Herrera, ACLU, Lawyers’ Committee Reach Accord on Gang Injunction Opt Out Procedure

Administrative Removal Process is ‘Fair, Transparent, Accessible, and Recognizes That Individuals Can and Do Change for the Better’

SAN FRANCISCO (March 24, 2008) — City Attorney Dennis Herrera today announced an agreement with the regional chapters of two of the nation’s preeminent legal advocacy organizations for civil liberties and access to justice that establishes administrative “opt-out” procedures for individuals named in civil gang injunctions in San Francisco. According to the 12-page memorandum of understanding signed by Herrera and representatives from the American Civil Liberties Union of Northern California and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the administrative process by which individuals may be removed from the court ordered provisions “is fair, transparent, accessible, and recognizes that individuals can and do change for the better.”

“I am very grateful to everyone who participated in negotiating an opt-out process that both maximizes civil liberties protections for alleged gang members and ensures the effectiveness of civil gang injunctions to protect San Francisco neighborhoods from violence and nuisance conduct,” said Herrera. “For their tireless efforts to find common ground on these important issues, I am indebted to Alan Schlosser and Juniper Lesnik of the ACLU and Kendra Fox-Davis of the Lawyers’ Committee for Civil Rights. From my office, Chief Deputy City Attorney Therese Stewart and Neighborhood and Resident Safety Division Chief Alex Tse were instrumental in working out the details.”

The opt out process announced today provides that individual gang members against whom the City Attorney has obtained civil injunctions — and also alleged gang members whom the City Attorney is seeking to enjoin — may voluntarily apply to the City Attorney’s Office for removal from the enforcement list. Individuals remain free to bypass the administrative process by proceeding directly to Superior Court to seek a modification of the injunction or to request exclusion or removal from the enforcement list. The City Attorney will provide a copy of an opt out petition to each individual seeking removal, and will also make it available to the public on the office’s Web site. Though use of the petition is optional, those seeking to opt out of injunction provisions are encouraged to provide any and all information to support their removal. Information provided by petitioners will be kept confidential to the extent required by law and will be used for the decision in the opt out process. The City Attorney’s Office reserves the right to conduct its own investigation into the veracity of information submitted and may consider other information relevant to the request. Post-injunction opt out petitions that are approved by the City Attorney’s Office must still be approved by the Court, though the City Attorney will represent to the Court, in writing, that the City Attorney has no objection to the individual’s request for removal from the enforcement list. Individuals pursuing pre-injunction opt out petitions must exercise reasonable diligence to provide information to the City Attorney before the last day to file an opposition to the preliminary injunction. The City Attorney will give notice to the San Francisco Police Department, within no more than three days, of the names of individuals removed from the injunction enforcement list, and the City Attorney has committed to work closely with the Police Department to develop a Department Bulletin that addresses both the agreement and its enforcement to ensure the fullest, most effective compliance with the Court’s order while protecting each individual’s civil liberties.

Criteria for Removal From a Civil Gang Injunction

In deciding whether or not to approve or deny an individual’s opt out request, the City Attorney will consider the totality of the circumstances and evidence when evaluating individual requests, the central criterion being whether the individual is currently an active gang member. Among other factors, the City Attorney will consider whether the individual is gainfully employed, pursuing an education, and any activities that demonstrate a willingness and desire not to engage or associate in gang related activities. The City Attorney will favorably consider evidence of an individual removing gang related tattoos, ceasing to wear gang colors, or ceasing to spend time with known gang members. The City Attorney will also consider relevant the length of time a person has disassociated himself or herself from the gang. Because the manner in which an individual disassociates from a gang will often be several and varied, the time factor may be different for different individuals, and it will be the totality of the evidence, including the time factor, that will be considered by the City Attorney. The City Attorney will also conduct a review of each gang injunction every three years to determine whether the injunction should continue in effect and, if so, if any individual should be removed from the enforcement list. Should the City Attorney determine that an individual merits removal from an enforcement list as a result of that review, the City Attorney will seek a Court order modifying the injunction, and notice of removal will be issued to the affected individual. Parties to the opt out accord additionally agreed to meet and confer prior to the third anniversary of the memorandum of understanding to determine whether changes need to be made to its terms or scope.

Civil Gang Injunction Cases Background

City Attorney Herrera obtained civil injunctions against five criminal street gangs that have long plagued three of San Francisco’s most violence-prone neighborhoods. Named in the injunctions issued by the San Francisco Superior Court are: the Western Addition-based Eddy Rock, Chopper City and Knock Out Posse gangs; the Mission-based Norteño gang; and the Bayview/Hunters Point-based Oakdale Mob. The civil gang injunction cases are: People of the State of California v. Oakdale Mob, S.F. County Superior Court No. 06-456517 (Judge Peter Busch), filed Sept. 27, 2006; People of the State of California v. Chopper City, Eddy Rock and Knock Out Posse, S.F. County Superior Court No. 07-464493 (Judge Peter Busch), filed June 21, 2007; People of the State of California v. Norteño, S.F. County Superior Court No. 07-464492 (Judge Patrick J. Mahoney), filed June 21, 2007.