With Gang Charges Dropped, Elvira Zayas Case Spotlights the Controversy Over ‘Safety Zones’

Elvira Zayas, a 19-year-old Mission poet and youth advocate, has endured months of legal battles, jail time and thousands of dollars in legal fees defending herself against alleged gang-related felony assault charges, later reduced  to a single misdemeanor assault charge.

What had begun as an altercation last summer became blown up into a major case involving accusations of Latino gang affiliations, incarceration, and a $1 million bail.

Zayas is a well-known advocate within her community of queer volunteers, poet enthusiasts, and youth mentors. She isn’t the first person to be charged with unproven gang associations and to serve undue jail time for it. What sets her apart is the loyalty of her supporters, who brought her story to the forefront of a movement to reduce racial profiling and gang injunctions within Latino communities.

Now, after several months of battles and an eroding case against her, Zayas is free pending trial on the reduced charge. Her case raises questions about the practice of bringing cases with so-called “gang enhancement,” a designation that, if proven, carries much stiffer penalties for a given offense.

On August 29, police say that Zayas and two alleged Norteño gang members, Fidel Amezcua and D.J. Cambridge, were involved in an altercation. In the events that followed, Zayas was jailed for almost one month with a $1 million bail.

The teenaged activist for lesbian, bisexual, gay, transgender and queer rights, had had no prior police record, and no known gang affiliation.

What actually happened on August 29 remains murky, but what is known is from the testimony of SF Police Department officers and the victim during the preliminary hearing includes details of an alleged assault by Zayas on 22nd and Shotwell streets after Amezcua and Cambridge asked the victim if he was a “Sureño.”

The victim, unidentified in media reports, allegedly reached for his cell phone at one point, and proceeded to follow either Amezcua or Cambridge to a house where Zayas was allegedly present at the time. According to testimony she allegedly left the building and attacked him — a charge she denies. The victim then flagged down a passing police car and officers took two of the three defendants into custody.

Zayas was initially charged with dissuading a witness, assault with a gang enhancement, and participation in a gang.   If convicted, she could have faced seven years in prison.

To add fuel to the fire, the alleged assault happened within the “Safety Zone” of the Mission District’s gang injunction.

A gang injunction works much like a restraining order against specific individuals within a certain group. It’s a controversial court order that prevents named people from interacting with “associates” or committing crimes such as loitering.

Currently, there is an active injunction against Norteños in the Mission District, specifically in what is seen as their “turf” between 23rd and Cesar Chavez streets, and Valencia Street to Potrero Avenue, according to the San Francisco City Attorney’s office.

Based on maps provided by the SFPD and previous coverage by Mission Local, the Sureno gang territory includes 16th Street from Dolores to Folsom streets, becoming smaller to form a pyramid which ends at 22nd Street between Mission and Valencia streets.

The San Francisco District Attorney’s office, according to spokesperson Alex Bastian, pro-actively dismissed the charges of dissuading the witness and gang participation before the preliminary hearing took place in September.

After the hearing, the D.A. office spokesman acknowledged that it didn’t have enough evidence to charge Zayas with felonious assault.

But questions remain about why this happened, and why Zayas was held with a $1 million bail.

During the hearing, the victim was describing what happened to him and abruptly stopped mid-questioning.

“I want the police to go,” he said to the court through a Spanish-speaking translator, “I want them to go and I just want to move on with my life.”

Presiding Judge Raymond Arata thought that the witness was scared and was somehow being intimidated.

“The evidence that has been put forth so far involves multiple inconsistent statements by the complaining witness including his testimony in court,” wrote Autumn Paine, Elvira Zayas’s private attorney, to Mission Local in an email as the hearing was taking place. “Further, his testimony was, in part, inconsistent with his prior statements to the police.”

It was also acknowledged throughout the hearing that Zayas had a Cuban flag tattoo on her body, and that such a tattoo, according to officers and the prosecution, may imply gang affiliation with the colors it represented.

Zayas’s supporters said that her tattoo represented family origins, and had nothing to with gangs.

Many of the community members who know Zayas, and came out to support her during the preliminary hearing think racial profiling and the presence of gang injunctions in communities such as the Mission are to blame for Zayas’s prolonged incarceration.

Along with community members, Zayas’s mother, also named Elvira Zayas, a Cuban native, was a constant source of encouragement and strength during the hearing.

“Pero yo he estado fuerte y guerrera siempre, y hoy mas que nunca, por que tengo a todos ustedes peleando conmigo,”  said the elder Zayas to youth who came out to support her daughter.  Her statement translates as: “But I have always been strong and a fighter, and today more then ever, because I have all of you resisting alongside me.”

Members of Youth Speaks, a nonprofit advocacy group for spoken word performance where Zayas helped nurture writing, came every day with other supporters to show solidarity inside the courtroom and to picket outside the San Francisco Hall of Justice in an effort to get her charges reduced.

“Neighborhoods are on lockdown,” said Erika Céspedes, a coordinator for Youth Speaks, during the preliminary hearing. “There is less investment in community and more profit being made in locking brown and black people up.”

After dismissing her public defender because of what she and her family thought was cultural insensitivity, Zayas hired Paine to advocate on her behalf.

With a private attorney comes legal fees. Community members, including Céspedes set up a “wepay” donation webpage to help Zayas with the costs associated with the case. As the case has been prolonged, Zayas’s expenses continued to mount toward $10,500. Zayas’s supporters have raised $7,885, according to her donation website.

Zayas appeared in court every day of the hearing with shaped eyebrows and braided hair. Her round face smiled readily at the sight of friends and family in the gallery.

On the night of her release, the elder Zayas was overjoyed.

“I feel great,” said the mother as she was walking out of the courtroom, prior to a long-awaited reunion with her child. “I am proud of my daughter. I never imagined that this would happen to Elvira.”

The younger Zayas has repeatedly declined to be interviewed for this story.

According to the ACLU of Northern California website, no California gang injunction has targeted a white gang. The people named in the injunction are not notified of the restrictions placed upon them.

State officials, for their part, contend that injunctions reduce crime rates within neighborhoods known for gang violence.

The Norteno gang injunction became permanent in 2008.  Read more about the 2008 gang injunction here.

Officials cite statistics of lowered crime rates based the reduced recidivism of the named gang members in the injunction. The website of the San Francisco City Attorney’s Office  lays out its case for the program.

However, the numbers do not represent the full picture of crime within the safety zone, as offenses that take place within the injunction are not counted in the overall crime rates of the individuals.

Crime outside the injunction is decreasing, but this past year has seen a spike in murders in the Mission, many happening within the “safety zone, raising questions whether injunctions reduce crime rates or deter crime.

“In a world where youth are made to feel like criminals, the gang injunctions are a reflection of how society doesn’t support young folks,” said Céspedes.

Although Zayas wasn’t a gang member, it was seen, according to the case against her, that she associated with known gang members in the Mission safety zone.

“We take it serious[ly] when people violate the law,” Bastian said when asked about Zayas’s exorbitant bail amount.

What remains of the case against Elvira Zayas is one misdemeanor assault charge in which she must go to trial for with the two co-defendants who are facing felony charges.

According to the District Attorney’s office, Zayas will go to trial in mid-January.

Zayas, released on September 25 to an exultant family and friends, has pleaded not guilty.