*1 in key question assessing The whether Manuel Vasquez; Miguel Lara; Bernal court abused its discretion con- the district Bastida; Randy Bastida, Gabriel cerning holding evidentiary hearing an is Plaintiffs-Appellees, hearing produce a “would whether such v. probative” more or more evidence reliable Gustafson, Police, Robert Chief regard to actu- with Stewart’s assertion of Orange Department, Police his offi- in than al innocence the declarations before capacity, Defendant-Appellant, cial the district court district. v. John- Griffin and (9th son, Cir.2003). 956, 350 F.3d Here, would, by there no that it doubt Tony Rackauckas, Orange County enabling the court to assess the basis of Attorney, District in his official statements; probe the affiants’ the reasons capacity, Defendant. forward; delay coming for their and Vasquez; Miguel Lara; Manuel Bernal explore bearing other factors on how rea- Bastida; Randy Bastida, Gabriel jurors likely perceive sonable are Plaintiffs-Appellees, reliability overall of various witnesses’ tes- timony. The district court’s dismissal of v. claim in Schlup
Stewart’s absence of such Tony Rackauckas, Orange County hearing was an abuse of discretion. Attorney, District in his official capacity, Defendant-Appellant, Conclusion and reasons, foregoing For the I would re- Gustafson, Police, Robert Chief of verse the district court’s dismissal on Orange or, Department, alternative, Police grounds, timeliness in the his capacity, evidentiary hearing remand for an official Defendant. on claim. Schlup Stewart’s Neither of those Vasquez; Miguel Lara; Manuel Bernal dispositions would resolve whether Stew- Bastida; Randy Bastida, Gabriel petition presents cog- art’s federal claims Plaintiffs-Appellees, § I express nizable under and no v. opinion petition. as to the merits of his Gustafson, Police,
Robert Chief Orange Department, Police in his offi- capacity, Defendant-Appellant, cial Tony Rackauckas, County Orange VASQUEZ; Miguel Manuel Bernal Attorney, District in his official Lara; Bastida; Randy Gabriel capacity, Dеfendant. Bastida, Plaintiffs-Appellees, 11-55795, 11-55876, Nos. 11-56126, 11-56166. Tony RACKAUCKAS, Orange County Appeals, United States Court of Attorney, District in his official Ninth Circuit. capacity, Defendant-Appellant, Argued April and Submitted 2013. Filed Nov. 2013. Gustafson, Police, Robert Chief of Orange Department, Police his capacity,
official Defendant. *4 Herrera, Attorney; City
Dennis J. Alex Tse, Attorney, Neighborhood G. Chief Division; Safety Resident and Jana J. Clark, Deputy City Attorney, San Francis- co, CA, City for Amicus Curiae Coun- ty Francisco. of San Trutanieh, City Attorney; A. Carmen Molidor, Chief, Mary Deputy Clare Crimi- Branch; Litigation nal Anne Special & C. City Attorney; Kelly Tremblay, Assistant Kim, City At- Huynh Deputy and Jeanne CA, torneys, Angeles, Los for Amicus Cu- Angeles City Attorney’s riae Los Office. Sloan, Matthew Matthew Donald Um- Lincoln, hofer, Angeles, and Christina Los *5 CA, Orange County for Amici Pub- Curiae Defender, County Angeles lic Los Public Defender, Attorneys for California Crimi- Justice, nal and Public Defend- California ers Association. BERZON,
Before: MARSHA S. TALLMAN, MILAN RICHARD C. and SMITH, JR., Judges. D. Circuit (argued), Frank Harrell Norman J. S. BERZON; Opinion by Judge Watkins, Culp, Lynberg D. & and Melissa by Judge TALLMAN. Concurrence Watkins, CA, Defendant-Ap- Orange, for pellant Tony Rackauckas. OPINION
Wayne
(argued), Senior
W. Winthers
BERZON,
Judge:
Circuit
Attorney; and David A. De
City
Assistant
1987,
prosecu
at least
California
Since
CA, for De-
Berry, City Attorney, Orange,
brought public nuisance actions
tors have
fendant-Appellant Robert Gustafson.
of
to curtail the activities
state court
Mickle
gangs.
Matthew
Werde
Bibring (argued) and Belinda Es-
street
See
Peter
Note,
Helzer,
gar,
Enjoining
of
Constitution:
Foundation
cobosa
ACLU
California,
Ana, CA;
Nuisance Abatement
Jo- The Use
Public
Santa
Southern
of
Gangs,
Street
Ybarra,
Injunctions Against
Urban
Kreilkamp,
S.
seph J.
Jacob
(1999).
409,
scope
The
Smolowe,
L.Rev.
Munger,
D.
Tolies & Ol-
Stan.
Laura
According
CA,
broad.
son,
Plaintiffs-Appel-
of this
has been
Angeles,
Los
for
effort
City Attor-
Angeles
amicus curiae Los
lees.
Office,
ney’s
City,
example,
purpose
for
has
commission”
various
186.22a(a).
offenses,
injunctions
§
criminal
forty-four
against
civil
see id.
obtained
Supreme
The
past
in the
two
California
Court has held
seventy-two
gangs
street
that the
injunctions
provision
forbid
STEP Act’s nuisance
Typically,
decades.
“remed[y]
not the exclusive
enjoined gang
engag-
members
from
to abate
activities,”
legal
gang
criminal
and that
ing
illegal
in a
swath
broad
others,
statutes,”
activities,
“general public
namely
nuisance
individually and with
§
California Code
Civil Procedure
areas.
certain
3479-3480,
§§
and California Civil Code
concerns not the substance
question
Our
independent
provide
authority for actions
procedures
of such orders but the
constitu-
enjoin
gang
and its members from
individuals
tionally required before
denied
engaging in nuisance activity.
People
See
against
opportunity
imposi-
to defend
Acuna,
ex rel. Gallo v.
