Legal Limbo

Abel Manzo says he has been wrongfully put on Oakland's gang injunction list. But he has no constitutional right to an attorney.

When Abel Manzo arrives at his East Oakland barbershop, he doesn’t look like a gangbanger. It’s a Saturday morning around nine o’clock, and Manzo’s partner is already giving a buzz cut to a ten-year-old boy whose mother patiently waits nearby. Manzo readies for his first appointment — a young man in his late twenties who shows up several minutes later. Manzo and his partner work diligently, chatting and joking over the hum of electric hair clippers. When it comes up that Manzo could possibly be put on a new gang injunction list, his partner laughs, saying he didn’t realize he cut hair with such a big-time gangster.

But it’s no laughing matter for Manzo. He says being listed as a violent gang member by the City of Oakland could lead to him losing customers — or worse. “Showing my face on there is, like, gonna put my life on the line,” he said. “It could lead to my barbershop getting shot up.”

Oakland police and City Attorney John Russo say Manzo deserves to be on the city’s newest gang injunction list. The list includes dozens of alleged gang members in the city’s Fruitvale District, and police say that despite Manzo’s barbershop job, he’s one of Oakland’s most dangerous gang members. Russo and the city are going to court this week to win approval of the latest gang injunction. And if they win, Manzo’s life will never be the same again.

Gang injunctions have sparked controversy throughout California, mostly because of fears about racial profiling. Civil libertarians contend that gang injunctions allow cops to target young men based on the color of their skin. But in liberal Oakland, Russo has attempted to fashion a different sort of gang injunction that addresses those concerns. “I’ve always been a skeptic of injunctions — the broad-based kind,” Russo said in an interview. “To me, I have felt doing injunctions simply based on naming a gang and having an injunction against a gang and then having police on the scene make an ad-hoc determination as to whether or not someone is a member of the gang and therefore subject to the injunction — it’s too vague for my liking as a civil libertarian.”

So instead of just filing a court injunction against a specific gang, Russo also has targeted specific alleged gang members. The strategy is designed to limit racial profiling. Under Russo’s plan, police can’t arrest someone just because they believe he’s a member of violent street gang. Instead, the alleged gang member must be on the city’s official list before they’re subject to the gang injunction.

Gang injunctions prohibit city-identified gang members from associating with each other or being on the street at night. Police believe they’re an important tool in fighting crime. Earlier this year, Russo and Oakland Police Chief Anthony Batts instituted the city’s first gang injunction in North Oakland, but the jury is still out as to whether it has been effective. Russo and Batts believe it has, and the city attorney says his office has worked closely with police to identify forty members of the violent Nortenos gang in Fruitvale.

But while Oakland’s gang injunctions appear to be more progressive than those in other cities because they attempt to address the problem of racial profiling, Oakland’s strategy appears to have one significant flaw. Gang injunctions are civil matters, not criminal. That means that if an alleged gang member wants to prove he doesn’t belong on the list, then he has little choice but to hire an attorney to clear his name. And if he can’t afford one, he’s out of luck. There’s no constitutional right to an attorney in civil cases.

As for Manzo, he said he’s simply a barber who sold some marijuana when he was younger, and doesn’t belong on the city’s violent gang-member list. There’s also evidence that the city has wrongly placed people on its list before. But if Manzo wants to make this argument in court, he’ll have to pay almost a thousand dollars in filing fees. And if he wants to win, he’ll most likely have to have a good lawyer.

Fortunately for him, Michael Siegel and Jose Luis Fuentes, attorneys for the prominent Oakland law firm Siegel and Yee, have agreed to represent Manzo free of charge. Siegel and Fuentes believe that Manzo and the other alleged gang members targeted by the city should have the right to a lawyer if they can’t afford one in civil cases — just as they would in a criminal case.

However, Manzo could soon find himself without a lawyer at all. That’s because Russo is trying to dismiss Siegel and Yee based on an alleged conflict of interest. Russo contends that Siegel and Yee can’t fight the city on Manzo’s behalf because City Council President Jane Brunner is a member of that law firm.

Siegel and Yee and Brunner say there is no conflict. And Siegel hatched a new plan last week that may overcome the city attorney’s charges. But if it doesn’t and Russo gets his way, Manzo — like everyone else on the city’s gang injunction list — will be on his own.

