Youth Justice Coalition et al v. City of Los Angeles et al
Filing
132
ORDER GRANTING PLAINTIFFS' MOTION TO EXPAND PRELIMINARY INJUNCTION 115 by Judge Virginia A. Phillips. On January 29, 2018, Plaintiffs Youth Justice Coalition, Peter Arellano (Arellano), and Jose Reza (Reza) for themselves and on behalf of a class of similarly-situated individuals (collectively Plaintiffs) filed a Motion to Expand the Preliminary Injunctions Entered on Behalf of Plaintiffs Arellano and Reza to the Entire Class (Motion). (Doc. No. 115 ). (SEE DOCUMENT FOR FURTHER DETAILS). For the reasons stated above, the Court GRANTS Plaintiffs Motion to the extent that it seeks to extend the Arellano Preliminary Injunction to class members served with a Los Angeles Gang Injunction before January 19, 2018. IT IS SO ORDERED. (ab)
3/15/2018
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Youth Justice Coalition, et al.,
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Plaintiffs,
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CV 16-07932 VAP (RAOx)
v.
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Order GRANTING Plaintiffs’
Motion to Expand Preliminary
Injunction
(Doc. No. 115).
City of Los Angeles, et al.,
Defendants.
United States District Court
Central District of California
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On January 29, 2018, Plaintiffs Youth Justice Coalition, Peter Arellano
(“Arellano”), and Jose Reza (“Reza”) for themselves and on behalf of a
class of similarly-situated individuals (collectively “Plaintiffs”) filed a Motion
to Expand the Preliminary Injunctions Entered on Behalf of Plaintiffs
Arellano and Reza to the Entire Class (“Motion”). (Doc. No. 115).
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On February 5, 2018, Defendant City of Los Angeles (“the City”) filed an
Opposition to Plaintiffs’ Motion. (Doc. No. 116). On February 12, 2018,
Plaintiffs filed their reply in support of their Motion. (Doc. No. 123.)
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After considering all papers filed in support of and in opposition to the
Motion, and the parties’ arguments at the February 26, 2018 hearing, the
Court GRANTS the Plaintiffs’ Motion as detailed below.
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I. BACKGROUND
A. Los Angeles Gang Injunctions
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United States District Court
Central District of California
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For thirty years, prosecutors in Southern California have used public
nuisance law to obtain civil injunctions prohibiting suspected gang members
from participating in a variety of activities. At issue in this case are the
approximately forty-six gang injunctions issued by the City. These
injunctions restrict both criminal gang activities and otherwise lawful
activities that purportedly constitute a gang nuisance within a defined
geographical area. Plaintiffs allege that the City’s issuance and
enforcement of these gang injunctions violate the procedural due process
protections in the United States Constitution and the California Constitution.
The City contends that the gang injunctions are an effective means of
reducing gang-related crime, and disputes Plaintiffs’ allegations that its
policies and procedures are unlawful.
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Plaintiffs Peter Arellano and Jose Reza were made subject to two such
gang injunctions. Arellano was subject to the injunction issued in People v.
Big Top Locos, Case No. BC511444 (L.A. Sup. Ct. 2013) and Reza was
subject to the injunction issued in People v. Big Hazard, Case No.
BC335749 (L.A. Sup. Ct. 2005). Neither was a party to their respective
underlying civil actions, and both allege that they were not given meaningful
notice or opportunity to contest the City’s allegations of active gang
membership before enforcement of the injunction against them. Plaintiff
Youth Justice Coalition is a non-profit organization located in Los Angeles,
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California that works with communities affected by mass incarceration and
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over-policing.
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B. The Court Issued Preliminary Injunctions for Plaintiff Arellano.
