case 1:14-cv-00068-ts document 3 filed 06/23/14 page 3 of...

RECEIVED CLERK

Michael P. Studebaker, #10027 of STUDEBAKER LAW OFFICE, L.L.C.

Attorney fo~ Plaintiffs FILED IN UNITED SIA.FS DISTRICT 2550 Washmgton Blvd. Ste 331 COURT, DISTRICT OF UTAH Ogden, UT 84401 Telephone 801-627-9100 Fax 801-Email: [email protected]

JUN 2 3 2014

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IN THE UNITED STATES DISTRICT COURT, NORTHERN DIVISION IN AND FOR THE STATE OF UTAH

ANTHONY LUCERO, CHASE AESCHILMANN, : COMPLAINT

JAMES RIVAS, TROY RIVERA, JUAN SAUCEDO, BRIAN BUTLER,

(CLASS CERTIFICATION)

& OTHERS SIMILARLY SITUATED

Vs. WEBER COUNTY UTAH, OGDEN CITY, OGDEN POLICE DEPARTMENT, DEE SMITH, in his official capacity, OFFICER ANTHONY POWERS, & DOES 1-30,

Defendants

Case: 1:14cv00068 Assigned To : Stewart, Ted Assign. Date : 6/19/2014 Description: Lucero et al v. y et al

Weber Count

COMES NOW, Plaintiffs in the above matter, by and through their attorney of

record Michael Studebaker, and hereby file this Complaint and make the following

allegations:

JURISDICTION AND VENUE

1. This civil rights case for deprivation of constitutional rights arising under the United

States Constitution and the Utah Constitution. The case presents a federal question within

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Case 1:14-cv-00068-TS Document 3 Filed 06/23/14 of 20

this Court's jurisdiction under 28 U.S.C. §§ 1331 and 1343. This action is brought under 42

U.S.C. §§1983, theFourthAmendmentto the United States Constitution, and the Fourteenth

Amendment to the United States Constitution. The Court has the ability to exercise its

supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

2. Venue is proper pursuant to 28 U.S.C. §1391(b). Venue is laid in the Northern Division

of the District of Utah.

3. Plaintiffs have properly filed a Notice of Claim as required by Utah Code §63G-7-402 et

seq.

PARTIES

4. The above-named Plaintiffs are or were residents of Weber County, State ofUtah during

the time of the events complained of herein.

5. Plaintiff Anthony Lucero is not an Ogden Trece member. He does have various tattoos,

but does not commit any gang related crime. He was served with the Injunction while

incarcerated, and could not defend against it. Based on the Ogden Gang Injunction

(Injunction), his familial relationships were severely hindered as he was then prohibited from

associating with his family members.

6. Plaintiff Chase Aescheliminann is not an Ogden Trece member. He is alleged to be a

member based, on who he knows in the community and associates with. Based on the

Injunction, his constitutional rights were severely hindered.

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7. Plaintiff James Rivas is not an Ogden Trece member. Mr. Rivas was served with the

Injunction in July, 2013. Mr. Rivas is a 24 year old citizen. When he was 16 years old he

obtained an "801" tattoo, but does not engage in gang related crime, but does know and

occasionally associate with persons alleged to be Ogden Trece members.

8. PlaintiffTroy Rivera is not an Ogden Trece member. Mr. Rivera knows and occasionally

associates with alleged Ogden Trece members. Specifically, he has family members who are

members of Ogden Trece. Mr. Rivera was never "jumped in" or "jumped out" of Ogden

Trece or any other gang. Based on the Injunction, his constitutional rights were severely

restricted.

9. Plaintiff Juan Saucedo is not an Ogden Trece gang member. Mr. Saucedo was served

with the Injunction while serving a jail sentence. Mr. Saucedo is a 38 year old citizen, who

when was 18 years old obtained an "80 1" tattoo. Based on the Injunction, his constitutional

rights were severely restricted.

10. PlaintiffBrian Butler is not an Ogden Trece gang member. Mr. Butler was served with

the Injunction while in jail for misdemeanor possession of marijuana. Mr. Butler knows and

occasionally associates with people considered Ogden Trece members, but does not engage

in any illegal behavior with them. Based on the Injunction, his constitutional rights were

severely restricted.

11. Defendants have violated the Constitution of the Untied States and the Utah Constitution

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by denying due process of law to Plaintiffs, and other similarly situated.

12. Defendant Dee Smith, in his official capacity, is a public official, elected by the People

of Weber County and entrusted with representing the people of Weber County in criminal

prosecutions. As a public official, Smith is vested with considerable powers, but those

powers are conditioned by the fact that he is the representative not of any ordinary party to

a controversy but of a sovereignly whose obligation to govern impartially is as compelling

as its obligation to govern at all. Indeed, as a public official Smith has a responsibility to

seek justice, to develop a full and fair record, and not to use his position of the economic

power of the government to harass parties or bring about unjust results. Smith has failed to

meet these basic responsibilities.

13. Defendant Weber County Utah is a governmental entity which brought the initial action

against the now Plaintiffs.

14. Defendant Ogden City is a governmental entity which maintains the Ogden Police

Department, and its employees.

15. Defendant Officer Anthony Powers, and officers Doe 1-30, are employees of the Ogden

Police Department who played a key and integrated role in bringing the initial action against

the now Plaintiffs.

STATEMENT OF THE FACTS

16. Plaintiffs adopt by reference paragraphs 1-15 herein.

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BACKGROUND

A. Gang Injunctions

17. More than a decade ago, the California Supreme Court authorized an unprecedented law

enforcement technique to deal with criminal street gangs-the issuance of a civil public

nuisance injunction against alleged gang members that restricted their activity in a four

square-block area. People ex rel. Gallo v. Acuna, 929 P .2d 596 (Cal. 1997). But Acuna and

subsequent appellate decision have recognized that this is an extraordinary remedy that must

be applied with great caution. Id; People v. Englebrecht, 106 AI. Rptr. 2d 738 (Cal. App.

2001); People ex rel. Reisig v. the Broderick Boys, 39 Cal. Rptr. 3d 64 (Cal. App. 2007).

Accordingly, the courts have made it clear that the prosecutor must meet a heightened stand

of proofby presenting "clear and convincing" evidence that the necessary elements of a gang

injunction are present before a trial court can invoke its injunctive powers. Englebrecht, 106

Cal. Rptr. 2d at 738.

18. Gang injunctions warrant careful scrutiny because they prohibit commonplace, lawful

activities, and thus can have a pervasive impact on the everyday lives of those bound and on

their families. Indeed, the reason that gang injunctions are so desirable from the perspective

oflaw enforcement is precisely because they enjoin lawsuit and innocent activity that can be

easily detected. The police can arrest individuals for violating the gang injunction, and the

prosecutor can charge them with a crime.

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19. This case underscores the need for courts to scrutinize the way in which prosecutors

obtain and police enforce gang injunctions.

B. The Initial Litigation

20. On September 28, 2010 Weber County, with the assistance of Defendant Powers,

Defendant Does 1-30, Defendant Ogden City, and through its agents Defendants brought

what can be considered a civil nuisance abatement lawsuit against an alleged criminal street

gang, naming Does 1-2001• Defendants obtained personal service on a minimal amount of

persons, including Samuel Parsons and J aimie Gomez. Defendants also named 200 unnamed

individuals alleged to be members of the gang seeking to subject them to virtually identical

preliminary and permanent Injunctions that prohibit and, in effect criminalize commonplace

and lawful activities-such as going outside in the evening, walking into a restaurant or onto

a bus, or attending a political meeting or religious service if any others who have been served

with the Injunction are present-in an area of Ogden totaling approximately 25 square miles2,

referred to as the "safety zone." For every act in violation of the Injunction, a person can

receive up to six months in jail and pay a $1,000 fine.

21. During various times in the service of the Injunction, Defendant Smith inserted himself

The Complaint did not contain any specific allegations against any particular individual or any of the persons served with it.

2

In researching the legal issues no other jurisdictions could be located with such a large geographic "safety zone"

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into the actions of serving the Injunction, as seen on video. Annie Cutler, Utah Supreme

Court Throws out Anti-Gang Injunction,

<http:/ /fox 13now.com/20 13/1 0/18/utah-supreme-court-throws-out-anti -gang-restraining-

orders-in-ogden/>3, thus making him a party in this action as it is outside the roles of the

County Attorney to participate in that type of action.

22. During the trial, the above-named Defendants would regularly cite to California law in

support of claims that the actions sought were appropriate and constitutional.

23. The Injunction was contested at the trial level. After a hearing, the trial Court entered

a permanent Injunction on August 20, 2012 (Exhibit A). This Injunction prohibited the

following constitutional actions:

(1) no driving, standing, sitting, walking, gathering, or appearing together with any known member of Ogden Trece anywhere in public view or anyplace accessible to the public, but not including: ( 1) when all individuals are inside a school attending class or on school business; and (2) when all individuals are inside a church; provided however that this prohibition against associating shall apply to all claims of travel to or from any of those locations; (3) no constitutional right to possess firearms; (4)no use of legal alcohol; (5) a curfew between 11:00 p.m to 5:00a.m.

24. During the trial, the above named Defendants clearly ignored Plaintiffs' constitutional

rights.

25. Those who were served with the Injunction, including but not limited to Plaintiffs, were

Defendant Smith is clearly seen on the video at 01:45

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subjected to possible arrest if they were in the same polling place with any person who had

also been served with the Injunction. See, Transcript at 102 (Exhibit B).


subjected to possible arrest if they were visiting their grandmother at 11 05 p.m. !d. at 103.


subjected to prosecution for possessing a firearm, even if no predicate crimes had been

committed. !d. at 1 02-03.

29. Law enforcement had unfettered discretion to determine who was a gang member

subjected to this Injunction, without any pre-deprivation hearings occurring. Id. at 69, 79,

80, 190-200,207-08,216, and 226.

30. No hearing before a Court of competent jurisdiction is held to determine if these persons

are in fact gang members.

31. All the above-named Defendants acted in concert with each other to violate Plaintiffs'

constitutional rights.

32. During both the preliminary and permanent status of the Injunction, Defendants caused

to be served the documents on any persons that were believed to be members of Ogden

Trece.

33. The issue was appealed to the Utah Supreme Court. The Supreme Court vacated the

Injunction in the case of Weber County v. Ogden Trece, et al. (Exhibit C).

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34. People served with the pleadings in this case were confused; they did not know how the

papers related to them-the pleadings did not include any specific allegations about them.

35. But for the few who were served with the actual preliminary Injunction papers at the

outset, nobody had counsel or were aware of what their constitutional rights were.

36. The association clause broadly prohibits a person subject to the Injunction from standing,

sitting, walking, gathering or appearing in a public place

C. Enforcement of the Order

36. On information and belief, since September 2010 the Ogden Police Department, Weber

County Sheriffs Office, and others have arrested numerous persons for violating this order.

