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Injunction Function

Court ruling attempts to mark the spot where individual rights end and societal rights begin

By Michael Learmonth

THE QUESTION IS AS OLD as democracy itself. How much liberty will we willingly give up to live in a society that is orderly? That is the very question at issue with San Jose's new gang-abatement program, which is being watched by city governments, law enforcement and civil libertarians around the country.

In a split decision two weeks ago, the California State Supreme Court gave civil judges broad powers to issue injunctions against known gang members to prevent them from doing certain things--like talking to one another, and wearing pagers or gang colors--that for the rest of us are constitutionally protected rights.

As might be expected, the decision, which overturned a lower court ruling, left civil libertarians breathless. "The city of San Jose is attempting to make an end run around the criminal justice system," ACLU attorney Amitai Schwartz said. "Simply because these men and women are suspected gang members, they are stripped of a variety of constitutional freedoms: the right to associate, to assemble and the right to due process."

But to the police and San Jose's Gang Prevention Task Force, the ACLU's ivory-tower argument doesn't address the realities of law enforcement or the right of residents in gang-infested areas to live in peace.

"At some point in time, when [one individual's] activity is harassing other people and depriving them of their rights, those liberties have to be restrained," said San Jose city attorney Joan Gallo, who achieved a measure of national notoriety with the ruling. "If you are creating a nuisance you are creating it at the expense of my rights. You are not allowing me to peaceful enjoyment under the Constitution. Liberty must be restrained unless you have anarchy."

Gallo is quick to point out to squeamish liberals that the same legal principles have been used to stop anti-abortion protesters from blocking access to a clinic, picketing a doctor's home or harassing a doctor's children.

The court decision centered on the city's use of the injunction in the four-block neighborhood of Rocksprings. Alleged gang members found violating their court orders have served 45 days in jail for contempt of court.

The jury is still out on whether stiff enforcement in one area means that the thugs will set up shop across town. SJSU criminology professor Terry McDonald worries that the crackdown on Latino gang activity might force the gangs underground, like the more anonymous and difficult-to-police Vietnamese gangs.

The state Supreme Court's lone dissenting voice, Associate Justice Stanley Mosk, lambasted the court's decision for its broadness. Echoing the ACLU's view that the decision could lead to oppression if broadly applied elsewhere, he cited Benjamin Franklin: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

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From the February 13-19, 1997 issue of Metro

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