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On September 7, 2017, the Court granted Peter Arellano’s Motion for a
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Preliminary Injunction to stop the City from enforcing the Echo Park
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Injunction against him. (Doc. No. 106).1 The Court found that Arellano was
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likely to succeed in proving (1) that the City’s procedures for enforcing the
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Central District of California
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Echo Park Injunction interfered with Arellano’s liberty interests “including
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rights of free movement, association, and speech” (Doc. No. 106 at 16); and
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(2) the City’s procedures were insufficient to afford Arellano due process.
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(Doc. No. 106 at 18-25). The Court also found that for the same reasons
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Arellano had demonstrated a likelihood of success on the merits, he had
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also demonstrated a likelihood of irreparable harm. (Doc. No. 106 at 25-
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26). Finally, the Court determined that the balance of the equities and the
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public interest both weighed in favor of granting an injunction as to Arellano.
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(Doc. No. 1-6 at 26-27).
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On November 14, 2016 Plaintiff Reza moved for a preliminary injunction
similar to the one sought by Plaintiff Arellano. (Doc. No. 28). The City filed a
statement of non-opposition to Reza’s motion, noting that while “the stated
legal basis for Reza’s motion [was] flawed,” it would not oppose Reza’s motion for the “limited factual reason” that it did not believe that Reza’s current
gang participation was “more than nominal, passive, inactive, or purely technical.” (Doc. No. 39 at 2-3). The Court granted Reza’s motion for a preliminary injunction. (Doc. No. 68).
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C. The Court Certified a Class.
On January 4, 2018, the Court certified the following stipulated class
pursuant to Fed. R. civ. P. 23(a) and 23(b)(2):
“All persons, past and future, whom an authorized
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agent of the City of Los Angeles has notified, whether by
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personal service or otherwise, that they are subject to a
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Los Angeles Gang Injunction and who (a) were not
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named as individual civil defendants, or who were not
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substituted in as Doe defendants, in the civil nuisance
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United States District Court
Central District of California
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abatement action to obtain that injunction, and (b) who do
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not have contempt proceedings for violation of such an
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injunction currently pending against them.”
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(Doc. No. 114 at 3). The Court also adopted the parties’ stipulated
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definition for “Los Angeles Gang Injunction” as follows:
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“An injunction obtained by the People of the State of
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California represented by the Los Angeles City Attorney’s
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Office, against a criminal street gang and its members as
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defined in Section 186.22 of the California Penal Code,
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pursuant to a nuisance abatement action, including, but
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not limited to, a common law nuisance abatement action
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or those brought pursuant to Section 3479 of the Califor-
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nia Civil Code.”
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(Doc. No. 114 at 4).
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D. By January 19, 2018 the City Revised Guidelines Regarding the
Service and Enforcement of Los Angeles Gang Injunctions.
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Central District of California
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On September 14, 2017, the Los Angeles Police Department, Office of
Operations, issued “Operations Order No. 5,” which contained the City’s
revised guidelines regarding the enforcement and service of the Los
Angeles Gang Injunctions. (Doc. No. 127-1). These guidelines include a
“Forbearance Period” for future-served individuals where a Los Angeles
Gang injunction will not be enforced for 30 days after service. (Doc. No.
127-1 at 3-4). The Forbearance Period contemplates allowing “the served
individual an opportunity to submit a Removal Petition or to go to civil court
to challenge whether the served individual is an active member of the
enjoined gang.” (Doc. No. 127-1 at 3). The revised guidelines also contain
a sunset provision, where the Los Angeles Gang Injunction would expire five
years after service (as long as the served person is not re-served). (Doc.
No. 127-1).
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In opposition to Plaintiff’s Motion, the City has outlined its new policy for
adjudicating active gang membership when requested by served individuals.
(Doc. No. 127 at 5, ¶12). Upon written request by any person served with a
Los Angeles Gang Injunction, the City has committed to filing a motion with
the Superior Court requesting an adjudication regarding that person’s active
gang membership. (Id. at ¶12). The City mailed letters to those previously
served with Los Angeles Gang Injunctions explaining the City’s policy
changes by January 19, 2018. (Id. at ¶14; Doc. No. 128 at 4, ¶14).
