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A Weber County judge recently tossed two convictions for an accused Ogden Trece gang member who violated a now-defunct injunction.
It's been nearly two years since the Utah Supreme Court threw out an injunction that forbid Ogden Trece gang members from associating with each other in public. Now, those who were slapped with the class B misdemeanor while it was in effect are fighting to have their convictions vacated.
Last week, 2nd District Judge Mark DeCaria did just that, throwing out two of Leland McCubbins' misdemeanor convictions for injunction violation. The Ogden judge ruled that the convictions and sentences imposed against McCubbins violated federal and state constitutions because of the Utah Supreme Court's ruling — which voided the injunction because the county did not properly serve summonses to members of the gang.
McCubbins, who was represented by the American Civil Liberties Union of Utah and defense attorney Randall Richards, said in a news release Thursday that he was "elated" by the judge's decision.
"Having these unfair convictions off my record is like a weight off my shoulders," he said. "Being wrongly subjected to the injunction was hard enough, but being convicted of breaking it added insult to injury."
According to court records, McCubbins was convicted of the two charges in January and April 2012. That September, an Ogden judge dismissed the injunction against him after finding that he was not a member of Ogden Trece.
The ACLU estimates that at least 50 defendants were convicted of the class B misdemeanor crime in the three-year period that the injunction was enforced in Ogden city. A conviction is punishable by up to six months in jail and a $500 fine.
Weber County filed a lawsuit against the gang in 2010, arguing that its members were a public nuisance. Along with preventing identified gang members from hanging out together in public, the injunction also set an 11 p.m. curfew and prohibited the possession of weapons or graffiti tools, among other restrictions.
While Weber County prosecutors argued that the injunction was appropriate to curb gang crime in Ogden, defense attorneys for individuals targeted by the restrictions claimed it violated their constitutional rights.
John Mejia, legal director of the ACLU of Utah, said Thursday that the judge's decision to toss McCubbins' case was a "big victory for the rights of all Utahns."
"It sends the clear message that no matter what your standing in society is, when the government does not follow the state and federal constitution in every aspect of prosecuting you, any resulting conviction will not stand," Mejia said.
Weber County Attorney Christopher Allred said Thursday in an email to The Tribune that the ACLU's efforts to expunge the alleged gang members' convictions were "misguided," and said officials plan to bring the injunction back once they work out the summons service issues. He said the Utah Supreme Court overturned the injunction on a "very narrow and technical issue," but did not address whether the injunction was constitutional.
"Their purpose is to commit crime, and they simply don't have a constitutional right to assemble for the purpose of depriving others of their rights," Allred said. "...Gang crime in our community went down significantly with the injunction in place, so we are definitely evaluating what needs to be done to re-file the injunction."
The ACLU is also pushing forward in a separate class action petition, working to expunge the convictions of all who had been charged with violating the injunction. But in that case, Weber County prosecutors have asked for a dismissal because of statute of limitations issues. They also argue in court papers that the lead petitioner, Daniel Lucero, should have sought other legal remedies before seeking an expungement. Second District Judge Noel Hyde has not yet ruled in that case.
Mejia said Lucero and McCubbin's cases are very similar, but McCubbins was not part of the class action petition because his case was filed before Lucero's.
Twitter: @jm_miller