.S. 203, 205 n.1 (1961). The Smith Act states: "Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State . . . . Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof . . . ." Id.

n51 Id. at 227.

n52 227 Cal. App. 3d 692 (1991).

n53 People v. Green, 227 Cal. App. 3d 692, 700 (1991).

n54 Id.

n55 See CAL. PENAL CODE §§ 186.21-22(a-f) (West, WESTLAW through 1997 portion of the 1997-98 Legis. Sess.).

n56 Roberts v. United States, 468 U.S. 609, 623 (1984).

n57 Scales v. United States, 367 U.S. 203, 229 (1961). The Smith Act prohibited active membership in any organization advocating the violent overthrow of the United States government by a person having knowledge of and the intent to further the organization's criminal conduct. Id. at 204.

n58 See, e.g., People v. Green, 227 Cal. App. 3d 692, (1991); People v. Gardeley, 14 Cal. 4th 605 (1996); In re Alberto R., 235 Cal. App. 3d 1309 (1991), in which defendants claimed STEP's provisions were unduly vague.

n59 See, e.g., People v. Green, 227 Cal. App. 3d 692, (1991); People v. Gardeley, 14 Cal. 4th 605 (1996); In re Alberto R., 235 Cal. App. 3d 1309 (1991), in which defendants asserted that STEP prohibited mere association with known gang members in violation of the First Amendment right to freedom of association.

n60 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

n61 Id. (quoting Connally v. General Const. Co., 269 U.S. 385, 391 (1926)).

n62 Grayned v. City of Rockford, 408 U.S. 104, 109 (1972).

n63 People v. Green, 227 Cal. App. 3d 692, 698 (1991).

n64 Id. at 699-704.

n65 CAL. PENAL CODE § 186.22(a) (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n66 CAL. PENAL CODE § 186.22(e) (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n67 Grayned v. City of Rockford, 408 U.S. 92, 110 n.15 (1972) (citing American Communications Assn. v. Douds, 339 U.S. 382, 412 (1950)).

n68 Boyce Motor Lines Inc. v. United States, 342 U.S. 337, 340 (1952). See also United States v. Petrillo, 332 U.S. 1, 7-8 (1947) where the court stated, "The Constitution does not require impossible standards; all that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . . ."

n69 CAL. PENAL CODE § 186.22(e) (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n70 Id.

n71 Thornhill v. Alabama, 310 U.S. 88, 97 (1940).

n72 In re Alberto R., 235 Cal. App. 3d 1309, 1316 (1991) (citing Broadrick v. Oklahoma, 413 U.S. 601, 618 (1973)).

n73 Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

n74 306 U.S. 451 (1939).

n75 Id. 458.

n76 Id. The statute in Lanzetta stated: "Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster." Id.

n77 People v. Green, 227 Cal. App. 3d 692, 702 (1991). 18 U.S.C. § 1962(c) states, "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Id. (citing 18 U.S.C. § 1962(c)).

n78 Id. (citing United States v. Turkette, 452 U.S. 576, 583 (1981)).

n79 Id.

n80 Id.

n81 Id. (citing United States v. Turkette, 452 U.S. 576, 583 (1981)).

n82 CAL. PENAL CODE § 186.22(a) (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.).

n83 Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 217 n.23 (1994) (citing People v. Playboy Gangster Crips, No. WEC 118860 (Cal. Super. Ct. Los Angeles County Dec. 11, 1987)).

n84 Id. at 218 n.30.

n85 Id. at 219.

n86 512 U.S. 753 (1994).

n87 Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 219 n.37 (1994).

n88 Id. at 219 n.33.

n89 Id. at 219 n.34.

n90 Id. at 219 n.36.

n91 Id. at 219 n.39.

n92 Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 219 n.38 (1994). Injunctions were denied in Amaya and "B" Street Boys based upon constitutional grounds. The Amaya court rejected the proposed injunction citing violations of the First and Fourteenth Amendments to the United States Constitution and the California Constitutional right to privacy. The "B" Street Boys court denied an injunction holding that the proposed injunction was vague and overbroad. Id.

