There is a troubling case out of Harris County, Texas where a court has issued an order barring 16 individuals from a Houston neighborhood on the ground that prosecutors alleged that they are gang members up to no good. However, this was a civil proceeding where the 16 individuals were neither given representation nor were present. The precedent established by such a public nuisance ruling is chilling if prosecutors can bar citizens from neighborhoods based on associations or future conduct.
Prosecutors told the court that the 16 individuals are members of various gangs, including the Bloods, Crips and Most Wanted gangs from entering the area. They have now been declared human public nuisances by the Texas court and can now be enjoined from being in the area.
Laura Cahill, senior assistant county attorney, insists that “This is a way to clean up certain areas where there has been a lot of gang activity.” It is also a wonderful tool for more authoritarian designs if people can now be declared akin to pollution as a public nuisance. What prevents other neighborhoods then banning the same or other individuals? Presumably, other neighbors will not want to take this curious form of a negative externality from nearby neighborhoods.
While five police officers testified, the decision was not based on the criminal standard of proof of a crime: beyond a reasonable doubt. Moreover, the individuals were not afforded representation and did not appear. Notably, the prosecutors wanted to ban 28 individuals but could only find 16 to serve.
Now, any of these individuals who are found in the neighborhood can face a year in jail. These orders, in my view, violate core constitutional guarantees and present a serious threat to civil liberties. If successful, it would invite the creation list of persona non grata individuals barred from travel within cities or even states.
What do you think?
Source: ABC and Live Sciences
Those who follow the evolution of the type of thinking the Texas Judge exhibited know where this could be headed.
A veteran who wrote anti-government posts on Facebook evidently spawned an FBI probe into a “gang of veterans” who were not happy about the direction the government was going.
That veteran was put in a mental hospital as retaliation.
But when a civil rights group came to his defense, a judge ordered him released:
(Freedom To Associate With Rad Vets). It is not unconstitutional for veterans to be extremists and associate together to express political views and ways to get the government back on the constitutional track.
As a matter of fact, it is arguably the best way for them to deal with the problem.
John,
Yes. Did you hear about the Jane Clift case?
http://www.dailymail.co.uk/news/article-1195399/Woman-branded-potentially-violent-council-complaining-damaged-flowerbed.html
“Jane Clift saw it as her public duty to report a drunk she saw trampling flowers in a park.
But her efforts led to a surreal nightmare in which she was branded potentially violent and put on a council blacklist with thugs and sex attackers.
Her details were circulated to an extraordinary range of public and private bodies, including doctors, dentists, opticians, libraries, contraceptive clinics, schools and nurseries. Their staff were advised not to see her alone.
The 43-year-old former care worker was forced to withdraw an application to become a foster parent and, eventually, to leave the town where she had lived for ten years.
Now, after a bitter four-year legal battle with Slough Council, the stain on her character has finally been removed.”
Woman labelled violent by Slough borough council wins damages
http://www.guardian.co.uk/uk/2009/jun/24/slough-jane-clift-libel-damages
Seems like the US is importing the concept of Anti-Social Behaviour Orders from the UK?
I remember when I first heard of ASBOs, the prevalent commentary was “they’re somewhat troubling, but of course they’d never pass constitutional muster in America.”
Apparently we’re finally catching up?
Washington’s supreme court ruled a similar type of action was unconstitutional on a county level. Essentially that the state overly restricted the defendant, convicted of Child Molestation in the First degree, by banning him from Cowlitz County.
State v. Sims, 168 Wn.2d 1010, 227 P.3d 852 (2010)
But the question here is whether a neighborhood is reasonable. It is a regular event in this state for persons enjoined from contacting others, either via a protection order, anti-harassment order, or no contact order from being within 100 or so feet from the petitioner’s residence, place of employement or school. The courts have held this to be reasonable on a constitutional basis.
Likewise here a property owner can serve another person who is not a co-owner or co-tenant with a No Trespass notice banning the person from entering the property for any reason or none at all. But this order does not apply to streets and sidewalks adjacent to the property.
