Is Tennessee's proposed gang-injunction law constitutional, and can it bar suspected gang members from public spaces?

Subject

Opinion No. 14-35, Constitutionality of Legislation to Abate Gang-Related Conduct, March 21, 2014

Plain-English summary

Senator Brian Kelsey asked nine questions about SB 1634, a 2014 bill that would expand Tennessee's nuisance-abatement statute (Tenn. Code Ann. §§ 29-3-101 to -111) for gang-related conduct. The bill would let trial courts issue gang injunctions covering a geographically defined area "narrowly tailored in compliance with prevailing constitutional case law" for two purposes: (A) preventing the gang from gathering in public in groups of two or more members, and (B) preventing any gang member from entering a public space where the gang has been found to operate. It would set proof at preponderance of the evidence and would allow petitions against the gang itself, not just individual members. It would not require a prior criminal conviction or delinquency finding.

The AG worked through each question and gave a layered answer. The basic frame: a statute is facially constitutional unless there is "no set of circumstances" in which it could be valid (Davis-Kidd Booksellers v. McWherter). Statutes authorizing injunctions are especially case-by-case; the constitutional issue almost always turns on the specific injunction, not the enabling statute. The leading gang-injunction case, People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), sustained an injunction that banned named gang members from "standing, sitting, walking, driving, gathering, or appearing anywhere in public view" with other defendants or known gang members within a specific neighborhood. Acuna provides a road map for the kind of injunction that survives First Amendment associational, overbreadth, and intent-based challenges.

On the specific questions: (1) The bill can be applied to unnamed persons in the abstract, but due process may require giving such a person an opportunity to contest gang-member status before the injunction is enforced against them. The Ninth Circuit's decision in Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013), suggests post-arrest contempt proceedings are inadequate procedural protection for unnamed gang members because gang injunctions "prohibit[] an enormous range of quotidian conduct" that is not on its face gang-related. Tennessee could solve this by building extra process into the injunction or via a "robust, neutral administrative process." (2) The preponderance standard is "susceptible to challenge" on due-process grounds; California uses clear and convincing evidence in this setting (People v. Englebrecht), and the Ninth Circuit has endorsed that higher standard. Under Howell v. State's three-part Mathews-style balancing, the liberty interest is "truly weighty" and the risk of erroneous deprivation is high. (3) The phrase "prevailing constitutional case law" in subsection (b)(3) is directed at trial courts, not at gang members, so it does not raise a vagueness problem in the void-for-vagueness sense (Moncier v. Board of Professional Responsibility). (4) "Gang member," as defined in Tenn. Code Ann. § 40-35-121(a)(2), is defensible against overbreadth (State v. Pickett). It requires identification by police using specific indicia and membership in a "criminal gang" that engages in criminal acts; that combination makes it unlikely the definition reaches constitutionally protected activity. (5) to (9) Could not be answered in the abstract. Whether an injunction violates association rights, freedom of movement, or overbreadth norms depends on the specific terms of the order. The opinion noted that the Sixth Circuit struck down a similar drug-exclusion zone in Johnson v. City of Cincinnati under strict scrutiny while sustaining a more limited no-trespass list in Thompson v. Ashe.

The bottom line: the bill is facially defensible, but the bill's permissiveness with proof and unnamed-member enforcement leaves the bill open to challenges that the AG could not rule out without seeing specific implementing injunctions.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a gang nuisance injunction?

A civil injunction obtained through nuisance-abatement procedures that orders gang members (or the gang as an entity) to refrain from certain conduct in a defined geographic area, often including gathering in public, being present in a particular zone, or associating with other gang members in public view. They are not criminal convictions; they are civil court orders, with violations enforced through contempt.

What did SB 1634 add?

It expanded Tennessee's nuisance-abatement statute to authorize gang injunctions that designate "a certain geographically defined area" and prohibit either (A) gang gathering in public groups of two or more, or (B) gang members entering public spaces where the gang has operated. It set proof at preponderance of the evidence, did not require a prior criminal conviction or delinquency finding, and allowed petitions against the gang itself.

Could the injunction reach someone who was never named in the lawsuit?

