In re M. P.
Annotate this Case
THIRD DIVISION
June 30, 1998
No. 1--96--3307
IN THE INTEREST OF M.P., a minor. ) Appeal from the
) Circuit Court of
(THE PEOPLE OF THE STATE OF ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
)
v. )
)
M.P., a minor, ) Honorable
) Christopher J.
Defendant-Appellant). ) Donnelly,
) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Following a bench trial, the circuit court found defendant
M.P., a minor, delinquent based upon the charge of criminal
trespass to a vehicle. The trial court sentenced defendant to one
year probation and 100 hours of community service, and ordered, as
conditions of his probation, a TASC referral, Gang Intervention
Program, mandatory schooling, a 7 p.m. curfew and defendant's
"removal of his tatoos" pursuant to the Juvenile Court Act (705
ILCS 405/5 (West 1992)). On appeal, defendant contends that the
trial court abused its discretion in ordering that, as one of the
conditions of his probation, he remove tattoos on his arms which
symbolized an alliance to a street gang. For the reasons set forth
below, we reverse and remand.
On February 12, 1996, defendant, who was 16 years old, was
stopped by Officer McDermott of the Chicago Police Department after
he allegedly committed a traffic violation while operating a motor
vehicle. When Officer McDermott ran the vehicle identification
number, he discovered that the vehicle had been reported stolen.
McDermott arrested defendant and brought him to the 14th District
police station where defendant told McDermott that he rented the
car from a person named "Fresh" for $70. Defendant was charged
with possession of a stolen vehicle and criminal trespass to a
vehicle. After a bench trial, the trial court found defendant
delinquent based on criminal trespass to a vehicle. Defendant
orally objected to the condition of the tattoo removal.
Prior to defendant's sentencing hearing, defendant s probation
officer presented the court with a social investigation report
regarding defendant. The report revealed that defendant had been
a member of the Imperial Gangsters street gang for approximately
five years. Defendant was very proud of his gang, within which he
was considered the enforcer." In fact, defendant was with his
gang friends when he was arrested. The probation officer
specifically noted that defendant had two tattoos, a pink panther
with a crown on one upper arm and a bulldog with a crown on the
other upper arm, which the officer described as "gang related."
The probation officer felt that, considering defendant s heavy
gang involvement, defendant probably had some idea that renting
a car for $70 was not legitimate. The report also disclosed that,
as a result of his gang involvement, defendant was shot in the leg
in December 1995.
The report further stated that defendant attended school past
the 9th grade until he was kicked out for gang fighting. While in
school, defendant was enrolled in special education and behavioral
disorder classes. Defendant stated that he liked school; however,
he had numerous problems with teachers and other gangs in school.
The probation officer believed that defendant had a lack of
enthusiasm and interest in school, but noted that defendant
appeared to be extremely talented in pursuing his interest in
drawing. The report also stated that defendant told the probation
officer that he had a good relationship with his mother and her
boyfriend, with whom defendant was currently living, and that he
often took care of various chores in the home. However, the
probation officer noted that there appeared to be heavy gang
activity throughout the neighborhood where defendant then resided.
Defendant s mother reported that defendant had been complying with
the 7 p.m. curfew imposed on him by the trial court at the
inception of this case.
At defendant's sentencing hearing, the following colloquy
occurred:
"THE COURT: What's one reason why you're
here?
THE RESPONDENT: For the auto theft.
THE COURT: Well, that's the case, but
what brings you here?
THE RESPONDENT: (No audible response.)
THE COURT: You don't even know, do you?
THE RESPONDENT: (No audible response.)
THE COURT: It's the gangs, right?
THE RESPONDENT: Yes, sir.
THE COURT: Right. And you're rather
proud to be an Imperial Gangster, right?
THE RESPONDENT: (No audible response.)
THE COURT: See, you can't even answer it
because you are, and the gangs are going to
get you where?
THE RESPONDENT: Nowhere.
THE COURT: Oh, yes. This is going to be
an absolute, complete waste of breath because
you're so enraptured with the gangs. If you
think it's just, great, well, when you are
staring at some judge facing a murder charge
or you're facing big time, then you make sure
that you thank each and every gang member or
when you get drilled with a bullet right in
the head because you're an Imperial Gangster,
then you can thank all your gang members with
your last dying breath, okay?"
On June 13, 1996, defendant filed a motion to modify the May
22, 1996, probation order, arguing that on information and belief,
the only tattoo the minor has is an M on his leg which stands for
Miguel, and that, because the Act does not authorize removal of a
minor respondent s tattoos, the trial court should amend its May 22
order to exclude tattoo removal as a condition of defendant's
probation. At a hearing on defendant s motion on August 14, 1996,
defendant argued that the condition of tattoo removal was an
intrusive and punitive procedure not warranted under the Act for a
Class A misdemeanor of criminal trespass to a vehicle. The trial
court ruled that if defendant s tattoos were in fact gang related,
then it had authority to order defendant to remove them, and, on
the same day, the court entered an order modifying its May 22 order
in that the minor shall only have any gang related tattoos
removed. This appeal followed.
