[No. S046980. Jan 30, 1997.]
THE PEOPLE ex rel. JOAN R. GALLO, as City Attorney, etc., Plaintiff and Respondent,
v. CARLOS ACUNA et al., Defendants and Appellants.
(
(Opinion by Brown, J., with George,
C. J., Baxter, and Werdegar, JJ.,
concurring. Concurring and dissenting opinions by Kennard,
J., and by Chin, J. Dissenting opinion by Mosk, J.)
COUNSEL
Amitai Schwartz, Antonio Ponvert
III, Sara T. Campos, Edward M. Chen, Alan L. Schlosser, Daniel M. Mayfield,
Patricia Price, Amanda Wilson, Siner, Steinbock, Hofman & Pennypacker and Stuart D. Kirchick
for Defendants and Appellants.
Heller, Ehrman, White &
McAuliffe, Sergio Garcia-Rodriguez and Joyce M. Cartun
as Amici Curiae on behalf of Defendants and
Appellants.
Joan R. Gallo, City Attorney, George Rios,
James K. Hahn, City Attorney (Los Angeles), Debbie Lew
and Candice I. Horikawa, Deputy City Attorneys,
George W. Kennedy, District Attorney (Santa Clara), Dale R. Sanderson, Deputy
District Attorney, Gil Garcetti, District Attorney
(Los Angeles), George M. Palmer, Brent Riggs and Deanne B. Ancker,
Deputy District Attorneys, Berliner Cohen, Frank R. Ubhaus,
Stacy L. Saetta, Robert Teir,
Kent S. Scheidegger, Stephanie J. Finelli,
Daniel J. Popeo, David A. Price, Sweeney, Mason &
Wilson and Roger Mason as Amici Curiae on behalf of
Plaintiff and Respondent.
OPINION
BROWN, J.
At the request of the City Attorney of the City of
The 48 declarations submitted by the City in support of its plea for
injunctive relief paint a graphic portrait of life in the community of
Rocksprings. Rocksprings is an urban war zone. The four-square-block
neighborhood, claimed as the turf of a gang variously known as Varrio Sure¤o Town, Varrio Sure¤o Treces
(VST), or Varrio Sure¤o
Locos (VSL), is an occupied territory. Gang members, all of whom live
elsewhere, congregate on lawns, on sidewalks, and in front of apartment
complexes at all hours of the day and night. They display a casual contempt for
notions of law, order, and decency-openly drinking, smoking dope, sniffing
toluene, and even snorting cocaine laid out in neat
lines on the hoods of residents' cars. The people who live in Rocksprings are
subjected to loud talk, loud music, vulgarity, profanity, brutality, fistfights
and the sound of gunfire echoing in the streets. Gang members take over
sidewalks, driveways, carports, apartment parking areas, and impede traffic on
the public thoroughfares to conduct their drive-up drug bazaar. Murder,
attempted murder, drive-by shootings, assault and battery, vandalism, arson,
and theft are commonplace. The community has become a staging area for
gang-related violence and a dumping ground for the weapons and
instrumentalities of crime once the deed is done. Area residents have had their
garages used as urinals; their homes commandeered as escape routes; their
walls, fences, garage doors, sidewalks, and even their vehicles turned into a
sullen canvas of gang graffiti.
The people of this community are prisoners in their own homes. Violence and
the threat of violence are constant. Residents remain indoors, especially at
night. They do not allow their children to play outside. Strangers wearing the
wrong color clothing are at risk. Relatives and friends refuse to visit. The
laundry rooms, the trash dumpsters, the residents' vehicles, and their parking
spaces are used to deal and stash drugs. Verbal harassment, physical
intimidation, threats of retaliation, and retaliation are the likely fate of
anyone who complains of the gang's illegal activities or tells police where
drugs may be hidden.
Among other allegations, the City's complaint asserted that the named
defendants and others "[f]or more than 12 months precedent to the date of
[the] complaint, continuing up to the present time ... [have] occupied [and]
used the area commonly known as 'Rocksprings' ... in such a manner so as to
constitute a public nuisance ... injurious to the health, indecent or [14
Cal.4th 1101] offensive to the senses, [and] an obstruction to the free use
of property so as to interfere with the comfortable enjoyment of life or
property by those persons living in the ... neighborhood."
After alleging the usual requisites for equitable relief-the prospect of
"great and irreparable injury" and the absence of "a plain,
adequate and speedy remedy at law"-the complaint prayed for a broad and
comprehensive injunction against defendants' alleged activities in Rocksprings.
The superior court granted an ex parte temporary
restraining order enjoining all 38 defendants named in the complaint and issued
an order to show cause (OSC) why a preliminary injunction should not be
entered.
Only five of the named defendants appeared in response to the OSC. Following
a hearing, the superior court entered a preliminary injunction against the 33
defendants who had not appeared and continued the matter as to those 5
defendants who opposed entry of a preliminary injunction, leaving the temporary
restraining order in force as to them. Eleven of the named defendants (the five
who had originally appeared in opposition to the OSC, together with another six
of the named defendants) moved to vacate the injunctions. After the matter was
briefed and argued, the superior court entered a preliminary injunction. The
multipart decree, consisting of some 24 paragraphs, was the subject of an
interlocutory appeal by these 11 defendants.
The Court of Appeal disagreed with the superior court, upholding only
provisions of the preliminary injunction enjoining acts or conduct defined as
crimes under specific provisions of the Penal Code. Although its premise is
never clearly articulated, that ruling effectively limits the scope of
permissible injunctive relief under
We consider first the scope of and conditions precedent to the exercise of
the superior court's equitable jurisdiction to enjoin a public nuisance. We
then assess defendants' challenges to paragraphs (a) and (k) of the superior
court's preliminary injunction, challenges based on restraints inherent in the
administration of equitable remedies, and those arising from constitutionally
based limitations. Finally, we consider (and reject) defendants' arguments [14
Cal.4th 1102] that the STEP Act fn. 1 is the exclusive means of obtaining
nuisance-based injunctive relief against a criminal street gang. We will
conclude the two challenged provisions fall within the superior court's
equitable power to abate a public nuisance and neither runs afoul of rights
secured to defendants by the federal Constitution.
I. Equitable
Jurisdiction to Enjoin Public Nuisances
A. The Origin and
Nature of Actions to Enjoin Public Nuisances
Often the public interest in tranquillity,
security, and protection is invoked only to be blithely dismissed, subordinated
to the paramount right of the individual. In this case, however, the true
nature of the trade-off becomes painfully obvious.
The state has not only a right to "maintain a decent society" (Jacobellis v. Ohio (1964) 184, 199 [1676, 1684, 12 L.Ed.2d
793]), but an obligation to do so. In the public nuisance context, the
community's right to security and protection must be reconciled with the
individual's right to expressive and associative freedom. Reconciliation begins
with the acknowledgment that the interests of the community are not invariably
less important than the freedom of individuals. Indeed, the security and
protection of the community is the bedrock on which the superstructure of
individual liberty rests. From Montesquieu to Locke to
There are few "forms of action" in the history of Anglo-American
law with a pedigree older than suits seeking to restrain nuisances, whether
public or private. Actions to abate private nuisances by injunction are the
oldest of these apparent twins, which have almost nothing in common except the
word "nuisance" itself. Unlike the private nuisance-tied to and
designed to vindicate individual ownership interests in land-the
"common" or public nuisance emerged from distinctly different
historical origins. The public nuisance doctrine is aimed at the protection and
redress of community interests and, at least in theory, embodies a kind of
collective ideal of civil life which the courts have vindicated by equitable
remedies since the beginning of the 16th century.
Originally, a public nuisance was an offense against the crown, prosecuted
as a crime. The first known statute dealing with public nuisances-enacted in the
12th year of Richard II's reign-had as its subject
the pollution of waters and ditches lying near settlements, and provided
criminal liability for the offender. fn. 2 The earliest public nuisance statute thus
bore a feature that marks the entire field even today: public nuisances are
offenses against, or interferences with, the exercise of rights common to the
public. (See generally, Baker, An Introduction to English
Legal History (3d ed. 1990) pp. 492-494.)
In this country, as in
With the publication of the Restatement Second of Torts in 1965, the law of
public nuisances had crystallized to such an extent that its features could be
clearly delineated. Section 821B of Restatement Second of Torts identifies five
general categories of "public rights," the unreasonable interference
with which may constitute a public nuisance: "the public health, the
public safety, the public peace, the public comfort or the public convenience."
(Rest.2d Torts, § 821B, subd.
(2)(a).) A "public right," according to the
Restatement Second, "is one common to all members of the general public.
It is collective in nature and not like the individual right that everyone has
not to be assaulted or defamed or defrauded or negligently injured." (Id., com. g, p. 92.)
In California, the early common law categories of public nuisance, codified
in 1872 and still applicable, define anything that is "injurious to
health, ... or is indecent or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the comfortable enjoyment of life
or property, or unlawfully obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or basin, or any
public park, square, street, or highway," as a nuisance. (Civ. Code, § 3479.) Civil Code
sections 3480 and 3481 divide the class of nuisances into public and private. A
public nuisance is one which "affects at the same time an entire community
or neighborhood, or any considerable number of persons." (Civ. Code, § 3480.) Rounding out
the taxonomy of the Civil Code, section 3491 provides that "[t]he remedies
against a public nuisance are: [¶] 1. Indictment or information;
[¶] 2. A civil action; or, [¶] 3. Abatement."
Section 370 of the Penal Code mirrors these civil provisions, combining the
characteristics of nuisances generally with a distinctly public quality: that a given activity "interfere with the comfortable
enjoyment of life or property by an entire community or neighborhood, or by any
considerable number of persons." (Pen. Code, §
370, italics added.) In People ex rel. Busch v.
Projection Room Theater (1976) 17
Cal.3d 42, 49 [130 Cal.Rptr. 328, 550 P.2d 600],
we parsed these code provisions, remarking on "the substantial identity of
definitions appearing in Penal Code sections 370 and 371, and Civil Code
sections 3479 and 3480 ...." After quoting the text of section 370, we
observed: "[T]he proscribed act may be anything which alternatively is
injurious to health or is indecent, or offensive to the senses; the result[] of the act must interfere with the comfortable
enjoyment of life or property; and those affected by the act may be an entire
neighborhood or a considerable number of persons, and as amplified by Penal
Code section 371 the extent of the annoyance or damage on the affected
individuals may be unequal." (People ex rel.
Busch v. Projection Room Theater, supra, 17 Cal.3d at p. 49, original italics
deleted, new italics added.) [14 Cal.4th 1105]
[1] It is this community aspect of the public nuisance, reflected in the
civil and criminal counterparts of the
The Restatement Second formulates the requirement of substantiality as proof
of "significant harm," defined as a "real and appreciable
invasion of the plaintiff's interests," one that is "definitely
offensive, seriously annoying or intolerable." (Rest.2d
Torts, § 821F, coms. c & d, pp. 105-106.)
The measure is an objective one: "If normal persons in that locality would
not be substantially annoyed or disturbed by the situation, then the invasion
is not a significant one ...." (Id., com. d, p. 106.)
The unreasonableness of a given interference represents a judgment reached by
comparing the social utility of an activity against the gravity of the harm it
inflicts, taking into account a handful of relevant factors. (See Rest.2d
Torts, §§ 826-831; San Diego Gas & Electric Co. v. Superior Court, supra,
13 Cal.4th at p. 938.) Here again, the standard is an objective one:
"[T]he question is not whether the particular plaintiff found the invasion
unreasonable, but 'whether reasonable persons generally, looking at the whole
situation impartially and objectively, would consider it unreasonable.' "
(San Diego Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at p.
938, quoting Rest.2d Torts, § 826, com. c, p. 121.) [14 Cal.4th 1106]
B. Expansion and
Contraction of "Criminal Equity"
With the legitimacy of equitable relief to control public nuisances well established,
American courts began to enlarge the jurisdiction of what has been called by
some "criminal equity" and, by others, "government by
injunction." (See Mack, The Revival of Criminal
Equity (1903) 16 Harv. L.Rev. 389, 397; Fiss, Injunctions (1972) p. 580.) The high-water
mark of this trend may have been reached in In re
Debs (1895) 564 [900, 39 L.Ed. 1092], where a strike
by employees at the Pullman car works in
Whatever its merit as a question of commerce clause jurisprudence (see 8 Fiss, History of the Supreme Court of the United States:
Troubled Beginnings of the Modern State, 1888-1910 (1993) pp. 58-72), and
whatever its place in the history of American labor strife, Justice Brewer's
opinion for the court in In re Debs, supra, 564,
reads like a primer on the first duty of government by consent-maintenance of
the public order-and the utility of the public nuisance injunction in
fulfilling that aspect of the social contract. Justice Brewer rested the power
of the courts to issue such an injunction on the "obligations which
[government] is under to promote the interest of all, and to prevent the
wrongdoing of one resulting in injury to the general welfare," a duty
which the court's opinion said was "often of itself sufficient to give
[the government] standing in court." (Id. at p. 584 [15 S.Ct. at p. 906].)