In principle yes, since gang nuisance injunctions can run against an organization and bind its members. But the AG flagged a due-process concern from Vasquez v. Rackauckas: when a gang injunction prohibits a wide range of ordinary conduct, treating post-arrest contempt as the only opportunity for an unnamed person to contest gang membership may be inadequate. The opinion suggested Tennessee could solve this by building advance process into the injunction itself or providing an administrative review.

Why is preponderance of the evidence a concern?

In gang injunctions, the consequences of being branded a gang member are severe (loss of public-place access, association limits, criminal contempt exposure). California requires clear and convincing evidence (Englebrecht), grounded in due-process and policy concerns. Tennessee's preponderance standard might survive but, the AG warned, is "susceptible to challenge." Applying Howell v. State's procedural-due-process balancing test (private interest, risk of erroneous deprivation, government interest) tilts toward heightened proof.

Is "prevailing constitutional case law" unconstitutionally vague?

No. Vagueness doctrine asks whether ordinary people can understand and comply with the law. The phrase here addresses the trial court when fashioning an injunction, not the gang member trying to comply. A direction to trial courts is not a vagueness problem.

Is the "gang member" definition overbroad?

The AG concluded no. The definition in Tenn. Code Ann. § 40-35-121(a)(2) requires both reliable police identification using specific indicia and membership in a "criminal gang" (an organization that commits criminal acts). The combination limits the universe of people who can be designated.

Could the injunction violate First Amendment association rights?

Acuna says no when the gang's activities in the affected area are not "private" or "intimate," the area is limited, and the order is supported by evidence of unlawful collective conduct. Whether a specific Tennessee injunction violates association rights depends on its terms.

Could the injunction violate the right to travel through public spaces?

This is the toughest question. Johnson v. City of Cincinnati recognized a right "to travel locally through public spaces and roadways" and struck down a Cincinnati drug-exclusion zone under strict scrutiny. The AG flagged that strict scrutiny is hard to satisfy. The bill's narrow-tailoring language and the requirement to limit injunctions to areas of prior gang activity helped, but a specific injunction would still have to clear strict scrutiny if challenged. Thompson v. Ashe sustained a no-trespass list for public housing developments under a less demanding test, suggesting some space exists.

What is the bottom-line litigation risk?

The statute itself is facially defensible. The vulnerability is at the implementation level: which neighborhood is covered, who is named, how the named-versus-unnamed distinction is handled, how gang membership is proven. Every specific injunction issued under the statute will face its own constitutional review on those facts.

Background and statutory framework

Tennessee's nuisance-abatement statute, Tenn. Code Ann. §§ 29-3-101 to -111, is a general civil tool for going after public nuisances. Section 29-3-101(a)(2)(B) added criminal gangs that regularly engage in gang-related conduct to the list of statutory nuisances. The terms "criminal gang" and "criminal gang member" come from the sentencing-enhancement provisions at § 40-35-121(a)(1)-(2).

The federal doctrinal scaffolding has three parts. First, facial constitutional challenges to statutes authorizing injunctions are typically unsuccessful unless there is no set of circumstances in which the statute can be applied constitutionally (Davis-Kidd Booksellers). Second, gang injunctions have been sustained at the state-court level (Acuna). Third, federal circuits have set boundaries on how far governments can restrict public-place access through area-based exclusions (Johnson; Thompson; Vasquez).

The procedural-due-process question is governed in Tennessee by Howell v. State, which adopted the Mathews v. Eldridge balancing test. The vagueness and overbreadth standards come from Moncier v. Board of Professional Responsibility and State v. Pickett, respectively.

