City Attorney Dennis Herrera is seeking injunctions preventing those arrested on drug dealing charges in the Tenderloin from returning to the area. 
Examiner file photo

City Attorney Dennis Herrera is seeking injunctions preventing those arrested on drug dealing charges in the Tenderloin from returning to the area. Examiner file photo

Judge to rule on Herrera’s new plan for tackling Tenderloin drug dealing

A San Francisco judge heard arguments Tuesday on whether City Attorney Dennis Herrera should be allowed to move forward with a new strategy for tackling drug dealing in the Tenderloin.

The City Attorney’s Office has asked the court to issue orders barring four Oakland residents with prior arrests for drug dealing in the Tenderloin from setting foot in the neighborhood, arguing that criminal law hasn’t been enough to stop the alleged dealers from contributing to a “public nuisance.”

But the American Civil Liberties Union of Northern California and other attorneys for the alleged drug dealers say the proposed injunctions are both ineffective and overly broad. They question whether banishing four alleged dealers from the Tenderloin would have an impact on the area.

The proposed injunctions are the first to be heard by a judge after Herrera announced lawsuits against 28 alleged drug dealers last September, seeking orders preventing them from entering the Tenderloin as deaths from fentanyl overdoses continued to skyrocket.

The office says all but one of the 28 defendants commuted from outside San Francisco to sell drugs like fentanyl, heroin or methamphetamine, and have been arrested repeatedly on drug charges.

If the proposed injunctions are granted, the alleged dealers could face arrest, misdemeanor charges and civil penalties of up to $6,000 each time they’re caught entering the Tenderloin.

While San Francisco Superior Court Judge Ethan Schulman has not issued a ruling, he raised questions Tuesday about whether the orders were overly broad because they would prevent the individuals from simply being in the neighborhood and not just dealing drugs in the area.

Schulman said the court could issue orders barring the operator of a brothel from using the building or a street vendor from blocking the sidewalk. Gang injunctions, he said, typically prohibit suspected gang members from engaging in specific conduct within a certain area. But Schulman said he could find “no authority” to banish a drug dealer from a neighborhood altogether.

“For the most part, I don’t see California cases that say anybody can be excluded from an entire city, or county or neighborhood,” Schulman said, while noting as an exception that some gang injunctions impose overnight curfews that bar individuals from an area for a certain duration of time.

The judge also expressed concerns about what could come next if he granted the injunctions. He questioned the difference between ordering a drug dealer to remain out of the Tenderloin and barring an auto burglar from visiting the entire city, where car break-ins are rampant.

“It’s a slippery slope because it’s unclear to me where the dividing line is,” Schulman said.

But Deputy City Attorney Peter Keith said that the court has “extremely broad power” to issue injunctions to abate a public nuisance like drug dealing. He said the scope of the exclusion area should be based on where the issue is occurring, such as at specific hot spots for car break-ins.

“This has not been done before, and I’m not going to beat around the bush on that,” Keith said. “But the court’s injunctive power is broad and this [is constitutional].

Keith said the criminal courts already issue stay-away orders that bar drug dealers from being within a certain distance of a location and do not prohibit specific conduct. But Schulman said the criminal stay away orders are different because the defendants are agreeing to give up their constitutional rights as a condition of their release from custody.

Keith suggested that the office needed to move forward with the proposed injunctions because the drug dealing has reached a crisis level and the District Attorney’s Office is more focused on prosecuting serious crimes like homicides and robberies than drug dealing.

But Mandy Chan, an attorney for the defendants with the law firm DLA Piper, said The City should seek criminal stay-away orders if officials want to, not civil injunctions.

“I don’t think that we disagree that there are [problems] in the Tenderloin that burden residents and should be solved, but there is no authority for the relief that’s being requested here,” Chan said. “If the existing criminal laws really aren’t working or if another agency is pursuing a different priority, that is a question in the criminal law context, not in the civil law context.”

While she minimized the role the four defendants have played in the Tenderloin being an open-air drug market, saying each had been arrested for alleged drug dealing just one to four times, with most arrests from nearly a year ago, Schulman said he was less convinced by that argument.

“This is an ongoing problem and each of these folks is contributing probably in a quite minor way,” Schulman said. “They are street level dealers, they are not ‘kingpins,’ but they are all contributing to a much larger problem.”

Schulman is expected to issue a ruling at a later date. The lawsuits against the other alleged drug dealers are pending and 16 of the defendants have not been served, according to Keith.

mbarba@sfexaminer.com

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