An end to this expansive trend, at least as it was reflected in the
jurisprudence of this court, came with Chief Justice Gibson's opinion in People
v. Lim (1941) 18
Cal.2d 872 [118 P.2d 472]. Although we upheld the complaint as sufficient,
our opinion in People v. Lim, supra, 18
Cal.2d 872, articulated an important limitation on the scope of the
government's power to exploit the public nuisance injunction as an adjunct of
general legal policy. "[T]he tendency to utilize the equity injunction as
a means of enforcing public policy is a relatively recent development in the
law," the Chief Justice wrote. (Id. at p. 877.)
"This development has resulted in a continuous expansion of the field of
public nuisances in which equitable relief is available at the request of the
state." (Ibid.)
After identifying a division among the authorities "as to whether the
expansion of the field of public nuisances in which equity will grant
injunctions must be accomplished by an act of the legislature," the Lim
court came down firmly on the side of legislative supremacy. (People
v. Lim, [14 Cal.4th 1107] supra, 18 Cal.2d at p. 878.) "The
courts of this state," we wrote, "have refused to sanction the
granting of injunctions on behalf of the state merely by a judicial extension
of the definition of 'public nuisance.' ... [They have] refused to grant
injunctions on behalf of the state except where the objectionable activity can
be brought within the terms of the statutory definition of public
nuisance." (Id. at pp. 878-879, italics added.)
Reflected in the light of our holding in People v. Lim,
supra, 18
Cal.2d 872, two features of
Second, our opinion in People v. Lim, supra, 18
Cal.2d 872, affirms the equal dignity, at least as far as the protection of
equity is concerned, of private, property-based interests and those values that
are in essence collective, arising out of a shared ideal of community life and
the minimum conditions for a civilized society. "Courts have held that
public and social interests, as well as the rights of property," Chief
Justice Gibson wrote, "are entitled to the protection of equity." (Id. at p. 877.) In a sense that cannot easily be dismissed,
the availability of equitable relief to counter public nuisances is an
expression of " 'the interest of the public in
the quality of life and the total community environment.' "
(People ex rel. Busch v. Projection Room
Theater, supra, 17 Cal.3d at p. 52.)
C. The Relation Between Crimes and Public Nuisances
As Justice Brewer noted in the Debs case: "A chancellor has no criminal
jurisdiction. Something more than the threatened commission of an offense
against the laws of the land is necessary to call into exercise the injunctive
powers of the court. There must be some interference, actual or threatened,
with property or rights ... but when such interferences appear the jurisdiction
of a court of equity arises, and is not destroyed by the fact that they are
accompanied by or are themselves violations of the criminal law...." ( In [14 Cal.4th 1108] re Debs, supra, 158 U.S. at p.
593 [15 S.Ct. at pp. 909-910].) [3] We made the same
point in People v. Lim, supra, 18
Cal.2d 872, 879, quoting a West Virginia case: "We think the proper
rule, therefore, and the one to which this state is committed is expressed in
the following language from State v. Ehrlick[, supra,
64 S.E. 935, 939]: 'It is also competent for the Legislature ... to declare any
act criminal and make the repetition or continuance thereof a public nuisance
... or to vest in courts of equity the power to abate them by injunction ....'
"
In the Ehrlick case itself, the
The Court of Appeal was thus partly accurate in reasoning that "a
public nuisance is always a criminal offense," for indeed it is. (See Pen. Code, § 372 [maintenance of a public nuisance is a
misdemeanor].) It is the corollary to that proposition-that the superior
court's injunction was valid only to the extent that it enjoined conduct that is
independently proscribed by the Penal Code-that is flawed. [4] Acts or conduct
which qualify as [14 Cal.4th 1109] public nuisances are enjoinable as civil wrongs or prosecutable as criminal
misdemeanors, a characteristic that derives not from their status as
independent crimes, but from their inherent tendency to injure or interfere
with the community's exercise and enjoyment of rights common to the public. It
is precisely this recognition of-and willingness to vindicate-the value of
community and the collective interests it furthers, rather than to punish
criminal acts, that lies at the heart of the public nuisance as an equitable
doctrine. We will return to this notion of the community and its collective
values as the touchstone of the public nuisance doctrine later, when we assess
the sufficiency of the superior court's interlocutory decree in light of the
requirements laid down in People v. Lim, supra, 18
Cal.2d 872. Before doing so, however, we first consider defendants'
challenges to the constitutionality of the preliminary injunction, challenges
that the Court of Appeal found persuasive. II. Defendants' Constitutional
Challenges to Provisions (a) and (k) of the Preliminary Injunction
A. Standard of
Review
At this initial stage in the proceeding, the scope of our inquiry is narrow.
[5] We review an order granting a preliminary injunction under an abuse of
discretion standard. (King v. Meese
(1987) 43
Cal.3d 1217, 1227-1228 [240 Cal.Rptr. 829, 743
P.2d 889]; Cohen v. Board of Supervisors (1985) 40
Cal.3d 277, 286 [219 Cal.Rptr. 467, 707 P.2d
840].) Review is confined, in other words, to a consideration whether
the trial court abused its discretion in " 'evaluat[ing] two
interrelated factors when deciding whether or not to issue a preliminary
injunction. The first is the likelihood that the plaintiff will prevail on the
merits at trial. The second is the interim harm that the plaintiff is likely to
sustain if the injunction were denied as compared to the harm the defendant is
likely to suffer if the preliminary injunction were issued.' "
(Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 286.) And
although we will not ordinarily disturb the trial court's ruling absent a
showing of abuse, an order granting or denying interlocutory relief reflects
nothing more than the superior court's evaluation of the controversy on the
record before it at the time of its ruling; it is not an adjudication of the
ultimate merits of the dispute. (Ibid.; see also Planned
Parenthood Shasta-Diablo, Inc. v. Williams (1994) 7
Cal.4th 860, 879, fn. 10 [30 Cal.Rptr.2d 629, 873 P.2d 1224]; Continental
Baking Co. v. Katz (1968) 68
Cal.2d 512, 527 [67 Cal.Rptr. 761, 439 P.2d
889].) [14 Cal.4th 1110]
B. First Amendment
Challenges
1. Associational
Interests
[6a] The Court of Appeal held that paragraph (a) of the preliminary
injunction, enjoining defendants from "Standing, sitting, walking,
driving, gathering or appearing anywhere in public view with any other
defendant ... or with any other known 'VST' (Varrio Sureno Town or Varrio Sureno Treces) or 'VSL' (Varrio Sureno Locos) member"
(italics added) was invalid on associational grounds; that is, the provision
infringed defendants' right to associate with fellow gang members, a right
protected by the First Amendment. We disagree.
In a series of opinions, the United States Supreme Court has made it clear
that, although the Constitution recognizes and shields from government
intrusion a limited right of association, it does not recognize "a
generalized right of 'social association.' " (Dallas
v. Stanglin (1989) 19, 25 [1591, 1594, 104 L.Ed.2d
18].) As we explain, neither does the First Amendment protect the collective
public activities of the gang members within the four-block precinct of
Rocksprings, activities directed in the main at trafficking in illegal drugs and
securing control of the community through systematic acts of intimidation and
violence.
[7] The high court has identified two kinds of associations entitled to
First Amendment protection-those with an "intrinsic" or
"intimate" value, and those that are "instrumental" to
forms of religious and political expression and activity. Of the first, the
court has said that it is "central to any concept of liberty" and is
exemplified by personal affiliations that "attend the creation and
sustenance of a family-marriage ...; the raising and
education of children [citation]; and cohabitation with one's relatives." (Roberts v. United States Jaycees (1984) 609, 619 [3244, 3250, 82
L.Ed.2d 462].) Such affiliations, the court has remarked, "involve
deep attachments and commitments to the necessarily few other individuals with
whom one shares not only a special community of thoughts, experiences, and
beliefs but also distinctively personal aspects of one's life. Among other
things ... they are distinguished by such attributes as relative smallness, a
high degree of selectivity in decisions to begin and maintain the affiliation,
and seclusion from others in critical aspects of the relationship." (Id. at p. 620 [104 S.Ct. at p. 3250].)
The second kind of association that merits First Amendment protection is
composed of groups whose members join together for the purpose of pursuing
"a wide variety of political, social, economic, educational, religious,
and [14 Cal.4th 1111] cultural ends." (Roberts v.
United States Jaycees, supra, 468 U.S. at p. 622 [104 S.Ct.
at p. 3252].) This instrumental right of protected association is
directly related to the "individual's freedom to speak, to worship, and to
petition the government for the redress of grievances" because without it
these liberties themselves could scarcely exist, much less thrive. (Ibid.)
[6b] It is evident that whatever else it may be in
other contexts, the street gang's conduct in Rocksprings at issue in this case
fails to qualify as either of the two protected forms of association.
Manifestly, in its activities within the four-block area of Rocksprings, the
gang is not an association of individuals formed "for the purpose of
engaging in protected speech or religious activities." (Bd.
of Dirs. of Rotary Int'l v. Rotary Club (1987) 537, 544 [1940, 1945, 95 L.Ed.2d
474], italics added.) Without minimizing the value of the gang to its
members as a loosely structured, elective form of social association, that
characteristic is in itself insufficient to command constitutional protection,
at least within the circumscribed area of Rocksprings. As the court pointed out
in Dallas v. Stanglin, supra, 490 U.S. at page 25
[109 S.Ct. at page 1594], "[i]t
is possible to find some kernel of expression in almost every activity a person
undertakes-for example, walking down the street or meeting one's friends at a
shopping mall-but such a kernel is not sufficient to bring the activity within
the protection of the First Amendment."
Defendants contend that if there is any doubt that association with other
gang members "is afforded constitutional protection, the Supreme Court put
the notion to rest in Dawson v. Delaware (1992) 159 ... where it held that
association with a prison gang, the Aryan Brotherhood, is constitutionally
protected." This argument misreads the court's opinion in
Nor do the circumstances in this case implicate the other associational form
worthy of First Amendment protection-personal affiliations whose
characteristics include "relative smallness, a high degree of selectivity
in [14 Cal.4th 1112] decisions to begin and maintain the affiliation,
and seclusion from others in critical aspects of the relationship." (Roberts v. United States Jaycees, supra, 468 U.S. at p. 620 [104 S.Ct. at p. 3250].) We may assume the members of defendants'
gang share common values and that group membership and the affiliations it
engenders can be a source of personal "enrichment" to some or all of
them. Defendants' organization may thus share one or two of the characteristics
that define intrinsically valuable and constitutionally protected associations,
lying somewhere this side of the anonymity of the Jaycees or a teenage dance
hall. The constitutionally significant factors on
which associational protection depends, however, are not ones to be mechanically
applied and ticked off. At bottom, protected rights of association in the
intimate sense are those existing along a narrow band of affiliations that
permit deep and enduring personal bonds to flourish, inculcating and nourishing
civilization's fundamental values, against which even the state is powerless to
intrude.
Freedom of association, in the sense protected by the First Amendment,
"does not extend to joining with others for the purpose of depriving third
parties of their lawful rights." (Madsen v. Women's
Health Center, Inc. (1994) 753, 776 [2516, 2530, 129 L.Ed.2d 593] (hereafter
Madsen).) We do not, in short, believe that the activities of the gang
and its members in Rocksprings at issue here are either "private" or
"intimate" as constitutionally defined; the fact that defendants may
"exercise some discrimination in choosing associates [by a] selective
process of inclusion and exclusion" (New York State Club Assn. v.
2. "Overbreadth" Challenge
[8a] The Court of Appeal also invalidated paragraph (a) of the trial court's
preliminary decree on the ground that these provisions were
"overbroad," as that term has come to be understood and applied in
the context of First Amendment litigation. It acknowledged that the reach of
the overbreadth doctrine has been cabined in a series
of high court opinions, e.g., New York State Club Assn. v. New York City,
supra, 487 U.S. at page 11 [108 S.Ct. at page 2233]
(doctrine is a narrow exception and requires finding of " 'a realistic
danger that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court' "); Broadrick v. Oklahoma (1973) 601, 613 [2908, 2916, 37
L.Ed.2d 830] (overbreadth doctrine is "strong
medicine" that is used "sparingly and only as a last resort");
and Wisconsin v. Mitchell (1993) 508 U.S. [14 Cal.4th 1113] 476, 487-488
[2194, 2201, 124 L.Ed.2d 436]. However, it did not consider one crucial fact:
No one, apart from defendants themselves, is or can be subject to the
prophylactic relief granted by the trial court.
[9] As we explain, the foundation of the overbreadth
doctrine is the inhibitory effect a contested statute may exert on the freedom
of those who, although possibly subject to its reach, are not before the court.
It is out of a generous concern for a statute's effects on the activities of
such third persons that the high court has permitted facial challenges on
behalf of those who are not parties to the litigation. Thus, even litigants
whose activities are not constrained by the statute at issue and who might, as
the court wrote of the permit requirement in Thornhill
v. Alabama (1940) 88, 97 [736, 742, 84 L.Ed. 1093],
"have had a license for the asking may ... call into question the whole
scheme of licensing when ... prosecuted for failure to procure it."
Defendants do not attack the public nuisance statute itself, claiming that
it suffers from the vice of overbreadth; instead,
they attack the terms of the interlocutory decree as being unconstitutionally
overbroad. The source of the high court's concern in the overbreadth
cases, however, and the foundation of the doctrine itself, is the perceived
danger to the constitutionally protected interests of those who, because they
are not before the court, lack a judicial forum in which to litigate claims
that a statute "sweeps within its ambit other activities that in ordinary
circumstances constitute an exercise of freedom of speech" (Thornhill v. Alabama, supra, 310 U.S. at p. 97 [60 S.Ct. at p. 742]), and thus "may inhibit the
constitutionally protected speech of [such] third parties" (City Council
v. Taxpayers for Vincent (1984) 789, 798 [2118, 2125, 80 L.Ed.2d 772]).