Citations

• Tenn. Code Ann. § 29-3-101 (nuisance definition; gang activity added)
• Tenn. Code Ann. §§ 29-3-102 to -111 (nuisance abatement procedures)
• Tenn. Code Ann. § 29-3-103 (petitions for abatement)
• Tenn. Code Ann. § 29-3-110(b) (form of injunctive relief)
• Tenn. Code Ann. § 40-35-121(a)(1), (2) (criminal gang and gang member definitions)
• Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993) (Tennessee Supreme Court)
• People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997) (California Supreme Court; central gang-injunction case)
• Thornhill v. Alabama, 310 U.S. 88 (1940) (U.S. Supreme Court)
• Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002)
• Thompson v. Ashe, 250 F.3d 399 (6th Cir. 2001)
• Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013)
• People v. Englebrecht, 88 Cal. App. 4th 1236 (2001) (California Court of Appeal; clear-and-convincing standard)
• Howell v. State, 151 S.W.3d 450 (Tenn. 2004) (Tennessee Supreme Court; due-process balancing)
• Moncier v. Board of Prof'l Resp., 406 S.W.3d 139 (Tenn. 2013) (Tennessee Supreme Court)
• State v. Pickett, 211 S.W.3d 696 (Tenn. 2007) (Tennessee Supreme Court)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-035.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 21, 2014
Opinion No. 14-35
Constitutionality of Legislation to Abate Gang-Related Conduct

QUESTIONS

1. In Section 4 of Senate Bill 1634/House Bill 1430, 108th General Assembly (2014) (hereinafter "SB1634"), does new subdivision (b)(3) of Tenn. Code Ann. § 29-3-110 violate due process under the United States or Tennessee Constitution as applied to a person not named in a nuisance-abatement lawsuit but stopped by police on suspicion of being a gang member?

2. Does proof by a preponderance of the evidence in new subdivision (b)(1) violate any constitutional rights as applied to innocent conduct?

3. Is the term "prevailing constitutional case law" in new subdivision (b)(3) unconstitutionally vague?

4. Is the term "gang member," as used in new subdivision (b)(3), defined in an unconstitutionally overbroad manner?

5. Does new subdivision (b)(3)(A) violate a constitutional right to associate as applied to a gang member who has never committed a crime and who is associating for innocent purposes?

6. Does new subdivision (b)(3) violate the Constitution as applied to a large geographically defined area?

7. Is an injunction entered under new subdivision (b)(3) overbroad as applied to enjoin potential innocent conduct in the geographically defined area?

8. Does new subdivision (b)(3)(B) violate a constitutional right to freedom of movement as applied to a person who has never before carried out any gang operations in the public ground, place, or space from which he is being banned?

9. Does an injunction entered under this bill allow for an unconstitutionally overbroad application by police officers to suspect anyone as a gang member?

OPINIONS

1. SB1634 may be constitutionally applied to a person not named in a nuisance-abatement lawsuit. Due process may require, though, that such a person be afforded an adequate opportunity to contest whether he is a gang member before the injunction could be enforced against him.

2. The preponderance-of-the-evidence standard of proof may be susceptible to challenge on due-process grounds.

3. No. The "prevailing constitutional case law" provision does not affect the ability of gang members to understand and comply with either the law or a resulting injunction.

4. The definition of "gang member" is defensible against an overbreadth challenge.

5. to 9. Specific questions concerning how SB1634's injunction provisions might be applied cannot be answered in the abstract. The constitutional validity of a particular injunction issued under Tenn. Code Ann. § 29-3-110(b), as amended by SB1634, cannot be assessed without knowing the specific terms of that injunction.

ANALYSIS

Under Tenn. Code Ann. § 29-3-101, a nuisance includes a criminal gang that regularly engages in gang-related conduct. Tenn. Code Ann. § 29-3-101(a)(2)(B). "Gang related conduct" occurs when one or more criminal gang members regularly engage in any of the conduct listed in Tenn. Code Ann. § 29-3-101(a)(2)(B)(i)-(xi). For purposes of this statute, the terms "criminal gang" and "criminal gang member" are both defined in Tenn. Code Ann. § 40-35-121(a)(1)-(2).

Nuisance-abatement injunctions may be obtained and enforced under the procedures set forth in Tenn. Code Ann. §§ 29-3-102 to -111. SB1634 would work several changes to this statutory scheme in the context of gang-related conduct. Among other things, the bill would add the following new subdivision to § 29-3-110(b):

(3) In addition to the relief permitted in subdivision (b)(2), the court may designate a certain geographically defined area or areas in any temporary or permanent gang injunction, which are narrowly tailored in compliance with prevailing constitutional case law for (1) or more of the following purposes:

(A) Preventing the gang from gathering in public in groups of two (2) or more members; and

(B) Preventing any gang member from entering any public ground, place, or space where the gang has been found to have carried out its operations.

