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McCubbin v. Weber County

United States District Court, D. Utah

September 27, 2019

LELAND KIM MCCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs,
v.
WEBER COUNTY, CHRISTOPHER ALLRED, in his official capacity, and DOES 1-10 Defendants.

          MEMORANDUM DECISION & ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

          CLARK WADDOUPS, UNITED STATES DISTRICT JUDGE

         Introduction

         Before the court are Plaintiffs Leland Kim McCubbin, Jr. and Daniel Joseph Lucero’s Motion for Partial Summary Judgment, (ECF No. 93) and Weber County and Christopher Allred’s Motion for Summary Judgment (ECF No. 156). As explained below, the court GRANTS Plaintiffs’ Motion. The court GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment.

         Factual Background

         Weber County Decision to Seek a Gang Injunction

         Dee Smith (Mr. Smith) was appointed as Weber County’s attorney in May of 2009. (Smith Depo., ECF No. 94-4 at 5: 5.) Sometime after his appointment, Mr. Smith received an email from the director of the Utah Prosecution Council. (See Smith Depo., ECF No. 94-4 at 6: 10–12.) The e-mail had information about gang injunctions. (Smith Depo., ECF No. 94-4 at 6: 17.)

         According to Mr. Smith, Weber County was “dealing with a significant gang problem” at that time and was “looking for solutions.” (See Smith Depo., ECF No. 94-4 at 7: 8–10.) Chris Allred (Mr. Allred), the current Weber County Attorney, was in Weber County’s “civil division at that time.” (See Smith Depo., ECF No. 94-4 at 7: 8–18.)

         Sometime in the fall of 2009 or in early 2010, Mr. Smith and Mr. Allred spent approximately one month “examining” and “researching” gang injunctions. (See Smith Depo., ECF No. 94-4 at 7: 17–21.) After Mr. Smith and Mr. Allred “concluded [that a gang injunction] may be something that would work in [their] community, ” Mr. Smith “talked with Lieutenant Scott Conley, ” an Ogden City lieutenant “over the gang unit at that time” about a gang injunction. (See Smith Depo., ECF No. 94-4 at 8:13–19.) Mr. Smith eventually talked to Ogden City’s police chief at that time, John Greiner, about the idea of a gang injunction. (See Smith Depo., ECF No. 94-4 at 9: 8–10.) According to Mr. Smith, the Ogden City police chief “was interested in” a gang injunction and thought it “would be a good idea.” (Smith Depo., ECF No. 94-4 at 10: 1–3.) According to Mr. Smith, he eventually met with the former mayor of Ogden, May Godfrey, who indicated that the city was “willing” “to assist with” the gang injunction. (See Smith Depo., ECF No. 94-4 at 11:6–9.)

         In addition, Dee Smith met with County “Commissioner Dearden” about the gang injunction, but the County Commission “didn’t vote on it, ” and did not formally approve the gang injunction. (See Smith Depo., ECF No. 94-4 at 20: 3–8; see also Smith Depo., ECF No. 94-4 at 20: 12–14 (“So the commission, to [Dee Smith’s] knowledge, never had a formal vote” on the gang injunction). Further, at Mr. Smith’s deposition, the following line of questioning occurred:

Q. Okay. So why didn’t you take the prospect of bringing the [gang injunction] suit before the full county commission?
A. Because it was -- it was the county attorney’s action. It was -- I was an elected official, it was my decision that my – that’s what we would do.

(Smith Depo., ECF No. 94-4 at 21 (bold added).)

         Ogden Trece Nuisance Suit

         On August 20, 2010, Weber County filed a lawsuit against the Ogden Trece gang, in an action titled Weber County v. Ogden Trece, Case No. 100906446 (the “Nuisance Suit”). (ECF No. 93 at 4; See also ECF No. 94-2 at 1.) “It brought this action against Ogden Trece as an unincorporated association.” Weber Cty. v. Ogden Trece, 2013 UT 62, ¶ 7, 321 P.3d 1067, 1070– 71. “Weber County did not name any individual as a defendant in the Nuisance Suit.” (ECF No. 93 at 8; ECF No. 113 at 5.) Weber County sought an injunction “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.’” Trece, 2013 UT 62 ¶ 2 (quoting Utah Code Ann. § 76–10–806). “The district court entered a temporary restraining order that same day.” Trece, 2013 UT 62 ¶ 7. The state district court did not hear any opposition to the motion. Weber County served the nuisance suit personally on five alleged Trece members, mailed process to twelve others, and attempted to serve the Trece itself by publication. Trece, 2013 UT 62 ¶¶ 8–10.