It is the absent members of this unrepresented class who, "sensitive to
the perils posed by ... indefinite language, avoid the risk ... by restricting
their conduct to that which is unquestionably safe" (Baggett v. Bullitt
(1964) 360, 372 [1316, 1323, 12 L.Ed.2d 377]) for whom the overbreadth
doctrine was fashioned. (See also Broadrick v.
Oklahoma, supra, 413 U.S. at p. 612 [93 S.Ct. at p.
2916] ["Litigants, therefore, are permitted to challenge a statute not
because their own rights of free expression are violated, but because of a
judicial prediction or assumption that the statute's very existence may cause
others not before the court to refrain from constitutionally protected speech
or expression."]; In re M.S. (1995) 10
Cal.4th 698, 709 [42 Cal.Rptr.2d 355, 896 P.2d 1365] ["litigants may
challenge a statute not because their own rights of free expression are
violated, but because the very existence of an overbroad statute may cause
others not before the court to refrain from constitutionally protected
expression"].) [14 Cal.4th 1114]
[8b] The high court recently identified a related
and constitutionally significant difference between injunctions and statutes in
the context of protected speech claims. In Madsen, supra, 753, the court
pointed out that the narrow and particularized focus inherent in the nature of
the injunction as an equitable remedy is also significant in evaluating the
contention that features of a given decree suffer from constitutional overbreadth. Like the injunction in Madsen, the trial
court's interlocutory decree here does not embody the broad and abstract
commands of a statute. Instead, it is the product of a concrete judicial
proceeding prompted by particular events-inimical to the well-being of the
residents of the community of Rocksprings-that led to a specific request by the
City for preventive relief.
As with any injunction, the preliminary decree here is addressed to
identifiable parties and to specific circumstances; the enjoined acts are
particularly described in the trial court's order. Unlike the pervasive
"chill" of an abstract statutory command that may broadly affect the
conduct of an absent class and induce self-censorship, the decree here did not
issue until after these defendants had had their day in court, a procedure that
assures " 'a prompt and carefully circumscribed determination of the
issue.' " (Kingsley Books, Inc. v. Brown (1957)
436, 442 [1325, 1328, 1 L.Ed.2d 1469].) In short, as one commentator has
pointed out, "An injunction may be more effective at stopping the activity
at which it is aimed, but it is also more narrowly confined. There is less risk
of deterring activities beyond the adjudicated target of suppression-activities
plainly outside the injunctive ban but arguably within the necessarily more
general prohibition of a penal law." (Jeffries,
Rethinking Prior Restraint (1983) 92 Yale L.Rev. 409,
429.)
Manifestly, the paradigm for an overbreadth
challenge is not present in this case. Here there is no possibility that the
concerns motivating the high court in its classic overbreadth
opinions-the "chilling effect" of abstract, broadly framed statutes
on the conduct of those not before the court (see, e.g., Dombrowski
v. Pfister (1965) 479, 487 [1116, 1121, 14 L.Ed.2d
22])-could place at risk any protected conduct other than that of defendants
themselves. The only individuals subject to the trial court's interlocutory
decree in this case, including those features contested as
"overbroad," are named parties to this action; their activities
allegedly protected by the First Amendment have been and are being aggressively
litigated. There is accordingly no basis, legal or factual, for the professed
concern that protected speech or communicative conduct by anyone other than
defendants might be endangered by the terms of the trial court's injunction. In
that sense, defendants' claim of overbreadth, made
with respect to paragraph (a) of the preliminary injunction, is not cognizable.
[14 Cal.4th 1115]
Our conclusion with respect to defendants' "overbreadth"
claim does not mean they may not be heard to complain that the provisions of
the preliminary injunction-as applied to them and their conduct in
Rocksprings-are broader than constitutionally sustainable. Rather, in this case
that contention falls under the standard formulated by the court in Madsen,
supra, 753-the requirement that the superior court's decree burden no more of
defendants' speech than necessary to serve the significant governmental
interest at stake. We will consider that distinct claim separately, when we
come to evaluate the sufficiency of the injunction under the standard announced
by the court in Madsen. (See, post, at pp. 1119-1122.)
C. Defendants' Fifth Amendment "Void-for-vagueness" Challenge to
Provisions (a) and (k)
We consider next the claim of defendants that provisions (a) and (k) of the
interlocutory injunction are "void for vagueness." (See, e.g., Note, The Void-for-Vagueness Doctrine In the Supreme Court (1960)
109 U.
[10] Unlike the doctrine of overbreadth, which
focuses on the impact of a statute on the conduct of persons not before the
court, the claim that a law is unconstitutionally vague is not dependent on the
interests of absent third parties. Instead, the underlying concern is the core
due process requirement of adequate notice. "No one may be required at
peril of life, liberty or property to speculate as to the meaning of penal
statutes. All are entitled to be informed as to what the State commands or
forbids." (Lanzetta v.
In its more recent applications of the vagueness doctrine, the high court
has also expressed a concern for the potential for arbitrary and discriminatory
enforcement inherent in vague statutes. (See, e.g., Smith v. Goguen (1974) 566, 574 [1242, 1248, 39 L.Ed.2d 605]
["We recognize that in a noncommercial context behavior as a general rule
is not mapped out in advance on the basis of statutory language. In such cases,
perhaps the most meaningful aspect of the vagueness doctrine is not actual
notice, but the other principal element of the doctrine-the requirement that a
legislature establish minimal guidelines to govern law enforcement." (Fn.
omitted.)]; Kolender v. Lawson (1983) 352, 357 [1855,
1858, 75 L.Ed.2d 903] [doctrine seeks to avoid "arbitrary and
discriminatory enforcement."].) Thus, a law that is "void for
vagueness" not only fails to provide adequate notice to those who must
observe its strictures, but also "impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and discriminatory
application." (Grayned v. City
of Rockford, supra, 408 U.S at pp. 108-109 [92 S.Ct.
at pp. 2298-2299], fn. omitted.)
The scope of permissible challenges to a law based on grounds of vagueness
differs in another important respect from challenges based on overbreadth. While a claim of overbreadth
may succeed if it is shown that the law at issue is "substantially
overbroad," that is, affects more than a marginal group of those
potentially subject to its sweep (Broadrick v.
Oklahoma, supra, 413 U.S. at p. 615 [93 S.Ct. at p.
2918]), a claim that a law is unconstitutionally vague can succeed only where
the litigant demonstrates, not that it affects a substantial number of others,
but that the law is vague as to her or "impermissibly vague in all of its
applications." (Hoffman Estates v. Flipside, Hoffman
Estates (1982) 489, 497-498 [1186, 1193, 71 L.Ed.2d 362], italics added; see
also Parker v. Levy (1974) 733, 755-757 [2547, 2561-2562, 41 L.Ed.2d 439]; Tribe,
American Constitutional Law (2d ed. 1988) § 12-32, p. 1036.)
[11] We begin our consideration of defendants' vagueness claims with a pair
of principles endorsed by the United States Supreme Court as reliable guides
for applying the doctrine in particular cases. The first principle is derived
from the concrete necessity that 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. Indeed, in evaluating challenges based on claims of vagueness,
the court has said "[t]he particular context is
all important." (Communications Assn. v. Douds (1950) 382, 412 [674, 691, 94 L.Ed.
925].) We recently made the [14 Cal.4th 1117] same point in Tobe v. City of Santa Ana, supra, 9 Cal.4th at page 1107,
when we said the "Court of Appeal erred in holding that the ordinance is
unconstitutionally vague. The terms which the Court of Appeal considered vague
are not so when the purpose clause of the ordinance is considered and the terms
are read in that context as they should be." (Italics added.) This
observation is particularly apropos here.
The second guiding principle is the notion of "reasonable
specificity" (Coates v. City of Cincinnati (1971) 611, 614 [1686, 1688, 29
L.Ed.2d 214], italics added) or " ' "[r]easonable certainty." ' "
(People v. Victor (1965) 62
Cal.2d 280, 300 [42 Cal.Rptr. 199, 398 P.2d 391],
italics added; see also In re Marriage of Walton (1972) 28
Cal.App.3d 108, 116 [104 Cal.Rptr. 472] [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"].) As the high court has
pointed out, "few words possess the precision of mathematical symbols,
most statutes must deal with untold and unforeseen variations in factual
situations, and the practical necessities of discharging the business of
government inevitably limit the specificity with which legislators can spell out
prohibitions. Consequently, no more than a reasonable degree of certainty can
be demanded. Nor is it unfair to require that one who deliberately goes
perilously close to an area of proscribed conduct shall take the risk that he
may cross the line." (Boyce Motor Lines v. United States
(1952) 337, 340 [329, 330-331, 96 L.Ed. 367].)
In short, "[c]ondemned to the use of words, we
can never expect mathematical certainty from our language." (Grayned v. City of Rockford, supra, 408
U.S. at p. 110 [92 S.Ct. at p. 2300], fn. omitted.)
[12] In the Court of Appeal's view, provision (a)'s prohibition against
associating with "any other known 'VST' ... or 'VSL' ... member"
might apply to a circumstance in which a defendant was engaged in one of the
prohibited activities with someone known to the police but not known to him to
be a gang member. According to the Court of Appeal, such indefiniteness
presented "a classic case of vagueness." We agree that in such a
hypothetical case, the City would have to establish a defendant's own knowledge
of his associate's gang membership to meet its burden of proving conduct in
violation of the injunction. Far from being a "classic" instance of
constitutional vagueness, however, we think the element of knowledge is fairly
implied in the decree. To the extent that it might not be, we are confident
that the trial court will, as the Court of Appeal did in People v. Garcia
(1993) 19
Cal.App.4th 97, 103 [23 Cal.Rptr.2d 340], impose such a limiting
construction on paragraph (a) by inserting a knowledge requirement should an
attempt be made to enforce that paragraph of the injunction. With [14
Cal.4th 1118] that minor emendation, the text of provision (a) passes
scrutiny under the vagueness doctrine.
[13] The Court of Appeal found paragraph (k), enjoining defendants from
"confronting, intimidating, annoying, harassing, threatening, challenging,
provoking, assaulting and/or battering any residents or patrons, or visitors to
'Rocksprings' ... known to have complained about gang activities,"
impermissibly vague in two respects. First, like paragraph (a), it speaks of
persons "known to have complained about gang activities," without
indicating how or even whether a defendant is to be charged with this
knowledge. The discussion with respect to the knowledge requirement of
provision (a) of the decree applies equally to this provision and, so
construed, it too passes muster.
Second, according to the Court of Appeal, provision (k) fails to define
sufficiently the words "confront," "annoy,"
"provoke," "challenge," or "harass"; it thus
fails to provide a standard of conduct for those whose activities are
proscribed. Yet similar words were upheld against claims of vagueness by the
Supreme Court in Madsen, supra, 753. There, the high court affirmed injunctive
relief prohibiting petitioners from engaging in similar-if not more broadly
phrased-conduct: " 'intimidating, harassing, touching, pushing, shoving,
crowding or assaulting persons entering or leaving.' " (Id.
at pp. 760-761 [114 S.Ct. at p. 2522].) We find
nothing in the context of this case, factually similar in many respects to the
situation before the court in Madsen, that makes the
same words, sufficiently definite there, somehow constitutionally infirm here.
Here again, "[t]he particular context is all important." (Communications Assn. v. Douds, supra,
382, 412 [674, 691].) The words of provision (k) which the Court of
Appeal considered irretrievably vague are simply not, at least in the
constitutional sense, when the objectives of the injunction are considered and
the words of the provision are read in context. Finally, the declarations filed
by the City in support of preliminary relief leave little doubt as to what kind
of conduct the decree seeks to enjoin. One Rocksprings resident recounted an
incident in which gang members had threatened to cut out the tongue of her
nine-year-old daughter if she talked to the police; she stated that other
residents had been threatened as well. Another resident reported her neighbor's
property had been vandalized and the resident threatened after complaining to
police that gang members had urinated in her garage. A police officer declared
Rocksprings residents had told him gang members confront and threaten them with
physical violence when asked to leave residential property. Others refused to
furnish declarations, fearing for their lives if any gang member should
discover their [14 Cal.4th 1119] identities. We conclude neither of the
two provisions should have been invalidated by the Court of Appeal on vagueness
grounds. III. Claim That the STEP Act Is the Exclusive Means of Abating Gang
Behavior as a Public Nuisance
[14] Defendants contend that the STEP Act (Pen. Code, §
186.20 et seq.) is the exclusive means of
enjoining criminal street gangs and preempts use of the general public nuisance
statutes. We disagree. By express provision, the act is not the exclusive
remedy for abating gang activity constituting a public nuisance. Under the STEP
Act, a building or place used by members of a criminal street gang for
specified illegal activities is declared a nuisance per se: "Every
building or place used by members of a criminal street gang for the purpose of
the commission of [specified] offenses ... and every building or place wherein
or upon which that criminal conduct by gang members takes place, is a nuisance
which shall be enjoined, abated, and prevented, and for which damages may be
recovered, whether it is a public or private nuisance." (Pen.
