Civil Gang Injunctions: Skirting the Burden

As counties across the country search for more effective tools to disband gangs and prevent gang activity, several cities have turned to the civil courts for help. Civil gang injunctions, which prevent specific gang members from associating with one another as well as from entering certain parts of the city, have been popping up nationwide. These injunctions, which were first implemented in Los Angeles and then Oakland California, are usually served by the city attorney’s office on the alleged gang member and include a hearing date.

While the goal behind the injunctions is one most people support, the procedure involved in obtaining the injunction and its quasi criminal ramifications have proven problematic. In criminal law, the prosecutor most prove elements of the crime beyond a reasonable doubt. As an aggravating factor, gang affiliation also must be proved beyond a reasonable doubt.

But the civil gang injunctions utilize the much lower civil standard of clear and convincing evidence or the lowest standard, preponderance of evidence, to establish a defendant’s gang membership. Since the civil court’s finding can then be used in criminal court as an established fact warranting a sentence enhancement, the prosecutor avoids having to prove the gang affiliation beyond a reasonable doubt. This, along with the questionable statutory definition of a gang member in most cities and the lack of a right to counsel in civil court, leads to a serious deprivation of what in criminal court are the defendant’s established due process rights.