In People ex rel. Totten v. Colonia Chiques, (— Cal.Rptr.3d —, 2007 WL 2985221, Cal.App. 2 Dist., Oct. 15, 2007), a California Court of Appeal considered a challenge to a judgment granting a permanent injunction against a criminal street gang and its members that, among other things, forbade a street gang and its members from “being outside” during curfew hours.
The court ruled that the curfew provision is unconstitutional because the term “being outside” is too vague.
Facts
Colonia Chiques is the largest, most violent criminal street gang in the County of Ventura. The gang, which has approximately 1,000 members, is active in the City of Oxnard. Its activities include the sale of controlled substances, graffiti vandalism, robberies, assaults, and homicides.
The City of Oxnard (“City”), through Ventura County District Attorney filed a complaint seeking a permanent injunction against Colonia Chiques to abate a public nuisance. The trial court found that the activities of Colonia Chiques had created a public nuisance in a 6.6 square mile area of Oxnard designated as the “Safety Zone.” The court granted an injunction against Colonia Chiques, its active members, and anyone in active concert or participation in the gang, from engaging in the following activities within the Safety Zone: intimidating witnesses, associating with known Colonia Chiques members, possessing guns or dangerous weapons “in public view or anyplace accessible to the public,” engaging in fighting, using gang gestures, wearing gang clothing, possessing controlled substances without a prescription, possessing an open container of an alcoholic beverage “anywhere in public view or in anyplace assessing to the public,” painting graffiti, possessing graffiti tools, trespassing “on any real property not open to the general public,” being “outside” between 10:00 p.m. and sunrise, acting as a lookout to warn of the presence of law enforcement officers, and failing to obey all that “prohibit the commission of acts which create a public nuisance.
Opponents of the injunction challenged it on several grounds, but the court upheld the permanent injunction in all respects except for the curfew provision that prohibited members from “being outside” between 10 p.m. and sunrise, except under various conditions. The exceptions include “going to or from a legitimate meeting or entertainment.”
Decision
“Two principles guide the evaluation of whether the law . . . is unconstitutionally vague. First, ‘abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law’s meaning, giving facially standardless language a constitutionally sufficient concreteness.’ Second, only reasonable specificity is required. Thus, a statute will not be held void for vagueness “if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.” (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) “[A} claim that a law is unconstitutionally vague can succeed only where the litigant demonstrates, not that it affects a substantial number of other, but that the law is vague as to her or ‘impermissibly vague in all of its applications.’ (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.)
A directive is unconstitutional if it is “in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application,” the court said, citing In re Berry (1968) 68 Cal 2d 156.
The curfew prohibits people from “being outside” during nighttime hours, but it does not define “outside.” It is therefore unclear, for example, whether people are “outside” if they are on the front porch of their own residence, on their own front lawn, at a backyard barbecue, or sitting in a vehicle parked on the street, the court opined. It is also unclear what the injunction means regarding the exception for “a legitimate meeting or entertainment activity.” The term “entertainment” could encompass “practically any lawful activity that provides diversion or amusement, such as a walk in the park,” the court said. Such a broad exemption renders the entire injunction “practically meaningless.”
The court ruled that since “men of common intelligence must necessarily guess at its meaning and differ as to its application,” the curfew portion of the injunction is impermissibly vague, violates due process, and is unenforceable. The judgment granting the injunction was reversed to the extent that it requires people to comply with the curfew provision.
This is an important case because it reiterates the ruling of the California Supreme Court case of Acuna that both the organization and the members through which it acts are subject to injunctive relief. (Acuna, supra, 14 Cal.4th at 1125) The injunction, therefore, may properly prohibit specified conduct of gang members irrespective of whether that conduct is undertaken with the intent of furthering the purposes of Colonia Chiques. Therefore, cities and counties may use public nuisance statutes to seek injunctions against criminal street gangs and their members. However, the case also highlights the importance of the language of the injunction being specific and not vague.