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E. Plaintiffs Now Move to Expand Arellano’s Preliminary Injunction
to the Entire Class.
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Plaintiff now moves to expand the preliminary injunction granted to
Arellano to the entire class. (Doc. No. 115).2 Plaintiff argues that the same
grounds for granting Arellano an injunction also apply to these class
members. (Id.) The City opposes, arguing that the City’s revised policies
regarding the Los Angeles Gang Injunctions renders the Court’s analysis in
granting a preliminary injunction as to Arellano inapplicable to the present
Motion. (Doc. No. 116).
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Central District of California
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II.
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The City objects to the January 29, 2018 declaration of Melanie Ochoa,
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EVIDENTIARY ISSUE
filed in support of Plaintiffs’ Motion. (Doc. No. 119). Ms. Ochoa’s
declaration summarizes a December 5, 2017 teleconference with the City’s
counsel regarding the City’s revisions to the gang injunction policies in this
case. (See Doc. No. 115-1 at 3-4, ¶¶2-5). The City argues that the
description of the City’s counsel’s statements included in this declaration
constitutes inadmissible hearsay. (Doc. No. 119 at 2). Plaintiffs argue that
these statements are not hearsay since, pursuant to Fed. R. Evid.
801(d)(2)(C), they are “offered against an opposing party and . . . [were]
made by a person whom the party authorized to make a statement on the
subject.” The Court agrees with Plaintiffs. The declaration is offered in
support of Plaintiff’s Motion, and thus against the City. The statements at
issue related to the City’s policies directly at issue in this litigation, and they
were made by the City’s counsel, who is authorized to make statements on
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such topics. Accordingly, the Court finds that these statements can be
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properly considered in support of Plaintiffs’ Motion. United States v. Bonds,
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608 F.3d 495, 503 (9th Cir. 2010) (“[L]awyers have implied authority to
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speak outside of court on matters related to the litigation.”) (citing Hanson v.
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Waller, 888 F.2d 806, 814 (11th Cir.1989)); see also, Herb Reed
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Enterprises, LLC v. Florida Entm’t Mgmt., Inc., 736 F.3d 1239, 1250 n.5 (9th
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Cir. 2013) (“Due to the urgency of obtaining a preliminary injunction at a
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point when there has been limited factual development, the rules of
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evidence do not apply strictly to preliminary injunction proceedings.”);
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Central District of California
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Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988)
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(“It was within the discretion of the district court to accept . . . hearsay for
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purposes of deciding whether to issue the preliminary injunction.”). The
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Court OVERRULES the City’s evidentiary objection.
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III.
LEGAL STANDARD
“A preliminary injunction is an extraordinary and drastic remedy” and “is
never awarded as of right.” Munaf v. Green, 553 U.S. 674, 689-90 (2007)
(citations omitted). Typically, “[a] plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance
of equities tips in his favor, and that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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Under the Ninth Circuit’s “sliding scale” approach, however, “serious
questions going to the merits and a hardship balance that tips sharply
toward the plaintiff can support the issuance of an injunction, assuming the
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other two elements of the Winter test are also met.” Alliance for the Wild
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Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). The “sliding scale”
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approach allows “district courts to preserve the status quo where difficult
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legal questions require more deliberate investigation.” Greene v. Wells
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Fargo Bank, N.A., No. C 15-00048 JSW, 2015 WL 3945996, at *1 (N.D. Cal.
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June 26, 2015); see also Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir.
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2011) (holding that, under the “sliding scale” approach, a petitioner had
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“made a sufficiently strong showing of likely success on the merits” where
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he presented “a case which raises serious legal questions, or has a
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Central District of California
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reasonable probability or fair prospect of success”).
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IV.