n93 Id. at 221-22.

n94 Id. at 221-25.

n95 Id. at 222 n.55 (citing People ex rel. City Attorney v. Avalos, No. CV 739089, slip op. at 3 (Cal. Super. Ct. Santa Clara County filed Mar. 30, 1994); People ex rel. City Attorney v. Acuna, No. 729322, slip op. at 2 (Cal. Super. Ct. Santa Clara County June 28, 1993); People ex rel. Fletcher v. Acosta, No. EC 010205, slip op. at 3 (Cal. Super. Ct. Los Angeles County Nov. 2, 1992)).

n96 Id. at 222 nn.56-57 (citing People v. Blythe Street Gang, No. LC 020225, slip op. at 4-5 (Cal. Super. Ct. Los Angeles County Apr. 7, 1993)).

n97 Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 223 n.58 (1994) (citing People v. Playboy Gangster Crips, No. WEC 118860 (Cal. Super. Ct. Los Angeles County Dec. 11, 1987)).

n98 Id. at 222 (citing People ex rel. City Attorney v. Avalos, No. CV 739089, slip op. at 3 (Cal. Super. Ct. Santa Clara County filed Mar. 30, 1994) (order granting preliminary injunction); People v. Blythe Street Gang, No. LC 020225, slip op. at 4-5 (Cal. Super. Ct. Los Angeles County Apr. 7, 1993) (order for preliminary injunction)).

n99 Id. at 223 nn.59-60 (citing People ex rel. City Attorney v. Avalos, No. CV 739089, slip op. at 3 (Cal. Super. Ct. Santa Clara County filed Mar. 30, 1994) (order granting preliminary injunction); People v. Blythe Street Gang, No. LC 020225, slip op. at 4-5 (Cal. Super. Ct. Los Angeles County Apr. 7, 1993) (order for preliminary injunction)).

n100 Id. at 223.

n101 Id. at 223 n.64 (citing People ex rel. City Attorney v. Avalos, No. CV 739089, slip op. at 3 (Cal. Super. Ct. Santa Clara County filed Mar. 30, 1994) (order granting preliminary injunction); People ex rel. City Attorney v. Acuna, No. 729322, slip op. at 2 (Cal. Super. Ct. Santa Clara County June 28, 1993)).

n102 Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 223 n.64 (1994) (citing People ex rel. City Attorney v. Avalos, No. CV 739089, slip op. at 3 (Cal. Super. Ct. Santa Clara County filed Mar. 30, 1994) (order granting preliminary injunction); People ex rel. City Attorney v. Acuna, No. 729322, slip op. at 2 (Cal. Super. Ct. Santa Clara County June 28, 1993); People ex rel. Fletcher v. Acosta, No. EC 010205, slip op. at 3 (Cal. Super. Ct. Los Angeles County filed Oct. 7, 1992); People v. Blythe Street Gang, No. LC 020225, slip op. at 4-5 (Cal. Super. Ct. Los Angeles County Apr. 7, 1993) (order for preliminary injunction); City of Norwalk v. Orange St. Locos, No. VC 016746, slip op. at 2 (Cal. Super. Ct. Los Angeles County Aug. 25, 1994) (preliminary injunction)). A provision requesting a restriction on gang movement was denied in the "B" Street Boys. Id. (citing Complaint for Injunction and Equitable Relief to Abate a Public Nuisance at 10, "B" St. Boys (No. 735405-4)).

n103 Id. at 224.

n104 Id. at 224 (citing City of Norwalk v. Orange St. Locos, No. VC 016746, slip op. at 2 (Cal. Super. Ct. Los Angeles County Aug. 25, 1994) (preliminary injunction); People v. Blythe Street Gang, No. LC 020225, slip op. at 4-5 (Cal. Super. Ct. Los Angeles County Apr. 7, 1993) (order for preliminary injunction)).

n105 Id. at 224 n.67.

n106 Id. at 224 n.68.