Defendant contends that the trial court s August 14, 1996,
modified order (order), requiring that defendant remove any gang
related tattoos, was an intrusive and illegal condition of
probation not prescribed by the Act. Defendant first argues that
because the removal of his tattoos did not have a nexus to the
offense for which he was found guilty, it was error for the court
to impose this condition.
The State contends that the condition was within the
permissible scope of the Act because the Act allows for several
intrusive procedures as conditions for probation. The State also
argues that the condition was reasonable and within the discretion
of the trial court because the court found a connection between
defendant's delinquency and his gang involvement, and "the court
was attempting to do everything in its power to give this minor an
opportunity to be something more than a lifelong gangmember and
criminal."
The purpose and policy of the Act "is to secure for each minor
*** such care and guidance, *** as will serve the moral, emotional,
mental, and physical welfare of the minor and the best interests of
the community." In proceedings under the Act, "the court may ***
gather information bearing upon the current condition and future
welfare of persons subject to" the Act. 705 ILCS 405/1--2 (West
1992). Section 5--23 of the Act sets forth various alternatives
that are available to the trial court as to the disposition of a
minor found delinquent under the Act, including probation and
conditional discharge. 705 ILCS 405/5--23(1)(a)(1) (West 1992).
When determining the appropriate disposition for a minor, the trial
court may choose as it sees fit, among the various alternatives
provided for in the Act; however, delinquency proceedings should be
considered protective rather than punitive in nature. In re J.C.,
260 Ill. App. 3d 872, 884, 632 N.E.2d 127 (1994). The disposition
of a minor rests within the sound discretion of the trial court.
In re J.C., 260 Ill. App. 3d at 884. The trial court need not
defer to any particular disposition under section 5--23, and its
decision will not be reversed absent an abuse of discretion. In re
T.L.B., 184 Ill. App. 3d 213, 215, 539 N.E.2d 1340 (1989).
In determining whether a trial court's imposition of a
probation condition was proper, a reviewing court considers whether
the probation condition (whether explicitly statutory or not) is
reasonable if the trial court believes the condition would be a
good idea and the record contains no indication that the court's
imposition of the condition is clearly unreasonable. People v.
Ferrell, 277 Ill. App. 3d 74, 79, 659 N.E.2d 992 (1995). The trial
court is normally the proper forum in which to determine a suitable
sentence. The decision of the trial court in that regard is
entitled to great weight and deference, and may not be altered on
review absent an abuse of that discretion. People v. Perruquet, 68 Ill. 2d 149, 153-54, 368 N.E.2d 882 (1977).
The Act provides that the court may, as a condition of
probation, require 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 dealers or users." (Emphasis added.) 705
ILCS 405/5--24(2)(s)(West 1992). This court has held that, in
adult probation cases, the trial court may impose a probation
condition not expressly authorized by statute as long as such a
condition (1) is reasonable, and (2) some connection exists between
the condition and either (a) the underlying crime or (b) the
behavior or attitude of the defendant that the trial court thinks
needs adjusting. Ferrell, 277 Ill. App. 3d at 79. This court also
has recently held that "any condition of juvenile probation must be
reasonably related to the juvenile's rehabilitation" (In re J.G.,
No. 97--3480, slip op. at 6 (March 19, 1998)), and in assessing the
reasonableness of the condition, the court should take into account
the individual defendant (People v. Stocke, 212 Ill. App. 3d 547,
554, 571 N.E.2d 192 (1991)).
Defendant relies on People v. Dunn, 43 Ill. App. 3d 94, 356 N.E.2d 1137 (1976), in support of his argument that (1) there is no
authority in the Act which allows for tattoo removal as a condition
of probation, and (2) no possible connection can exist between any
gang related tattoos defendant may have and the offense of criminal
trespass to a vehicle. The State contends that defendant's
reliance on Dunn is misplaced because, in the present case, not
only is the condition of probation provided for in the Act, but the
trial court also found a direct connection between defendant's gang
membership and his delinquency. The State also argues that
"probation for a minor is viewed differently than it is for an
adult," in that its focus is rehabilitative rather than punitive,
and that removing tattoos symbolizing allegiance to a gang clearly
is within the stated purpose of the Act. The State maintains that
because the placement of a permanent mark on the body symbolizing
a street gang can "clearly" be considered both a direct and an
indirect indication of alliance to the gang, the tattoo removal
condition was a necessary step in preventing the gang's influence
over defendant. The State further argues that, although the trial
court never indicated that defendant's tattoos had any connection
to the crime, the court's comments to defendant regarding his gang
membership indicate that the court "clearly felt that [defendant's]
gang involvement was directly related to his delinquency," and that
minimizing such involvement would be "a good idea." The State
relies on People v. Wells, 90 Ill. App. 3d 320, 413 N.E.2d 218
(1980), in support of its argument that the trial court may impose
conditions of probation which do not have any relationship to an
underlying offense.