CLASS ACTION ALLEGATIONS

37. Plaintiffs bring this action on their own behalf and all other persons similarly situated,

pursuant to Federal rules of Civil Procedure 24(a) and 24(b)(2), or in the alternative, as a

representative action pursuant to a procedure analogous to Rules 23(a) and 23(b)(2). Jama

v. ICE, 543 U.S. 335(2005)(allowing class action habeas petition). Plaintiffs bring this

action individually and on behalf of a class. defined as: All persons served with the

preliminary Injunction and/or the permanent Injunction

38. The proposed class meets the requirements ofFederal Rule of Civil Procedure 23(a)(l).

At least 300 individuals were, like Plaintiffs, served and subjected to the oppressive

restrictions of the Injunction.

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39. The identify of the class members is known by Defendants and is readily ascertainable

from their records.

40. The proposed class meets the requirements ofFederal rule of Civil Procedure 23(a)(2).

There are several common questions of law and fact in the action. These include: (1)

whether being subjected to the terms of the injunction deprived them of a liberty or property

interest; (2) the violations of the Plaintiffs' First Amendment rights; (3) the violations of the

Plaintiffs' Second Amendment rights; ( 4) the violations ofthe Plaintiffs' Fourth Amendment

Rights; (5) the violations of the Plaintiffs' Fourteenth Amendment Rights; (6) violations of

Plaintiffs' constitutional rights under Article 1, Section 1 of the Utah Constitution; (6)

violations of Plaintiffs' constitutional rights under Article 1, Section 6 of the Utah

Constitution; (7) violations of Plaintiffs' constitutional rights under Article 1, Section 7 of

the Utah Constitution; (8) violations of Plaintiffs' constitutional rights under Article 1,

Section 8 of the Utah Constitution; and (9) violations ofPlaintiffs' constitutional rights under

Article 1, Section 15 of the Utah Constitution.

41. The proposed class meets the requirements of Federal Rule of civil Procedure 23(a)(3).

The claims of the named Plaintiffs are typical of the claims of the proposed class. Like the

proposed class members, the named Plaintiffs were subjected to the terms of the Order

without having been afforded notice and an opportunity to be heard as required by the Due

Process Clause.

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42. The proposed class meets the requirements ofFederal Rules of Civil Procedure 23(a)(4).

The named Plaintiffs will fairly and adequately represent the interests of all members of the

proposed class because they seek relief identical to the relief sought by all class members and

because they have no interest adverse to other class members.

43. The proposed class meets the requirements ofF ederal Rules of Civil Procedure 23(b )(2).

Defendants have acted on grounds generally applicable to the class through their policy and

practice of subjecting individuals who were named without providing due process of law,

making class-wide declaratory and injunctive relief appropriate.

LEGAL BACKGROUND

44. This case involves the egregious abuse of government power and denial of due process

by the above-named Defendants. Over 300 individuals were subjected to the terms of the

Injunction without the government having to prove the case individually against them.

45. Plaintiffs, and others similarly situated, have a liberty interest in their fundamental rights

of free speech, freedom from vague and arbitrary laws, and free movement, all of which are

guaranteed by the state and federal constitutions. The Injunction deprived Plaintiffs of these

fundamental rights. The Injunction proscribed otherwise legal acts and, in effect, creates a

personal criminal code for each individual who Defendants, in their own unfettered

discretion, is subject to its terms. The deprivation of liberty interests thus stems from the

Injunction and Defendants service of it on Plaintiffs, and others similarly situated, who now

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risked prosecution for engaging in lawful and socially desirable conduct.

46. The Injunction, moreover, subjected Plaintiffs, and others similarly situated, to

conditions that significantly confined and restrained their freedom and that were not

otherwise shared by the public generally. Such restrictions on individual liberty subject a

person to "custody" although there is no physical confinement. Jones v. Cunningham, 3 71

U.S. 236, 249 (1963). Thus, Defendants had custody of Plaintiffs, and others similarly

situated, in violation of federal and state constitutional law.

4 7. A fundamental aspect of due process is that a person deprived of a liberty interest be

given an opportunity to be heard "at a meaningful time and in a meaningful manner."

Indeed, "the root requirement of the Due Process Clause is that an individual be given an

opportunity for a hearing before he is deprived of any significant protected interest."

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Such a hearing helps

ensure fairness for the individual and serves to protect citizens from arbitrary government

encroachment. This did not happen for Plaintiffs or others similarly situated before

Defendants just named them as gang members.

48. The actions of the Defendants in this matter has throughly subverted the judicial process

and denied Plaintiffs and others similarly situated their constitutional right to due process.

As a result of the Defendants's actions, Plaintiffs and others similarly situated found

themselves in the constitutionally untenable position of abiding by an Injunction. They were

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pout into the position of continuing to live their lives and exercise their freedom and risk

arrest and incarceration for violating the Injunction. The opportunity to defend against this

in a criminal court, following arrest and incarceration, is a pale substitute for the opportunity

to defendant against a civil suit and to oppose issuance of the Injunction in the first instance.

Indeed, the opportunity to defend in a criminal proceeding comes too late to prevent precious

constitutional freedoms and interests from being affected by this unjustified and unlawful

Injunction.

COUNT I

42 U.S.C. § 1983-Procedural Due Process

49. Plaintiffs reallege and replead all the allegations of the preceding paragraphs of this

Complaint and incorporate them by reference.

50. Defendants acted under color of law.

51. The acts of Defendants deprived Plaintiffs and those similarly situated of their rights

under the Fourteenth Amendment to the Untied States Constitution.

52. Specifically, by subjecting Plaintiffs and those similarly situated, or causing them to be

subjected to the terms of the Injunction, Defendants deprived Plaintiffs and those similarly

situated of their constitutionally protected liberty or property interest without adequate

procedural protections.

COUNT II

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Article 1, Section 7 Utah Constitution-Due Process of law





under Article 1, Section 7 ofthe Utah Constitution.



situated of their constitutionally protected liberty or property interest without adequate

procedural protections.

COUNT III

First Amendment to United States Constriction





under the First Amendment to the Untied States Constitution.



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situated of their constitutionally protected rights to freedom of speech, association, religion,

or to protest the government.

COUNT IV

Article 1, Section 1 Utah Constitution





under Article 1, Section 1 of the Utah Constitution.



situated of their constitutionally protected rights to freedom of speech, association, religion,

or to protest the government.

COUNTV

Second Amendment to Untied States Constitution





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under the Second Amendment to the United States Constitution.



situated of their constitutionally protected rights to bear and possess arms.

COUNT VI






under Article 1, Section 6 of the Utah Constitution.



situated of their constitutionally protected rights to bear and possess arms.

COUNT VII

Fourth Amendment to United States Constitution



74. Defendants acted under color oflaw.

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under the Fourth Amendment to the United States Constitution.



situated of the right to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures. Nor was there any probable cause, supported by Oath

or affirmation, of any violation of law.

COUNT VIII





79. The acts of Defendants deprived Plaintiffs and those similarly situated oftheir rights

under the Fourth Amendment to the United States Constitution.



situated of the right to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures. Nor was there any probable cause, supported by Oath

or affirmation, of any violation of law.

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COUNT IX

Defamation/Libel/Slander



82. In press interviews, Defendants referred to Plaintiffs, those served with the Injunction,

and others similarly situated false statements that they knew or should have known as false

statements accusing Plaintiffs of: (1) being members ofthe Ogden Trece street gang; (2)

engaging in criminal activity including murder, drugs, burglary, and numerous other crimes.

These statements are false. These statements caused damage not only for being wrongfully

enjoined, but by making these types of allegations Defeats harmed the reputation ofPlaintiffs

in the community based on pure speculation.

COUNT X

Intentional Infliction of Emotional Distress



84. The false statements about Plaintiffs, and subjecting them to an improper Injunction, are

outrageous on their face, as well as intolerable in that it offended the generally accepted

standards of decency and morality.

85. It is clear that the actions of Defendant was intended to cause, or acted in reckless

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disregard of the likelihood of causing, emotional distress.

86. Plaintiffs suffered severe emotional distress by always having to worry about the balance

between exercising their constitutional rights and being subjected to arrest.

87. The actions of the named Defendants caused this distress on behalf of Plaintiffs.

COUNT XI

Negligent Hiring/Supervision/Retention



89. Weber County, Ogden City, and the Ogden Police department knew or should have

known that its employees were falsely claiming Plaintiffs were gang members and should be

subjected to the Injunction.

90. The employees of Ogden City, Weber County, and the Ogden Police Department did

actually cause the Injunction to be filed and litigated, ignoring the procedural due process

rights of Plaintiffs and others similarly situated.

91. Weber County, Ogden City, and the Ogden Police Department were negligent in their

hiring, supervising, or retaining the employees proximately caused the injury which Plaintiffs

and others similarly situated suffered.

WHEREFORE, Plaintiffs pray for the following relief against the Defendants:

A. For the actions complained of herein, general damages in a reasonable sum as set by a

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jury;

B. For special damages which may be proved at trial;

C. For costs and expenses incurred in this proceeding;

D. For attorney's fees;

E. For interest on all special damages;

F. This matter be certified as a class action;

G. In the event that the evidence shows that Defendants engaged in reckless or willful

conduct injuring Plaintiffs, Plaintiffs further pray for punitive damages against Defendants

in an amount to be determined at trial, but not less than three times the sum of special and

general damages awarded; and

H. For such other and further relief as is equitable and just.

I DATED this the_, _day of June, 2014.

<:;"··

Michael P. Studebaker Attorney for Plaintiffs

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EXHIBIT "A"

Case 1:14-cv-00068-TS Document 3-1 Filed 06/23/14 Page 1 of 9

FILED IN TilE SECOND JUDICIAL DISTRICT COURT OF WEBEF cor I

STATE OF UTAH, OGDEN DEPARTMENT AUG 2 0 2012

WEBER COUNTY,

Plaintiff,

vs.

OGDEN TRECE, AKA, CENTRO CITY LOCOS, a criminal street gang sued as an unincorporated association; and DOES 1 through 200, inclusive,

Defendant.

_:_o_L:vVP4Y DISTRICT COURT

ORDER GRANTING PERMANENT INJUNCTION

AUG 2 0 2012 CASE NO. 100906446

JUDGE ERNIE W. JONES

Plaintiff Weber County filed an application for injunctive relief to abate a public nuisance.

The Court has carefully considered the application, all documents filed in this action, including the

declarations and Plaintiff's memorandum of points and authorities, the testimony and evidence

presented in this matter, and the oral arguments presented at the hearing on September 14 and

September 27, 2010, the evidence presented at trial on June 11, 12, and 14, 2012, all exhibits entered

in that trial, and all testimony of witnesses and expert witnesses during that trial.

This Court finds that service is proper under the circumstances, and makes the following

additional findings of fact: (a) that Defendant is a criminal street gang because it is an association in

fact or group of three or more persons that, operated informally or formally, is currendy in

operation. The Court finds that Ogden Trece, AKA Centro City Locos ("Ogden Trece"), has as

one of its primary activities the commission of one or more predicate gang crimes. The Court finds

that Ogden Trece has, as a group, identifying names, signs, symbols, colors, and clothing. The

Court finds that Ogden Trece's members have, acting individually or in concert with other

members, engaged in and engage in a pattern of criminal gang activity.


