14 Cal.4th 1090, 60 Cal.Rptr.2d 277, 929 P.2d 596 (1997)


Judge Brown delivered the opinion of the Court.


At the request of the City Attorney of the City of San Jose (hereafter the City), we granted review to resolve an array of challenges to two provisions of a preliminary injunction entered by the superior court against individual members of an alleged “criminal street gang.”


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 Sureo Town, Varrio Sureo Treces (VST), or Varrio Sureo 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  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.”

The Court of Appeal…concluded many of the provisions of the preliminary injunction were void and unenforceable under either the First and Fifth Amendments to the federal Constitution as unconstitutionally vague or overbroad. Altogether, 15 of the 24 provisions of the trial court’s preliminary injunction were partially or entirely invalidated. However, the City’s petition only sought review of two provisions—paragraphs (a) and (k). We granted the City’s petition and now reverse.

The state has not only a right to “maintain a decent society,” 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 Madison, the description of the pivotal compact remains unchanged: By entering society, individuals give up the unrestrained right to act as they think fit; in return, each has a positive right to society’s protection. As we explain, a principal office of the centuries-old doctrine of the “public nuisance” has been the maintenance of public order—tranquility, security and protection—when the criminal law proves inadequate.

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” 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.’” 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.

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.

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, 512 U.S. 753, a case involving harassment in front of an abortion clinic].


Here again, “[t]he particular context is all important.” 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 identities. We conclude neither of the two provisions should have been invalidated by the Court of Appeal on vagueness grounds.

Do provisions (a) and (k) of the superior court’s preliminary injunction meet the constitutional test formulated by the Supreme Court in Madsen by “burden[ing] no more speech than necessary to serve” an important governmental interest? We conclude both provisions satisfy the constitutional test. 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—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 territory of Rocksprings. So far as the record before the trial court shows, the gangs and their members engaged in no expressive or speech-related activities which were not either criminally or civilly unlawful or inextricably intertwined with unlawful conduct. According to the declaration of Officer Mikael Niehoff, an eight-year veteran of the San Jose Police Department: “Illegal drug dealing by Sureno gang members, including VSL/VST, is a common practice, and the gang entity provides protection to the individual members, allowing them to establish areas where they can conduct their illegal activities. The protective shield of the gang has allowed individual members to commit crimes such as narcotic trafficking that result in personal gain. These crimes are committed in association with the gang because of the protection offered to the members by virtue of their gang affiliation. In the Rocksprings area, the fact that numerous narcotics transactions occurred is a direct result of the protective shield provided by VSL/VST. Individuals who claimed membership in VSL or VST were at liberty to deal drugs in a veritable ‘safe’ zone.”

Does provision (a)’s prohibition on a gang member associating with even a single fellow gang member within Rocksprings transgress the test of Madsen? 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.


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.” 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.” “[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.”  By the same token, “utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.”

[T]here 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


Judge Mosk, 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.[1],[2]

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”? In the absence of any specific definition of gang membership, neither police officers nor courts are provided with a consistent standard for determining when a violation of the injunction occurred.


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 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” 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.

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 Sureo gangs, to conclude that their members do not also engage in innocent intimate or expressive conduct.

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.


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 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.[3]


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 Norteo-dominated neighborhood--apparently not Rocksprings. On that occasion, she was dressed in a black top and black jeans, consistent with members of Sureo 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.

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. Moreno was merely “identified” by an unknown party as having been involved in a drug offense in Rocksprings. Ruiz was identified by a police officer responding to a citizen call concerning a drug transaction as loosely matching a description of one of the participants.


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): “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.

[1] The City “validates” as a criminal street gang an association of three of more persons with a common name or symbol whose members collectively or individually engage in a pattern of criminal conduct, as defined by [the] Penal Code. It does not, however, adhere to the statutory definition of a gang member. 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.

[2] [A]s 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 of possession of narcotics; “engaging in conversation, or otherwise communication 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 tress or walls or “passing through” fences. The City impliedly concedes that the Court of Appeal correctly struck these provision of the injunction as enjoining more conduct than was necessary to abate the nuisance and on constitutional grounds.

[3] 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.