In Dunn, the court held that the trial court erred in imposing
the probation condition that the defendant get a haircut after the
defendant was found guilty of failure to signal in violation of the
Illinois Vehicle Code. Dunn, 43 Ill. App. 3d at 95. The Dunn
court found that none of the conditions of probation in the
applicable Unified Code of Corrections specifically provided for
regulation of the length of a person's hair or personal appearance;
however, the Code appeared to allow for imposition of conditions
not specifically listed as long as there was a connection between
the condition and the crime charged. Because there was no
connection between hair length and the offense of failure to
signal, the Dunn court held that imposing the condition concerning
the defendant's hair length was error. Dunn, 43 Ill. App. 3d at
96.
In Wells, the trial court ordered as a condition of the
defendant's probation after his burglary conviction that the
defendant work or actively seek employment for no less than six
hours a day. In affirming the trial court, the Wells court noted
that it could not determine how the condition imposed related to
the circumstances of the burglary offense because the record on
appeal did not contain a transcript of the hearing in which the
defendant pleaded guilty. Nonetheless, the Wells court held that
"since the condition may also relate to the rehabilitation of the
defendant," it was clearly proper. Wells, 90 Ill. App. 3d at 321.
In the present case, the State argues, relying on Wells, that
even if removing defendant's tattoos does not directly relate to
defendant's offense, it "surely" relates to the rehabilitation of
defendant. The State further argues that permanently marking one s
body with a gang symbol can, within the language of section 5--
24(2)(s), clearly be considered both a direct and indirect
indication of alliance to a gang. Accordingly, the State concludes
that the tattoo removal condition was properly imposed under the
Act.
We find that even a liberal interpretation of section 5--
24(2)(s) does not provide direct authority for the trial court to
mandate such an intrusive measure as ordering tattoo removal. In
construing a statute, this court must ascertain and effectuate the
legislature s intent by looking first to the statutory language
itself. If the language is clear, the court must give it effect
and should not look to extrinsic aids for construction. Ferrell,
277 Ill. App. 3d at 77. Contrary to the State s argument that Dunn
is inapposite to the case at bar because the condition in the
court's order here was specifically provided for in section 5--
24(2)(s) of the Act, a plain reading of the section clearly
indicates that it authorizes restraining a minor from having direct
or indirect contact with certain types of persons, and does not
provide for the specific condition of tattoo removal. We therefore
hold that the Act by its own terms does not directly or indirectly
provide for tattoo removal.
Because tattoo removal was not expressly provided for as a
condition of probation in the Act, we next determine whether the
condition was reasonable. In Ferrell, where the defendant was
found guilty of aggravated battery of her child and ordered not to
engage in acts which were reasonably likely to cause her to become
pregnant and to submit to blood testing every two months for the
purpose of pregnancy detection as conditions of her probation, the
court considered whether the conditions were reasonable and
sufficiently related to the underlying crime. In the present case,
even though the trial court may have found that some connection
existed between the condition of tattoo removal and the underlying
crime because defendant was with members of his gang when he
committed the crime, or that there was a connection between
defendant s commission of the crime and his gang attitude," the
resulting condition must nonetheless be reasonable when taking into
account the individual defendant. While the record reflects that
defendant was heavily involved in and proud of his gang, it also
reflects that defendant had other interests and talents, such as
drawing, and that defendant had been complying with his curfew
order and "getting along" with his mother. Under these
circumstances, a probation condition for a delinquency charge of
criminal trespass to a vehicle ordering tattoo removal for this
defendant was clearly an unreasonable, impermissible and completely
unrelated imposition when viewed in light of the purpose of the Act
to secure "care and guidance" that will serve the "emotional,
mental, and physical welfare of the minor." 705 ILCS 405/1--2
(West 1992). It is difficult to imagine how tattoo removal would
relate to rehabilitation of defendant as, for example, the
condition of holding a job or actively seeking employment did in
Wells.
This court has, in cases not cited by either defendant or the
State, considered the issue of whether a trial court exceeded the
scope of its authority when imposing conditions of probation, and
has determined that the conditions in those cases were
unreasonable. See e.g., People v. Meyer, 176 Ill. 2d 372, 680 N.E.2d 315 (1997) (the court held that posting large signs at all
entrances to the defendant's family farm reading, "Warning! A
violent felon lives here. Enter at your own risk!" was not a
reasonable condition of probation for the defendant who was found
guilty of aggravated battery because the sign, which contained a
strong element of public humiliation, may actually hamper its
intended goal of rehabilitation and cause problems of greater
magnitude), and People v. Johnson, 174 Ill. App. 3d 812, 528 N.E.2d 1360 (1988) (the court held that in ordering the defendant to make
an advertised apology for the offense of driving under the
influence, the trial court exceeded the intent of the statute, and
warned that trial courts should not impose unconventional
conditions of probation which may have unknown consequences, even
when the overall intent of the trial court appears to aid the
defendant in rehabilitation and avoiding future violations).