14 Cal.4th
against
tion of the order
them can be
Cal.Rptr.2d
Shortly OCDA filed a re- case, quest to dismiss from the without (cid:127) “standing], sit[ting], walking], defendants, prejudice, sixty-two individual driving], bicycl[ing],” “gathering] or or including thirty-two juve- adults and appearing]” any enjoined with other par- general niles who had filed a denial or an ties, members; including family unrepresented juvenile answer and all de- (cid:127) “confronting], intimidating], an- fendants. did OCDA so because of the noying], harassing], threatening], chal- “aggressive effort part” on of those the[ ] lenging], provoking], assaulting], or bat- court, individuals to defend themselves in tering]” anyone, “remaining] or in the and because of the concerns that the state presence of or assisting] anyone” the en- court judge regarding entering raised a joined party knows to be performing such judgment against unrepresented juveniles. conduct; The court granted OCDA’s dismissal re- (cid:127) unlawfully using “any drug,” or “re- quest. maining] in presence of or assisting] requested OCDA then and obtained a anyone enjoined party] [the un- know[s] is judgment, default including permanent lawfully any drug”; influence of under (the injunction “Order”), against OVC as (cid:127) “possessing],” “transporting],” or entity, “members, an including par- OVC’s “selling]” guns or weapons, various other associates, ticipants, agents, servants, em- or “remaining] presence” of such aiders, ployees, and abettors whose mem- weapons; association, bership, рarticipation, agency, (cid:127) service, aid, “using], employment, displaying], or abetment is or communi- nominal, inactive, cating] by words, more than passive, any or means of phrases, technical, purely physical gestures, and all persons acting signs, symbols hand or under, with, enjoined of, party] concert describe, [the for the benefit know[s] of, represent, [OVC], at the direction or in association or refer to with” or ... remaining] OVC. The parties presence Order names as all indi- of or as- vidual sisting] anyone defendants enjoined who had not been volun- party] [the tarily performing conduct; dismissed OCDA and as know[s]” to whom such *8 the Superior granted Court had prelimi- a (cid:127) “wearing], displaying], exhibiting], nary injunction.2 copy We attach a or possessing] any clothes or accessories Order as Exhibit A. enjoined that party] [the ... re- know[s]
The Order enjoined parties forbids the to gang, fers] the including [OVC] clothes from engaging in a variety in of activities or exhibit, accessories that display, or fea- “any public place, any place accessible to ture ... ... the ‘Orange,’ word[ ] ... the Among 2. defaulting below, 4-5, the Except defendants Plain- was 3. as noted see nn. the Bastida, tiff-Appellee Gabriel who later had Order included the same relief OCDA had vacated, the judgment against default him originally requested. denial, and, general filed a as with the others court, who defended themselves in state was subsequently voluntarily by dismissed OCDA. hours, in, or or en route place’s operating in the remaining] or orange,4 color from, enjoined employment lawful or volunteer anyone that to or [the of ... presence (3) from, clothing; to or or en- wearing” activity; such en route party] know[s] school, in, “an official official reli- gaged (cid:127) alcohol; open possessing an drinking expressive activity other within gious, or alcohol; knowingly remain- or container of rights under the First scope [one’s] of drinking a or presence person ing in the (4) Amendment”; responding to an emer- container, open without such an possessing (5) situation; “in a en- gency or vehicle working in eating or exception person for a in interstate travel.” gaged restaurant;5 a (cid:127) minors, place, being “public in a for noted, applies only not to As the Order lot, be- or business establishment” vacant parties, named but also to OVC’s (1) accompa- : 10pm and 5am unless tween “members,” regard to whether without re- legal guardian, or by parent, nied a acting on behalf of such individuals were (2) adult; at the on an errand sponsible or, Order, in the except specified OVC as (3) on a guardian; of a or parent direction members, engaged with other when OVC adjacent of or to in front sidewalk proscribed in activities. The Order does (4) in, to or dwelling; or en route minor’s provide any procedures parties not for the entertainment, from, re- a of lawful “place which, Superior or the to determine Court creation, culture, charity” during or any, parties if unnamed were “members” hours, or in or en route place’s operating subject to the and therefore Or- OVC or volunteer employment from lawful to or expiration terms. The Order has no der’s from, (5) or en- activity; en route or date. school, in, official reli- “an official gaged entry judg- A after default few weeks activity within expressive gious, or other instruction, OPD, ment, at OCDA’s the First rights under scope [one’s] only not on the began serving the Order Amendment,” activity is “su- where such whom the in- against individual defendants on by person an adult pervised or overseen issued, junction but also on individuals had (6) re- organization; civic behalf of’ a defendants the state originally named as (7) situation; or emergency to an sponding voluntarily dismissed court case but travel”; engaged “in a interstate vehicle 2009, OCDA and By September OCDA. (cid:127) adults, place, being “public a for forty-eight indi- at least OPD had served lot, establishment” be- vacant or business named in the nui- who had been viduals (1) on a and 5am unless: 10pm tween but whom OCDA against sance suit OVC adjacent in front of or sidewalk voluntarily dismissed. (2) in, or or en route to person’s dwelling; Order, entertainment, OCDA and OPD Along with the from, re- “place a of lawful “Notice”: culture, following creation, during that served charity” or Superior public view.” The request injunctive ried out "in original for relief 4. OCDA’s enjoined language prohibiting "public view” from provision also struck the included Court *9 tan, black, wearing beige, or parties blue, requested prohibitions from on alco- OCDA’s the pro- Superior Court limited the but the hol, provision a broad concerned that such orange. to hibited color consuming al- person from prohibit would adjacent to a win- own home if cohol in his prohibitions provisions, the 5. Unlike the other limit the Superior Court did not so dow. The only conduct alcohol extend to such related to including provisions, any reach of of the other place place” "any accessible any public or "in on association. the restrictions public,” to such conduct car- the but not ARE HEREBY challenge Order; YOU PUT ON NO- to the terms of the they 14, 2009, THAT ON TICE MAY only challenged adequacy the op- of their JUDGE KAZUHARU MAKINO portunity to contest the application of the SIGNED ORDER AN FOR PERMA- Order to them. THE INJUNCTION AGAINST
NENT The four named sought Plaintiffs to rep- ORANGE VARRIO CYPRESS CRIMI- (1) resent classes: two adults and minors STREET GANG. NAL “named as individual defendants” ALL MEMBERS OF THE ARE GANG case, state “who appeared ... in the SUBJECT TO THE THE TERMS OF Orange County Superior Court to defend PERMANENT INJUNCTION. and voluntarily themselves were dismissed GANG, ALL THE MEMBERS OF (2) [OCDA],” by and OR NOT minors WHETHER NAMED IN “named as THE ORIGINAL LAWSUIT AND individual defendants” in the state case for LATER DISMISSED FROM THE whom no guardian ad litem was appointed LAWSUIT ... ARE SUBJECT TO and who voluntarily were by dismissed THE THE TERMS OF PERMANENT OCDA. proposed The class ex- definitions GANG INJUNCTION.... cluded any individuals who already were ALL PERSONS DESCRIBED ABOVE being prosecuted for state criminal con- WILL FACE CRIMINAL PROSECU- tempt proceedings violating the Order.6 for TION PURSUANT TO PENAL CODE The district court denied Plaintiffs’ mo- 166(a)(1) SECTION FOR ANY WILL- tion for a preliminary injunction; granted FUL VIOLATION OF ANY PROVI- classes; Plaintiffs’ motion SION LISTED IN THE PERMA- certify both NENT GANG and INJUNCTION. parties’ denied the cross for motions summary judgment. The district court The Superior Court had no in review- role then held an eleven-day bench ing trial, hear- approving or the notice. ing testimony witnesses, from fourteen re- four entry About months after ceiving exhibits, than more per- Order, four individuals on whom OCDA sonally touring the City area of the and OPD served the Order and Notice Orange covered filed this action Order. The § under court U.S.C. against the concluded that heads of OCDA and deprived OPD— “Defendants Attorney Tony District Rackauckas and Plaintiffs and those similarly situated Chief Police Robert Gustafson—in their their constitutionally protected liberty or capacities official “Orange”). (collectively property interests adequate without proce- Alleging that OCDA and OPD’s “dismiss- dural protections.” The court also granted strategy” and-serve procedur- violated the “an injunction barring Defendants from al process due clauses of the U.S. and enforcing against the Order the Plaintiffs.” constitutions, California sought Plaintiffs a The court emphasized that “not it was declaration of the unconstitutionality of the state instructing court as to the nature Orange’s injunction conduct and an bar- any hearing.... [T]he Court’s order ring Orange from enforcing the Order Defendants, directed to [is] not against Plaintiffs providing “without first (emphasis state court.” original). them with a full constitutionally[ ] ade- quate hearing.” presented Plaintiffs no Orange timely appealed to this court. whether, 6. The record does not reflect contempt proceedings against commenced suit, Plaintiffs time filed anyone OCDA had in fact individually not named in the Order.