ANALYSIS
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A. Scope of the Injunction
“Injunctive relief . . . must be tailored to remedy the specific harm
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alleged.” Lamb–Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th
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Cir. 1991). “An overbroad injunction is an abuse of discretion.” Id.
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Plaintiffs move to expand the Arellano and Reza Preliminary Injunctions
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to “the entire class of similarly situated individuals.” (Doc. No. 115 at 3).
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While the certified class includes “[a]ll persons, past and future,” Plaintiffs
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indicate that they do not seek an expansion of the preliminary injunction to
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those who will be served by Los Angeles Gang Injunctions in the future.
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(See Doc. No. 123 at 8 (“Whether this new process for future-served
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individuals would satisfy the Constitution’s requirements of procedural due
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process is not relevant to this Motion, however, because the City is very
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clear that the procedures laid out in its Operations Order will not apply at all
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to any present member of the roughly 1,500-person class certified by the
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Court. Its terms therefore are irrelevant in determining whether a
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preliminary injunction should be extended to them.”) (emphasis in original);
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Doc. No. 115 at 18 (“[E]ach of the class members was subjected to the
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same deficient procedure prior to being made subject to enforcement of a
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Los Angeles Gang Injunction.”)). Accordingly, the Court construes Plaintiffs’
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Motion as seeking to extend the preliminary-injunction to class members
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who were served with Los Angeles Gang Injunctions before the City’s
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Central District of California
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adoption of its new pre-deprivation procedures on January 19, 2018.
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As discussed below, the Court has determined that Plaintiffs are likely to
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establish that the City did not provide sufficient due process for class
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members who were served with Los Angeles Gang Injunctions before
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January 19, 2018, and that continued enforcement of the Los Angeles Gang
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Injunctions against these class members is likely to result in irreparable
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injury, and the balance of the equities weigh in their favor. Accordingly, the
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Court finds that expanding the scope of the Preliminary Injunctions to class
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members served with Los Angeles Gang Injunctions before January 19,
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2018 is reasonable.
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B. Likelihood of Success
Courts “analyze a procedural due process claim in two steps. The first
asks whether there exists a liberty or property interest which has been
interfered with by the State; the second examines whether the procedures
attendant upon that deprivation were constitutionally sufficient.” United
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States v. Juvenile Male, 670 F.3d 999, 1013 (9th Cir. 2012). As discussed
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below, the Court finds that Plaintiffs have established a likelihood of success
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on the merits.
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Central District of California
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1.
Interference with a Liberty or Property Interest
In its September 7, 2017 order granting a preliminary injunction to
Arellano, the Court determined that the Echo Park Injunction “profoundly
implicates liberty interests protected by the Due Process Clause, including
rights of free movement, association, and speech, and that [the City’s]
conduct interferes with those protected liberty interests.” (Doc. No. 106 at
16 (quoting Vasquez v. Rackauckas, 734 F.3d 1025, 1042 (9th Cir. 2013)).
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In its January 4, 2018 order, the Court found that Arellano was a typical
class member, because he had allegedly suffered the same or similar due
process injury as the proposed class. (Doc. No. 114 at 11). The Court also
found that the Los Angeles Gang Injunctions (which includes the Echo Park
Injunction) were “substantially similar” in that they “enjoin[] certain people
from associating with allegedly ‘known’ gang members in public areas or in
public view . . . [and] the majority . . .enjoin many similar, non-criminal
activities.” (Doc. No. 114 at 8-9). Plaintiff argues that the effect of these
orders requires a finding that the same liberty interests that the Court found
persuasive in granting the Arellano preliminary injunction are also implicated
by the Los Angeles Gang Injunctions. The City does not contest that the
same liberty interests are implicated.
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For these reasons, the Court finds that Plaintiffs have carried their
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burden to show the existence of a liberty interest with which the City’s
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conduct interferes.
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Central District of California
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2.
Constitutional Sufficiency of the City’s Procedures
Mathews v. Eldridge, 424 U.S. 319 (1976) identifies various factors for
the Court to evaluate the constitutional sufficiency of the City’s procedures:
[F]irst, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.