On the other hand, we recognize that this court held in Stocke
that presenting a speech to driver's education students on the
effects of driving too fast for conditions was a reasonable
probation condition for the 18-year-old defendant found guilty of
that offense. Stocke, 212 Ill. App. 3d at 555. The Stocke court
determined that the record reflected that the trial court carefully
considered the defendant's ability to perform the condition, and
that the condition was related to the offense.
In the present case, unlike the record on appeal in Stocke
which adequately reflected that the trial court carefully
considered the defendant's ability to perform the condition, the
record on appeal here is entirely devoid of information regarding
the exact medical procedure that defendant would have to undergo to
remove his tattoos. The record contains no evidence as to the
pain, if any, involved in the tattoo removal procedure and the
monetary costs of such a procedure. We observe, however, that
courts in other jurisdictions have had the occasion to examine the
consequences of tattoo removal. See e.g., People v. Page, 104 Cal. App. 3d 569, 163 Cal. Rptr. 839 (1980) (expert testimony
established that tattoos were "permanent" and that an attempt to
remove them would "leave permanent scarring for life"); Williams v.
Fields, 570 So. 2d 20 (1990) (expert testimony established that
there is a possibility of scar formation after tattoo removal); and
Stephenson v. Davenport Community School District, 110 F.3d 1303
(8th Cir. 1997) (the record contained evidence that laser treatment
for the removal of a tattoo, at a cost of approximately $500,
requires burning through four layers of skin followed by two months
of treatments where the skin is scraped with a razor blade to
prevent bleeding of the tattoo). In light of the above authority,
we note that forcing defendant here to remove his tattoos may
actually hamper the intended rehabilitative goal of the court
because it may be considered a humiliating, not to mention painful,
procedure for this young defendant.
Furthermore, we find that the State's argument, that imposing
a condition that would comply with the direct language of section
5--24(2)(s) which would require that defendant refrain from contact
with gang members may be difficult because defendant was living in
an area populated heavily by gangs, is without merit. The Act
contains no provision stating that its express conditions can only
be imposed when it would not be "difficult" to impose such
conditions. It is undoubtedly difficult to enforce the condition
provided in section 5--24(2)(s) in any given situation where it is
ordered. Furthermore, we are not persuaded that the facts in this
case offer a uniquely "difficult" situation in which enforcement of
the condition would be exceptionally difficult. We therefore hold
that the condition in this case was not a reasonable condition of
probation within the scope of the Act. While the trial court is
afforded a great deal of discretion in issuing conditions of
probation, ordering tattoo removal was not a reasonable measure of
rehabilitation for defendant in the present case, and was therefore
an abuse of that discretion.
The State also maintains that defendant's argument, that the
order was "intrusive," is without merit because the Act allows for
several intrusive procedures as conditions for probation, one of
which is section 5--24(2)(u), providing that a court may order a
minor to provide samples of his or her blood or urine for tests to
determine the presence of an illicit drug. 705 ILCS 405/5--
24(2)(u) (West 1992). A court also may order a minor found
delinquent of a sexual offense to undergo medical testing which may
include an analysis of bodily fluids and an examination of the
minor's person. 705 ILCS 405/5--23(9) (West 1992). The State
further argues that reviewing courts have also approved of several
"intrusive" conditions of probation which were not specifically
provided for by statute, i.e., People v. Ferrell, 277 Ill. App. 3d
74, 659 N.E.2d 992 (1995) (the court upheld the condition that the
defendant submit to blood testing every two months for the purpose
of detecting pregnancy after the defendant was convicted of
aggravated battery of her child), and People v. McDonald, 52 Ill.
App. 2d 298, 202 N.E.2d 100 (1964) (the court upheld mental
institutionalization as a proper condition of probation for
rehabilitative purposes after the defendant was found guilty of
aggravated battery and expert testimony established that he was a
dangerous individual capable of homicide). None of these cases,
however, even those upholding mandatory laboratory blood and urine
samples, imposed conditions as directly intrusive to the human body
as the removal of a permanent tattoo. Even though the overall
intent of the trial court here in ordering the condition was to
positively dissuade defendant from associating with gangs, we find,
as did the Johnson court, that mandating such an unconventional
condition may give rise to unknown consequences.
We also find the State's argument, that the condition of
tattoo removal in the present case was reasonable because Illinois
courts have even approved of the restriction of several different
constitutional protections as conditions to probation, is
unpersuasive under the facts of this case. In support of its
argument, the State cites to People v. Eiland, 217 Ill. App. 3d
250, 576 N.E.2d 1185 (1991), where the court upheld the probation
condition that the defendant submit to searches of his "person,
residence, papers, automobile and/or effects" at any time the
probation officer requested. After the defendant was arrested for
possession of ammunition and illegal drugs revealed in a search
pursuant to the condition, the court held that the condition was a
justified departure from the fourth amendment requirements of a
warrant or probable cause. Eiland, 217 Ill. App. 3d at 257.