Code, § 186.22a, subd. (a), italics added.) The act goes on to provide that
"[n]othing in this chapter shall preclude any
aggrieved person from seeking any other remedy provided by law." (
In this case, the City expressly sought equitable relief, not under the STEP
Act, but under the general public nuisance statutes. fn. 4 Accordingly, we need not determine whether
some or all of the conduct enjoined would also fall within the scope of the act
or whether any of the defendants could be enjoined under its provisions.
IV. Evaluating the
Limits of the Preliminary Injunction
A. Substantive
Limits
Having concluded that provisions (a) and (k) of the preliminary injunction
are not unconstitutionally vague or overbroad and do not infringe defendants'
constitutionally protected associational interests, we must complete our [14
Cal.4th 1120] inquiry by considering the limitations on the scope of the
interlocutory decree as a matter of both public nuisance and constitutional
law. We must ask, in other words, two questions: First, whether the activity
enjoined under these two provisions reasonably falls within the statutory
definition of a public nuisance as construed in People v. Lim, supra, 18
Cal.2d 872, 878, and second, whether the two provisions comply with the
constitutional standard announced by the Supreme Court in Madsen, supra, 753,
that is, whether they "burden no more speech than necessary to serve a
significant governmental interest." (Id. at p. 765 [114 S.Ct. at p. 2525].)
[15] That the conduct enjoined by the trial court meets the statutory
definition of a public nuisance is clear from the account of conditions in
Rocksprings recited at the outset of this opinion. To constitute a public
nuisance under our Civil Code, conduct must be "injurious to health, ...
indecent or offensive to the senses, ... an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life or
property, or unlawfully obstruct[] free passage or use, in the customary
manner, of any ... public park, square, street, or highway." (Civ. Code, § 3479.) In addition,
the conduct must affect "an entire community or neighborhood, or any considerable
number of persons." (Civ.
Code, § 3480.)
The many declarations filed with the superior court by the City in support
of its request for injunctive relief meet these criteria. Gang members not only
routinely obstruct Rocksprings residents' use of their own propertyby
such activities as dealing drugs from apartment houses, lawns, carports, and
even residents' automobiles-but habitually obstruct the "free passage or
use, in the customary manner," of the public streets of Rocksprings. It is
likewise clear from this record that the conduct of gang members qualifies as
"indecent or offensive to the senses" of reasonable area residents:
The hooligan-like atmosphere that prevails night and day in Rockspringsthe
drinking, consumption of illegal drugs, loud talk, loud music, vulgarity,
profanity, brutality, fistfights and gunfire-easily meet the statutory
standard. Nor is it difficult to see how threats of violence to individual
residents and families in Rocksprings, murder, attempted murder, drive-by
shootings, assault and battery, vandalism, arson and associated crimes obstruct
the free use of property and interfere with the enjoyment of life of an entire
community.
Do provisions (a) and (k) of the superior court's preliminary injunction
meet the constitutional test formulated by the Supreme Court in Madsen, supra,
753, 765 [2516, 2525] by "burden[ing] no more
speech than necessary to serve" an important governmental interest? We [14
Cal.4th 1121] conclude both provisions satisfy the constitutional test.
[16] As noted, provision (a) effectively forbids gang members from engaging in
any form of social intercourse with anyone known to them to be a gang member
"anywhere in public view" within the four-block area of Rocksprings.
The provision's ban on all forms of association-"standing, sitting,
walking, driving, gathering or appearing anywhere in public view"-does not
violate the Madsen standard merely because of its breadth. The provision seeks
to ensure that, within the circumscribed area of Rocksprings, gang members have
no opportunity to combine.
It is the threat of collective conduct by gang members loitering in a
specific and narrowly described neighborhood that the provision is sensibly
intended to forestall. Given that overriding purpose, the prohibitions
enumerated in provision (a) are not easily divisible. Permitting two or more
gang members to drive together but not sit, or to stand together but not walk,
would obviously defeat the core purpose behind the proscription. Moreover,
given the factual showing made by the City in support of preliminary relief-the
carnival-like atmosphere of collective mayhem described above (see, ante, at
pp. 1100-1101, 1120)-we cannot say that the ban on any association between gang
members within the neighborhood goes beyond what is required to abate the
nuisance.
The effect of provision (a)'s ban on defendants' protected speech is
minimal. To judge from the evidence placed before the superior court, the gangs
appear to have had no constitutionally protected or even lawful goals within
the limited
Does provision (a)'s prohibition on a gang member associating with even a
single fellow gang member within Rocksprings transgress the test of [14
Cal.4th 1122] Madsen, supra, 753? Could not the restriction be limited to
barring associations between, say, three other gang members? Two gang members?
On such a highly particular question, we are compelled to defer to the superior
knowledge of the trial judge, who is in a better position than we to determine
what conditions "on the ground" in Rocksprings will reasonably
permit. Outside the perimeter of Rocksprings, the superior court's writ does
not run; gang members are subject to no special restrictions that do not affect
the general population. Given the limited area within which the superior
court's injunction operates, the absence of any showing of constitutionally
protected activity by gang members within that area, the aggravated nature of
gang misconduct, the fact that even within Rocksprings gang members may
associate freely out of public view, and the kind of narrow yet irreducible
arbitrariness that inheres in such line-drawing, we conclude that this aspect
of provision (a) passes muster as well under the standard of Madsen, supra,
753.
[17] We reach a similar resolution with respect to provision (k). That
provision forbids those subject to the injunction from confronting,
intimidating or similarly challenging-including assaulting and
battering-residents of Rocksprings, "or any other persons" who gang
members know have complained about their conduct within the neighborhood. It
has long been the rule, of course, that physical violence and the threat of
violence are not constitutionally protected: "The First Amendment does not
protect violence." (NAACP v. Claiborne Hardware Co.
(1982) 886, 916 [3409, 3427, 73 L.Ed.2d 1215] (hereafter Claiborne Hardware).)
Because the conduct proscribed by provision (k) consists of threats of violence
and violent acts themselves, it "fall[s] outside the protection of the
First Amendment because [such acts] coerce by unlawful conduct, rather than
persuade by expression, and thus play no part in the 'marketplace of ideas.' As
such, they are punishable because of the state's interest in protecting
individuals from the fear of violence, the disruption fear engenders and the
possibility the threatened violence will occur." (In re
M.S., supra, 10
Cal.4th 698, 714, original italics.) "[A] physical assault is
not by any stretch of the imagination expressive conduct protected by the First
Amendment." (
B. Those Bound by
the Preliminary Injunction
[18] Defendants contend that they may not be bound by the injunction except
on proof that each possessed "a specific intent to further an unlawful [14
Cal.4th 1123] aim embraced by [the gang]." The quoted language is the
test formulated by the United States Supreme Court in Claiborne Hardware,
supra, 458 U.S. at page 925 [102 S.Ct. at page 3432],
as being required to sustain damages liability against individual members of a
group. Claiborne Hardware is distinguishable on its facts. Defendants there
were members of a local chapter of a national civil rights organization. Each
was held liable in state court proceedings for business losses suffered by the
plaintiff merchants over the seven-year duration of a civil rights boycott
sponsored by the organization. Although the boycott was for the most part
peaceable and law abiding, there were sporadic incidents of violence by some
members, resulting in economic losses to the plaintiffs.
Vacating the state court damages award, the high court held that "mere
association with [the] group-absent a specific intent to further an unlawful
aim embraced by that group-is an insufficient predicate for liability." (Claiborne Hardware, supra, 458 U.S. at pp. 925-926 [102 S.Ct. at p. 3432].) The state courts, the Supreme
Court reasoned, had "relied on isolated acts of violence during a limited
period to uphold [plaintiffs'] recovery of all business losses sustained over a
7-year span.... The court's judgment 'screens reality' and cannot stand." (Id. at p. 924 [102 S.Ct. at p. 3431],
italics and fns. omitted.) Unlike the record in Claiborne Hardware,
supra, 886, the evidence submitted by the City in support of the preliminary
injunction here presents a portrait of gang affiliated youths whose collective
activities, within the four-block area of Rocksprings, create and sustain the
"urban war zone" described at the outset of this opinion. The
precedents that control the reach of injunctive relief in such circumstances
are Drivers Union v. Meadowmoor Co., supra, 287, and
Madsen, supra, 753.
In Drivers Union v. Meadowmoor Co., supra, 287,
291 [552, 554] (hereafter Drivers Union), the trial court issued a preliminary
injunction "restraining all union conduct, violent and peaceful,"
arising out of a labor dispute. The union protested, arguing the decree
violated the First Amendment rights of its members by enjoining acts of
peaceful picketing. The Illinois Supreme Court affirmed the broad scope of the
interlocutory decree and directed that a permanent injunction, restraining
peaceful as well as violent acts by union members, be entered as well. The
United States Supreme Court upheld the injunction, framing the case as one
where "the question ... is whether a state can choose to authorize its
courts to enjoin acts of picketing in themselves peaceful when they are
enmeshed with contemporaneously violent conduct which is concededly outlawed."
(Id. at p. 292 [61 S.Ct. at p.
554].)
As in Drivers Union, supra, 287, here "the injunction is
confined," encompassing conduct occurring within a narrow, four-block
residential neighborhood. As in Drivers Union, it "deals with this narrow
area [14 Cal.4th 1124] precisely because the coercive conduct affected
it. An injunction so adjusted to a particular situation is in accord with the
settled practice of equity ... [and] ... must be read in the context of its
circumstances." (Id. at p. 298 [61 S.Ct.
at p. 557].) As in Drivers Union, the high court in Madsen, supra, 753,
759-760 [2516, 2522], upheld an injunction directed against "congregating,
picketing, patrolling, demonstrating or entering" within 36 feet of a
health clinic in which therapeutic abortions were performed. That provision of
the decree, along with another setting restrictions on
noise, was directed not only at the anti-abortion organizations themselves, but
at allied organizations and "their officers, agents, members, employees
and servants, and ... all persons acting in concert or participation with them,
or on their behalf." (Id. at p. 759, fn. 1 [114 S.Ct. at p. 2521] italics added.)
Both Drivers Union, supra, 287, and Madsen, supra, 753, thus stand for the
proposition that, in a proper case, an organization and its individual members
are enjoinable without meeting the "specific
intent to further unlawful group aims" standard applied in Claiborne
Hardware, supra, 886. Certainly that proposition comprehends paragraphs (a) and
(k) of the preliminary injunction, the only two provisions now before us. For
we have already concluded that the conduct proscribed by those two
provisions-appearing publicly in Rocksprings with others known to a defendant
to be gang members, and harassing area residents known to a defendant to have
complained to public authorities about gang activities in Rocksprings-are
activities integral to the public nuisance that afflicts Rocksprings and do not
implicate protected First Amendment conduct. (See Claiborne
Hardware, supra, at pp. 918-920 [102 S.Ct. at pp.
3428-3429].)
That being the case, the interim relief entered by the superior court is
indistinguishable from time-honored equitable practice applicable to labor
unions, abortion protesters or other identifiable groups. Because such groups
can act only through the medium of their membership, "... it has been a
common practice to make the injunction run also to classes of persons through
whom the enjoined person may act, such as agents, servants, employees, aiders [and] abettors ...." (Berger v. Superior Court
(1917) 175 Cal. 719, 721 [167 P. 143, 15 A.L.R. 373]; see also In re Lennon
(1897) 548, 554 [658, 660, 41 L.Ed. 1110] ["To
render a person amenable to an injunction it is neither necessary that he
should have been a party to the suit in which the injunction was issued, nor to
have been actually served with a copy of it, so long as he appears to have had
actual notice."]; cf. Fed. Rules Civ. Proc.,
rule 65(d), 28 U.S.C. [injunction "is binding only upon the parties to the
action, their officers, agents, servants, employees, [14 Cal.4th 1125]
and attorneys, and upon those persons in active concert or participation with
them who receive actual notice of the order by personal service or
otherwise"].)
We see nothing in this case-where instead of naming the gang organizations
themselves as parties, the City named as individual defendants all 38 gang
members it was able to identify-that removes it from the usual rule applied in
Berger v. Superior Court, supra, 175 Cal. 719, and many other cases. The City's
evidence in support of preliminary equitable relief demonstrated that it was
the gang itself, acting through its membership, that was responsible for
creating and maintaining the public nuisance in Rocksprings. Because the City
could have named the gangs themselves as defendants and proceeded against them,
its decision to name individual gang members instead does not take the case out
of the familiar rule that both the organization and the members through which
it acts are subject to injunctive relief.
For present purposes, it is enough to observe that there was sufficient
evidence before the superior court to support the conclusions that the gang and
its members present in Rocksprings were responsible for the public nuisance,
that each of the individual defendants either admitted gang membership or was
identified as a gang member, and that each was observed by police officials in
the Rocksprings neighborhood. Although all but three of the eleven defendants
who chose to contest entry of the preliminary injunction-Miguel Moreno, Rafael
Ruiz, and Blanca Gonzalez-were shown to have committed acts, primarily drug
related, comprising specific elements of the public nuisance, such
individualized proof is not a condition to the entry of preliminary relief
based on a showing that it is the gang, acting through its individual members,
that is responsible for the conditions prevailing in Rocksprings. Additional
proceedings will be required to enforce the specific terms of the preliminary
injunction. Should contempt proceedings ensue, each individual defendant will
have an opportunity to contest any claim by the City that he or she has
violated specific terms of the preliminary injunction.
