McCubbin v. Weber Cnty.

• Decision Date: 27 September 2019
• Docket Number: Case No. 1:15-cv-132
• Parties: LELAND KIM MCCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs, v. WEBER COUNTY, CHRISTOPHER ALLRED, in his official capacity, and DOES 1-10 Defendants.
• Court: U.S. District Court — District of Utah

LELAND KIM MCCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs, v. WEBER COUNTY, CHRISTOPHER ALLRED,in his official capacity, and DOES 1-10 Defendants.

Case No. 1:15-cv-132

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

September 27, 2019

MEMORANDUM DECISION & ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Judge Clark Waddoups

Introduction

Before the court are Plaintiffs Leland Kim McCubbin, Jr. and Daniel Joseph Lucero's Motion for Partial Summary Judgment, (ECF No. 93) and Weber County and Christopher Allred's Motion for Summary Judgment (ECF No. 156). As explained below, the court GRANTS Plaintiffs' Motion. The court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment.

Factual Background

Weber County Decision to Seek a Gang Injunction

Dee Smith (Mr. Smith) was appointed as Weber County's attorney in May of 2009. (Smith Depo., ECF No. 94-4 at 5: 5.) Sometime after his appointment, Mr. Smith received an e-mail from the director of the Utah Prosecution Council. (See Smith Depo., ECF No. 94-4 at 6: 10-12.) The e-mail had information about gang injunctions. (Smith Depo., ECF No. 94-4 at 6: 17.)

According to Mr. Smith, Weber County was "dealing with a significant gang problem" at that time and was "looking for solutions." (See Smith Depo., ECF No. 94-4 at 7: 8-10.) Chris Allred (Mr. Allred), the current Weber County Attorney, was in Weber County's "civil division at that time." (See Smith Depo., ECF No. 94-4 at 7: 8-18.)

Sometime in the fall of 2009 or in early 2010, Mr. Smith and Mr. Allred spent approximately one month "examining" and "researching" gang injunctions. (See Smith Depo., ECF No. 94-4 at 7: 17-21.) After Mr. Smith and Mr. Allred "concluded [that a gang injunction] may be something that would work in [their] community," Mr. Smith "talked with Lieutenant Scott Conley," an Ogden City lieutenant "over the gang unit at that time" about a gang injunction. (See Smith Depo., ECF No. 94-4 at 8:13-19.) Mr. Smith eventually talked to Ogden City's police chief at that time, John Greiner, about the idea of a gang injunction. (See Smith Depo., ECF No. 94-4 at 9: 8-10.) According to Mr. Smith, the Ogden City police chief "was interested in" a gang injunction and thought it "would be a good idea." (Smith Depo., ECF No. 94-4 at 10: 1-3.) According to Mr. Smith, he eventually met with the former mayor of Ogden, May Godfrey, who indicated that the city was "willing" "to assist with" the gang injunction. (See Smith Depo., ECF No. 94-4 at 11:6-9.)

In addition, Dee Smith met with County "Commissioner Dearden" about the gang injunction, but the County Commission "didn't vote on it," and did not formally approve the gang injunction. (See Smith Depo., ECF No. 94-4 at 20: 3-8; see also Smith Depo., ECF No. 94-4 at 20: 12-14 ("So the commission, to [Dee Smith's] knowledge, never had a formal vote" on the gang injunction). Further, at Mr. Smith's deposition, the following line of questioning occurred:

Q. Okay. So why didn't you take the prospect of bringing the [gang injunction] suit before the full county commission?

A. Because it was -- it was the county attorney's action. It was -- I was an elected official, it was my decision that my - that's what we would do.

(Smith Depo., ECF No. 94-4 at 21 (bold added).)

Ogden Trece Nuisance Suit

On August 20, 2010, Weber County filed a lawsuit against the Ogden Trece gang, in an action titled Weber County v. Ogden Trece, Case No. 100906446 (the "Nuisance Suit"). (ECF No. 93 at 4; See also ECF No. 94-2 at 1.) "It brought this action against Ogden Trece as an unincorporated association." Weber Cty. v. Ogden Trece, 2013 UT 62, ¶ 7, 321 P.3d 1067, 1070-71. "Weber County did not name any individual as a defendant in the Nuisance Suit." (ECF No. 93 at 8; ECF No. 113 at 5.) Weber County sought an 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). "The district court entered a temporary restraining order that same day." Trece, 2013 UT 62 ¶ 7. The state district court did not hear any opposition to the motion. 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. Trece, 2013 UT 62 ¶¶ 8-10.