The Court also finds that: (b) Defendant is an "unincorporated association" as defined in

Utah Rules of Civil Procedure Rule 4; (c) a public nuisance caused by the conduct and activities of

Ogden Trece exists in the Safety Zone identified in Plaintiffs Amended Complaint and set forth

herein; and (d) the conduct and activities of Defendant, its members, and those persons through

whom Defendant acts, is a cause of the public nuisance that exists in the Safety Zone defined as the

City of Ogden, starting at 36th Street running directly east to the border of Ogden City and Weber

County, and west to Pacific Avenue; extending from 36th Street and Pacific Avenue north to 31st

Street, then west on 31't to Pennsylvania Avenue, north to 24th Street; 24th Street east to the front

runner tracks (sometimes called "Union Pacific Drive") north along the front runner track to the

Harrisville border at North Street; from the border of Harrisville beginning at the front runner

tracks extending east along North Street to Washington Blvd.; north on Washington Blvd. to the

border of North Ogden City at 1500 North; east along the border of North Ogden City to the

Weber County border; then south along the County border to the intersection of 36th Street

extended east to the County border, and extending 100 yards to the outside of each of the described

boundaries.

GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED that:

1. Defendant Ogden Trece and its members are enjoined and restrained from directly or indirectly

engaging in or performing any of the following activities in the Safety Zone:

a. Do Not Knowingly Associate: Driving, standing, sitting, walking,

gathering, or appearing together with any known member of Ogden Trece anywhere

in public view or anyplace accessible to the public, but not including: (1) when all

individuals are inside a school attending class or on school business; and (2) when all

individuals are inside a church; provided however that this prohibition against

associating shall apply to all claims of travel to or from any of those locations;

2


b. No Intimidation: Confronting, intimidating, annoying, harassing, threatening,

challenging, provoking, assaulting any person known to be a witness to any activity

of Ogden Trece, known to be a victim of any activity of Ogden Trece, or known to

have complained about any activity of Ogden Trece;

c. No Firearms, Imitation Firearms, or Dangerous Weapons: Anywhere in public

view or any place accessible to the public, (1) possessing any firearm, imitation

firearm, ammunition, or illegal weapon as defined in U.C.A. §76-10-501; (2)

knowingly remaining in the presence of anyone who is in possession of such firearm,

imitation firearm, ammunition or illegal weapon; or (3) knowingly remaining in the

presence of such firearm, imitation firearm, ammunition or illegal weapon;

d. No Graffiti: Unauthorized damaging, defacing, spraying, scratching, affixing,

inscribing, or marking any public property or private property of another;

e. Stay Away From Drugs and Drug Paraphernalia: Without a prescription, (1)

selling, possessing, or using any controlled substance or related paraphernalia, as

defined in U.C.A. §58-37a-3; (2) knowingly remaining in the presence of anyone

selling, possessing, or using any controlled substance or such related pa>raphemalia;

or (3) knowingly remaining in the presence of any controlled substance or such

related paraphernalia;

f. Stay Away From Alcohol: Anywhere in public view or any place accessible to the

public, except on properly licensed premises, (1) possessing an open container of an

alcoholic beverage, (2) knowingly remaining in the presence of anyone possessing an

open container of an alcoholic beverage, or (3) knowingly remaining in the presence

of an open container of an alcoholic beverage;

3


g. No Trespassing: Being present on or in any property not open to the general

public, except (1) with the prior written consent of the owner, owner's agent, or the

person in lawful possession of the property, or (2) in the presence of and with the

voluntary consent of the owner, owner's agent, or the person in lawful possession of

the property;

h. Obey Curfew: Being present in public view, in a public place, or in any place

accessible to the public, between the hours of 11 p.m. on any date and 5 a.m. of the

following day, unless (1) going directly to, returning directly from, or actively

engaged in a legitimate business trade, profession, or occupation requiring the

enjoined person's presence, (2) going directly to, returning directly from, or actively

engaged in a lawful, non-gang related entertainment event, school activity, or

religious service, or (3) actively involved in a legitimate emergency, such as a fire,

natural disaster, automobile accident, or situation that requires immediate action to

prevent serious bodily injury or loss of life. For purpose of this provision,

"entertainment event" means an activity that occurs at a commercial establishment

and includes only events for which admission is charged, such as movies, plays,

public performances, or sporting events; and

1. Obey All Laws: Failing to obey all laws: (1) which prohibit violence and threatened

violence, including murder, rape, robbery, and assault; (2) which prohibit interference

with the property rights of others including trespass, theft, driving or taking a vehicle

without the owner's consent, and vandalism; or (3) which prohibit the commission

of acts which create a nuisance including the illegal sale of controlled substances and

blocking the sidewalk;

4


2. Hardship Exemption Process (Do Not Associate and/ or Obey Curfew Provisions) A

person may receive a specific exemption from portions of the "do not associate" and/ or the "obey

curfew" provisions pursuant to the following process:

a. A written application for such exemption is to be made to the Weber County

Attorney, 2380 Washington Blvd., Ogden, Utah 84401;

b. The application must be specific in that it must request permission to associate only

with a named individual or named individuals at specific times and in specific places

when such association is reasonably necessary, or permission to be in a specific

public place between 11 p.m. and 5 a.m. when it is reasonably necessary to be in a

particular place at a particular time during those hours; and

c. If such application is made and not granted within ten (1 0) days after it is delivered

or fifteen (1 5) days after it is mailed, the applicant may apply to this Court for such

an exemption by noticed motion.

3. "Opt-Out'' Provision: Any person (hereinafter, "Served Person") who has been served with this

injunction or any subsequent injunction entered in this action (hereinafter, "Gang Injunction") may

move this Court under this opt-out provision or any subsequent opt-out provision approved by this

Court to be dismissed from this action. This Gang Injunction shall not be enforceable against a

Served Person who is dismissed under this Opt-Out Provision. The terms of the current Opt-Out

Provision are as follows:

a. Requirements: Plaintiff agrees not to object to a Served Person's motion to be

dismissed under this provision, so long as the dismissal is to be without prejudice

and with each side to bear its own costs and fees, and so long as the motion satisfies

the following requirements:

5


(1) Proper Notice: A motion under this provision shall be made on proper

notice, properly served on plaintiffs counsel, and shall not be made on

shortened time;

(2) Not/No Longer a Gang Member: Served Person must declare that

he/she is a reformed, former Ogden Trece gang member, that he/she is not

active with Ogden Trece, and he/she has renounced the Ogden Trece gang

and gang life; or Served Person must declare that he/ she never was an

Ogden Trece gang member. This declaration regarding Ogden Trece and

gang life is an essential part of this provision; and

(3) Proof Required: (A) Served Person must declare that he/ she has not been

arrested for a gang-related crime in the past three years, not including any

time spent incarcerated, which must be true; (B) Served Person must declare

that he/ she has not been documented by law enforcement for the past three

years to have been in the company or association of any known active

member of Ogden Trece, other than an immediate family member, which

must be true; (C) Served Person must declare that he/ she has not obtained

any new Ogden Trece or Centro City Locos gang-related tattoos for the past

three years, which must be true.

b. No Third-Party Beneficiaries: It shall not be a defense to any civil or criminal

contempt charge, or civil or criminal charge of any nature whatsoever, that any

person, including any Served Person, was eligible to apply for dismissal under this

provision.

c. Effect in Other Proceedings: Plaintiff shall not be bound by the criteria of this

Opt Out Provision (three arrest-free years, and other criteria), in any action, civil or

6


criminal, other than a motion brought under this provision in this action. Moreover,

a dismissal under this provision shall be without prejudice and shall not operate as

retraxit in any other action.

d. Dismissed "Served Person" Committing New Violation: If a Served Person

who has successfully been dismissed from this Gang Injunction pursuant to this Opt

Out Provision, fails to abide by all of the above "opt-out" provisions, such as by

associating with known active Ogden Trece gang members, by getting new gang

tattoos, or by getting arrested for any crime that is determined to be a gang-related

crime, then such Served Person may be re-served with this Gang Injunction, and will

be required to comply with all of its terms.

4. Personal Service Required: No person shall be subject to the provisions of this Order unless

that person has been previously served with this Order.

5. No Bond Required: Plaintiff shall not be required to post an undertaking pursuant to Rule

65A(C)(1) of the Utah Rules of Civil Procedure.

6. Severability: If any provision of this injunction or the application of any such provision to any

person or circumstance is held invalid, the invalidity does not affect other provisions or applications

of this injunction which can be given effect without the invalid provision or application, and to this

end the provisions of this injunction are declared to be severable.

Dated this 2 t::J day of August, 2012.

'e W.Jones District Court Judge

-

7


CERTIFICATE OF MAILING

I certi1j that on this Z.O day of ~ 2012, I caused to be served by U.S. mail, a

true and correct copy of the foregoing Order Granting Permanent Injunction to the following:

Randall W. Richards 2550 Washington Blvd., Ste 300 Ogden, UT 84401

Michael P. Studebaker 2550 Washington Blvd., Ste 331 Ogden, UT 84401

Michael J. Boyle 2554 Monroe Blvd. Ogden, UT 84401

Dee Smith Weber County Attorney's Office 2380 Washington Blvd., Suite 230 Ogden, Utah 84401

8


EXHIBIT "B"


SECOND DISTRICT COURT - OGDEN

FOR WEBER COUNTY, STATE OF UTAH

WEBER COUNTY,

Plaintiff,

vs. CASE NO. 100906446

OGDEN TRECE,

Defendant.

BEFORE THE HONORABLE ERNIE W. JONES

2525 GRANT AVENUE OGDEN, UTAH

TRIAL JUNE 12, 2012

1


1

2

Q.

A.

That the gang cases have gone down?

That's just a reflection of cases that are within

3 our records management system that are flagged as having gang

4 involvement.

5 Q. All right. And let me talk about that for a

6 minute. Do you have some definitions established regarding

7 these data samples?

8

9

10

11

versus

A.

Q.

You say definitions, what do you mean?

Definitions as to what a gang-related crime is

a nongang-related crime, for instance?

A. That selection is made at the discretion of the

12 officer who completes the report and then reviewed by their

13 sergeant and then a lieutenant.

14

15

Q. Okay. So there's no definitions given to these

individuals that are making the reports? That would be the

16 individual officers?

17 A. There may be. I don't know what policy, so to

18 speak, are in place as far as them saying this is -- has gang

19 involvement so you need to select yes; this does not so you

20

21

22

23

24

25

need to select no.

Q. Okay.

A. That would probably be part of our field training

officer program.

Q. But you don't know that?

A. I don't know.

69


1 through the RMS system is there any validity, studies that

2 are done that go back and see whether or not, for example,

3 one particular case the officer correctly entered in the data

4 is in the right fields?

5 A. Not that I'm aware of.

6

7

8

9

10

11

12

Q.

A.

the report.

Okay.

Usually that's handled when the officer submits

The sergeant reviews it. If they approve it, a

lieutenant then reviews it and approves or kicks it back for

correction.

Q. So when he submits his written police report -

well, nobody writes those anymore -- types in the police

13 report, right?

14

15

16

A. Right.

Q. Then you're saying that the sergeant and then the

lieutenant reviews the police report with the screens on the

17 RMS system [sic] to see if the data matches up?

18

19

20

21

22

A. No, to see if -- to see if the officer

a criminal offense, have all of the elements of that

particular crime been met in the report.

