How Oxnard Continues to Subvert the Due Process Clause of the Constitution at the Expense of Our Youth

 

 

By Armando Vazquez, Founding member of CORE  & the Acuna Art Gallery and Community Collective         

In a previous article I noted an important historical point of reference that the current manifestation of civil “gang” injunctions had their origin, over 100 years ago, in the civil nuisance laws. Racist, ill-conceived, and unconstitutional local policing practices that severely restricted the right of free association and assembly for the newly freed slaves. There was no individual due process afforded in the original civil nuisance law. Any group of black men that congregated for any purpose was subject to violating the civil injunction laws. This group could then (individuals or the entire group) be subjected to arrest.  Fast, evil, and unconstitutional wholesale injustice disguised as law.

This is the same fatal flaw that now faces current civil gang injunctions state-wide, and in particular the two Oxnard civil gang injunctions served on the Colonia Chiques in 2005 and the Colonia Southside in 2006.  This legal fatal flaw I call the Juan “no due process” Doe factor. In the Juan “no due process” Doe factor the Ventura County District Attorney, in 2004, filed a legal plea in Superior Court.  The title of the plea is “ALLOWING SERVICE ON A DESIGNATED MEMBER IS NECESSARY AND PROPER”. This plea states in part, “Pursuant to Code of Civil Procedure section 416.40c, this Court should allow the People to serve the defendant Gang by servicing a designated gang member(s), as authorized by the Corporation Code section 24007.

COCH cannot be served by any traditional methods of effecting service on the unincorporated association because COCH failed to register with the Secretary of State or the City of Oxnard, has no officers or general manager, and does not have a fixed street address. In addition, the People should be excused from the requirement to mail a copy of the documents served to the defendant COCH because no address can be found after due diligence and reasonable inquiry. The People have been unable to locate a registered agent, or any mailing address or “place of business” for COCH. The Peoples inability to effect service on COCH by any method other than by service on member is a result of COCHs own failure to designate an agent for service process, to file a “dba”, forms, or take any other proper or official action that should be taken by an entity doing business in the County of Ventura”.

The District Attorney and the Oxnard Police Department, in 2004, played it sloppy, fast and loose with their original court plea stating that COCH is a corporation on the one hand and then asking the court to be excused for not being able to find a corporate officer, office or fixed address. Of course they could not find that “legal entity” because a “gang” in any logical or sober sense of the word is not a corporation. Except, of course, in the unconstitutional, delusional mind of local law enforcement, chomping at the bit to make political capital on the back of youths of color in Oxnard.

By initially making COCH, in 2004, a corporation, the  OPD and the Ventura County DA satisfy the “surreal” legal requirement of serving the entire COCH corporation by serving the required legal documents on only one of the 500 purportedly identified COCH gang members. That is how the OPD originally got around serving all the “500 or so OPD identified COCH gang members”.  CORE, in our independent research could identify only about 35 COCH alleged gang members that had been served by May 24, 2004, the date when the judge at Superior Court granted the preliminary civil gang injunction, there were some 465 COCH “Juan Does” out there that had yet to be named, publicly identified and served. Remember at the time that the 2004 preliminary civil gang injunction court ruling there existed no due process clause for individuals to fight in court the profiling and branding of a COCH Juan Doe alleged gang membership.

Today, that of course, is precisely what is turning the current legal fights for the law enforcement community state-wide into a political nightmare and a scathing law enforcement fiasco and resounding legal defeats. That is why so many counties and municipalities throughout California, including Oxnard, are having the courts rule against their civil gang injunction polices, as unconstitutional.  At the core almost universally the California civil gang injunction model conveniently, intentionally and unconstitutionally left out the due process remedy clause in its original design, which of course, violates the individual rights of the profiled and branded “gang injunction” designees to challenge the cops assertion and evidence in a court.

So, state-wide and here in Oxnard the cops must regroup today or lose in court tomorrow. To pass constitutional muster cops must act consistently with recent court decisions: Properly ID each individual person they profile that fits their “gang injunction” designation. The cops must collect and present evidence on each of the “gang injunction” designees. Present the “gang injunction” designees notification that he/she has been designated a “gang member”, at the same time provide that “gang” designee a court hearing date that will provide the individual the opportunity to exercise his/her due process rights to contest the cops findings in court as guaranteed by the constitution. This is a lot of legal work, a lot of police due diligence work, and if history is any indicator the state-wide law enforcement machine and the local cops are not up to their constitutional task. Their current civil gang injunction handy-work has been exposed as fatally flawed and unconstitutional by the courts.