1035 that ... party the state court with those of II. proceed- state court with the interference of the due the merits turning to Before is inevitable.” ing Id. con- claim, Orange’s address we process comity and various under that tentions properly declined district court The doctrines, court the district federalism initially Younger. OCDA to abstain under than suit rather this have dismissed should Superior in the parties named Plaintiffs as eq- granting raised and issue deciding the unilaterally dismissed action but Court uitable relief. because of precisely did so them. OCDA is, to fight”—that to Plaintiffs’ “effort A. court. a defense in state “Youn present maintains, first, Orange ... who apply to one ger abstention cannot under the dismissed have been suit should proceeding.” to the state Id. stranger is a Harris, Younger v. established doctrine (quoting v. Med. Plan at 1103 Gottfried 746, 669 37, 27 L.Ed.2d 91 S.Ct. 401 U.S. (6th Inc., F.3d 329 ning Servs. 142 authority to (1971), courts’ limiting federal Cir.1998)). madе Plaintiffs Orange proceedings state court enjoin ongoing by denying case “stranger[s]” to the state addressing Younger “In some instances. be heard in state opportunity an to them issues, courts must ex district abstention they question on the whether were court specific when le except jurisdiction ercise members. Id. gang met, may not exer are and gal standards Moreover, from parties as dismissed are standards jurisdiction when those cise “in- case, are not interests state Plaintiffs’ in the met; discretion vested there is no against whom the with tertwined” those San Jose courts to do otherwise.” district issued, namely, and the was OVC Order Po Commerce Valley Chamber Silicon of at 1100. Id. Jose, remaining, named defendants. City v. San Action Comm. litical of raise in this case— Cir.2008) (altera question Plaintiffs (9th The 1087, 1092 F.3d gang- of OCDA’s and OPD’s omitted). adequacy de novo a dis We review tion precise- membership determination—arose whether as to trict court’s determination from dismissed were ly because Plaintiffs See Gil abstention is warranted. Younger and so could not litigation court the state n. 19 381 F.3d Albright, v. bertson injunc- an imposition Cir.2004) (en banc). against (9th defend Those cov- litigation. tion on them that here, “usually, federal relevant As not at- did by by name the Order ered pend parties not who are also plaintiffs not a defense were tempt present may proceed court in state ing litigation The circum- litigation. from the dismissed being litigation” without federal with their those covered stances interests City v. Younger. under Green barred the Plaintiffs are in the Order and name (9th Cir.2001) Tucson, F.3d divergent pro- as to the entirely therefore (en banc), grounds, Gil on overruled other here. issues cedural raised (9th Cir. Albright, 381 F.3d bertson addition, in federal sought In the relief 2004). “quite limited circum Only under validity of would not disturb court Younger “oust district may stances” against parties any as to Order a case where the jurisdiction over court of not chal- do it issued. Plaintiffs whom ongoing to an state party is not a plaintiff is There the Order. lenge the terms of circum Id. at 1100. Such proceeding.” Plaintiffs’ inter- nothing therefore about only when a fеderal present stances are with currently “intertwined” ests that “so intertwined interests are plaintiffs *11 1036
those of the named state defendants C.
against injunction whom the issued. Orange also asserts that the dis
trict court should have abstained from
B.
hearing Plaintiffs’
general
case under more
principles
comity, equity,
and federal
Orange’s next
federalism-related
ism, unmoored from any particular absten
contention
Plaintiffs’ action is a “de
tion
by
doctrine heretofore endorsed
Order,
appeal”
Superior
facto
Court
Supreme Court or our court. We review
by
barred
the Rooker-Feldman doctrine.
for abuse of discretion the district court’s
Feldman,
Appeals
See D.C. Court
v.
460
decision not
to abstain under doctrines
462,
1303,
U.S.
103 S.Ct.
tiffs’ action. See Bell v. City Orange’s argument hinges on three (9th Cir.2013). 890, F.3d out-of-circuit cases somewhat similar to but, this one in respects, other significantly recently reiterated, As this court cases, different. In each of those the fed appeals” “de facto by barred Rooker- eral plaintiffs court sought enjoin prose Feldman are those which “a federal cutors from enforcing state-court-issued plaintiff a legal wrong asserts as an alleg injunctions against individuals not named edly by erroneous decision a state court.” injunctions. case, the state In each Hall, Id. at (quoting Noel v. 341 F.3d district court abstained from issuing the (9th Cir.2003)) requested injunction, (emphasis and the ap add court of ed). contrast, peals “In affirmed the if ‘a abstention. See plaintiff federal Gott fried, 330-33; 142 F.3d at McKusick v. legal asserts as a wrong an allegedly ille Melbourne, City 96 F.3d 487-89 gal by act or omission an adverse party, (11th Cir.1996); Wagner, Hoover v. jurisdic Rooker-Feldman does not bar ” (7th Cir.1995). F.3d 850-52 Noel, 1164) tion.’ (quoting Id. 341 F.3d at added). “[Ejven (emphasis if a plaintiff us, In the case before the district court seeks relief from a state court judgment, initially relied on these out-of-circuit au- such a suit is a forbidden de appeal facto in denying thorities request Plaintiffs’ for only if plaintiff alleges also a legal a preliminary injunction. At that point, by error the state court.” Id. Plaintiffs seeking were an expansive in- junction that would required “judicial have Here, Plaintiffs as a legal “assert[ ] hearings[s],” with specific, prescribed pro- wrong” only OCDA and OPD’s allegedly protections, cedural before OPD and unconstitutional enforcement of the Order. OCDA could against enforce the Order See id. at They present 897. no challenge them. The district court concluded that Order, the terms of they nor do such relief “would result ... inappro- an “allege[] legal otherwise error” priate equity invocation of the powers of Superior Court. See id. Plaintiffs’ suit is court,” the federal remedy because the therefore a forbidden appeal” de facto “not require would the involvement of a state under Rooker-Feldman. judicial See id. officer.
1037
enforcing
of
the Order
policy
to have a
and narrowed”
“clarified
Plaintiffs
After
trial,
dismissed
people
after
the same class of
sought,
against
and
injunctive relief
the
in-
142
permanent
Gottfried,
a
case.
court issued
from the state
the district
Cf.
barring it
simply
against
Orange,
(injunction sought
junction against
F.3d at 328
against
Hoover,
846,
the
enforcing the Order
we decide
McKusick, 96
injunction.”
state court
state the contours
properly
Hoover
and
the
OCDA and OPD retain
F.3d at 488.
a
court
doctrine that
district
an abstention
Order, in-
to enforce the
broad discretion
not
circumstances
follow under
might
Plaintiffs,
they
cluding against
provided
that
in the
do hold
herе. We
present
process guaranteed
the
the
provide
case,
district court did
of this
the
posture
See
Section V.8
U.S. Constitution.
infra
declining
in
discretion
abuse its
not
grant-
court
was the relief the district
Nor
in-
declaratory and
granting
from
abstain
speculative
and
ed based on “nebulous
after trial.
junctive relief
would be enforced
fears” that the Order
First,
in the out-of-
important,
most
and
Hoover,
In
2137,
289,
132 L.Ed.2d
115 S.Ct.
case,
abuse its U.S.
court did not
district
(1995)).12
214
from
declining
to abstain
discretion
proposing specific
Proposed Judgment and
that
reject
We
Plaintiffs’ contention
11.
language
the district court could include
argument
not
Orange
its Brillhart
forfeited
declaratory judgment.
declining
to issue
objection
raising
A
it earlier.
Brillhart-bas&A
"raised suffi-
was therefore
The Brillhart issue
ap-
on
"may
raised for the first time
be
not
it,”
court to rule on
ciently
[district]
for the
Dizol,
Emps.
Co. v.
133
peal.”
Gov’t
Ins.
See
Dep’t
Walsh v. Nev.
not
See
and so
forfeited.
banc).
(9th Cir.1998) (en
F.3d
(9th
Res.,
F.3d
Human
Orange timely
raised
issue
But
Cir.2006).
argument
by making
in its
court
district
Proposed Additional
Objections
Plaintiffs'
to
Loans,
Mortgage
Inc. v.
Countrywide
12.
Home
Conclusions Law
Findings of Fact and
Cir.2011)
(9th
Corp., 642 F.3d
Guar. Ins.
bright-line
Dizol’s
remand rule
discretionary
“does
Because Dizol’s
rule does
apply,
not
apply
independent
proceed
not
that exist
we
Orange’s
claims
consider
argument,
second Dizol-related
namely,
request
for a declaration.” Scotts
that the district court abused its
Seeds, Inc.,
discretion
1154, 1158
Co.LLC v.
688 F.3d
in entertaining Plaintiffs’ claim for declara-
(9th Cir.2012) (internal quotation marks
tory
light
relief in
of the related state
omitted).
and alteration
claim in
“[A]
court proceedings. Because the declarato-
in this context “if
dependent”
it would
ry judgment claim was “related” to the
if
request
continue to exist
for a decla
“independent
nondeclaratory
judgment
ration simply
from the
dropped
case.” Id.
injunctive
claim”—for
relief—we “evalu-
Orange acknowledges this standard but
doctrine,”
ate[ ] under the
River
Colorado
argues
here,
that it is
satisfied
on
not
Brillhart,
rather
than under
the district
theory
injunctive
that Plaintiffs’ claim for
discretionary
court’s
grant
decision to
re-
predicated
relief is
on an “initial declara
Scotts,
lief. See
688 F.3d
1158-59.
tion that Plaintiffs have suffered a viola
*15
River,
tion of
“Under
rights.”
their constitutional
Colorado
consider
judicial administration,
ations of ‘wise
giv
disagree.