Id. at 334-35; Id. (“‘[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.’”) (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972).
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For the reasons discussed below, the Court finds that Plaintiffs have
established that all of the Mathews factors weigh in their favor.
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a.
Private Interest
The Court previously held that Arellano’s private interest was “truly
weighty,” since the Echo Park Gang Injunction prevented Arellano from
participating in a wide variety of non-criminal activities with anyone the City
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deemed an active gang participant. (Doc. No. 106 at 19-20). For the same
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reason, Plaintiff has demonstrated that the Los Angeles Gang Injunctions
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each contain the same “do not associate” provision that implicates these
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same private interests. (Doc. No. 115 at 16; Doc. No. at 4-6, ¶¶6-11). The
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City does not contest this.3 Accordingly, the Court finds that the Los
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Angeles Gang Injunctions “impose significant restrictions on Plaintiffs’
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liberty” and implicate interests that are “truly weighty.” (Doc. No. 106 at 20;
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see also, Vasquez, 734 F.3d at 1045).
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Central District of California
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b.
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Risk of Erroneous Deprivation
In Vasquez, the Ninth Circuit found that “[d]etermining whether an
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individual is an active gang member presents a considerable risk of error.”
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Id. at 1046. The court noted that the “informal structure of gangs, the often
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fleeting nature of gang membership, and the lack of objective criteria in
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making the assessment,” and found it problematic that Orange County’s
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process of assessing gang membership was an entirely “unilateral” and
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“one-sided.” Id. at 1046-48.
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The City indicates that its new policy includes a automatic five-year sunset
provision that would apply to all Plaintiffs. (Doc. No. 116 at 10; Doc. No. 127 at 4,
¶9(c)). In Vasquez, the Ninth Circuit held that the “possible length of wrongful
deprivation is an important factor in assessing the impact of official action on the
private interests.” 734 F.3d 1025, 1045 (9th Cir. 2013) (internal quotation marks
removed). For the same reason as discussed in the Court’s order granting a
preliminary injunction for Plaintiff Arellano, the Court finds that this sunset
provision “does little to lessen the significance of the private interests at issue”
because “[f]ive years is a long time to be prevented from freely associating with
family members and friends in public.” (Doc. No. 106 at 19-20).
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As in Vasquez, the City in this case makes its initial determination of
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active gang membership unilaterally and without input from alleged
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members. See Doc. No. 20-1 at 15, 49-50 (describing procedures used to
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determine active gang membership); Doc. No. 20-2 at 94-95 (same).4 As
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noted in Vasquez, “fairness can rarely be obtained by secret, one-sided
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determination of facts decisive of rights.” Am.-Arab Anti-Discrimination
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Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995) (quoting Joint Anti-
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Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170 (1951) (Frankfurter,
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J., concurring)). On September 7, 2017, the Court found that Arellano has
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shown that he is likely to establish that the risk of erroneous deprivation
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under the City’s current procedures was considerable and the City’s removal
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procedures did not adequately remedy the lack of pre-deprivation process.
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(Doc. No. 106 at 20-24).
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The City argues that procedures it has adopted after the Court granted
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Arellano’s preliminary injunction change the Court’s due process analysis by
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reducing the risk of erroneous deprivation. (Doc. No. 116 at 11). The City
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asserts that a class member already served with a Los Angeles Gang
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Injunction will be able to obtain a hearing before the Superior Court by
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notifying the City in writing that she wishes to contest the applicability of the
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gang injunction. The City would file a motion with the Superior Court
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seeking an adjudication of active gang membership. This motion would
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include the evidence it has supporting a determination that the served
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The City’s revised policies relate to the service and enforcement of the Los
Angeles Gang Injunctions. The City does not assert that it has changed the
policy by which it makes the initial determination of gang membership.
