Attorney’s truthfulness in Ogden Trece gang injunction lawsuit questioned by judge

(Erin Hooley | Standard-Examiner file photo) County Attorney Chris Allred listens during a Ogden Trece gang injunction hearings in the Utah Supreme Court in Salt Lake City on Oct. 25, 2010.

In a scathing ruling questioning the Weber County attorney’s truthfulness, a federal judge recently ruled that the county violated the rights of two Ogden men who had been targeted as part of a now-defunct gang injunction.

The American Civil Liberties Union of Utah cheered the decision as a "major victory" for their clients, Leland McCubbin and Daniel Lucero, who both were convicted of violating the injunction when it was in effect.

“The court’s ruling is a powerful vindication of the years of effort we have put in this case,” said ACLU of Utah legal director John Mejia, "and sends a strong and clear message that the government needs to respect everyone’s rights.”

The controversial injunction forbid Ogden Trece gang members from associating with one another in public, and also set restrictions regarding curfew and alcohol consumption, among other rules. It was thrown out in 2013 after the Utah Supreme Court found the county did not properly serve summons to members of the gang.

U.S. District Judge Clark Waddoups sided with McCubbin and Lucero in a recent ruling, finding that the injunction did not include any way for people to challenge the government’s assertions they were Ogden Trece gang members before they were served with the injunction. Instead, police officials kept a private database of people they believed were gang members based on things like how they dressed, their tattoos and who they associated with. Alleged gang members had to meet just two items on a list of criteria — which did not necessarily include being convicted of any crimes — before police considered them Ogden Trece members and sought to restrict their movements.

“The court finds that the Ogden gang unit undertook a unilateral determination, based on highly subjective criteria, to determine upon whom to serve the gang injunction,” Waddoups wrote in his ruling. “Ogden’s witnesses effectively admitted that actual Trece membership was not required to be served — only satisfaction of Ogden’s criteria.”

The inability to challenge this determination, Waddoups said, amounted to a violation of the men's due process rights.

McCubbin has said he had left the gang two years before the injunction began. Lucero said he never was a member.

Ogden City settled its portion of the case with McCubbin and Lucero in 2018, but the lawsuit against Weber County has been ongoing. And though it was clear that Ogden police kept a gang database, Weber County Attorney Chris Allred has insisted that county employees never did.

But Waddoups, the judge, criticized Allred for this in his ruling, saying a quick Google search brought up the county’s website where Weber County jail officials outlined a process in which they kept a documented list of gang members. He questioned whether Allred is “attempting to deceive the court.”

"The court has reason to question Chris Allred's credibility," Waddoups wrote. "The court cannot, at this time, take Mr. Allred at his word that he will not seek a substantially similar injunction."

Allred wrote in an email Tuesday that Waddoups’ suggestion that his assertions were false were “not only demonstrably wrong but wildly inappropriate and unprecedented.”

“He arrived at this bizarre conclusion without any attempt to seek input from the county and he is dead wrong,” Allred said. “If he had followed remotely normal protocol he would have known this, so yes, we will avail ourselves of any opportunity to correct his errors.”

Waddoups offered a chance for the county to request a hearing, with Allred agreeing to testify under oath, to clarify these discrepancies. So far, the county hasn’t done so.

The ACLU of Utah said it was “extremely rare” for a judge to question someone’s truthfulness, especially a public official.

"Particularly, in the case of attorneys, all we have is our credibility," Mejia said. "We are enormously troubled by the questions the court raised and will actively participate in helping to answer them."

ACLU attorneys also argued that the injunction was motivated by race, noting that between 76% and 83% of those who were served with the injunction and prosecuted were of Hispanic ethnicity. The judge dismissed that theory, saying there was no evidence to show the county specifically targeted minorities.

The gang injunction went into effect in 2010, an attempt by Weber County officials to curb gang activity in Ogden. Similar injunctions have been done in other states, but Ogden’s was unique in that it covered almost the entire city. Measures in other states generally prohibited gang members from associating in an area not larger than a block or two.

Since the Utah Supreme Court threw out in the injunction in 2013, Weber County officials have often promised to bring it back — though have made no other efforts to do so. They classified the ruling as more of a technical decision on civil procedure, rather than a civil rights victory for Ogden Trece gang members or those who were deemed to be members.

The next step in the lawsuit will be a hearing for possible sanctions against Weber County, after the ACLU of Utah attorneys raised concerns that the county repeatedly filed nonpublic documents in the public court case. A trial has not yet been scheduled.