In re Omar F., 2017 IL App (1st) 171073 (October). Episode 441 (Duration 6:38)
This probation term of “no gang contact” was overly broad.
The State filed a petition for adjudication of wardship, charging the minor with armed robbery with a firearm (720 ILCS 5/18-2(a)), aggravated robbery (720 ILCS 5/18-1(b) (West 2014)), and robbery (720 ILCS 5/18-1(a)).
Victim, Soberu, got off the train to early and was in the wrong neighborhood.
He was looking for a bus with his backpack with his laptop over his shoulder, when two individuals, one light-skinned and the other dark-skinned, whom he later identified as the respondent and co-respondent approached him from the gangway between the apartments.
The individuals walked in front of him.
They pointed a gun at him and said to get on the ground.
Instead, he gave them his cell phone and began to struggle for the gun. The gun was on the ground at one point but they still fought. He hit one of them in the head with the gun. But he was also being punched in the head.
Eventually, he threw the gun as far as he could and he got away.
Return To The Scene
When police drove him back to the area he found his backpack and his shoe and immediately identified his attackers.
At sentencing, respondent stated that his “friends are gang involved” and belong to the Black Peace Stones but denied being a gang member himself. The court ordered:
“You’re to stay away from gangs, guns, and drugs. You need to clear those from you social media. If you have gang members as friends, you need to stop hanging out with them. I don’t want to see any pictures of you and your friends on Facebook or any other social media if those people are in gangs. I’m not sure if you’re a gang member or if you’re just an associate of gangs. I see and hear that there is some contradictory information. I don’t care. One way or the other—I mean it would be nice if you’re not a gang member—but if you are now, I can’t change that. But you’re going to need to change who you’re hanging out with, otherwise you can get in trouble on my probation.”
On appeal, the respondent contends that the trial court abused its discretion in imposing certain gang-related conditions on his probation, where his crime, armed robbery with a firearm, had nothing to do with gangs or gang membership, and therefore the probation conditions were not reasonably related to his offense.
In the alternative, the respondent contends that the gang-related conditions were unconstitutional as applied to him because they were overbroad and unreasonable.
The respondent specifically challenges the following conditions of his probation:
(1) that he “stay away” and have “no contact” with gangs and
(2) that he clear and not appear in any social media posts with gang members.
Trial courts have broad discretion to impose probation conditions, whether expressly enumerated by statute or not, to achieve the goals of fostering rehabilitation and protecting the public. However, this wide latitude in setting conditions of probation is not boundless. The court’s discretion is limited by constitutional safeguards and must be reasonable. Our supreme court has made clear that the overriding concern is reasonableness.
Condition Must Be Reasonable
To be reasonable, a condition of probation must not be overly broad when viewed in the light of the desired goal or the means to that end. In other words,
“[w]here a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.”
In re J.W., 204 Ill. 2d at 78.
Our supreme court has explained that when assessing the reasonableness of a condition of probation, it is appropriate to consider whether the restriction is related to the nature of the offense or the rehabilitation of the probationer. Other considerations are
(1) whether the condition of probation reasonably relates to the rehabilitative purpose of the legislation,
(2) whether the value to the public in imposing this condition of probation manifestly outweighs the impairment to the probationer’s constitutional rights, and
(3) whether there are any alternative means that are less subversive to the probationer’s constitutional rights but still comport with the purposes of conferring the benefit of probation.
A probationary condition is overbroad and therefore unreasonable when there is no valid purpose for the restriction and there is no means by which the probationer may obtain exemption from the restriction for legitimate purposes.
No Gang Contact Valid
Contrary to the respondent’s position, the no-gang contact provision was a valid condition of probation because it was reasonably related to the respondent’s rehabilitation.
The Juvenile Court Act of 1987 explicitly permits the trial court to limit a juvenile respondent’s gang contact. The Juvenile Court Act of 1987 provides in relevant part:
“(2) The court may as a condition of probation *** require that the minor: * * * (s) 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 ***.”
705 ILCS 405/5-715(2)(s) (West 2016).
Limits On Social Media
While the Act does not expressly permit limitations on social media, in the present world, where communication is routinely made through online social platforms, it is not a stretch of the imagination to understand “contact” as extending to an individual’s online presence.
Attempting to limit the minor respondent’s contact (real or virtual) with gang members was a valid condition of probation because it was related to his rehabilitation. Nonetheless, we are compelled to conclude that the probationary conditions as articulated by the trial court were overbroad and not narrowly tailored so as to be unreasonable.
There is no exclusion for people based on familial, employment, or educational relationships, and no explanation as to what type of contact (physical or online), no matter how innocuous, will result in a probation violation. This is particularly troubling where, according to the social investigation report, the respondent reported that the person he looks up to the most is his brother, who “has been in the system but has turned his life around.”
Accordingly, we find that in the present case, the trial court’s imposition of the aforementioned gang-related conditions of probation constituted error.
Given that certain areas of Chicago are gang-infested, a blanket prohibition against contact with gangs is simply too general and overbroad to provide a juvenile with clear parameters about how to comply with the conditions of his probation.
That is, if the parameters are so vague, overboard, or general that a juvenile could be inadvertently caught violating probation in a number of scenarios, including when conducting himself in a constitutionally protected manner, then the judicial process is not functioning as intended. This breakdown in the judicial process constitutes second-prong plain error.
We find that the conditions of probation ordering the respondent to “stay away” and have “no contact” with gangs and to remove all social media posts in which he appears with gang members were overbroad and not narrowly drawn so as to be unreasonable. The trial court’s blanket order requiring the respondent to “stay away” from and have “no contact” with gangs and to clear and not appear in any social media posts with gang members did not contain a means by which the respondent could obtain an exception from the restrictions for legitimate purposes.
We therefore vacate that portion of the trial court’s order requiring the respondent to “stay away” from and have “no contact” with gangs and to clear all his social media of postings with gang members.
We remand the cause so that the trial court may consider whether such restrictions are still warranted, and if so, what appropriate exceptions for familial, employment, and school contacts should be applied.
- Episode 385 – In re Dystyn, 2017 IL App (4th) 170103 (June)
- Episode 386 – Packingham v. North Carolina, 15-1194 (June 2017)
- Conditions of Probation Challenged By This Convicted Police Officer – Episode 029
- People v. Goossens, 2016 IL 118347 (September)
- People v. Minnis, 2016 IL 119563 (October), (disclosure of internet use constitutional under SORA)
- People v. Crabtree, 2015 IL App (5th) 130155 (July 2015) (sex probation sentencing terms prohibiting computer proper even though the crime did not involve a computer)