Likewise, the State notes that our supreme court in People v.
Adams, 149 Ill. 2d 331, 597 N.E.2d 574 (1992), upheld the probation
condition requiring submission to an HIV test by the defendants
convicted of prostitution as not violative of their right to equal
protection of the laws, and not an invalid search and seizure.
Adams, 149 Ill. 2d at 352-54. The court's determination was based
on its weighing of the "important governmental interest" in
protecting the public from a disease with no known cure against the
minimal intrusion of submitting the defendants to a "minor, routine
laboratory procedure" that "poses no threat to the health or safety
of the individual tested." Adams, 149 Ill. 2d at 344-47. The court
also noted in its holding that "offenders necessarily have reduced
expectations of personal privacy." Adams, 149 Ill. 2d at 348. See
also, People v. Hazelwonder, 138 Ill. App. 3d 213, 485 N.E.2d 1211
(1985) (the court upheld a probation condition that prohibited the
defendant from having any visitation with his minor child after the
defendant was convicted of violating an order of protection for his
former wife), and People v. Pickens, 186 Ill. App. 3d 456, 542 N.E.2d 1253 (1989) (the court held that a defendant's right to
travel can be removed or restricted as a condition of probation).
We first note that none of the cases cited by the State in
support of the above argument dealt specifically with the
disposition of a minor in contravention with the Act. As held by
the court in In re J.C., delinquency dispositions are to be handled
as protective rather than punitive in nature. Because the cases
cited by the State were analyzed under the Unified Code of
Corrections or other criminal statues besides the Act, they dealt
with a different standard of reasonableness than does the case at
bar. See In re J.G., No. 97--3480 (March 18, 1998). Moreover, the
cases cited by the State can be distinguished on their facts.
Probation conditions such as ordering a defendant to submit to
routine laboratory blood testing during probation after she was
found guilty of aggravated battery of a child (Ferrell) or
prostitution (Adams), or ordering placement of a defendant in a
mental hospital for rehabilitative purposes (McDonald), are hardly
as intrusive as ordering a minor defendant found delinquent of
criminal trespass to a vehicle to permanently remove tattoos. Such
a condition not only directly interferes with personal bodily
appearance, as the impermissible hair cutting condition did in
Dunn, but it also is of such a permanent nature that it will affect
defendant far beyond his probation period of one year.
Defendant next argues that the order is unconstitutional
because it is vague, overbroad and prohibitive of his rights to
engage in "symbolic speech." Specifically, defendant argues that
the order is vague because it does not indicate which, if any,
tattoos should be removed. Defendant argues that the trial court
neither established what type of tattoos would qualify as gang
related tattoos nor did the court ever indicate that defendant s
tattoos, if there were any, had any connection to the criminal
trespass to a vehicle charge for which defendant was found
delinquent. In asserting his "unconstitutionality" argument,
defendant relies on City of Harvard v. Gaut, 277 Ill. App. 3d 1,
660 N.E.2d 259 (1996), where the reviewing court invalidated a city
ordinance which prohibited the wearing of gang colors, emblems or
other insignia, after determining that the conduct prohibited in
the ordinance included a wide and undefined range of clothing and
jewelry that is not necessarily gang related. Gaut, 277 Ill. App.
3d at 4. In Gaut, the defendant was arrested and prosecuted for
wearing a six pointed star, which was believed to be a gang symbol.
Defendant argues that because the Gaut opinion "exemplifies that
gang colors or symbols could be almost anything, [it] shows that
[the order] directed against [him] is vague and overbroad as well."
First, while defendant argued in his motion to modify the
trial court's May 22, 1996, order that the only tattoo he had was
an "M" on his leg, the findings of the social investigation prove
otherwise. Because the probation officer stated that defendant had
two specifically located, gang related tattoos, defendant's
argument that the order was vague because it did not indicate which
tattoos should be removed is without merit. Moreover, other than
these two gang related tattoos and the alleged "M" tattoo on
defendant's leg, the record contains no further evidence of other
tattoos. Second, defendant's conclusory assertion that the Gaut
holding "shows" that the order in this case is unconstitutional,
vague and overbroad is unsupported by reasoned argument. When an
appellant seeks reversal, theories which are not pursued nor
advanced with citation to relevant authority are deemed waived.
People v. Wendt, 163 Ill. 2d 346, 356, 645 N.E.2d 1794 (1994).
Moreover, because there is sufficient evidence in the record that
the order was not reasonable under the standards set forth in the
Act, this court need not specifically address the constitutional
issues that defendant merely references in his brief.
Lastly, we note that in People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596 (1997), cited as additional authority by
the State, the California Supreme Court rejected the defendants'
argument that gang affiliations are protected by the first
amendment guarantee to the right of "social association." The
State in this case argues that, like the defendants in Acuna,
defendant's gang tattoos are not protected by the first amendment.
