SALT LAKE CITY -- If the Utah Supreme Court's questions are any indication, the justices are very concerned that members of Ogden Trece received proper notice of the nuisance injunction now in effect to shut down the city's oldest street gang.
Virtually all the questions the high court peppered the attorneys with during Monday's 45-minute hearing dealt with whether gang members knew of and had a chance to respond to the injunction.
With gang injunctions being a tool used in only a few other states, the Ogden Trece gang injunction is historic, a first for Utah.
Since Sept. 27, when it went into effect, it bans Treces from associating in public, being around guns, drugs and alcohol, and staying out past 11 p.m. The 331-page injunction cites two Trece members sent to prison for murder in the past two years as well as multiple robberies, assaults, drug dealing and an auto theft ring over the past three years, leaving Ogdenites feeling unsafe on the streets.
Attorney David Reymann cited many problems with authorities providing notice, among them being that a legal notice printed in the local newspaper made no mention of the fact Treces had a right to respond to the injunction in court.
"Only the most sophisticated reader would even find it, buried in the back pages," said Reymann, of the Salt Lake law firm of Parr, Brown, Gee and Loveless, which has joined with the ACLU of Utah and two Ogden defense attorneys in fighting the injunction.
Chief Justice Christine Durham recused herself from the hearing, because she has a relative working at Parr Brown. She was replaced Monday by Judge Michele Christiansen of the Utah Court of Appeals.
"Given the extensive publicity in the media, I would suppose there's little doubt actual notice has reached the gang," Justice Tom Lee said, asking Reymann, "Isn't that reasonably likely? That notice has been made?"
But Reymann said such editorial content does not meet notice requirements under the law "and runs afoul of due process rights."
Weber County Attorney Dee Smith, whose office co-authored the injunction with the Ogden Metro Gang Unit, said Trece's leadership couldn't be served with the injunction because members protect their identity, and it's subject to change "whenever someone gets sent to prison."
"So any member of the gang is an agent of the gang?" Justice Ron Nehring asked Smith. "If they choose to participate in gang activity and advance the gang's interests," Smith responded.
The justices took the arguments under advisement. Both Smith and Reymann said after the hearing that they are hopeful of a decision within two weeks on the defense request for a stay of the injunction while the constitutional questions regarding it are argued in future hearings.
On Sept. 27, Ogden 2nd District Judge Ernie Jones ordered the injunction into law after about a month of arguments among the same lawyers on largely the same issues before the high court now.
Enforcement has been slow, with only a handful of arrests to date as officers are working to serve the hundreds of Ogden Trece members with the injunction personally, a prerequisite to enforcing it.
Ogden lawyers Mike Boyle and Mike Studebaker, hired by Trece members, and joined by the ACLU's Utah chapter and Reymann's firm, attacked the injunction as constitutionally flawed while it was still being argued before Judge Jones. The ACLU's Utah chapter was denied its request by Jones to argue its 43-page "amicus curiae," or "friend of the court" brief, before him, now one of the issues before the Utah Supreme Court. The Utah Association of Criminal Defense Lawyers is also among those hoping to argue against the injunction as a "friend of the court."
All have called the injunction heavy-handed and constitutionally deficient, "vague and overbroad," because it includes as grounds for arrest possession of felt-tip pens and spray paint as graffiti tools.
They also have challenged the gang unit's database as arbitrary. Two of eight factors, such as being named a gang member 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, according to testimony.
Trece was formed in 1974 under the name Ogden Knights, according to the 331-page injunction, which includes more than 100 pages of photographs of gang tattoos, graffiti, hand signs and clothing and accuses Trece of everything from graffiti to murder.
The name lasted about a year, dropped in favor of the tag "Centro City Locos," read the court papers, and Ogden Trece was adopted as the gang name in 1988. Centro City Locos is making something of a comeback, CCL turning up in gang tattoos and graffiti, as well as derivations of O13, trece being Spanish for the number 13.