V. Conclusion
To hold that the liberty of the peaceful, industrious residents of
Rocksprings must be forfeited to preserve the illusion of freedom for those
whose ill conduct is deleterious to the community as a whole is to ignore half
the political promise of the Constitution and the whole of its sense. The freedom
to leave one's house and move about at will, and to have a measure of personal
security is "implicit in 'the concept of ordered liberty' " enshrined
in the history and basic constitutional documents of English-speaking peoples. (Wolf v. Colorado (1949) 25, 27-28 [1359, 1361-1362, 93 L.Ed. 1782]; Palko v. Connecticut
(1937) 319, 325 [58 [14 Cal.4th 1126] S.Ct.
149, 152, 82 L.Ed. 288].) Preserving the peace
is the first duty of government, and it is for the protection of the community
from the predations of the idle, the contentious, and the brutal that
government was invented.
Writing in 1834 of the events that shaped the American Revolution, Alexis De
Tocqueville remarked how the American struggle for independence was uniquely
shaped by "a love for law and order." In this case we consider
whether, after the passage of more than two centuries, we remain free to
reaffirm those fundamental values of ordered liberty. We do.
The judgment of the Court of Appeal is reversed insofar as it invalidated
paragraphs (a) and (k) of the preliminary injunction and concluded that
defendant Blanca Gonzalez was not subject to its terms. Because our grant of
review encompassed only those two of the fifteen provisions invalidated by the
Court of Appeal, we do not address any other aspect of the preliminary
injunction entered by the superior court.
George, C. J., Baxter, J., and Werdegar, J.,
concurred.
KENNARD, J.,
Concurring and Dissenting.-I concur with the majority in upholding the
preliminary injunction's paragraph (k), one of the two paragraphs at issue in
this case. Paragraph (k) enjoins defendants, all of whom are members of either
of two gangs (Varrio Sure¤o
Locos (VSL) and Varrio Sure¤o
Treces or Varrio Sure¤o Town (VST)), from intimidating, harassing,
threatening, provoking, or assaulting persons within a four-block area of San
Jose known as Rocksprings. At trial, the San Jose City Attorney presented
evidence that such conduct by the named defendants and/or other VSL and VST
members obstructed the "free use of property" (Civ.
Code, § 3479) within the Rocksprings area "so as to interfere with the
comfortable enjoyment of life or property" (ibid.), and affected "at
the same time an entire community or neighborhood, or any considerable number
of persons" (Civ. Code, § 3480), and accordingly
constituted a public nuisance (ibid.).
Because the prohibitions set forth in paragraph (k) of the preliminary
injunction have the legitimate purpose of ridding the Rocksprings neighborhood
of activities that interfered with the residents' comfortable enjoyment of life
or property, paragraph (k) prohibits no more conduct than is necessary to abate
the nuisance at hand and therefore is constitutionally permissible. Nor is
paragraph (k) unconstitutionally vague. As the majority explains (maj. opn.,
ante, at p. 1116), the terms of paragraph (k), read within the context of the
nuisance proven by the San Jose City Attorney, provide reasonable certainty and
specificity. Due process requires no more. [14 Cal.4th 1127]
I do not, however, join the majority in upholding the injunction's paragraph
(a), which prohibits the named defendants from being in the company of any
other VSL or VST member while "[s]tanding,
sitting, walking, driving, gathering or appearing anywhere in public view"
in the four-block Rocksprings area. The evidence presented in this case falls
far short of establishing that so drastic a restriction on the rights of
defendants and other VSL and VST members to peacefully assemble is necessary to
abate the public nuisance.
Under the First and Fourteenth Amendments of the federal Constitution, a
state may not make criminal the exercise of the right of assembly simply
because its exercise may offend some people. (Coates v. City
of Cincinnati (1971) 611, 615-616 [1686, 1689, 29 L.Ed.2d 214].)
Otherwise, the Coates court noted, "the right of the people to gather in
public places for social or political purposes would be continually subject to
summary suspension" and the law would provide "an obvious invitation
to discriminatory enforcement against those whose ... ideas,
... lifestyle, or ... physical appearance is resented by the majority of
their fellow citizens." (Ibid.)
As I explained in a dissenting opinion in Planned Parenthood Shasta-Diablo,
Inc. v. Williams (1995) 10
Cal.4th 1009, 1032 [43 Cal.Rptr.2d 88, 898 P.2d 402], when an injunction
threatens to infringe on activity protected by the First Amendment, courts
"apply a more stringent test than the standard used to evaluate the
constitutionality of content-neutral statutes regulating the time, place, and
manner of expression." Such an injunction must be " ' "couched
in the narrowest terms that will accomplish the pin-pointed objective" of
the injunction.' " (Id. at p. 1033, quoting
Madsen v. Women's Health Center, Inc. (1994) 753, 767 [2516, 2526, 129 L.Ed.2d
593].) Applying this test to paragraph (a), I am not convinced that its
prohibition of any public contact between defendants and other members of the
VSL and VST gangs within the four-block Rocksprings neighborhood is couched in
the narrowest terms possible to accomplish the injunction's goal of restoring
the residents' "comfortable enjoyment of life [and] property" (Civ. Code, § 3479).
There is no doubt that gang activity presents a serious threat to the peace
and security of many a neighborhood. As I pointed out recently in People v. Gardeley (1996) 14
Cal.4th 605, 609 [927 P.2d 713], which upheld sentence enhancement
provisions of the Street Terrorism Enforcement and Prevention Act, also known
as the STEP Act, the Legislature has expressly declared that " 'California
is in a state of crisis which has been caused by violent street gangs whose
members threaten, terrorize, and commit a multitude of crimes [14 Cal.4th
1128] against the peaceful citizens of their neighborhoods.' " (Quoting Pen. Code, § 186.21.)
When gang activity becomes a public nuisance, prosecutorial agencies may seek
injunctive relief to abate the nuisance. (Code Civ.
Proc., § 731.) But when a constitutionally protected interest is at stake, such
as the right of peaceful assembly in this case, the injunctive relief must be
narrowly tailored so as to minimally infringe upon the protected interest.
Here, paragraph (a) does not satisfy this test, for it prohibits defendants
from "gathering or appearing anywhere in public view" in the
Rocksprings neighborhood with any other member of the VSL and VST gangs.
Paragraph (k), by contrast, enjoins no more conduct than is necessary to
eliminate the public nuisance in the Rocksprings area, and therefore is
constitutionally permissible.
The Court of Appeal in this case invalidated both paragraph (k) and paragraph
(a) of the injunction. For the reasons set forth above, I join the majority in
reversing that part of the Court of Appeal's judgment invalidating paragraph
(k), but, unlike the majority, I would affirm that part of the Court of
Appeal's judgment invalidating paragraph (a).
CHIN, J.,
Concurring and Dissenting.-I am in general agreement with the majority, and
in particular with its conclusion that a court may enjoin as a public nuisance
acts not in themselves crimes. I disagree with the majority, however, on one
narrow, but important issue. I would hold that the evidence is insufficient to
enjoin two of the thirty-eight named defendants: Rafael Ruiz and Blanca
Gonzalez.
The legal principle at issue is quite simple. The law requires some link between
each defendant who is subject to an injunction and the problem the injunction
addresses. The majority argues that in this case gang membership and a one-time
presence in Rocksprings is enough to establish this link. The majority reasons
the trial court could have enjoined the gangs as a whole, and therefore it
could enjoin individual gang members instead. (Maj. opn., ante, at p. 1125.) I agree that, in an
appropriate case, a court may enjoin individuals based on group membership. (Cf. Madsen v. Women's Health Center, Inc. (1994) 753, 759, fn. 1
[2516, 2521, 129 L.Ed.2d 593] (Madsen).) But the requirement of proof is
no less rigorous in such a case. "For liability to be imposed by reason of
association alone, it is necessary to establish that the group itself possessed
unlawful goals and that the individual held a specific intent to further those
illegal aims." (NAACP v. Claiborne Hardware Co. (1982)
886, 920 [3409, 3429, 73 L.Ed.2d 1215], fn. omitted (Claiborne Hardware).)
I do not believe the City of
The majority relies on Drivers Union v. Meadowmoor
Co. (1941) 287, 291 [552, 554, 85 L.Ed. 836, 132
A.L.R. 1200] (Drivers Union), in which the trial court enjoined "all union
conduct." But Drivers Union did not involve the issue whether a court may
enjoin individuals based on group membership. Rather, at issue was whether a
court may enjoin peaceful acts of picketing when those acts are "enmeshed
with contemporaneously violent conduct." (Id. at p. 292
[61 S.Ct. at p. 554].) The United States
Supreme Court upheld the injunction, but emphasized the fact-finder's
determination that the peaceful picketing "was set in a background of
violence" and therefore had the character of a threat. (Id.
at p. 294 [61 S.Ct. at p. 555].) The trial
court in this case made no similar finding with respect to the conduct of
Rafael Ruiz and Blanca Gonzalez.
The majority also relies on Madsen, in which the trial court enjoined
members of Operation Rescue (and other organizations) from impeding access to
an abortion clinic in
The parties did, however, raise the issue in Claiborne Hardware, supra, 886.
Claiborne Hardware concerned a boycott of certain White merchants in
Drivers
The City's criteria for establishing Sure¤o gang
membership do not include the intent to further the Sure¤o
gangs' aims. Under these criteria, the City would consider a person to be a
member of a Sure¤o gang if, for example, that person
on two occasions wore baggy pants, blue clothes, or "Los Angeles
Raiders" garments. The City also identifies persons who admit gang
membership as gang members, regardless of the circumstances of their admission.
As the declaration of Juan Pineda Hernandez indicates, people who are not gang
members may assert membership for a variety of reasons, including youthful
arrogance or a desire to be placed in protective custody. Thus, a person who
merely claims membership in one of the Sure¤o gangs
may not fully share that gang's aims. (See Burrell, Gang Evidence: Issues for
Criminal Defense (1990) 30
Accordingly, I do not agree the trial court was free to enjoin individual Sure¤o gang members simply because it could have enjoined
the Sure¤o gangs as a whole. Moreover, the majority
does not convince me the record in this case would have allowed the trial court
to enjoin the Sure¤o gangs as a whole. As the
majority emphasizes, the record paints an ugly picture of life in Rocksprings.
Crime and contempt for authority are so pervasive that criminals would seem to
be in charge. Sadly, despite all our technology and resources, utter
lawlessness is the all-too-common mark of American urban life at the close of
the 20th century. A society that is committed to protecting civil rights and
civil liberties is not helpless to prevent such shameful [14 Cal.4th 1131]
atrocities. Dire problems demand bold solutions, and circumstances like those
in Rocksprings warrant highly aggressive law enforcement. Nevertheless, the
City must prove its case. A court's judgment may not stand on a visceral
prejudice against street gangs or on a pervasive mood of public hysteria in the
face of a law-and-order crisis; rather, that judgment must stand on evidence.
Though the majority refers to "48 declarations submitted by the City in
support of its plea for injunctive relief" (maj.
opn., ante, at p. 1100), most of this evidence
establishes only that some gang members commit crimes in Rocksprings,
contributing to the general state of lawlessness in the neighborhood. The
evidence describing the nature of the Sure¤o gangs,
and thus establishing a possible link between the gangs themselves (as opposed
to gang members) and the nuisance in Rocksprings, consists primarily of the
declarations of Officer Mikael Niehoff
and Sergeant Richard Saito. Those declarations describe the Sure¤o
gangs as "criminal street gangs," but the San Jose Police
Department's definition of "criminal street gang" states nothing
about the purpose or primary activity of the gang as a whole. Under its
definition, any association of persons who individually engage in crime, even a
sports team, would be a criminal street gang.
Of course, numerous declarations state the crime in Rocksprings is
"gang related," but the
Considering the record as a whole, I agree an assertion of Sure¤o gang membership is an indication of unlawful
purpose. But I would not conclude that a person's assertion of gang membership
and a one-time presence in Rocksprings is sufficient to establish the necessary
link between that person and the nuisance in Rocksprings. Accordingly, I would
uphold the injunction in the case of a person who is an actual gang member only
if the record includes some corroborating evidence showing that person
substantially contributed to the nuisance in Rocksprings or intends to do so in
the future. [14 Cal.4th 1132]
The only evidence linking Blanca Gonzalez with the nuisance in Rocksprings
is that she was in Rocksprings "wearing a black top and black jeans,"
which according to police was "consistent with members of Sure¤o criminal street gangs," and she claimed gang
membership. This evidence is not sufficient to prove (even at the preliminary
injunction stage) that she "held a specific intent to further [the gangs']
illegal aims," assuming the Sure¤o gangs have
illegal aims. (Claiborne Hardware, supra, 458 U.S. at p. 920
[102 S.Ct. at p. 3429].) Thus, I agree with
the Court of Appeal that the trial court should not have enjoined Blanca
Gonzalez.