In a small room in the downtown Oakland police station, there’s a gray metal bookcase with forty, white three-ring binders on it. Each one of the binders contains the name and photograph of a person that police and Russo say is a dangerous member of the Nortenos. “As you can see,” Doug Keely said, pointing to one of the massive binders, “there’s not just one little item. There are years and years of a pattern here of each individual doing multiple crimes, multiple stops, multiple confessions of being a gang member.”

Keely is OPD’s investigator of Hispanic gangs. He’s been preparing these individual dossiers for six months to a year, he says, with each binder taking roughly three weeks to assemble. “I spoke to over twenty officers, ones who have been working gangs for up to twenty years. We talked to them and found out who they think is causing the problems out there. And they have informants that tell them information, too. That’s how you start getting the list.”

Keely said in the beginning he had the names of several hundred people that he eventually narrowed to only the most dangerous gang members. “The misinformation is that if someone’s wearing certain clothing on the street, they’re getting arrested,” he said. Oakland’s injunctions have nothing to do with profiling of any kind, he said. “These people have caused so many problems that we have to, as a city, to protect our citizens, do something about it, and put these guys on the gang injunction.”

Oakland police and Russo say these forty individuals should be subjected to Oakland’s second gang injunction. Just like in North Oakland, those enjoined will face six months in jail and a $1,000 fine if they violate the terms of the injunction. The rules apply within a “safety zone” drawn up by OPD. In North Oakland, the zone stretches from the Berkeley border past the MacArthur BART station. In the newest injunction, the zone spans the Fruitvale and San Antonio neighborhoods.

Within these safety zones, the civil injunction prohibits those enjoined from associating with other people deemed to be gang members, being in public between the hours of 10 p.m. and 5 a.m., being in the presence of someone using illegal drugs, making gang signs, and wearing gang colors in public. There are exceptions for work, school, religious activities, and emergencies.

A person accused of being a gang member has thirty days from the time he is served with a subpoena to file an answer. This costs $945, unless the person gets a waiver based on indigence. Injunctions are a civil matter, so people charged have no right to a public defender. People have to pay for a lawyer out of pocket or represent themselves.

There is also an “opt-out program,” where accused gang members can fill out and mail the city a form appealing their inclusion on the list. The opt-out appeal goes to a panel of three people from the local neighborhood crime prevention council, the mayor’s office, and OPD. If a person doesn’t take these steps, or hire a lawyer to fight the injunction, the court accepts the police testimony as uncontested. This is called a “default,” and it results in the defendant usually being included on the injunction list — even if the police made a mistake.

And mistakes apparently have been made.

When Russo announced the proposed Fruitvale gang injunction at a press conference in October, 42 people were on the list. Francisco Gomez was one of them. He was also one of the people in the audience. After the conference, Gomez approached Officer Keely, who was also in attendance.

According to Gomez’s lawyer, Michael Siegel, Gomez told Keely “that he was not in a gang and that, instead, he was doing intervention and outreach to gang-impacted Oakland youth. He showed Keely an essay he had written for a college class in which he described how he has changed and how he has turned his life around. Gomez received an ‘A’ on the paper. Gomez received a 4.0 GPA on his most recent college report card.”

By chance, Siegel and Gomez were introduced to each other that night, and had a meeting the next day. Siegel agreed to represent him and immediately sent a letter to Russo’s office demanding that Gomez be taken off the list.

But Russo said that by the time he got Siegel’s letter, he’d already decided Gomez didn’t belong on the list. Gomez works for a nonprofit that collaborates with the city on crime prevention, and his boss sent Russo a letter on his behalf. “[Gomez] got some referrals and recommendations and we agreed,” Russo said. “‘Okay if you made the effort to come here and do this and these people are vouching for you, alright, let’s see how it goes. That’s great. If you’re turning your life around, we don’t want you on the list.'”

After taking Gomez off the list, Russo said he double-checked the other names with a team of five lawyers from his office. They found one other person who didn’t belong on the list — Ruben Cordova. “I wasn’t convinced that we’d prevail, and I instructed that he be taken out,” Russo said.

But Siegel wasn’t satisfied. “The wrongful inclusion of Francisco and Ruben dramatically illustrates the ongoing due-process violations by the city attorney,” he said. “His office has named individuals based upon speculative, outdated, and erroneous information. Russo is abusing the judicial process by accusing people of criminal activity without probable cause.”

Oakland police, however, are standing by their recommendations. When asked if putting Gomez and Cordova on the list was a mistake, Officer Keely replied, “no.”

To the same question, an Oakland police spokesman said: “What we do is we gather all the information here. These are all reports that are in the past. Now, we might not know what they’re doing right now to better their lives. And that’s why they’re given the opportunity to go to court to refute whatever’s going on here and take themselves off.”

