PEOPLE EX REL. JOAN R. GALLO V. ACUNA
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
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
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.
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
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
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
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
[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.,
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
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
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.
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.
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.
 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.
 [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.
 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.