"On September 14 and 27, 2010, the [state] district court held an evidentiary hearing on [Weber] County's request to convert the temporary restraining order to a preliminary injunction." Trece, 2013 UT 62 ¶ 11. The state district court "heard testimony from two Ogden police officers who testified about the criminal and nuisance activity of Trece." Id. It appears that one of those officers, Anthony Powers, testified for Weber County as an expert on the Trece gang. (See Powers Depo., ECF No. 94-15 at 193: 18-19 ("I had already testified as an expert previously in second district court.").)

"Following the hearing, the [state] district court converted the temporary restraining order to a preliminary injunction . . . ." Trece, 2013 UT 62 ¶ 11. The Preliminary Injunction applied to an area desginated as the "Safety Zone," "a twenty-five square-mile area encompassing most of the city of Ogden." Trece, 2013 UT 62 ¶ 16. The Preliminary Injunction provided, in part:

1. Defendant Ogden Trece and all members of defendant Ogden Trece, are enjoined and restrained from engaging in or performing, directly or indirectly, any of the following activities in the Safety Zone:

a. Do Not Associate: Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or anyplace accessible to the public, with any known member of Ogden Trece, but not including: (1) when all individuals are inside a school attending class or on school business, and (2) when all individuals are inside a church, provided however that this prohibition against associating shall apply to all claims of travel to or from any of those locations;

b. No Intimidation: Confronting, intimidating, annoying, harassing, threatening, challenging, provoking, 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.

...

d. No Graffiti or Graffiti Tools: Damaging, defacing, spraying, scratching, affixing, inscribing, or marking any public property or private property of another, or possessing any spray paint container, felt tip marker, or other graffiti tools anywhere in public view or anyplace accessible to the public;

...

f. Stay Away From Alcohol: Anywhere in public view or any place accessible to the public, except on properly licensed premises, (1) possessing an open container of an alcoholic beverage, (2) knowingly remaining in the presence of anyone possessing an open container of an alcoholic beverage, or (3) knowingly remaining in the presence of an open container of an alcoholic beverage;

g. No Trespassing: Being present on or in any property not open to the general public, except (1) with the prior written consent of the owner, owner's agent, or the person in lawful possession of the property, or (2) in the presence of and with the voluntary consent of the owner, owner's agent, or the person in lawful possession of the property;

h. Obey Curfew: Being present in public view, in a public place or in any place accessible to the public, between the hours of 11 p.m. on any date and 5 a.m. of the following day, unless (1) going directly to, returning directly from, or activelyengaged in a legitimate business trade, profession or occupation requiring the enjoined person's presence, (2) going directly to, returning directly from, or actively engaged in a lawful, non-gang related entertainment event, school activity or religious service, or (3) actively involved in a legitimate emergency, such as a fire, natural disaster, automobile accident or situation that requires immediate action to prevent serious bodily injury or loss of life. For purpose of this provision, "entertainment event" means an amusement activity that occurs at a commercial establishment and includes only events for which admission is charged, such as movies, plays, public performances or sporting events; and

i. Obey All Laws: Failing to obey all laws (1) which prohibit violence and threatened violence, including murder, rape, robbery, assault, (2) which prohibit interference with the property rights of others including trespass, theft, driving or taking a vehicle without the owner's consent, and vandalism, or (3) which prohibit the commission of acts which create a nuisance including the illegal sale of controlled substances and blocking the sidewalk.

(ECF No. 94-5 at 2-4.)

The Preliminary Injunction also contained an "'Opt Out' Provision." (ECF No. 94-5 at 5.) The Opt Out Provision provided, in part:

Any person . . . who has been served with this injunction or any subsequent injunction entered in this action (hereinafter, "Gang Injunction") may move this Court under this opt-out provision or any subsequent opt-out provision approved by this Court to be dismissed from this action. This Gang Injunction shall not be enforceable against a Served Person who is dismissed under this Opt Out Provision. The terms of the current Opt-Out Provision are as follows:

Requirements: Plaintiff agrees not to object to a Served Person's motion to be dismissed under this provision, so long as the dismissal is to be without prejudice and with each side to bear its own costs and fees, and so long as the motion satisfies the following requirements:

Proper Notice: A motion under this provision shall be made on proper notice, properly served on plaintiff's counsel, and shall not be made on shortened time;

Not/No Longer a Gang Member: Served Person must

...