SB1634, § 4. New subdivision (b)(1) specifies that the standard of proof for nuisance-abatement actions is preponderance of the evidence and that neither a conviction nor a delinquency finding is required in order to meet that standard for actions to abate gang-related conduct. Id.

A statute is facially constitutional unless there is "no set of circumstances . . . under which the Act would be valid." Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 525 (Tenn. 1993).[1] Where a statute is facially constitutional, the constitutionality of its application will depend heavily on the particular facts of each case—especially so where, as here, the statute authorizes the issuance of an injunction. In People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), for example, a case involving a gang-related injunction entered pursuant to a state public-nuisance statute, the constitutional challenge was to the injunction, not to the statute. 929 P.2d at 601; see id. at 610 ("Defendants do not attack the public nuisance statute itself, . . . they attack the terms of the interlocutory decree . . . ."). Consequently, questions concerning how SB1634's injunctive provisions might be applied cannot be answered in the abstract, as any as-applied challenge would focus upon the scope and wording of the court's order.

Nevertheless, some general propositions can be gleaned from the caselaw, and some questions regarding the facial validity of SB1634 can be answered. In Acuna, the California Supreme Court sustained an injunction that forbade named defendants from "standing, sitting, walking, driving, gathering, or appearing anywhere in public view with any other defendant" or known gang member in a particular geographical area. Acuna, 929 P.2d at 608. It did so against a First Amendment associational challenge, a claim that the injunction was substantively overbroad, and a contention that the defendants could not be bound except on proof that each possessed a "specific intent to further an unlawful aim embraced by" the gang. Id. at 608-609, 614-18. As for the associational challenge, the court concluded that the activities of the gang and its members in the safety zone were not "private" or "intimate" as constitutionally defined such that they would command protection under the First Amendment. Id. at 609. Regarding the substantive limits of the injunction, the court ruled that the provision passed constitutional muster

[g]iven the limited area within which the superior court's injunction operates, the absence of any showing of constitutionally protected activity by gang members within that area, the aggravated nature of gang misconduct, the fact that even within Rocksprings gang members may associate freely out of public view, and the kind of narrow yet irreducible arbitrariness that inheres in such line-drawing . . . .

Id. at 616. Finally, the court found that individualized proof of specific intent was not a condition to entry of the injunction in light of evidence that the gang and its members present in the area were responsible for the nuisance, that each of the individual defendants either admitted gang membership or was identified as a gang member, and that each was observed by police in the neighborhood. Id. at 618.

Section 4 of SB1634, under new subdivision (b)(3)(A), authorizes the issuance of an injunction that likewise prohibits a gang from gathering in public, and Acuna supports the conclusion that this provision may be constitutionally applied.

New subdivision (b)(3)(B) authorizes the issuance of an injunction that prohibits any gang member from entering any public space where the gang has been found to carry out its operations. In sustaining the injunction in Acuna, the court emphasized "the threat of collective conduct of gang members loitering in a specific and narrowly described neighborhood." 929 P.2d at 615. And in Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002), the United States Court of Appeals for the Sixth Circuit, recognizing a "right to travel locally through public spaces and roadways," subjected a "drug exclusion zone" ordinance to strict scrutiny and struck it down. 310 F.3d at 502, 505, 506. Strict scrutiny is typically a difficult standard to meet. Nevertheless, the bill's requirement that such an injunction be limited to the site of prior gang-related conduct and the overarching requirement in subdivision (b)(3) that the geographically defined area be "narrowly tailored" support the conclusion that this provision may be constitutionally applied. See, e.g., Thompson v. Ashe, 250 F.3d 399, 406-07 (6th Cir. 2001).

1. Section 2 of SB1634 would amend Tenn. Code Ann. § 29-3-103 to provide that petitions for the abatement of gang-related conduct "may be brought against the gang itself to which the gang members belong." It thus makes clear that the bill is meant to be applied both to individual gang members and to gangs as organizations. In general, an injunction against an organization can run through its members, and unnamed members are accorded sufficient process through the opportunity to defend criminal-contempt accusations. See, e.g., Acuna, 929 P.2d at 617-18. In Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013), however, the United States Court of Appeals for the Ninth Circuit contested that proposition in the context of an injunction for gang-related conduct. Because a gang injunction "prohibits an enormous range of quotidian conduct that, on its face, is not indicative of an individual's gang membership, or any other connection to the enjoined gang," the court suggested that post-arrest contempt proceedings may be an inadequate procedural safeguard of members' liberty interests. Id. at 1052.