n107 Christopher S. Yoo, The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 225 (1994).

n108 Id. at 225 n.70 (quoting People ex rel. City Attorney v. Avalos, No. CV 739089, slip op. at 3-4 (Cal. Super. Ct. Santa Clara County filed Mar. 30, 1994) (order granting preliminary injunction; People ex rel. City Attorney v. Acuna, No. 729322, slip op. at 4 (Cal. Super. Ct. Santa Clara County June 28, 1993); People ex rel. Fletcher v. Acosta, No. EC 010205, slip op. at 4 (Cal. Super. Ct. Los Angeles County filed Oct. 7, 1992)).

n109 14 Cal. 4th 1090 (1997).

n110 Acuna, 14 Cal. 4th at 1102-09.

n111 Id. at 1102-09 (citing CAL. CIV. CODE § 3479 (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.)).

n112 CAL. CIV. CODE § 3479 (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.)).

n113 CAL. PENAL CODE § 370 (West, WESTLAW through 1997 portion of 1997-98 Legis. Sess.)).

n114 Acuna, 14 Cal. 4th at 1107 (citing People v. Lim, 18 Cal. 2d 872 (1941)).

n115 Id. (citing People v. Lim, 18 Cal. 2d 872, 877 (1941)).

n116 Id. at 1108-09.

n117 Id. at 1100-01.

n118 Id. at 1100.

n119 Acuna, 14 Cal. 4th at 1100.

n120 Id. at 1100.

n121 Id.

n122 Id.

n123 Id. at 1101.

n124 Acuna, 14 Cal. 4th at 1101. The order granting the preliminary injunction enjoins defendants from the following acts:
(a) Standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant herein, or with any other known 'VST' (Varrio Sureno Town or Varrio Sureno Treces) member;
(b) Drinking alcoholic beverages in public excepting consumption on properly licensed premises or using drugs;
(c) Possessing any weapons including but not limited to knives, dirks, daggers, clubs, nunchukas [sic; nunchakus], BB guns, concealed or loaded firearms, and any other illegal weapons as defined in the California Penal Code, and any object capable of inflicting serious bodily injury including but not limited to the following: metal pipes or rods, glass bottles, rocks, bricks, chains, tire irons, screwdrivers, hammers, crowbars, bumper jacks, spikes, razor blades, razors, sling shots, marbles, ball bearings;
(d) Engaging in fighting in the public streets, alleys, and/or public and private property;
(e) Using or possessing marker pens, spray paint cans, nails, razor blades, screwdrivers, or other sharp objects capable of defacing private or public property;
(f) Spray painting or otherwise applying graffiti on any public or private property, including but not limited to the street, alley, residences, block walls, vehicles and/or any other real or personal property;
(g) Trespassing on or encouraging others to trespass on any private property;
(h) Blocking free ingress and egress to the public sidewalks or street, or any driveways leading or appurtenant thereto in 'Rocksprings';
(i) Approaching vehicles, engaging in conversation, or otherwise communicating with the occupants of any vehicle or doing anything to obstruct or delay the free flow of vehicular or pedestrian traffic;
(j) Discharging any firearms;
(k) In any manner confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting and/or battering any residents or patrons, or visitors to 'Rocksprings', or any other persons who are known to have complained about gang activities, including any persons who have provided information in support of this Complaint and request for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction;
(l) Causing, encouraging, or participating in the use, possession and/or sale of narcotics;
(m) Owning, possessing or driving a vehicle found to have any contraband, narcotics, or illegal or deadly weapons;
(n) Using or possessing pagers or beepers in any public space;
(o) Possessing channel lock pliers, picks, wire cutters, dent pullers, sling shots, marbles, steel shot, spark plugs, rocks, screwdrivers, 'slim jims' and other devices capable of being used to break into locked vehicles;
(p) Demanding entry into another person's residence at any time of the day or night;
(q) Sheltering, concealing or permitting another person to enter into a residence not their own when said person appears to be running, hiding, or otherwise evading a law enforcement officer;
(r) Signaling to or acting as a lookout for other persons to warn of the approach of police officers and soliciting, encouraging, employing or offering payment to others to do the same;
(s) Climbing any tree, wall, or fence, or passing through any wall or fence by using tunnels or other holes in such structures;
(t) Littering in any public place or place open to public view;
(u) Urinating or defecating in any public place or place open to public view;
(v) Using words, phrases, physical gestures, or symbols commonly known as hand signs or engaging in other forms of communication which describe or refer to the gang known as 'VST' or 'VSL' . . . as described in this Complaint or any of the accompanying pleadings or declarations;
(w) Wearing clothing which bears the name or letters of the gang known as 'VST' or 'VSL' . . .;
(x) Making, causing, or encouraging others to make loud noise of any kind, including but not limited to yelling and loud music at any time of the day or night.' Id. at 1135 n.3.

