In re R.H., 2017 IL App (1st) 171332 (December). Episode 443 (Duration 6:24)

Minor prevented from having contact with gang members and can’t post gang and drug stuff on social media.

Gist

R.H. was arrested for possession with intent to deliver cannabis, possession of cannabis, and unlawful use of a weapon. R.H. has a history of criminal behavior, dropped out of school fearing gang retaliation, and had been shot.

R.H. admitted gang membership.

His social media accounts included photographs of R.H. with a gun, making “gang signs” with fellow gang members, and smoking cannabis.

Extensive Gang Contact

The gang information report indicated that R.H. was affiliated with the Unknown Vice Lords, a criminal street gang operating on Chicago’s southwest side. Particularly relevant, R.H. used his social media accounts to taunt rival gang members and posted a number of pictures of himself displaying gang signs, posing with guns, and smoking what appears to be cannabis.

Terms Of Probation

Among the conditions of probation, the trial court ordered that R.H. have no contact with “any gangs, guns, or drugs which means it looks to me, [R.H.], you need to get some new friends.” The trial court also ordered that R.H. delete from his social media accounts “all references to gangs, guns, or drugs.”

Issue

R.H. contends that the probation condition restricting him from posting about gangs, guns, or drugs on social media is an unconstitutional content-based restriction that fails for lack of sufficiently narrow tailoring. (R.H. does not challenge the separate condition prohibiting him from “contact” with gang members, guns, or drugs.).

See other Illinois Sentencing Issues.

Parens Patriae

Parens patriae represents the “general power and obligation of the government as a whole to protect minors and the infirm.”  In re D.S., 198 Ill. 2d 309, 328 (2001). Parens patriae power is codified in the Juvenile Court Act of 1987 (Juvenile Court Act or Act) (705 ILCS 405/1-1 et seq. (West 1998)), which explicitly “charges the circuit court with the duty to act in the best interests of the minor and for the minor’s own protection.”

The Juvenile Court Act contains a nonexhaustive list of conditions juvenile courts may impose. One of these is that the minor “refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including but not limited to members of street gangs and drug users or dealers.” 705 ILCS 405/5-715(2)(s) (West 2016).

Some Flexibility

The trial courts have considerable deference in fashioning probation conditions intended to rehabilitate. People v. Kimbrell, 291 Ill. App. 3d 605, 607 (1997). Courts may impose restrictions outside those the statute lists so long as the condition

(i) is reasonable and
(ii) has some connection between it and either
(a) the underlying crime or
(b) the behavior or attitude of the defendant that the trial court thinks needs adjusting.

Different Constitutional Standards

Different constitutional standards apply to minors because of “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.”

We find further support in case law restricting the behavior of adult probationers, who cede some of their constitutional rights on conviction. A probation condition that implicates fundamental constitutional rights has to reasonably relate to the “compelling state interest in reformation and rehabilitation.” In re J.W., 204 Ill. 2d 50, 78 (2003).

To be reasonable, a probation condition must narrowly focus on its rehabilitative goal. In re J.G., 295 Ill. App. 3d 840, 843 (1998).

In assessing a probation condition’s reasonableness, courts also consider if

(i) the probation condition reasonably relates to rehabilitation,
(ii) the value of the probation condition to society plainly outweighs the loss of the probationer’s constitutional rights, and
(iii) less restrictive means are available.

People v. Rizzo, 362 Ill. App. 3d 444, 456 (2005).

Defendant’s Characteristics

Courts also may look to the individual characteristics of the defendant. Stocke, 212 Ill. App. 3d at 554. Even if R.H. were an adult probationer, the social media restriction would meet these goals. he condition focuses on the goal of reforming R.H.’s behavior and steering him away from involvement with gangs, guns, and drugs.

Limited Condition

The order limits its reach to the matters specifically related to the exact behavior for which R.H. was adjudicated delinquent. R.H. is not restricted from all social media activity. Instead, he is prohibited from posting about gangs, guns, and drugs, which is consistent with the statutory condition, also imposed but not challenged, prohibiting direct or indirect contact with “members of street gangs and drug users or dealers.” 705 ILCS 405/5-715(2)(s) (West 2016).

Analysis

 R.H.’s past actions demonstrate the reasonableness of the probation condition. R.H.’s past postings of pictures of himself displaying gang signs, holding guns, and smoking cannabis foment and glorify criminal behavior. The postings also communicate to members of his gang and other gangs an endorsement of and a willingness to engage in criminal activities.

Indeed, the implications of R.H.’s posts do not simply affect his chances of future employment; they put R.H., his family, and anyone else in his vicinity, in danger of bodily harm. We conclude from all this that the State has a compelling interest in restricting R.H.’s social media activity on these three related and insidious topics, closely related to his crimes, as a means of preventing him from further criminal acts.

Minors are entitled to some, but not all, of the constitutional protections traditionally afforded to adults. Bellotti v. Baird, 443 U.S. 622, 633 (1979) (plurality op.). The constitutional rights of minors are neither equal to nor coextensive with those of adults.

If the juvenile court has any hope of steering R.H. toward a new direction and productive life, it would be absurd to target only real world behavior and ignore online activity. And if the trial court tried to restrict only postings that glorified guns, gangs, or drugs, R.H.’s probation officer would be in the impossible position of parsing each of his social media posts to determine a violation. For the restriction to be effective, it must be practical, it must be feasible, and it must be enforceable.

The legislature has instructed us that an important purpose of the statute is for the trial court to rehabilitate the juvenile so that the minor can “mature into a productive member of society.” 705 ILCS 405/5-101(1)(c) (West 2016).

To ensure R.H.’s rehabilitation, the trial court needs flexibility to craft an effective probation condition.

What About Omar?

Omar F. is factually distinguishable, as its analysis focused on the restriction from “contact” with gang members (as opposed to restrictions on particular social media topics). The Omar F. court was particularly concerned by the no-contact order because it could potentially prohibit Omar from seeing gang members in family or educational settings; worse, Omar could potentially violate the probation restriction without meaning to or even knowing he was violating it.

Those concerns are not present here. R.H. is not challenging the “no contact” order, only the restriction on his social media topics. R.H. controls his own social media accounts and can simply avoid posting about the prohibited topics; unlike Omar, he does not need to worry about inadvertent contact with guns, gangs, or drugs in his social media accounts.