Vasquez v. Rackauckas

• Decision Date: 05 November 2013
• Docket Number: 11–56126,11–55876,Nos. 11–55795,11–56166.,s. 11–55795
• Parties: Manuel VASQUEZ; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees, v. Tony RACKAUCKAS, Orange County District Attorney, in his official capacity, Defendant–Appellant, and Robert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant. Manuel Vasquez; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees, v. Robert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant–Appellant, and Tony Rackauckas, Orange County District Attorney, in his official capacity, Defendant. Manuel Vasquez; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees, v. Tony Rackauckas, Orange County District Attorney, in his official capacity, Defendant–Appellant, and Robert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant. Manuel Vasquez; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees, v. Robert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant–Appellant, and Tony Rackauckas, Orange County District Attorney, in his official capacity, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

734 F.3d 1025

Manuel VASQUEZ; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees,

v.Tony RACKAUCKAS, Orange County District Attorney, in his official capacity, Defendant–Appellant,andRobert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant.

Manuel Vasquez; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees,

v.Robert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant–Appellant,andTony Rackauckas, Orange County District Attorney, in his official capacity, Defendant.

Manuel Vasquez; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees,

v.Tony Rackauckas, Orange County District Attorney, in his official capacity, Defendant–Appellant,andRobert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant.

Manuel Vasquez; Miguel Bernal Lara; Gabriel Bastida; Randy Bastida, Plaintiffs–Appellees,

v.Robert Gustafson, Chief of Police, Orange Police Department, in his official capacity, Defendant–Appellant,andTony Rackauckas, Orange County District Attorney, in his official capacity, Defendant.

Nos. 11–55795, 11–55876, 11–56126, 11–56166.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2013.

Filed Nov. 5, 2013.

S. Frank Harrell (argued), Norman J. Watkins, and Melissa D. Culp, Lynberg & Watkins, Orange, CA, for Defendant–Appellant Tony Rackauckas.

Wayne W. Winthers (argued), Senior Assistant City Attorney; and David A. De Berry, City Attorney, Orange, CA, for Defendant–Appellant Robert Gustafson.

Peter Bibring (argued) and Belinda Escobosa Helzer, ACLU Foundation of Southern California, Santa Ana, CA; Joseph J. Ybarra, Jacob S. Kreilkamp, and Laura D. Smolowe, Munger, Tolles & Olson, Los Angeles, CA, for Plaintiffs–Appellees.

Dennis J. Herrera, City Attorney; Alex G. Tse, Chief Attorney, Neighborhood and Resident Safety Division; and Jana J. Clark, Deputy City Attorney, San Francisco, CA, for Amicus Curiae City and County of San Francisco.

Carmen A. Trutanich, City Attorney; Mary Clare Molidor, Deputy Chief, Criminal & Special Litigation Branch; Anne C. Tremblay, Assistant City Attorney; Kelly Huynh and Jeanne Kim, Deputy City Attorneys, Los Angeles, CA, for Amicus Curiae Los Angeles City Attorney's Office.

Matthew Sloan, Matthew Donald Umhofer, and Christina Lincoln, Los Angeles, CA, for Amici Curiae Orange County Public Defender, Los Angeles County Public Defender, California Attorneys for Criminal Justice, and California Public Defenders Association.

Appeal from the United States District Court for the Central District of California, Valerie Baker Fairbank, District Judge, Presiding. D.C. No. 8:09–cv–01090–VBF–RNB.

Before: MARSHA S. BERZON, RICHARD C. TALLMAN, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Berzon; Concurrence by Judge Tallman.

OPINION

BERZON, Circuit Judge:

Since at least 1987, California prosecutors have brought public nuisance actions in state court to curtail the activities of street gangs. See Matthew Mickle Werdegar, Note, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions Against Urban Street Gangs, 51 Stan. L.Rev. 409, 414 (1999). The scope of this effort has been broad. According to amicus curiae Los Angeles City Attorney'sOffice, that City, for example, has obtained forty-four civil injunctions against seventy-two street gangs in the past two decades. Typically, the injunctions forbid members of the enjoined gang from engaging in a broad swath of legal and illegal activities, individually and with others, in certain areas.

Our question concerns not the substance of such orders but the procedures constitutionally required before individuals denied the opportunity to defend against imposition of the order against them can be subjected to it. Although California courts have grappled for more than twenty-five years with various substantive and procedural issues posed by anti-gang injunctions, no court—either state or federal—has previously addressed the particular due process issue presented here.