We
Plaintiffs’ claim for in-
ing regard
judicial
to conservation of
re
junctive
independent
relief “is
because it
sources
comprehensive
and
disposition of
would be viable
the
without
declaratory
litigation,’ may justify
by
a decision
Scotts,
claim.” See id. at 1159.
for exam- district court to stay federal proceedings
ple,
specific
held that a
for
perform-
claim
pending the resolution of concurrent state
is,
ance of a
essentially,
contract —which
court proceedings involving the same mat
injunction13
an
“independent” of a
—was
Holder,
854,
ter[.]” Holder v.
305 F.3d
claim for declaratory relief “because it
(9th Cir.2002) (citations omitted).
867
would be viable
without
declaratory Here, as the
recognized,
district court
Scotts,
claim.”
ject
jurisdiction
dispute.”
matter
over a
Id.
added).
(emphasis
through
Plaintiffs
criminal
against
out its Order
carrying
its discretion
abuse
squarely with-
contempt proceedings
...
to ex-
obligation
unflagging
“virtually
—fall
state,
local,
grant
category
de-
rather than
in that
jurisdiction,”
ercise
Weiner,
Plain-
relief,
staying
than
rather IV. § in the 1983 challenged acts particular declaratory grant of The district court’s Cnty., 210 Diego v. San See Weiner suit. Cir.2000). on its con- (9th injunctive relief was based A and 1025,1030 “Califor F.3d and subjecting Plaintiffs “by that clusion attorney is a state officer when nia district to the enforce- similarly situated an individu those prosecute to deciding whether Order,” Orange “deprived the ment of al,” “investigating proceed and when similarly situated” of those at Plaintiffs and Id. prosecutions.” criminal ing with liberty in- “constitutionally protected Long their 1030-31; City v. accord Goldstein (9th Cir.2013). procedural pro- adequate terests without Beach, 750, F.3d 753-62 715 findings factual Reviewing the tections.” of which attack allegations Plaintiffs’ —all analysis for court’s underlying the district enforcing the state for policies OCDA’s here, where, had federal the district court as reject Orange's Brillhart-relat- 14. Because we diversity opposed question jurisdiction as foregoing grounds, we argument on the ed jurisdiction. parties’ dispute over the need not address progeny on set limits whether Brillhart its the rele- VI in Section grant a declara- 15. We address discretion to a district court's infra award. to the fee the Pennhurst issue vance of rights under federal law parties’ the tion as to 1042 (1999)
clear error and the district legal court’s L.Ed.2d 67 (plurality opinion). regarding conclusions process due The Constitution guarantees likewise novo, claim de we affirm the district court. “fundamental right of free movement” to Hinkson, 1260; See 585 F.3d at Ting v. both adults and minors. See Nunez ex AT&T, (9th Cir.2003). 1126, 819 F.3d City rel. Diego, Nunez San 114 F.3d (9th Cir.1997) ju- (invalidating a analyze a procedural “We process due venile curfew ordinance under strict scru- claim in two steps. The first asks whether review). tiny places The Order heavy liberty there exists a or property interest burden on the exercise protected which has of these with by been interfered State; liberty interests.16 the second examines whether procedures attendant upon depriva noted, As prohibits constitutionally any
tion were Order sufficient.” subject one Male, to its United States v. Juvenilе terms from associating 670 F.3d — (9th Cir.2012), denied, any enjoined with cert. other parties including — U.S.-, family 133 S.Ct. “any public L.Ed.2d members—-in place, any (2012) (internal quotation place marks and alter accessible to public, public or in omitted). ation view” in Safety Zone. The “Do Not prohibition Associate” extends
A.
“standing],
sit[ting], walking], drivfing],
As to the first step
procedural
due
bicyclfing],” or
“gatherfing]
or
ap
process analysis,
agree
we
with the district
pearing].”
The Order also establishes
court that the
profoundly
Order
implicates
for
adults,
curfews
both minors and
pro
liberty
protected by
interests
the Due Pro-
nighttime
hibiting
presence in a “public
Clause,
cess
including rights of free move- place,
lot,
vacant
or business establish
ment, association, and speech, and that ment” unless an
exception ap
enumerated
Orange’s conduct
interferes with those
plies.
provisions
These
directly interfere
protected liberty interests of the Plaintiffs. with an individual’s “fundamental right of
*17
movement,” id.,
free
and an
“Freedom
“individual’s
speech
of
and
other
the
decision to remain in a public place
freedoms
encompassed by
of his
the First
choice,” Morales,
54,
Amendment
527
always
U.S. at
have been
119 S.Ct.
viewed as
fundamental
1849.
components
Related
of
terms of the
liberty
that bar
the
Order
safeguarded by
“remaining]
the
in the presence”
Due Process
of
Clause.”
other indi
First
Bellotti,
Natl
engaged
Bank
Boston
viduals
in
various acts—such as
of
765, 780,
435 U.S.
1407,
98
possessing
S.Ct.
firearms or drinking
alcohol—
(1978).
L.Ed.2d 707
further affect
“[T]he freedom to
these
liberty
same
interests.
loiter for innocent purposes is”
Those
“part
also
terms restrict freedom of movement
of the ‘liberty’ protected by the Due Pro-
and
public
use of
places because of the
cess
City
Clause.”
Chicago
others,
v. Mor-
actions of
over which one may have
of
ales,
41, 53,
1849,
U.S.
control,
S.Ct.
144 no
and do so
regard
without
16. Our
prong
task at the first
procedur-
of the
only
they
relevant here
implicate
insofar as
process
al
analysis
due
is to determine wheth-
constitutionally protected
the
liberty interests
er "there
liberty
a
exists
or property interest
subject
injunction,
of those
to the
which feeds
State,”
which has
by
been
with
IV.B,
inquiry,
into
next
our
see
Section
interfered
infra
Male,
see
what,
Juvenile
(emphasis
mall, being Vasquez gated provide arrested.” to Plaintiffs with additional for fear injunction goes anywhere procedural protections. “no in the longer brother, area with his with whom he lives
and who has also been served with the B. longer goes Order.” Plaintiff Lara “no Eldridge, Mathews v. 424 U.S. family,” including with his his “twin broth- 319, 893, (1976), 96 47 S.Ct. L.Ed.2d 18 er, with who also has been served provides the familiar framework for the Order,” restaurants, “to their favorite to analysis, namely of our step second pool the local where Mr. Lara learned to procedures “whether the upon attendant swim, parks family previously where the [Orange’s] deprivation” of Plaintiffs’ liber picnicked, City Orange’s or to the annu- ty constitutionally interests “were suffi al remaining street fair.” The named Male, cient.” See Juvenile 670 F.3d at long- Plaintiffs —the Bastida brothers —no 1013. Mathews “directs us to examine:” through injunction er “drive area to- gether family together, or visit or attend first, the private interest that will be outdoors, family functions are held for second, action; affected the official violating fear of the Order.” “When their the risk of an deprivation erroneous grandfather a had stroke and was taken to such through procedures interest hospital Safety Zone in the middle used, value, probable any, and the if night, their mother was forced to procedural additional or substitute safe- decide permit whether to the brothers to guards; finally, and the Government’s publicly visit the hospital, accessible an act interest, including the function involved that would violate both the curfew and and the fiscal and administrative bur- provisions association of the Order.” dens that the additional or substitute procedural requirement entail. would
The district similarly court found that Plaintiff “participate[ Lara used to in vig- ] Hansen, Brittain v. 451 F.3d ils, demonstrations, protests within the (9th Cir.2006) Mathews, (quoting 424 U.S. injunction area, doing but ceased so after 893). 334-35, In “balancing” S.Ct. Order, being served with the for fear he factors, the Mathews we are mindful that be violating by confronting would its terms requirements “the process of due are ‘flex- and challenging government policies and ible call procedural protec- for such associating injunc- with individuals on the tions particular as situation de- ” persons tion list.” “Such include twin [his] Austin, mands.’ Wilkinson v. 545 U.S. brother, who also has been served with the 209, 224-25, 125 S.Ct. 162 L.Ed.2d Order.” The Bastida Plaintiffs likewise (2005) Brewer, (quoting Morrissey v. “refrained from participating protests 471, 481, 408 U.S. 92 S.Ct. violating out of fear of the Order[ ].” (1972)). L.Ed.2d 484
Because Orange’s unilateral decision
correctly
The district court
determined
*19
restrict
constitutionally protect-
Plaintiffs’
that
“weigh clearly
the Mathews
in
factors
liberty
ed
interests constituted an “inter-
favor” of the
that Orange
conclusion
violat-
State,”
by
...
the
procedural
fere[nce]
sеe Juvenile
ed Plaintiffs’
process rights
due
Male,
1013,
670 F.3d at
turn
an by failing
provide
we
to
any form of hearing
Orange
examination of whether
was obli- before subjecting them to the Order.
fact,
these,
18. We
ings
have reviewed the
including
clearly
record and deter-
of
is
errone-
Hinkson,
mined that none of the district court’s find-
ous. See
1045
law,
pur
Plain-
2.
the
analysis
“[f]or
our
of
Under California
1.
