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Hastings Constitutional Law Quarterly

Authors

Cathy Wang

Abstract

Courts have issued gang injunctions, primarily in California, to enjoin alleged gang members from engaging in activities in furtherance of gang objectives. On the surface, these quasi-civil/criminal remedies might seem to protect the welfare of the community from alleged gang members. But a closer look reveals an Equal Protection problem: The injunctions prohibit defendants from doing what others can do solely based on their arbitrarily conferred gang affiliation status. What makes the situation all the more troubling is that many of the people labeled as "gang bangers" are poor minorities.

Because gang injunctions can easily entail unconstitutional discrimination, defendants should be able to claim selective enforcement as a defense when they suspect the government attempts to restrict them in a way in which others would not be restrained. This note proposes a method for defendants to prove selective enforcement in gang injunction cases by analogizing their cases to instances in which non-gang members have engaged in the defendants' same conduct, but were not prosecuted with gang injunctions. This note also calls for the adoption of Sixth Amendment procedural safeguards in gang injunction cases to more fully protect these defendants.

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