This decision is, of course, not controlling in Tennessee; it does indicate, though, that due process may require that a person not named in a gang nuisance lawsuit be afforded an adequate opportunity to contest whether he is a gang member before the injunction could be enforced against him. But Section 2 of SB1634 may still be constitutionally applied; the State could make separate provision, either in the injunction itself or in a "robust, neutral administrative process," id. at 1054, to afford additional process for unnamed gang members.

2. In Section 4 of SB1634, new subdivision (b)(1) establishes a preponderance-of-the-evidence standard of proof; in gang nuisance actions, this standard may be susceptible to challenge on due-process grounds. California requires proof by clear and convincing evidence, the need for which "arises both from constitutional due process and more general public policy considerations." People v. Englebrecht, 88 Cal. App. 4th 1236, 1255-56, 106 Cal. Rptr. 2d 738, 751-52 (2001). The Ninth Circuit has noted this standard of proof with approval. See Vasquez, 734 F.3d at 1045.

More generally, determining what procedural-due-process protections a particular situation demands follows a three-part inquiry: (1) the private interest involved; (2) the risk of erroneous deprivation of the interest; and (3) the government's interests, including fiscal or administrative burdens. Howell v. State, 151 S.W.3d 450, 462 (Tenn. 2004). In a somewhat different context, the Ninth Circuit concluded that putative gang members' liberty interests with respect to a particular gang injunction were "truly weighty" since the terms of the order "restrict freedom of movement and use of public places because of the actions of others, over which one may have no control, and do so without regard to whether the individual engaging in the banned activities" is a gang member. Vasquez, 734 F.3d at 1042-43, 1045. The court also opined, on the record of that case, that "[d]etermining whether an individual is an active gang member presents a considerable risk of error." Id. at 1046.

3. A law is not void for vagueness if an ordinary person exercising ordinary common sense can sufficiently understand the law and comply with it. See Moncier v. Board of Prof'l Resp., 406 S.W.3d 139, 152 (Tenn. 2013). The "prevailing constitutional case law" provision in new subdivision (b)(3) of SB1634 is directed to trial courts in the fashioning of injunctions. It does not relate to the ability of gang members to understand and comply with either the law or a resulting injunction.

4. The constitutional test for overbreadth is whether the statute's language overreaches unlawful conduct and encompasses activity that is constitutionally protected. State v. Pickett, 211 S.W.3d 696, 702 (Tenn. 2007). Here, the term "gang member," as used in new subdivision (b)(3)(B), is defined by existing law. See Tenn. Code Ann. § 40-35-121(a)(2). Designation as a gang member can require only that law enforcement reliably identify a person as such, see id. § 40-35-121(a)(2)(C), (E), (G), but the person must also be a member of a "criminal gang," which is an organization that has as one of its activities the commission of criminal acts, id. § 40-35-121(a)(1)(A). Further, in order to constitute a nuisance, the criminal gang must regularly engage in gang-related conduct, much of which is criminal or plainly tortious in nature. See id. § 29-3-101(a)(2)(B). These aspects of the definition of "criminal gang" suggest that there is little risk that third parties will curtail any constitutionally protected activity on account of the statute. The statutory definition of "gang member" is defensible against an overbreadth challenge.

5. to 9. As discussed above, specific questions concerning how SB1634's injunctive provisions might be applied cannot be answered in the abstract. The constitutional validity of a particular injunction issued under Tenn. Code Ann. § 29-3-110(b), as amended by SB1634, cannot be assessed without knowing the specific terms of that injunction.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
The Honorable Brian Kelsey
State Senator
7 Legislative Plaza
Nashville, TN 37243-0231

[1] In the First Amendment arena, a statute can also be unconstitutionally overbroad if it threatens protected interests of persons not before the court by encompassing within its scope conduct that would constitute an exercise of their free speech. See Thornhill v. Alabama, 310 U.S. 88, 97 (1940).