It follows from
injunction,”
a
“an
poses
gang
in
that
of
abatement
liberty interests
Section IV.A
tiffs’
gang
person
par
member is a
who
very
active
are
“private interestfs]”
Plaintiffs’
Brittain,
in
in
a
ticipates
gang,
or acts
concert with”
after
one side.”
or associa-
(9th
Brandt,
1375,
Inc. v.
902 F.2d
1381
tions like the YMCA or
Bar
State
associa-
Cir.1989). Determining whether an indi-
tion,
clearly
which have a
and as-
defined
presents
gang
vidual is an active
member
Rather,
membership.
gangs
certainable
a considerable risk of error. The informal
secretive, loosely
are more
defined assоcia-
gangs,
fleeting
structure of
the often
na-
people,
tions of
whose involvement runs
gang membership,
ture of
and the lack of
gamut
from ‘wannabes’ to leaders....
objective
in making
criteria
the assess-
[D]etermining whether
someone is in-
heighten
ment all
for careful
need
volved and the level of involvement is not a
factfinding.
506-07,
simple matter....”
Id. at
68 Cal.
Gangs are often “loose
with
knit[ and]
Likewise,
Rptr.2d 135.
Colonia Chiques
Att’y
Gang
out structure.”
Gen.’s Youth
gang
noted that the
there at
issue had
Force,
of
Dept.
Task
Justice of the State membership
“continually
that
chang-
was
California,
of
Report
Gang
on Youth
Vio
ing,”
joining
with
members ...
“[n]ew
(1981).
lence in
3
The STEP
California
gang,
...
leaving
[and]
old members ...
it
recognizes, codifying
Act so
a definition of
becoming
or
Cal.App.4th
inactive.” 156
at
gang”
“criminal
groups
street
that includes
41, Cal.Rptr.3d
67
70.21
“whether formal or informal.” CaLPenal
186.22(f).20
trial,
witnesses,
§
At
Plaintiffs’
expert
Code
two
Vigil, professor
criminology
James
of
at
part,
For our
recognized
we have
California,
University
Irvine,
of
and Mal-
many “[g]angs ...
by-laws,
do not have
Klein, professor
colm
sociology
of
at the
minutes,
organizational
any
or
other nor-
University
California,
of Southern
testified
mal means of identification.” United
to these same fluid
gangs
characteristics of
1160,
Hankey,
States v.
203 F.3d
1169-70
(9th Cir.2000).
general and
in particular.
OVC
Both
California courts have also
Valdez,
reported
gang
that “most
People
so noted.
members” even-
Cal.App.4th
58
(1997),
Cal.Rptr.2d
tually
leave gangs, making
for exam-
it difficult to
ple,
many
concluded that
“gangs are not
determine membership
participation
or
"gang”
20. Other states’
("group
operated formally
definitions of a
for
or infor-
purposes
criminal and other
("formal
are similar in
mally”);
§
Va.Code Ann.
18.2-46.1
See,
reaching
groups.
e.g.,
informal
Ariz.Rev.
informal”);
or
Wash.
Rev.Code
("formal
informal”);
§
Stat. Ann.
13-105
or
9.94A.030(12)
(same);
§
Wis.
Stat.
18-23-101(1) (same);
§
Colo.Rev.Stat. Ann.
939.22(9) (same).
§
11, 616(a)(1) (same);
§
Del.Code Ann. tit.
Fla.
874.03(1) (same);
§
Stat. Ann.
Ga.Code Ann.
21. Social science literature
confirms
fluid
16-15-3(2) (same);
§
§
Idaho Code Ann.
18-
fleeting
gang
and often
nature of
member
8502(1) (same);
723A.1(2)
§
Iowa Code Ann.
ship.
juveniles belоng
gangs
Most
for "1
(same);
21-6313(a) (same);
§
Kan. Stat. Ann.
al.,
year
Identifying
or less.” Chris Melde et
15:1404(A)(same);
§
La.Rev.Stat. Ann.
Minn.
Gang Membership,
Correlates
Stable
28 J.
of
609.229(1)
(same);
§
Stat.
Mo.Rev.Stat.
(2012);
Contemp. Crim. Just.
se
578.421(1) (same);
§
§
Mont.Code Ann.
45-
e
Holwell, Menacing
also James C.
or Mimick
8-402(1)
(same);
193.168(8)
§
Nev. Stat.
ing?
Gangs,
Realities
Youth
58 Juv. &
("combination
persons, organized formally
("Studies
2007)
(Spring
Fam. Ct. J.
14-50.16(b)
informally”);
§
or
N.C. Gen.Stat.
numerous localities show that more than half
("formal
informal”);
or
N.D. Cent.Code
young gang
stay
gang
members
in the
for
12.1-06.2-01(3)
(same);
§
Ohio Rev.Code
year.”);
Report
less than a
see
on
(same);
also
Youth
2923.41(A)
§
Ann.
S.C.Code Ann.
("[MJembers
Gang
16-8-230(2) (same);
Violence in
§
California 5
S.D. Codified Laws
22-10A-l(l) (same);
gang
§
... move in
§
and out of the
on the basis
Tenn.Code Ann. 40-
35-121(a)(l) (same);
functions.”).
gang
§
Utah Code
their
Ann. 76-9-
interest in
*21
directly
of dian conduct not
correlated with
past report
based on a
any single time
the nuisance and criminal activities that
gang.
involvement
in a
individual’s
an
OVC,
gave
to
Much of
a
rise
the Order.
the be-
that
based in
Klein also stated
by
havior covered
the Order can occur
City
of
neighborhood in
particular
presence
any
outside the
other individu-
less cohesive
was “one of the
Orange,
by-
putatively
al even
covered
the Order.
in'more
which he had encountered
gangs”
years studying gangs.
forty
than
short, given
variety
In
the “wide
of in-
relevant,”
may
formation
be deemed
[that]
record, including the
on the trial
Based
difficulty
“reasonably precise
and the
evidence,
deter-
the district court
expert
assessing
measurement” in
whether some-
an
that whether “an individual is
mined
member,
gang
one is an active
risk
“[t]he
gang
participant of a criminal street
active
of error is
such [a]
considerable when
de-
“multifactored,
fact
complex[,]
a
and
is”
any partic-
termination
made” without
[is]
The district court also
specific” inquiry.
by,
ipation
opportunity
provide
or
evi-
membership would be
found that OVC
of,
dence on behalf
the individual served
to determine ... be-
“particularly difficult
and, according Orange,
with the Order
and nonmembers of-
gang
cause
members
Mathews,
putatively
by it.
covered
See
neigh-
in the samе
grow up together
ten
893; Chalkboard,
U.S.
