Cornell University Law School Social Science and Law

Anthropology in Action: An Overview of Doctor James Diego Vigil's Expert Testimony in the Case of Vasquez v. Rackauckas

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I. INTRODUCTION

           On February 17, 2009, the Orange County District Attorney filed an injunction against 115 named individuals and 150 alleged-to-be-active members of the Orange Varrio Cypress Street Gang (“OVC”) in the case People v. Orange Varrio Cypress. The injunction banned these individuals from otherwise legal activities including standing, sitting, walking, driving, bicycling, gathering or appearing in public areas within a 3.78 miles radius in the City of Orange, California. The injunction also banned public intimidation and remaining in the presence of certain classes of people, such as those committing crimes. The pleadings did not include any specific allegations against any individuals. At least 61 individuals contested the allegation arguing that they were not members of the gang. Their claims were dismissed because the state dropped them as named defendants when they contested the injunction. This resulted in a default judgment against the remaining named defendants and the gang generally. The default judgment against the gang included the individuals who had previously been dropped as named defendants. They were then subjected to a permanent injunction against the gang and subjected to up to six months in jail and a $1,000 fine for violations of the injunction.

           The ACLU of Southern California filed a class action lawsuit against the Orange County District Attorney, the Chief of the Orange Police Department, and other officials for violations of the class’s due process rights. The Plaintiffs called Dr. James Diego Vigil and others to testify on gang culture. In particular, Dr. Vigil testified about how gang membership is defined.

II. THE EXPERT

            The Federal Rules of Evidence Rule 702 outlines that an expert witness may testify if “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Dr. Vigil’s background in studying gang culture most certainly qualifies him to speak about gang membership in this case.

            Dr. Vigil is an anthropologist specializing in Mexican-American culture and gangs. Dr. Vigil completed his Ph.D. in anthropology in 1976 at the University of California, Los Angeles. He is currently a Professor Emeritus in the Department of Criminology, Law, and Society at the University of California, Irvine. Dr. Vigil has written multiple books and dozens of articles about gang culture. He also has worked as a consultant for police departments, informing officers about the culture of communities with gang activity. For example, he has consulted police departments regarding the need of non-gang members in a community to dress like gang members in order to camouflage in communities with a large gang presence. Dr. Vigil had also testified in at least two to three dozen cases before Vasquez v. Rackaukas.

           Given Dr. Vigil’s extensive qualifications the Court did not challenge Dr. Vigil’s neutrality. Rather than challenge his neutrality or qualifications, opposing counsel chose to challenge the relevance of Dr. Vigil’s testimony. There seems to be no evidence to suggest any issue with Dr. Vigil’s neutrality. Dr. Vigil has studied numerous gangs over a long career and used this knowledge to inform his opinions of the current case. He also only received a nominal fee for his testimony. Overall, Dr. Vigil seems to have been a credible and knowledgeable expert witness.

III. THE RESEARCH

A. Methodology

           Dr. Vigil was hired by the plaintiffs to provide an opinion on each of two questions: (1) how gang membership in OVC is defined and understood, and (2) how OVC gang membership would be assessed by outsiders. In his expert report, he found that “while gang membership may sometimes be fixed, it is more often than not fluid and thus it is difficult to discern active members from casual or social associates,” and “the fact that gang members and nonmembers alike may clearly discern the neighborhood and have strong neighborhood identification can complicate efforts by an outsider to gauge an individual’s gang involvement, especially in a neighborhood like Orange Barrio [Varrio] Cypress.” Dr. Vigil based his opinions on a variety of sources. These sources include court documents, a tour of the injunction area, a visit to the local high school, a history of the Cypress Street Barrio published on the City of Orange website, crime statistics from the FBI Uniform Crime Reports, his own fieldwork, and a review of existing research on gangs and gang environments.