         “On September 14 and 27, 2010, the [state] district court held an evidentiary hearing on [Weber] County’s request to convert the temporary restraining order to a preliminary injunction.” Trece, 2013 UT 62 ¶ 11. The state district court “heard testimony from two Ogden police officers who testified about the criminal and nuisance activity of Trece.” Id. It appears that one of those officers, Anthony Powers, testified for Weber County as an expert on the Trece gang. (See Powers Depo., ECF No. 94-15 at 193: 18–19 (“I had already testified as an expert previously in second district court.”).)

         “Following the hearing, the [state] district court converted the temporary restraining order to a preliminary injunction . . . .” Trece, 2013 UT 62 ¶ 11. The Preliminary Injunction applied to an area desginated as the “Safety Zone, ” “a twenty-five square-mile area encompassing most of the city of Ogden.” Trece, 2013 UT 62 ¶ 16. The Preliminary Injunction provided, in part:

1. Defendant Ogden Trece and all members of defendant Ogden Trece, are enjoined and restrained from engaging in or performing, directly or indirectly, any of the following activities in the Safety Zone:
a. Do Not Associate: Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or anyplace accessible to the public, with any known member of Ogden Trece, 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; 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.
d. No Graffiti or Graffiti Tools: Damaging, defacing, spraying, scratching, affixing, inscribing, or marking any public property or private property of another, or possessing any spray paint container, felt tip marker, or other graffiti tools anywhere in public view or anyplace accessible to the public;
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;
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 amusement 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
i. Obey All Laws: Failing to obey all laws (1) which prohibit violence and threatened violence, including murder, rape, robbery, 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.

(ECF No. 94-5 at 2–4.)

         The Preliminary Injunction also contained an “‘Opt Out’ Provision.” (ECF No. 94-5 at 5.)

         The Opt Out Provision provided, in part:

Any 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:
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:
Proper Notice: A motion under this provision shall be made on proper notice, properly served on plaintiff’s counsel, and shall not be made on shortened time;
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. This declaration regarding Ogden Trece and gang life is an essential part of this provisions; and
Proof Required: (A) Served person must declare that he/she has not been arrested for the past three years, not including any time spent incarcerated, which must be true: (8) 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; and (D) Served Person must declare that he/she is gainfully employed and has so been employed consistently for a period of one year, which must be true.

(ECF No. 94-5 at 6-7.) The Preliminary Injunction also contained a “Personal Service Required” provision that provided: “[n]o person shall be subject to the provisions of this Order unless that person has been previously served with this Order . . . .” (ECF No. 94-5 at 7.)

         The Ogden Gang Unit Determined Gang Membership

         The determination of whom to serve with the Preliminary Injunction was made primarily by the Ogden gang unit. (See Smith Depo., ECF No. 94-4 at 26: 3-5.) Dee Smith testified that the gang unit determined who would be served with a copy of the Preliminary Injunction “based on their intelligence and based on who the active members of the gang were.” (Smith Depo., ECF No. 94-4 at 26: 3-5.) The gang unit had two basic requirements in order to serve an individual with the injunction.

         First, an individual had to be on Ogden’s gang intelligence list. (Young Depo., ECF No. 94-3 at 89: 22-24 (Q. “to your understanding . . . to be served with a gang injunction, you had to be on the gang intelligence list.” A. “Yes.”).) In order to be on the gang intelligence list, the individual had to meet two of eight possible criteria for general gang membership. (Young Depo., ECF No. 94-3 at 90: 1-3[1] (Q. “To be on the gang intelligence list, you had to meet at leas[t] two criteria?” A. “Yes.”).) The eight criteria were the following:

1. Admits to criminal street gang membership
2. Is identified as a gang member by a parent/guardian
3. Is identified as a gang member by a documented reliable informant
4. Resides/frequents a gang’s area, adopts their style of dress, hand signs, or tattoos, and associates with known gang members
5. Is identified as a gang member by an informant of previously untested reliability and such identification is corroborated by independent information
6. Was arrested with identified gang members for offenses consistent with usual criminal street gang activity
7. Is identified as a criminal street gang member by physical evidence such as photographs or other documentation
8. Was stopped in the company of known criminal street gang members more than two times.

(ECF No. 94-19 at 1.)