96 S.Ct.
and
relationships
and have social
borhood
Nigro, for “explanation an Plaintiffs as to whom the state court did provide did not OPD with meaning participant.” findings gang of “active make of mem preliminary as to” believed, on his “conversations findings exactly He based what bership, those were police gang participants [and] with preliminary, not fi they purported to be— that and detectives” “association officers preliminary finding nal. Such a “does not enough person for a to be an active can be adjudication amount to an of the ultimate” Drootin, Detective participant” gang. of Katz, issue, Baking see Cont’l Co. v. 68 contrast, merely knowing testified that 512, 528, Cal.Rptr. 67 Cal.2d 439 P.2d an was insufficient to estab- OVC member (1968), namely whether there was membership. lish convincing “clear and evidence” as to members, gang Plaintiffs’ status as active argues appeal Supe- on that the Orange Englebrecht, Cal.App.4th see findings at adequate rior Court made Cal.Rptr.2d ample 738. There was preliminary injunction stage regarding testimony before the court that district that gang membership, and the decision as gang membership some of the evidence of by to which to treat as bound individuals ques to the district of submitted court was findings. the Order was based on those reliability. By dismissing tionable them court, noted, The concluded oth- district as proceedings, from the state court OCDA Orange erwise—that carried out a “unilat- deprived opportunity the Plaintiffs of an eral determination.” The district court’s discovery take from OCDA and OPD “illogical, implausi- not determination was ble, officers who had submitted declarations support or without inferences that support permanent injunction against of a may be drawn from record.” See Hinkson, individual at 1262. Plaintiffs. Determination of the 585 F.3d accuracy ultimate pre state court’s First, any the state court never made liminary findings through was therefore — findings gang membership regarding entirely no fault of the statе under court— juveniles guardian who lacked a ad litem. by very procedural mined tactic that preliminary The state court denied a in- gave rise to this lawsuit. junction individuals, as to those but Orange later served them with the Order (c) circumstances, certain a state “[I]n nonetheless. can cure what otherwise be an un- would ‘life, deprivation liberty constitutional or
Second, Orange served the Order on a
property’ by providing adequate post-de-
plaintiff
number of
class members as to
privation
City
remedies.” Zimmerman v.
preliminary
whom the state court denied a
(9th
Oakland,
255 F.3d
Cir.
injunction. Although Orange maintains
2001).
without
Assuming,
deciding, that
that it had new
of gang
evidence
member-
deprivation
liberty
interests
that
ship not submitted to the state court as to
individuals,
conceivably
all but
Plaintiffs have suffered could
repre-
one of these
that
only
by
post-
have been remedied
some form of
emphasizes
Orange’s
sentation
that
deprivation procedure,
coverage
decisions were not determined
we conclude
previous judicial Orange
provided
adequate
whether there had been a
has
no such
coverage.
process.22
indication as to
proceed
"[p]ost-de-
22. We
in this fashion because the
"limited circumstances” in which
parties
“depriva-
privation procedures may provide adequate
have not briefed whether the
Oliver,
liberty”
process.”
Albright
tions of
at issue here fall into the
due
See
510 U.S.
Deputy
Attorneys
that Plaintiffs had sev
two Senior
District
from
Orange contends
relief once it
opportunities
obtain
Department
repre-
eral
OCDA and a Probation
*23
its intent to enforce the
notice of
provided
may
sentative
review an individual’s re-
(1) through a “remov
against them:
Order
quest to be removed from the ambit of the
(2)
OCDA;
by
by
process”
al
administered
This
is
process
pro-
Order.
insufficient to
proceed
in
intervening
Superior
the
Court
an adequate post-deprivation remedy,
vide
Cal.App.4th
156
ings,
Chiques,
see Colonia
for at least two reasons.
42,
70;
35-37,
Cal.Rptr.3d
at
67
Cal.Civ.
First,
clearly
the district court did not
387; (3)
modify
§
by moving to
Proc.Code
in finding
precise
err
that “the
nature of
Order,
the
see Cal.Civ.Proc.
or dissolve
process
potential
the
and the
it of-
relief
533,
any
§
appealing
from
order
Code
fers remain unclear.” As the
court
district
motion,
denying such a
see Cal.Civ.Proc.
found,
only
the
written information that
904.1(a)(6);
Superior
§
v.
Iraheta
Code
concerning
procedure
exists
the
a single-
is
Court,
1500,
6,
1514 n.
Cal.App.4th
70
83
(1999),
page document served on the
appealing
471
or
from
named de-
Cal.Rptr.2d
id.;
(4)
Order,
or
grant
of the
see
at
Superior
fendants
the outset of the
if
contempt proceedings
criminal
arrested
Orange acknowledged
Court case.23
at tri-
violating
for
the Order. We address each
al that
process
the exclusion
“had never
possibility
turn.
with
implemented
regard
been
to OYC or
(i)
any
injunctions
of the five other
the OCDA
According
Orange,
to
under OCDA’s
Moreover,
a
had
self-designed
process,”
panel
“removal
obtained.”
there is no indi-
807,
266,
37,
Deputy
Attorneys
315 n.
114 S.Ct.
127 L.Ed.2d
District
not associated with
J.,
action,
(1994) (Stevens,
dissenting);
injunction
representative
114
Zinermon
and a
113,
975,
Burch,
Department.
110 S.Ct.
from the Probation
At the hear-
U.S.
evidence,
(1990) (noting
ing,
may present
that "in
the defendant
if
Second,
process described
the removal
obligation
had no
to come back
second
essentially the same defects
suffers from
time to assert their interest in the matters
unilaterally
procedures Orange
as the
used
issue;
evident,
at
their
was
but
interest
nonparties
which
to
against
to determine
they
litigation pre-
were excluded from the
to enforce the Or-
the state court lawsuit
cisely because of that. We stress once
critically,
der. Most
the burden is on the
connection,
again,
proce-
in this
that the
to demonstrate that
petitioning individual
process problems
dural due
raised in this
gang participant,
he or she is not an active
Orange’s
They
case are of
own creation.
though
ordinarily
even
has the
the State
Orange’s
stem from
decision to thwart
demonstrating
gang par-
burden of
active
procedures
Plaintiffs’ efforts to use the
by
ticipation
convincing
“clear and
evi-
par-
available
the state court that —all
at
Englebrecht,
Cal.App.4th
dence.”
88
agree
constitutionally
ties
sufficient.
Cal.Rptr.2d
106
738. No enunciated
—were
govern
criteria
the determination who is or Moreover,
there is no indication that
gang
though,
is not a
member even
as Plaintiffs could have intervened as a mat-
earlier,
supra
discussed
see
Section IV.
right.
undoubtedly
ter
OCDA would
B.2(a), membership
shifting
is a
and some-
motion,
opposed any
have
intervention
as
Furthermore,
times nebulous standard.
just
it had
dismissed the Plaintiffs as un-
provisions requiring
expla-
there are no
an
necessary
Superior
to the action. The
nation of the basis for the
that
conclusion
opposed
Court could have denied an
inter-
member,
gang
the individual is a
either
vention motion. See Cal.Civ.Proc.Code
hearing.
alleged
before or at the
So
387;
§
City Malibu v.
Coast-
California
gang
vacuum,
member is left
a factual
Comm’n,
897, 902,
Cal.App.4th
al
128
27
prove
to
a negative.
Am.-Arab Anti-
(2005).
Cal.Rptr.3d
It
would have lit-
Cf.
Reno,
Discrimination Comm. v.
70 F.3d
tle
regard
choice but to do so with
to the
(1995)
(quoting
Joint Anti-Fas-
juveniles;
unrepresented
class of
those in-
McGrath,
Refugee
cist
v.
Comm.
