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Keely is OPD's investigator of Hispanic gangs. He's been preparing these individual dossiers for six months to a year, he says, with each binder taking roughly three weeks to assemble. "I spoke to over twenty officers, ones who have been working gangs for up to twenty years. We talked to them and found out who they think is causing the problems out there. And they have informants that tell them information, too. That's how you start getting the list."
Keely said in the beginning he had the names of several hundred people that he eventually narrowed to only the most dangerous gang members. "The misinformation is that if someone's wearing certain clothing on the street, they're getting arrested," he said. Oakland's injunctions have nothing to do with profiling of any kind, he said. "These people have caused so many problems that we have to, as a city, to protect our citizens, do something about it, and put these guys on the gang injunction."
Oakland police and Russo say these forty individuals should be subjected to Oakland's second gang injunction. Just like in North Oakland, those enjoined will face six months in jail and a $1,000 fine if they violate the terms of the injunction. The rules apply within a "safety zone" drawn up by OPD. In North Oakland, the zone stretches from the Berkeley border past the MacArthur BART station. In the newest injunction, the zone spans the Fruitvale and San Antonio neighborhoods.
Within these safety zones, the civil injunction prohibits those enjoined from associating with other people deemed to be gang members, being in public between the hours of 10 p.m. and 5 a.m., being in the presence of someone using illegal drugs, making gang signs, and wearing gang colors in public. There are exceptions for work, school, religious activities, and emergencies.
A person accused of being a gang member has thirty days from the time he is served with a subpoena to file an answer. This costs $945, unless the person gets a waiver based on indigence. Injunctions are a civil matter, so people charged have no right to a public defender. People have to pay for a lawyer out of pocket or represent themselves.
There is also an "opt-out program," where accused gang members can fill out and mail the city a form appealing their inclusion on the list. The opt-out appeal goes to a panel of three people from the local neighborhood crime prevention council, the mayor's office, and OPD. If a person doesn't take these steps, or hire a lawyer to fight the injunction, the court accepts the police testimony as uncontested. This is called a "default," and it results in the defendant usually being included on the injunction list — even if the police made a mistake.
And mistakes apparently have been made.
When Russo announced the proposed Fruitvale gang injunction at a press conference in October, 42 people were on the list. Francisco Gomez was one of them. He was also one of the people in the audience. After the conference, Gomez approached Officer Keely, who was also in attendance.
According to Gomez's lawyer, Michael Siegel, Gomez told Keely "that he was not in a gang and that, instead, he was doing intervention and outreach to gang-impacted Oakland youth. He showed Keely an essay he had written for a college class in which he described how he has changed and how he has turned his life around. Gomez received an 'A' on the paper. Gomez received a 4.0 GPA on his most recent college report card."
By chance, Siegel and Gomez were introduced to each other that night, and had a meeting the next day. Siegel agreed to represent him and immediately sent a letter to Russo's office demanding that Gomez be taken off the list.
But Russo said that by the time he got Siegel's letter, he'd already decided Gomez didn't belong on the list. Gomez works for a nonprofit that collaborates with the city on crime prevention, and his boss sent Russo a letter on his behalf. "[Gomez] got some referrals and recommendations and we agreed," Russo said. "'Okay if you made the effort to come here and do this and these people are vouching for you, alright, let's see how it goes. That's great. If you're turning your life around, we don't want you on the list.'"
After taking Gomez off the list, Russo said he double-checked the other names with a team of five lawyers from his office. They found one other person who didn't belong on the list — Ruben Cordova. "I wasn't convinced that we'd prevail, and I instructed that he be taken out," Russo said.
But Siegel wasn't satisfied. "The wrongful inclusion of Francisco and Ruben dramatically illustrates the ongoing due-process violations by the city attorney," he said. "His office has named individuals based upon speculative, outdated, and erroneous information. Russo is abusing the judicial process by accusing people of criminal activity without probable cause."
Oakland police, however, are standing by their recommendations. When asked if putting Gomez and Cordova on the list was a mistake, Officer Keely replied, "no."