Okay.

if it's

Q.

A. If all of the individuals or the entities in that

23 report are completely filled out, name, addresses, birth

24 dates, and whatnot, and fields such as the gang involvement

25 field is that appropriately checked or not.

79


1

2

3

4

5

was

Q.

A.

Q.

So there is some oversight?

There is.

So are you aware of how many times the information

entered incorrectly in the gang field itself?

A. I'm not. I don't know that that's tracked within

6 the system. If a sergeant reviews a case and feels that it

7

8

needs more work, they'll kick it back to the author of the

report, and they'll correct it. But I don't know that that's

9 tracked.

10 Q. Now, is it your understanding the gangs injunction

11 went in effect of August of 2010, right?

12

13

14

15

A.

Q.

A.

Q.

September is

September?

September of 2010 is what I'm aware of.

Okay. So in September of 2010 -- oh, there was an

16 exparte that was in place but -- September of 2010 was that

17 broken down from the point pre-injunction to post-injunction?

18

19

20

21

22

23

24

A.

Q.

Not in this report.

So in the report that you submitted, how much

direction did you have from the county attorney as to how

that report was supposed to be created?

A. From what I recall it was just to go back in time

to a particular point, pull of the cases that were indicated

as having gang involvement and to chart them and trend them

25 as the report reflected.

80


1

2

A.

Q.

Uh-huh. I have a copy of it here.

Okay. I'll give you some hypotheticals here based

3 on-- just I'm curious in your expertise then.

4 As the injunction is drafted and entered by this

5 Court if two people over the age 18 are registered voters in

6 Weber County, and they go to a polling place at the same

7 time, that would be a violation then under the association

8 clause, wouldn't it?

9 That would be paragraph A, if you want to look at

10 it.

11 A. Let's say if Mr. Smith and myself went to -- you

12

13

14

said two people.

Q. Okay. I'll clarify it for you then.

Two persons who have been served with the

15 injunction, and they go to vote -- but they're registered

16 voters; is that a violation of the association clause?

17

18

19

20

That would be Paragraph A.

A. Hold on. Let's see. I believe it would.

Q. And that would then subject that person to

arrest and being prosecuted in your court as the chief

21 prosecutor of Ogden justice court?

22 A. If -- if they violated the injunction, yes.

an

23 Q. As a lawyer and a prosecutor you're aware that

24 certain crimes prohibit somebody from possessing a firearm,

25 right?

102


1

2

A.

Q.

I -- are you --

A domestic violence [inaudible] defenses because

3 you prosecute them, you're aware of the fact that that's a

4

5

6

7

potential to hinder a person's ability to possess a firearm?

A. Correct.

Q. All right. And yet -- I want to give you another

hypothetical as it relates to this injunction. If somebody

8 who's been served with injunction, has not committed any

9 predicate crimes that would bar them from a firearm --

10 domestic violence, felonies, all the other predicate

11 crimes -- but if somebody who a -- an adult possess a firearm

12 and has been served with the injunction, that also is a

13 violation then of the injunction and subjecting them to

14 criminal prosecution, right?

15 That would be paragraph C.

16

17

18

19

A.

Q.

I see it, yeah. I mean you're aware of it, yes.

I'm aware of what I'm aware of.

But that then would be a violation.

If an Ogden -- or somebody who has been served with

20 the injunction is coming home from their grandma's, 11:05

21 p.m. And had -- stopped by Detective Powers, the gang unit.

22 Is that a violation of the injunction, under paragraph H?

23

24

A.

Q.

25 courtroom?

It would be a violation.

Again, subjecting them to prosecution in your

103


1

2

3

4

5

A. It just ensures that he doesn't get stuck

cell with a Surenos gang member.

Okay. So it's a good safety measure then?

Yes. It's the jail safety member.

in a

Q.

A.

Q. Give you a little bit of credibility too in the

6 process, right?

7 A. For? Credibility towards what?

8

9

10

11

Q. Oh, just credibility with the people in the jail.

I mean, people in the jail are not the -- generally the fine

upstanding members of the community, right?

A. I don't know if it adds any to it. Being a

12 member and from the gang, I think, at least you would have

13

14

15

16

17

18

friends in there.

Q. Okay. So let's -- go from that -- for purposes of

this hearing and this hearing only, we'll agree that Mr.

Parsons admits to being a gang member. All right?

A.

Q.

Okay.

So let's say this: That one hit -- and again, on

19 these boxes, that one hit would just make him a gang

20 affiliate, right?

21

22

23

A.

Q.

An associate, yes.

Thank you. An associate.

That does not make him an unidentified Ogden Trece

24 gang member?

25 A. No, it does not.

190


1

2

3

Q.

A.

Q.

All right. We need at least one more box?

Yes, you do.

All right. So if I am arrested, hypothetically

4 speaking, and I'll admit that I'm not Mr. Macho and I'm not

5 going to enjoy my time at the county jail

6

7

8

9

10

11

12

13

A. Uh-huh.

Q. -- and I want the protection that you identified,

I can go in there and tell the booking officer,

hypothetically, that I am a Ogden Trece gang member, and they

would probably put that in my little booking sheet?

A.

Q.

A.

Yes, they would.

Okay.

As far as offering protection, if you were not an

14 Ogden Trece gang member as been testified in the past it

15 would probably result in a beating any ways.

16 Q. Could be. I mean, we'll have to see. They may

17 like me. All right.

18 So I get out and then I've already been -- already

19 had this sheet now that says, bam, I've admitted to gang

20

21

22

23

24

25

affiliation. But all of a sudden I'm an associate. I'm not

a full gang member.

And let's say this, I get out. I'm out on

Wednesday night -- and I'm going to show you-- what's been

marked as Defendants' Exhibit Number 2.

A. Uh-huh.

191


1

2

3

4

5

6

7

8

9

10

11

12

13

Q.

A.

Q.

A.

Q.

A.

Do you recognize that document?

Yes, I do.

What is it?

This is the Ogden Trece gang injunction list.

Did you help create that document?

Yes, I did.

Q. All right.

open of it, right?

And it identifies that name at the

list.

A.

Q.

A.

Ogden Trece member list.

Right. And

And just to clarify: This is a gang injunction

This is not every person who's in-- on the gang--

Q. Correct. And it's also the Ogden Trece -- not all

14 of the gang members?

A.

Q.

Right.

Right. We had all that whole discussion.

a prior hearing about it. And --

We had

15

16

17

18 MR. STUDEBAKER: Your Honor, at the time we'd move

19 to admit Defendants' Exhibit Number 2.

20

21

22

23

THE COURT:

MR. MILES:

THE COURT:

MR. MILES:

24 discussing this issue.

25 THE COURT:

All right. Any objection to 2?

One second, Your Honor.

I'm sorry?

One minute, Your Honor, we're kind of

Okay.

192


1

2

3

4

5

6

7

8

9

10

11

12

MR. MILES: No objection, Your Honor.

THE COURT: All right. We'll admit D 2.

(Defendants' Exhibit No. 2 was received into

evidence.)

Q. (BY MR. STUDEBAKER) All right. So Detective

Powers, back to my hypothetical, I spent my night in jail for

a minor traffic offense.

A. Okay.

Q. And I -- because

to being Ogden Trece.

A.

Q.

Okay.

And I get out.

of my fear for my safety, I admit

And I've already got that one hit.

13 Now I'm going to the hospital to see my dying mom,

14 hypothetically, and let's say I run into -- I don't know, on

15 that Defendants' Exhibit 2 -- Jose Acosta.

16

17

18

19

A.

Q.

A.

Q.

Okay.

Do you know Mr. Acosta?

Yes, I do.

Okay. I don't. So-- but he's identified as the

20 first name on the database or this member list, if you will

21 that we've talked about.

22

23

A.

Q.

Yes.

And it's a little bit late. And then I also run

24 into-- as we're coming home Jose Cabral --who's also on

25 first page of this list.

193


1 Do you know Mr. Cabral?

2 A. I'm not familiar with him.

3 Q. Okay. But he's on the list?

4 A. Yes, I believe that's --

5 Q. And the reason he would be on this list because of

6 the fact he has met the criteria being an Ogden Trece gang

7 member?

8 A. Yes, sure, yes.

9 Q. All right. So we got two people now. So I'm

10 coming home from the hospital after seeing my dying mother

11 and you run into me, Mr. Acosta, Mr. Cabral, right, two gang

members. 12 That's one time you've run into us right, let's

13 just say.

14 A. Yes, that would be --

15 Q. Okay.

16 A. -- well, what circumstance?

17 Q. We're walking home.

18 A. All three of you?

19 Q. Yes.

20 A. Is there -- do you know these people?

21 Q. Sure.

22 A. Okay.

23 Q. I just met them at the hospital. They seemed like

24 nice guys.

25 A. Okay.

194


1

2 Mr.

Q. All right. And you come up to us and you talk to

Cabral and Mr. Acosta because as a gang detective you're

3 aware that they're Ogden Trece gang members, right?

4

5

6

7

8

9

10

11

A.

Q.

Yes, I do.

All right. You may ask them -- I don't know --

how they're doing? What are you up to?

of trouble?

You guys staying out

A.

Q.

A.

Q.

Sure.

All right.

We've had contacts that are just as much as that.

Okay. And they're, like, Oh, Detective Powers,

12 you know, we're not doing anything.

13 And I'm, like, Officer, we're just coming home from

14

15

16

17

18

19

20

seeing my grandma my mom.

Yes. A.

Q. And you're like, okay.

The following night my mother is still in hospital,

hypothetically, and these guys seem to have clicked all

right.

again.

They seem like nice guys. And we're coming home

And we're not breaking any law.

21 walking down the street and you stop us.

But you see us again

The same situation

22 these are two off your sheet, and your personal knowledge

23 probably, gang members in Ogden Trece list, right?

24

25

A.

Q.

Yes.

Okay. And that same thing happens the very

195


1

2

3

following night but this time my mom dies while she's in

hospital. And we come back and we run into the same

situation. That's more than two times that you've run into

4 me, Mr. Acosta, and Mr. Cabral, right?

5

6

7

A.

Q.

A.

Yes.

That then put me in that last box, right?

It puts you in a position that you could be

8 documented as Ogden Trece at that point you'd have two box

9 that would then be checked.

10

11

12

13

14

15

16

17

18

19

20

Q.

A.

Q.

A.

Q.

Right.

You could, hypothetically.

Hypothetically?

Yes.

Right. But you would check the box, right?

A. If I -- I personally wouldn't because I would

look at the scenario.

Q.

A.

Q.

Okay.

So.

Let's say it keeps on. Say I like these guys.

we go out to dinner a couple of night later. And you run

21 into me again, me, and Mr. Acosta and Mr. Cabral.

22

23

24

25

A.

Q.

A.

Are you going to check the box then?

Again, probably, yes.

Okay.

I mean, that one you start getting out of an

196

So


1 emergency situation into more of just --

Okay. 2

3

4

Q.

A.

Q.

-- associating.

Let's say this: Let's say two nights after the

5 dinner event, Mr. Cabral and Mr. Acosta and myself are

6 sitting down here on 25th Street and we're grabbing a beer,

7

8

9

just one beer

that they are

I'm hoping they're over 21 but let's say

and we leave the bar. And you run into us

again. And we're starting to get to know each other a little

10 bit more because now we're having four contacts.