The question is closer with respect to Rafael Ruiz. Ruiz also admitted gang
membership. Moreover, some evidence indicates he committed a crime in Rocksprings,
but this evidence is very thin. Ruiz was in a group that loosely matched the
description of a group that had reportedly been selling drugs in the
Rocksprings area. While I am sympathetic to the need for aggressive law
enforcement, I conclude this evidence does not link Rafael Ruiz with the
nuisance in Rocksprings sufficiently to support preliminary injunctive relief.
Accordingly, I would hold that the trial court should not have enjoined him.
The gangs in question here are loosely organized associations of individuals
with no express common purpose or central leadership. Some people may dress as
gang members or claim membership in the gangs because of peer pressure or out
of fear; the people primarily responsible for the public nuisance in Rocksprings
may be a small minority of gang members. I do not discount the serious threat
to community values that criminal street gangs pose. Nevertheless, we cannot
turn a blind eye to the necessities of proof. I believe the majority has done
so in the case of Rafael Ruiz and Blanca Gonzalez.
MOSK. J.,
Dissenting.-No doubt Montesquieu, Locke, and Madison will turn over in their
graves when they learn they are cited in an opinion that does not enhance
liberty but deprives a number of simple rights to a group of Latino youths who
have not been convicted of a crime. Mindful of the admonition of another great
18th century political philosopher, Benjamin Franklin, that "[t]hey that
can give up essential liberty to obtain a little temporary safety deserve
neither liberty nor safety," I would, unlike the majority, in large part
affirm the judgment of the Court of Appeal.
I.
On February 26, 1993, the City of San Jose (hereafter the City) filed a
complaint in the superior court seeking preliminary and permanent injunctive relief
against 38 named and 100 unnamed individuals who were purportedly
"validated" as active members of 1 of 2 street gangs, Varrio Sure¤o Locos (VSL) and Varrio Sure¤o Treces
or Varrio Sure¤o Town
(VST). The [14 Cal.4th 1133] complaint seeks to restrict their
activities in a four-block residential area known as "Rocksprings." fn. 1
The complaint alleged that for more than 12 months, defendants
"occupied" and "used the area commonly known as 'Rocksprings'
... in such a manner so as to constitute a public nuisance in accordance with
Civil Code [sections] 3479 and 3480 ...." The "regular and continuous
activities" alleged to constitute the public nuisance included:
"homicide and attempted homicide, shootings, assault and battery with a
vast array of weapons, vandalism, graffiti, sale and use of illegal narcotics,
arson and theft ... [and] blocking of free ingress and egress to the
street...." Defendants were also alleged to "have broken lights on
private property, have shot at windows of buildings, have shot at rival gang
members and innocent persons; have engaged in fights with other gangs and gang
members; have caused, encouraged and/or participated in the drinking of
alcoholic beverages by juveniles; have used loud profanities amongst each other
and directed at other neighbors; have caused, encouraged, or participated in
the use, possession and/or sale of illegal drugs; have confronted, intimidated,
annoyed, harassed, challenged and provoked the residents of the neighborhood by
their activities and have placed the residents of the neighborhood in fear of
their safety, lives and property."
The City submitted declarations from the San Jose Chief of Police, police
officers, neighborhood residents, and others describing the gangs and detailing
specific incidents in Rocksprings and elsewhere involving defendants. They
explain that the VSL/VST gangs have approximately 150 to 200 members, most of
whom are Latino youths between the ages of 14 and 23 who claim allegiance to
Southern California (hence "Sure¤o," which
is Spanish for "southern") or Mexico. The gangs claim as their
insignia the number 13, the letter "M," and the color blue; they
typically mark their turf [14 Cal.4th 1134] with graffiti and tags that
include the gang initials and variations on the number 13. The gangs lack a
"structural hierarchy"; membership is "very fluid" and such
that "many of its members did not know one another." Although their
organization is loose and informal, gang members reportedly often cooperate
with each other in drug selling and other illegal activities.
According to the declarations, drug dealing, fighting, and graffiti were
constant problems in Rocksprings and occurred at all hours of the day and
night. Gang members threatened and intimidated residents. For example, a gang
member warned a nine-year-old girl who had told police officers where some
drugs were hidden that he would cut her tongue out if she ever again talked to
the police. In another incident, gang members threatened a Rocksprings resident
and vandalized her property after she called the police to report that some
gang members had urinated in her garage. The declarations also stated, however,
that fully 86 percent of the reports of criminal activity in Rocksprings do not
indicate that they are related to VSL or VST gangs: only 12 percent of the
reports are believed by the City to be gang related and 2 percent were deemed
"possibly gang-related."
Moreover, under the City's criteria for "validating" VST and VSL
members, no history of criminal or disruptive activity in Rocksprings or
elsewhere is required for an individual to be identified as a Sure¤o gang member. Indeed, an individual may be so
identified simply if he or she "admits" to gang membership, or merely
was seen in association with another purported gang member on two occasions and
wore clothing associated with the gang-including such ordinary apparel as baggy
trousers and blue or black shirts or pants.
On February 26, 1993, the superior court granted the City's request for a
temporary restraining order and issued an ex parte
order to show cause, setting the case for further hearing on March 10, 1993.
Five defendants appeared at the hearing. The superior court left the temporary
restraining order standing against those defendants and issued an order
granting a preliminary injunction against the remaining defendants. On May 28,
1993, six additional named defendants moved to set aside the orders. fn. 2
The superior court conducted a hearing on June 28, 1993. It issued an order
granting a preliminary injunction against 11 defendants, enjoined from [14
Cal.4th 1135] performing, "directly or indirectly," certain
specified acts within the Rocksprings neighborhood. fn. 3 [14 Cal.4th 1136]
Defendants appealed from that order. The Court of Appeal concluded that
"insofar as this injunction reaches no further than the Constitution
allows, it can properly be used to abate gang-related criminal activity as a
public nuisance." Determining that many of the provisions were unconstitutionally
vague or overbroad, or prohibited too much ordinary and innocuous conduct, it
struck paragraphs (a), (e), (i), (m), (n), (o), (q),
(r), (s), (v), (w), and (x) in whole and paragraphs (c), (k), and (l) in part.
As modified, it affirmed the order granting the preliminary injunction.
The City sought review of the Court of Appeal's decision only as to two
provisions: paragraphs (a) and (k). We granted review. fn. 4
II.
We review an order granting a preliminary injunction for abuse of
discretion. (Hunter v. City of Whittier (1989) 209
Cal.App.3d 588, 595 [257 Cal.Rptr. 559].)
"Ordinarily an appeal from the granting of a preliminary injunction
involves a very limited review of the [superior court's] exercise of discretion
concerning two factors: (1) the likelihood that plaintiffs will ultimately
prevail and (2) the interim harm plaintiffs will sustain if the preliminary
injunction is denied compared to the interim harm defendant will suffer if the
injunction is granted pending a final determination of the merits." (Ibid.) Thus, an appellate decision usually does not constitute
a final adjudication of the ultimate rights in controversy; it merely
determines whether the superior court abused its discretion based on the record
before it at the time of the ruling.
Of course, questions underlying the preliminary injunction are reviewed
under the appropriate standard of review. Thus, for example, issues of fact [14
Cal.4th 1137] are subject to review under the substantial evidence
standard; issues of pure law are subject to independent review. (Bullock v.
City and
As to the remaining issues-including the likelihood that the City will
succeed in establishing that specific conduct of the VSL/VST gangs constitutes
a public nuisance and that individual defendants were properly enjoined-we
review for abuse of discretion.
III.
As a threshold matter, defendants contend that the STEP Act is the exclusive
means of enjoining criminal street gangs, preempting general public nuisance
statutes. They are wrong. The act, by its express provisions, is not the
exclusive remedy for abating gang activity constituting a public nuisance.
Under the STEP Act, a building or place used by members of a criminal street
gang for specified illegal activities constitutes a nuisance per se: [14
Cal.4th 1138] "Every building or place used by members of a criminal
street gang for the purpose of the commission of [specified] offenses ... and
every building or place wherein or upon which that criminal conduct by gang
members takes place, is a nuisance which shall be enjoined, abated, and
prevented, and for which damages may be recovered, whether it is a public or
private nuisance." (Pen. Code,
§ 186.22a, subd. (a),
italics added.) The Legislature has provided, however, that "[n]othing in this chapter shall preclude any aggrieved person
from seeking any other remedy provided by law." (
The City expressly sought relief not under the STEP Act, but, instead, under
the general public nuisance statutes. fn. 7 Accordingly, we need not determine whether
some or all of the conduct enjoined would also fall within the scope of the act
or whether any of the defendants could be enjoined under its provisions.
IV.
The City contends that all of the conduct described in paragraphs (a) and
(k) of the preliminary injunction order was properly abated by the superior
court as a public nuisance. Defendants claim that none of the conduct could be
so enjoined. Neither is correct. As the Court of Appeal correctly concluded,
some, but not all, of the conduct could not unreasonably be abated under our
general public nuisance statutes.
Civil Code section 3479 defines a public nuisance as: "Anything which
is injurious to health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or unlawfully obstructs the free
passage or use, in the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or highway, is a
nuisance." Civil Code section 3480 provides: "A public nuisance is
one which affects at the same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the annoyance or damage
inflicted upon individuals may be unequal." A public nuisance is subject
to a civil action for abatement, and may, as here, be "brought ... by the
city attorney of any town or city in which such nuisance exists." (Code Civ. Proc., § 731.) [14 Cal.4th 1139]
The act or condition to be abated may consist of criminal or noncriminal conduct, but the equitable remedy exists only
"where the objectionable activity can be brought within the terms of the
statutory definition of public nuisance." (People v. Lim
(1941) 18
Cal.2d 872, 879 [118 P.2d 472].) "[E]quity
is loath to interfere where the standards of public policy can be enforced by
resort to the criminal law, and in the absence of a legislative declaration to
that effect, the courts should not broaden the field in which injunctions
against criminal activity will be granted." (Id. at p.
880; accord, Nathan H. Schur, Inc. v. City of Santa
Monica (1956) 47
Cal.2d 11, 19 [300 P.2d 831].) fn. 8
Nor may an injunction "go ... further than is absolutely necessary to
protect the lawful rights of the parties seeking such injunction." (People v. Mason, supra, 124 Cal.App.3d at p. 354.) Rather,
it is "important for the trial court to limit the scope of the injunction,
taking only those measures which would afford the People the relief to which
they are entitled." (Ibid.; see also
In addition, of course, our general public nuisance statutes "must be
enforced in such a way as to operate in a constitutional fashion." (People ex rel. Busch v. Projection Room
Theater, supra, 17 Cal.3d at p. 55.) In [14 Cal.4th 1140]
particular, "restrictions upon the exercise of First Amendment rights
[citation] must be drawn with a narrow specificity calculated to prevent
repression of expressive activities as to which restriction is constitutionally
forbidden." (In re Berry (1968) 68
Cal.2d 137, 155 [65 Cal.Rptr. 273, 436 P.2d 273];
see Burton v. Municipal Court (1968) 68
Cal.2d 684, 696 [68 Cal.Rptr. 721, 441 P.2d 281]
[invalidating restrictions on operation of motion pictures]; City of Indio v. Arroyo
(1983) 143
Cal.App.3d 151, 158-159 [191 Cal.Rptr. 565] [sign
ordinance unconstitutionally overbroad as applied to noncommercial wall
mural].)
"The First Amendment generally prevents government from proscribing
speech [citation], or even expressive conduct [citation], because of
disapproval of the ideas expressed. Content-based regulations are presumptively
invalid." (R.A.V. v. City of St. Paul, Minnesota (1992)
377, 382 [2538, 2542, 120 L.Ed.2d 305].) The presumption of invalidity
applies with particular force to injunctions. "Injunctions ... carry
greater risks of censorship and discriminatory application than do general
ordinances" and therefore require "a somewhat more stringent
application of general First Amendment principles." (Madsen
v. Women's Health Center, Inc. (1994) 753, 764-765 [2516, 2524, 129 L.Ed.2d
593].) Accordingly, an injunction restricting speech or other expressive
conduct must be content neutral and "burden no more speech than necessary
to serve a significant government interest." (Id. at p.
765 [114 S.Ct. at p. 2525]; Planned Parenthood
Shasta-Diablo, Inc. v. Williams (1995) 10
Cal.4th 1009, 1019-1024 [43 Cal.Rptr.2d 88, 898 P.2d 402].)
An injunction restricting constitutionally protected activity must also be
sufficiently clear to withstand a challenge on the ground of vagueness under
the due process clauses of the
Finally, an injunction restricting constitutionally protected activity must
be narrowly tailored to withstand challenge on the ground of overbreadth. "[A]n overbreadth
challenge implicates the constitutional interest in due process of law. (
V.
I turn now to the individual provisions of the preliminary injunction that
are at issue here.
a.