         Second, the Ogden gang unit had to be satisfied that the individual was specifically a member of the Trece gang-not just any gang. It is undisputed that “[i]n compiling the list of individuals to be served with the Preliminary Injunction, Ogden gang detectives, primarily Anthony Powers, went through a group of files of individuals the Ogden police considered to be active Ogden Trece gang members according to Ogden’s criteria . . . .” (ECF No. 93 at 10; see also ECF No. 113 at 5–6.) Anthony Powers testified that the Ogden gang unit had a set of criteria to determine who was a Trece member. (See Powers Depo., ECF No. 94-15 at 52: 19–22.[2]) Powers testified that this criteria was distinct from the criteria for general gang membership. (See Powers Depo., ECF No. 94-15 at 53: 5–15.[3]) It is unclear what this criteria was, however.

         Committing a crime was not necessary to be placed on the gang intelligence list.[4] (See Young Depo., ECF No. 94-3 at 87: 8-9 (“No, you don’t have to commit a crime to be on the gang intelligence list.”).) Nor was actual membership in the Trece gang required to be served with the injunction-only satisfaction of Ogden’s criteria. (See Young Depo., ECF No. 94-3 at 89-90; see also Powers Depo., ECF No. 94-15 at 52: 19-25.)

         Weber Aided Ogden In Determining Whom to Serve

         At Mr. Allred’s deposition, the following line of questioning occurred:

Q. And so the preliminary injunction was granted on September 28, 2010; is that correct?
A. That sounds right.
Q. What was the plan for serving individuals with the preliminary injunction?
A. Do you mean with the lawsuit or copies of the injunction?
Q. I mean copies of the injunction.
A. So the plan was Ogden City would identify who members of the gang were based on their database and their criteria that they had established as gang members. And then they were to serve, primarily Ogden City was to serve their identified members of the gang with the injunction as it was necessary for them to be served in order for it to be binding on them.
Q. Did Weber County give any direction to the Ogden City Police as to what kind of discretion they could use in serving people?
A. Yeah We would have given them some legal advice in terms of being certain that they only served members that were clearly established in their gang database as gang members Q. And do you recall how Ogden decided how members were clearly established?
A. Yeah. They maintain a gang database, as I understand it, based on some federal regulations in the CFR, I believe. I don’t know what section. But that provides criteria for establishing gang members. And I believe they relied on that information to establish who they felt were members to be on their gang database.

(See Allred Depo., ECF No. 94-16 at 38–39 (bold added).)

         Service of Injunction and Further State Court Proceedings

         Two days after it issued, on September 30, 2010, police officers from the Ogden Police Department served Mr. Lucero with the Preliminary Injunction. (ECF No. 93 at 7; ECF No. 94-10.)

         On October 12, 2010, Lieutenant Scott Conley sent an e-mail to Ogden City police officers, stating that “County Attorney Dee Smith and I will be attending briefings to instruct you on the proper service methods/protocol on the Ogden Trece Gang Injunction.” (ECF No. 94-8 at 1.) He also stated that “[a]ny other Law Enforcement Agency who is interested in serving these documents may also attend one of these scheduled training times.” (ECF No. 94-8 at 1.) The email included briefing times for October 13, October 14, and October 18, 2010. (See ECF No. 94-8 at 1.) At his deposition, Mr. Smith did not remember attending these briefings, but stated that he was “sure [he] did” attend them. (See Smith Depo., ECF No. 94-4 at 7:8–18.)

         On October 13, 2010, an alleged Trece gang member, Jesse Aeschlimann, through counsel, moved the state district court to “set a hearing to determine whether [he] is a gang member” and to “determine whether or not the injunction violates the State and Federal Constitutions.[5]” He noted that he had not been served “or given notice of the proceedings prior to the entry of the preliminary injunction or its service upon” him. Trece, 2013 UT 62, ¶ 12.

         A little less than two months after it was issued, on November 22, 2010, police officers from the Ogden Police Department served Mr. McCubbin with the Preliminary Injunction.[6] (ECF No. 93 at 7; see also ECF No. 94-9.)

         On January 12, 2011, Weber County responded to Jesse Aeschlimann’s Motion for Hearing, arguing that he “should not be permitted to intervene either as of right, or as permissive intervener.” Weber County also addressed Mr. Aeschilmann’s “primary argument” “that the preliminary injunction is unconstitutional because the opt-out provision ‘does not meet constitutional due process requirements.’” Weber County argued that “Aeschilmann is only subject to the injunction as long as he is a member of the enjoined gang, ” and argued that “the county does not dispute that Aeschlimann . . . has the right to seek a hearing before this court to determine whether he is a gang member.” Weber County also argued that it would not be impossible for Aeschlimann to comply with the opt-out provision.

