Ogden Trece lawsuit

8/12/2019 Ogden Trece lawsuit

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RECEIVED CLERK

Michael P. Studebaker, 10027 ofSTUDEBAKER LAW OFFICE, L.L.C.Attorney Plaintiffs FILED IN UNITED SIA.FS DISTRICT2550 Washmgton Blvd. Ste 331 COURT DISTRICT O UTAHOgden, UT 84401Telephone 801-627-9100Fax 801-Email: [email protected]

JUN 2 3 2 14

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IN THE UNITED STATES DISTRICT COURT, NORTHERN DIVISIONIN AND FOR THE STATE OF UTAHANTHONY LUCERO, CHASE AESCHILMANN, : COMPLAINTJAMES RIVAS, TROY RIVERA,JUAN SAUCEDO, BRIAN BUTLER,

CLASS CERTIFICATION)OTHERS SIMILARLY

SITUATEDVs.WEBER COUNTY UTAH, OGDEN CITY,OGDEN POLICE DEPARTMENT, DEESMITH, in his official capacity, OFFICERANTHONY POWERS, DOES 1-30,Defendants

Case: 1:14cv00068Assigned To : Stewart TedAssign. Date : 6/19/2014Description: Lucero et al v.et al Weber Cou

COMES NOW, Plaintiffs in the above matter, by and through their attorney ofrecord Michael Studebaker, and hereby file this Complaint and make the followingallegations:

JURISDICTION AND VENUE1 This civil rights case for deprivation of constitutional rights arising under the UnitedStates Constitution and the Utah Constitution. The case presents a federal question within

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this Cour t s jurisdiction under 28 U.S.C. 1331 and 1343. This action is brought under 42U.S.C. 1983, theFourth mendmentto the United States Constitution, and the FourteenthAmendment to the United States Constitution. The Court has the ability to exercise itssupplemental 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 Divisionof the District of Utah.3. Plaintiffs have properly filed a Notice of Claim as required by Utah Code 63G-7-402 tseq

P RTIES

4. The above-named Plaintiffs are or were residents of Weber County, State ofUtah duringthe time of the events complained of herein.5 Plaint iff 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 whileincarcerated, and could not defend against it. Based on the Ogden Gang Injunction(Injunction), his familial relationships were severely hindered as he was then prohibited fromassociating with his family members.6 Plaint iff Chase Aescheliminann is not an Ogden Trece member. He is alleged to be amember based, on who he knows in the community and associates with. Based on theInjunction, 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 theInjunction in July, 2013. Mr. Rivas is a 24 year old citizen. When he was 16 years old heobtained an 801 tattoo, but does not engage in gang related crime, but does know andoccasionally associate with persons alleged to be Ogden Trece members.8 PlaintiffTroy Rivera is not an Ogden Trece member. Mr. Rivera knows and occasionallyassociates with alleged Ogden Trece members. Specifically, he has family members who aremembers o Ogden Trece. Mr. Rivera was never jumped in or jumped out o OgdenTrece or any other gang. Based on the Injunction, his constitutional rights were severelyrestricted.9 Plaintiff Juan Saucedo is not an Ogden Trece gang member. Mr. Saucedo was servedwith the Injunction while serving a jail sentence. Mr. Saucedo is a 38 year old citizen, whowhen was 18 years old obtained an 80 1 tattoo. Based on the Injunction, his constitutionalrights were severely restricted.10 PlaintiffBrian Butler is not an Ogden Trece gang member. Mr. Butler was served withthe Injunction while in jail for misdemeanor possession o marijuana. Mr. Butler knows andoccasionally associates with people considered Ogden Trece members, but does not engagein any illegal behavior with them. Based on the Injunction, his constitutional rights wereseverely restricted.11 Defendants have violated the Constitution o he 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 PeopleofWeber County and entrusted with representing the people ofWeber County in criminalprosecutions. s a public official Smith is vested with considerable powers but thosepowers are conditioned by the fact that he is the representative not of any ordinary party toa controversy but of a sovereignly whose obligation to govern impartially is as compellingas its obligation to govern at all. Indeed as a public official Smith has a responsibility toseek justice to develop a full and fair record and not to use his position of the economicpower of the government to harass parties or bring about unjust results. Smith has failed tomeet these basic responsibilities.13. Defendant Weber County Utah is a governmental entity which brought the initial actionagainst the now Plaintiffs.14. Defendant Ogden City is a governmental entity which maintains the Ogden PoliceDepartment and its employees.15. Defendant Officer Anthony Powers and officers Doe 1-30 are employees of he OgdenPolice Department who played a key and integrated role in bringing the initial action againstthe now Plaintiffs.

ST TEMENT OF THE F CTS

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

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B CKGROUNDA Gang Injunctions17. More than a decade ago, the California Supreme Court authorized an unprecedented lawenforcement technique to deal with criminal street gangs-the issuance of a civil publicnuisance injunction against alleged gang members that restricted their activity in a foursquare-block area. People ex rel Gallo v Acuna 929 P 2d 596 (Cal. 1997). But Acuna andsubsequent appellate decision have recognized that this is an extraordinary remedy that mustbe 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 standofproofby presenting clear and convincing evidence that the necessary elements ofa ganginjunction are present before a trial court can invoke its injunctive powers. Englebrecht 106Cal. Rptr. 2d at 738.18 Gang injunctions warrant careful scrutiny because they prohibit commonplace, lawfulactivities, and thus can have a pervasive impact on the everyday lives of those bound and ontheir families. Indeed, the reason that gang injunctions are so desirable from the perspectiveofl w enforcement is precisely because they enjoin lawsuit and innocent activity that can beeasily detected. The police can arrest individuals for violating the gang injunction, and theprosecutor can charge them with a crime.



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19. This case underscores the need for courts to scrutinize the way in which prosecutorsobtain and police enforce gang injunctions.B The nitial Litigation20. On September 28, 2010 Weber County, with the assistance o Defendant Powers,Defendant Does 1-30, Defendant Ogden City, and through its agents Defendants broughtwhat can be considered a civil nuisance abatement lawsuit against an alleged criminal streetgang, naming Does 1-2001 Defendants obtained personal service on a minimal amount opersons, including Samuel Parsons and J aimie Gomez. Defendants also named 200 unnamedindividuals alleged to be members o the gang seeking to subject them to virtually identicalpreliminary and permanent Injunctions that prohibit and, in effect criminalize commonplaceand lawful activities-such as going outside in the evening, walking into a restaurant or ontoa bus, or attending a political meeting or religious service i any others who have been servedwith the Injunction are present-in an area o Ogden totaling approximately 25 square miles2referred to as the safety zone. For every act in violation o the Injunction, a person canreceive up to six months in jail and pay a $1,000 fine.21. During various times in the service o he Injunction, Defendant Smith inserted himself

The Complaint did not contain any specific allegations against any particular individualor any o the persons served with it.2In researching the legal issues no other jurisdictions could be located with such a largegeographic safety zone

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into the actions of serving the Injunction, as seen on video. Annie Cutler, Utah SupremeCourt Throws out Anti-Gang Injunction3, thus making him a party in this action as it is outside the roles of theCounty Attorney to participate in that type of action.22. During the trial, the above-named Defendants would regularly cite to California law insupport 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 entereda permanent Injunction on August 20, 2012 (Exhibit A). This Injunction prohibited thefollowing constitutional actions:

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

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

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

Defendant Smith is clearly seen on the video at 01:457



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subjected to possible arrest i they were in the same polling place with any person who hadalso been served with the Injunction. See, Transcript at 102 (Exhibit B).27. Those who were served with the Injunction, including but not limited to Plaintiffs, weresubjected to possible arrest i they were visiting their grandmother at 11 5 p.m. d. at 103.28. Those who were served with the Injunction, including but not limited to Plaintiffs, weresubjected to prosecution for possessing a firearm, even i no predicate crimes had beencommitted. d. at 102-03.29. Law enforcement had unfettered discretion to determine who was a gang membersubjected 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 o competent jurisdiction is held to determine i hese personsare in fact gang members.31. All the above-named Defendants acted in concert with each other to violate Plaintiffsconstitutional rights.32. During both the preliminary and permanent status o he Injunction, Defendants causedto be served the documents on any persons that were believed to be members o OgdenTrece.33. The issue was appealed to the Utah Supreme Court. The Supreme Court vacated theInjunction in the case o 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 thepapers 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 theoutset, nobody had counsel or were aware ofwhat 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 placeC Enforcement o the Order

36. On information and belief, since September 2010 the Ogden Police Department, WeberCounty heriffs Office, and others have arrested numerous persons for violating this order.

CLASS ACTION ALLEGATIONS37. 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 arepresentative action pursuant to a procedure analogous to Rules 23 a) and 23 b) 2). Jamav ICE 543 U.S. 335 2005) allowing class action habeas petition). Plaintiffs bring thisaction individually and on behalf of a class. defined as: All persons served with thepreliminary Injunction and/or the permanent Injunction38. The proposed class meets the requirements ofFederal Rule ofCivil Procedure 23 a) l).At least 300 individuals were, like Plaintiffs, served and subjected to the oppressiverestrictions of the Injunction.