I agree with the Court of Appeal that the following provisions of the
preliminary injunction should be sustained, because they restrict gang-related
conduct that the superior court not unreasonably found was likely to be proved
on the merits to constitute a public nuisance in the Rocksprings neighborhood:
paragraphs (b) (public consumption of alcoholic beverages or drugs); (d)
(fighting in the public streets); (f) (spray painting or otherwise applying
graffiti to public or private property); (g) (trespassing on or encouraging
others to trespass on any private property); (h) (blocking free ingress and egress
to the public sidewalks or street or to any driveways leading or appurtenant
thereto in Rocksprings); (j) (discharging firearms); (p) (demanding entry into
another person's residence); (t) (littering in any public place or place open
to public view); and (u) (urinating or defecating in any public place or place
open to public view). The record includes allegations and supporting
declarations concerning the prevalence of these activities by VSL-VST gang
members in Rocksprings. The activities also readily fall within the statutory
definition of a "nuisance" as "[a]nything
which is injurious to health, ... or is indecent or offensive to the senses, or
an obstruction to the free use of property, so as to interfere with the
comfortable [14 Cal.4th 1142] enjoyment of life or property, or
unlawfully obstructs the free passage or use, in the customary manner, of any
... public park, square, street, or highway" (Civ.
Code, § 3479) and as a "public nuisance" as "one which affects
at the same time an entire community or neighborhood, or any considerable
number of persons ...." (id., § 3480.) That some
or all of these activities may also constitute criminal violations does not
limit the superior court's power to grant a preliminary injunction in this
case.
b.
As to the remaining provisions of the preliminary injunction, as stated
above, the City only contests the decision of the Court of Appeal regarding
paragraphs (a) and (k). Unlike the majority, I agree with the Court of Appeal
that the sweeping prohibitions of the former do not withstand scrutiny, and
that the latter provision must be stricken in part.
Paragraph (a) enjoins "[s]tanding, sitting,
walking, driving, gathering or appearing anywhere in public with any other
defendant herein, or with any other known 'VST' ... or 'VSL' ... member."
It applies without any requirement or condition that a defendant or his
associate be engaged in any illegal activity or misconduct related to the
alleged public nuisance.
The provision is impermissibly vague. Who is a "known" VST or VSL
member? And by whom is such membership "known"? (See
Lanzetta v.
Thus, even if we were to accept the City's argument that the only reasonable
construction of the prohibition is that it requires a defendant to know that
the person he or she is standing, sitting, driving, walking, driving,
gathering, or appearing with is a gang member, it remains susceptible to
arbitrary enforcement. Without a definition of gang membership, how would a
defendant know when he or she was violating the injunction? It is also unclear
how a police officer would know whether or not a defendant knows that he or she
is engaging in these activities with a gang member. Under the City's
construction, a defendant could be arrested and prosecuted for walking down the
street or simply appearing in public with another person, based [14 Cal.4th
1143] on a police officer's mere supposition that such defendant
"knew" he or she was in the company of a "known" gang
member. As the Court of Appeal recognized: "it is apparent a defendant
could be engaged in one of the activities prohibited in paragraph (a) with a
person not known to him or to her but known to police as a gang member, and
suffer penalties for refusing to obey the injunction as a result. This is a classic
case of vagueness."
Apart from these fundamental vagueness problems, the prohibitions under
paragraph (a) go "further than is absolutely necessary to protect the
lawful rights of the parties seeking such injunction" (People v. Mason,
supra, 124 Cal.App.3d at p. 354) by penalizing much ordinary and lawful
activity that does not fall within the statutory definition of a public
nuisance. The prohibitions are not only sweeping, but absolute: They apply
without regard to the defendant's intent or to the circumstances. In my view, a
defendant may not be subject to a contempt sanction for merely walking in,
driving through, or "appearing" in the Rocksprings neighborhood in
the company of any "known" gang member without causing any disruption.
Such everyday conduct is not "injurious to health, ...
or ... indecent or offensive to the senses, or an obstruction to the free use
of property" (Civ. Code, § 3479); nor does it
affect "at the same time an entire community or neighborhood" (id., §
3480). fn. 9
The City asserts, and the majority apparently agree, that the associational
rights of the members of the loosely formed VSL and VST gangs are not
"worthy" of constitutional protection; they argue that only
"intimate" and "expressive" associations are entitled to
such protection. Although I, too, deplore gang violence, I am unwilling,
despite the apparent nature of the Sure¤o gangs, to
conclude that their members do not also engage in innocent intimate or
expressive conduct. Moreover, the cases on which the majority rely, principally
Roberts v. United States Jaycees (1984) 609 [3244, 82 L.Ed.2d 462], and
Paragraph (k) enjoins "[i]n any manner
confronting, intimidating, annoying, harassing, threatening, challenging,
provoking, assaulting and/or battering any residents or patrons, or visitors to
'Rocksprings', or any other persons who are known to have complained about gang
activities, including any persons who have provided information in support of
this Complaint and requests for Temporary Restraining Order, Preliminary
Injunction and Permanent Injunction." Conduct or speech that is physically
threatening, harassing, intimidating, or assaultive
may constitute a public nuisance and is not constitutionally protected. The
superior court did not abuse its discretion, therefore, in imposing
restrictions against "intimidating, harassing, threatening ... assaulting
and/or battering residents or patrons, or visitors to 'Rocksprings.' "
Although the terms "harassing" and "intimidating" are
not specifically defined in the preliminary injunction, I disagree with the
Court of Appeal's conclusion that they are too vague. Their meaning is
sufficiently definite in the context of paragraph (k) as modified. I understand
them to refer to behavior that would cause a reasonable person to suffer
substantial emotional distress. I note that courts have frequently affirmed
provisions of injunctions enjoining "intimidating" or
"harassing" others. (See, e.g., Planned Parenthood Shasta-Diablo,
Inc. v. Williams, supra, 10 Cal.4th at p. 1013 [anti-abortion protesters
enjoined from harassing persons entering a clinic]; In re Coleman (1974) 12
Cal.3d 568, 571 [116 Cal.Rptr. 381, 526 P.2d 533]
[union members enjoined from committing "acts of harassment or
intimidation"]; M Restaurants, Inc. v. San Francisco Local Joint Exec. Bd. Culinary etc.
The remainder of the provision, however, is too vague to withstand due
process challenge. Activity in Rocksprings that consists of "[i]n any manner confronting, ... annoying, ... challenging,
[or] provoking" others may include so much ordinary social behavior-and so
much that depends on the individual sensibilities of those who might feel
annoyed, challenged, or provoked-that it impermissibly invites arbitrary
enforcement. As the United States Supreme Court observed in Coates v. City of
Cincinnati (1971) 611, 614-616 [1686, 1688-1689, 29 L.Ed.2d 214]: "The
city is free to prevent people from blocking sidewalks, obstructing traffic,
littering streets, committing assaults, or engaging in countless other forms of
antisocial conduct.... [¶] ... The First and Fourteenth Amendments do not
permit a State to make criminal the exercise of the right of assembly simply
because its exercise may be 'annoying' to some people. If this were not the
rule, the right of the people to gather in public places for social or [14
Cal.4th 1145] political purposes would be continually subject to summary
suspension through the good-faith enforcement of a prohibition against annoying
conduct. And such a prohibition, in addition, contains an obvious invitation to
discriminatory enforcement against those whose association together is
'annoying' because their ideas, their lifestyle, or their physical appearance
is resented by the majority of their fellow citizens." (Fns. omitted; see
also H-CHH Associates v. Citizens for Representative Government (1987) 193
Cal.App.3d 1193, 1221 [238 Cal.Rptr. 841]
[prohibition against "approaching" mall patrons overbroad because it
"encompass[es] lawful,
as well as unlawful, activity"].)
I also conclude that the phrase "persons who are known to have
complained about gang activities" is too imprecise and must be stricken
from paragraph (k). The City concedes as much. It is, in any event,
superfluous: defendants are prohibited from threatening or assaulting any other
person in Rocksprings, i.e., all "residents, patrons, or visitors." fn. 10
VI.
The preliminary injunction names specific individuals; it is not directed
against the VSL/VST gangs generally. Defendants contend that the superior court
erred by enjoining six persons who have not been shown to be directly and
substantially responsible for the public nuisance. The City counters that all
six defendants were properly enjoined. Analogizing this matter to cases
involving injunctions directed against unions and political organizations, it
argues that "had [it] obtained a preliminary injunction against the VSL/VST
street gangs to abate the public nuisance the gang created in Rocksprings,
there is no question that injunction could have been made to bind the members
of the gang as a class."
Neither is persuasive. I reject defendants' argument that an individual
could properly be subject to the preliminary injunction only if he or she
engaged in all of the enjoined conduct or was otherwise responsible for the
public nuisance. I also reject the City's argument that each one of these
defendants was properly enjoined because the superior court could have enjoined
the VSL/VST gangs as a whole. They beg the question whether the gang members
could properly have been enjoined as a class. Unlike the unions in Watsonville
Canning & Frozen Food Co. v. Superior Court (1986) 178
Cal.App.3d 1242 [224 Cal.Rptr. 303], or the
anti-abortion organizations [14 Cal.4th 1146] in Madsen v. Women's
Health Center, Inc., supra, 753, the VSL/VST gang is a loose affiliation of
hundreds of individuals, many of whom may never have participated in any of the
activities constituting the public nuisance. Indeed, it is likely that many of
them either live in Rocksprings themselves or have friends and relatives who
do.
As the City concedes, an individual may be "validated" as a
VSL/VST gang member simply because he or she wears gang colors (including
"neutral" colors like khaki, black, white, and blue) and is seen in
the company of other "validated" gang members. I would agree with the
Court of Appeal that, absent any showing that an individual
"validated" as a gang member is likely to commit acts constituting a
public nuisance in Rocksprings, he or she may not properly be subjected to the
injunction, at least to the extent that it enjoins ordinary and innocent
conduct within the Rocksprings neighborhood. (See People v. Green (1991) 227
Cal.App.3d 692, 699 [278 Cal.Rptr. 140] [mere
membership in a street gang is not a crime]; see also NAACP v. Claiborne
Hardware Co. (1982) 886, 920 [3409, 3429, 73 L.Ed.2d 1215] [individuals could
not be enjoined merely because they belonged to a group, some members of which
committed acts of violence; to impose liability by reason of association alone,
it must be shown that the group itself possessed unlawful goals and the named
individual held a specific intent to further those goals].) fn. 11
Under our general nuisance statutes, "[a] judgment prohibiting a
defendant from doing that which neither past acts nor
present intent indicates he is likely to do unless prevented by a court of
equity, is an erroneous exercise of equitable jurisdiction." (People v. Robin (1943) 56
Cal.App.2d 885, 887 [133 P.2d 436].) The mere facts that a defendant
"admitted" gang membership to a police officer or others or was seen
associating with gang members or wearing gang colors or insignia, do not
indicate that he or she has, or will in the future, engage in conduct amounting
to a public nuisance. In my view, individual defendants may be subject to the
preliminary injunction only if the City establishes a likelihood that it will
succeed on the merits of its claim that he or she actively participated in the
activities constituting a public nuisance, or had a specific intention to do
so.
The City presented evidence of conduct by each of the named defendants in
and around the Rocksprings area. [14 Cal.4th 1147]
As to one of the named defendants, Blanca Gonzalez, the evidence consisted
solely of a police officer's statement to the effect that she was the driver of
a car that was circling up and down the street in a purportedly Norte¤o-dominated neighborhood-apparently not Rocksprings.
On that occasion, she was dressed in a black top and black jeans, consistent
with members of Sure¤o gangs; she told the police
officer that she belonged to the VST and VCT (also known as "Varrio Colonio Treces") gangs. On another occasion, a police officer
on patrol in Rocksprings entered into a conversation with Gonzalez and another
young Hispanic woman, after they drove up to an address in the Rocksprings
neighborhood. Gonzalez told him that she did not live in Rocksprings and that
she was a member of the VSL gang.
None of this alleged conduct establishes a likelihood that the City will
succeed on the merits of its claim that Gonzalez has participated in conduct
amounting to a public nuisance in the Rocksprings neighborhood or elsewhere, or
that she has any specific intention of doing so.
The record also fails to support enjoining Miguel Moreno or Rafael Ruiz.
Although both at one time "admitted" gang membership, neither was
adequately shown to have engaged in conduct amounting to a public nuisance in
or around Rocksprings.
Defendants also argue that the superior court erred in naming three other
gang members, Jorge Gonzalez, Eberardo Cervantes, and
Miguel Lopez. I disagree. As the Court of Appeal not unreasonably concluded, an
adequate showing was made for the purposes of ordering preliminary injunctive
relief against them. All three not only freely admitted that they were active
gang members, but they participated in conduct in and around Rocksprings
amounting to a public nuisance. fn. 12 I would therefore sustain the Court of
Appeal's determination that these defendants were not unreasonably restrained.
In sum, I would affirm the judgment of the Court of Appeal to the extent
that it sustained paragraphs (b), (c), (d), (f), (g), (h), (j), (p), (t), and
(u) and [14 Cal.4th 1148] struck paragraph (a). I would reverse the
judgment of the Court of Appeal to the extent that it struck the terms
"harassing" and "intimidating" from paragraph (k).
Conclusion
The majority would permit our cities to close off entire neighborhoods to
Latino youths who have done nothing more than dress in blue or black clothing
or associate with others who do so; they would authorize criminal penalties for
ordinary, nondisruptive acts of walking or driving
through a residential neighborhood with a relative or friend. In my view, such
a blunderbuss approach amounts to both bad law and bad policy. Justice Black
warned in Jay v. Boyd (1956) 345, 367 [919, 931, 100 L.Ed. 1242]: "Unfortunately there are some who think
that the way to save freedom in this country is to adopt the techniques of
tyranny." The majority here appear to embrace that misguided belief.