11 At that stage are you more likely to put -- check

12 the box?

13

14

A.

Q.

Yes.

Okay. So off of that -- off of my statement in

15 the county jail because of my fear for my safety and my

16 association with Mr. Cabral and Mr. Acosta, I now am an Ogden

17 Trece gang member because I've got two boxes checked?

18 A. Not yet.

19 Q. Because you still got -- actually go to your

20 lieutenant, right?

21

22

23

24

25

A.

Q.

A.

Q.

A.

My sergeant.

Sergeant, thank you.

Yes.

And get the approval?

Yes.

197


1 Q. Since the last time that we were in trial on this

2 matter, how many times have you gone to your sergeant for

3 approval to put somebody on the gang database?

4

5

6

7

8

9

10

11

12

13

A. A lot.

Q. And out of those a lot,

sergeant rejected that request?

how many times has your

A.

Q.

A lot now.

A lot now? Is it because of what's gone on in

prior litigation?

A. It's partially and moving from using some of this

list from an intelligence file to using it as a file that now

people are going to be charged with a crime, so.

Q. So you identified -- you identified a lot. Give

14 me an approximate number of times you've tried -- you've gone

15 to your sergeant and asked to have him to put on -- somebody

16 put on the gang database?

17

18

19

20

A.

Q.

A.

Q.

I don't -- five or six.

Five or six?

Yeah.

In the last year and half you've only gone five or

21 six times?

22

23

24

A. They've been kicked back.

Q. Sorry. Maybe my question wasn't clear.

In the last -- since the injunction was issued and

25 we had you here on the witness stand, about how many time

198


1 have you gone to your sergeant -- who is your sergeant?

2

3

4

5

6

7

8

9

A.

Q.

Sergeant Cabalski.

Okay. How many time have you gone to Sergeant

Cabalski and asked to have a person put on that gang

database, approximate, I know you don't know the exact?

A.

Q.

Maybe 15.

Okay. So 15 roughly you've gone to. And out of

that 15 that you've approximately gone to in the last year

and a half, how many people have Sergeant Cabalski -- who I

10 know I'm butchering the name on, I apologize -- rejected?

11

12

13

A.

Q.

A.

Sergeant Cabalski or Lieutenant Connelly.

Okay.

I've had them kicked back from Lieutenant

14 Connelly.

15 Q. Okay. How many times out of that 15 about how

16 many times?

17 A. Like I said, five or six times maybe. That's an

18

19

20

21

22

23

24

approximate. I don't remember exactly.

Q. Did you go back and cure the deficiencies on it?

A.

Q.

Yes, I did.

And then did you go back to either Sergeant

Cabalski or Lieutenant Connelly and say, Now I'd like you to

have that person put back on?

A. Yes.

25 documentation.

They required whatever it was, more

He mentioned this case or that case.

199


1 Q. Okay. And out of the time since the last trial in

2 the injunction, how many times have you told a person out of

3 those about 15 that they have a right to have a hearing to

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

determine if they're a gang member?

A. I haven't told any of them that.

Q. All right. And about since the injunction was

issued by this Court, about how times have you served the

injunction?

A. I served quite a few of them.

Q.

A.

Give me a ballpark.

Maybe 100.

Q. Okay. Out of those maybe 100, how many times have

you told people that they have a right to go and contest

their gang membership?

A. I generally will tell them as I'm explaining it

to them that is an opt-out clause.

of them

That's not the question.

Okay.

Because I do have a lot

Q.

A.

Q.

A.

I didn't ask about the opt-out.

Okay. What is the question?

22 Q. The question was this: How many times do you tell

23 that person that you're serving that injunction about 100

24 that they have a right to have a hearing to determine if

25 they're a gang member? Not an opt-out.

200


1 quite a bit about him?

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

Yes.

Are you familiar with his mother?

Yes.

She's on this list, right?

Yes, she is.

Why?

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Because she's a documented member of Ogden Trece.

On what grounds?

I don't have her file here in front of me but she

is been -- she's been associated with the entire gang. We

have -- heroin was found in her bedroom. She condones all

She would bring them in. She has that gang activity.

moniker, Mama Goon. She's been arrested with them for crimes

that are consistent with usual gang activity. We executed a

search warrant. I believe she was issued a citation. And

17 arrest that was for gang -- or paraphernalia possession or

18 something like that.

19 Q. Okay. As the injunction is issued right now, Ms.

20 Parsons can't associate with her, can she?

21

22

23

24

25

A. We've stopped them together. When they are

traveling together. And I think they said they were going

to, like, the grocery store and we let them go just for that

reason.

Q. On your discretion you let them go?

207


1

2

3

4

5

6

7

8

9

10

A. Yeah.

Q. Okay.

MR. STUDEBAKER: Nothing further.

THE COURT: All right.

CROSS-EXAMINATION

BY MR. RICHARDS:

Q. Could I ask you to look at Exhibit Number 2; which

would be -- I think it's this document.

A. [Inaudible].

Q. Okay. Ogden Trece member list. Well, look at

11 that and then also look at exhibit --

12

13

14

15

16

17

18

19 Q.

20 2 of that?

21

22

A.

Q.

MR. RICHARDS: Did we move to admit Exhibit 3?

MR. STUDEBAKER: Which was the injunction?

MR. RICHARDS: The injunction.

MR. STUDEBAKER: Yes, it's in.

THE COURT: It's been admitted.

MR. RICHARDS: Okay.

HE WITNESS: I have it right here.

(BY MR. RICHARDS) Okay. I want you to go to Page

Of the injunction?

Yeah, please. Well, I'm asking a couple of

23 things. Number one, Exhibit 2, which is this list, is

24 that -- that's the gang -- Ogden Trece gang member list that

25 you think is utilized for the injunction. Is that what I

208


It depends on -

On what?

1

2

3

4

5

6

7

8

9

A.

Q.

A. You know, if it's Sammi Parsons and his mom, you

know.

Is Sammi Parson's mom-

She is a documented

She's on the list?

member of Ogden Trece, yes.

If Sammi and his mom then

10

Q.

A.

Q.

A.

Q.

A. Then maybe there would be some discretion there.

11 But otherwise it would qualify if they were all

12 part of that. We get these gang members in the

13 Q. So

that's

14 A. park and they intimidate others as gang

15 members, not as family members. And so that would qualify.

16 Q. So really the enforcement of this injunction

17 Exhibit Number 3, Defense, is really a totally discretionary

18 according to you, then?

19

20

21

22

23

24

25

A.

Q.

A.

Q.

A.

Q.

A.

There is some discretion involved.

All right.

Generally, we take a zero tolerance on it.

Unless it happens to be at Fresh Market -

Inside the store.

-- or inside the store or in a bar with mom?

Yeah.

216


1

2

3

4

5

6

7

8

9

10

11

12

A.

Q.

A.

Q.

You're given

Gang related, nongang related, or unknown?

You're given training as to what --

Okay.

A. -- would be gang members and I indicative of gang

characteristics so.

I mean,

crime.

Q. But there's nothing written?

A. No, because gang crime crimes can vary so much.

you can't --

Based on --Q.

A. -- just lump this -- all graffiti as a gang

And the reason behind that is because there's tagger

13 crews that aren't gang members that go out there and just do

14 graffiti. So just to say, Hey, this is consistent with gang

15 activity, you cannot do that.

16 consumption by a minor

There's -- there's unlawful

17 Q. So it comes down to discretion of an officer again

18 as to whether or not this qualifies as a gang crime?

19

20

21

A.

Q.

And the discretion of their supervisors.

All right.

MR. RICHARDS: I have no further questions.

22 THE COURT: All right.

23 CROSS-EXAMINATION

24 BY MR. BOYLE:

25 Q. What about predicate gang crimes, they're defined

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2 STATE OF UTAH ) §

3 COUNTY OF UTAH)

4

C E R T I F I C A T E

5 I, KATIE HARMON, a Certified Shorthand Reporter in

6 and for the State of Utah, do hereby certify:

7 That the foregoing audio recording in this matter is

8 transcribed into typewriting under my direction and

9 supervision and that the foregoing pages, numbered from 5

10 through 264, contain a true and correct transcription of

11 said proceedings to the best of my ability to do so except

12 where it is indicated that the audio recording was

13 inaudible.

14 IN WITNESS WHEREOF, I have hereunto subscribed my

15 name this 24th of October, 2012.

16

17

18

19

20

21

22

23

24

25

KATIE HARMON, RPR, CSR

279


' .

EXHIBIT "C"


· opinion is subject to revision before publication in the Pacific Reporter

2013 UT 62

IN THE

SUPREME COURT OF THE STATE OF UTAH

WEBER COUNTY, Plaintiff and Appellee,

v.

OGDEN TRECE aka CENTRO CITY LOCOS; ROMAN HERNANDEZ; CHASE AESCHLIMANN; JESSE AESCHILMANN; SAMUEL PARSONS;

JAIME GOMEZ; and WILLIE RODRIGUEZ; et al., Defendants and Appellants.

No. 20120852 Filed October 18, 2013

Second District, Ogden Dep' t The Honorable Ernest W. Jones

No. 100906446

Attorneys:

Christopher F. Allred, Dee W. Smith, Branden B. Miles, Jeffrey G. Thomson, Ogden, for appellee

Randall W. Richards, Ogden, David C. Reymann, Lashel Shaw, MichaelS. Anderson, John Mejia, Salt Lake City, for appellants Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann

Michael P. Studebaker, Ogden, for appellants Samuel Parsons, Jaime Gomez, and Willie Rodriguez

JUSTICE PARRISH authored the opinion of the Court, in which CHIEF JUSTICE DURRANT,

ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE LEE, and JUDGE ROTH joined.

Having recused herself, JUSTICE DURHAM does not participate herein; Court of Appeals JUDGE STEPHEN L. ROTH sat.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

~1 We are presented with two consolidated cases. The first is a direct appeal (Appeal) from an injunction entered against Ogden Trece (Trece), a criminal street gang. The second is a petition for


WEBER Co. v. OGDEN TRECE

Opinion of the Court

extraordinary writ (Petition) brought by three alleged Trece members who were served with the injunction.

,-r2 Weber County (County) obtained a permanent injunction against Trece and its members under a public nuisance theory pursuant to section 76-10-806 of the Utah Code, which empowers a county attorney "to institute an action in the name of the county ... to abate a public nuisance." The statutory definition of a public nuisance includes a criminal street gang. See id. §§ 78B-6-1101(2)(d), 78B-6-1107(1)(d); see also id. § 76-9-902(1) (defining a "[c]riminal street gang").

,-r3 The injunction prohibits Trece members who have been served with a copy of it from associating with one another; confronting, intimidating, annoying, harassing, threatening, challenging, provoking, or assaulting any person known to be a witness or victim of any activity of Trece; possessing a firearm in public or any place accessible to the public; or violating an 11 p.m. to 5 a.m. curfew. It applies to a twenty-five square-mile "Safety Zone" encompassing nearly the entire city of Ogden. The injunction contains both a hardship provision and an opt-out provision.