Our supreme court, however, has recently reached a different result
on the related issue of whether restricting the general activities
of street gang members violates substantive due process. In City
of Chicago v. Morales, 177 Ill. 2d 440, 687 N.E.2d 53 (1997), the
court held that a city "gang loitering" ordinance was violative of
substantive due process because persons suspected of being involved
in street gangs under the terms of the ordinance were deprived of
their right to freely walk the streets and associate with friends.
Morales, 177 Ill. 2d at 460-61.
This court does not find substantial merit in the State's
reliance on Acuna, a California case having no precedential effect
on this court. The issue in this case is the reasonableness of a
condition of probation, which is reviewed under a different
standard than the preliminary injunction at issue in Acuna.
Moreover, in light of Morales, the State's reliance on the
reasoning in Acuna as supportive of the reasonableness of the
condition imposed in this case is inapposite. Although the Morales
court did not specifically rule on the first amendment issues
raised by the defendants in that case, the language and reasoning
of the holding indicates that our courts are willing to afford
persons "suspected" of criminal gang activity, at the very least,
the "personal liberty" of walking the streets and associating with
friends.
For the reasons stated, we reverse the trial court's August
14, 1996, order and remand this cause for further proceedings
consistent with this order.
Reversed and remanded.
McNAMARA and WOLFSON, JJ., concur.
June 30, 1998
No. 1--96--3307
IN THE INTEREST OF M.P., a minor. ) Appeal from the
) Circuit Court of
(THE PEOPLE OF THE STATE OF ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
)
v. )
)
M.P., a minor, ) Honorable
) Christopher J.
Defendant-Appellant). ) Donnelly,
) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Following a bench trial, the circuit court found defendant
M.P., a minor, delinquent based upon the charge of criminal
trespass to a vehicle. The trial court sentenced defendant to one
year probation and 100 hours of community service, and ordered, as
conditions of his probation, a TASC referral, Gang Intervention
Program, mandatory schooling, a 7 p.m. curfew and defendant's
"removal of his tatoos" pursuant to the Juvenile Court Act (705
ILCS 405/5 (West 1992)). On appeal, defendant contends that the
trial court abused its discretion in ordering that, as one of the
conditions of his probation, he remove tattoos on his arms which
symbolized an alliance to a street gang. For the reasons set forth
below, we reverse and remand.
On February 12, 1996, defendant, who was 16 years old, was
stopped by Officer McDermott of the Chicago Police Department after
he allegedly committed a traffic violation while operating a motor
vehicle. When Officer McDermott ran the vehicle identification
number, he discovered that the vehicle had been reported stolen.
McDermott arrested defendant and brought him to the 14th District
police station where defendant told McDermott that he rented the
car from a person named "Fresh" for $70. Defendant was charged
with possession of a stolen vehicle and criminal trespass to a
vehicle. After a bench trial, the trial court found defendant
delinquent based on criminal trespass to a vehicle. Defendant
orally objected to the condition of the tattoo removal.
Prior to defendant's sentencing hearing, defendant s probation
officer presented the court with a social investigation report
regarding defendant. The report revealed that defendant had been
a member of the Imperial Gangsters street gang for approximately
five years. Defendant was very proud of his gang, within which he
was considered the enforcer." In fact, defendant was with his
gang friends when he was arrested. The probation officer
specifically noted that defendant had two tattoos, a pink panther
with a crown on one upper arm and a bulldog with a crown on the
other upper arm, which the officer described as "gang related."
The probation officer felt that, considering defendant s heavy
gang involvement, defendant probably had some idea that renting
a car for $70 was not legitimate. The report also disclosed that,
as a result of his gang involvement, defendant was shot in the leg
in December 1995.
The report further stated that defendant attended school past
the 9th grade until he was kicked out for gang fighting. While in
school, defendant was enrolled in special education and behavioral
disorder classes. Defendant stated that he liked school; however,
he had numerous problems with teachers and other gangs in school.
The probation officer believed that defendant had a lack of
enthusiasm and interest in school, but noted that defendant
appeared to be extremely talented in pursuing his interest in
drawing. The report also stated that defendant told the probation
officer that he had a good relationship with his mother and her
boyfriend, with whom defendant was currently living, and that he
often took care of various chores in the home. However, the
probation officer noted that there appeared to be heavy gang
activity throughout the neighborhood where defendant then resided.
Defendant s mother reported that defendant had been complying with
the 7 p.m. curfew imposed on him by the trial court at the
inception of this case.
At defendant's sentencing hearing, the following colloquy
occurred:
"THE COURT: What's one reason why you're
here?
THE RESPONDENT: For the auto theft.
THE COURT: Well, that's the case, but
what brings you here?
THE RESPONDENT: (No audible response.)
THE COURT: You don't even know, do you?
THE RESPONDENT: (No audible response.)
THE COURT: It's the gangs, right?
