Manuel Vasquez v. Tony Rackauckas , 734 F.3d 1025 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL VASQUEZ; MIGUEL No. 11-55795
BERNAL LARA; GABRIEL BASTIDA;
RANDY BASTIDA, D.C. No.
Plaintiffs-Appellees, 8:09-cv-01090-
VBF-RNB
v.
TONY RACKAUCKAS, Orange County
District Attorney, in his official
capacity,
Defendant-Appellant,
and
ROBERT GUSTAFSON, Chief of
Police, Orange Police Department, in
his official capacity,
Defendant.
MANUEL VASQUEZ; MIGUEL No. 11-55876
BERNAL LARA; GABRIEL BASTIDA;
RANDY BASTIDA, D.C. No.
Plaintiffs-Appellees, 8:09-cv-01090-
VBF-RNB
v.
2 VASQUEZ V. RACKACUCKAS
ROBERT GUSTAFSON, Chief of
Police, Orange Police Department, in
his official capacity,
Defendant-Appellant,
and
TONY RACKAUCKAS, Orange County
District Attorney, in his official
capacity,
Defendant.
MANUEL VASQUEZ; MIGUEL No. 11-56126
BERNAL LARA; GABRIEL BASTIDA;
RANDY BASTIDA, D.C. No.
Plaintiffs-Appellees, 8:09-cv-01090-
VBF-RNB
v.
TONY RACKAUCKAS, Orange County
District Attorney, in his official
capacity,
Defendant-Appellant,
and
ROBERT GUSTAFSON, Chief of
Police, Orange Police Department, in
his official capacity,
Defendant.
VASQUEZ V. RACKACUCKAS 3
MANUEL VASQUEZ; MIGUEL No. 11-56166
BERNAL LARA; GABRIEL BASTIDA;
RANDY BASTIDA, D.C. No.
Plaintiffs-Appellees, 8:09-cv-01090-
VBF-RNB
v.
ROBERT GUSTAFSON, Chief of OPINION
Police, Orange Police Department, in
his official capacity,
Defendant-Appellant,
and
TONY RACKAUCKAS, Orange County
District Attorney, in his official
capacity,
Defendant.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted
April 8, 2013—Pasadena, California
Filed November 5, 2013
Before: Marsha S. Berzon, Richard C. Tallman,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Tallman
4 VASQUEZ V. RACKACUCKAS
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s order granting declaratory and injunctive relief to
plaintiffs in two class actions which challenged a state court
default judgment and injunction obtained by the Orange
County District Attorney’s Office, on behalf of the State of
California, against the Orange Varrio Cypress Criminal Street
Gang and its individual members and associates in a state
court action to abate gang activity under California’s general
public nuisance statutes.
The panel first rejected appellees’ contention that the
district court should have dismissed the suit under Younger v.
Harris, 401 U.S. 37 (1971), the Rooker-Feldman doctrine or
under various comity and federalism doctrines.
The panel held that plaintiffs’ claim under the procedural
due process clause of the California Constitution against
defendant Rackauckas, sued in his official capacity as the
head of Orange County District Attorney’s Office, was barred
by Pennhurst State School & Hosp. v. Alderman, 465 U.S. 89(1984). The panel therefore reversed the district court’s
judgment as to that claim.
The panel held that the scope of the state court injunction
was extraordinarily broad, interfering with a wide swath of
plaintiffs’ protected liberty interests, including: family and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VASQUEZ V. RACKACUCKAS 5
social relationships; educational and professional
opportunities; freedom of movement; and all manner of
participation in civic life. The panel held that in light of those
interests, some adequate process to determine gang
membership was constitutionally required. The panel held
that had defendants not voluntarily dismissed the individual
plaintiffs from the state court lawsuit before obtaining a
default judgment against the Orange Varrio Cypress Criminal
Street Gang, that process would have been provided.
Because, however, defendants engineered that dismissal,
there could not be enforcement against the individual
plaintiffs without some alternative adequate process. The
panel therefore affirmed the district court’s issuance of
declaratory and injunctive relief barring enforcement of the
state court order against the plaintiffs.
In interpreting the district court’s injunction, the panel
held that if defendants propose a procedure constitutionally
sufficient to determine which members of the plaintiff class
are members of Orange Varrio Cypress Criminal Street Gang
against whom the Order may be enforced, the district court
will consider modifying the federal injunction.
Addressing the district court’s award of attorneys’ fees in
favor of plaintiffs, the panel held that there were “no special
circumstances” that made the fee award unjust. The panel
held, however, that because defendant Rackauckas was not
subject to equitable remedies for violations of state law in this
case, it was possible that there was some difference in the
amount of the fee award that could be applied to him. The
panel left it to the district court in the first instance to
determine whether there was some portion of the fee award
for which defendant Rackauckas was not responsible.
6 VASQUEZ V. RACKACUCKAS
Concurring, Judge Tallman wrote separately to more
thoroughly describe the backdrop of the anti-gang injunction
at issue and to reiterate why the panel’s holding was confined
to the unique procedural and factual record in this case.
COUNSEL
S. Frank Harrell (argued), Norman J. Watkins, and Melissa D.
Culp, Lynberg & Watkins, Orange, California, for Defendant-
Appellant Tony Rackauckas.
Wayne W. Winthers (argued), Senior Assistant City
Attorney; and David A. De Berry, City Attorney, Orange,
California, for Defendant-Appellant Robert Gustafson.
Peter Bibring (argued) and Belinda Escobosa Helzer, ACLU
Foundation of Southern California, Santa Ana, California;
Joseph J. Ybarra, Jacob S. Kreilkamp, and Laura D.
Smolowe, Munger, Tolles & Olson, Los Angeles, California,
for Plaintiffs-Appellees.
Dennis J. Herrera, City Attorney; Alex G. Tse, Chief
Attorney, Neighborhood and Resident Safety Division; and
Jana J. Clark, Deputy City Attorney, San Francisco,
California, for Amicus Curiae City and County of San
Francisco.
Carmen A. Trutanich, City Attorney; Mary Clare Molidor,
Deputy Chief, Criminal & Special Litigation Branch; Anne
C. Tremblay, Assistant City Attorney; Kelly Huynh and
Jeanne Kim, Deputy City Attorneys, Los Angeles, California,
for Amicus Curiae Los Angeles City Attorney’s Office.
VASQUEZ V. RACKACUCKAS 7
Matthew Sloan, Matthew Donald Umhofer, and Christina
Lincoln, Los Angeles, California, for Amici Curiae Orange
County Public Defender, Los Angeles County Public
Defender, California Attorneys for Criminal Justice, and
California Public Defenders Association.
OPINION
BERZON, Circuit Judge:
Since at least 1987, California prosecutors have brought
public nuisance actions in state court to curtail the activities
of street gangs. See Matthew Mickle Werdegar, Note,
Enjoining the Constitution: The Use of Public Nuisance
Abatement Injunctions Against Urban Street Gangs, 51 Stan.
L. Rev. 409, 414 (1999). The scope of this effort has been
broad. According to amicus curiae Los Angeles City
Attorney’s Office, that City, for example, has obtained forty-
four civil injunctions against seventy-two street gangs in the
past two decades. Typically, the injunctions forbid members
of the enjoined gang from engaging in a broad swath of legal
and illegal activities, individually and with others, in certain
areas.
Our question concerns not the substance of such orders
but the procedures constitutionally required before
individuals denied the opportunity to defend against
imposition of the order against them can be subjected to it.
Although California courts have grappled for more than
twenty-five years with various substantive and procedural
issues posed by anti-gang injunctions, no court — either state
or federal — has previously addressed the particular due
process issue presented here.
8 VASQUEZ V. RACKACUCKAS
The district court approached this case with the utmost
care, first denying a preliminary injunction and then, after full
discovery, presiding over an eleven-day bench trial. In a
comprehensive opinion, the district court concluded that
(1) the constitutional issue should be decided, as no
applicable abstention doctrine justified declining to do so;
and (2) in the particular posture of this case, and given the
breadth of the state court injunction at issue, due process
requires that the plaintiff class members be afforded an
adequate opportunity to contest whether they are active gang
members before they are subjected to the injunction. We
affirm the district court in principal part.
I.
California’s Street Terrorism Enforcement and Prevention
(STEP) Act, see Cal. Penal Code §§ 186.20–.33, creates both
a private and a public cause of action to “enjoin[], abate[],
and prevent[]” a “nuisance” created by a “building or place
used by members of a criminal street gang for the purpose of
the commission” of various criminal offenses, see id.§ 186.22a(a). The California Supreme Court has held that the
STEP Act’s nuisance provision is not the exclusive
“remed[y] . . . to abate criminal gang activities,” and that the
“general public nuisance statutes,” namely California Code of
Civil Procedure § 731 and California Civil Code
§§ 3479–3480, provide independent authority for actions to
enjoin a gang and its members from engaging in nuisance
activity. See People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090,
1119 (1997).
This appeal has its origins in an action to abate gang
activity under California’s general public nuisance statutes.
Our analysis depends in significant part on the procedural
VASQUEZ V. RACKACUCKAS 9
history of the state case. We therefore describe the parties’
litigation decisions and the relevant state and federal orders
in some detail.
In February 2009, the Orange County District Attorney’s
Office (OCDA), on behalf of the State of California, filed a
public nuisance action in Orange County Superior Court
against the Orange Varrio Cypress Criminal Street Gang
(OVC) and 115 named individuals. The named individuals
were alleged to be “members, agents, servants, employees,”
or “persons acting under, in concert with, for the benefit of,
at the direction of, or in association with” OVC. Of the 115
individual defendants, thirty-two were minors. OCDA
further alleged that OVC’s “criminal and nuisance activities”
included: “attempt[ed] murders, shootings, robberies,
assaults, burglaries, felony gang graffiti and the illegal sale of
controlled substances”; the use of private residential yards
and commercial property as “escape routes” from law
enforcement; and “vandalism, loitering, [and] drinking
alcohol in public.” OCDA sought a permanent injunction
restraining OVC and its members from engaging in a broad
range of specified activities, lawful and unlawful, joint and
individual, performed within a 3.78 square-mile area of the
City of Orange. We discuss the scope of the requested relief
— which, as we explain, the state court granted in principal
part — in greater detail below.
Concurrently with its complaint, OCDA filed an
application for a preliminary injunction against all
defendants. In support, OCDA filed various exhibits, many
under seal.1 The Superior Court also granted OCDA’s ex
1
The Superior Court granted orders prohibiting disclosure of sealed
documents to unrepresented defendants.
10 VASQUEZ V. RACKACUCKAS
parte application to serve the complaint on OVC, which had
no known address, via a named defendant, Patrick DeHerrera.
In addition, OCDA served “numerous individuals named in
the state court complaint, including” the current Plaintiffs-
Appellees, with the complaint and the unsealed documents in
support of the preliminary injunction.
Thirty-two individual defendants filed answers or general
denials in the state court action or otherwise formally
appeared. Some juvenile defendants and their parents also
attempted to file pleadings or enter appearances but were not
permitted to do so. The court declined to designate the
defendants’ parents as guardians ad litem; without an
appointed guardian, the juvenile defendants could not appear.
See Cal. Civ. Proc. Code § 372(a).
The Superior Court granted a preliminary injunction
against OVC and the adult individual defendants who had not
appeared. Soon thereafter, the court issued a preliminary
injunction against eighteen adult defendants unrepresented by
counsel, including Plaintiffs-Appellees Manuel Vasquez and
Gabriel Bastida. The court denied OCDA’s motion for a
preliminary injunction as to some adult defendants, and
continued until May 7, 2009 the hearing as to certain other
adult defendants and all juvenile defendants. The court also
set a trial date of July 6, 2009.
In advance of the May 7 hearing, some of the adult
defendants represented by counsel — including Plaintiff-
Appellee Miguel Lara — filed motions opposing the entry of
a preliminary injunction against them as individuals. In
support, they filed their own declarations; declarations of
community members disputing the need for an injunction;
and declarations of experts who averred that the OCDA’s
VASQUEZ V. RACKACUCKAS 11
evidence, including the Orange Police Department (“OPD”)
declarations, was insufficient to establish that the named
defendants were “active members” of OVC. Through
counsel, those defendants also propounded written discovery
requests on OCDA; the parties established a schedule for
twenty depositions during May and June 2009.
