Prosecutors want lawsuit by ACLU targeting gang injunction tossed

By Lindsay Whitehurst
Associated Press

SALT LAKE CITY (AP) — Utah prosecutors asked a judge last week to toss out a lawsuit by two men who claim they were falsely labeled as gang members under a now-defunct injunction that forbid members of a gang from being seen together in public.

Prosecutors say the case should be dismissed because the rules aimed at the Ogden Trece gang are no longer on the books. Weber County Attorney Chris Allred has said the injunction helped police combat graffiti and gang crime.

The suit was filed by the American Civil Liberties Union of Utah on behalf of Leland McCubbin and Daniel Lucero.

It says the injunction went too far and the lawsuit remains relevant because Allred has said he wants to bring it back.

“This case represents an important test of how much power cities and counties have to restrict people’s individual liberties, and whether they will be held accountable when they go too far,” ACLU lawyers wrote in court documents.

They want U.S. District Judge Clark Waddoups to declare the tactic unconstitutional.

Waddoups didn’t immediately rule in the case, though he closely questioned attorney for Weber County.

Under the injunction issued in 2010, police created a list of Ogden Trece members using a database of evidence.

Prosecutors wrote the rules that forbid those members from meeting in public and carrying guns or graffiti tools. The measure approved by a judge also set a curfew that applied to a 25-square mile area that encompassed most of the city.

About 50 people were convicted of violating the injunction before it was overturned by the Utah Supreme Court in 2013. The justices ruled on a technicality rather than weighing in on whether the police powers were constitutional.

Gang injunctions are also used in California and elsewhere, but Ogden’s was unusual because it covered an entire city.

McCubbin says he was convicted of a misdemeanor for violating the injunction by being out after the 11 p.m. curfew, even though he left the gang two years before it was issued.

Lucero says he was never in the gang, but police were convinced he was a member and he was convicted of violating the rules.