The district court approached this case with the utmost care, first denying a preliminary injunction and then, after full discovery, presiding over an eleven-day bench trial. In a comprehensive opinion, the district court concluded that (1) the constitutional issue should be decided, as no applicable abstention doctrine justified declining to do so; and (2) in the particular posture of this case, and given the breadth of the state court injunction at issue, due process requires that the plaintiff class members be afforded an adequate opportunity to contest whether they are active gang members before they are subjected to the injunction. We affirm the district court in principal part.

I.

California's Street Terrorism Enforcement and Prevention (STEP) Act, seeCal.Penal Code §§ 186.20–.33, creates both a private and a public cause of action to “enjoin[ ], abate[ ], and prevent[ ]” a “nuisance” created by a “building or place used by members of a criminal street gang for the purpose of the commission” of various criminal offenses, see id. § 186.22a(a). The California Supreme Court has held that the STEP Act's nuisance provision is not the exclusive “remed[y] ... to abate criminal gang activities,” and that the “general public nuisance statutes,” namely California Code of Civil Procedure § 731 and California Civil Code §§ 3479–3480, provide independent authority for actions to enjoin a gang and its members from engaging in nuisance activity. See People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1119, 60 Cal.Rptr.2d 277, 929 P.2d 596 (1997).

This appeal has its origins in an action to abate gang activity under California's general public nuisance statutes. Our analysis depends in significant part on the procedural history of the state case. We therefore describe the parties' litigation decisions and the relevant state and federal orders in some detail.

In February 2009, the Orange County District Attorney's Office (OCDA), on behalf of the State of California, filed a public nuisance action in Orange County Superior Court against the Orange Varrio Cypress Criminal Street Gang (OVC) and 115 named individuals. The named individuals were alleged to be “members, agents, servants, employees,” or “persons acting under, in concert with, for the benefit of, at the direction of, or in association with” OVC. Of the 115 individual defendants, thirty-two were minors. OCDA further alleged that OVC's “criminal and nuisance activities” included: “attempt[ed] murders, shootings, robberies, assaults, burglaries, felony gang graffiti and the illegal sale of controlled substances”; the use of private residential yards and commercial property as “escape routes” from law enforcement; and “vandalism, loitering, [and] drinking alcohol in public.” OCDA sought a permanent injunction restraining OVC and its members from engaging in a broad range of specified activities, lawful and unlawful, joint and individual, performed within a 3.78 square-mile area of the City of Orange. We discuss the scope of the requested relief—which, as we explain, the state court granted in principal part—in greater detail below.

Concurrently with its complaint, OCDA filed an application for a preliminary injunction against all defendants. In support, OCDA filed various exhibits, many under seal.¹ The Superior Court also granted OCDA's ex parte application to serve the complaint on OVC, which had no known address, via a named defendant, Patrick DeHerrera. In addition, OCDA served “numerous individuals named in the state court complaint, including” the current Plaintiffs–Appellees, with the complaint and the unsealed documents in support of the preliminary injunction.

Thirty-two individual defendants filed answers or general denials in the state court action or otherwise formally appeared. Some juvenile defendants and their parents also attempted to file pleadings or enter appearances but were not permitted to do so. The court declined to designate the defendants' parents as guardians ad litem; without an appointed guardian, the juvenile defendants could not appear. SeeCal.Civ.Proc.Code § 372(a).

The Superior Court granted a preliminary injunction against OVC and the adult individual defendants who had not appeared. Soon thereafter, the court issued a preliminary injunction against eighteen adult defendants unrepresented by counsel, including Plaintiffs–Appellees Manuel Vasquez and Gabriel Bastida. The court denied OCDA's motion for a preliminary injunction as to some adult defendants, and continued until May 7, 2009 the hearing as to certain other adult defendants and all juvenile defendants. The court also set a trial date of July 6, 2009.

In advance of the May 7 hearing, some of the adult defendants represented by counsel—including Plaintiff–Appellee Miguel Lara—filed motions opposing the entry of a preliminary injunction against them as individuals. In support, they filed their own declarations; declarations of community members disputing the need for an injunction; and declarations of experts who averred that the OCDA's evidence, including the Orange Police Department (“OPD”) declarations, was insufficient to establish that the named defendants were “active members” of OVC. Through counsel, those defendants also propounded written discovery requests on OCDA; the parties established a schedule for twenty depositions during May and June 2009.

At the May 7 hearing, the state court denied OCDA's preliminary injunction motion as to all unrepresented juvenile defendants on the ground that any injunction would be immediately voidable by those defendants. The court also denied a preliminary injunction as to some adult and juvenile defendants represented by counsel, including Plaintiff–Appellee Randy Bastida, on the ground that there was insufficient evidence of those individuals' “active” participation in the gang. Among the...