At the May 7 hearing, the state court denied OCDA’s
preliminary injunction motion as to all unrepresented juvenile
defendants on the ground that any injunction would be
immediately voidable by those defendants. The court also
denied a preliminary injunction as to some adult and juvenile
defendants represented by counsel, including Plaintiff-
Appellee Randy Bastida, on the ground that there was
insufficient evidence of those individuals’ “active”
participation in the gang. Among the other defendants as to
whom the court denied a preliminary injunction for lack of
sufficient evidence was Patrick DeHerrera, the person on
whom OCDA chose to serve the complaint on behalf of OVC
as an entity. The court granted a preliminary injunction as to
other defendants, including Plaintiff-Appellee Miguel Lara.
As of May 7, OCDA had failed to obtain a preliminary
injunction against at least twenty of the defendants originally
named in the complaint.
Shortly thereafter, OCDA filed a request to dismiss from
the case, without prejudice, sixty-two individual defendants,
including the thirty-two adults and juveniles who had filed a
general denial or an answer and all unrepresented juvenile
defendants. OCDA did so because of the “aggressive effort
on the[] part” of those individuals to defend themselves in
court, and because of the concerns that the state court judge
raised regarding entering a judgment against unrepresented
juveniles. The court granted OCDA’s dismissal request.
12 VASQUEZ V. RACKACUCKAS
OCDA then requested and obtained a default judgment,
including a permanent injunction (the “Order”), against OVC
as an entity, including OVC’s “members, participants, agents,
associates, servants, employees, aiders, and abettors whose
membership, participation, agency, association, service,
employment, aid, or abetment is more than nominal, passive,
inactive, or purely technical, and all persons acting under, in
concert with, for the benefit of, at the direction of, or in
association with” OVC. The Order names as parties all
individual defendants who had not been voluntarily dismissed
by OCDA and as to whom the Superior Court had granted a
preliminary injunction.2 We attach a copy of the Order as
Exhibit A.
The Order forbids the enjoined parties from engaging in
a variety of activities in “any public place, any place
accessible to the public, or in public view” within a 3.78
square mile area — the “Safety Zone” — comprising about
sixteen percent of the City of Orange.3 The prohibited
activities include both unlawful and otherwise lawful
conduct, such as:
• “stand[ing], sit[ting], walk[ing], driv[ing], bicycl[ing],”
or “gather[ing] or appear[ing]” with any other enjoined
parties, including family members;
2
Among the defaulting defendants was Plaintiff-Appellee Gabriel
Bastida, who later had the default judgment against him vacated, filed a
general denial, and, as with the others who defended themselves in state
court, was subsequently voluntarily dismissed by OCDA.
3
Except as noted below, see nn. 4–5, the Order included the same relief
OCDA had originally requested.
VASQUEZ V. RACKACUCKAS 13
• “confront[ing], intimidat[ing], annoy[ing], harass[ing],
threat[ening], challeng[ing], provok[ing], assault[ing], or
batter[ing]” anyone, or “remain[ing] in the presence of or
assist[ing] anyone” the enjoined party knows to be
performing such conduct;
• unlawfully using “any drug,” or “remain[ing] in the
presence of or assist[ing] anyone [the enjoined party] know[s]
is unlawfully under the influence of any drug”;
• “possess[ing],” “transport[ing],” or “sell[ing]” guns or
various other weapons, or “remain[ing] in the presence” of
such weapons;
• “us[ing], display[ing], or communicat[ing] by means of
any words, phrases, physical gestures, hand signs, or symbols
that [the enjoined party] know[s] describe, represent, or refer
to the [OVC], or . . . remain[ing] in the presence of or
assist[ing] anyone [the enjoined party] know[s]” is
performing such conduct;
• “wear[ing], display[ing], exhibit[ing], or possess[ing]
any clothes or accessories that [the enjoined party] know[s]
. . . refer[s] to the [OVC] gang, including clothes or
accessories that display, exhibit, or feature . . . the . . . word[]
‘Orange,’ . . . the color orange,4 or . . . remain[ing] in the
presence of . . . anyone that [the enjoined party] know[s] is
wearing” such clothing;
4
OCDA’s original request for injunctive relief included a provision also
prohibiting enjoined parties from wearing tan, beige, black, or blue, but
the Superior Court limited the prohibited color to orange.
14 VASQUEZ V. RACKACUCKAS
• drinking alcohol; possessing an open container of
alcohol; or knowingly remaining in the presence of a person
drinking or possessing such an open container, without
exception for a person eating or working in a restaurant;5
• for minors, being in a “public place, vacant lot, or
business establishment” between 10pm and 5am unless: (1)
accompanied by a parent, legal guardian, or responsible adult;
(2) on an errand at the direction of a parent or guardian; (3)
on a sidewalk in front of or adjacent to the minor’s dwelling;
(4) in, or en route to or from, a “place of lawful
entertainment, recreation, culture, or charity” during that
place’s operating hours, or in or en route to or from lawful
employment or volunteer activity; (5) en route to or from, or
engaged in, “an official school, official religious, or other
expressive activity within the scope of [one’s] rights under
the First Amendment,” where such activity is “supervised or
overseen by an adult person on behalf of” a civic
organization; (6) responding to an emergency situation; or (7)
“in a vehicle engaged in interstate travel”;
• for adults, being in a “public place, vacant lot, or
business establishment” between 10pm and 5am unless: (1)
on a sidewalk in front of or adjacent to the person’s dwelling;
(2) in, or en route to or from, a “place of lawful
entertainment, recreation, culture, or charity” during that
5
Unlike the other provisions, the prohibitions related to alcohol only
extend to such conduct “in any public place” or “any place accessible to
the public,” but not to such conduct carried out “in public view.” The
Superior Court struck the “public view” language from the OCDA’s
requested prohibitions on alcohol, concerned that such a broad provision
would prohibit a person from consuming alcohol in his own home if
adjacent to a window. The Superior Court did not so limit the reach of
any of the other provisions, including the restrictions on association.
VASQUEZ V. RACKACUCKAS 15
place’s operating hours, or in, or en route to or from, lawful
employment or volunteer activity; (3) en route to or from, or
engaged in, “an official school, official religious, or other
expressive activity within the scope of [one’s] rights under
the First Amendment”; (4) responding to an emergency
situation; or (5) “in a vehicle engaged in interstate travel.”
As noted, the Order applies not only to the named parties,
but also to OVC’s “members,” without regard to whether
such individuals were acting on behalf of OVC or, except as
specified in the Order, with other OVC members, when
engaged in proscribed activities. The Order does not provide
any procedures for the parties or the Superior Court to
determine which, if any, unnamed parties were “members” of
OVC and therefore subject to the Order’s terms. The Order
has no expiration date.
A few weeks after default entry of judgment, the OPD, at
OCDA’s instruction, began serving the Order not only on the
individual defendants against whom the injunction had
issued, but also on individuals originally named as defendants
in the state court case but voluntarily dismissed by OCDA.
By September 2009, OCDA and OPD had served at least
forty-eight individuals who had been named in the nuisance
suit against OVC but whom OCDA voluntarily dismissed.
Along with the Order, OCDA and OPD served the
following “Notice”:
YOU ARE HEREBY PUT ON NOTICE
THAT ON MAY 14, 2009, JUDGE
KAZUHARU MAKINO SIGNED AN
ORDER FOR PERMANENT INJUNCTION
16 VASQUEZ V. RACKACUCKAS
AGAINST THE ORANGE VARRIO
CYPRESS CRIMINAL STREET GANG.
ALL MEMBERS OF THE GANG ARE
SUBJECT TO THE TERMS OF THE
PERMANENT INJUNCTION.
ALL MEMBERS OF THE GANG,
WHETHER OR NOT NAMED IN THE
ORIGINAL LAWSUIT . . . AND LATER
DISMISSED FROM THE LAWSUIT . . .
ARE SUBJECT TO THE TERMS OF THE
PERMANENT GANG INJUNCTION. . . .
ALL PERSONS DESCRIBED ABOVE WILL
FACE CRIMINAL PROSECUTION
PURSUANT TO PENAL CODE SECTION
166(a)(4) FOR ANY WILLFUL VIOLATION
OF ANY PROVISION LISTED IN THE
PERMANENT GANG INJUNCTION.
The Superior Court had no role in reviewing or approving the
notice.
About four months after entry of the Order, four
individuals on whom OCDA and OPD served the Order and
Notice filed this action under 42 U.S.C. § 1983 against the
heads of OCDA and OPD — District Attorney Tony
Rackauckas and Chief of Police Robert Gustafson — in their
official capacities (collectively “Orange”). Alleging that
OCDA and OPD’s “dismiss-and-serve strategy” violated the
procedural due process clauses of the U.S. and California
constitutions, Plaintiffs sought a declaration of the
unconstitutionality of Orange’s conduct and an injunction
VASQUEZ V. RACKACUCKAS 17
barring Orange from enforcing the Order against Plaintiffs
“without first providing them with a full constitutionally[]
adequate hearing.” Plaintiffs presented no challenge to the
terms of the Order; they challenged only the adequacy of their
opportunity to contest the application of the Order to them.
The four named Plaintiffs sought to represent two classes:
(1) adults and minors “named as individual defendants” in the
state case, “who appeared . . . in the Orange County Superior
Court to defend themselves and were voluntarily dismissed
by [OCDA],” and (2) minors “named as individual
defendants” in the state case for whom no guardian ad litem
was appointed and who were voluntarily dismissed by
OCDA. The proposed class definitions excluded any
individuals who were already being prosecuted for state
criminal contempt proceedings for violating the Order.6
The district court denied Plaintiffs’ motion for a
preliminary injunction; granted Plaintiffs’ motion to certify
both classes; and denied the parties’ cross motions for
summary judgment. The district court then held an eleven-
day bench trial, hearing testimony from fourteen witnesses,
receiving more than 100 exhibits, and personally touring the
area of the City of Orange covered by the Order. The court
concluded that “Defendants deprived the Plaintiffs and those
similarly situated of their constitutionally protected liberty or
property interests without adequate procedural protections.”
The court also granted “an injunction barring Defendants
from enforcing the Order against the Plaintiffs.” The court
emphasized that it was “not instructing the state court as to
6
The record does not reflect whether, at the time Plaintiffs filed suit,
OCDA had in fact commenced contempt proceedings against anyone not
individually named in the Order.
18 VASQUEZ V. RACKACUCKAS
the nature of any hearing. . . . [T]he Court’s order [is]
directed to the Defendants, and not the state court.” (emphasis
in the original).
Orange timely appealed to this court.
II.
Before turning to the merits of the due process claim, we
address Orange’s contentions that under various comity and
federalism doctrines, the district court should have dismissed
this suit rather than deciding the issue raised and granting
equitable relief.
A.
Orange maintains, first, that the suit should have been
dismissed under the doctrine established in Younger v.
Harris, 401 U.S. 37 (1971), limiting federal courts’ authority
to enjoin ongoing state court proceedings in some instances.
“In addressing Younger abstention issues, district courts must
exercise jurisdiction except when specific legal standards are
met, and may not exercise jurisdiction when those standards
are met; there is no discretion vested in the district courts to
do otherwise.” San Jose Silicon Valley Chamber of
Commerce Political Action Comm. v. City of San Jose,
546 F.3d 1087, 1092 (9th Cir. 2008) (alteration omitted). We
review de novo a district court’s determination as to whether
Younger abstention is warranted. See Gilbertson v. Albright,
381 F.3d 965, 982 n.19 (9th Cir. 2004) (en banc).
As relevant here, “usually, federal plaintiffs who are not
also parties to pending litigation in state court may proceed
with their federal litigation” without being barred under
VASQUEZ V. RACKACUCKAS 19
Younger. Green v. City of Tucson, 255 F.3d 1086, 1099 (9th
Cir. 2001) (en banc), overruled on other grounds, Gilbertson
v. Albright, 381 F.3d 965 (9th Cir. 2005). Only under “quite
limited circumstances” may Younger “oust a district court of
jurisdiction over a case where the plaintiff is not a party to an
ongoing state proceeding.” Id. at 1100. Such circumstances
are present only when a federal plaintiff’s interests are “so
intertwined with those of the state court party that . . .
interference with the state court proceeding is inevitable.” Id.
The district court properly declined to abstain under
Younger. OCDA initially named Plaintiffs as parties in the
Superior Court action but unilaterally dismissed them.
OCDA did so precisely because of Plaintiffs’ “effort . . . to
fight” — that is, to present a defense in state court. “Younger
abstention cannot apply to one . . . who is a stranger to the
state proceeding.” Id. at 1103 (quoting Gottfried v. Med.
Planning Servs. Inc., 142 F.3d 326, 329 (6th Cir. 1998)).
