The Constitutionality of Enjoining Criminal Street Gangs as Public Nuisances

Abstract

California jurisdictions have increasingly used injunctions to combat the growth criminal street gangs. The use of civil sanctions to redress criminal activity raises difficult constitutional questions, potentially creating personal criminal codes that may infringe upon defendants’ substantive constitutional rights. In addition, employing civil remedies may deprive defendants of constitutional procedural protections that would have been provided if the jurisdiction had elected to deter the same behavior with available criminal sanctions. Although the use of injunctions places pressure on a number of substantive constitutional rights, including the freedom of association, freedom of expression, right to travel, the injunction terms will likely be found to be reasonable restrictions of those rights except for wearing of gang insignia and the use of hand signs. Properly drafted anti-gang injunctions can avoid the problems associated with guilt by association, void for vagueness, and overbreadth. Courts should evaluate on a case-by-case basis whether subjects of anti-gang injunctions should receive additional procedural protections, such as the right to a contested hearing and the right to appointed counsel.