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39. The identify o the class members is known by Defendants and is readily ascertainablefrom their records.40. The proposed class meets the requirements ofFederal rule o Civil Procedure 23(a)(2).There are several common questions o law and fact in the action. These include: (1)whether being subjected to the terms o he injunction deprived them o a liberty or propertyinterest; (2) the violations o he Plaintiffs First Amendment rights; (3) the violations o hePlaintiffs Second Amendment rights; (4) the violations ofthe Plaintiffs Fourth AmendmentRights; (5) the violations o the Plaintiffs Fourteenth Amendment Rights; (6) violations oPlaintiffs constitutional rights under Article 1 Section 1 o the Utah Constitution; (6)violations o Plaintiffs constitutional rights under Article 1 Section 6 o the UtahConstitution; (7) violations o Plaintiffs constitutional rights under Article 1 Section 7 othe Utah Constitution; (8) violations o Plaintiffs constitutional rights under Article 1Section 8o he Utah Constitution; and (9) violations ofPlaintiffs constitutional rights underArticle 1 Section 15 o the Utah Constitution.41. The proposed class meets the requirements o Federal Rule o civil Procedure 23(a)(3).The claims o the named Plaintiffs are typical o the claims o the proposed class. Like theproposed class members, the named Plaintiffs were subjected to the terms o the Orderwithout having been afforded notice and an opportunity to be heard as required by the DueProcess Clause.

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42. The proposed class meets the requirements ofFederal Rules ofCivil Procedure 23 a) 4).The named Plaintiffs will fairly and adequately represent the interests of all members of theproposed class because they seek relief identical to the rel ief sought by all class members andbecause they have no interest adverse to other class members.43. The proposed class meets the requirements of ederal Rules ofCivil Procedure 23 b ) 2).Defendants have acted on grounds generally applicable to the class through their policy andpractice of subjecting individuals who were named without providing due process of law,making class-wide declaratory and injunctive relief appropriate.

LEG L B CKGROUND44. This case involves the egregious abuse of government power and denial ofdue processby 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 rightsof free speech, freedom from vague and arbitrary laws, and free movement, all ofwhich areguaranteed by the state and federal constitutions. The Injunction deprived Plaintiffs of hesefundamental rights. The Injunction proscribed otherwise legal acts and, in effect, creates apersonal criminal code for each individual who Defendants, in their own unfettereddiscretion, is subject to its terms. The deprivation of liberty interests thus stems from theInjunction and Defendants service of it on Plaintiffs, and others similarly situated, who now



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pout into the position o continuing to live their lives and exercise their freedom and riskarrest and incarceration for violating the Injunction. The opportunity to defend against thisin a criminal court following arrest and incarceration is a pale substitute for the opportunityto defendant against a civil suit and to oppose issuance o he Injunction in the first instance.Indeed the opportunity to defend in a criminal proceeding comes too late to prevent preciousconstitutional freedoms and interests from being affected by this unjustified and unlawfulInjunction.

OUNT I42 U.S.C. 1983-Procedural Due Process

49. Plaintiffs reallege and replead all the allegations o the preceding paragraphs o thisComplaint and incorporate them by reference.

50. Defendants acted under color o law.51. The acts o Defendants deprived Plaintiffs and those similarly situated o their rightsunder the Fourteenth Amendment to the Untied States Constitution.52. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms o the Injunction Defendants deprived Plaintiffs and those similarlysituated o their constitutionally protected liberty or property interest without adequateprocedural protections.

OUNT II

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Article 1 Section 7 Utah Constitution-Due Process of law53. Plaintiffs reallege and replead all the allegations of the preceding paragraphs of thisComplaint and incorporate them by reference.54. Defendants acted under color of law.55. The acts of Defendants deprived Plaintiffs and those similarly situated of their rightsunder Article 1 Section 7 ofth Utah Constitution.56. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms of the Injunction Defendants deprived Plaintiffs and those similarlysituated of their constitutionally protected liberty or property interest without adequateprocedural protections.

OUNT III

First Amendment to United States Constriction57. Plaintiffs reallege and replead all the allegations of the preceding paragraphs of thisComplaint and incorporate them by reference.58. Defendants acted under color of law.59. The acts of Defendants deprived Plaintiffs and those similarly situated of their rightsunder the First Amendment to the Untied States Constitution.60. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms of the Injunction Defendants deprived Plaintiffs and those similarly

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situated o heir constitutionally protected rights to freedom o speech association religionor to protest the government.

OUNT IV

Article 1 Section 1 Utah Constitution61. Plaintiffs reallege and replead all the allegations o the preceding paragraphs o thisComplaint and incorporate them by reference.62. Defendants acted under color o law.63. The acts o Defendants deprived Plaintiffs and those similarly situated o their rightsunder Article 1 Section 1 o the Utah Constitution.64. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms o the Injunction Defendants deprived Plaintiffs and those similarly

situated o heir constitutionally protected rights to freedom o speech association religionor to protest the government.

OUNTV

Second Amendment to Untied States Constitution65. Plaintiffs reallege and replead all the allegations o the preceding paragraphs o thisComplaint and incorporate them by reference.66. Defendants acted under color o law.67. The acts o Defendants deprived Plaintiffs and those similarly situated o their rights

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under the Second Amendment to the United States Constitution.68. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms o the Injunction Defendants deprived Plaintiffs and those similarlysituated o their constitutionally protected rights to bear and possess arms.

OUNT VI

Article 1 Section 6 Utah Constitution69. Plaintiffs reallege and replead all the allegations o the preceding paragraphs o thisComplaint and incorporate them by reference.70. Defendants acted under color o law.71. The acts o Defendants deprived Plaintiffs and those similarly situated o their rightsunder Article 1 Section 6 o the Utah Constitution.

72. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms o the Injunction Defendants deprived Plaintiffs and those similarlysituated o their constitutionally protected rights to bear and possess arms.

OUNT VII

Fourth Amendment to United States Constitution73. Plaintiffs reallege and replead all the allegations o the preceding paragraphs o thisComplaint and incorporate them by reference.74. Defendants acted under color oflaw.

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75. The acts of Defendants deprived Plaintiffs and those similarly situated of their rightsunder the Fourth Amendment to the United States Constitution.76. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms of the Injunction Defendants deprived Plaintiffs and those similarlysituated of the right to be secure in their persons houses papers and effects againstunreasonable searches and seizures. Nor was there any probable cause supported by Oathor affirmation of any violation of law.

OUNT VIIIArticle 1 Section 14 Utah Constitution

77. Plaintiffs reallege and replead all the allegations of the preceding paragraphs of thisComplaint and incorporate them by reference.78. Defendants acted under color of law.79. The acts of Defendants deprived Plaintiffs and those similarly situated ofth ir rightsunder the Fourth Amendment to the United States Constitution.80. Specifically by subjecting Plaintiffs and those similarly situated or causing them to besubjected to the terms of the Injunction Defendants deprived Plaintiffs and those similarlysituated of the right to be secure in their persons houses papers and effects againstunreasonable searches and seizures. Nor was there any probable cause supported by Oathor affirmation of any violation of law.

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disregard o the likelihood o causing emotional distress.86. Plaintiffs suffered severe emotional distress by always having to worry about the balancebetween exercising their constitutional rights and being subjected to arrest.87. The actions o the named Defendants caused this distress on behalf o Plaintiffs.

COUNT XINegligent Hiring/Supervision/Retention

88. Plaintiffs reallege and replead all the allegations o the preceding paragraphs o thisComplaint and incorporate them by reference.89. Weber County Ogden City and the Ogden Police department knew or should haveknown that its employees were falsely claiming Plaintiffs were gang members and should besubjected to the Injunction.

90. The employees o Ogden City Weber County and the Ogden Police Department didactually cause the Injunction to be filed and litigated ignoring the procedural due processrights o Plaintiffs and others similarly situated.91. Weber County Ogden City and the Ogden Police Department were negligent in theirhiring supervising or retaining the employees proximately caused the injury which Plaintiffsand others similarly situated suffered.

WHEREFORE Plaintiffs pray for the following relief against the Defendants:A. For the actions complained o herein general damages in a reasonable sum as set by a

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EXHI IT A

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FILEIN TilE SECOND JUDICIAL DISTRICT COURT OF WEBEF cor ISTATE OF UTAH, OGDEN DEPARTMENT AUG 2 2 12

WEBER COUNTY,Plaintiff,

vs.OGDEN TRECE, AKA, CENTRO CITYLOCOS, a criminal street gangsued as an unincorporated association; andDOES 1 through 200, inclusive,

Defendant.