Orange made Plaintiffs “stranger[s]” to the state case by
denying them an opportunity to be heard in state court on the
question whether they were gang members. Id.Moreover, as parties dismissed from the state case,
Plaintiffs’ interests are not “intertwined” with those against
whom the Order was issued, namely, OVC and the remaining,
named defendants. Id. at 1100. The question Plaintiffs raise
in this case — the adequacy of OCDA’s and OPD’s gang-
membership determination — arose precisely because
Plaintiffs were dismissed from the state court litigation and so
could not defend against the imposition of an injunction on
them in that litigation. Those covered by name by the Order
did not attempt to present a defense and were not dismissed
from the litigation. The circumstances and interests of those
20 VASQUEZ V. RACKACUCKAS
covered by name in the Order and the Plaintiffs are therefore
entirely divergent as to the procedural issues raised here.
In addition, the relief sought in federal court would not
disturb the validity of the Order as to any of the parties
against whom it issued. Plaintiffs do not challenge the terms
of the Order. There is therefore nothing about Plaintiffs’
interests that is currently “intertwined” with those of the
named state defendants against whom the injunction issued.
B.
Orange’s next federalism-related contention is that
Plaintiffs’ action is a “de facto appeal” of the Superior Court
Order, barred by the Rooker-Feldman doctrine. See D.C.
Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v.
Fid. Trust Co., 263 U.S. 413 (1923). We review de novo the
district court’s decision that Rooker-Feldman does not bar
Plaintiffs’ action. See Bell v. City of Boise, 709 F.3d 890, 896
(9th Cir. 2013).
As this court recently reiterated, the “de facto appeals”
barred by Rooker-Feldman are those in which “a federal
plaintiff asserts as a legal wrong an allegedly erroneous
decision by a state court.” Id. at 897 (quoting Noel v. Hall,
341 F.3d 1148, 1164 (9th Cir. 2003)) (emphasis added). “In
contrast, if ‘a federal plaintiff asserts as a legal wrong an
allegedly illegal act or omission by an adverse party, Rooker-
Feldman does not bar jurisdiction.’” Id. (quoting Noel,
341 F.3d at 1164) (emphasis added). “[E]ven if a plaintiff
seeks relief from a state court judgment, such a suit is a
forbidden de facto appeal only if the plaintiff also alleges a
legal error by the state court.” Id.VASQUEZ V. RACKACUCKAS 21
Here, Plaintiffs “assert[] as a legal wrong” only OCDA
and OPD’s allegedly unconstitutional enforcement of the
Order. See id. at 897. They present no challenge to the terms
of the Order, nor do they otherwise “allege[] a legal error” by
the Superior Court. See id. Plaintiffs’ suit is therefore “not
a forbidden de facto appeal” under Rooker-Feldman. See id.
C.
Orange also asserts that the district court should have
abstained from hearing Plaintiffs’ case under more general
principles of comity, equity, and federalism, unmoored from
any particular abstention doctrine heretofore endorsed by the
Supreme Court or our court. We review for abuse of
discretion the district court’s decision not to abstain under
doctrines other than Younger. See United States v. Hinkson,
585 F.3d 1247, 1263 n.23 (9th Cir. 2009) (en banc); Green,
255 F.3d at 1092–93 & n.10.
Orange’s argument hinges on three out-of-circuit cases
somewhat similar to this one but, in other respects,
significantly different. In each of those cases, the federal
court plaintiffs sought to enjoin prosecutors from enforcing
state-court-issued injunctions against individuals not named
in the state injunctions. In each case, the district court
abstained from issuing the requested injunction, and the court
of appeals affirmed the abstention. See Gottfried, 142 F.3d
at 330–33; McKusick v. City of Melbourne, 96 F.3d 478,
487–89 (11th Cir. 1996); Hoover v. Wagner, 47 F.3d 845,
850–52 (7th Cir. 1995).
In the case before us, the district court initially relied on
these out-of-circuit authorities in denying Plaintiffs’ request
for a preliminary injunction. At that point, Plaintiffs were
22 VASQUEZ V. RACKACUCKAS
seeking an expansive injunction that would have required
“judicial hearings[s],” with specific, prescribed procedural
protections, before OPD and OCDA could enforce the Order
against them. The district court concluded that such relief
“would result . . . in an inappropriate invocation of the equity
powers of the federal court,” because the remedy would
require the involvement of a state judicial officer.
After Plaintiffs “clarified and narrowed” the injunctive
relief sought, and after trial, the district court issued a
permanent injunction against Orange, simply barring it “from
enforcing the Order against the Plaintiffs.” In so doing, the
court emphasized that it was “not instructing the state court
as to the nature of any hearing.”
We need not address whether the district court would
have abused its discretion in denying an injunction along the
lines originally sought by Plaintiffs. Nor need we decide
whether Gottfried, McKusick, and Hoover properly state the
contours of an abstention doctrine that a district court might
follow under circumstances not present here. We do hold that
in the posture of this case, the district court did not abuse its
discretion in declining to abstain from granting declaratory
and injunctive relief after trial.
First, and most important, in the out-of-circuit cases, the
plaintiffs challenged the terms of the state injunction. Not so
here. Instead, Plaintiffs challenge only Orange’s policy of
enforcing the Order against them, given that they were
dismissed from the state case and so deprived of that
VASQUEZ V. RACKACUCKAS 23
opportunity to adjudicate their membership in OVC before
being subjected to the Order.7
Second, the Plaintiffs here have neither sued the state
judge who issued the relevant injunction, nor sought any
relief from the state court. Instead, they seek to enjoin only
the police and prosecutors whom the district court found,
after trial, to have a policy of enforcing the Order against the
same class of people dismissed from the state case. Cf.
Gottfried, 142 F.3d at 328 (injunction sought against state
judge); Hoover, 47 F.3d at 846, 851 (same).
Third, as we construe the district court’s order, see infra
Section V, the federal relief granted does not pose an undue
risk of “thrust[ing] the federal court into an unseemly,
repetitive, quasi-systematic, supervisory role over
administration of the state court injunction.” McKusick,
96 F.3d at 488. OCDA and OPD retain the broad discretion
to enforce the Order, including against Plaintiffs, provided
they provide the process guaranteed by the U.S. Constitution.
See infra Section V.8 Nor was the relief the district court
7
In Gottfried, for example, the plaintiff’s requested injunction against
enforcement of the state order was premised on her First Amendment
challenge to the terms of the order, see 142 F.3d at 328, 330–31; in
McKusick, the plaintiff argued that the state court injunction “authorize[d]
arrests without probable cause,” see 96 F.3d at 487; and in Hoover, the
plaintiff argued that the injunction was “vague and overbroad” and
“infringe[d]” on First Amendment rights, see 47 F.3d at 846.
8
E.T. v. Cantil-Sakauye, 682 F.3d 1121 (9th Cir. 2011) (per curiam),
cert. denied, 133 S. Ct. 476 (2012), on which Orange relies heavily in its
reply brief, is inapposite. In E.T., the dispositive ground for abstention
was the specter of federal supervision of state judicial proceedings. The
district court here made clear that its injunction does not run against state
judges, state courts, or state court administrators.
24 VASQUEZ V. RACKACUCKAS
granted based on “nebulous and speculative . . . fears” that the
Order would be enforced against them. Hoover, 47 F.3d at
851. As we discuss in Section IV.A, the district court’s
decision was based on particularized evidence introduced at
trial that Orange has sought to enforce the state Order against
the entirety of the Plaintiff class. See Wooley v. Maynard,
430 U.S. 705, 710 (1977) (upholding an injunction against a
state prosecution “when a genuine threat of prosecution
exist[ed]”); Steffel v. Thompson, 415 U.S. 452, 475 (1974)
(holding that “federal declaratory relief is not precluded when
no state prosecution is pending and a federal plaintiff
demonstrates a genuine threat of enforcement”).
These distinctions matter because they eliminate the
danger of an “affront to comity.” See Hoover, 47 F.3d at 851.
Issuing equitable relief against OCDA and OPD does not
create a conflict with any decision by the state court, nor does
it preemptively decide any question the state court may be
called upon to address in any pending proceeding of which
we are aware. Cf. Gilbertson, 381 F.3d at 980 n.14 (noting
that Younger abstention is inappropriate where a federal claim
is “wholly unrelated” “to the issues in [a] pending state
proceeding”).
Orange nonetheless vigorously asserts that the federal
court’s injunction leaves them “caught between conflicting
orders.” That is simply not so. Orange fundamentally
misreads the state court’s Order.
Nothing in that Order authorizes the police or district
attorney to subject Plaintiffs to that Order, much less requires
them to enforce the Order against the individual Plaintiffs in
this case without further procedural protections. Indeed, the
Order does not require that its provisions be enforced against
VASQUEZ V. RACKACUCKAS 25
anyone. And nothing in it states what procedures Orange
should use to determine which unnamed parties are covered
by the Order or against which such parties the Order should
be enforced.9
People ex rel. Totten v. Colonia Chiques, 156 Cal. App.
4th 31 (2007), does not change our understanding of the state
court Order. That case held that a trial court could enter an
injunction against a gang and its “active members,” without
any individuals being named as parties in the case. See id. at
39–43. The court reasoned that:
it is simply not practical to require [the State]
to name Colonia[] Chiques gang members
individually as defendants. There are
approximately 1,000 members, and
membership is continually changing. New
members are joining the gang, while old
members are leaving it or becoming inactive.
If the gang could not be sued, [the State]
would have to bring a new action for
injunctive relief against each new member.
The Legislature surely did not intend to
impose such an onerous burden on officials
9
The Superior Court’s comments before granting OCDA’s motion for
default judgment against OVC as an entity confirm that the Order is silent
as to procedures for enforcement. The court explained that it viewed the
issue whether OCDA might serve the Order on the now-federal-Plaintiffs
“without some sort of judicial process” as an “enforcement issue” not
before the court. When counsel for some of the current Plaintiffs
requested “that if there were some circumstance where the District
Attorney attempts to serve our clients, that they be subject to some judicial
review of that,” the court responded: “That may be, but that’s nothing I
need to decide now. Hopefully I’m not even going to hear that.”
26 VASQUEZ V. RACKACUCKAS
who are trying to mitigate California’s “state
of crisis which has been caused by violent
street gangs.”
Id. at 41 (quoting Cal. Penal Code § 186.21). Colonia
Chiques supports Orange’s position that under California law,
it was not required to name all of a gang’s active members as
parties to obtain an injunction against the gang.10 But nothing
in either Colonia Chiques or the state proceedings that
preceded this case addressed the separate question of what
process is due before a non-party individual can be subjected
to an injunction as a purported member of an enjoined gang.
We note finally that the fact that the equitable relief
sought by nonparties to a state-court proceeding bears some
relationship to that state proceeding would not be a sufficient
basis for a district court to abstain from deciding a federal
constitutional question. As we explained in Green,
The principle that § 1983 plaintiffs need not
exhaust available state judicial or
administrative remedies necessarily means . . .
that the mere availability of a state judicial
proceeding that allows the opportunity to
vindicate federal rights is insufficient to
justify abstention under Younger. . . . There is
no principled difference, with regard to the
comity principles underlying Younger,
between requiring a plaintiff to begin his or
10
Another California Court of Appeal has reached the opposite
conclusion. See People ex rel. Reisig v. Broderick Boys, 149 Cal. App.
4th 1506, 1522 (2007). We express no view as to which California court
is correct on this point.
VASQUEZ V. RACKACUCKAS 27
her own state court or administrative
proceeding when that is possible and requiring
the plaintiff to intervene in someone else’s
state court suit when that is possible. Either
way, the requirement is inconsistent with the
longstanding principle that § 1983 plaintiffs
can ordinarily go forward in federal court if
they choose to do so, and need not bring their
cause to state court first.
Green, 255 F.3d at 1102. That rule is especially apt here, as
any comity concerns are largely of OCDA’s own making.
In short, under the circumstances of this case, the district
court did not abuse its discretion in declining to abstain from
granting relief under general principles of comity and
federalism.
D.