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person should be subject to the Los Angeles Gang Injunction. The City
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argues that this post-deprivation remedy obviates the need to expand the
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Arellano preliminary injunction because it addresses the concerns the Court
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had with the policies governing the Echo Park Injunction. (Doc. No. 116 at
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14-16).5
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The City is correct that its revised policy has remedied several aspects
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of the Echo Park Injunction that raised the risk of erroneous deprivation.
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(See Doc. No. 116 at 14-15). But while the revised policy is an
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improvement, it still places the burden on a class member to contest the
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applicability of the Los Angeles Gang Injunction in Superior Court. Similar
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to the City’s former “opt-out” policy, a class member served with a Los
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Angeles Gang Injunction before January 19, 2018 would still have to obtain
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an order from the Superior Court to be free of the Los Angeles Gang
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Injunction.6 Since it is apparent that the City’s default policy for such a
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request is to contest the adjudication of gang membership in Superior Court
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(Doc. No. 127 at 5-6, ¶12),7 an affected class member would still have to
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The City also highlights the pre-deprivation procedures that it adopted by
January 19, 2018 will affect future-served class members. As discussed
above in Section IV.A, however, the Court has construed Plaintiffs’ Motion to
expand the preliminary injunction only to those class members served with
the Los Angeles Gang Injunctions before January 19, 2018. Accordingly,
such pre-deprivation policy changes are not relevant for the purposes of resolving the Motion.
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Counsel for the City explained at the February 26, 2018 hearing that the 30
day forbearance period only applies to future-served individuals. Therefore,
those already served with a Los Angeles Gang Injunction would be subject to
the injunction unless and until the superior court issued a final order denying
the City’s motion for gang adjudication.
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The revised policy removes the formal protections contained in the “opt-out”
process where the City would not to contest a motion for adjudication of ac-
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face an adversarial, costly process to obtain removal from a Los Angeles
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Gang Injunction.
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The City’s revised policy also contemplates re-service of a Los Angeles
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Gang Injunction after the Superior Court issues an order regarding active
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gang membership in favor of the class member. The City maintains that “an
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individual may not be re-served unless there is new or additional evidence
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that establishes beyond a reasonable doubt that an individual is an active
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gang member.” (Doc. No. 116 at 15). This determination is likely to include
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the same type of evidence the City previously indicated would justify re-
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service under the City’s prior policy, however, including association with
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friends and family members who have gang affiliations. Accordingly, even if
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a class member obtained an order from the Superior Court finding that he or
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she was not an active gang member, the class member “would still be
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effectively prevented from associating with friends and family members” the
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City deemed to be gang members. (See Doc. No. 106 at 22).
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For these reasons, the Court finds that the risk of erroneous deprivation
weighs slightly in favor of expanding the preliminary injunction.
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tive gang membership under certain circumstances. Although the City suggests that “it is possible that in some instances” it would not file a motion for
an adjudication of active gang membership and “notify the individual that he
or she is no longer subject to enforcement of the gang injunction.” (Doc. No.
116 at 15 n. 6). It is not clear what criteria the City would use to make this determination or if the City could re-serve an individual after making this determination, however. As Plaintiffs point out, the City has “always retained the
ability to remove individuals unilaterally” and “does not represent a change in
the City’s policy.” (Doc. No. 123 at 13).
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c.
Government’s Interest
As the Court held in its September 7, 2017 order, “[i]n assessing the
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government interest at stake, the question is ‘not whether [the City] has a
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significant interest in combating gang violence . . . but rather whether they
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have a significant interest in failing to provide [additional] process.’” (Doc.
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No. 106 at 24 (quoting Vasquez, 734 F.3d at 1052).