n125 Acuna, 14 Cal. 4th at 1101, 1136. The court of appeal struck down paragraphs (a), (e), (i), (m), (n), (o), (q), (r), (s), (v), (w), and (x) as whole paragraphs and paragraphs (c), (k), and (l) in part. Id.

n126 Id. at 1101, 1136.

n127 Alan Abrahamson & Maura Dolan, State High Court Allows Injunctions to Restrict Gangs Safety: Ruling Stresses Public Concerns, Lets Cities Ban Legal Activities of Alleged Members. Officials in O.C., Elsewhere Exult But Civil Libertarians Denounce Decision, L.A. TIMES, Jan. 31, 1997, available in 1997 WL 2177982.

n128 Acuna, 14 Cal. 4th at 1110-11 (citing Roberts v. United States Jaycees 468 U.S. 609, 619, 622 (1984)).

n129 Id. at 1111.

n130 Id. at 1112 (quoting Madsen v. Women's Health Center Inc., 512 U.S. 753, 767 (1994)).

n131 Id.

n132 Id.

n133 Acuna, 14 Cal. 4th at 1113.

n134 Id.

n135 Id.

n136 Id. at 1114.

n137 Id. (quoting John Calvin Jeffries, Jr., Rethinking Prior Restraint, 92 YALE L.J. 409, 429 (1983)).

n138 Acuna, 14 Cal. 4th at 1114.

n139 Id. at 1120 (quoting Madsen v. Women's Health Center Inc., 512 U.S. 753, 765 (1994)).

n140 Id. at 1121.

n141 Id.

n142 Id. at 1122 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) and quoting Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993)).

n143 Acuna, 14 Cal. 4th at 1121.

n144 Id. at 1115.

n145 Id. at 1116 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497-98 (1982)).

n146 Id. at 1117.

n147 Id. at 1118.

n148 Acuna, 14 Cal. 4th at 1118.

n149 512 U.S. 753 (1994).

n150 Acuna, 14 Cal. 4th at 1118 (quoting Madsen v. Women's Health Center Inc., 512 U.S. 753, 765 (1994)).

n151 Id.

n152 Id. at 1117.

n153 Id. at 1118.

n154 458 U.S. 886 (1982).

n155 Acuna, 14 Cal. 4th at 1123 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 925-26 (1982)).

n156 Id. at 1123 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 925-26 (1982)).

n157 Id. (citing Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941) and Madsen v. Women's Health Center Inc., 512 U.S. 753 (1994)). In Drivers Union, the trial court issued an injunction "restraining all union conduct, violent and peaceful" concerning a labor dispute. The Supreme Court upheld the injunction maintaining, "[A] state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed." Id. In Madsen, the Supreme Court upheld an injunction prohibiting anti-abortion organizations from picketing near abortion clinics. The injunction was aimed at the anti-abortion organization as well as its officers, agents, members, employees, servants, and "all persons acting in concert or participation with them, or on their behalf." Id.

n158 Id. at 1102 (quoting Jacobellis v. Ohio, 378 U.S. 184, 199 (1964)).

n159 H.G. WELLS, A MODERN UTOPIA 144 (1905).