Orange’s final comity-related contention is that the
district court erred under a line of cases originating with
Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), by
“accepting jurisdiction” over Plaintiffs’ action, which
included a claim for a declaratory judgment. The argument
is twofold: first, that the district court was obliged under
Brillhart to state its reasons for exercising its discretion to
consider Plaintiffs’ claim for declaratory relief but did not do
so; second — and closely related — that even assuming the
district court had adequately stated its reasons, its decision to
28 VASQUEZ V. RACKACUCKAS
entertain Plaintiffs’ declaratory relief claim was an abuse of
discretion under Brillhart.11
Orange’s first contention relies on Dizol, 133 F.3d at
1225, which held that when “a party timely objects to [a
district court’s] exercise of discretionary jurisdiction under
the Declaratory Judgment Act,” and the district court fails to
“make a sufficient record of its reasoning” to “exercise . . .
jurisdiction,” “the case must be remanded to the district court
to record its reasoning in a manner sufficient to permit the
‘proper application of the abuse of discretion standard on
appellate review.’” Id. (quoting Wilton v. Seven Falls Co.,
515 U.S. 277, 289 (1995)).12
11
We reject Plaintiffs’ contention that Orange forfeited its Brillhart
argument by not raising it earlier. A Brillhart-based objection “may not
be raised for the first time on appeal.” See Gov’t Emps. Ins. Co. v. Dizol,
133 F.3d 1220, 1225 (9th Cir. 1998) (en banc). But Orange timely raised
the issue in the district court by making the argument in its Objections to
Plaintiffs’ Proposed Additional Findings of Fact and Conclusions of Law
and Proposed Judgment and proposing specific language that the district
court could include in declining to issue a declaratory judgment. The
Brillhart issue was therefore “raised sufficiently for the [district] court to
rule on it,” and so not forfeited. See Walsh v. Nev. Dep’t of Human Res.,
471 F.3d 1033, 1037 (9th Cir. 2006).
12
Countrywide Home Loans, Inc. v. Mortgage Guar. Ins. Corp.,
642 F.3d 849 (9th Cir. 2011) clarified that the language in Dizol and
related cases referring to a district court’s “exercise” or “accept[ance”] of
“discretionary jurisdiction” “in an action seeking declaratory relief” is
“imprecise.” Id. at 852 (internal quotation marks omitted). That is so
because the Declaratory Judgment Act “does not confer jurisdiction, and
therefore also does not afford the opportunity to decline it.” Id. at 853.
The relevant discretion vested in a district court is whether “to provide a
declaratory remedy pursuant to its otherwise proper subject matter
jurisdiction over a dispute.” Id. (emphasis added).
VASQUEZ V. RACKACUCKAS 29
Dizol’s bright-line remand rule “does not apply to claims
that exist independent of the request for a declaration.” Scotts
Co. LLC v. Seeds, Inc., 688 F.3d 1154, 1158 (9th Cir. 2012)
(internal quotation marks and alteration omitted). “[A] claim
is independent” in this context “if it would continue to exist
if the request for a declaration simply dropped from the case.”
Id. Orange acknowledges this standard but argues that it is
not satisfied here, on the theory that Plaintiffs’ claim for
injunctive relief is predicated on an “initial declaration that
Plaintiffs have suffered a violation of their constitutional
rights.”
We disagree. Plaintiffs’ claim for injunctive relief “is
independent because it would be viable without the
declaratory claim.” See id. at 1159. Scotts, for example, held
that a claim for specific performance of a contract — which
is, essentially, an injunction13 — was “independent” of a
claim for declaratory relief “because it would be viable
without the declaratory claim.” Scotts, 688 F.3d at 1159.
Other circuits have similarly rejected the argument that a
request for an injunction is “merely ‘ancillary’” to a request
for declaratory relief. See Black Sea Inv., Ltd. v. United
Heritage Corp., 204 F.3d 647, 652 (5th Cir. 2000); Chase
Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 466
(4th Cir. 2005).
Understood in light of Countrywide, then, Orange’s first contention
is that the district court’s grant of declaratory relief, over Orange’s
objection based on the Brillhart factors, and without reasoned
consideration of that objection, requires us to vacate and remand.
13
See Ariz. Edison Co. v. S. Sierras Power Co., 17 F.2d 739, 740 (9th
Cir. 1927); 4 S. Symons, Pomeroy’s Equity Jurisprudence § 1341, at 941
(5th ed. 1941).
30 VASQUEZ V. RACKACUCKAS
Because Dizol’s discretionary rule does not apply, we
proceed to consider Orange’s second Dizol-related argument,
namely, that the district court abused its discretion in
entertaining Plaintiffs’ claim for declaratory relief in light of
the related state court proceedings. Because the declaratory
judgment claim was “related” to the “independent non-
declaratory judgment claim” — for injunctive relief — we
“evaluate[] under the Colorado River doctrine,” rather than
under Brillhart, the district court’s discretionary decision to
grant relief. See Scotts, 688 F.3d at 1158–59.
“Under Colorado River, considerations of ‘wise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation,’ may
justify a decision by the district court to stay federal
proceedings pending the resolution of concurrent state court
proceedings involving the same matter[.]” Holder v. Holder,
305 F.3d 854, 867 (9th Cir. 2002) (citations omitted). Here,
as the district court recognized, “there is no ongoing state
proceeding” that could “provide” Plaintiffs “relief” on their
due process claim. Id. at 868. As there are no “concurrent”
“state proceedings” that “will resolve” Plaintiffs’ claims, id.
at 870, the Colorado River doctrine does not apply. See Intel
Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th
Cir. 1993). The district court therefore did not abuse its
discretion in carrying out its “virtually unflagging obligation
. . . to exercise . . . jurisdiction,” and to grant declaratory
relief, rather than staying Plaintiffs’ action under Colorado
River. See Gilbertson, 381 F.3d at 982 n.17.14
14
Because we reject Orange’s Brillhart-related argument on the
foregoing grounds, we need not address the parties’ dispute over whether
Brillhart and its progeny set limits on a district court’s discretion to grant
a declaration as to the parties’ rights under federal law where, as here, the
VASQUEZ V. RACKACUCKAS 31
III.
The final issue we must consider before addressing the
merits of Plaintiffs’ due process claim is a narrow one.
Defendant Rackauckas, sued in his official capacity as the
head of OCDA, argues that Plaintiffs’ claim against him
under the procedural due process clause of the California
Constitution is barred by Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89 (1984). We agree.
“A federal court[]” may not “grant” injunctive “relief
against state officials on the basis of state law,” when those
officials are sued in their official capacity. Pennhurst,
465 U.S. at 106; see Pena v. Gardner, 976 F.2d 469, 473 (9th
Cir. 1992) (per curiam). For purposes of § 1983 liability,
whether a California “county district attorney acts as a state”
rather than local “official” depends on the particular acts
challenged in the § 1983 suit. See Weiner v. San Diego Cnty.,
210 F.3d 1025, 1030 (9th Cir. 2000). A “California district
attorney is a state officer when deciding whether to prosecute
an individual,” and when “investigating and proceeding with
criminal prosecutions.” Id. at 1030–31; accord Goldstein v.
City of Long Beach, 715 F.3d 750, 753–62 (9th Cir. 2013).
Plaintiffs’ allegations — all of which attack OCDA’s policies
for enforcing the state Order against Plaintiffs through
criminal contempt proceedings — fall squarely within that
category of state, rather than local, official action. Weiner,
210 F.3d at 1030–31. Given the particular official conduct at
issue, Plaintiffs cannot seek injunctive relief in federal court
against Rackauckas for alleged violations of the California
Constitution. We accordingly reverse the district court’s
district court had federal question jurisdiction as opposed to diversity
jurisdiction.
32 VASQUEZ V. RACKACUCKAS
judgment against Rackauckas on Plaintiffs’ second claim for
relief. See Pennhurst, 465 U.S. at 106; Weiner, 210 F.3d at1030–31.
Pennhurst, of course, has no bearing on Rackauckas’s
amenability to suit in federal court for alleged violations of
federal law. The district court determined that Plaintiffs were
entitled to relief under the federal Constitution before
proceeding to address their claims under the California
Constitution, and awarded the same declaratory and
injunctive relief on each independent ground. Rackauckas’s
state-law immunity argument does not impact our analysis of
Plaintiffs’ federal due process claim or the corresponding
relief granted, to which we turn.15
IV.
The district court’s grant of declaratory and injunctive
relief was based on its conclusion that “by subjecting
Plaintiffs and those similarly situated . . . to the enforcement
of the Order,” Orange “deprived Plaintiffs and those similarly
situated” of their “constitutionally protected liberty interests
without adequate procedural protections.” Reviewing the
factual findings underlying the district court’s analysis for
clear error and the district court’s legal conclusions regarding
the due process claim de novo, we affirm the district court.
See Hinkson, 585 F.3d at 1260; Ting v. AT&T, 319 F.3d 1126,
1135 (9th Cir. 2003).
“We analyze a procedural due process claim in two steps.
The first asks whether there exists a liberty or property
15
We address in Section VI infra the relevance of the Pennhurst issue
to the fee award.
VASQUEZ V. RACKACUCKAS 33
interest which has been interfered with by the State; the
second examines whether the procedures attendant upon that
deprivation were constitutionally sufficient.” United States
v. Juvenile Male, 670 F.3d 999, 1013 (9th Cir. 2012), cert.
denied, 133 S. Ct. 234 (2012) (internal quotation marks and
alteration omitted).
A.
As to the first step of the procedural due process analysis,
we agree with the district court that the Order profoundly
implicates liberty interests protected by the Due Process
Clause, including rights of free movement, association, and
speech, and that Orange’s conduct interferes with those
protected liberty interests of the Plaintiffs.
“Freedom of speech and the other freedoms encompassed
by the First Amendment always have been viewed as
fundamental components of the liberty safeguarded by the
Due Process Clause.” First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765, 780 (1978). “[T]he freedom to loiter for
innocent purposes is” also “part of the ‘liberty’ protected by
the Due Process Clause.” City of Chicago v. Morales,
527 U.S. 41, 53 (1999) (plurality opinion). The Constitution
likewise guarantees the “fundamental right of free
movement” to both adults and minors. See Nunez ex rel.
Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997)
(invalidating a juvenile curfew ordinance under strict scrutiny
review). The Order places a heavy burden on the exercise of
these protected liberty interests.16
16
Our task at the first prong of the procedural due process analysis is to
determine whether “there exists a liberty or property interest which has
been interfered with by the State,” see Juvenile Male, 670 F.3d at 1013
34 VASQUEZ V. RACKACUCKAS
As noted, the Order prohibits anyone subject to its terms
from associating with any other enjoined parties — including
family members — in “any public place, any place accessible
to the public, or in public view” in the Safety Zone. The “Do
Not Associate” prohibition extends to “stand[ing], sit[ting],
walk[ing], driv[ing], bicycl[ing],” or “gather[ing] or
appear[ing].” The Order also establishes curfews for both
minors and adults, prohibiting nighttime presence in a “public
place, vacant lot, or business establishment” unless an
enumerated exception applies. These provisions directly
interfere with an individual’s “fundamental right of free
movement,” id., and an “individual’s decision to remain in a
public place of his choice,” Morales, 527 U.S. at 54. Related
terms of the Order that bar “remain[ing] in the presence” of
other individuals engaged in various acts — such as
possessing firearms or drinking alcohol — further affect these
same liberty interests. Those terms restrict freedom of
movement and use of public places because of the actions of
others, over which one may have no control, and do so
without regard to whether the individual engaging in the
banned activities is an OVC gang member.
The Do Not Associate provision and other limitations on
association have no exception for individuals to engage in
First-Amendment protected “expressive” activity, such as
attending religious services, participating in political
demonstrations, or otherwise “associat[ing] with others in
(emphasis added), not whether the Order substantially violates the
constitutional protections accorded such interests. The Order’s terms are
thus relevant here only insofar as they implicate the constitutionally
protected liberty interests of those subject to the injunction, which feeds
into our next inquiry, see infra Section IV.B, namely what, if any,
procedural protections the Due Process Clause requires Orange provide
before subjecting individuals such as Plaintiffs to the Order’s terms.
VASQUEZ V. RACKACUCKAS 35
pursuit of [the] wide variety of political, social, economic,
educational, religious, and cultural ends” “protected by the
First Amendment.” See Roberts v. U.S. Jaycees, 468 U.S.
609, 622 (1984). The same provisions also burden the
constitutionally protected freedom of “intimate association,”
see id. at 618, by barring association with family members in
public places such as schools, churches, parks, libraries,
stores, and restaurants (and in some instances, at home), if in
“public view,” see supra n.5.
The “Do Not Use Gang Hand Signs or Symbols”
provision, in turn, restricts freedom of expression by banning
the “use[ or] display . . . by means of any words, phrases,
physical gestures, hand signs, or symbols” that an enjoined
party “know[s] describe[s], represent[s], or refer[s] to the”
OVC gang, or “remain[ing] in the presence” of individuals
using such words or gestures.17 This proscription would, for
example, ban a covered individual from referring to the OVC
gang, or listening to someone else refer to the OVC gang, in
the designated locations, while discussing this lawsuit or the
state court Order. See R.A.V. v. City of St. Paul, 505 U.S.