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The City argues that “the administrative and fiscal burdens associated
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with mandating post-deprivation process for a single named plaintiff
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(Arellano)” are different from the “burdens associated with mandating pre-
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deprivation process for approximately 1,450 individuals.” (Doc. No. 116 at
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The Court disagrees. This argument is not persuasive in light of the
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City’s revised policy. If it was too great a fiscal or administrative burden for
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the City or the Superior Court to bear, the City could not commit to filing
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motions in Superior Court to adjudicate gang membership for any of the
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class members. Furthermore, the fact that the City’s revised policy includes
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pre-deprivation process for all future-served people is compelling evidence
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that it could have offered the existing class members a similar process
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before they were subject to the Los Angeles Gang Injunctions. The Court
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recognizes that these burdens may be greater since so many people have
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already been subjected to a Los Angeles Gang Injunction, but the scale of
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this problem is entirely due to the City’s failure to implement its revised
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policies earlier.
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1
2
Nor is the Court persuaded by the City’s suggestion that being forced to
3
provide additional process for those currently subject to a Los Angeles Gang
4
Injunction would pose a risk to public safety. (Doc. No. 116 at 23 (“A class-
5
wide injunction preventing enforcement of over one thousand persons with
6
gang injunctions also would have a significantly larger impact on public
7
safety than the impact this Court considered when entering the Arellano
8
Order.”)). The City is not precluded from enforcing existing criminal laws or
9
seeking a preliminary injunction against any particular class members that
United States District Court
Central District of California
10
the City deems to be a risk to public safety.
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For these reasons, the Court finds that the City has not established an
13
administrative, fiscal, or other substantial burden that would prevent it from
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providing suspected gang members with additional process.
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C. Likelihood of Irreparable Harm
Plaintiff must also demonstrate a likelihood of “irreparable harm in the
absence of preliminary relief.” Winter, 555 U.S. at 20.
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Just as with Arellano, because class members served with Los Angeles
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Gang Injunctions before January 19, 2018 have “succeeded in
23
demonstrating a likelihood of success on the merits (i.e., that their [due
24
process and] First Amendment rights are being violated), they have also
25
succeeded in demonstrating a likelihood of irreparable harm.” Occupy
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Fresno v. Cty. of Fresno, 835 F. Supp. 2d 849, 870 (E.D. Cal. 2011); see
17
1
also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment
2
freedoms, for even minimal periods of time, unquestionably constitutes
3
irreparable injury.”). The fact that these class members have not yet availed
4
themselves of the City’s new post-deprivation process is of little probative
5
value. Arc of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014) (“Although a
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plaintiff’s failure to seek [a remedy] can imply the lack of need for speedy
7
action . . ., such tardiness is not particularly probative in the context of
8
ongoing, worsening injuries.”) (citation omitted).
9
United States District Court
Central District of California
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D. Balance of Equities and Public Interest
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The final two Winter factors that Plaintiff must establish are that the
13
“balance of equities tips in his favor, and that an injunction is in the public
14
interest.” See Winter, 555 U.S. at 20. The relevant question is not whether
15
the City has an interest in combating gang violence, but whether the City’s
16
interest in quickly and efficiently serving class members with a gang
17
injunction outweighs class members’ interest in having due process before
18
being subjected to such an injunction. Vasquez, 734 F.3d at 1052.
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The City argues that this Motion involves “very different burdens
21
under a very different gang injunction policy” compared to those assessed
22
by the Court when granting the Arellano preliminary injunction. (Doc. No.
23
116 at 243). The City argues that if is forced to adjudicate motions as to
24
1,450 previously-served class members, it will cause a fiscal and
25
administrative burden on The City and the Los Angeles Superior Court. (Id.)
26
The City also argues that an expanded preliminary injunction “would have a
18
1
significantly larger impact on public safety than the impact this Court
2
considered when entering the Arellano Order.” (Doc. No. 116 at 23).
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4
As discussed above, these arguments are not persuasive in light of
5
the City’s revised policy. The City has offered each of the existing class
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members the opportunity to have the Superior Court adjudicate their
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individual, active gang status by submitting a request in writing. The City
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cannot both argue that it will adjudicate active gang status for any class
9
member who requests it while arguing that it lacks the resources to honor
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Central District of California
10
such requests.