341 U.S.
guardian
dividuals remained without a
ad
123, 170,
(1951)
71 S.Ct.
tion
labor
Here,
Haygood,
Additionally, the record that at indicates gether, weigh decisively in favor of Plain- jurisdictions least two in California—San scope tiffs. The of the Order is extraordi- Francisco and regularly provide Oakland — broad, narily interfering with a wide swath form of pre-deprivation process some for protected interests, Plaintiffs’ liberty in- injunction in anti-gang proceed individuals cluding: family and social relationships; ings, simply seeking injunc rather than educational professional opportunities; against gang entity tions as- an and its movement; freedom of and all manner of unnamed members. need not We decide participation in civic life. Given the fact- jurisdictions’ procedures these whether are intensive nature of assessing gang mem- constitutionally required aas matter of bership, Orange’s procedures posed an process; due we simply cite them as exam unacceptably high risk of error. Addition- ples of procedures, pro addition to the procedural al safeguards would have been cedures prior OCDA followed cases of considerable value. In light sig- of the one, this that cast further doubt on nificant private stake, interests at Orange’s claimed administrative burden proffered post-deprivation remedies, to the providing pre-deprivation protections of they available, extent were even were in- some kind. sufficient provide Plaintiffs with full re- There is no evidence in the record that lief. Finally, Orange has not established predeprivation further procedures would any governmental justifying interest reduce the efficacy injunction provide failure to some measure of addi- against OVC and its members. Orange’s tional procedural safeguards before sub- expert testified that he had “no opinion on jecting Plaintiffs to the Order. Given providing whether hearing before sub- considerations, these the district court cor- jecting somebody injunction to an would rectly concluded that Orange violated *27 gang injunction make a more or less effec- rights Plaintiffs’ under the Due Process tive.” Clause of the federal Constitution. sum, In the district court properly con- Orange no challenge raised to the dis- that Orange cluded established no “admin- entry trict injunction court’s of an other istrative, fiscal or other substantial bur- than dispute to the district applica- court’s in providing” procedure some den!] for tion of the Mathews factors. We therefore challenge Orange’s Plaintiffs to gang mem- affirm the district court’s issuance of de- bership they determination before claratory injunctive were relief in Plaintiffs’ subjected to the of the terms Order. See favor.26 Moreover, governmental to[,]”
25. the interests that “successors in interest or are "other historically supported have 'legally the enjoined par enforcement wise identified' the with injunctions against nonparties ty”). of the to un See, derlying litigation e.g., do not exist hеre. Spiritual Assembly Nat'l the separately challenge Baha'is the 26. OPD does not Plain- of of Hereditary U.S. Am. injunction Under the Guardian tiffs’ entitlement to an under the of ship, Spiritual Assembly v. process Inc. Nat'l the due clause of the California Constitu- of Am., Inc., 837, Baha’is provides greater procedural U.S. 628 F.3d tion—which due (7th Cir.2010) (allowing process rights 848-49 private parties enforcement for than does injunction against of ah nonparties Today’s who the federal Constitution. See Fresh Start, Educ., enjoined party violating or Cnty. “aid[ ] abet[ ] an in Inc. v. L.A. Office of with[,]” injunction” 'privity' an Cal.Rptr.3d are "in Cal.4th 303 P.3d —or Superior Court convincing in cessful
V. that a convincing evidence” by “clear and reply time their the first For member, see gang an active Plaintiff is district court brief, that the Orange argues Cal.App.4th at Englebrecht, 88 in reasonable not “describe injunction does 738, any resulting state-court Cal.Rptr.2d or acts restrained the act or detail Order, current supersede the order would not consider Because we do required.” not bar injunction would and the federal reply time in for the first issues raised Third, a new order. argument of such briefs, this late-raised enforcement we deem Anaheim, City Eberle v. to the district court Orange propose forfeited. See could Cir.1990). (9th 814, 818 injunction 901 F.2d modifying the plan a for against of the Order allowing enforcement com- provide some brief nonetheless We Plaintiffs, contingent affording on addition of the interpretation our regarding ments procedural protections, pre-enforcement al injunction, so federal court relatively terse robust, a neutral administrative any further such as parties guide as to injunc- de The district court’s The court could then proceedings. process. district Orange that simply tion states proposed procedure termine whether enforcing the Order “from “barr[ed]” the current constitutional deficien cures — Plaintiffs,” providing without against Plata, See, U.S. e.g., cies. Brown actions, if any further indication of what 1910, 1946, 179 -, L.Ed.2d 969 131 S.Ct. may to enforce the Or- any, Orange take (2011) (noting power that of a court “[t]hе remaining compliance with der while injunctive modify a decree of equity injunction. federal broad, and flexi long-established, relief is court, Plaintiffs argument At oral in this ble”). interpreta- that under their
represented disputed Plaintiffs’ rea- Orange has not re- injunction, Orange tion of the federal in- of the federal interpretation sonable following any to take mains free proffered junction. agree with We liability con- facing for actions without understanding and with the interpretation, First, may enforce the Or- tempt: Orange Orange proposes procedure if con- any alleged members of OVC against der which stitutionally sufficient determine class. of the Plaintiff who are not members Plaintiff class are mem- members of the Second, to return to the Orange is free may whom the Order against bers of OVC any move to add mem- Superior Court to *28 enforced, court will consider the district be parties plaintiff of the class as named bers injunction.27 Orange modifying If suc- existing to the Order. made, (2013). may appropriate motion is it 27. If an 1140 We therefore affirm district grant against up equitable relief OPD to a court’s for the district court set be useful claim as well. on Plaintiffs’ state law propose process parties to and com- for the See, dispute sepa- possible procedures. OPD does the district court's on alternative ment conspired Davis, 849, that OPD with
rate determination Armstrong 883 e.g., v. 275 F.3d OCDA to violate Plaintiffs' constitutional J., (de- Cir.2001) (Berzon, (9th concurring) rights. We and do not reach this need not scribing court’s issuance of "an the district argument. The district court also concluded injunction,” followed district umbrella individually” for violat- that OPD was "liable nego- oversight parties’ "directed court ing process rights Plaintiffs’ due under "develop[ing] spe- process” at aimed tiation constitutions, and OPD federal and California complying procedures” policies and for cific independent for not contest that basis its does injunction). the broad with liability.
1055
VI.
The first factor is clearly satisfied.
The fee award
the statutory
“furthered]
Throughout the extensive district court
purpose
1988[,
§of
namely] to
pri
enable
proceedings, including litigation of a mo
vate citizens who could otherwise not af
preliminary injunction,
tion for a
cross-
ford to vindicate their
rights
civil
to do so.”
summary judgment,
motions for
and an
(internal
Herrington,
The ception to an attorney’s award of fees to a First, a “defendant’s good faith
prevailing party § under 42 U.S.C. 1988 belief that it following was the law does “applies only unusual cases.” at Id. “ not,” itself,” “by at least “qualify as a 1126. court’s discretion to deny ‘[A] fees ” ‘special circumstance.’ § See Saint John’s very under 1988 is narrow and fee Organic awards Farm v. Cnty. Mosquito should be the rule rather than Gem ” Theobald, Dist., (9th exception.’ 1054, Barnard v. 721 Abatement 574 F.3d 1064 (9th Cir.2013) (quoting Cir.2009) F.3d Sorenson, (quoting Tеitelbaum v. Mendez, 1126). F.3d “The defen (9th Cir.1981) (per F.2d dant has the showing spe burden of [that] curiam)). fees, cial circumstances warrant a denial of Second, Orange’s contention that it “ob- and the defendant’s showing must be a vious[ly] ... power had no to issue the strong one.” Herrington Cnty. Sono itself, certainly [Order] had [it] no
ma,
(9th Cir.1989) (inter
883 F.2d
*29
ignore
discretion to
the
once it was
[Order]
omitted).
nal citations
To determine
signed” rests on the same
inter-
erroneous
exist,
whether such circumstances
we eval
pretation
already
of the Order we have
(1) allowing attorney’s
uate “whether
fees
rejected.
not,
terms,
by
The Order did
its
§
would further
purposes
the
of
require Orange to
it
(2)
against
enforce
whether the
equities
balance of
favors
else,
anyone
or
much
require
Plaintiffs
less
Mendez,
or disfavors the denial of fees.”