377, 382 (1992) (noting that “[c]ontent-based regulations are
presumptively invalid” under the First Amendment); McCoy
v. Stewart, 282 F.3d 626, 633 (9th Cir. 2002). Also possibly
affecting freedom of expression is the prohibition on wearing
orange clothing and clothing that “feature[s] . . . the . . .
word[] ‘Orange.’” Cf. Sammartano v. First Judicial Dist.
Court, in & for Cnty. of Carson City, 303 F.3d 959, 966 (9th
Cir. 2002).
17
The district court also found that “individuals use the term ‘OVC’ to
refer to the historical Cypress Street Barrio located within the Safety Zone,
and thus use of the term ‘OVC’ may not be an indication of gang
membership.”
36 VASQUEZ V. RACKACUCKAS
In sum, a host of the Order’s terms implicate
constitutionally protected liberty interests.
Aside from the terms of the Order itself, Orange’s actions
subjecting Plaintiffs to the Order also constitute further
“interfere[nce]” with liberty interests triggering scrutiny
under the Due Process Clause. See Juvenile Male, 670 F.3d
at 1013. Although the Order did not name Plaintiffs
individually, Orange subjected Plaintiffs to the Order;
notified Plaintiffs they could face “CRIMINAL
PROSECUTION” for violating the Order’s terms; and
testified in this litigation to a “policy [of] arrest[ing],
transport[ing], and book[ing] those Plaintiffs alleged to have
violated the Order and hold[ing] them pending bond or
arraignment, rather than citing and releasing them,” as well
as a “policy of seeking increased bail amounts for violations
of the Order.” OPD and OCDA’s policy gave Plaintiffs a
choice between refraining from a wide variety of otherwise
lawful, constitutionally protected activities, or going to jail,
quite possibly for some time.
Based on the evidence presented at trial, the district court
found that some Plaintiffs have in fact refrained from
exercising their rights, particularly their “right of free
movement.” See Nunez, 114 F.3d at 944. Plaintiff Vasquez,
“who has lived his entire life in the Safety Zone, has curtailed
going to parks, stores, restaurants, and the mall, for fear of
being arrested.” Vasquez “no longer goes anywhere in the
injunction area with his brother, with whom he lives and who
has also been served with the Order.” Plaintiff Lara “no
longer goes with his family,” including his “twin brother,
who also has been served with the Order,” “to their favorite
restaurants, to the local pool where Mr. Lara learned to swim,
to parks where the family previously picnicked, or to the City
VASQUEZ V. RACKACUCKAS 37
of Orange’s annual street fair.” The remaining named
Plaintiffs — the Bastida brothers — no longer “drive through
the injunction area together or visit family together, or attend
family functions that are held outdoors, for fear of violating
the Order.” “When their grandfather had a stroke and was
taken to a hospital in the Safety Zone in the middle of the
night, their mother was forced to decide whether to permit the
brothers to visit the publicly accessible hospital, an act that
would violate both the curfew and association provisions of
the Order.”
The district court similarly found that Plaintiff Lara used
to “participate[] in vigils, demonstrations, and protests within
the injunction area, but ceased doing so after being served
with the Order, for fear he would be violating its terms by
confronting and challenging government policies and
associating with individuals on the injunction list.” “Such
persons include [his] twin brother, who also has been served
with the Order.” The Bastida Plaintiffs likewise “refrained
from participating in protests . . . out of fear of violating the
Order[].”18
Because Orange’s unilateral decision to restrict Plaintiffs’
constitutionally protected liberty interests constituted an
“interfere[nce] . . . by the State,” see Juvenile Male, 670 F.3d
at 1013, we turn to an examination of whether Orange was
obligated to provide Plaintiffs with additional procedural
protections.
18
We have reviewed the record and determined that none of the district
court’s findings of fact, including these, is clearly erroneous. See
Hinkson, 585 F.3d at 1262.
38 VASQUEZ V. RACKACUCKAS
B.
Mathews v. Eldridge, 424 U.S. 319 (1976), provides the
familiar framework for the second step of our analysis,
namely “whether the procedures attendant upon [Orange’s]
deprivation” of Plaintiffs’ liberty interests “were
constitutionally sufficient.” See Juvenile Male, 670 F.3d at
1013. Mathews “directs us to examine:”
first, 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.
Brittain v. Hansen, 451 F.3d 982, 1000 (9th Cir. 2006)
(quoting Mathews, 424 U.S. at 334–35). In “balancing” the
Mathews factors, we are mindful that “the requirements of
due process are ‘flexible and call for such procedural
protections as the particular situation demands.’” Wilkinson
v. Austin, 545 U.S. 209, 224–25 (2005) (quoting Morrisey v.
Brewer, 408 U.S. 471, 481 (1972)).
The district court correctly determined that the Mathews
factors “weigh clearly in favor” of the conclusion that Orange
violated Plaintiffs’ procedural due process rights by failing to
provide any form of hearing before subjecting them to the
Order.
VASQUEZ V. RACKACUCKAS 39
1. It follows from our analysis of Plaintiffs’ liberty
interests in Section IV.A that Plaintiffs’ “private interest[s]”
are very strong. See Brittain, 451 F.3d at 1000. The scope of
conduct covered by the Order is wide, intruding considerably
on the daily lives of those subject to it. As the district court
found after personally touring the Safety Zone, the
geographical area covered by the Order encompasses “dense
residential areas,” “several schools,” “at least four parks,”
“the Chapman University campus and its surroundings,” “the
historic downtown Orange Area . . . which includes a vibrant
commercial district,” “government buildings and offices
(including Orange City Hall, the police station, and the public
library),” “a hospital,” and “hundreds of retail and
commercial business, and hundreds of homes and
apartments.” As the district court also correctly noted, for
“individuals who have spent much of their lives living in and
around the area,” the Order’s terms “impose[] significant
restrictions on Plaintiffs’ liberty interests.”
Moreover, that the Order is permanent — it lacks an
“expiration . . . or sunset date,”— compounds the deprivation.
“[T]he possible length of wrongful deprivation . . . is an
important factor in assessing the impact of official action on
the private interests.” See Mathews, 424 U.S. at 341.
In sum, under the first Mathews factor, Plaintiffs’
interests are truly weighty.19
19
Orange is mistaken that the interests of “the residents of Orange who
are constantly plagued by the activities of the OVC” are assessed under
the “private interests” factor. The interests of the public, for whom
OCDA advocates in its capacity as a representative of the People of
California, are instead considered under the third Mathews prong, which
addresses the “Government’s asserted interest, ‘including the function
involved’ and the burdens the Government would face in providing greater
40 VASQUEZ V. RACKACUCKAS
2. Under California law, “[f]or the purposes of a gang
abatement injunction,” “an active gang member is a person
who participates in or acts in concert with” a gang, where
“[t]he participation . . . [is] more than nominal, passive,
inactive, or purely technical.” People v. Englebrecht, 88 Cal.
App. 4th 1236, 1258, 1261 (2001); see Broderick Boys,
149 Cal. App. 4th at 1517. California courts have held that
under state law, the state has the burden of demonstrating
active gang membership by “clear and convincing evidence,”
rather than a lower “preponderance” standard, given “the
importance of the interests affected by [such an] injunction.”
Englebrecht, 88 Cal. App. 4th at 1256; see Broderick Boys,
149 Cal. App. 4th at 1517.
In applying the second Mathews factor, we address the
fact-intensive nature of assessing whether an individual is an
active gang member or participant; the adequacy of the
procedures Orange used in making that determination; the
value of additional procedural safeguards; and the sufficiency
of post-deprivation remedies. Mathews, 424 U.S. at 335.
(a) Where a factual issue “depend[s] on [the] credibility
of witnesses and assessment of conditions not subject to
measurement,” and is not “susceptible of reasonably precise
measurement by external standards,” “[t]he risk of error is
considerable when such determinations are made after
hearing only one side.” Chalkboard, Inc. v. Brandt, 902 F.2d
1375, 1381 (9th Cir. 1989). Determining whether an
process.” See Hamdi v. Rumsfeld, 542 U.S. 507, 529–30 (2004) (plurality
opinion) (quoting Mathews, 424 U.S. at 335) (declining to consider under
the first Mathews prong an “immediate threat to the national security of
the United States”); Mathews, 424 U.S. at 347 (noting that the third factor
includes “societal costs” to providing pre-deprivation hearings).
VASQUEZ V. RACKACUCKAS 41
individual is an active gang member presents a considerable
risk of error. The informal structure of gangs, the often
fleeting nature of gang membership, and the lack of objective
criteria in making the assessment all heighten the need for
careful factfinding.
Gangs are often “loose knit[ and] without structure.”
Att’y Gen.’s Youth Gang Task Force, Dept. of Justice of the
State of California, Report on Youth Gang Violence in
California 3 (1981). The STEP Act so recognizes, codifying
a definition of “criminal street gang” that includes groups
“whether formal or informal.” Cal. Penal Code § 186.22(f).20
For our part, we have recognized that many “[g]angs . . .
do not have by-laws, organizational minutes, or any other
normal means of identification.” United States v. Hankey,
203 F.3d 1160, 1169–70 (9th Cir. 2000). California courts
have also so noted. People v. Valdez, 58 Cal. App. 4th 49420
Other states’ definitions of a “gang” for criminal and other purposes
are similar in reaching informal groups. See, e.g., Ariz. Rev. Stat. Ann.
§ 13-105 (“formal or informal”); Colo. Rev. Stat. Ann. § 18-23-101(1)
(same); Del. Code Ann. tit. 11, § 616(a)(1) (same); Fla. Stat. Ann.
§ 874.03(1) (same); Ga. Code Ann. § 16-15-3(2) (same); Idaho Code Ann.
§ 18-8502(1) (same); Iowa Code Ann. § 723A.1(2) (same); Kan. Stat.
Ann. § 21-6313(a) (same); La. Rev. Stat. Ann. § 15:1404(A) (same);
Minn. Stat. § 609.229(1) (same); Mo. Rev. Stat. § 578.421(1) (same);
Mont. Code Ann. § 45-8-402(1) (same); Nev. Stat. § 193.168(8)
(“combination of persons, organized formally or informally”); N.C. Gen.
Stat. § 14-50.16(b) (“formal or informal”); N.D. Cent. Code § 12.1-06.2-
01(3) (same); Ohio Rev. Code Ann. § 2923.41(A) (same); S.C. Code Ann.
§ 16-8-230(2) (same); S.D. Codified Laws § 22-10A-1(1) (same); Tenn.
Code Ann. § 40-35-121(a)(1) (same); Utah Code Ann. § 76-9-802 (“group
. . . operated formally or informally”); Va. Code Ann. § 18.2-46.1(“formal or informal”); Wash. Rev. Code § 9.94A.030(12) (same); Wis.
Stat. § 939.22(9) (same).
42 VASQUEZ V. RACKACUCKAS
(1997), for example, concluded that many “gangs are not
public and open organizations or associations like the YMCA
or State Bar association, which have a clearly defined and
ascertainable membership. Rather, gangs are more secretive,
loosely defined associations of people, whose involvement
runs the gamut from ‘wannabes’ to leaders. . . . [D]etermining
whether someone is involved and the level of involvement is
not a simple matter . . . .” Id. at 506–07. Likewise, Colonia
Chiques noted that the gang there at issue had a membership
that was “continually changing,” with “[n]ew members . . .
joining the gang, [and] . . . old members . . . leaving it or
becoming inactive.” 156 Cal. App. 4th at 41.21
At trial, Plaintiffs’ two expert witnesses, James Vigil,
professor of criminology at University of California, Irvine,
and Malcolm Klein, professor of sociology at the University
of Southern California, testified to these same fluid
characteristics of gangs in general and OVC in particular.
Both reported that “most gang members” eventually leave
gangs, making it difficult to determine membership or
participation at any single time based on a past report of an
individual’s involvement in a gang. Klein also stated that
OVC, based in a particular neighborhood in the City of
21
Social science literature confirms the fluid and often fleeting nature
of gang membership. Most juveniles belong to gangs for “1 year or less.”
Chris Melde et al., Identifying Correlates of Stable Gang Membership, 28
J. Contemp. Crim. Just. 482, 483 (2012); see also James C. Holwell,
Menacing or Mimicking? Realities of Youth Gangs, 58 Juv. & Fam. Ct. J.
39, 44 (Spring 2007) (“Studies in numerous localities show that more than
half of young gang members stay in the gang for less than a year.”); see
also Report on Youth Gang Violence in California 5 (“[M]embers . . .
move in and out of the gang on the basis of their interest in gang
functions.”).