            Dr. Vigil's fieldwork consisted of living for several months at a time in Mexican villages and among urban street youth. His fieldwork was not done in anticipation of litigation, and none of the fieldwork focused specifically on OVC.  The Court documents he reviewed include the complaint in People v. Orange Varrio Cypress, law enforcement reports, and various declarations. The declarations were given by police officers and “community members,” which included some of the 115 defendants named in the original suit brought by the State of California in February 2009.

B. Validity

            Because Dr. Vigil’s research is qualitative as opposed to quantitative, it is better suited to the Frye standard than the Daubert standard. The Frye standard simply asks whether an expert’s opinion is based on methods that are generally accepted by experts in the particular field. Here, the appropriate field is anthropology. Merriam Webster defines anthropology as “the study of human beings and their ancestors through time and space and in relation to physical character, environmental and social relations, and culture.” Fieldwork is a common technique in anthropology because there are simply too many relevant factors to isolate in quantitative studies. Dr. Vigil was specifically researching gang membership in OVC. It is hard to imagine a controlled experiment or survey designed to answer the two above mentioned questions posed by the plaintiffs. Gang members and community members in marginalized barrios, as Dr. Vigil testified, are untrusting of outsiders, especially authority figures. The response rate in a quantitative study would likely have been low and subject to a substantial response bias due to participants fearing legal consequences for honest answers. Fieldwork allows anthropologists to consider all relevant factors, and to gain the trust of gang members and community members.

           That is not to say that Dr. Vigil’s research was ideal. His fieldwork was not specific to OVC. His only research that was specific to OVC was limited to a driving tour, reviewing court documents, and reading the city’s website. Dr. Vigil’s expertise isn’t in OVC specifically, but in Mexican-American gang culture generally. The relevance of his fieldwork depends upon the presumption that membership in OVC is like membership in other gangs with similar characteristics which Dr. Vigil did study. This sort of presumption is not unique to anthropological fieldwork. It happens whenever a research subject has not been studied at the time of litigation. The best alternative in this scenario is to bring in an expert who has studied similar subjects. This happens, for example, when a psychologist testifies in an insurance case about whether the decedent was suicidal at the time of their death even though the decedent was not one of the psychologist’s patients.

           Qualitative research like Dr. Vigil’s fieldwork doesn’t lend itself to the Daubert standard quite as neatly. The Daubert standard includes several factors for considering the validity of an expert’s methodology. These factors are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. Some of the factos, like publication and widespread acceptance, are readily applicable; however, other factors, like falsifiability and having a known error rate, are not. Since the Daubert standard is a flexible inquiry, these limitations alone do not make Dr. Vigil’s methodology invalid. Whether analyzed under the Frye standard, the Daubert standard, or the even more permissive Rule 702 of the Federal Rules of Evidence, Dr. Vigil’s expert testimony passes muster.

IV. THE RELEVANCE

           The central legal question in Vasquez v. Rackauckas was whether Orange County violated the due process rights of the plaintiffs by enforcing an anti-gang order against them without constitutionally adequate procedures for the plaintiffs to challenge their membership in a gang.  Vigil’s testimony, which pertained to how gang membership is defined and seen by both members of the gang and outsiders might not seem relevant at first, but was relevant because it pertained to whether the plaintiffs in question should be considered gang members. Vigil’s testimony pertained both to gangs generally and OVC specifically.

           The Vasquez court used the Mathews v. Eldridge balancing test to examine whether the petitioners’ due process rights had been violated by the anti-gang order against them. Under the Mathews balancing test, a court examines the liberty interest that will be affected by the government action and the risk of erroneous deprivation of that interest in balance against the cost of additional procedures and the government’s interests in seeing a policy enforced. The liberty interests that Plaintiffs had been deprived of included freedom of expression, movement, assembly, and speech.

           Dr. Vigil’s testimony was relevant to the second Mathews prong, which concerns erroneous deprivation because if the Petitioners were not active members of a gang, they would have been erroneously deprived of their rights without adequate opportunity to challenge the anti-gang order and injunction. Professor Vigil testified that the level of membership and participation in gangs vary so widely and for such different reasons, it is incredibly difficult to determine who is an active gang member as opposed to someone who is affiliated as a result of being from the same neighborhood. Further, Professor Vigil testified that gangs generally, and OVC specifically, have fluid membership, which makes determining membership and participation in a gang difficult at a particular time because “‘most gang members’ eventually leave gangs.”