According to a Los Angeles Times article dated, March 18, 2018, Peter Bibring, a senior staff attorney for the ACLU, said a Los Angeles judge’s ruling in late 2017, would leave few, if any, Angelenos subject to the orders. Bibring is quoted, “The court clearly recognizes the way the city of Los Angeles has been enforcing gang injunctions over decades violates due process in a way that makes it likely they will place people on gang injunctions who may not be gang members. This ruling marks the end of gang injunctions as they worked in the city of Los Angeles.”

In another Los Angeles Times article, dated July 8, 2018 a 2017 court ruling on the Stanislaus County, ‘Sanchez case’ led the Oxnard Police Department to stop enforcing injunctions against roughly 368 suspected gang members, according to Asst. Chief Eric Sonstegard.  According to Sonstegard a city council hearing would be held to discuss proposed amending the city’s gang injunction ordinance so that court hearings can be arranged to determine the gang status of those people it (the new and amended city’s civil gang inunction protocol) seeks to enjoin.

A few members of CORE attended the July 22, 2018 Oxnard City Council meeting where Chief Sonstegard made his presentation before the council members and we were appalled to learn that the OPD wanted to hire effectively an in-house “Magistrate” to  adjudicate the due process challenges of newly enjoined city wide “gang” members. This “Magistrate” would be paid out of the OPD budget and subject to administrative supervision and management by the OPD Chief. Talk about the fox’s ruling the henhouse. We are talking about constitutional due process and not a kangaroo court as perhaps the OPD would like it to be!

The Oxnard city mayor Tim Flynn, states ad nauseam, that there are 2500 gang members in Oxnard.  The OPD never contradicts or corrects these wild assertions made by the mayor.  The mayor knows that he is making political hay with this assertion that there are 2500 gang members.  He is, of course, speaking to his solid ‘tough on crime’ electoral base.  But theses baseless assertions do not bode well for accuracy, transparency, accountability or the constitutional due process rights of hundreds if not thousands of a new generation of come-of-age youths of color that will be put through the same unconstitutional and draconian law enforcement nightmare once again. 

Civil Gang Injunction expert, Alejandro Alfonso stated way back in 2004, ” I view the injunction as more of a political tool that benefits those who are behind the injunction—they would be the council members, the attorneys, and those who push it; because it is always easy, and it is always a good thing to be hard on crime, especially if you’re a politician.  In that respect I’m critical of the gang injunction, because I don’t see it as other than a political tool. I don’t see the long-term bigger picture problems being addressed with a gang injunction.  It’s really just scratching at the surface”.  In Oxnard, it seems nothing seems to change in getting to the real roots of youth pathology and dysfunction.

In fairness to the mayor, other local politicians and the OPD there has been recent and promising talk about the need to introduce serious, effective and local community driven intervention programs for our most troubled youth.  CORE, the KEYS Leadership Academy, The Acuna Arts Collective, Oxnard Multicultural Mental Health Coalition (OMMH) and other community based organizations that have had generations of local successful history working with trouble, dysfunctional, at-risk and active youth must be part of the new community partnership approach to work with and begin the healing of the most troubled and dysfunctional youth in our community. We at CORE and the KEYS Academy are at the service of Oxnard youth and their families to begin to re-introduce our best practices and state-recognized empowerment and community service program to a new generation of active at-risk youth that we have worked with for over two decades.

We would seriously counsel and caution the city council, the OPD and anyone else that thinks that the ideal program, solution or intervention is outside of our community and must be imported.  We have witnessed this costly and failed charade play out for over 30 years here in Oxnard.  The experts, the best solutions, most effective intervention and empowerment programs are already here, just historically ignored and never supported out of sheer stupidity, willful ignorance, or a myopic political agenda that has no longterm heart or a common sense brain in addressing the chronic and unique pathology of our youth in Oxnard.  As Father Gregory Boyle reminds us all, I can come and make a presentation, make some suggestions that have worked at Homeboy Industries in Los Angeles.  But they will never work here if you do not have the local will, the trust of the community, or community involvement and effort to make it happen. Once I leave, it is your problem, it will be your solutionOxnard, we can get it right this time, with long term loving investment, a common sense mind and the right community commitment we can help turn around our most troubled youth, into community stewards, civic activists and future leaders of their community.  All of our Oxnard youth deserve nothing less.

 

Armando Vazquez

Armando Vazquez, M.Ed.  is Executive Director of  Acuna Art Gallery/Café on A, Executive Director for The KEYS Leadership Academy and Chairman of the Oxnard Multicultural Mental Health/coalition


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