THE RESPONDENT: Yes, sir.
THE COURT: Right. And you're rather
proud to be an Imperial Gangster, right?
THE RESPONDENT: (No audible response.)
THE COURT: See, you can't even answer it
because you are, and the gangs are going to
get you where?
THE RESPONDENT: Nowhere.
THE COURT: Oh, yes. This is going to be
an absolute, complete waste of breath because
you're so enraptured with the gangs. If you
think it's just, great, well, when you are
staring at some judge facing a murder charge
or you're facing big time, then you make sure
that you thank each and every gang member or
when you get drilled with a bullet right in
the head because you're an Imperial Gangster,
then you can thank all your gang members with
your last dying breath, okay?"
On June 13, 1996, defendant filed a motion to modify the May
22, 1996, probation order, arguing that on information and belief,
the only tattoo the minor has is an M on his leg which stands for
Miguel, and that, because the Act does not authorize removal of a
minor respondent s tattoos, the trial court should amend its May 22
order to exclude tattoo removal as a condition of defendant's
probation. At a hearing on defendant s motion on August 14, 1996,
defendant argued that the condition of tattoo removal was an
intrusive and punitive procedure not warranted under the Act for a
Class A misdemeanor of criminal trespass to a vehicle. The trial
court ruled that if defendant s tattoos were in fact gang related,
then it had authority to order defendant to remove them, and, on
the same day, the court entered an order modifying its May 22 order
in that the minor shall only have any gang related tattoos
removed. This appeal followed.
Defendant contends that the trial court s August 14, 1996,
modified order (order), requiring that defendant remove any gang
related tattoos, was an intrusive and illegal condition of
probation not prescribed by the Act. Defendant first argues that
because the removal of his tattoos did not have a nexus to the
offense for which he was found guilty, it was error for the court
to impose this condition.
The State contends that the condition was within the
permissible scope of the Act because the Act allows for several
intrusive procedures as conditions for probation. The State also
argues that the condition was reasonable and within the discretion
of the trial court because the court found a connection between
defendant's delinquency and his gang involvement, and "the court
was attempting to do everything in its power to give this minor an
opportunity to be something more than a lifelong gangmember and
criminal."
The purpose and policy of the Act "is to secure for each minor
*** such care and guidance, *** as will serve the moral, emotional,
mental, and physical welfare of the minor and the best interests of
the community." In proceedings under the Act, "the court may ***
gather information bearing upon the current condition and future
welfare of persons subject to" the Act. 705 ILCS 405/1--2 (West
1992). Section 5--23 of the Act sets forth various alternatives
that are available to the trial court as to the disposition of a
minor found delinquent under the Act, including probation and
conditional discharge. 705 ILCS 405/5--23(1)(a)(1) (West 1992).
When determining the appropriate disposition for a minor, the trial
court may choose as it sees fit, among the various alternatives
provided for in the Act; however, delinquency proceedings should be
considered protective rather than punitive in nature. In re J.C.,
260 Ill. App. 3d 872, 884, 632 N.E.2d 127 (1994). The disposition
of a minor rests within the sound discretion of the trial court.
In re J.C., 260 Ill. App. 3d at 884. The trial court need not
defer to any particular disposition under section 5--23, and its
decision will not be reversed absent an abuse of discretion. In re
T.L.B., 184 Ill. App. 3d 213, 215, 539 N.E.2d 1340 (1989).
In determining whether a trial court's imposition of a
probation condition was proper, a reviewing court considers whether
the probation condition (whether explicitly statutory or not) is
reasonable if the trial court believes the condition would be a
good idea and the record contains no indication that the court's
imposition of the condition is clearly unreasonable. People v.
Ferrell, 277 Ill. App. 3d 74, 79, 659 N.E.2d 992 (1995). The trial
court is normally the proper forum in which to determine a suitable
sentence. The decision of the trial court in that regard is
entitled to great weight and deference, and may not be altered on
review absent an abuse of that discretion. People v. Perruquet, 68 Ill. 2d 149, 153-54, 368 N.E.2d 882 (1977).
The Act provides that the court may, as a condition of
probation, require 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 dealers or users." (Emphasis added.) 705
ILCS 405/5--24(2)(s)(West 1992). This court has held that, in
adult probation cases, the trial court may impose a probation
condition not expressly authorized by statute as long as such a
condition (1) is reasonable, and (2) some connection exists between
the condition and either (a) the underlying crime or (b) the
behavior or attitude of the defendant that the trial court thinks
needs adjusting. Ferrell, 277 Ill. App. 3d at 79. This court also
has recently held that "any condition of juvenile probation must be
reasonably related to the juvenile's rehabilitation" (In re J.G.,
No. 97--3480, slip op. at 6 (March 19, 1998)), and in assessing the
reasonableness of the condition, the court should take into account
the individual defendant (People v. Stocke, 212 Ill. App. 3d 547,
554, 571 N.E.2d 192 (1991)).