_:_o_L:vVP4YDISTRICT COURTORDER GRANTING

PERMANENT INJUNCTION

UG 2 0 2 12CASE NO. 100906446

JUDGE ERNIE W. JONES

PlaintiffWeber 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 thedeclarations and Plaintiff's memorandum of points and authorities, the testimony and evidencepresented in this matter, and the oral arguments presented at the hearing on September 14 andSeptember 27, 2010, the evidence presented at trial on June 11, 12, and 14, 2012, all exhibits enteredin 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 followingadditional findings of fact: a) that Defendant is a criminal street gang because it is an association infact or group of three or more persons that, operated informally or formally, is currendy inoperation. The Court finds that Ogden Trece, AKA Centro City Locos ( Ogden Trece ), has asone of its primary activities the commission of one or more predicate gang crimes. The Court findsthat Ogden Trece has, as a group, identifying names, signs, symbols, colors, and clothing. TheCourt finds that Ogden Trece's members have, acting individually or in concert with othermembers, engaged in and engage in a pattern of criminal gang activity.



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The Court also finds that: b) Defendant is an unincorporated association as defined inUtah Rules of Civil Procedure Rule 4; c) a public nuisance caused by the conduct and activities ofOgden Trece exists in the Safety Zone identified in Plaintiffs Amended Complaint and set forthherein; and d) the conduct and activities of Defendant, its members, and those persons throughwhom Defendant acts, is a cause of the public nuisance that exists in the Safety Zone defined as theCity of Ogden, starting at 36th Street running directly east to the border of Ogden City and WeberCounty, and west to Pacific Avenue; extending from 36th Street and Pacific Avenue north to 31stStreet, then west on 31 t to Pennsylvania Avenue, north to 24th Street; 24th Street east to the frontrunner tracks (sometimes called Union Pacific Drive ) north along the front runner track to theHarrisville border at North Street; from the border of Harrisville beginning at the front runnertracks extending east along North Street to Washington Blvd.; north on Washington Blvd. to theborder of North Ogden City at 1500 North; east along the border of North Ogden City to theWeber County border; then south along the County border to the intersection of 36th Streetextended east to the County border, and extending 100 yards to the outside of each of the describedboundaries.GOOD CAUSE HAVING EEN SHOWN T IS HERE Y ORDERED that:1. Defendant Ogden Trece and its members are enjoined and restrained from directly or indirectlyengaging 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 anywherein public view or anyplace accessible to the public, but not including: 1) when allindividuals are inside a school attending class or on school business; and 2) when allindividuals are inside a church; provided however that this prohibition againstassociating shall apply to all claims of travel to or from any of those locations;



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b. o Intimidation: Confronting intimidating annoying harassing threateningchallenging provoking assaulting any person known to be a witness to any activityof gden Trece known to be a victim of any activity of gden Trece or known tohave complained about any activity of Ogden Trece;

c. o Firearms Imitation Firearms or Dangerous Weapons: Anywhere in publicview or any place accessible to the public 1) possessing any firearm imitationfirearm 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 firearmimitation firearm ammunition or illegal weapon; or 3) knowingly remaining in thepresence of such firearm imitation firearm ammunition or illegal weapon;

d o Graffiti: Unauthorized damaging defacing spraying scratching affixinginscribing 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 asdefined in U.C.A. 58-37a-3; 2) knowingly remaining in the presence of anyoneselling possessing or using any controlled substance or such related pa>raphemalia;or 3) knowingly remaining in the presence of any controlled substance or suchrelated paraphernalia;

f. Stay Away From Alcohol: Anywhere in public view or any place accessible to thepublic except on properly licensed premises 1) possessing an open container of an

alcoholic beverage 2) knowingly remaining in the presence of anyone possessing anopen container of an alcoholic beverage or 3) knowingly remaining in the presenceof an open container of an alcoholic beverage;

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g. o Trespassing Being present on or in any property not open to the generalpublic, except 1) with the prior written consent of the owner, owner's agent, or theperson in lawful possession of the property, or 2) in the presence of and with thevoluntary consent of the owner, owner's agent, or the person in lawful possession ofthe property;

h. Obey Curfew Being present in public view, in a public place, or in any placeaccessible to the public, between the hours of 11 p.m. on any date and 5 a.m. of thefollowing day, unless 1) going directly to, returning directly from, or activelyengaged in a legitimate business trade, profession, or occupation requiring theenjoined person's presence, 2) going directly to, returning directly from, or activelyengaged in a lawful, non-gang related entertainment event, school activity, orreligious service, or 3) actively involved in a legitimate emergency, such as a fire,natural disaster, automobile accident, or situation that requires immediate action toprevent serious bodily injury or loss of life. or 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 threatenedviolence, including murder, rape, robbery, and assault; 2) which prohibit interferencewith 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 commissionof acts which create a nuisance including the illegal sale of controlled substances andblocking the sidewalk;

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2. Hardship Exemption Process (Do Not Associate and/or Obey Curfew Provisions) Aperson may receive a specific exemption from portions of the do not associate and/or the obeycurfew provisions pursuant to the following process:

a. A written application for such exemption is to be made to the Weber CountyAttorney, 2380 Washington Blvd., Ogden, Utah 84401;

b. The application must be specific in that it must request permission to associate onlywith a named individual or named individuals at specific times and in specific placeswhen such association is reasonably necessary, or permission to be in a specificpublic place between 11 p.m. and 5 a.m. when it is reasonably necessary to be in aparticular 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 deliveredor fifteen 1 5) days after it is mailed, the applicant may apply to this Court for suchan exemption by noticed motion.

3. Opt-Out'' Provision: Any person (hereinafter, Served Person ) who has been served with thisinjunction or any subsequent injunction entered in this action (hereinafter, Gang Injunction ) maymove this Court under this opt-out provision or any subsequent opt-out provision approved by thisCourt to be dismissed from this action. This Gang Injunction shall not be enforceable against aServed Person who is dismissed under this Opt-Out Provision. The terms of the current Opt-OutProvision 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 prejudiceand with each side to bear its own costs and fees, and so long as the motion satisfiesthe following requirements:

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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 asretraxit in any other action.

d Dismissed Served Person Committing ew Violation: If a Served Personwho has successfully been dismissed from this Gang Injunction pursuant to this OptOut Provision, fails to abide by all of the above opt-out provisions, such as byassociating with known active Ogden Trece gang members, by getting new gangtattoos, or by getting arrested for any crime that is determined to be a gang-relatedcrime, then such Served Person may be re-served with this Gang Injunction, and willbe required to comply with all of its terms.

4 Personal Service Required: No person shall be subject to the provisions of this Order unlessthat person has been previously served with this Order.5 o Bond Required: Plaintiff shall not be required to post an undertaking pursuant to Rule65A(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 anyperson or circumstance is held invalid, the invalidity does not affect other provisions or applicationsof this injunction which can be given effect without the invalid provision or application, and to thisend the provisions of this injunction are declared to be severable.

Dated this t J day of August, 2012.

'e W JonesDistrict Court Judge

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CERTIFIC TE OF M ILINGI certi j that on t is 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. Richards2550 Washington Blvd., Ste 300Ogden UT 84401

Michael P. Studebaker2550 Washington Blvd., Ste 331Ogden UT 84401

Michael J Boyle2554 Monroe Blvd.Ogden UT 84401

Dee SmithWeber County Attorney s Office2380 Washington Blvd., Suite 230Ogden Utah 84401

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EXHI IT B



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SECOND DISTRICT COURT - OGDENFOR WEBER COUNTY STATE OF UTAH

WEBER COUNTYP l a i n t i f f

vs. CASE NO. 100906446OGDEN TRECE

Defendan t .

BEFORE THE HONORABLE ERNIE W JONES

2525 GRANT AVENUEOGDEN UTAH

TRIALJUNE 12 2012

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12

QA

T h a t t h e gang c a s e s have gone down?T h a t s j u s t a r e f l e c t i o n o f c a s e s t h a t a r e w i t h i n

3 o u r r e c o r d s management s y s t em t h a t a r e f l a g g e d as h av i n g gan4 i n v o l v e m e n t .5 Q A l l r i g h t . And l t me t a l k abou t t h a t fo r a6 minute . Do you have some d e f i n i t i o n s e s t a b l i s h e d r e g a r d i n g7 t h e se d a t a s amp l es ?89

1011

v e r s u s

AQ

You say d e f i n i t i o n s , what do you mean?D e f i n i t i o n s as to what a g a n g - r e l a t e d c r ime i s

a n o n g a n g - r e l a t e d c r i me , fo r i n s t a n c e ?A T h a t s e l e c t i o n i s made a t t h e d i s c r e t i o n o f t h e

12 o f f i c e r who c o m p l e t e s t h e r e p o r t and t h en r ev i ew ed by t h e i r13 s e r g e a n t and t h e n a l i e u t e n a n t .1415

Q Okay So t h e r e s no d e f i n i t i o n s g i v e n to t h e s ei n d i v i d u a l s t h a t a re making t h e r e p o r t s ? T h a t would be t h e

16 i n d i v i d u a l o f f i c e r s ?17 A T h ere may be . I d o n t know what p o l i c y , so to18 s p eak , a r e in p l a c e as f a r a s them s a y i n g t h i s i s - - has gan19 i n v o l v emen t so you need to s e l e c t yes ; t h i s does not so you2021

22232425

need to s e l e c t no .Q OkayA T h a t would p r o b a b l y be p a r t o f o u r f i e l d t r a i n i n g

o f f i c e r program.Q But you d o n t know t h a t ?A I d o n t know

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1 t h ro u g h t h e R S s y s t em i s t h e r e any v a l i d i t y , s t u d i e s t h a t2 a r e done t h a t go b ack and see w h e t h e r o r n o t , fo r example ,3 one p a r t i c u l a r c a s e t h e o f f i c e r c o r r e c t l y e n t e r e d in th e d a t4 i s in t h e r i g h t f i e l d s ?5 A. Not t h a t I m aware o f .67

9101112

QA.

t h e r e p o r t .