Accordingly, I dissent.
FN 1. The
FN 2.
"If anyone cast dung etc. into Ditches, Water etc. which are next to any
City, Borough or Town, he who will may sue forth a writ directed unto the Mayor
or Sheriff or Bayliff of such Town etc." (The Stat. of 12 Rich. II, 1389, ch. 13.)
FN 3.
As the editors of the second Restatement note, at common law the public
nuisance involved "an interference with a right common to the general
public. Little more than this in the way of a standard for determining what
kinds of interferences constitute the crime of public nuisance was to be found
in the cases." (Rest.2d Torts, § 821B, com. e, p. 89.)
The development of the private nuisance tort action, however, "led to the
application in public nuisance cases ... of an analysis substantially similar
to that employed in the tort action for private nuisance." (Ibid.) By analogy to the rules governing tort liability,
courts apply the same elements to determine liability for a public nuisance. (See id. at pp. 89-91.)
FN 4.
Defendants concede that the People did not purport to seek injunctive relief
under the STEP Act, but invoked the general public nuisance statutes; they
argue, however, that the superior court erroneously relied on the STEP public
nuisance provision. A reviewing court will uphold a judgment if it is correct
for any reason " 'regardless of the correctness
of [its] grounds ....' [Citation.] 'It is judicial
action and not judicial reasoning which is the subject of review ....' " (United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217
Cal.App.3d 925, 933 [266 Cal.Rptr. 231], fn. omitted.)
FN 1.
The City "validates" as a criminal street gang an association of
three or more persons with a common name or symbol whose members collectively
or individually engage in a pattern of criminal conduct, as defined by Penal
Code section 186.22, subdivision (f). It does not, however, adhere to the
statutory definition of a gang member. (Pen. Code, § 186.22, subd. (a) [gang
member defined as "[a]ny person who actively
participates in any criminal street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity, and who willfully
promotes, furthers, or assists in any felonious criminal conduct by members of
that gang."].) Instead, to "validate" specific gang members, the
City merely reviews police records to identify individuals who admit membership
in a gang to a peace officer, probation officer, juvenile hall or youth ranch
employee, or who meet two or more of the following conditions: wear clothing or
tattoos indicating gang affiliation or use gang hand signs; are named by two or
more members of a gang as a member; actively participate in a gang crime; are
identified by a reliable informant as a gang member; or are observed
associating with gang members two or more times. Using similar broad criteria,
the Los Angeles Sheriff's Department has estimated that 47 percent of all
African-American males between the ages of 21 and 24 are actual or suspected
gang members. (Reiner (1992) Gangs,
Crime and Violence in Los Angeles, p. 121.)
FN 2.
The six defendants submitted declarations in support of the motion to vacate,
including explanations of why certain defendants failed to attend the hearing
on the order to show cause. Some of the defendants described their family and
other ties to the Rocksprings neighborhood; a few also stated that they had
never been-or were no longer-Sure¤o gang members.
FN 3.
The superior court did not prepare a written statement of decision. The order
granting the preliminary injunction enjoins defendants Carlos Acuna, Jose Bravo, Eberardo
Cervantes, Martin Davila, Blanca Gonzalez, Jorge Gonzalez, Juan Pineda
Hernandez, Miguel Lopez, Miguel Moreno, Flavio Quinonez, and Rafael Ruiz from the following acts:
"(a) Standing, sitting, walking, driving, gathering or appearing
anywhere in public view with any other defendant herein, or with any other
known 'VST' (Varrio Sureno
Town or Varrio Sureno Treces) member;
"(b) Drinking alcoholic beverages in public excepting
consumption on properly licensed premises or using drugs;
"(c) Possessing any weapons including but not limited to knives, dirks,
daggers, clubs, nunchukas [sic; nunchakus],
BB guns, concealed or loaded firearms, and any other illegal weapons as defined
in the California Penal Code, and any object capable of inflicting serious
bodily injury including but not limited to the following: metal pipes or rods,
glass bottles, rocks, bricks, chains, tire irons, screwdrivers, hammers,
crowbars, bumper jacks, spikes, razor blades; razors, sling shots, marbles,
ball bearings;
"(d) Engaging in fighting in the public streets, alleys, and/or public
and private property;
"(e) Using or possessing marker pens, spray paint cans, nails, razor
blades, screwdrivers, or other sharp objects capable of defacing private or
public property;
"(f) Spray painting or otherwise applying graffiti on any public or
private property, including but not limited to the street, alley, residences,
block walls, vehicles and/or any other real or personal property;
"(g) Trespassing on or encouraging others to trespass on any private
property;
"(h) Blocking free ingress and egress to the
public sidewalks or street, or any driveways leading or appurtenant thereto in
'Rocksprings';
"(i) Approaching vehicles, engaging in
conversation, or otherwise communicating with the occupants of any vehicle or
doing anything to obstruct or delay the free flow of vehicular or pedestrian
traffic;
"(j) Discharging any firearms;
"(k) In any manner confronting, intimidating, annoying, harassing,
threatening, challenging, provoking, assaulting and/or battering any residents
or patrons, or visitors to 'Rocksprings', or any other persons who are known to
have complained about gang activities, including any persons who have provided
information in support of this Complaint and requests for Temporary Restraining
Order, Preliminary Injunction and Permanent Injunction;
"(l) Causing, encouraging, or participating in the use, possession
and/or sale of narcotics;
"(m) Owning, possessing or driving a vehicle found to have any
contraband, narcotics, or illegal or deadly weapons;
"(n) Using or possessing pagers or beepers in
any public space;
"(o) Possessing channel lock pliers, picks, wire cutters, dent pullers,
sling shots, marbles, steel shot, spark plugs, rocks, screwdrivers, 'slim jims'
and other devices capable of being used to break into locked vehicles;
"(p) Demanding entry into another person's residence at any time of the
day or night;
"(q) Sheltering, concealing or permitting another person to enter into
a residence not their own when said person appears to be running, hiding, or
otherwise evading a law enforcement officer;
"(r) Signaling to or acting as a lookout for other persons to warn of
the approach of police officers and soliciting, encouraging, employing or
offering payment to others to do the same;
"(s) Climbing any tree, wall, or fence, or passing through any wall or
fence by using tunnels or other holes in such structures;
"(t) Littering in any public place or place
open to public view;
"(u) Urinating or defecating in any public place or place open to
public view;
"(v) Using words, phrases, physical gestures, or symbols commonly known
as hand signs or engaging in other forms of communication which describe or
refer to the gang known as 'VST' or 'VSL' ... as described in this Complaint or
any of the accompanying pleadings or declarations;
"(w) Wearing clothing which bears the name or letters of the gang known
as 'VST' or 'VSL';
"(x) Making, causing, or encouraging others to make
loud noise of any kind, including but not limited to yelling and loud music at
any time of the day or night."
FN 4.
Thus, as it indicated in written and oral argument, the City did not challenge
the Court of Appeal's determination that the following conduct, inter alia, was improperly enjoined: possession or use in
Rocksprings of such everyday items as beepers, pens, spray paint cans, nails,
screwdrivers, or any "sharp objects capable of defacing private or public
property"; "encouraging" or "participating" in the use
or possession of narcotics; "engaging in conversation, or otherwise
communicating with the occupants of any vehicle"; using communicative hand
signs or signals describing or referring to the gangs; wearing clothing bearing
the name or letters associated with the gangs; climbing trees or walls or
"passing through" fences. The City impliedly concedes that the Court
of Appeal correctly struck these provisions of the injunction as enjoining more
conduct than was necessary to abate the nuisance and on constitutional grounds.
FN 5.
"[The] issue can arise, for example, when it is contended that an
ordinance or statute is unconstitutional on its face and that no factual
controversy remains to be tried. If such a question of pure law is presented,
it can sometimes be determinative over the other factor, for example, when the
defendant shows that the plaintiff's interpretation is wrong as a matter of law
and thus the plaintiff has no possibility of success on the merits. [Citations.] Even where the question of law is not entirely
determinative, it may be appropriate for the appellate court to express its
opinion in order to clarify or narrow the issues for trial." (Hunter v. City of Whittier, supra, 209 Cal.App.3d at pp. 595-596;
see, e.g., Cohen v. Board of Supervisors (1985) 40
Cal.3d 277, 287-290 [219 Cal.Rptr. 467, 707 P.2d
840].)
FN 6.
Defendants contend that de novo review of the entire record is required because
the superior court's order affects their First Amendment rights. (See Hurley v. Irish-American Gay Group of Boston (1995) 557, ___
[2338, 2344, 132 L.Ed.2d 487].) As Hurley explains, however, "[t]he
'requirement of independent appellate review ... is a rule of federal
constitutional law,' ... which generally requires us to 'review the finding of
facts by a State court ... where a conclusion of law as to a Federal right and
a finding of fact are so intermingled as to make it necessary, in order to pass
upon the Federal question, to analyze the facts, ...' " (Ibid., italics
added.) That is not the case here; as will appear, our inquiry is limited to
the facial validity of certain provisions of the injunction under the United
States Constitution.
FN 7.
Defendants concede that the City did not purport to seek injunctive relief
under the STEP Act, but invoked the general public nuisance provisions; they
argue, however, that the superior court erroneously purported to rely on the
provision. We will uphold a judgment if it is correct for any reason " 'regardless of the correctness of [its] grounds ....'
'It is judicial action and not judicial reasoning which is the subject of
review ....' " (United Pacific Ins. Co. v.
Hanover Ins. Co. (1990) 217
Cal.App.3d 925, 933 [266 Cal.Rptr. 231], fn. omitted.)
FN 8.
That both criminal and noncriminal conduct can be
enjoined as a public nuisance is clear under our statutory and case law. (See,
e.g., Civ. Code, § 3369 ["Neither specific nor
preventive relief can be granted ... to enforce a penal law, except in a case
of nuisance or as otherwise provided by law."]; Pen. Code, § 186.20 et
seq. [STEP Act]; id., § 11225 et seq. [Red Light Abatement Law]; People ex rel. Busch v. Projection Room Theater (1976) 17
Cal.3d 42, 49, 53 [130 Cal.Rptr. 328, 550 P.2d
600] [exhibition of obscene books]; Nathan H. Schur,
Inc. v. City of Santa Monica, supra, 47 Cal.2d at pp. 18-19 [" 'Conduct
against which injunctions are sought in behalf of the public is frequently
criminal in nature.... [That] will not prevent the intervention of equity where
a clear case justifying equitable relief is present ....' "];
People v. Lim, supra, 18
Cal.2d 872 [gambling house]; Newhall Land & Farming Co. v. Superior
Court (1993) 19
Cal.App.4th 334, 341 [23 Cal.Rptr.2d 377] [pollution of water]; Hayman v. Block (1986) 176
Cal.App.3d 629, 644 [222 Cal.Rptr. 293]
[blocking right of way]; People v. Mason (1981) 124
Cal.App.3d 348, 353 [177 Cal.Rptr. 284] [noise
emanating from bar and restaurant]; Vedder v.
FN 9. As one court has observed: "The right to walk the streets, or
to meet publicly with one's friends for a noble purpose or for no purpose at
all-and to do so whenever one pleases-is an integral component of life in a
free and ordered society. [Citations.] This
right is rooted in the First Amendment's protection of freedom of expression
and association, as well as ... the Fifth Amendment's protection of fundamental
liberty interests under the doctrine of substantive due process." (Waters v. Barry (D.D.C. 1989) 711 F.Supp.
1125, 1134; see also Kolender v. Lawson (1983) 352,
358 [1855, 1859, 75 L.Ed.2d 903] [law prohibiting wandering the streets at
night without identification implicated "consideration of the
constitutional right to freedom of movement"].)
FN 10.
In paraphrasing paragraph (k), the majority repeatedly
mischaracterize it as only forbidding defendants from intimidating or
otherwise challenging Rocksprings residents or other persons who gang members
know have complained about their conduct within the neighborhood. It is not so
limited. Rather, it expressly prohibits threatening, intimidating, harassing,
or assaulting any Rocksprings resident for any reason.
FN 11.
Use of the word "gang" has a tendency to strike fear in the hearts of
countless persons. The trial court and now a majority of this court have
succumbed to that somewhat irrational fear. The Court of Appeal is to be
commended for looking at the issue dispassionately and objectively. Some of
these defendants have not been convicted of, or even charged with, any crime.
Yet they are, under the injunction, deprived of a number of personal rights
generally reserved to all free citizens-including the right to walk or drive
through the Rocksprings neighborhood with a "known" gang member even
for an innocent purpose.
FN 12.
Thus, Jorge Gonzalez was stopped in connection with a gang-related disturbance
in Rocksprings and admitted to police officers that he was a gang member; he
was also found in possession of cocaine and marijuana after his car was stopped
by a police officer near Rocksprings; Eberardo
Cervantes was observed selling illegal drugs in Rocksprings and prosecuted for
possession for sale and sale of marijuana and cocaine; Miguel Lopez was observed
selling narcotics in Rocksprings and was found to be in possession of
marijuana. The question whether the superior court erred in naming five other
defendants, Carlos Acuna, Jose Bravo, Hassan Martin Davila, Juan Pineda Hernandez, Flavio Quinonez, is not before
us; it was neither ruled on by the Court of Appeal nor raised in the petitions
for review.