,-r4 Appellants and Petitioners argue that (1) service on Trece as an unincorporated association was improper and thus the district court lacked jurisdiction to enter the injunction, (2) the injunction violates procedural due process, and (3) the injunction violates substantive due process. In the event the injunction is vacated, they also argue that they are entitled to an award of attorney fees.

,-r 5 We lack appellate jurisdiction over the Appeal because the purported appellants are not parties to the proceeding. We do, however, have jurisdiction to consider the Petition. Although Trece is an unincorporated association and amenable to suit, we conclude that service on Trece was improper. The district court therefore lacked jurisdiction to enter the injunction. We deny the request for attorney fees.

FACTUALANDPROCEDURALBACKGROUND

,-r 6 Ogden Trece is a criminal street gang that has operated for over thirty years. It has identifying signs, symbols, tattoos, graffiti, clothing, and hand signs. In its findings of fact and conclusions of law granting the permanent injunction, the district court found that members of Ogden Trece "commit crime for the purpose of intimidating rival gang members, asserting their dominance over an area, intimidating citizens and witnesses, and obtaining money

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through many different types of illegal activities, from selling drugs to trafficking in stolen property." Revenue is brought into the gang by "criminal activity such as burglaries, thefts, robberies, drug dealing, etc." The day-to-day operations of the gang are directed by senior members called" shot callers." Less senior gang members are "put to work" by the "shot callers," meaning they are to "commit criminal activity to bring recognition and money into the gang." The proceeds from the criminal activities are given to the "shot callers" who "are [then] responsible for distributing money to members of the gang when they deem necessary."

,-r7 On August 20, 2010, Weber County filed a complaint for permanent injunction to abate a public nuisance. It brought this action against Ogden Trece as an unincorporated association. The County also filed an application for a restraining order, preliminary injunction, and a request for hearing. The district court entered a temporary restraining order that same day.

,-rs On August 24, 2010, the County personally served five alleged Trece members: Evan Barrow, Emmanuel Montoya, Samuel Parsons, Roman Hernandez, and Daniel Callihan. The County also mailed process to twelve other alleged Trece members, namely: Jamie Gomez, Michael Gutierrez, Dario Muniz, David Maes, Nicholas Davis, Juan Saucedo, Darren Begay, Tyler Greenfield, Daniel Salinas, Troy Rivera Jr., Alex Mercado, and Elmer Maes.

,-r9 Even though it had personally served gang members, the County sought an order allowing it to serve Trece by publication. At a hearing on August 31, 2010, the County attorney stated, without elaborating, "that we have adequately put the gang on notice, however, just to make sure that that's accomplished, we're going to request an order from the court to allow us to further put the gang on notice by publication." The attorneys and the court then turned to other issues. Near the conclusion of the hearing, the County attorney reminded the court of its motion, asking "would the court authorize us to publish?" The court responded, "[y]es, I will authorize service."

,-r10 The County followed up two days later with a written motion requesting service by publication and a supporting affidavit. The County argued that it was" difficult if not impossible to give the gang 'notice' . . . and serve [it] under traditional methods contemplated by [r]ule 4 of the Utah Rules of Civil Procedure." Specifically, the County argued that Trece "do[es] not have a registered agent in the State of Utah or any other State," nor any

3


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"known management structure, officers, directors, or like managerial personnel [on] which to personally serve with process." The district court entered a written order authorizing service by publication the following day. The County then published service of process in the Ogden Standard Examiner and on www .utahlegals.com.

~11 On September 14 and 27, 2010, the district court held an evidentiary hearing on the County's request to convert the temporary restraining order to a preliminary injunction. The court heard testimony from two Ogden police officers who testified about the criminal and nuisance activity of Trece. The district court also heard testimony from a deputy district attorney from California who testified as an expert on the effectiveness of gang injunctions. Following the hearing, the district court converted the temporary restraining order to a preliminary injunction that included all the same prohibitions as the temporary restraining order, but also included a "Hardship Exemption Process" and an '"Opt Out' Provision."

~12 The County then began serving the preliminary injunction on more than three hundred alleged members of Ogden Trece. Violation of the injunction is a class B misdemeanor punishable by up to six months imprisonment and up to a $1,000 fine. UTAH CODE§ 76-10-807. Among those served were brothers Chase and Jesse Aeschlimann. Upon being served, the brothers filed a motion for a hearing to contest the constitutionality of the preliminary injunction, noting that neither of them had been served or given notice of the proceedings prior to the entry of the preliminary injunction or its service upon them. But neither brother moved to intervene in the action or request formal party status.

~13 The district court ruled that because the gang as an entity had been sued and the constitutional arguments had "already been dealt with," individuals subsequently served with the injunction did not have a right to intervene or otherwise appear in the case or to challenge the terms of the injunction. It reasoned that due process had been satisfied because "[l]aw enforcement is required to serve the injunction on gang members, thus placing them on notice of the injunction."

~14 On June 11, 12, and 14, 2012, the district court held an evidentiary hearing to consider whether to make the preliminary injunction permanent. No one representing Trece appeared at the hearing. However, despite the fact that none of their clients had

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moved to intervene, three attorneys representing a total of eight individuals who had been served with the preliminary injunction attended the hearing. All of these attorneys noted that they represented only the individuals who had been served with the injunction and that they did not represent Trece itself. And none of the eight alleged members of Trece were present.

~15 At the hearing, the district court heard evidence regarding Trece, why the County believed it to be a criminal street gang and a public nuisance, and how some of its members had previously been convicted of crimes. The district court found that Ogden Trece met the legal definition of a criminal street gang and a nuisance and that "the provisions of the injunction are narrowly drawn and are necessary to give . . . complete relief from [Trece' s] nuisance activities."

~16 At the conclusion of the hearing, the district court entered the permanent injunction (Injunction). The Injunction applies to the "Safety Zone," a twenty-five square-mile area encompassing most of the city of Ogden. It prohibits those alleged gang members served with it from engaging in specified conduct in the Safety Zone. Specifically, it prohibits the alleged gang members from any knowing association with gang members in public places or public view. This extends to "[d]riving, standing, sitting, walking, gathering, or appearing together with any known member of Ogden Trece anywhere in public view or anyplace accessible to the public." The Injunction also prohibits gang members from intimidating victims and witnesses. It states that Trece members are prohibited from" [ c ]onfronting, intimidating, annoying, harassing, threatening, challenging, provoking, [or] assaulting any person known to be a witness to any activity of Ogden Trece, known to be a victim of any activity of Ogden Trece, or known to have complained about any activity of Ogden Trece."

~17 Another provision of the Injunction criminalizes possession of firearms, "imitation" firearms, ammunition, and "illegal weapon[ s ]," and prohibits alleged gang members from being in the presence of such weapons or another person possessing them. The Injunction imposes a curfew on alleged gang members between the hours of 11 p.m. and 5 a.m., "with exceptions for traveling to and from work, from any non-gang related entertainment event, school activities, and religious services," and" for emergencies, accidents or other situations that require[] immediate action to prevent serious bodily injury or loss of life." The Injunction also prohibits alleged gang members from damaging and defacing property through

5




graffiti, using and distributing drugs and drug paraphernalia, and consuming alcohol except in their homes or in properly licensed establishments. It also requires that alleged gang members" obey all laws."

,-r18 The Injunction contains an "opt-out" provision under which an alleged gang member who has been served with it may "either renounce gang membership or declare that he or she never was a gang member." This requires a "declar[ation] that he or she has not been arrested for a 'gang-related' crime in the past three years, not associated with gang members for the past three years, and that the served person declare that he or she has not received any new gang tattoos."

,-r19 The Injunction also contains a "hardship exemption process" under which an individual may seek exemption from the association and curfew provisions of the Injunction by written application

request[ing] permission to associate only with a named individual or named individuals at specific times and in specific places when such association is reasonably necessary, or permission to be in a specific public place between 11[] p.m. and 5[] a.m. when it is reasonably necessary to be in a particular place at a particular time during those hours.

,-r20 The County is now criminally enforcing the Injunction against those alleged gang members who have been served with it. Roman Hernandez, Samuel Parsons, Jamie Gomez, Willie Rodriguez, and brothers Chase and Jesse Aeschlimann, who have all been served with the Injunction, filed notices of appeal in the underlying action. Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann also filed a petition for extraordinary writ directly with this court challenging the Injunction. We have jurisdiction pursuant to section 78A-3-102(2) of the Utah Code.

STANDARD OF REVIEW

,-r21 "Whether this court has jurisdiction over an appeal is a question of law that can be raised for the first time on appeal" by either party or by the court. Navajo Nation v. State (In reAdoption of A.B.), 2010 UT 55, ,-r 21,245 P.3d 711; see also Kennecott Corporation v. Utah State Tax Commission, 814 P.2d 1099, 1100 (Utah 1991). "When this court lacks jurisdiction over an appeal, it retains only the authority to dismiss the appeal." In re A.B., 2010 UT 55, ,-r 21.

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~22 The issue of whether service of process on Trece was proper is "a question of law that we review for correctness." Stichting Mayflower Mountain Fonds v. ]ordanelle Special Service District, 2001 UT App 257, ~ 7, 47 P.3d 86. Likewise, whether the Injunction violates procedural or substantive due process are questions of law that we review for correctness. Chen v. Stewart, 2004 UT 82, ~ 25, 100 P.3d 1177 ("Constitutional issues, including questions regarding due process, are questions of law that we review for correctness.").

ANALYSIS

I. WE LACK APPELLATE JURISDICTION OVER THE APPEAL BECAUSE THE SO-CALLED

APPELLANTS ARE NOT PARTIES TO THE CASE

~23 Weber County and the purported appellants spend the entirety of their appellate briefs addressing four issues: adequacy of service of process, procedural due process, substantive due process, and attorney fees. But we see a more fundamental problem with this appeal. Specifically, the so-called appellants (Roman Hernandez, Chase Aeschlimann, Jesse Aeschlimann, Samuel Parsons, Jamie Gomez, and Willie Rodriguez) are not parties to the action and thus are not entitled to appeal the Injunction.

~24 In Utah Down Syndrome Foundation, Inc. v. Utah Down Syndrome Association, we held that we lacked appellate jurisdiction over the case because the individual attempting to appeal was not a party and thus did not have the right to appeal. 2012 UT 86, ~ 1, 293 P.3d 241. We explained that the appropriate vehicle through which he could challenge the district court's order was a petition for extraordinary writ. Id. ~ 12.

~25 In that case, the district court "issued an order and judgment purporting to affect the interests of a nonparty," Mr. Gilbert. Id. ~ 13. Mr. Gilbert never filed a motion to intervene, but sought to appeal the judgment. Id. We held that "[b]ecause he was never a party ... Mr. Gilbert does not have an appeal as of right, and his attempt to appeal was improper." Id. We therefore concluded that we lacked jurisdiction and were required to dismiss the case. I d.

