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Alleged Ogden gang members plan suit over injunction

Published December 4, 2013 7:13 pm

Weber County attorney hopes to get the ruling restored after Utah Supreme Court tossed it.
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After being pursued by police and prosecutors for years, those targeted by a now-defunct gang injunction in Ogden are fighting back and plan to sue Weber County and Ogden City Police for potentially millions of dollars.

The former injunction against the Ogden Trece street gang had been in place since September 2010, and prohibited gang members from possessing weapons or graffiti tools, or associating with one another in public within a 25-square-mile area that encompassed most of Ogden. It also set an 11 p.m. curfew, among other restrictions.

Weber County prosecutors call the homegrown gang a nuisance and argued the injunction was appropriate, while defense attorneys for individuals targeted by the injunction claim it tramples their constitutional rights.

In October, the Utah Supreme Court threw out the injunction — not because of constitutional issues, but because of the county's unlawful procedure for trying to put the gang on notice.

Now, defense attorney Michael Studebaker, who represents some of the alleged gang members, has filed a notice of claim detailing his intent to sue the county and police.

"It's the appropriate measure to take simply because these people were wrongfully enjoined," Studebaker said Wednesday. "My clients' rights were violated. ... These people should be compensated for the actions of the government and what they did."

Studebaker said he hopes to file a class-action lawsuit and expects to ask for at least $20,000 ­for each Ogden resident who was served the injunction or "harassed" by the injunction. At least 500 people are estimated to have been served or affected by the injunction, according to Studebaker.

One of Studebaker's clients, Chase Aeschlimann, said in June that he fears being in public on the off chance that another gang member could be in the same vicinity and he could get arrested. He said during an evidentiary hearing last year that he was never part of the Ogden Trece gang, but did have "OX3" tattooed on his back when he was 12 — out of fear, he testified, because his brother and friends may have been involved in the gang.

Weber County Attorney Dee Smith declined to comment on the potential litigation. He said prosecutors continue to work on a way to fix the issue with how the injunction is served, and hopes to put it back in place.

"The gang injunction is something that is important to this community," Smith said. "We intend to move forward with it."

Smith said that the injunction will likely have to be readdressed in district court, but he would not discuss how long it would take for police and prosecutors to come up with a new approach to serve members of the gang.

"We're still doing the legwork that we need to do for it," he said.

The difficulty lies in the Ogden Trece organization system. 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 agent."

But a high-level gang member testified during last year's evidentiary hearing that there is no head leader or president of the Ogden Treces. Rather, a number of "shot callers" give orders to other members.

It is nearly impossible to identify these leaders, prosecutors have argued, because the position of a "shot caller" can fluctuate as members are incarcerated, die or leave the gang, and because of the secrecy surrounding the Ogden Treces.

"When you walk up to a Trece gang member and ask, 'Who's your boss?' they either won't answer the question or they will laugh," Deputy Weber County Attorney Branden Miles said in October.

If a documented Trece member is caught violating the injunction, a class B misdemeanor, that person can be fined or could face jail time. Since it's a civil order, it requires a lower standard of evidence than criminal proceedings.

Ogden police officials have praised the gang injunction, saying that it has helped lower gang crime within the city. They claim the Ogden Trece gang has been responsible for crimes ranging from graffiti to aggravated homicide since the gang began in 1974 as the "Ogden Knights." Police officials declined to comment Tuesday about the potential lawsuit.

Beyond the issues surrounding how the alleged gang members were served the injunction, Studebaker said that defense attorneys still believe the injunction violates the members' constitutional rights, including their right to gather together to peacefully protest.

"It's out of control," he said.

Smith contends that similar injunctions in California and Texas have held up against constitutional challenges, and he believes Ogden's gang injunction would do the same.

jmiller@sltrib.com

Twitter: @jm_miller