VASQUEZ V. RACKACUCKAS 43
Orange, was “one of the less cohesive gangs” which he had
encountered in more than forty years studying gangs.
Based on the trial record, including the expert evidence,
the district court determined that whether “an individual is an
active participant of a criminal street gang is” a “multi-
factored, complex[,] and fact specific” inquiry. The district
court also found that OVC membership would be
“particularly difficult to determine . . . because gang members
and nonmembers often grow up together in the same
neighborhood and have social relationships and friendships
unrelated to the gang.” Distinguishing an individual’s social
association with a gang member on a familial or friendship —
i.e. non-gang related — basis, from an association with the
gang as an organization is therefore a nuanced task. The
district court also noted, based on Professor Vigil’s
testimony, that many “individuals who have grown up in the
local neighborhood or who have family members in the gang
may be deemed members of the gang without undergoing any
kind of initiation.” It is therefore often unclear, the district
court found, at what point a “person becomes a member or
participant of a gang.” In light of the evidence before the
district court, its findings regarding the “multi-factored,
complex[,] and fact specific” nature of determining whether
someone is an OVC gang member are not clearly erroneous.
See Hinkson, 585 F.3d at 1262.
Moreover, the fact that the police observe an individual
violate one of the Order’s terms is of little probative value in
assessing whether that individual is in fact an OVC gang
member. The Order prohibits a wide variety of otherwise
legal, quotidian conduct not directly correlated with the
nuisance and criminal activities that gave rise to the Order.
Much of the behavior covered by the Order can occur outside
44 VASQUEZ V. RACKACUCKAS
the presence of any other individual even putatively covered
by the Order.
In short, given the “wide variety of information [that] may
be deemed relevant,” and the difficulty of “reasonably precise
measurement” in assessing whether someone is an active
gang member, “[t]he risk of error is considerable when such
[a] determination[ is] made” without any participation by, or
opportunity to provide evidence on behalf of, the individual
served with the Order and, according to Orange, putatively
covered by it. See Mathews, 424 U.S. at 343; Chalkboard,
902 F.2d at 1381.
(b) As to the procedures actually used to determine which
individuals would be served with the Order and considered
subject to it, the district court characterized those procedures
as follows: “Defendants undertook a unilateral, fact-intensive
determination, based on one-sided and untested evidence and
requiring judgmental questions not determined by objective
measures.” This characterization is well supported by the
record.
Testimony by Deputy District Attorney Michael
Hernandez, Assistant District Attorney John Anderson, Joel
Nigro, and Aaron Drootin, established that Orange lacked
clear standards for determining on whom to serve the Order.
As the district court found, Hernandez, Nigro, and Drootin
“repeatedly testified that they . . . had no fixed list or set
criteria to determine whether an individual was an active
participant of OVC.” Throughout trial, these witnesses noted
that there was no “equation” to determine gang membership;
no “bright line rule”; and “every situation can be different.”
Their testimony indicates that OPD used inconsistent
standards. Nigro, for instance, explained that OCDA did not
VASQUEZ V. RACKACUCKAS 45
provide OPD with an “explanation as to” the meaning of
“active participant.” He believed, based on his
“conversations with gang participants . . . [and] police
officers and detectives” that “association can be enough for
a person to be an active participant” of a gang. Detective
Drootin, in contrast, testified that merely knowing an OVC
member was insufficient to establish membership.
Orange argues on appeal that the Superior Court made
adequate findings at the preliminary injunction stage
regarding gang membership, and that the decision as to which
individuals to treat as bound by the Order was based on those
findings. The district court, as noted, concluded otherwise —
that Orange carried out a “unilateral determination.” The
district court’s determination was not “illogical, implausible,
or without support in inferences that may be drawn from the
record.” See Hinkson, 585 F.3d at 1262.
First, the state court never made any findings of gang
membership regarding juveniles who lacked a guardian ad
litem. The state court denied a preliminary injunction as to
those individuals, but Orange later served them with the
Order nonetheless.
Second, Orange served the Order on a number of plaintiff
class members as to whom the state court denied a
preliminary injunction. Although Orange maintains that it
had new evidence of gang membership not submitted to the
state court as to all but one of these individuals, that
representation only emphasizes that Orange’s coverage
decisions were not determined by whether there had been a
previous judicial indication as to coverage.
46 VASQUEZ V. RACKACUCKAS
Finally, and most important, for those Plaintiffs as to
whom the state court did make preliminary findings of gang
membership, those findings were exactly what they purported
to be — preliminary, not final. Such a preliminary finding
“does not amount to an adjudication of the ultimate” issue,
see Cont’l Baking Co. v. Katz, 68 Cal. 2d 512, 528 (1968),
namely whether there was “clear and convincing evidence”
as to Plaintiffs’ status as active gang members, see
Englebrecht, 88 Cal. App. 4th at 1256. There was ample
testimony before the district court that some of the evidence
of gang membership submitted to the district court was of
questionable reliability. By dismissing them from the state
court proceedings, OCDA deprived the Plaintiffs of an
opportunity to take discovery from OCDA and the OPD
officers who had submitted declarations in support of a
permanent injunction against individual Plaintiffs.
Determination of the ultimate accuracy of the state court’s
preliminary findings was therefore — through no fault of the
state court — entirely undermined by the very procedural
tactic that gave rise to this lawsuit.
(c) “[I]n certain circumstances, a state can cure what
would otherwise be an unconstitutional deprivation of ‘life,
liberty or property’ by providing adequate postdeprivation
remedies.” Zimmerman v. City of Oakland, 255 F.3d 734,
737 (9th Cir. 2001). Assuming, without deciding, that the
deprivation of liberty interests that Plaintiffs have suffered
could conceivably have been remedied by some form of post-
deprivation procedure, we conclude that Orange has provided
no such adequate process.22
22
We proceed in this fashion because the parties have not briefed
whether the “deprivations of liberty” at issue here fall into the “limited
circumstances” in which “[p]ostdeprivation procedures may provide
VASQUEZ V. RACKACUCKAS 47
Orange contends that Plaintiffs had several opportunities
to obtain relief once it provided notice of its intent to enforce
the Order against them: (1) through a “removal process”
administered by OCDA; (2) by intervening in the Superior
Court proceedings, see Colonia Chiques, 156 Cal. App. 4th
at 35–37, 42; Cal. Civ. Proc. Code § 387; (3) by moving to
modify or dissolve the Order, see Cal. Civ. Proc. Code § 533,
and appealing from any order denying such a motion, see Cal.
Civ. Proc. Code § 904.1(a)(6); Iraheta v. Superior Court,
70 Cal. App. 4th 1500, 1514 n.6 (1999), or appealing from
the grant of the Order, see id.; or (4) in criminal contempt
proceedings if arrested for violating the Order. We address
each possibility in turn.
(i) According to Orange, under OCDA’s self-designed
“removal process,” a panel of two Senior Deputy District
Attorneys from OCDA and a Probation Department
representative may review an individual’s request to be
removed from the ambit of the Order. This process is
insufficient to provide an adequate post-deprivation remedy,
for at least two reasons.
adequate due process.” See Albright v. Oliver, 510 U.S. 266, 315 n.37
(1994) (Stevens, J., dissenting); Zinermon v. Burch, 494 U.S. 113, 132
(1990) (noting that “in situations where a predeprivation hearing is unduly
burdensome in proportion to the liberty interest at stake . . .
postdeprivation remedies may satisfy due process”); Bailey v. Pataki,
708 F.3d 391, 405 (2d Cir. 2013) (quoting Zinermon, 494 U.S. at 132)
(“[W]here the State feasibly can provide a predeprivation hearing . . . it
generally must do so regardless of the adequacy of a postdeprivation . . .
remedy.”); Zimmerman, 255 F.3d at 738 (holding postdeprivation
remedies inadequate where a state officer “acted pursuant to some
established procedure,” as opposed to in “random, unpredictable, and
unauthorized ways”).
48 VASQUEZ V. RACKACUCKAS
First, the district court did not clearly err in finding that
“the precise nature of the process and the potential relief it
offers remain unclear.” As the district court found, the only
written information that exists concerning the procedure is a
single-page document served on the named defendants at the
outset of the Superior Court case.23 Orange acknowledged at
trial that the exclusion process “had never been implemented
with regard to OVC or any of the five other injunctions the
OCDA had obtained.” Moreover, there is no indication in the
record that Plaintiffs were again given notice of the removal
process when they were served with the Order. As Plaintiffs
23
The notice served at the outset of the Superior Court case read: “Any
defendant who has been named in and served with this lawsuit which
seeks an injunction or subject to an injunction resulting from this lawsuit
who believes he or she was erroneously included in the lawsuit or
injunction may petition the [OCDA]’s Office for removal from the lawsuit
or injunction. Upon notice from the defendant the [OCDA]’s office will
hold a hearing to be presided over by a panel of two Senior Deputy
District Attorneys not associated with the injunction action, and a
representative from the Probation Department. At the hearing, the
defendant may present evidence, if he or she chooses, to show that the
defendant was never, or at present is not, an active participant in the
named criminal street gang. The [OCDA] may present evidence to the
contrary if there is any. If the panel determines by a preponderance of the
evidence that the defendant was never, or at present is not, an active
participant in the named criminal street gang, the [OCDA] will petition the
assigned court to dismiss the defendant from the lawsuit or remove the
defendant from the injunction. The findings of the hearing will be kept
confidential. If a defendant is dismissed from the lawsuit or removed
from the injunction pursuant to this provision and is subsequently found
to be engaging in behavior indicative of active participation in a criminal
street gang, then that defendant may be re-served with any injunction that
results from this lawsuit and will be required to comply with all of its
terms. This provision does not prevent the defendant from petitioning the
assigned court at any time, to be dismissed from the lawsuit or removed
from any injunction obtained as a result of the lawsuit, or exercising any
other legal or equitable rights or remedies.”
VASQUEZ V. RACKACUCKAS 49
were dismissed from the Superior Court case and were not
named in the resulting Order, it is not clear that the putative
removal procedure applied to them.
Second, the removal process described suffers from
essentially the same defects as the procedures Orange used
unilaterally to determine against which nonparties to the state
court lawsuit to enforce the Order. Most critically, the burden
is on the petitioning individual to demonstrate that he or she
is not an active gang participant, even though the State
ordinarily has the burden of demonstrating active gang
participation by “clear and convincing evidence.”
Englebrecht, 88 Cal. App. 4th at 1256. No enunciated criteria
govern the determination who is or is not a gang member
even though, as discussed earlier, see supra Section
IV.B.2(a), membership is a shifting and sometimes nebulous
standard. Furthermore, there are no provisions requiring an
explanation of the basis for the conclusion that the individual
is a gang member, either before or at the hearing. So the
alleged gang member is left in a factual vacuum, to prove a
negative. Cf. Am.-Arab Anti-Discrimination Comm. v. Reno,
70 F.3d 1045, 1069 (1995) (quoting Joint Anti-Fascist
Refugee Comm. v. McGrath, 341 U.S. 123, 170 (1951)
(Frankfurter, J., concurring)) (“[F]airness can rarely be
obtained by secret, one-sided determination of facts decisive
of rights.”).
(ii) Orange relies on Colonia Chiques for the proposition
that Plaintiffs — as non-parties to the Superior Court case
once dismissed — could have moved under California Code
of Civil Procedure § 387 to intervene in that action on behalf
of OVC. See Colonia Chiques, 156 Cal. App. 4th at 35–37,
42. Intervention in the state case is an inadequate post-
deprivation remedy.
50 VASQUEZ V. RACKACUCKAS
OCDA unilaterally dismissed Plaintiffs from the state
case. The suggestion that Plaintiffs should have moved to
intervene in an action from which they had just been
dismissed has little merit. Having been dropped from the
litigation, the Plaintiffs had no obligation to come back a
second time to assert their interest in the matters at issue;
their interest was evident, but they were excluded from the
litigation precisely because of that. We stress once again, in
this connection, that the procedural due process problems
raised in this case are of Orange’s own creation. They stem
from Orange’s decision to thwart Plaintiffs’ efforts to use the
procedures available in the state court that — all parties agree
— were constitutionally sufficient.
Moreover, there is no indication that Plaintiffs could have
intervened as a matter of right. OCDA would undoubtedly
have opposed any intervention motion, as it had just
dismissed the Plaintiffs as unnecessary to the action. The
Superior Court could have denied an opposed intervention
motion. See Cal. Civ. Proc. Code § 387; City of Malibu v.
