McCubbin v. Weber Cnty.
| Decision Date | 04 August 2017 |
| Docket Number | Consolidated Case No. 1:15-cv-133,Consolidated Case No. 1:15-cv-132 |
| Parties | LELAND KIM MCCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs, v. WEBER COUNTY, OGDEN CITY, CHRISTOPHER ALLRED, in his official capacity, and DOES 1-10 Defendants. |
| Court | U.S. District Court — District of Utah |
These consolidated actions challenge a now-voided "gang injunction" secured by Ogden City and Weber County targeting the Ogden Trece gang. Weber County and Weber County Attorney Christopher Allred (hereinafter Weber County, unless otherwise indicated) filed a Second Motion for Judgment on the Pleadings seeking dismissal of all claims brought against Weber County in this case on various legal theories. (Dkt. No. 60.) On May 24, 2017, the court heard oral argument on the Motion. (See Dkt. No. 74.) For the reasons discussed below, the court now DENIES the Motion in all respects, except as to the state tort claims. The court GRANTS the Motion dismissing Plaintiffs' Eighth and Ninth Claims for Relief.
For the purpose of resolving this Motion, the court must accept all well-pled, non-conclusory factual allegations and all reasonable inferences from the pleadings as true. See Park Univ. Enterprises, Inc. v. Am. Cas. Co. Of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006), abrogated on other grounds by Magnus, Inc. v. Diamond State Ins. Co., 545 F. App'x 750, 753 (10th Cir. 2013) (). Moreover, because the gang injunction was previously challenged in the Utah Supreme Court, see Weber Cty. v. Ogden Trece, 2013 UT 62, 321 P.3d 1067, this court will cite to the Utah Supreme Court's opinion where it recounts similar or identical facts.
In August 2010, Weber County lodged a complaint for a permanent injunction against the Ogden Trece street gang. Weber County sought the injunction "under a public nuisance theory pursuant to section 76-10-806 of the Utah Code, which empowers a county attorney 'to institute an action in the name of the county ... to abate a public nuisance.'" Trece, 2013 UT 62, ¶ 2 (quoting Utah Code Ann. § 76-10-806).1 The district court entered a temporary restraining order that same day.
Weber County served the nuisance suit personally on five alleged Trece members, mailed process to twelve others, and attempted to serve the Trece itself by publication. Weber County did not serve either Mr. Lucero or Mr. McCubbin with the complaint, temporary restraining order, or any other motion in the nuisance suit. (Am. Compl. ¶ 26.) Following an evidentiary hearing on September 14 and 27, 2010, the state district court converted the temporary restraining order to a preliminary injunction. Two Ogden police officers testified at the hearing about the criminal and nuisance activity of the Trece gang. (Trece, 2013 UT 62, ¶ 11; see Am.Compl. ¶ 21-22 ().)
Weber County then began serving the preliminary injunction on more than three hundred alleged members of the Trece. Though individuals served sought to intervene in the nuisance suit and challenge the injunction, the district court denied all motions to intervene, reasoning that service of the injunction satisfied due process because it placed those served on notice of the injunction.
The injunction restricted anyone served from engaging in an array of activities within the "Safety Zone," a twenty-five square-mile area encompassing nearly all of Ogden City. First, the injunction prohibited association with any "known member" of the Trece in public, including "[d]riving, standing, sitting, walking, gathering, or appearing together with any known member of Ogden Trece anywhere in public view or anyplace accessible to the public." ( The injunction did not, however, identify or otherwise define "known" Trece members, apparently leaving the determination of who was a "known member" to the discretion of law enforcement. (Am. Compl. ¶ 34; see id. ¶ 49.)
Next, the injunction prohibited intimidation of witnesses, victims, or complainants, including "[c]onfronting, intimidating, annoying, harassing, threatening, challenging, provoking, [or] assaulting any person known to be a witness to any activity of Ogden Trece, known to be a victim of any activity of Ogden Trece, or known to have complained about any activity of Ogden Trece." ( The injunction also prohibited a served person from possessing or being in the presence of firearms and otherweapons; creating graffiti or possessing tools that could be used to create graffiti; selling, possessing, using, or being in the presence of drugs or drug paraphernalia; consuming or being in the presence of alcohol consumption except at home or in licensed establishments; and trespassing. The injunction did not require that the person being prohibited from possessing a firearm be a convicted felon or convicted of any crime that would abrogate his rights under the Second Amendment. (See Am. Compl., Ex. 1 at 3.)
The injunction imposed a curfew between the hours of 11 p.m. and 5 a.m.—with exceptions for travel to and from work, and from any non-gang related entertainment event, school activity, or religious service, as well as for "legitimate emergenc[ies]," including disasters, accidents, and situations that require "immediate action to prevent serious bodily injury or loss of life." ( It further required served persons "to obey all laws." (
The injunction contained an "opt-out" provision under which a served person could seek dismissal of, and thereby render unenforceable, the injunction against them by declaring that he or she is a former, non-active member of the Trece, and submitting proof of his or her lack of recent criminal history, lack of association with known active Trece members, lack of new gang-related tattoos, and gainful employment. ( Notably, never having been a gang member was not a basis to opt out. Plaintiffs contend that such a procedure shifted the costs of "opting out" of possible criminal sanctions to those served, and forced served persons who were never members of the Trece gang to perjure themselves in attempting to opt out. (Am. Compl. ¶¶ 42-43.) The injunction also contained a "hardship exemption process" by which a served person could request exceptions to the curfewand association restrictions via a written application to the Weber County Attorney and, thereafter, by application to the district court. (Id. ¶ 44; Trece, 2013 UT 62, ¶ 19.) Remarkably, if a parson successfully opted out, the person remained subject to the prohibition on association with known active Trece gang members and getting arrested for "any crime . . . determined to be . . . gang-related," thus effectively extending the injunction's core prohibitions indefinitely. (Am. Compl., Ex. 1 at 7.)
Finally, the injunction contained a "no third-party beneficiaries" provision, stating that a served person's eligibility to "opt-out" was not a defense to a civil or criminal case for violation of the injunction. ( Plaintiffs allege that this provision precluded them from using the fact that they were not members of the Trece as a defense if, and when, they were criminally charged with violating the preliminary injunction. (Id. ¶ 46.)
Because the injunction did not require Weber County to establish in court that a person intended to be served was, in fact, a Trece member, Plaintiffs allege that Weber County engaged in a policy or practice of permitting its representatives and agents unfettered discretion as to which individuals they chose to serve with the preliminary injunction. (Id. ¶¶ 49-50, 55.) This policy resulted in Weber County serving persons it knew were not gang members, as well as disproportionately targeting Hispanics living in Ogden. (Id. ¶¶ 55-59.) Plaintiffs contend the complete discretion allowed ethnic prejudice and subjective criteria to play a part in identifying those to be served, and observe that Hispanics constituted the vast majority of those served. (Id. ¶¶ 61-62, 64.) Plaintiffs allege that Weber County and Ogden City law enforcement had actual knowledge that neither Mr. Lucero nor Mr. McCubbin was a member of the Trece when served with the preliminary injunction, and thus assert that impermissible ethnic prejudice, rather than Trece membership, informed the decision to serve them. (Id. ¶ 88.) Moreover, Weber Countyand Ogden City allegedly jointly maintain a non-public gang database that contains Plaintiffs' names and other names of individuals believed to be members, associates, or agents of criminal organizations, including the Trece. (Id. ¶¶ 51-53, 92, 149, 155.)
On June 14, 2012, after another evidentiary hearing,2 the district court entered a permanent injunction against the Trece that was substantially identical to the preliminary injunction. Plaintiffs allege...
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