Okay.U s u a l ly that s hand led when t h e o f f i c e r s u b mi t s

The s e r g e a n t r ev i ew s it. I f t h e y ap p ro v e it, al i e u t e n a n t t h e n rev iews it and approves o r k i c k s it back f o rc o r r e c t i o n .

Q So when he s u b mi t s h i s w r i t t e n p o l i c e r e p o r t -w e l l , nobody w r i t e s t h o s e anymore -- t y p es in t h e p o l i c e

13 r e p o r t , r ig h t ?1415

16

A. R ig h t .Q Then y o u r e s a y i n g t h a t t h e s e r g e a n t and t h e n t h e

l i e u t e n a n t r e v i e w s t h e p o l i c e r e p o r t w i t h t h e s c r e e n s on t h e17 R S s y s t em [ s i c ] to see if t h e d a t a mat ch es up?1819202122

A. No to see if - - to s ee if t h e o f f i c e ra c r i m i n a l o f f e n s e , have all o f t h e e l e m e n t s o f t h a tp a r t i c u l a r c r i me b een met in t h e r e p o r t .

Okay.

if it s

QA. If all o f t h e i n d i v i d u a l s o r t h e entities in t h a t

23 r e p o r t a re c o m p l e t e l y filled o u t , name a d d r e s s e s , b i r t h24 d a t e s , and w h a t n o t , and f i e l d s su ch as t h e gang i n v o l v emen t25 f i e l d i s t h a t a p p r o p r i a t e l y ch eck ed o r n o t .

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was

QA.Q

So t h e r e i s some o v e r s i g h t ?T h ere is.So a r e you aware o f how many t i m e s t h e i n fo rm a t i o

e n t e r e d i n c o r r e c t l y i n t h e gang f i e l d itself?A. I m n o t . I d o n t know t h a t that s t r a c k e d w i t h i n

6 t h e s y s t em. I f a s e r g e a n t r ev i ew s a c a s e and f e e l s t h a t it78

n eed s more work they ll k i c k it b a c k t o t h e a u t h o r o f t h er e p o r t , and they ll c o r r e c t it. But I d o n t know t h a t that s

9 t r a c k e d .10 Q Now i s it your u n d e r s t a n d i n g t h e gangs i n j u n c t i o11 went in e f f e c t o f August o f 2010 r i g h t ?12131415

A.QA.Q

Sep temb er i sSep temb er?Sep temb er o f 2010 i s what I m aware o f .Okay. So in September o f 2010 -- oh, t h e r e was a

16 e x p a r t e t h a t was in p l a c e b u t -- Sep temb er o f 2010 was t h a t17 b ro k en down f rom t h e p o i n t p r e - i n j u n c t i o n to p o s t - i n j u n c t i o n ?18192021222324

A.Q

Not in t h i s r e p o r t .So in t h e r e p o r t t h a t you s u b m i t t e d , how much

d i r e c t i o n d i d you have f rom t h e co u n t y a t t o r n e y as to howt h a t r e p o r t was su p p o sed t o be c r e a t e d ?

A. From what I r e c a l l it was j u s t to go b ack in t i meto a p a r t i c u l a r p o i n t , p u l l o f t h e c a s e s t h a t were i n d i c a t e das h av i n g gang i n v o l v emen t and t o c h a r t them and t r e n d them

25 as t h e r e p o r t r e f l e c t e d .

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12

A.Q

Uh-huh . I have a copy o f it h e r e .Okay. I ll g i v e you some h y p o t h e t i c a l s h e re b a s e

3 on-- j u s t I m c u r i o u s in your e x p e r t i s e t h e n .4 As t h e i n j u n c t i o n i s d r a f t e d and e n t e r e d by t h i s5 Co u r t if two p e o p l e o v e r t h e age 18 a r e r e g i s t e r e d v o t e r s i n6 Weber Coun t y , and t h e y go to a p o l l i n g p l a c e a t t h e same7 t ime , t h a t would be a v i o l a t i o n t h e n u n d e r t h e a s s o c i a t i o n8 c l a u s e , w o u l d n t it?9 T h a t would be p a r a g r a p h A if you want to l o o k a t

10 it.11 A. L e t s s ay if Mr. Smi th and m y s e l f went t o -- you121314

s a i d two p e o p l e .Q. Okay. I ll c l a r i f y it f o r you t h e n .

Two p e r s o n s who have been s e r v e d w i t h t h e15 i n j u n c t i o n , and t h e y go to v o t e -- b u t t h e y r e r e g i s t e r e d16 v o t e r s ; i s t h a t a v i o l a t i o n o f t h e a s s o c i a t i o n c l a u s e ?17181920

T h a t would be P a r a g r a p h A.A Hold on . L e t s s ee . I b e l i e v e it would .Q And t h a t would t h e n s u b j e c t t h a t p e r s o n to

a r r e s t and b e i n g p r o s e c u t e d in your c o u r t as t h e c h i e f21 p r o s e c u t o r o f Ogden j u s t i c e c o u r t ?22 A. If -- if t h e y v i o l a t e d t h e i n j u n c t i o n , yes .

an

23 Q As a l aw y er and a p r o s e c u t o r y o u r e aware t h a t24 c e r t a i n c r i m e s p r o h i b i t somebody f rom p o s s e s s i n g a f i r e a r m ,25 r i g h t ?

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12

AQ

I -- a r e you --A d o m e s t i c v i o l e n c e [ i n a u d i b l e ] d e f e n s e s b e c a u s e

3 you p r o s e c u t e t hem, y o u r e aware o f t h e f a c t t h a t that s a4567

p o t e n t i a l to h i n d e r a p e r s o n s ability to p o s s e s s a f i r e a r m ?A C o r r e c t .Q Al l r i g h t . And y e t -- want to g i v e you a n o t h e r

h y p o t h e t i c a l as it r e l a t e s to t h i s i n j u n c t i o n . I f somebody8 w h o s b een s e r v e d wi th i n j u n c t i o n , has n o t co m m i t t ed any9 p r e d i c a t e c r i m e s t h a t would b a r them f rom a f i r e a r m --

10 domes t i c v i o l e n c e , f e l o n i e s , all t he o t h e r p r e d i c a t e11 c r i m e s -- b u t if somebody who a - - an a d u l t pos s e s s a f i r e a r m12 and has been s e r v e d w i t h t h e i n j u n c t i o n , t h a t a l s o i s a13 v i o l a t i o n t h e n o f t he i n j u n c t i o n and s u b j e c t i n g them to14 c r i m i n a l p r o s e c u t i o n , r i g h t ?15 Th a t would be p a r a g r a p h C16171819

AQ

I s e e it, yeah. I mean y o u r e aware o f it, y e s .I m aware o f what I m aware o f .

But t h a t t h e n would be a v i o l a t i o n .I f an Ogden -- o r somebody who has b een se r v e d w i t h

20 t h e i n j u n c t i o n i s coming home f rom t h e i r g r a n d m a s , 11 :0521 p m And h ad -- s t o p p e d by D e t e c t i v e Powers , t he gang u n i t .22 I s t h a t a v i o l a t i o n o f t h e i n j u n c t i o n , under p a r a g r a p h H?2324

AQ

25 cour t room ?

It would be a v i o l a t i o n .Aga in , s u b j e c t i n g them to p r o s e c u t i o n in your

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23

45

A It j u s t en s u r e s t h a t he d o e s n t g e t s t u c kc e l l w i t h a Su ren o s gang member.

Okay. So it s a good s a f e t y measu re t hen?Yes. It s t h e jail s a f e t y member.

in a

QA.Q Give you a little bit o f c r e d i b i l i t y t oo in t h e

6 p r o c e s s , r i g h t ?7 A. For? C r e d i b i l i t y t o w ard s what?89

10

Q. Oh j u s t c r e d i b i l it y w i t h t h e p eo p le in t h e jail.I mean p eo p le i n t h e jail a re not t h e -- g e n e r a l l y t h e f i n eu p s t an d in g members o f t h e communi ty r i g h t ?

