Utah Supreme Court throws out Ogden gang injunction
The Utah Supreme Court has thrown out Weber County’s anti-gang injunction forbidding members of the Trece gang from associating with each other in public.
In a ruling issued Friday, the court found that the county did not properly serve summons to members of the gang. Five members of the gang were personally served with the summons and complaint, but the court ruled that the county never explained how those members were the equivalent of “officers” or “agents” of the organization, as required by law.
The injunction, which was granted preliminarily in September 2010 and became permanent on Aug. 20, is intended to curb gang activity in Ogden. Weber County prosecutors call the gang a nuisance and say the injunction is appropriate.
The injunction prohibited identified gang members from associating with each other in public, possessing weapons or graffiti tools and sets an 11 p.m. curfew, among other restrictions.
Some members of the gang challenged the injunction, claiming it denied their constitutional right to associate.
But the Supreme Court did not address the injunction’s constitutionality. It instead voided the injunction because of the county’s procedure of trying to put the gang on notice.
“This isn’t a sweeping civil rights victory for Ogden Trece or a finding that their rights were even violated at all,” said Deputy Weber County Attorney Branden Miles. “It’s a technical decision on a rule of civil procedure.”
To properly serve an “unincorporated association,” such as a gang, the county is required to personally deliver a copy of the summons and complaint to “an officer or managing or general agent” — or the equivalent — of the gang.
A Trece member, Duane Dreamer, had testified that a management structure does exist in the gang, with “shot-callers” giving orders to other members. But the court found that the county never established whether the five members served were “shot callers” or whether the “shot callers” were the equivalent of an “officer” or an “agent.”
“Service on mere members … is inadequate,” the opinion states.
A district judge also allowed the county to serve the gang by publicizing the summons and complaint in a newspaper. But the Supreme Court ruled that type of notification should be a last resort, used only after a diligent effort to identify and serve an officer or agent.
“The county simply relies on its bald assertion that Trece has no known management structure” — despite presenting Dreamer’s testimony that “shot-callers” exist in the gang, the court ruled.
Attorney Michael Studebaker, who defended one of the accused Trece members, said the victory was not a small matter of procedure.
“The reason you have to serve each person is that they have to be able to come in and defend themselves,” Studebaker said.
In a press statement, the ACLU of Utah said Weber County’s tactics amounted to “binding hundreds of individuals without having to name any of them.”
“We are thrilled that the Court vacated this misguided, overbroad, and constitutionally suspect law enforcement tactic and recognized that the process Weber County used to obtain the injunction was fundamentally flawed,” said David Reymann, a cooperating attorney with the ACLU of Utah. “The constitution demands that parties whose rights will be affected must be given a meaningful day in court, and that simply did not happen.”
Miles said the county plans to re-serve a summons with more documentation showing the obstacles to identifying the gang’s officers.
“We couldn’t really identify a management structure because it was so fluid,” said Jon Greiner, who was Ogden police chief when the injunction was created in 2010.
Even if it were stable, members aren’t likely to name names, Miles said.
“When you walk up to a Trece member and ask, ‘Who’s your boss?’ they either won’t answer the question or they will laugh,” he said.
The ACLU is prepared for another fight over the injunction’s constitutionality, said John Mejia, legal director for the ACLU of Utah.
“Because the Court did not reach the merits of the injunction … this may only be the beginning of a longer fight,” Mejia said.