California Coastal Comm’n, 128 Cal. App. 4th 897, 902
(2005). It would have little choice but to do so with regard to
the class of unrepresented juveniles; those individuals
remained without a guardian ad litem, and the Superior Court
had already declined to appoint guardians for them. Cal. Civ.
Proc. Code § 372. As to the rest of the plaintiff class, the
contingent right to file an opposed motion to intervene,
subject to discretionary denial, is not an adequate assurance
of due process to meet constitutional standards.
(iii) A motion to modify or dissolve the Order is an
inadequate post-deprivation procedure because Plaintiffs take
no issue with the terms of the Order itself. Plaintiffs’ quarrel
is only with Orange’s decision, without any judicial or
VASQUEZ V. RACKACUCKAS 51
administrative proceeding, to subject Plaintiffs to the Order.
For the same reason, it is no answer to say that Plaintiffs
could appeal from the denial of a motion to modify or
dissolve the Order, or could appeal from the grant of the
Order. Their contention is unrelated to any action of the
Superior Court with regard to the Order.
Broderick Boys is not to the contrary. There, the court
held that “without having to admit membership in the gang,”
four men were “sufficiently aggrieved by” an anti-gang
injunction that they had standing to move to set aside the
injunction. 149 Cal. App. 4th at 1518. Broderick Boys
establishes that Plaintiffs could have challenged the terms of
the Order in state court, or, as in Broderick Boys, argued that
the Order in its entirety was void for lack of proper notice.
But nothing in Broderick Boys suggests that Plaintiffs could
have litigated in state court the question presented in their
federal action — namely, assuming the validity of the Order,
whether the Order could be enforced against them.
(iv) Finally, post-arrest criminal contempt proceedings
would not be adequate to provide “full relief” from the
deprivation of being subjected to the Order. See Mathews,
424 U.S. at 331.
In California, “[c]ontempt . . . may be punished in two
ways”: in a civil proceeding, for which the maximum penalty
is a fine and five days imprisonment, see Cal. Civ. Proc. Code
§§ 1209, 1218, or in a criminal misdemeanor proceeding, see
Cal. Penal Code §§ 166(a)(4), (10),24 for which the maximum
24
California Penal Code § 166(a)(4) criminalizes the “[w]illful
disobedience of the terms as written of any process or court order.”
Section 166(a)(10) criminalizes the “[w]illful disobedience of the terms
52 VASQUEZ V. RACKACUCKAS
penalty is six months imprisonment. See People v. Gonzalez,
12 Cal. 4th 804, 816 (1996). At trial, Orange testified to a
policy of prosecuting violations of the Order under the latter
provision, and of “arrest[ing], transport[ing,] and book[ing]
[any individual] alleged to have violated the Order and
hold[ing] them pending bond or arraignment.”
OCDA representatives also specified that OCDA has a
policy of seeking “increase[d] bail” for violations of the
Order, “to ensure that bail would be higher than it might
otherwise be for a misdemeanor offense.” A person charged
under the criminal contempt provision may spend up to thirty
days in jail between arraignment and trial under California’s
speedy trial statute. Cal. Penal Code § 1382(a)(3). Under
Orange’s policy for enforcing the Order, then, Plaintiffs can
expect to face considerable difficulties posting bail and will
likely be forced to spend up to a month in jail before
obtaining the opportunity to contest their gang membership
in a contempt proceeding.
As noted, the Order binds OVC’s “members, agents,
servants, employees,” or “persons acting under, in concert
with, for the benefit of, at the direction of, or in association
with” OVC. In that wording, the Order is not unlike many
abortion buffer zone or labor picketing injunctions. See, e.g.,
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 759 n.1
(1994) (order directed at anti-abortion organizations); In re
Berry, 68 Cal. 2d 137, 141–42 (1968) (anti-picketing
injunction). What is unique, however, is the combination of
Orange’s enforcement policy — including the avowed policy
of immediate arrest and a request for heightened bail — and
of an injunction that restrains the activities of a criminal street gang or any
of its members.”
VASQUEZ V. RACKACUCKAS 53
the breadth and nature of the Order. Again, the Order
proscribes a broad range of basic, daily activities by OVC’s
members, and it proscribes such conduct without regard to
whether the individual is engaged in that conduct in concert
with, as a member or agent of, or with the intent to further the
purposes of the gang.
In these respects, this case differs from other contexts in
which an injunction runs against an organization and its
members, and, we shall assume for present purposes,
unnamed members are accorded sufficient process through
the opportunity to defend criminal contempt accusations. The
abortion and labor cases, for example, involve injunctions
restricting a narrow range of conduct — e.g., demonstrating
in a certain location or with a certain object. Engaging in
those activities is likely to be highly correlated with whether
an individual is in fact a member of the enjoined
organization, which had engaged in similar activities. In
contrast, the Order prohibits an enormous range of quotidian
conduct that, on its face, is not indicative of an individual’s
gang membership, or any other connection to the enjoined
gang.
Moreover, the difference in the scope of the injunctions
in these various contexts is relevant because “[t]he more
important the interest” affected by state action, “and the
greater the effect of its impairment, the greater the procedural
safeguards the state must provide to satisfy due process.”
Haygood v. Younger, 769 F.2d 1350, 1355–56 (9th Cir.
1985). Further, the lack of an inherent correlation between
the enjoined activities and membership in the group covered
by the Order exacerbates the already significant risk of error
in identifying accurately the members of OVC.
54 VASQUEZ V. RACKACUCKAS
Under the particular circumstances of this case, then,
including the Order’s pervasive interference with Plaintiffs’
liberty interests and the lack of adequate pre-deprivation
procedural safeguards, post-arrest contempt proceedings are
insufficient to “cure . . . [the] unconstitutional deprivation of”
liberty, including jail time, that would occur before a criminal
contempt trial would be held. See Zimmerman, 255 F.3d at
737.
3. At the final stage of the Mathews inquiry, we consider
“the Government’s interest” “in providing (or not providing)
specific procedures,” “including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” See
Mathews, 424 U.S. at 335; Haygood, 769 F.2d at 1356. Here,
“the operative question is not whether [Orange] has a
significant interest in [combating gang violence] — no one
doubts that [they] do[] — but rather whether [they] ha[ve] a
significant interest in” failing to provide a pre-deprivation
process through which an individual can challenge Orange’s
allegations of his active gang membership. Humphries v.
Cnty. of L.A., 554 F.3d 1170, 1194 (9th Cir. 2008), rev’d on
other grounds, 131 S. Ct. 447 (2010).
As the district court noted, Orange presented no evidence
of “an administrative, fiscal or other substantial burden[] in
providing . . . pre-deprivation safeguards.” In fact, OCDA
Assistant District Attorney Anderson testified at trial that it
was “standard procedure” in the five other state court
proceedings in which OCDA previously sought anti-gang
injunctions to name each defendant individually in the initial
filing. Moreover, at the time OCDA chose to dismiss
Plaintiffs from the Superior Court proceedings, OCDA had
obtained preliminary injunctions against OVC as an entity,
VASQUEZ V. RACKACUCKAS 55
thereby satisfying any government interest in promptly
obtaining relief against OVC itself.
Additionally, the record indicates that at least two
jurisdictions in California — San Francisco and Oakland —
regularly provide some form of pre-deprivation process for
individuals in anti-gang injunction proceedings, rather than
simply seeking injunctions against the gang as an entity and
its unnamed members. We need not decide whether these
jurisdictions’ procedures are constitutionally required as a
matter of due process; we simply cite them as examples of
procedures, in addition to the procedures OCDA followed in
cases prior to this one, that cast further doubt on Orange’s
claimed administrative burden in providing pre-deprivation
protections of some kind.
There is no evidence in the record that further pre-
deprivation procedures would reduce the efficacy of the
injunction against OVC and its members. Orange’s expert
testified that he had “no opinion on whether providing a
hearing before subjecting somebody to an injunction would
make a gang injunction more or less effective.”25
In sum, the district court properly concluded that Orange
established no “administrative, fiscal or other substantial
25
Moreover, the governmental interests that have historically supported
the enforcement of injunctions against nonparties to the underlying
litigation do not exist here. See, e.g., Nat’l Spiritual Assembly of the
Bahá’ís of the U.S. of Am. Under the Hereditary Guardianship, Inc. v.
Nat’l Spiritual Assembly of the Bahá’ís of the U.S. of Am., Inc., 628 F.3d
837, 848–49 (7th Cir. 2010) (allowing enforcement of an injunction
against nonparties who “aid[] or abet[] an enjoined party in violating an
injunction” — or are “in ‘privity’ with[,]” “successors in interest to[,]” or
are “otherwise ‘legally identified’ with the enjoined party”).
56 VASQUEZ V. RACKACUCKAS
burden[] in providing” some procedure for Plaintiffs to
challenge Orange’s gang membership determination before
they were subjected to the terms of the Order. See Mathews,
424 U.S. at 335; Haygood, 769 F.2d at 1356.
4. All the Mathews factors, taken together, weigh
decisively in favor of Plaintiffs. The scope of the Order is
extraordinarily broad, interfering with a wide swath of
Plaintiffs’ protected liberty interests, including: family and
social relationships; educational and professional
opportunities; freedom of movement; and all manner of
participation in civic life. Given the fact-intensive nature of
assessing gang membership, Orange’s procedures posed an
unacceptably high risk of error. Additional procedural
safeguards would have been of considerable value. In light
of the significant private interests at stake, the proffered post-
deprivation remedies, to the extent they were even available,
were insufficient to provide Plaintiffs with full relief. Finally,
Orange has not established any governmental interest
justifying the failure to provide some measure of additional
procedural safeguards before subjecting Plaintiffs to the
Order. Given these considerations, the district court correctly
concluded that Orange violated Plaintiffs’ rights under the
Due Process Clause of the federal Constitution.
Orange raised no challenge to the district court’s entry of
an injunction other than to dispute the district court’s
application of the Mathews factors. We therefore affirm the
district court’s issuance of declaratory and injunctive relief in
Plaintiffs’ favor.26
26
OPD does not separately challenge Plaintiffs’ entitlement to an
injunction under the due process clause of the California Constitution —
which provides greater procedural due process rights for private parties
VASQUEZ V. RACKACUCKAS 57
V.
For the first time in their reply brief, Orange argues that
the district court injunction does not “describe in reasonable
detail . . . the act or acts restrained or required.” Because we
do not consider issues raised for the first time in reply briefs,
we deem this late-raised argument forfeited. See Eberle v.
City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).
We nonetheless provide some brief comments regarding
our interpretation of the relatively terse federal court
injunction, so as to guide the parties in any further
proceedings. The district court’s injunction states simply that
Orange is “barr[ed]” “from enforcing the Order against the
Plaintiffs,” without providing any further indication of what
actions, if any, Orange may take to enforce the Order while
remaining in compliance with the federal injunction.
At oral argument in this court, Plaintiffs represented that
under their interpretation of the federal injunction, Orange
remains free to take any of the following actions without
facing liability for contempt: First, Orange may enforce the
Order against any alleged members of OVC who are not
than does the federal Constitution. See Today’s Fresh Start, Inc. v. L.A.
Cnty. Office of Educ., 57 Cal. 4th 197 (2013). We therefore affirm the
district court’s grant of equitable relief against OPD on Plaintiffs’ state
law claim as well.
OPD does dispute the district court’s separate determination that OPD
conspired with OCDA to violate Plaintiffs’ constitutional rights. We need
not and do not reach this argument. The district court also concluded that
OPD was “liable individually” for violating Plaintiffs’ due process rights
under the federal and California constitutions, and OPD does not contest
that independent basis for its liability.
58 VASQUEZ V. RACKACUCKAS
members of the Plaintiff class. Second, Orange is free to
return to the Superior Court to move to add any members of
the plaintiff class as named parties to the existing Order. If
Orange is successful in convincing the Superior Court by
“clear and convincing evidence” that a Plaintiff is an active
gang member, see Englebrecht, 88 Cal. App. 4th at 1256, any
resulting state-court order would supersede the current Order,
and the federal injunction would not bar enforcement of such
a new order. Third, Orange could propose to the district court
a plan for modifying the injunction and allowing enforcement
of the Order against Plaintiffs, contingent on affording
additional pre-enforcement procedural protections, such as a
robust, neutral administrative process. The district court
could then determine whether the proposed procedure cures
the current constitutional deficiencies. See, e.g., Brown v.
Plata, 131 S. Ct. 1910, 1946 (2011) (noting that “[t]he power
of a court of equity to modify a decree of injunctive relief is
long-established, broad, and flexible”).