A I d o n t know if it adds any to it. Being a12 member and from t h e gang , I t h i n k , a t l e a s t you would have131415

161718

f r i e n d s i n t h e r e .Q. Okay. So let s - - go f rom t h a t -- fo r p u rp o s e s o

t h i s h e a r i n g and t h i s h e a r i n g o n ly , w e l l ag r ee t h a t Mr.Par s o n s a d m i t s to b e i n g a gang member. A l l r i g h t ?

A.Q.

Okay.So let s s ay t h i s : T h a t one h i t - - and a g a i n , on

19 t h e se boxes , t h a t one h i t would j u s t make him a gang20 affiliate, r i g h t ?212223

A.

QAn a s s o c i a t e , yes .Thank you . An a s s o c i a t e .

That does not make him an u n i d e n t i f i e d Ogden T rece24 gang member?25 A. No it does n o t .

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123

Q.A.Q.

A l l r i g h t . We need a t l e a s t one more box?Yes you do.A l l r i g h t . So if I am a r r e s t e d , h y p o t h e t i c a l l y

4 s p e a k i n g , and I ll ad mi t t h a t I m n o t Mr. Macho and I m n o t5 going to e n j o y my t i me a t t h e c o u n t y jail678

10111213

A. Uh-huh .Q -- and I want t h e p r o t e c t i o n t h a t you i d e n t i f i e d ,

I can go in t h e r e and tell t h e booking o f f i c e r ,h y p o t h e t i c a l l y , t h a t I am a Ogden T rece gang member and t h ewould p r o b a b l y p u t t h a t in my little b o o k i n g s h e e t ?

A.QA.

Yes t h e y would .Okay.As f a r as o f f e r i n g p r o t e c t i o n , if you were n o t an

14 Ogden T rece gang member as be e n testified in t h e p a s t it15 would p r o b a b l y r e s u l t in a b e a t i n g any ways.16 Q. Could be . I mean w e l l have to s e e . They may17 l i k e me. A l l r i g h t .18 So I g e t o u t and t h e n I v e a l r e a d y been - - a l r e a d y19 had t h i s s h e e t now t h a t s ay s , bam I v e a d m i t t e d to gang202122234

25

affiliation. But all o f a sudden I m an a s s o c i a t e . I m n o ta f u l l gang member.

And let s say t h i s , I g e t o u t . I m o u t onWednesday n i g h t -- and I m going to show you-- w h a t s beenmarked as D ef en d an t s Ex h i b i t Number 2 .

A. Uh-huh.

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12

456

789

10111213

Q.A.Q.

A.QA.

o you r e c o g n i z e t h a t document?Yes I do.What i s i t ?This i s t h e Ogden Trece gang i n j u n c t i o n list.Did you h e lp c r e a t e t h a t document?Yes I d id .

Q. A l l r i g h t .open o f it, r i g h t ?

And it i d e n t i f i e s t h a t name a t t h e

list.

A.

Q.A.

Ogden Trece member list.Righ t . AndAnd j u s t to c l a r i f y : This i s a gang i n j u n c t i o n

This i s no t every per son w h o s in-- on t h e g a n g - -Q. C o r r e c t . And it s a l s o t h e Ogden Trece - - no t al

14 o f t h e gang members?A.

Q.

R i g h t .R i g h t . We had all t h a t whole d i s c u s s i o n .

a p r i o r h e a r i n g abou t it. And - -We had

15

161718 MR STUDEBAKER: Your Honor a t t he t ime w e d move19 to admi t D ef en d an t s Ex h i b i t Number 2 .20212223

THE COURT:MR MILES:THE COURT:MR MILES:

24 d i scuss ing t h i s i s s u e .25 THE COURT:

Al l r i g h t . Any o b j e c t i o n to 2?One second, Your Honor.I m so r ry ?One minute , Your Honor w e r e kind o f

Okay.

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101112

MR. MILES: No o b j e c t i o n , Your Honor .THE COURT: A l l r i g h t . W e l l ad mi t D 2 .(D e fe n d a n t s E x h i b i t No. 2 was r e c e i v e d i n t o

e v i d e n c e . )Q. BY MR. STUDEBAKER) A l l r i g h t . So D e t e c t i v e

Powers , b a c k t o my h y p o t h e t i c a l , I s p e n t my n i g h t i n jail foa minor traffic o f f e n s e .

A. Okay.Q. And I -- b e c a u s e

to b e i n g Ogden T re c e .A.Q

Okay.And I g e t o u t .

o f my f e a r f o r my s a f e t y , I ad m

And I v e a l r e a d y g o t t h a t one hit13 Now I m g o i n g to t h e h o s p i t a l to see my d y i n g mom14 h y p o t h e t i c a l l y , and let s s ay I ru n i n t o -- I d o n t know on15 t h a t D e f e n d a n t s E x h i b i t 2 - - J o s e A c o s t a .16171819

AQA.Q

Okay.Do you know Mr. Acos ta?Yes I do .Okay. I d o n t . So-- b u t h e s i d e n t i f i e d as t h e

20 first name on t h e d a t a b a s e o r t h i s member list, if you w i l l21 t h a t w e v e t a l k e d ab o u t .2223

A.Q.

Yes.And it s a little bit l a t e . And t h en I a l s o run

24 into-- as w e r e coming home J o s e C a b ra l --who s a l s o on25 first p ag e o f t h i s list.

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1 Do you know Mr. Cabra l?2 A. I m no t f a m i l i a r with him.3 Q Okay. But h e s on t h e list?4 A Yes I b e l i e v e that s - -5 Q And t he r eason he would be on t h i s list because o6 t he f a c t he has met t he criteria b e in g an Ogden T rece gang7 member?8 A. Yes s u re , yes .

Q A l l r i g h t . So we got two p eo p le now. So I m10 coming home f rom t h e h o s p i t a l a f t e r s e e i n g my dying mother11 and you run i n t o me Mr. Acos ta , Mr. C a b ra l , r i g h t , two gang

members.2 T h a t s one t ime y o u v e run i n t o us r i g h t , let s13 j u s t say .14 A Yes t h a t would be - -15 Q Okay.16 A - - w e l l , what c i r cu ms tan ce?17 Q. W e re walk ing home.18 A A l l t h r e e o f you?19 Q Yes.20 A I s t h e r e - - do you know t h e s e peop le?21 Q Sure .22 A Okay.23 Q I j u s t met them a t t h e h o s p i t a l . They seemed l i k4 nice guys.

25 A Okay.

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12 Mr.

Q. A l l right. And you come up t o us and you talk toC a b r a l a nd Mr. A c o s t a b e c a u s e a s a gang d e t e c t i v e y o u r e

3 aware t h a t t h e y r e Ogden T r e c e gang members , r i g h t ?

56

789

1011

A.Q.

Yes , I do .A l l right. You may a s k t h e m -- I d o n t know --

how t h e y r e d o i n g ? What a r e you up t o ?o f t r o u b l e ?

You guys s t a y i n g o u

A.Q

A.Q.

S u r e .A l l right.

W e v e had c o n t a c t s t h a t a r e just a s much a s that.Okay. And they re, like, Oh D e t e c t i v e Powers ,

12 you know w e r e n o t d o i n g a n y t h i n g .13 And I m , l i k e , O f f i c e r , w e r e just coming home f rom1415

1617181920

s e e i n g my grandma my mom.Yes ..

Q And y o u r e l i k e , okay .The f o l l o w i n g n i g h t my m o t h e r is still i n h o s p i t a l ,

h y p o t h e t i c a l l y , a nd t h e s e guys seem to ha ve c l i c k e d allr i g h t .a g a i n .

They seem l i k e n i c e guys . And w e r e coming homeAnd w e r e n o t b r e a k i n g any l a w .

21 w a l k i n g down t h e street and you s t o p u s .But you s ee us a g a i n

The same situation22 t h e s e a r e two o f f your s h e e t , and your p e r s o n a l knowledge23 p r o b a b l y , gang m em bers in Ogden T r e c e list, r i g h t ?2425

A.Q

Yes .Okay. And t h a t same t h i n g h a p p e n s t h e v e r y

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f o l l o w in g n i g h t bu t t h i s t ime my mom d i e s whi le s h e s inh o s p i t a l . And we come back and we run i n t o t h e sames i t u a t i o n . T h a t s more t h an two t imes t h a t y o u v e run i n t o

4 me Mr. A co s t a , and Mr. C ab r a l , r i g h t ?567

A.QA.

Yes.That t h en p u t me in t h a t last box r i g h t ?It p u t s you in a p o s i t i o n t h a t you cou ld be

8 documented as Ogden T rece a t t h a t p o i n t y o u d have two box9 t h a t would t h en be checked.

101112131415

1617181920

QA.QA.Q

Righ t .You co u ld , h y p o t h e t i c a l l y .H y p o t h e t i c a l l y ?Yes.Righ t . But you would check t h e box r i g h t ?