~ 26 In this case, the only named defendant is Ogden Trece. The only person or entity that attempted to intervene was the American Civil Liberties Union (ACLU). But its motion to intervene was denied and it has not appealed that ruling. None of the socalled appellants in this appeal were named as parties to the action and none sought to intervene. Rather, their attorneys simply

7




showed up to court hearings and were somehow allowed to be heard, despite the fact that they were technically mere spectators. Indeed, when entering their appearances in the hearings, the attorneys were careful to note that they were representing individual alleged gang members and not the gang. For example, in one instance, Michael Studebaker introduced himself as counsel "for Samuel Parsons, Jaime Gomez, and Willie Rodriguez and nobody else, and no[t] the gang in itself." Another attorney, Randall Richards, stated, "I represent Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann .... Oh, and by the way, I do not represent the gang, whatever that happens to be." Michael Boyle stated he was representing "Emmanuel Montoya, Andrew Callahan. And again, I don't represent Ogden Trece or Centro City Locos."

~27 Although Jesse Aeschlimann never actually moved to intervene, the district court raised and then rejected the possibility of intervention in a memorandum decision. It stated:

Jesse Aeschlimann has failed to file a motion to intervene as required under [r]ule 24, URCP. The [c]ourt finds Jesse Aeschlimann should not be permitted to intervene as a matter of right or as a permissive intervenor. The interests of Ogden Trece are already being adequately represented by two attorneys. Many of the issues raised by Jesse Aeschlimann in his memorandum were addressed by the [c]ourt in two memorandum decisions on April4, 2011. Allowing permissive intervention for Jesse Aeschlimann would cause undue delay and require the [c]ourt to revisit issues already ruled on. Permissive intervention would require the [c]ourt to restart the litigation .... The [c]ourt will deny Jesse Aeschlimann' s motion to intervene.

~28 Since none of the so-called appellants are parties to the case, they are not entitled to an appeal as of right. See, e.g., Utah Down Syndrome, 2012 UT 86, ~ 9 (stating that the appellant "as a nonparty, is not entitled to appeal"); Brigham Young University v. Tremco Consultants, Inc., 2005 UT 19, ~ 46, 110 P.3d 678 (noting that "nonparties ... cannot appeal the [court] order"). "Under our rules, it is the service of process, the affirmative act of filing suit, or the act of seeking to intervene as a party that subjects one to the jurisdiction of the court and puts him on notice that he is subject to ongoing court proceedings." Utah Down Syndrome, 2012 UT 86, ~ 18. Mere notice of or appearance in proceedings is not enough. Even though

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the district court allowed the so-called appellants to be heard, they were not named parties and never filed motions to intervene. They were therefore not entitled to appeal and we lack appellate jurisdiction over the appeal. Id. ,-r 12.

II. WE HAVE JURISDICTION TO CONSIDER THE PETITION FOR EXTRAORDINARY WRIT FILED BY ROMAN HERNANDEZ, CHASE AESCHLIMANN,

AND JESSE AESCHLIMANN

,-r29 Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann (Petitioners) filed a petition for extraordinary writ directly with this court. Pursuant to the Utah Constitution, we have "original jurisdiction to issue all extraordinary writs." UTAHCONST. art. VIII, § 3. This is the proper vehicle by which nonparties to a lawsuit may challenge a district court's order. Brigham Young University v. Tremco Consultants, Inc., 2005 UT 19, ,-r 46 n.7, 110 P.3d 678. "[A] petition for extraordinary writ filed with the appellate court provides an adequate remedy in light of the appellate court's obligation to give due regard to principles of due process." Utah Down Syndrome Foundation, Inc. v. Utah Down Syndrome Association, 2012 UT 86, ,-r 22, 293 P.3d 241. Thus, we have jurisdiction to consider their petition and turn to the merits of their claims.

III. TRECE IS AN UNINCORPORATED ASSOCIATION THAT IS AMENABLE TO SUIT

,-r30 Petitioners first challenge the district court's jurisdiction over Trece, arguing that a criminal street gang is simply not amenable to suit. Weber County brought suit against Trece as an unincorporated association. Petitioners argue that in order for an unincorporated association to be sued, it must exist for a lawful purpose and must transact business under a common name. They reason that Trece meets neither requirement because it exists for illegal purposes and does not transact business under a common name. The County responds that a street gang is specifically listed as a public nuisance under Utah Code section 78B-6-1101(2)(e) and that section 76-10-806 allows a county attorney" to institute an action in the name of the county . . . to abate a public nuisance." It therefore reasons that "Utah law ... recognizes that a criminal street gang is a jural entity and contemplates its being amenable to a public nuisance abatement action." We agree with the County that Trece is amenable to suit, but we reach that conclusion based on alternative grounds.

,-r31 We first turn to Petitioners' argument that Trece is not

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subject to suit as an unincorporated association because "a fundamental requirement of an unincorporated association is that it be formed for a lawful purpose." Petitioners rely on two cases from other jurisdictions for this proposition. The first is People ex rel. Reisig v. Broderick Boys, in which a California court relied on a California statute that defined an unincorporated association as" an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose." 59 Cal. Rptr. 3d 64, 74 (Cal. Ct. App. 2007) (quoting CAL. CORP. CODE§ 18035, subd. (a) (internal quotation marks omitted)). But that case is unpersuasive inasmuch as no such statutory requirement of lawful purpose exists in Utah.

~32 The second case on which Petitioners rely is similarly inapposite. In Peoples Gas System, Inc. v. Acme Gas Corporation, a Florida court stated in a footnote that an unincorporated association is "[g]enerally 'created and formed ... for the accomplishment of some lawful purpose."' 689 So. 2d 292, 298 n.8 (Fla. Dist. Ct. App. 1997) (emphasis added) (quoting 4 FLA. JUR. 2D Associations & Clubs §§ 1, 2 (1994)). We do not disagree with this proposition. However, the fact that unincorporated associations are generally formed for lawful purposes does not suggest that they may only be so.

~33 Rule 17(d) of the Utah Rules of Civil Procedure provides that "[w]hen two or more persons associated in any business ... not a corporation, transact such business under a common name, ... they may sue or be sued by such common name." See also Hebertson v. Willowcreek Plaza, 923 P.2d 1389,1391-92 (Utah 1996). Neither the rule nor any other provision of Utah law contains any requirement that unincorporated associations be engaged in lawful activity before they are amenable to suit. Thus, Trece is amenable to suit as an unincorporated association so long as it transacts business under a common name. Id. at 1392.

A. Trece Conducts Business

~34 Petitioners argue that" there is no evidence in the record of Trece transacting business" and that the County conceded that "Ogden Trece exists only as a criminal organization." They contend that criminal organizations do not "transact business" but rather commit crimes. We disagree. There is no logical reason why business transactions and criminal activity are mutually exclusive.

~35 In interpreting the language of a clear and unambiguous statute or rule, "our duty is to give effect to [its] plain meaning." State ex rel. Z.C., 2007 UT 54,~ 11, 165 P.3d 1206. The caveat is that "a court should not follow the literal language of a statute if its plain

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meaning works an absurd result." Savage v. Utah Youth Village, 2004 UT 102, ~ 18, 104 P.3d 1242.

~36 "Business" is defined as "a particular occupation or employment habitually engaged in for livelihood or gain." BLACK's LAW DICTIONARY 226 (9th ed. 2009); see also id. ("By extension, transactions or matters of a noncommercial nature <the courts' criminal business occasionally overshadows its civil business>."); WEBSTER'STHIRDNEWlNTERNATIONALDICTIONARY 302 (a "particular field of endeavor," or "an immediate task or objective"). There is nothing in the definition requiring that the occupation or employment be legal, 1 and there are ample findings by the district court to support the conclusion that Trece satisfies the definition. It "obtain[ s] money through many different type[ s] of illegal activities, from selling drugs to trafficking in stolen property." The gang's revenue is generated through "criminal activity such as burglaries, thefts, robberies, drug dealing, etc." Additionally, once the money is "earned," it is then distributed to other gang members.

~37 These findings by the district court were supported by ample evidence. Testimony during the evidentiary hearing demonstrated that Trece has a remarkably organized structure and governance. Gang members know who the" shot callers" are in any given area. There is a hierarchy within the gang that administers discipline and puts out orders for "work." It is the "shot caller's" responsibility to make "sure that everybody's paid, everybody's got money, [and] everybody is doing good." Most of the stolen goods and money earned from drugs is given to the senior members, but the individuals who steal the goods or sell the drugs keep a certain portion. The "shot caller" keeps a portion of the profits for himself and the remaining profit is retained for the use of the gang in order

1 See also J.M. & M.S. Browning Co. v. State Tax Comm'n, 154 P.2d 993, 996 (Utah 1945) (stating that what constitutes transacting business must be determined within the context in which the phrase is used); Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT App 136, ~ 11, 979 P.2d 363 (noting that "as unincorporated associations such as social clubs, religious organizations, environmental societies, athletic organizations, condominium owners, lodges, stock exchanges and veterans began to proliferate, courts recognize[d] that ... [s]uch groups must ... [face] liability to suit." (first alteration in original)(emphasis omitted) (internal quotation marks omitted)).

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to pay for lawyers, to support families, and to pay for other general expenses.

~38 This evidence satisfies the requirement of rule 17(d) and there is no need for us to depart from the plain meaning of the rule. See Savage, 2004 UT 102, ~ 18. There is no reason why an unincorporated association should be immune from suit simply because the business in which it engages is unlawful. Under Petitioners' proposed interpretation of the rule, a criminal organization would be immune from suit simply because the business it transacts is illegal. But it would be illogical to interpret rule 17(d) in a manner that allows organizations that operate illegally to escape suit when such organizations are exactly the kind of enterprise on which the justice system should be brought to bear.

B. Trece Conducts Business Under a Common Name

~39 We also conclude that Trece meets the second requirement of rule 17(d) in that it operates under a common name. The district court found that "Ogden Trece has, as a group, an identifying name or identifying symbol or both." Additionally, "Trece has identifiable hand signs, gestures, and clothing ... that distinguishes [it] from other criminal street gangs." Trece members are required to "put in work," meaning committing the type of criminal transactions listed above "to bring recognition and money into the gang." And these findings were amply supported by evidence that was admitted during the evidentiary hearing.

~40 Duane Dreamer, a self-identified "shot caller" in Trece, testified that the two main rules of the gang are to not "rank out" and to "represent to the fullest," which means to "always let everybody known where you are from." The gang very jealously protects its own name. It goes to great lengths in order to protect its brand. It has internal processes for induction of new members and advancement into leadership positions. It also punishes individuals who falsely attempt to identify themselves as gang members. Members who are "jumped out" of the gang must cover up their tattoos and no longer claim membership in the gang.

~41 Trece derives its power and influence in the community from exactly this type of" representing." It is one of the two cardinal rules of the gang that members represent the gang wherever they go. This representation by the members' clothing, the gang signs, the tattoos, and the graffiti has the effect of making the gang almost omnipresent in the community. Trece's presence is felt even when its members are not engaged in gang-related activity because they

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constantly use the name of the gang and "represent." Indeed, the very identity of gang members is tightly interwoven with the name of the gang.

~42 Based on the foregoing, we have no difficulty concluding that Trece transacted its business under a "common name" under rule 17(d). Because Trece (1) transacts business (2) under a common name, it is an unincorporated association amenable to suit.