(internal
them to do
procedural pro-
nia constitutions.28 character, does tion, prophylactic its given Plaintiffs’ ac- to cut short that determined liberty inter- unusually strong forum to adjudicatory give rise adequate fully cess to a cov- putatively state court of those part from the on the them ests by dismissing actively pres- to sought they once ered. lawsuit a defense.
ent some interests, ade- of those light In in membership to determine
quate process CONCLUSION constitutionally re- class is covered not Orange dismissed quired. Had great importance of the are mindful We lawsuit, that the state court from Plaintiffs criminal proliferation controlling Be- provided. have been process would activity illegal preventing gangs and dismissal, Orange engineered cause injunctions Anti-gang gang members. these against enforcement there cannot be broadly here one issue such as the ade- alternative some plaintiffs without daily legal individuals’ covered restrict the to- That all decide is we quate process. pre- effort to prophylactic in a activities day, nothing more. taking place. from illegal activities vent us as to challenge before There is no ap- costs on bear the Defendants shall applied prop- that effort as propriety peal. individuals, express we erly covered part, AFFIRMED REVERSED substantive on the no view whatsoever in- part, and REMANDED. anti-gang any or other of this terms applied to multiplier) that can be sub- state-law is not Because Defendant Rackauckas 28. court in the We it to district him. leave for violations of ject remedies equitable III, there is in case, to determine whether first instance Section it supra see state law this for which portion fee award in the fact some is difference possible that there some (which responsible. is not Defendant Rackauckas included fee award amount *44 holding today’s why reiterate and to issue concurring: Judge, TALLMAN, Circuit and procedural unique to the confined sepa- write but opinion in the I concur this case. record factual describe thoroughly more rately to injunction anti-gang of the backdrop walls, fences, colleagues they are
My etching insist and it into benches, great importance signs, con- street and glass “mindful windows. proliferation gangs of criminal trolling the Even schools are not immune activity by preventing illegal gang high OVC’sviolence. The local school un- Maj. I do members.” at 1056. not While willingly host plays fights to dozens of sincerity, they doubt devote scant their year each between members of the OVC attention in an comprehensive otherwise and rival gangs. Still more concerning is opinion why explaining anti-gang that the draws membership OVC its from *45 injunction City so at issue was vital to of pool attending the of pupils high the same Orange residents and law enforcement. I school, as well as a number of middle separately write to fill that void. schools, to fill its ranks. Orange Cypress gang The Varrio street Unsurprisingly, many local residents (OVC) is one of the in gangs most violent have their voiced concern with the OVC to California, City Orange, the a suburb officers, local law enforcement demanding dispute Los no Angeles.1 There is serious action to city restore law and order to a enterprise engages on-going that in the good whose residents have reason to fear activity involving criminal mur- attempted the Many OVC’s activities. of the com- ders, deadly with weapons, assaults ter- in plainants live fear of mem- gang OVC threats, rorist intimidation of victims and bers, using and are about cautious their witnesses, firearms, illegal possession of yards being front or even outside after robberies, thefts, sales, burglaries, drug dark. Still more complain about vandal- felony and acts of vandalism. ism, robberies, gang graffiti, and assaults that place they take where live and work. frequently spill These criminal activities Many cooper- citizens are also reluctant to community, hurting over into the innocent ate with for police understandable fear of people. OVC members have robbed and retaliation, undoubtedly po- which hinders students, Chapman University assaulted effectively lice efforts to gang curb vio- up 13-year-old boy a whistling beaten for lence traditional through prosecu- criminal school, way on his home and from led tion. police high-speed through on chases resi- dential to Gang say areas. members have This is not that the is the OVC back, largest in the head shot people dangerous gang stabbed and or most in Califor- neck, nia, others in the in Orange County. torso and attacked or even But this hit, kicked, people with bats and pipes, legislature’s and case is emblematic of the dec- and threatened to kill victims. The laration female that California “is a state of gang using drugs, by gangs distributes its members crisis caused violent street .... terrorize, peddle threaten, to both and as to stand lookouts whose members and protect activity. They narcotic also deface commit a multitude of crimes the against community property painting gang citizens of peaceful neighborhoods.” their sidewalks, doors, § graffiti buildings, on It provides CaLPenal Code 186.21. also providing years, Orange 1. In this overview of the OVC’s had served in the Police De- aсtivities, primarily February I draw from the partment’s gang years, six unit for had inves- 10, 2009, expert by De- declaration submitted cases, tigated gang-related hundreds of Nigro Orange Depart- J. tective Police 1,000 gang participants had interviewed over anti-gang injunction. support ment in tattoos, graffiti, regarding gangs, their declaration, Nig- At the of his time Detective crimes, families, gang culture. a peace ro had been sworn for 13 officer lawyers. Ironically, defense why Orange for well-financed context much-needed Orange County get taxpayers of now Attorney’s and the Office County District tab up to a multi-million dollar for (collectively, pick Department Police Orange at- that ensued from district tough supe- litigation a sought and obtained Orange) that, The torney’s type bad tactical decision. my colleagues injunction as rior court Orange sought that “aggressive effort[s]” it, “broadly covered put restrict[ed] territory. with the If sidestep to come daily pro- activities legal individuals’ system judicial can on our Orange rely illegal activities phylactic prevent effort to injunction, so too can those be- Maj. pursue its at 1056. taking place.” from injunction who ing targeted by seek pro- due procedural our conducting In it. resist into analysis, must take account we cess my colleagues’ I thus share views public’s and the interest. the government’s problems process due procedural 96 “the Eldridge, U.S. Mathews (1976) Orange’s case are of own (instructing raised this 47 L.Ed.2d S.Ct. *46 interest, “[t]hey from that stem creation” and us consider “the Government’s to to Plaintiffs’ ef- Orange’s the decision thwart the function involved and including in the procedures to use available that the forts the fiscal and burdens administrative Indeed, Maj. 1050. re- state procedural court[.]” or additional substitute entail”). the Orange Orange’s strategy is un- dismiss-and-serve quirement would process to due vio- protecting linchpin procedural in its doubtedly has a interest vital only today’s opinion applies community suppressing gang vio- lation because its correctly, Orange to whom dis- court thоse individuals But as the observes lence. and served. prong this in is missed later inquiry our under Mathews significant not has a inter- Orange whether hold, I do read need not and not We violence, but combating gang est in rather opinion post- that the today’s holding, as significant in it has a interest whether that deprivation procedural remedies process provide pre-deprivation to a failing proffered constitutionally are inad- Orange membership challenge Orange’s gang to any as to other class of individuals. equate allegations. may stronger argu- have Orange well a ’ and view, governmental under Mathews my inquiry this cannot be sev- ment In today’s challenge unsettling public prong and indefen- interest if Orange’s ered from from never voluntarily every appeared dismiss came individuals who sible decision to in- to contest the challenge proceeding to the in the state court individual who tried injunction actually gang who are mem- junction proceeding, state court the challenge But this is not the before then serve those same dismissed individu- bers. holding indi- today’s And to to injunction als it obtained uncon- us. stretch with admission, injunc- By Orange challenged who never tested. its own' viduals this tion in the state court action—whether adopted strategy part because effec- named the lawsuit or noL-would Plaintiffs-Appellees’ “aggressive effort[s]” to a tively Orange “bring Those force action “fight” injunction. efforts new against mem- injunctive for relief each new supporting included several motions and ex rel. Totten entry People See opposing pre- declarations a ber” OVC. 31, 41, Cal.App.4th liminary injunction, discovery Chiques, written re- Colonia (2007). a rule depositions. Cal.Rptr.3d 70 Such quests, and a of 20 schedule effect, dangerously law enforce- attorney impede In it district concluded would activity gang much efforts to curb unlawful costing litigate against was too ment membership continually “[gang] where today’s
changing.” Importantly, See id.
holding not reach so far. does sum,
In ideal procedural protection being inadvertently
to avoid included in
proposed injunction will often be to seek in-
relief from a neutral before the judge
junction Orange’s is entered. dismiss-and- effectively stripped
serve tactic Plaintiffs-
Appellees opportunity. of that That stra-
tegic maneuver —when combined with procedural
post-deprivation protections did Orange provide what consti- —is procedural process
tuted a due violation of
the United States Constitution. observations,
With I those concur in the
opinion. *47 UROOJ;
Sumaira Khalid Mahmood
Turk, Petitioners, HOLDER, Jr.,
Eric H. United States
Attorney General, Respondent.
No. 09-70628. of Appeals,
United States Court
Ninth Circuit.
Argued and Submitted June 2013.
Filed Nov. 2013.