         On April 4, 2011, the state district court ruled “that the injunction was not unconstitutional.” (ECF No. 94-18 at 2.) On April 20, 2011, it entered an order holding that Jesse Aeschilimann “should not be permitted to intervene as a matter of right or as a permissive intervenor.” (ECF No. 94-18 at 2.[7]) The state court also held that “Jesse Aeschlimann does have the right to seek a hearing before this court to determine if he is a member of Ogden Trece.” (ECF No. 94-18 at 2.)

         On or around December 2, 2011, Ogden brought two misdemeanor charges against Mr. McCubbin. (See ECF No. 93 at 7; ECF No. 110 at 6; ECF No. 94-12 at 1.) The first charge was for violating the Preliminary Injunction. (See ECF No. 93 at 7; ECF No. 110 at 6; ECF No. 94-12 at 1.) The second charge was for intoxication. (See ECF No. 93 at 7; ECF No. 110 at 6; ECF No. 94-12 at 1.) When Mr. McCubbin pled guilty to violating the gang injunction on December 5, 2011, the intoxication charge was dismissed. (See ECF No. 110 at 6; ECF No. 94-12 at 1.) Mr. McCubbin received a 60 day sentence to be suspended if he paid a $500 “fine” “in full.” (ECF No. 94-12 at 3.)

         On or around December 27, 2011 the State of Utah brought four charges against Mr. McCubbin. (See ECF No. 94-13 at 1.) Mr. McCubbin was charged with [1] assault against a police officer; [2] interference with arresting officer; [3] violation of order enjoining a public nuisance; and [4] attempted criminal trespass. (ECF No. 94-13 at 1.) The prosecuting agency was Weber County. (ECF No. 94-13 at 1.) Mr. McCubbin pled no contest to charges 2–4 and was sentenced to 180 days on each of these charges, to run concurrent with each other. (See ECF No. 94-13 at 4.) The first charge was dismissed. (See ECF No. 94-13 at 4.)

         On August 20, 2012, the state district court issued an Order Granting Permanent Injunction (“Permanent Injunction”). (See ECF No. 94-6.) The Permanent Injunction was substantially similar to the Preliminary Injunction. (Compare, ECF No. 94-5 with 94-6.)

         On or around October 11, 2012, the State of Utah brought five charges against Mr. Lucero. (See ECF No. 107-6.) Mr. Lucero was charged with [1] possession or use of a controlled substance; [2] failure to disclose identity; [3] no valid license; [4] interference with arresting officer; and [5] violation of order enjoining a public nuisance. (ECF No. 107-6.) The publicly available Information from this case reveals that Weber County was the prosecuting agency. On July 16, 2013, Mr. Lucero entered a guilty plea to charges four and five. (ECF No. 107-6 at 1.) The other three charges were dismissed without prejudice. (ECF No. 107-6. At 1.)

         On October 18, 2013, the Utah Supreme Court issued an opinion holding that because the Trece gang was the only defendant named in the nuisance suit, and because “Trece was not properly served, ” “the [state] district court lacked jurisdiction over the only named defendant, ” so “the Injunction [was] void.” Weber Cty. v. Ogden Trece, 2013 UT 62, ¶ 60, 321 P.3d 1067, 1079.

         On September 19, 2014, Mr. McCubbin, in state court, filed a petition for relief under the Post-Conviction Remedies Act, Utah Code Section 78B-9-101. Mr. McCubbin argued that he was “entitled to an order vacating his two class B misdemeanor convictions for violating the Injunction because the Injunction was held to be void by the Utah Supreme Court on October 18, 2013.” The state district court ultimately “vacated his convictions.” (See ECF No. 93 at 18; ECF No. 113 at 10.)

         On October 28, 2014, Mr. Lucero filed a petition to have his conviction for violating the injunction set aside under Utah’s post-conviction remedies act. “Weber successfully opposed the petition on the ground that the petition had been filed a few weeks late, and successfully opposed all of Mr. Lucero’s attempts to invoke exceptions to the statute of limitations.” (ECF No. 93 at 18; ECF No. 113 at 10.)

         Standard

         Summary judgment is proper when the moving party demonstrates that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A material fact is one that may affect the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Id. The nonmoving party may not rest solely on allegations on the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Id. at 324. The ...


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