OGDEN -- The ACLU of Utah has formally joined the fray over the proposed Ogden Trece gang injunction, filing motions Thursday in 2nd District Court condemning it.
In responding to the opposition to his gang injunction, Weber County Attorney Dee Smith said it was justified against Trece.
"We will be filing a motion against (the ACLU bid to enter the case)," Smith said. "We feel it is not a proper motion."
The Salt Lake City-based ACLU chapter sent a letter to 2nd District Judge Ernie Jones shortly after the massive injunction was filed Aug. 20. Chapter members were joined in their concerns over its constitutionality by the Utah Association of Criminal Defense Attorneys, which sent a similar letter shortly thereafter.
The injunction, a first for Utah, would set a wide array of restrictions on Ogden's oldest street gang, including a ban on associating publicly and being "in the presence" of guns, drugs and alcohol, plus it would impose a curfew.
But the ACLU filed formal papers Thursday seeking permission to argue against the injunction under "amicus curiae" or friend of the court doctrines. The ACLU was joined in the 43-page motion by "cooperating attorneys" from the Salt Lake City law firm of Parr, Brown, Gee & Loveless.
They call the injunction heavy-handed and constitutionally deficient, and call gang injunctions in general ineffective and prone to racial profiling.
The motion particularly challenges the injunction for allowing police to define gang membership "with no judicial oversight," according to an ACLU news release.
"Any resident of Ogden could be labeled a gang member," writes Darcy Goddard, ACLU legal director.
Smith said he had not been served with the amicus motion but bristled at the criticism of how gang members are identified.
"If they would bother to actually read the documents that have been filed with the court, they would see that federal regulations guide the process of admitting someone to the gang database," Smith said.
Under federal law, the database maintained by the Ogden Metro Gang Unit, co-authors of the injunction, is regularly reviewed and if a documented gang member has no contact with police for five years, their name must be removed, he said.
"They can't be added to the database because they're wearing a jersey with the number 13 (for Trece) on it," Smith said. "This isn't something we've just come up with recently ... They take pride in their criminal acts."
The gang injunction will be aired at a hearing Tuesday before Judge Jones. Enforcement could begin soon after the hearing.
At an Aug. 31 hearing on the injunction, Jones said the court would accept but not consider amicus briefs, relying on the interpretation of the county attorney's office that amicus briefs are allowed only at the appellate level. That point will likely be argued at Tuesday's hearing.
Goddard's news release said that once the gang label is placed on an Ogdenite, "he or she can be stripped of all sorts of fundamental liberties, ranging from the freedoms of association and speech to the right to possess a lawful firearm or even a felt tip marker."
She was referring to the graffiti provisions in the injunction. The ACLU motion itself reads, "The prevention of unlawful graffiti and defacement of public property is unquestionably a legitimate government interest. But the County's proposed injunction goes beyond merely prohibiting graffiti, in that it would criminalize the mere possession of 'any spray paint container, felt tip marker, or other graffiti tools.'
"This provision is not even limited to possession of these objects in public, and so would prevent individuals from picking up a felt tip marker to draw in school or in their homes.
"The provision also contains no intent requirement that would limit the prohibition to possession only with the intent to commit vandalism."