IV. TRECE WAS NOT PROPERLY SERVED WITH PROCESS

~43 Having concluded that Trece qualifies as an unincorporated association subject to suit, we now examine whether Trece was properly served with process. Petitioners argue that Trece was not properly served because rule 4( d) (1) (E) requires that service on unincorporated associations be made upon "an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process" and that no such managing agent of Trece was served. UTAH R. Crv. P. 4(d)(1)(E). The County responds that Trece was properly served by publication under rule 4(d)(4)(A) because the identities of Trece's managing agents were unknown.

~44 "For a court to acquire jurisdiction, there must be a proper issuance and service of summons." Jackson Construction Company, Inc. v. Marrs, 2004 UT 89, ~ 10, 100 P.3d 1211. Under Utah law, a "statute or rule of court" provides for the manner of service to be employed. Lloyd v. Third Judicial District Court, 495 P.2d 1262, 1263 (Utah 1972).

~45 Rule 4 of the Utah Rules of Civil Procedure contemplates two possible ways to serve unincorporated associations such as Trece. First, rule 4(d)(1)(E) provides that personal service may be made on "an unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and the complaint to an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process."

~46 Service on a street gang like Trece is possible under rule 4( d)(1)(E) by delivering a copy of the summons and complaint to the functional equivalent of an officer or managing or general agent of the gang. Testimony presented to the district court indicated that Trece has a management structure in which certain gang members known as "shot callers" have achieved a level of status and recognition that few gang members will ever achieve within the gang. These shot-callers are tasked with giving orders to other

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members. However, the County never argued that Trece's "shot callers" were the functional equivalent of an officer or managing or general agent of the gang.

~ 47 Five alleged gang members were personally served with the summons and complaint. But the County never alleged that any of the served members were the functional equivalent of an agent or officer. And service on mere members of an unincorporated association is inadequate under rule 4 to effectuate service on the organization. See Beard v. White, Green & Addison Associates, Inc. 336 P.2d 125,126 (Utah 1959) ("Under [rule 4] the person served must be more than a mere employee."). As such, there was no valid service on Trece under rule 4(d)(l)(E).

~48 The second possible method of serving an unincorporated association such as Trece is provided by rule 4(d)(4). It states that "[w]here the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence ... the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication." UTAH R. CIV. P. 4(d)(4)(A). Therefore, if the County were unable to identify an officer or a managing or general agent of the gang after exercising reasonable diligence in attempting to do so, the court could order service on the gang through publication.

~49 The County argues that service on Trece by publication was valid because the identity of the functional equivalent of an agent or officer was unknown. But the rule requires more. The party seeking to effectuate service through publication must exercise reasonable diligence in attempting to identify and then personally serve an officer or managing or general agent or his equivalent. See Jackson Constr., 2004 UT 89, ~ 11 (stating that "litigants may not resort to service by publication until they have first undertaken reasonably diligent efforts to locate the party to be served").

~50 We have stated that "[a] determination of reasonable diligence ... properly focuses on the plaintiff's efforts to locate the defendant." Id. ~ 15 (emphasis omitted). "Relevant factors may include the number of potential defendants involved, the projected expense of searching for them, and the number and type of sources of available information regarding their possible whereabouts." Id.

~51 This reasonable diligence requirement arises from the nonadversarial nature of motions seeking authorization to serve by publication. By definition, a motion seeking service by publication will be unopposed because the party to be served is necessarily

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unavailable. Thus, the reasonable diligence requirement serves as a check to ensure that service by publication is only authorized in extraordinary circumstances. Such motions should be granted only where the district court is satisfied that the requesting party has indeed exercised reasonable diligence by undertaking specific steps to ascertain the identity and whereabouts of the person to be served.

,-[52 The County failed to meet this burden. At the August 31, 2010 hearing, the County moved for alternative service by publication stating only that the "County's position is that we have adequately put the gang on notice, however, just to make sure that's accomplished, we're going to request an order from the court to allow us to further put the gang on notice by publication." At no time during the hearing did the County make any assertions that it had exercised reasonable diligence in attempting to identify or serve an officer or a managing or general agent of Trece. Yet, at the end of the hearing, the court indicated its willingness to authorize service by publication.

,-[53 The County subsequently filed a written motion for service by publication under rule 4(d)(4). But the written motion contained nothing to indicate that the County had exercised reasonable diligence in attempting to identify and serve a Trece officer or managing or general agent or equivalent. The affidavit submitted by the County in support of its motion asserted only that "[t]here are approximately 485 known members of Ogden Trece that live in our community so locating and serving each individual would be impracticable and difficult." It then described the steps it had undertaken to personally serve five members of the gang and stated that "Ogden Trece, as an unincorporated association, does not have a known management structure, officers, directors, or like managerial personnel for which to personally serve with process."

,-[54 The County's affidavit did not address whether it had diligently attempted to identify and serve Trece' s officers or managing or general agents. Its conclusory allegation that Trece had "no known management structure, officers, directors or like managerial presence" was a statement reflecting only the state of the County's knowledge. It shed absolutely no light on what, if any, steps the County had taken to gather more information regarding Trece' s management structure. Moreover, that conclusory statement was later refuted by the County's own witness, Duane Dreamer, who offered extensive testimony as to Trece' s structure and organization.

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,-rss Dreamer testified that "Ogden Trece's shot callers were aware of the Injunction and met to discuss what to do about it." But the fact that Trece "shot callers" may have been aware of the Injunction neither displaces the requirements of personal service nor excuses the County's failure to demonstrate that it exercised reasonable diligence before seeking service by publication. Murdock v. Blake, 484 P.2d 164, 167 (Utah 1971) ("Service of summons in conformance with the mode prescribed by statute is deemed jurisdictional, for it is service of process, not actual knowledge of the commencement of the action, which confers jurisdiction.").

,-r 56 The County simply relies on its bald assertion that Trece has no known management structure. But this is uninformative because it does not describe any steps that the County took to try and ascertain Trece' s management structure or to identify and personally serve the functional equivalent of an officer or a managing or general agent. Such conclusory statements lacking any underlying factual support are simply insufficient to justify an order of service by publication. We have held that" such an affidavit is not sufficient if it states mere conclusions as to diligent search and inquiry. It must set forth facts upon which the court can base a judgment as to whether such diligence has been exercised to meet that requirement." Downey State Bank v. Major-Blakeney Corp., 545 P.2d 507,509 (Utah 1976); see also Jackson Constr., 2004 UT 89, ,-r 21 n.3 (stating that "Jackson Construction's conclusory allegation of diligence is insufficient to meet rule 4' s diligence requirement").

,-rs7 The County did not explain why it was unable to identify or locate the functional equivalent of an officer or a managing or general agent, even though it has an extensive gang database with information on 485 active gang members. This court has previously stated that "[t]o meet the reasonable diligence requirement, a plaintiff must take advantage of readily available sources of relevant information" and cannot" turn[] a blind eye to the existence of other available sources." Jackson Const. Co., 2004 UT 89, ,-r 20. Yet the County provided no indication as to whether its database includes information on gang members serving as the functional equivalent of an officer or a managing or general agent.

,-rs8 In its order for alternative service, the district court stated: "Having reviewed the Motion for Alternative Service by Publication, and heard the arguments [made by the County at the hearing], and for Good Cause shown in its attached affidavit, IT IS HEREBY ORDERED, that" the County shall publish service. But nothing offered by the County in either the hearing or the affidavit

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demonstrates that the County was reasonably diligent in attempting to identify the functional equivalent of an officer or a managing or general agent of Trece.

,-r59 The County argues that service by publication was necessary because there are 485 known gang members and personal service on all members would be impracticable. This argument misapprehends the controlling law, however, since rule 4( d) requires a showing that it would be impracticable to personally serve an officer or a managing or general agent. Nothing in the rule requires personal service on all485 individual members of the gang. And the County's explanation of its personal service on five members is similarly uninformative since its service on five individual gang members sheds no light on the County's diligence in attempting to identify and serve an officer or managing or general agent.

,-r 60 Because the County did not serve any of Trece' s officers or managing or general agents or their functional equivalent and did not establish a sufficient factual basis for service by publication under rule 4, Trece was not properly served. And Trece was the only defendant named in the lawsuit. Because the district court lacked jurisdiction over the only named defendant, the Injunction is void.

V. WE DECLINE TO AWARD ATTORNEY FEES

,-r61 The final issue we must address is whether Petitioners are entitled to an award of their attorney fees incurred in connection with their petition for extraordinary writ. Petitioners submit they are entitled to recover their attorney fees because they have been wrongfully enjoined.

,-r 62 In support of their request for fees, Petitioners cite to rule 65A(c)(2) of the Utah Rules of Civil Procedure. But the language of rule 65A does not support their request. Rule 65A speaks of costs and fees "incurred in connection with [a] restraining order or preliminary injunction," not a permanent injunction like the one at issue here. UTAH R. CIV. P. 65A(c)(2) (emphasis added).2 And even

2 See Hay v. Baumgartner, 903 N.E.2d 1044, 1048 (Ind. Ct. App. 2009) (interpreting a parallel rule and explaining that the requirement of security and prescription for award of costs and damages for wrongful entry of injunction "arise[] from the expeditious manner in which the preliminary injunctive relief is issued and to the lack of a full hearing upon the facts"- considerations that "do

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• WEBER Co. v. OGDEN TRECE

Opinion of the Court • in the case of a preliminary injunction, the language does not appear to give rise to an independent right to recover fees. Rather, it simply indicates that the amount of the security given by the party seeking an injunction does not limit the amount of attorney fees that may be recovered in the event that an injunction is wrongfully entered. UTAH R. CIV. P. 65A(c)(2).3

~ 63 Petitioners also cite to Green River Canal Company v. Thayn, 2003 UT 50, 84 P.3d 1134. However, like rule 65A, Thayn involved a temporary restraining order that was later dissolved after an evidentiary hearing on the preliminary injunction motion- not a permanent injunction. Id. ~ 13. Thus, the authority invoked by Petitioners is focused on the wrongful entry of a temporary restraining order or preliminary injunction, rather than the wrongful entry of a permanent injunction. Petitioners have failed to articulate any argument or cite to any authority supporting their entitlement to an award of attorney fees when a permanent injunction is vacated. We accordingly deny their request for fees.

CONCLUSION

~64 Because the individuals who filed the Appeal are not parties to the underlying lawsuit, they do not have the right to appeal and we lack jurisdiction over the Appeal. But we do have jurisdiction over Petitioners' alternative petition for extraordinary writ and vacate the Injunction due to insufficient service of process on the only named defendant, Ogden Trece. Ogden Trece transacts business under a common name and it is amenable to suit as an unincorporated association. It may be served through personal service on the functional equivalent of an officer or a managing or general agent or by publication if the identity or whereabouts of such an individual is unknown and cannot be ascertained through reasonable diligence. In this case, however, service by publication was not warranted because the County failed to demonstrate that it had exercised reasonable diligence in attempting to identify an officer or a managing or general agent of Trece before requesting alternative service. The district court therefore lacked jurisdiction over Trece and the Injunction is void.

\ .. continued) not [exist] in the case of a permanent injunction entered following a trial on the merits").

3 Indeed, it appears that the right of a wrongfully enjoined party to recover attorney fees in certain situations actually arises under the common law. See 43A C.J.S. INJUNCTIONS§ 464.

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