A I f I - - p e r s o n a l l y w o u l d n t because I wouldlook a t t h e s c e n a r i o .

QAQ

Okay.So.L e t s say it keeps on. Say I l i k e t he s e guys .

we go ou t to d i n n e r a coup le o f n i g h t later And you run21 i n t o me a ga in , me and Mr. Acosta and Mr. C a b ra l .223

2425

AQA.

Are you going to check t h e box then?Again , p ro b a b l y , yes .Okay.I mean t h a t one you start g e t t i n g ou t o f an

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1 Q S i n c e t h e last t ime t h a t we were in trial on t h i s2 m a t t e r , how many t i m e s have you gone to y o u r s e r g e a n t fo r3 a p p ro v a l to p u t somebody on t h e gang d a t a b a s e ?

56789

10111213

A A lot.Q And o u t o f t h o s e l o t

s e r g e a n t r e j e c t e d t h a t r e q u e s t ?how many t i m e s has your

AQ

A l o t nowA l o t now? I s it b e c a u s e o f w h a t s gone on in

p r i o r litigation?A It s partially and moving f rom u s in g some o f t h i s

list f rom an i n t e l l i g e n c e file to u s in g it as a file t h a t nop e o p l e a r e g o i n g to be c h a r g e d w i t h a c r i m e , s o .

Q So you i d e n t i f i e d - - you i d e n t i f i e d l o t . Give14 me an a p p ro x i m a t e number o f t i m e s y o u v e tried -- y o u v e gon15 to y o u r s e r g e a n t and as k ed to have him to p u t on -- somebody16 put on t h e gang d a t a b a s e ?17181920

AQAQ

I d o n t -- f i v e o r s i x .Fi v e o r s i x ?YeahIn t h e last y e a r and h a l f y o u v e o n l y gone f i v e o

21 s i x t i m e s ?22234

A T h e y v e b een k i ck ed b ack .Q S o r r y . Maybe my q u e s t i o n w a s n t c l e a r .

In t h e last - - s i n c e t h e i n j u n c t i o n was i s s u e d and25 we had you h e r e on t h e w i tn e s s s t a n d , abou t how many t i me

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1 have you gone to y o u r s e r g e a n t - - who i s y o u r s e r g e a n t ?23

45678

A.Q

S e r g e a n t C a ba l s k i .Okay. How many t im e have you gone to Se r g e a n t

C a b a l sk i and a s k e d to have a p e r s o n p u t on t h a t gangda t a ba s e , a p p r o x i m a t e , I know you d o n t know t he e x a c t ?

A.Q

Maybe 15 .Okay. So 15 r o u g h l y y o u v e gone t o . And ou t o f

t h a t 15 t h a t y o u v e a p p r o x i m a t e l y gone to in t he last y e a rand a h a l f , how many p e o p l e have S e r g e a n t C a b a l s k i -- who I

10 know I m b u t c h e r i n g t he name on I a p o l o g i z e -- r e j e c t e d ?111213

A.QA.

Se r g e a n t C a b a l sk i o r L i e u t e n a n t C o n n e l l y .Okay.I v e had them k icked b ack f rom L i e u t e n a n t

14 C o n n e l l y .15 Q Okay. How many t i m e s o u t o f t h a t 15 abou t how16 many t i m e s?17 A. Like I s a i d , f i v e o r s i x t i m e s maybe. T h a t s an18192021222324

a p p r o x i m a t e . I d o n t remember e x a c t l y .Q Did you go b ack and c u r e t he d e f i c i e n c i e s on it?A.Q

Yes I d i d .And t h e n d i d you go back to e i t h e r Se r g e a n t

C a b a l sk i o r L i e u t e n a n t C o n n e l l y and say , Now I d l i k e you tohave t h a t p e r so n p u t back on?

A Yes.25 d o c u m e n t a t i o n .

They r e q u i r e d w h a t e v e r it was moreHe m ent ioned t h i s c a se o r t h a t c a s e .

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1 Q Okay And out o f t h e t i me s i n c e t h e l st tri l i2 t h e i n j u n c t i o n , how many t imes have you t o l d a p e r s o n o u t o f3 t h o s e ab o u t 15 t h a t t h ey have a r i g h t to have a h e a r i n g to456789

101112131415

161718192021

d e t e rm i n e if t h e y r e a gang member?A I h a v e n t t o l d any o f them t h a t .Q A l l r i g h t . And ab o u t s i n c e t h e i n j u n c t i o n was

i s s u e d by t h i s C o u r t , ab o u t how t imes have you s e r v ed t h ei n j u n c t i o n ?

A I s e r v e d q u i t e a few o f t hem.QA

Give me a b a l l p a r k .Maybe 100 .

Q Okay Out o f t h o s e maybe 100 , how many t i m e s havyou t o l d p e o p l e t h a t t h ey have a r i g h t t o go and c o n t e s tt h e i r gang membersh ip?

A I g e n e r a l l y w i l l tell them a s I m e x p l a i n i n g itto them t h a t i s an o p t - o u t c l a u s e .o f them

T h a t s not t h e q u e s t i o n .Okay

Becau se I do have a l o t

QAQA

I d i d n t as k ab o u t t h e o p t - o u t .Okay What i s t h e q u e s t i o n ?

22 Q The q u e s t i o n was t h i s : How many t i m e s do you tel23 t h a t p e r s o n t h a t y o u r e s e r v i n g t h a t i n j u n c t i o n ab o u t 10024 t h a t t h ey ha ve a r i g h t t o have a h e a r i n g to d e t e rm i n e if25 t h e y r e a gang member? Not an o p t - o u t .

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1 q u i t e a bit abou t him?23

45

789

10111213141516

Yes.Are you f a m i l i a r w i t h h i s mo t h e r?Yes.S h e s on t h i s list r i g h t ?Yes, she is.Why?

AQAQAQA.QA

Becau se s h e s a documented member o f Ogden Tr ece .On what g ro u n d s ?I d o n t have her file h e r e i n f r o n t o f me b u t she

i s b een -- s h e s been a s s o c i a t e d w i t h t h e e n t i r e gang . Whave -- h e r o i n was found in h e r bedroom. She condones all

She would b r i n g them i n . She hash a t gang a c t i v i t y .moniker , Mama Goon. S h e s been a r r e s t e d w i t h them fo r c r imet h a t a r e c o n s i s t e n t w i t h u s u a l gang a c t i v i t y . We ex ecu t ed as e a r c h w a r r a n t . I b e l i e v e she was i s s u e d a c i t a t i o n . And

17 a r r e s t t h a t was f o r gang - - o r p a r a p h e r n a l i a p o s s e s s i o n o r18 someth ing l i k e t h a t .19 Q Okay. As t h e i n j u n c t i o n i s i s s u e d r i g h t now, Ms.20 Par s o n s c a n t a s s o c i a t e wi th h e r , can s h e?2122232425

A We ve s t o p p e d them t o g e t h e r . When t h e y a ret r a v e l i n g t o g e t h e r . And I t h i n k t h e y s a i d t h e y were goingt o , l i k e , t h e g r o c e r y s t o r e and we let them go j u s t fo r t h a treason .

Q On your d i s c r e t i o n you let them go?

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1234567

9

10

A. Yeah.Q. Okay.

MR. STUDEBAKER: N o th in g f u r t h e r .THE COURT: A l l r i g h t .

CROSS EXAMINATIONBY MR RICHARDS:

Q. Could I as k you to l o o k a t E x h i b i t Number 2; whicwould be -- I t h i n k it s t h i s doc um e n t .

A. [ I n a u d i b l e ] .Q. Okay. Ogden T r e c e member list. Well , l o o k a t

11 t h a t and t h e n a l s o l o o k a t e x h i b i t --1213141516171819 Q.20 2 o f t h a t ?2122

A.Q.

MR. RICHARDS: Did we move to a d m i t E x h i b i t 3?MR. STUDEBAKER: Which was t h e i n j u n c t i o n ?MR. RICHARDS: The i n j u n c t i o n .MR. STUDEBAKER: Yes, it s i n .THE COURT: It s b een a d m i t t e d .MR. RICHARDS: Okay.HE WITNESS: I have it r i g h t h e r e .

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

Of t h e i n j u n c t i o n ?Yeah, p l e a s e . Wel l , I m a s k i n g a c o u p l e o f

23 t h i n g s . Number o n e , E x h i b i t 2 , which is t h i s list, i s4 t h a t -- that s t h e gang -- Ogden T rece gang member list t h a t

25 you t h i n k i s u t i l i z e d f o r th e i n j u n c t i o n . I s t h a t what I

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It d ep en d s on -On what?

123

45

789

A.QA. You know if it s Sammi P a r s o n s and h i s mom you

know.I s Sammi P a r s o n s m o m - She i s a documentedS h e s on t h e list?

member o f Ogden T re c e , y e s .If Sammi and h i s mom t h e n

10

QA.QA.Q.