But going to court and winning usually requires hiring a good attorney. That’s why Siegel and Fuentes want to represent multiple people named under on the Fruitvale list — if not all of them. Currently, however, they’ve only committed to representing Manzo. But they say Manzo’s case is indicative of more than half of the people on the list — people who may have some drug charges and may know gang members, but are far from being the worst of the worst as the city claims. And they plan not only to argue for Manzo’s innocence but also to challenge the whole injunction process as flawed.

In an October 20 letter to Russo, Siegel demanded that Manzo be taken off the list and that the city attorney’s office “refrain from engaging in making further public statements implicating Mr. Manzo as a Norteno. Mr. Manzo is not a member of the Nortenos and has never been convicted of a gang-related offense.”

In November, Russo responded by saying that Manzo has “a long history of gang related activity and adult convictions for drug offenses in 2004 and 2005. Moreover, one of Mr. Manzo’s probation officers confirms that he has continued to violate the terms of his probation.”

Manzo, now 25, said he did six months in Santa Rita county jail for selling marijuana several years ago. He admitted that he made a “wrong decision.” But he maintained that he shouldn’t be on the list. “I’m not a gang member,” he said. “My family, some of them are gang members, some of them are not. And that’s what they probably going off of. Just because my family, they probably think I’m gang related.”

In county lockups like Santa Rita, jailers ask inmates to identify their gang affiliations during intake. When they asked, Manzo said he responded: “No. I don’t gangbang or nothing.” Manzo said he decided to make the best of being behind bars. “I wasn’t going to let the time just stress me out, so I just learned how to cut hair and I became a barber,” he said. “And I’ve been doing that for the last couple years.”

Neither Russo nor Keely would discuss Manzo’s case. But in Russo’s letter to Siegel, the city attorney mentioned that Manzo “was arrested as recently as 2009 for associating with other gang members in violation of his probation terms at the scene of a gang-related shooting.”

The incident in question happened at a funeral. Manzo said he heard about the service last-minute, and only decided to go when he found out that he knew the mother of the person who had been killed. Manzo said she helped him get a job working at a Goodwill store when he first got out of jail. “So I went to go say sorry for what happened to her son,” he said. “I said my sorry. And I left. And I got arrested. I got arrested right when I walked out of the funeral home going to my car. I was going to work. They arrested me and they said [they were taking] me to jail for hanging around gang members — violation of probation. I did seventeen days.”

Manzo admitted that he made some “mistakes” in the past. In 2004, he was arrested and later convicted on marijuana charges. But according to records obtained from the city attorney, the only gang-related charge he has is the 2009 parole violation at the funeral.

Manzo acknowledged that he knows gang members, but he said he turned away from that life. He lives in East Oakland with his wife and nine-month-old daughter. He said he plays baseball in what is called The Mexican League. Sometimes his games are far away and he has to drive home late at night. He recognizes the injunction could stop him from doing something he’s very passionate about. But he says there are concerns that are even more serious. “It could lead to my barbershop getting shot up or something — for something that I ain’t,” he said. “Just because, I guess, I associate with gang members, now they say that I’m a gang member. But I’m not. I don’t have no tattoos saying I’m gang related. I don’t go to jail saying I’m gang related.”

But proving he’s not a gangbanger is another matter.

In the 1964 book, Gideon’s Trumpet, Anthony Lewis, a New York Times journalist, described the landmark case in which the US Supreme Court ruled that criminal defendants have a right to an attorney if they can’t afford one. Gang injunctions, by contrast, are civil matters, and alleged gang members only have the right to a lawyer if they violate the terms of the gang injunction. They have no right to an attorney to help them stay off the list in the first place.

Except in Tulare County. There, a public defender convinced a judge to let him represent people in the civil trial that determines whether someone is put on a gang injunction list. William Pernik, a deputy public defender, said he was assigned to defend people who were facing criminal charges for violating the terms of an injunction. He said that during this process he found people whom he felt shouldn’t have been on the injunction list to begin with. “Part of the reason why we wanted to come in in the civil case [was] to make sure it’s done right — to put [the District Attorney] through adversarial process because we believe if you put them through adversarial process the ultimate injunction is going to be a better injunction,” Pernik said. “It’s going to be more narrowly tailored to the people who it’s intended to enjoin from engaging in illegal activity.”

