Attorneys fighting for rights of Trece members
Standard-Examiner staff
Tuesday, February 8, 2011 - 10:57pm
OGDEN -- Attorneys have been back in court for another round of debating the constitutionality of Ogden's injunction against the Trece street gang.
Tuesday's was the first such session since the Utah Supreme Court declined Nov. 1 to weigh in on the issues, although those on both sides of the injunction fully expect it to eventually return to the high court.
The injunction, ordered into law Sept. 27 by 2nd District Judge Ernie Jones, bans Trece gang members from associating with each other in public, being in the vicinity of guns, drugs or alcohol, and staying out past an 11 p.m. curfew.
Common in California and used in a few other states, the injunction is a first in Utah.
Among Tuesday's arguments before Jones were limits allowed on First Amendment rights and the question of curtailing behavior of individuals before they commit a crime.
Weber County Attorney Dee Smith, co-author along with the Ogden Metro Gang Unit of the 331-page injunction, said the U.S. Supreme Court has allowed First Amendment limits on groups via injunction.
"There is a difference between an injunction and an ordinance, or statute," noted Smith, in that the latter applies to everyone, but the former only to a specific group.
The high court, he said, has limited where anti-abortion groups may protest, as well as union members, when "violence enmeshed contemporaneously with peaceful protest."
"The county attorney says, 'We think you're going to commit a crime, so we're going to enjoin you from doing anything,' " said Mike Studebaker, attorney for two alleged Treces.
One of his clients runs a recording studio that is suffering financially because Treces can no longer frequent it, he said.
"The injunction is putting him out of business for something that may happen," Studebaker said. "There's no precedent for what the county is trying to do here."
Attorney Randy Richards, representing another alleged Trece, argued, "The state is stripping my client of his sacred constitutional rights that have been in place for more than 200 years."
In addition to taking away his client's First Amendment rights of free association, Richards claims Fourth, Fifth, Ninth and 14th Amendment violations by the injunction.
For the police to be able to pull over his client's car if he has a documented Trece member in the vehicle steps on Fourth Amendment protections against illegal search and seizure and Ninth Amendment privacy rights, he said.
Fifth and 14th Amendment due process rights are also violated in that scenario, he said.
Richards said his client is not a Trece, but the process for proving that under the injunction includes holding a job for a year, which his client is unable to do because of a disability.
Jones took the cases under advisement. He said he will issue a decision within 30 days on several defense motions seeking to dismiss the injunction against some of those alleged to be gang members.
After that, scheduling could be discussed on other hearings leading up to an eventual trial on the question of making the injunction permanent.
Essentially, the injunction is currently labeled preliminary, with no expiration date, officials have explained, until the outcome of the trial.
Ogden police, as of the end of January, count several dozen arrests of Treces for violations of the injunction, a misdemeanor typically filed in Ogden Justice Court.
But several arrests incident to the injunction have led to felony charges filed in district court after drugs or weapons were found on Treces when taken into custody for injunction violations.
So far, about 150 members of the gang, estimated to include more than 300 members, have been served personally with a copy of the injunction.
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