In our opinion: Order to reduce urban crime or infringement on constitutionality, balancing act

Published: Monday, Sept. 24 2012 12:00 a.m. MDT

Judge Ernie Jones rules on a motion during a hearing about a gang injunction for the Ogden Trece gang.

Matthew Arden Hatfield

Enlarge photo»

An order banning members of an Ogden street gang from associating with each other in public has been highly effective in reducing area crime, according to local police. It's also an infringement on constitutionally protected freedoms, according to civil libertarians.

The Utah Supreme Court has been asked to weigh in on the matter, in a case we hope will add clarity to the appropriate use of a law enforcement tool that is gaining popularity in the battle against urban crime.

A lower court recently made permanent an injunction against members of the so-called Trece gang from meeting in public places in Ogden. The local branch of the American Civil Liberties Union has petitioned the Utah Supreme Court to review the constitutionality of the injunction.

At stake are issues pertinent to protections against unlawful search and seizure and the right to assemble or associate. The U.S. Supreme Court previously refused to hear a petition against the injunction on grounds the constitutional issues have not been fully vetted in the lower courts.

And vetted they must be. The ACLU's lawyer on the case said the injunction is tantamount to imposing "martial law on a targeted minority group and sacrificing constitutional liberties for the mere illusion of security."

But crime statistics indicate the use of injunctive powers to thwart gang activity has an impact more than illusory. In Ogden, officers say instances of graffiti have dropped 38 percent and total gang crime about 12 percent since the injunction was issued in 2010. Similar laws in effect in California cities have also been hailed as effective against gang crime and have also been challenged in court on constitutional grounds.

On one hand, it is critical that police have the ability to regulate suspicious behavior with proven links to habitual crime. On the other hand, such authority must be tempered so as not to open the door to blanket restrictions on activities otherwise protected under law. It is a balancing act that is constantly in play. The actions of police are continuously under judicial scrutiny in every American jurisdiction, as they should be.

But the plague of urban gang crime argues for innovative if not extreme measures by police. To that point, no individual member of the Trece gang has thus far been able to convince a court that his or her rights have been violated in the course of enforcing the Weber County injunction.

That is not to say the powers granted under the injunction may not be abused or misapplied. That is why a new body of case law should and will evolve around the question of just how such public orders should be structured and enforced. Such injunctions must be built to minimize opportunities for profiling or unreasonable detention.

That Ogden police have effectively pursued this line of attack on gang crime is an example of precisely what we want law enforcement to do in the face of a public menace. That the ACLU has challenged the bounds of the Ogden efforts is precisely what is needed to ensure the constitutional issues are fully and regularly monitored and managed.

It is an issue that here and nationally is not likely to be settled without a long process of civil adjudication. And that is precisely why it is important the Utah Supreme Court grants the matter a timely review.

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