They were never Ogden Trece gang members, they say, and should never have been served with a controversial gang injunction that they claim trampled on their constitutional rights.
Yes, they have tattoos. Yes, they "occasionally" associate with alleged gang members.
But they don’t commit gang-related crimes, according to defense attorney Michael Studebaker, who filed a lawsuit in federal court on Monday against Weber County Attorney Dee Smith and the Ogden Police Department.
Six Ogden men are named as plaintiffs in the lawsuit. Studebaker argued in the complaint that none of them were gang members, but they had no way to fight service of the now-defunct injunction — which put strict restrictions on gang members, including prohibiting them from possessing weapons or graffiti tools, or associated with one another in public within a 25-square-mile area that encompasses 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 to curb gang crime, while Studebaker and other defense attorneys for individuals targeted by the injunction claim it violated their constitutional rights.
Studebaker makes similar claims in the U.S. District Court lawsuit, arguing that the six men he represents were deprived of several of their constitutional rights, including the right to bear arms, and their right to freedom of speech and association.
Studebaker is seeking an unspecified amount of damages for his clients, and also is seeking certification for a class action lawsuit, according to the complaint. At least 300 Ogden residents were "served and subjected" to the injunction, according to Studebaker.
Ogden City police officials would not comment on the lawsuit Monday evening, saying their legal staff needed time to look over the filing.
Smith was not immediately available for comment Tuesday morning.
In October, the Utah Supreme Court threw out the injunction, which had been in place since September 2010 — not because of constitutional issues, but because of the county’s unlawful procedure for trying to put the gang on notice.
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 a 2012 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 last October.
In December, Smith said prosecutors were continuing to work on a way to fix the issue with how the injunction is served, and hopes to put it back in place, saying it’s an important issue to the community.
If a documented Trece member was caught violating the injunction, a class B misdemeanor, that person could be fined or face jail time. Since it was a civil order, it required a lower standard of evidence than criminal proceedings.
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