OGDEN -- The Utah Supreme Court has opted against weighing in on Ogden's fledgling Trece injunction.
But attorneys on both sides expect the high court will eventually have to sort out the issues on the injunction that has for two months now hindered the movements of Ogden's oldest street gang.
The injunction bans Treces from associating in public, hanging around guns, drugs and alcohol or staying out past 11 p.m. The injunction is a first for Utah.
"They know they're going to be hearing it again," Mike Boyle, representing several gang members, said Thursday of the justices' decision not to hear the current appeal of the injunction. "They're just saying for now the issues aren't ripe enough for them to take up the case yet."
The court's sparse, two-sentence decision relayed to the lawyers Wednesday returns to Ogden 2nd District Judge Ernie Jones the constitutional challenges Trece lawyers have been raising.
Boyle and two other defense attorneys assisted by the ACLU of Utah have argued before Jones that the injunction circumvents First Amendment rights of free assembly, is "vague and overbroad," heavy-handed and constitutionally deficient, citing its bans on felt-tip pens and spray paint as graffiti tools, for one example.
They also have challenged the definitions of gang members as arbitrary. Two of eight factors, such as being named by a confidential source or found in the company of documented gang members by police on three occasions, can bring listing in the gang database.
Weber County Attorney Dee Smith, who wrote the 331-page injunction along with the Ogden-Metro Gang Unit, also said Thursday the injunction is destined to return to the Utah Supreme Court.
"They just declined to take up the appeal, they have not ruled on its merits," Smith said. "At some point it's more than likely the Supreme Court will hear this case again. We anticipate it and we welcome any judicial scrutiny that will follow the injunction."
Boyle said Jones would have to reverse himself on his Sept. 27 decision signing the injunction into law, which is unlikely, so the coming hearings before Jones next month are largely to create a record for the Supreme Court to rule on.
Smith agreed, saying, "It makes more sense to hear the issues in district court first and create a complete record for the Supreme Court to review."
After hearing oral arguments Oct. 25, the high court seven days later also rejected a motion asking for a stay of the injunction while it considered the Trece appeal.
Several dozen arrests have been made on violations of the ordinance, most for curfew and public assembly breaches.
Virtually all have been filed in Ogden's Justice Court, where misdemeanor violations are heard. Violating the injunction is only a class B misdemeanor, bringing six months in jail at most.
But several arrests incident to the injunction have been made where Treces have been found in possession of illegal weapons or drugs. Those felony cases have been filed in 2nd District Court, where prison terms are a possibility.
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