Pernik said the Tulare County District Attorney’s Office “fought like hell” to prevent him from representing the people accused of being gang members. In the end, the superior court judge allowed it. But the Tulare County DA’s office is still upset. “The public defender use of public money in order to attempt to frustrate efforts to suppress criminal street gang activity in our communities is a misuse of our tax money,” said Don Gallian, assistant district attorney for Tulare County. “If the injunction is imposed and someone is arrested and they cannot afford an attorney, they then have a right to obtain representation through the Public Defender’s Office. However, until that happens, the public defender should not be using public funds in an attempt to frustrate efforts of our communities to protect themselves from gang violence.”

Back in Oakland, Russo’s office said they would not object to the Alameda County Public Defender’s Office representing any of the forty people accused of being gang members. However, the Alameda County public defender’s office said it would not seek to defend alleged gang members in civil court. Representing people in a civil gang injunction case is “outside the scope of our duties,” the office said in a formal statement. “It is our understanding that competent counsel is challenging this injunction.”

But that competent counsel, Siegel and Fuentes, may not be challenging the injunction for long. Russo is going to court to get them kicked off the case because Councilwoman Jane Brunner works for the same law firm. “You cannot serve two masters,” Russo said of Brunner’s role as councilwoman and as a member of a firm that is fighting the city. “You cannot have somebody on the letterhead of a law firm opposing an action of the city when they are also the chair of the legislative body. She’s the chair of the council. She is hauling this office right now in front of city council complaining about how we spend our money. Tell me how that’s not a conflict of interest.”

But Brunner disagrees. She and the Siegel and Yee law firm point out that the council never sanctioned the city’s gang injunctions, noting that Russo filed them on his own in his role as city attorney. They also maintain that Brunner is not involved in Manzo’s defense. “Technically, I do not believe it’s a conflict in interest,” Brunner said. “I am going to recuse myself if the matter comes before city council.”

But it may never come to that. Last week, Siegel and Fuentes announced that they had helped form a new nonprofit to represent alleged gang members in the city’s Fruitvale gang injunction case. Called Communities United for Restorative Youth Justice or CURYJ (pronounced “courage”), the nonprofit petitioned the court to officially represent Manzo. The move may be enough to alleviate concerns about a conflict of interest, since Brunner’s firm, Siegel and Yee, would no longer be officially involved in the case. However, it’s unclear whether it will satisfy Russo and convince him to abandon his efforts to dismiss Siegel from Manzo’s defense. Late last week, city attorney spokesman Alex Katz said Russo was not yet prepared to comment on the new nonprofit.

According to the Oakland City Attorney’s Office, the North Oakland and Fruitvale gang injunctions have so far cost the city about $70,000. Some believe the city needs to put that money into programs and services while others believe it belongs where it is, in law enforcement.

But what the gang injunctions are worth is hard to pin down. As of mid-December, there had been 22 shootings and 2 murders in the North Oakland safety zone since it’s been in effect, compared to eleven shootings and one murder during the corresponding time last year. At the same time, no one on the list has been convicted of violating the North Oakland gang injunction.

Still, Russo maintained that the first injunction has been a success. “The way to measure if an injunction is working is very simple,” he said. “If you maintain the injunction against individuals, are those individuals still committing crimes at the rate that they were committing them before, in that neighborhood? Are they still terrorizing that neighborhood?”

But, critics ask, if shootings and murders have increased, while at the same time those on the list haven’t been committing crimes, might it stand to reason that the city has targeted the wrong people? Russo said no. “It just means that there are other people committing crimes,” he said. “And you need to deal with them. But they might not be part of a gang. The gang injunction is not a catchall for any criminal.”

When asked whether he thought gangs were predominantly responsible for the crime in North Oakland, Russo said: “I don’t know the answer to that. I don’t think we thought about that. What we thought about was, here’s this law that every other city uses and believes to some extent has helped with crime.”

When asked if there was a gang problem in East Oakland, Manzo said, “Ah, probably, yeah. There probably is a gang problem in East Oakland.” But he said the solution is to provide “jobs and do things for these kids, and get them off the streets. It’s kind of hard to go get a job when you’re on probation and got a felony [conviction].”

It might also make it hard to get a job when you’re on the gang injunction list. The list is available to the public on the city attorney’s website for any employer to see.

An Alameda County court is scheduled to take up Oakland’s proposed injunction against the alleged Norteno gang members this Friday. There also is another gang injunction planned for deep East Oakland to be announced in February.

Correction: The original version of this story erroneously stated that one person had been convicted of violating the North Oakland gang injunction. According to city attorney spokesman Alex Katz, no one has.

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