Controversy continues to heat up over a proposed gang injunction in Santa Barbara, and opposition to the injunction is now gaining legal support after a federal appeals court ruled a similar injunction in Orange County was unconstitutional because it violated defendants’ right to due process.

Many local residents are fighting the proposal for a Santa Barbara City gang injunction for similar reasons, as a City Council meeting in May saw hundreds of community members express opposition to an injunction, arguing it would be unconstitutional and practice racial profiling. Now the court decision against the City of Orange injunction is bringing the issue back into the spotlight.

Earlier this month, the Ninth Circuit Court of Appeals decided the proposed city of Orange gang injunction — filed by the Orange Police Department and the Orange County District Attorney’s Office — contained unacceptably broad qualifications for determining alleged gang members. This vague criteria, according to the court decision, used inconsistent standards for identifying alleged gang members and thus includes a “considerable risk of error.” The court also decided the injunction violated the rights of the 115 alleged gang members it targeted, saying it unduly restricted them before they were given the opportunity to contest their gang member status.

Criminal attorney Stephen Dunkle, who represents one of the alleged gang members in Santa Barbara’s injunction, says the Ninth Circuit decision asserts pre-deprivation rights, or rights providing structure by which a defendant can challenge their sentence.

“What the Ninth Circuit’s saying is there has to be some kind of built-in due process where they get to contest that before they lose their rights,” Dunkle said.

To understand how the City of Orange ruling may impact the Santa Barbara proposed injunction, Dunkle emphasized the need to distinguish between legal rights for named defendants and people who could be served in the future, as outlined in the Santa Barbara injunction documents. In addition to 30 identified alleged gang members, the injunction document includes a list of 300 unnamed “Does,” or additional people who may be implicated under the injunction if there is “clear and convincing evidence” that determines them to be a gang member.

Unnamed alleged gang members would have the opportunity to go to court, Dunkle said, but only after they have been served the injunction.

“Just like in the Orange County case, there’s no pre-deprivation procedure where the person gets to challenge it before it applies to them,” Dunkle said.

But City Attorney Steve Wiley has contested arguments against the injunction that are based on concern over these unnamed individuals.

“This is a lawsuit directed at 30 individuals — 30 adult individuals: 28 men and two women — and it’s not directed at anyone else,” Wiley said at a May City Council meeting.

Wiley could not be reached for comment on the ninth district’s ruling and its implications on the current proposed injunction in Santa Barbara.

Santa Barbara City Council member Cathy Murillo said the Santa Barbara City Attorney is currently working on a response to the City of Orange case to address how it may impact the proposed injunction in Santa Barbara.

Last month, Murillo helped host a community discussion on the injunction during a meeting for the Pro-Youth Movement of Santa Barbara. The group plans to forward a statement and questions to members of the City Council, SB Police Department, SB County District Attorney’s Office, and the City Attorney’s Office regarding the injunction. Today, Murillo will revisit the issue at a meeting of the Pro-Youth subcommittee, the Juvenile Justice Committee, from 5 to 7 p.m. at the Quaker Meeting House in Santa Barbara.

However, Murillo said the Pro-Youth Movement — while made up of many injunction opponents — does not see the defeat of the injunction as their main purpose.

“We want to be in the pro-youth arena in the long term, meaning we want to work with the police, city staff, and youth-serving agencies and non-profits to help young people make positive life choices,” Murillo said in an email.

The current injunction proposition is a second amended complaint, and it is still awaiting more approval for the actual implementation of a gang injunction. According to Dunkle, local officials recently announced they would file a motion to turn the complaint into a preliminary injunction by Dec. 13. The final version of the injunction will be presented in March, and voted on by Judge Colleen Stern.

A version of this story appeared on page 1 of the Wednesday, November 20, 2013 issue of the Daily Nexus.