It would be unreasonable for the state to have a regular practice of having banishment lists where a hodgepodge of geographic areas become subject to banishments on an individual basis. It would be as difficult to manage as is the case with individually tailored protection orders levied on individuals where everything is different and a mini investigation has to happen to see if a violation of the order was performed. If this practice becomes regular for banning certain individuals from certain areas it is likely that individual will eventually have more areas and the work for both the state and the individual grows greatly.
California, in practice, has a defacto banishment program. It was a frequent event when I worked the road to run across persons who had felony warrants out of California that were only extraditable from within California. Essentially what happened with this was those persons fled the state knowing they would be put in jail if they were contacted by the police in CA so they left never to return. They could not be extradited from another state so they stayed out of state.
The gated community is the proper response, not the gated constitution.
The gang-bangers were served with notice and had the opportunity to participate in the proceedings. That THEY chose not to avail themselves of that opportunity is not a violation of due process rights or other civil liberties at all. It happens all the time to people of all colors and ethnic backgrounds. When the defendant in a civil case doesn’t participate, a default judgement is entered. It’s been going on untold years. The only thing new here is that some whiny liberal blogger wants to draw attention to himself.
These orders, in my view, violate core constitutional guarantees and present a serious threat to civil liberties. If successful, it would invite the creation list of persona non grata individuals barred from travel within cities or even states.
What do you think? -Jonathan Turley
As Dredd said….”spot on”.
I do hope that a good constitutional lawyer will step in to help them appeal this travesty.
The Bureau of Prisons has allegedly labeled former CIA agent, John Kiriakou a “threat to public safety.”
http://dissenter.firedoglake.com/2013/05/29/imprisoned-cia-torture-whistleblower-john-kiriakou-pens-letter-from-loretto/
“Former CIA agent John Kiriakou, who blew the whistle on the US government’s use of torture under the Bush administration, is currently serving a 30 month sentence at the Federal Correctional Institution in Loretto, Pennsylvania. Below is a letter he recently sent us detailing his life in prison.
(The situation is so much worse than many realize. People are arbitrarily (without probable cause) being placed on community lists. When the truth eventually sees the light of day, it’ll be a bad time for this country.)
This cannot be allowed to stand. The multiple abuse of constitutional protections is stunning.
Maybe all you caring people will invite these poor young men to live in your neighborhood. I didn’t think so. I understand the chilling effect of a ruling like this. However, I also understand the fear of the good people who have to live w/ these predators. The hand wringers are only 1 for 2 in this complicated issue.
Can we use this type of law to bar some politicians in Washington, DC?
If I could find another job, or could afford it, I’d move out of Texas in a flat second. This is one of the myriads of reasons why.
These orders, in my view, violate core constitutional guarantees and present a serious threat to civil liberties. If successful, it would invite the creation list of persona non grata individuals barred from travel within cities or even states.
What do you think?
Sounds spot on.
Texas has developed its own version of “The Man Without a Country”.
While this kind of “creative” justice is wrong, the potential for expansion is even more frightening.
“These orders, in my view, violate core constitutional guarantees and present a serious threat to civil liberties. If successful, it would invite the creation list of persona non grata individuals barred from travel within cities or even states.”
JT,
I think you couldn’t have put it better. This is an unbelievable violation of due process and the Constitution, on given more believability that it took place in Texas. The implications of it are far reaching as far as free speech and protests of any kind. I presume of course that almost all of the 16 individuals are people of color. However, the precedent is such that those White citizens approving of this, may well find themselves included in such a group in the future.
I have no problem with this IF they are convicted felons. Absent that, it is way out of bounds. During the anti-war movement in Houston, we had people arrested for handing out anti-war leaflets. This is simply another similar kind of ruling and should be overturned. I have no problem with neighbors going out and confronting gang bangers if they are on their property and then calling the cops, but in public areas, this is outrageous.
Wow! The Minority Report in action. I never thought I’d see it in action, but leave it to Texas to pioneer and implement it.
So we have the societies of the approved list…. Mary Astor would certainly have been extremely something….
This is worse than the program they have in some places in parts of California, where suspected gang members can’t talk to other suspected gang members, even their own family members who happen to live on the same street as them.