A. Then maybe t h e r e would be some d i s c r e t i o n t h e r e .11 But o t h e r w i s e it would q u a l i f y if t h e y were all12 p a r t o f t h a t . We g e t t h e se gang members in t h e13 Q. So

that s

14 A. p a r k and t h e y i n t i m i d a t e o t h e r s as gang15 members n o t as f a m i l y members . And so t h a t would q u a l i f y .16 Q. So r e a l l y t h e e n f o r c e m e n t o f t h i s i n j u n c t i o n17 E x h i b i t Number 3 D efen s e , i s r e a l l y a totally d i s c r e t i o n a r y18 a c c o r d i n g to you , t hen?19202122232425

AQA.QA.QA.

T h ere i s some d i s c r e t i o n i n v o l v e d .A l l r i g h t .G e n e r a l l y , we t a k e a z e r o t o l e r a n c e on it.U n l es s it happens to be a t F r e s h Marke t -I n s i d e t h e s t o r e .-- o r i n s i d e t h e s t o r e o r in a b a r w i t h mom?Yeah .

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12 STATE OF UTAH

3 COUNTY OF UTAH4

C E R T I F I C A T E

5 I KATIE HARMON a C e r t i f i e d S h o r th an d R ep o r t e r in6 and fo r t he S t a t e o f Utah do h e re b y c e r t i f y :7 That t he f o r eg o in g aud io r e c o rd ing in t h i s m a t t e r i s8 t r a n s c r i b e d i n t o t y p e w r i t i n g under my d i r e c t i o n and9 s u p e r v i s i o n and t h a t t he f o r eg o in g p ag es numbered from 5

10 th rough 264 c o n t a i n a t r u e and c o r r e c t t r a n s c r i p t i o n o f11 s a i d p ro c e e d i n g s to t he b e s t o f my a b i l i t y to do so ex cep t12 where t i s i n d i c a t e d t h a t t h e aud io r e c o r d i n g was13 i n a u d i b l e .14 IN WITNESS WHEREOF, I have h e re u n t o s ubs c r ibe d my15 name t h i s 24 th o f O c t o b e r 2012.161718192021

22232425

KATIE HARMON, RPR CSR

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EXHIBIT C



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opinion is subject to revision beforepublication in the Pacific Reporter2 13 UT 62

IN THESUPREME COURT OF THE ST TE OF UT H

WEBER COUNTYPlaintiff and Appelleev

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. 20120852Filed October 18, 2013

Second District, Ogden Dep tThe Honorable Ernest W. Jones

No. 100906446Attorneys:

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 appellantsRoman Hernandez, Chase Aeschlimann, and Jesse AeschlimannMichael P. Studebaker, Ogden, for appellants Samuel Parsons,

Jaime Gomez, and Willie RodriguezJUSTICE PARRISH authored the opinion of the Court,

in which CHIEF JUSTICE DURRANTASSOCIATE 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

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



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WE ER Co v OGDEN TRECEOpinion of the Court

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

,-r2 Weber County (County) obtained a permanent injunctionagainst Trece and its members under a public nuisance theorypursuant to section 76-10-806 of the Utah Code, which empowers acounty attorney to institute an action in the name of the county . . .to abate a public nuisance. The statutory definition of a publicnuisance 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]riminalstreet gang ).

,-r3 The injunction prohibits Trece members who have beenserved with a copy of it from associating with one another;confronting, intimidating, annoying, harassing, threatening,challenging, provoking, or assaulting any person known to be awitness or victim of any activity of Trece; possessing a firearm inpublic 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 SafetyZone encompassing nearly the entire city of Ogden. The injunctioncontains both a hardship provision and an opt-out provision.

,-r4 Appellants and Petitioners argue that 1) service on Treceas an unincorporated association was improper and thus the districtcourt lacked jurisdiction to enter the injunction, 2) the injunctionviolates procedural due process, and 3) the injunction violatessubstantive due process. In the event the injunction is vacated, theyalso argue that they are entitled to an award of attorney fees.

-r5 We lack appellate jurisdiction over the Appeal because thepurported appellants are not parties to the proceeding. We do,however, have jurisdict ion to consider the Petition. Although Treceis an unincorporated association and amenable to suit, we concludethat service on Trece was improper. The district court thereforelacked jurisdiction to enter the injunction. We deny the request forattorney fees.

F CTU L NDPROCEDUR LB CKGROUND-r6 Ogden Trece is a criminal street gang that has operated forover 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 thatmembers of Ogden Trece commit crime for the purpose ofintimidating rival gang members, asserting their dominance over anarea, intimidating citizens and witnesses, and obtaining money

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Cite as: 2013 UT 62Opinion of the Court

through many different types of illegal activities, from selling drugsto trafficking in stolen property. Revenue is brought into the gangby criminal activity such as burglaries, thefts, robberies, drugdealing, etc. The day-to-day operations of the gang are directed bysenior members called shot callers. Less senior gang members areput to work by the shot callers, meaning they are to commit

criminal activity to bring recognition and money into the gang. Theproceeds from the criminal activities are given to the shot callerswho are [then] responsible for distributing money to members ofthe gang when they deem necessary.

-r7 On August 20, 2010, Weber County filed a complaint forpermanent injunction to abate a public nuisance. t brought thisaction against Ogden Trece as an unincorporated association. TheCounty also filed an application for a restraining order, preliminaryinjunction, and a request for hearing. The district court entered atemporary restraining order that same day.

-rs On August 24 2010, the County personally served fivealleged Trece members: Evan Barrow, Emmanuel Montoya, SamuelParsons, Roman Hernandez, and Daniel Callihan. The County alsomailed 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, theCounty sought an order allowing it to serve Trece by publication. Ata hearing on August 31, 2010, the County attorney stated, withoutelaborating, that we have adequately put the gang on notice,however, just to make sure that that's accomplished, we're going torequest an order from the court to allow us to further put the gangon notice by publication. The attorneys and the court then turnedto other issues. Near the conclusion of the hearing, the Countyattorney reminded the court of its motion, asking would the courtauthorize us to publish? The court responded, [y]es, I willauthorize service.

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

3



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.

WEBER Co. v OGDEN TRECEOpinion of the Court

known management structure, officers, directors, or likemanagerial personnel [on] which to personally serve with process.The district court entered a written order authorizing service bypublication the following day. The County then published serviceof process in the Ogden Standard xaminer and onwww utahlegals.com.

~ On September 14 and 27, 2010, the district court held anevidentiary hearing on the County's request to convert thetemporary restraining order to a preliminary injunction. The courtheard testimony from two Ogden police officers who testified aboutthe criminal and nuisance activity of Trece. The district court alsoheard testimony from a deputy district attorney from California whotestified as an expert on the effectiveness of gang injunctions.Following the hearing, the district court converted the temporaryrestraining order to a preliminary injunction that included all thesame prohibitions as the temporary restraining order, but alsoincluded a Hardship Exemption Process and an ' Opt Out'Provision.

~ 2 The County then began serving the preliminary injunctionon more than three hundred alleged members of Ogden Trece.Violation of the injunction is a class B misdemeanor punishable byup to six months imprisonment and up to a $1,000 fine. UT HCODE 76-10-807. Among those served were brothers Chase andJesse Aeschlimann. Upon being served, the brothers filed a motionfor a hearing to contest the constitutionality of the preliminaryinjunction, noting that neither of them had been served or givennotice of the proceedings prior to the entry of the preliminaryinjunction or its service upon them. But neither brother moved tointervene in the action or request formal party status.

The district court ruled that because the gang as an entityhad been sued and the constitutional arguments had already beendealt with, individuals subsequently served with the injunctiondidnot have a right to intervene or otherwise appear in the case or tochallenge the terms of the injunction. t reasoned that due processhad been satisfied because [l]aw enforcement is required to servethe injunction on gang members, thus placing them on notice of theinjunction.

~ 4 On June 11, 12, and 14, 2012, the district court held anevidentiary hearing to consider whether to make the preliminaryinjunction permanent. No one representing Trece appeared at thehearing. However, despite the fact that none of their clients had

4



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

~ 5 At the hearing, the district court heard evidence regardingTrece, why the County believed it to be a criminal street gang and apublic nuisance, and how some of its members had previously beenconvicted of crimes. The district court found that Ogden Trece metthe legal definition of a criminal street gang and a nuisance and thatthe provisions of the injunction are narrowly drawn and arenecessary to give . . . complete relief from [Trece's] nuisanceactivities.