Orange has not disputed Plaintiffs’ reasonable
interpretation of the federal injunction. We agree with the
proffered interpretation, and with the understanding that if
Orange proposes a procedure constitutionally sufficient to
determine which members of the Plaintiff class are members
of OVC against whom the Order may be enforced, the district
court will consider modifying the injunction.27
27
If an appropriate motion is made, it may be useful for the district court
to set up a process for the parties to propose and comment on possible
alternative procedures. See, e.g., Armstrong v. Davis, 275 F.3d 849, 883
(9th Cir. 2001) (Berzon, J., concurring) (describing the district court’s
issuance of “an umbrella injunction,” followed by district court oversight
of the parties’ “directed negotiation process” aimed at “develop[ing]
specific policies and procedures” for complying with the broad
injunction).
VASQUEZ V. RACKACUCKAS 59
VI.
Throughout the extensive district court proceedings,
including litigation of a motion for a preliminary injunction,
cross-motions for summary judgment, and an eleven-day
bench trial, counsel for Plaintiffs incurred more than 5900
hours in billable hours. As prevailing parties under 42 U.S.C.
§ 1988, Plaintiffs ultimately obtained an award of $3,237,249
in attorney’s fees. On appeal, Orange challenges the fee
award in only a single respect: it asserts error in the district
court’s finding that “no special circumstances” made a fee
award “unjust.” Orange asserts as special circumstances both
its “good faith,” and its powerlessness to “issue” the Order
and to “ignore” it once “signed.” We review the district
court’s award of attorney’s fees for abuse of discretion.
Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1124 (9th
Cir. 2008).
The “special circumstances” exception to an award of
attorney’s fees to a prevailing party under 42 U.S.C. § 1988“applies only in unusual cases.” Id. at 1126. “‘[A] court’s
discretion to deny fees under § 1988 is very narrow and . . .
fee awards should be the rule rather than the exception.’”
Barnard v. Theobald, 721 F.3d 1069, 1077 (9th Cir. 2013)
(quoting Mendez, 540 F.3d at 1126). “The defendant has the
burden of showing [that] special circumstances warrant a
denial of fees, and the defendant’s showing must be a strong
one.” Herrington v. Cnty. of Sonoma, 883 F.2d 739, 744 (9th
Cir. 1989) (internal citations omitted). To determine whether
such circumstances exist, we evaluate “whether (1) allowing
attorney’s fees would further the purposes of § 1988, and (2)
whether the balance of equities favors or disfavors the denial
of fees.” Mendez, 540 F.3d at 1126 (internal quotation marks
omitted).
60 VASQUEZ V. RACKACUCKAS
The first factor is clearly satisfied. The fee award
“further[ed] the statutory purpose of § 1988[, namely] to
enable private citizens who could otherwise not afford to
vindicate their civil rights to do so.” Herrington, 883 F.2d at
743 (internal quotation marks omitted). Given the lack of
precedents regarding the due process protections required in
circumstances such as these, there was no “strong likelihood
of success on the merits . . . at the outset of the litigation.”
See Mendez, 540 F.3d at 1126. Nor, given the fact that
Plaintiffs sought only equitable relief, was there “a strong
likelihood of a substantial judgment” from which Plaintiffs’
counsel could anticipate obtaining compensation. See id.With regard to the “balance of equities” factor, we find no
support in our caselaw for the proposition that Orange’s
“good faith” and its powerlessness to “issue” or “ignore” the
Order qualify as special circumstances precluding the few
award.
First, a “defendant’s good faith belief that it was
following the law does not,” at least “by itself,” “qualify as a
‘special circumstance.’” See Saint John’s Organic Farm v.
Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1064
(9th Cir. 2009) (quoting Teitelbaum v. Sorenson, 648 F.2d
1248, 1250 (9th Cir. 1981) (per curiam)).
Second, Orange’s contention that it “obvious[ly] . . . had
no power to issue the [Order] itself, and [it] certainly had no
discretion to ignore the [Order] once it was signed” rests on
the same erroneous interpretation of the Order we have
already rejected. The Order did not, by its terms, require
Orange to enforce it against the Plaintiffs or anyone else,
much less require them to do so without the procedural
protections due under the federal and California
VASQUEZ V. RACKACUCKAS 61
constitutions.28 Instead, it was Orange that determined to cut
short Plaintiffs’ access to a fully adequate adjudicatory forum
by dismissing them from the state court lawsuit once they
sought actively to present a defense.
CONCLUSION
We are mindful of the great importance of controlling the
proliferation of criminal gangs and preventing illegal activity
by gang members. Anti-gang injunctions such as the one at
issue here broadly restrict the covered individuals’ legal daily
activities in a prophylactic effort to prevent illegal activities
from taking place. There is no challenge before us as to the
propriety of that effort as applied to properly covered
individuals, and we express no view whatsoever on the
substantive terms of this or any other anti-gang injunction.
But the breadth of the injunction, given its prophylactic
character, does give rise to unusually strong liberty interests
on the part of those putatively covered.
In light of those interests, some adequate process to
determine membership in the covered class is constitutionally
required. Had Orange not dismissed the Plaintiffs from the
state court lawsuit, that process would have been provided.
28
Because Defendant Rackauckas is not subject to equitable remedies
for violations of state law in this case, see supra Section III, it is possible
that there is some difference in the amount of the fee award (which
included a state-law multiplier) that can be applied to him. We leave it to
the district court in the first instance to determine whether there is in fact
some portion of the fee award for which Defendant Rackauckas is not
responsible.
62 VASQUEZ V. RACKACUCKAS
Because Orange engineered that dismissal, there cannot be
enforcement against these plaintiffs without some alternative
adequate process. That is all we decide today, nothing more.
Defendants shall bear the costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
Exhibit A
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VASQUEZ V. RACKACUCKAS 63
TALLMAN, Circuit Judge, concurring:
I concur in the opinion but write separately to more
thoroughly describe the backdrop of the anti-gang injunction
at issue and to reiterate why today’s holding is confined to the
unique procedural and factual record in this case.
My colleagues insist that they are “mindful of the great
importance of controlling the proliferation of criminal gangs
and preventing illegal activity by gang members.” Maj. at 61.
While I do not doubt their sincerity, they devote scant
attention in an otherwise comprehensive opinion to
explaining why the anti-gang injunction at issue was so vital
to City of Orange residents and law enforcement. I write
separately to fill that void.
The Orange Varrio Cypress street gang (OVC) is one of
the most violent gangs in the City of Orange, California, a
suburb of Los Angeles.1 There is no serious dispute that the
enterprise engages in on-going criminal activity involving
attempted murders, assaults with deadly weapons, terrorist
threats, intimidation of victims and witnesses, illegal
possession of firearms, robberies, burglaries, thefts, drug
sales, and acts of felony vandalism.
1
In providing this overview of the OVC’s activities, I draw primarily
from the February 10, 2009, expert declaration submitted by Detective J.
Nigro of the Orange Police Department in support of the anti-gang
injunction. At the time of his declaration, Detective Nigro had been a
sworn peace officer for 13 years, had served in the Orange Police
Department’s gang unit for six years, had investigated hundreds of gang-
related cases, and had interviewed over 1,000 gang participants regarding
their gangs, graffiti, tattoos, crimes, families, and gang culture.
64 VASQUEZ V. RACKACUCKAS
These criminal activities frequently spill over into the
community, hurting innocent people. OVC members have
robbed and assaulted Chapman University students, beaten up
a 13-year-old boy for whistling on his way home from school,
and led police on high-speed chases through residential areas.
Gang members have stabbed people in the head and back,
shot others in the torso and neck, attacked people with bats
and pipes, and hit, kicked, and threatened to kill female
victims. The gang distributes drugs, using its members to
both peddle and stand as lookouts to protect narcotic activity.
They also deface community property by painting gang
graffiti on buildings, sidewalks, doors, walls, and fences, and
etching it into benches, street signs, and glass windows.
Even schools are not immune to the OVC’s violence. The
local high school unwillingly plays host to dozens of fights
each year between members of the OVC and rival gangs.
Still more concerning is that the OVC draws its membership
from the pool of pupils attending the same high school, as
well as a number of middle schools, to fill its ranks.
Unsurprisingly, many local residents have voiced their
concern with the OVC to local law enforcement officers,
demanding action to restore law and order to a city whose
residents have good reason to fear the OVC’s activities.
Many of the complainants live in fear of OVC gang members,
and are cautious about using their front yards or even being
outside after dark. Still more complain about vandalism,
gang graffiti, robberies, and assaults that take place where
they live and work. Many citizens are also reluctant to
cooperate with police for understandable fear of retaliation,
which undoubtedly hinders police efforts to effectively curb
gang violence through traditional criminal prosecution.
VASQUEZ V. RACKACUCKAS 65
This is not to say that the OVC is the largest or most
dangerous gang in California, or even in Orange County. But
this case is emblematic of the legislature’s declaration that
California “is in a state of crisis . . . caused by violent street
gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their
neighborhoods.” Cal. Penal Code § 186.21. It also provides
much-needed context for why the Orange County District
Attorney’s Office and the Orange Police Department
(collectively, Orange) sought and obtained a tough superior
court injunction that, as my colleagues put it, “broadly
restrict[ed] the covered individuals’ legal daily activities in a
prophylactic effort to prevent illegal activities from taking
place.” Maj. at 61.
In conducting our procedural due process analysis, we
must take into account the government’s and the public’s
interest. Mathews v. Eldridge, 424 U.S. 319, 335 (1976)
(instructing us to consider “the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail”). Orange undoubtedly
has a vital interest in protecting its community by suppressing
gang violence. But as the court observes correctly, our
inquiry under this prong in Mathews is not whether Orange
has a significant interest in combating gang violence, but
rather whether it has a significant interest in failing to provide
a pre-deprivation process to challenge Orange’s gang
membership allegations.
In my view, this inquiry cannot be severed from Orange’s
unsettling and indefensible decision to voluntarily dismiss
every individual who tried to challenge the injunction in the
state court proceeding, and then serve those same dismissed
66 VASQUEZ V. RACKACUCKAS
individuals with the injunction it obtained uncontested. By its
own admission, Orange adopted this strategy in part because
of Plaintiffs-Appellees’ “aggressive effort[s]” to “fight” the
injunction. Those efforts included several motions and
supporting declarations opposing the entry of a preliminary
injunction, written discovery requests, and a schedule of 20
depositions. In effect, the district attorney concluded it was
costing too much to litigate against well-financed defense
lawyers. Ironically, the taxpayers of Orange County now get
to pick up a multi-million dollar tab for the litigation that
ensued from the district attorney’s bad tactical decision. The
type of “aggressive effort[s]” that Orange sought to sidestep
come with the territory. If Orange can rely on our judicial
system to pursue its injunction, so too can those being
targeted by the injunction who seek to resist it.
I thus share my colleagues’ views that “the procedural
due process problems raised in this case are of Orange’s own
creation” and that “[t]hey stem from Orange’s decision to
thwart Plaintiffs’ efforts to use the procedures available in the
state court[.]” Maj. at 50. Indeed, Orange’s dismiss-and-
serve strategy is the linchpin to its procedural due process
violation because today’s opinion applies only to those
individuals whom Orange dismissed and later served.
We need not hold, and I do not read today’s opinion as
holding, that the post-deprivation procedural remedies that
Orange proffered are constitutionally inadequate as to any
other class of individuals. Orange may well have a stronger
argument under Mathews’ governmental and public interest
prong if today’s challenge came from individuals who never
appeared in the state court proceeding to contest the
injunction and who are actually gang members. But this is
not the challenge before us. And to stretch today’s holding to
VASQUEZ V. RACKACUCKAS 67
individuals who never challenged the injunction in the state
court action—whether named in the lawsuit or not—would
effectively force Orange to “bring a new action for injunctive
relief against each new member” of the OVC. See People ex
rel. Totten v. Colonia Chiques, 156 Cal. App. 4th 31, 41
(2007). Such a rule would dangerously impede law
enforcement efforts to curb unlawful gang activity where
“[gang] membership is continually changing.” See id.Importantly, today’s holding does not reach so far.
In sum, the ideal procedural protection to avoid being
inadvertently included in a proposed injunction will often be
to seek relief from a neutral judge before the injunction is
entered. Orange’s dismiss-and-serve tactic effectively
stripped Plaintiffs-Appellees of that opportunity. That
strategic maneuver—when combined with the post-
deprivation procedural protections that Orange did
provide—is what constituted a procedural due process
violation of the United States Constitution.
With those observations, I concur in the opinion.