Monday, January 14, 2013 | No comments

Group Injunction? Constitutionality by Necessity

By Shiloh Logan

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One of the most basic axioms in our Constitutional Republic is the natural right of association. The Declaration of Independence speaks directly to this individual right in justifying separation from Great Britain. The grievances in the Declaration summarize why the colonists sought to disassociate from their former government. If the right of association were merely a positive or government-granted right, then the colonists had no moral, civil, or other right to disassociate from their parent government—regardless of their grievances—and we should all be current British citizens. However, each individual possesses a natural and inherent right of association, and it is this natural right that the colonists exercised in separating from Great Britain.

A second natural right, no less important than the right of association, is the natural right of contract. Not only do we have the individual right to associate with whom we desire, but we have the natural right to contract, agree, make business, or conduct our activities with other individuals without infringement, license, or regulation. One caveat is that there can be no unlawful or illegal contracts. For example, I cannot “contract” (i.e. legally or lawfully bind through agreement, written or otherwise) to rob a neighbor. If such a contract were entered into and my cohort failed to uphold his end of the contract, I could not sue him for breach of contract when I was caught robbing my neighbor because the natural right of contract does not extend to unlawful or illegal acts.

Enter Ogden City

Ogden has a gang problem. More specifically, it has a problem with the “Ogden Trece” gang, which the City of Ogden has accused of committing everything from graffiti to murder. In 2010 Ogden passed a California-style temporary injunction specifically against the gang itself. As the Deseret News reported:

The injunction prohibits the estimated 315 to 500 gang members from associating with each other within an area of Ogden designated as the “Safety Zone,” regardless of whether they are in the process of committing a crime. That includes a ban on “driving, standing, sitting, walking, gathering or appearing together with any known member of Ogden Trece anywhere in public view or any place accessible to the public,” according to court documents.

In August 2012 this temporary injunction was made permanent, although the Ogden Trece gang believes the injunction violates their natural right to free association as protected by the First Amendment. We at the Libertas Institute emphatically agree.

The rights of association and contract do not extend to criminal activity (i.e. the active violation of another’s rights)—this should go without saying and without further argument. However, that is not what we’re dealing with concerning this injunction against the Ogden Trece gang. While many will argue that the gang members deserve what they get, the injunction has far more serious implications for peaceful and law abiding citizens than they might initially recognize—legal implications and stipulations that could affect peaceful and law-abiding citizens as well.

In his ruling, Second District Judge Ernie W. Jones stated that the injunction did not violate the U.S. Constitution as “the provisions in the injunction are necessary to abate gang activity.” Judge Jones here stipulated that perceived necessity is the foundation for constitutionality. In other words, whatever the government deems necessary becomes inherently constitutional.

If you’re grasping the severity of this situation and the overreaching nature of this ruling, the hair on the back of your neck should be standing on end right now.

What if the government could do whatever it wanted under the perception of supposed “necessity”?

While the Libertas Institute decries the criminal violation of individual rights at every level, the injunction against the Ogden Trece does not apply to criminal activities. As the ACLU states:

The injunction purportedly applies to the “Ogden Trece” gang as an entity, covers virtually the entire city of Ogden, and prohibits more than three hundred of its alleged members from a wide range of constitutionally protected conduct, including associating with other alleged members (including family, friends, and co-workers), engaging in peaceful protests in public places, traveling together to vote, and even appearing in court together to challenge the injunction.

In short, this is a violation of their natural right of association, as these peaceful activities of association—as stated by the ACLU and in the injunction—do not constitute unlawful or illegal actions.

Some may argue that the gang members’ association with each other is grounds enough to revoke their right of association because of Ogden Trece’s known criminal activity. If there is evidence to accuse and convict an individual, then the government should do so. However, a blanket injunction against a class, group, creed, or any other classification of association of individuals—when not actively violating another’s rights—is in itself a violation of their individual rights.

The Libertas Institute stands against such broad injunctions based on the concept of “constitutionality by necessity,” and we support any effort to fight these sweeping violations of individual rights. While gang members do not have a natural right to contract with each other to perform illegal acts, they have an individual right of association that must be held inviolate. Until there is proof that an individual has acted wrongfully, the law has no legitimate authority to curtail or interfere with that individual’s natural rights of association and contract.

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About the Author

Shiloh Logan is Director of the Center for Individual Liberty. He graduated from Brigham Young University with dual majors in philosophy (emphasis on the philosophy of the Enlightenment) and geography (emphasis in global studies, ethnography, and socio-political affairs), and with a minor in political science. Shiloh is the President/CEO of Blackstone Legal Services, providing the legal community with research, translation, and private investigation.


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