           Professor Vigil also elaborated that because gangs like OVC are associated with the local neighborhood, it was possible to be deemed a member of the gang based on neighborhood or family affiliation, regardless of whether an individual had actually been initiated in the gang. Similarly, it was possible to leave gang activity without undergoing a formalized procedure to leave the gang. This is relevant to the erroneous deprivation inquiry because it showed that “at what point a ‘person becomes a member or participant of a gang’” is often unclear.

           Here, the social science evidence was incredibly important because it supported the Plaintiff’s argument in regards to the second Mathews v. Eldridge balancing factor, which concerns “erroneous deprivation” of liberty interests. Under Mathews, the court determines whether procedures to take away fundamental interests, like life, liberty, and property, are adequate when the value of the lost interest and the risk of erroneous deprivation are balanced against the possible costs of additional procedures and government interests. Here, because Professor Vigil’s testimony showed that there was a great risk of individuals being erroneously characterized as active gang members and therefore having their rights erroneously deprived, this weighed heavily in favor of the plaintiffs. 

V. THE COURT

           The Court analyzed whether the plaintiffs were given an adequate opportunity to contest whether they are active gang members. The Court employed a balancing test from Mathews v. Eldridge to determine if the individuals were active gang members. This test includes a fact-intensive inquiry and looks at the adequacy of procedures used to determine gang membership. The expert testimony was used to address whether the procedures used to determine the plaintiffs’ alleged gang membership were appropriate. Using the expert testimony, the Court found that the procedures were inadequate.

           Dr. Vigil testified that “joining a gang is often a ‘fluid process’ in which there is not always a clear point at which a person becomes a member or participant of a gang.” He added that some individuals who grew up near the gangs or have family members may unfairly be considered gang members “without undergoing any kind of initiation.” Professor Vigil further explained that the “lack of clear, objective criteria” for gang initiation added to the complicated effort of determining who is an “active member.”

            Professor Vigil also testified that an individual’s gang membership can change over time. For example, he explains that some people leave the gang as they get older, and that the medium gang tenure is three to five years. He also explained that it can be especially difficult to determine gang membership “in longstanding, territorial gangs based around a neighborhood, because gang members and nonmembers often grow up together in the same neighborhood and have social relationships and friendships unrelated to the gang.” For instance, he explained that the abbreviation “OVC” referred not only to the gang but also to the greater neighborhood area itself, further complicating the inquiry into who is an active gang member.

           The Court believed that this evidence was instructive, finding that determining active gang membership creates “a considerable risk of error.” Based on the expert testimony, the Court found that gang membership was “fleeting” and that the “lack of objective criteria” used to determine membership led to the “heightened need for careful fact finding.” Specifically, the Court explained that based on the expert evidence, determining gang membership would be an involved “multifactored, complex, and fact specific inquiry.” Furthermore, the Court found that, based on Professor Vigil’s testimony, it is often unclear at what point someone is an “active member” of a gang.

           The Court used this evidence to determine whether the plaintiffs should have been allowed to testify about their status as gang members. It found that based on the wide-range of evidence that may be relevant and the lack of objective factors create a considerable risk of error in determining who is an active gang member. The expert testimony was also useful when the defendants appealed the case to the Ninth Circuit. The appellate court, similar to the district court, referenced the importance of Professor Vigil’s testimony and used it to analyze whether the plaintiffs were gang members.

           Therefore, both the district and appellate courts found that disallowing the plaintiffs to participate and to provide evidence that they were not members of a gang was done in error. The courts gave great weight to the expert’s testimony and appropriately used it in deciding this issue. The expert played a significant role in informing the courts about how gang membership works which helped the court determine whether the procedures used to determine membership were adequate.