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12
The City’s argument that suspending enforcement of a Los Angeles
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Gang Injunction for these class members would endanger public safety is
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also unpersuasive. The City retains the ability to enforce existing criminal
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laws, and may seek a preliminary injunction against any particular class
16
members that the City deems to be a risk to public safety. Furthermore, the
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suggestion that every individual subject to a Los Angeles Gang Injunction
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necessarily poses an immediate threat to public safety is undercut by the
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City’s new policy that contemplates an automatic suspension of the Los
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Angeles Gang Injunction for 30 days for any future-served class member
21
who submits a written request. As the Court found when entering the
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Arellano Preliminary Injunction, “the risks posed by gang violence” do not
23
“create a public interest in allowing the continued use of constitutionally
24
inadequate procedures.” (Doc. No. 106 at 26).
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26
19
1
It stands to reason that the burdens facing the City are likely to be
2
greater if the preliminary injunction is extended to the approximately 1,450
3
people already served with a Los Angeles Gang Injunction than the burdens
4
considered by the Court when issuing the preliminary injunction for Plaintiff
5
Arellano. On the other side of the balance, however, is the greater
6
aggregate interest of the 1,450 people who were also not provided due
7
process before being subjected to a Los Angeles Gang Injunction.
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The Court finds that the balance of the equities tips in favor of
10
United States District Court
Central District of California
9
expanding the preliminary injunction. Just as with Arellano, Plaintiffs have
11
established that the City’s unilateral procedures for determining gang
12
membership for class members served with Los Angeles Gang Injunctions
13
before January 19, 2018 include a considerable risk of erroneous
14
deprivation. The Court finds that the additional burdens identified by the
15
City do not outweigh Plaintiffs’ interest in having due process being fore
16
being subjected to a Los Angeles Gang Injunction.
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18
19
E. Issuance of Bond
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Typically, a plaintiff may not be granted a preliminary injunction
21
without first posting security “in an amount that the court considers proper to
22
pay the costs and damages sustained by any party found to have been
23
wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Among other
24
things, this requirement both discourages “parties from requesting
25
injunctions based on tenuous legal grounds” and “assures district court
26
judges that defendants will receive compensation for their damages in
20
1
cases where it is later determined a party was wrongfully enjoined.”
2
Nintendo of America, Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1037
3
(9th Cir. 1994). “The district court retains discretion ‘as to the amount of
4
security required, if any.’” Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir.
5
2011) (citing Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009)
6
(emphasis in original)).
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8
9
Neither the City nor Plaintiffs have briefed whether the Court should
require a security in this case or what type of a payment would be
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Central District of California
10
appropriate to protect the City’s interests. Nevertheless, Plaintiff’s motion is
11
not based on “tenuous legal grounds,” and the City’s status as an
12
institutional defendant lessens the need for an assurance of compensation
13
in case the Court’s decision to enter an injunction turns out to be wrong.
14
Accordingly, the Court finds that a bond is not necessary here. See Elliott v.
15
Kiesewetter, 98 F.3d 47, 60 (3d Cir. 1996) (“Where the balance of . . .
16
equities weighs overwhelmingly in favor of the party seeking the injunction,
17
a district court has the discretion to waive the Rule 65(c) bond
18
requirement.”).
19
///
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///
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///
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///
23
///
24
///
25
///
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21
V.
1
CONCLUSION
2
For the reasons stated above, the Court GRANTS Plaintiffs’ Motion to
3
the extent that it seeks to extend the Arellano Preliminary Injunction to class
4
members served with a Los Angeles Gang Injunction before January 19,
5
2018.
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7
IT IS SO ORDERED.
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9
Dated:
3/15/18
United States District Court
Central District of California
10
Virginia A. Phillips
11
Chief United States District Judge
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