~ 6 At the conclusion of the hearing, the district court enteredthe permanent injunction (Injunction). The Injunction applies to theSafety Zone, a twenty-five square-mile area encompassing mostof the city of Ogden. t prohibits those alleged gang members servedwith it from engaging in specified conduct in the Safety Zone.Specifically, it prohibits the alleged gang members from anyknowing association with gang members in public places or publicview. This extends to [d]riving, standing, sitting, walking,gathering, or appearing together with any known member of OgdenTrece anywhere in public view or anyplace accessible to the public.The Injunction also prohibits gang members from intimidatingvictims and witnesses. t states that Trece members are prohibitedfrom [c ]onfronting, intimidating, annoying, harassing, threatening,challenging, provoking, [or] assaulting any person known to be awitness to any activity of Ogden Trece, known to be a victim of anyactivity of Ogden Trece, or known to have complained about anyactivity of Ogden Trece.

~ 7 Another provision of the Injunction criminalizes possessionof firearms, imitation firearms, ammunition, and illegalweapon[s ], and prohibits alleged gang members from being in thepresence of such weapons or another person possessing them. TheInjunction imposes a curfew on alleged gang members between thehours of p.m. and 5 a.m., with exceptions for traveling to andfrom work, from any non-gang related entertainment event, schoolactivities, and religious services, and for emergencies, accidents orother situations that require[] immediate action to prevent seriousbodily injury or loss of life. The Injunction also prohibits allegedgang members from damaging and defacing property through

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WE ER Co v. OGDEN TRECEOpinion of the Court

graffiti, using and distributing drugs and drug paraphernalia, andconsuming alcohol except in their homes or in properly licensedestablishments. It also requires that alleged gang members obey alllaws.

-r18 The Injunction contains an opt-out provision underwhich an alleged gang member who has been served with it mayeither renounce gang membership or declare that he or she never

was a gang member. This requires a declar[ation] that he or shehas not been arrested for a 'gang-related' crime in the past threeyears, not associated with gang members for the past three years,and that the served person declare that he or she has not receivedany new gang tattoos.

-r19 The Injunction also contains a hardship exemptionprocess under which an individual may seek exemption from theassociation and curfew provisions of the Injunction by writtenapplication

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

-r20 The County is now criminally enforcing the Injunctionagainst those alleged gang members who have been served with it.Roman Hernandez, Samuel Parsons, Jamie Gomez, WillieRodriguez, and brothers Chase and Jesse Aeschlimann, who have allbeen served with the Injunction, filed notices of appeal in theunderlying action. Roman Hernandez, Chase Aeschlimann, andJesse Aeschlimann also filed a petit ion for extraordinary writ directlywith this court challenging the Injunction. We have jurisdictionpursuant to section 78A-3-102(2) of the Utah Code.

ST ND RD O R VI W-r21 Whether this court has jurisdiction over an appeal is aquestion of law that can be raised for the first time on appeal byeither party or by the court. Navajo Nation v. State In reAdoption ofA.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). Whenthis court lacks jurisdiction over an appeal, it retains only theauthority to dismiss the appeal. In re A.B., 2010 UT 55, -r 21.

6



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WEBER Co v. OG EN TRECEOpinion of the Court

showed up to court hearings and were somehow allowed to beheard, despite the fact that they were technically mere spectators.Indeed, when entering their appearances in the hearings, theattorneys were careful to note that they were representing individualalleged gang members and not the gang. For example, in oneinstance, Michael Studebaker introduced himself as counsel forSamuel Parsons, Jaime Gomez, and Willie Rodriguez and nobodyelse, and no[t] the gang in itself. Another attorney, RandallRichards, stated, I represent Roman Hernandez, ChaseAeschlimann, and Jesse Aeschlimann Oh, and by the way, I donot represent the gang, whatever that happens to be. Michael Boylestated he was representing Emmanuel Montoya, Andrew Callahan.And again, I don't represent Ogden Trece or Centro City Locos.

~ 7 Although Jesse Aeschlimann never actually moved tointervene, the district court raised and then rejected the possibilityof intervention in a memorandum decision. It stated:Jesse Aeschlimann has failed to file a motion tointervene as required under [r]ule 24, URCP. The[c]ourt finds Jesse Aeschlimann should not bepermitted to intervene as a matter of right or as apermissive intervenor. The interests of Ogden Treceare already being adequately represented by twoattorneys. Many of the issues raised by JesseAeschlimann in his memorandum were addressed bythe [c]ourt in two memorandum decisions on April4,2011. Allowing permissive intervention for JesseAeschlimann would cause undue delay and requirethe [c]ourt to revisit issues already ruled on.Permissive intervention would require the [c]ourt torestart the litigation The [c]ourt will deny JesseAeschlimann' s motion to intervene.

~ 8 Since none of the so-called appellants are parties to thecase, they are not entitled to an appeal as of right. See e.g. UtahDown Syndrome 2012 UT 86, 9 (stating that the appellant as anonparty, is not entitled to appeal ); Brigham Young University v.Tremco Consultants Inc. 2005 UT 19, 46, 110 P.3d 678 (noting thatnonparties . . . cannot appeal the [court] order ). Under our rules,

it is the service of process, the affirmative act of filing suit, or the actof seeking to intervene as a party that subjects one to the jurisdictionof the court and puts him on notice that he is subject to ongoingcourt proceedings. Utah Down Syndrome 2012 UT 86, ~ 18. Merenotice of or appearance in proceedings is not enough. Even though

8



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the district court allowed the so-called appellants to be heard, theywere not named parties and never filed motions to intervene. Theywere therefore not entitled to appeal and we lack appellatejurisdiction over the appeal. Id. -r 12.

II. WE HAVE JURISDICTION TO CONSIDER THEPETITION FOR EXTRAORDINARY WRIT FILED BYROMAN HERNANDEZ, CHASE AESCHLIMANN,

AND JESSE AESCHLIMANN-r29 Roman Hernandez, Chase Aeschlimann, and Jesse

Aeschlimann (Petitioners) filed a petition for extraordinary writdirectly with this court. Pursuant to the Utah Constitution, we haveoriginal jurisdiction to issue all extraordinary writs. UTAHCONST.art. VIII, 3. This is the proper vehicle by which nonparties to alawsuit may challenge a district court's order. Brigham YoungUniversity v. Tremco Consultants Inc. 2005 UT 19, -r 46 n.7, 110 P.3d678. [A] petition for extraordinary writ filed with the appellatecourt provides an adequate remedy in light of the appellate court'sobligation to give due regard to principles of due process. UtahDown Syndrome Foundation Inc. v. Utah Down Syndrome Association2012 UT 86, -r 22, 293 P.3d 241. Thus, we have jurisdiction toconsider their petition and turn to the merits of their claims.

III. TRECE IS AN UNINCORPORATED ASSOCIATIONTHAT IS AMENABLE TO SUIT

-r30 Petitioners first challenge the district court's jurisdictionover Trece, arguing that a criminal street gang is simply notamenable to suit. Weber County brought suit against Trece as anunincorporated association. Petitioners argue that in order for anunincorporated association to be sued, it must exist for a lawfulpurpose and must transact business under a common name. Theyreason that Trece meets neither requirement because it exists forillegal purposes and does not transact business under a commonname. The County responds that a street gang is specifically listedas a public nuisance under Utah Code section 78B-6-1101(2)(e) andthat section 76-10-806 al lows a county attorney to institute an actionin the name of the county . . . to abate a public nuisance. ttherefore reasons that Utah law ... recognizes that a criminal streetgang is a jural entity and contemplates its being amenable to a publicnuisance abatement action. We agree with the County that Treceis amenable to suit, but we reach that conclusion based onalternative grounds.

-r31 We first turn to Petitioners' argument that Trece is not9



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

~ 6 Business is defined as a particular occupation oremployment habitually engaged in for livelihood or gain. BLACK sLAW DICTIONARY 226 (9th ed. 2009); see also id. ( By extension,transactions or matters of a noncommercial nature


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WE ER Co v OGDEN TRECEOpinion of the Court

to pay for lawyers, to support families, and to pay for other generalexpenses.~ 3 8 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 anunincorporated association should be immune from suit simplybecause the business in which it engages is unlawful. UnderPetitioners' proposed interpretation of the rule, a criminalorganization would be immune from suit simply because thebusiness it transacts is illegal. But it would be illogical to interpretrule 17(d) in a manner that allows organizations that operateillegally to escape suit when such organizations are exactly the kindof enterprise on which the justice system should be brought to bear.

B Trece Conducts Business Under a Common Name~ 3 9 We also conclude that Trece meets the second requirementof rule 17(d) in that it operates under a common name. The district

court found that Ogden Trece has, as a group, an identifying nameor identifyingsymbol or both. Additionally, Trece has identifiablehand signs, gestures, and clothing that distinguishes [it] fromother criminal street gangs. Trece members are required to put inwork, meaning committing the type of criminal transactions listedabove to bring recognition and money into the gang. And thesefindings were amply supported by evidence that was admittedduring the evidentiary hearing.

~ 4 Duane Dreamer, a self-identified shot caller in Trece,testified that the two main rules of the gang are to not rank outand to represent to the fullest, which means to always leteverybody known where you are from. The gang very jealouslyprotects its own name. It goes to great lengths in order to protect itsbr

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Ogden Trece lawsuit