Defendant relies on People v. Dunn, 43 Ill. App. 3d 94, 356 N.E.2d 1137 (1976), in support of his argument that (1) there is no
authority in the Act which allows for tattoo removal as a condition
of probation, and (2) no possible connection can exist between any
gang related tattoos defendant may have and the offense of criminal
trespass to a vehicle. The State contends that defendant's
reliance on Dunn is misplaced because, in the present case, not
only is the condition of probation provided for in the Act, but the
trial court also found a direct connection between defendant's gang
membership and his delinquency. The State also argues that
"probation for a minor is viewed differently than it is for an
adult," in that its focus is rehabilitative rather than punitive,
and that removing tattoos symbolizing allegiance to a gang clearly
is within the stated purpose of the Act. The State maintains that
because the placement of a permanent mark on the body symbolizing
a street gang can "clearly" be considered both a direct and an
indirect indication of alliance to the gang, the tattoo removal
condition was a necessary step in preventing the gang's influence
over defendant. The State further argues that, although the trial
court never indicated that defendant's tattoos had any connection
to the crime, the court's comments to defendant regarding his gang
membership indicate that the court "clearly felt that [defendant's]
gang involvement was directly related to his delinquency," and that
minimizing such involvement would be "a good idea." The State
relies on People v. Wells, 90 Ill. App. 3d 320, 413 N.E.2d 218
(1980), in support of its argument that the trial court may impose
conditions of probation which do not have any relationship to an
underlying offense.
In Dunn, the court held that the trial court erred in imposing
the probation condition that the defendant get a haircut after the
defendant was found guilty of failure to signal in violation of the
Illinois Vehicle Code. Dunn, 43 Ill. App. 3d at 95. The Dunn
court found that none of the conditions of probation in the
applicable Unified Code of Corrections specifically provided for
regulation of the length of a person's hair or personal appearance;
however, the Code appeared to allow for imposition of conditions
not specifically listed as long as there was a connection between
the condition and the crime charged. Because there was no
connection between hair length and the offense of failure to
signal, the Dunn court held that imposing the condition concerning
the defendant's hair length was error. Dunn, 43 Ill. App. 3d at
96.
In Wells, the trial court ordered as a condition of the
defendant's probation after his burglary conviction that the
defendant work or actively seek employment for no less than six
hours a day. In affirming the trial court, the Wells court noted
that it could not determine how the condition imposed related to
the circumstances of the burglary offense because the record on
appeal did not contain a transcript of the hearing in which the
defendant pleaded guilty. Nonetheless, the Wells court held that
"since the condition may also relate to the rehabilitation of the
defendant," it was clearly proper. Wells, 90 Ill. App. 3d at 321.
In the present case, the State argues, relying on Wells, that
even if removing defendant's tattoos does not directly relate to
defendant's offense, it "surely" relates to the rehabilitation of
defendant. The State further argues that permanently marking one s
body with a gang symbol can, within the language of section 5--
24(2)(s), clearly be considered both a direct and indirect
indication of alliance to a gang. Accordingly, the State concludes
that the tattoo removal condition was properly imposed under the
Act.
We find that even a liberal interpretation of section 5--
24(2)(s) does not provide direct authority for the trial court to
mandate such an intrusive measure as ordering tattoo removal. In
construing a statute, this court must ascertain and effectuate the
legislature s intent by looking first to the statutory language
itself. If the language is clear, the court must give it effect
and should not look to extrinsic aids for construction. Ferrell,
277 Ill. App. 3d at 77. Contrary to the State s argument that Dunn
is inapposite to the case at bar because the condition in the
court's order here was specifically provided for in section 5--
24(2)(s) of the Act, a plain reading of the section clearly
indicates that it authorizes restraining a minor from having direct
or indirect contact with certain types of persons, and does not
provide for the specific condition of tattoo removal. We therefore
hold that the Act by its own terms does not directly or indirectly
provide for tattoo removal.
Because tattoo removal was not expressly provided for as a
condition of probation in the Act, we next determine whether the
condition was reasonable. In Ferrell, where the defendant was
found guilty of aggravated battery of her child and ordered not to
engage in acts which were reasonably likely to cause her to become
pregnant and to submit to blood testing every two months for the
purpose of pregnancy detection as conditions of her probation, the
court considered whether the conditions were reasonable and
sufficiently related to the underlying crime. In the present case,
even though the trial court may have found that some connection
existed between the condition of tattoo removal and the underlying
crime because defendant was with members of his gang when he
committed the crime, or that there was a connection between
defendant s commission of the crime and his gang attitude," the
resulting condition must nonetheless be reasonable when taking into
account the individual defendant. While the record reflects that
defendant was heavily involved in and proud of his gang, it also
reflects that defendant had other interests and talents, such as
drawing, and that defendant had been complying with his curfew
order and "getting along" with his mother. Under these
circumstances, a probation condition for a delinquency charge of
criminal trespass to a vehicle ordering tattoo removal for this
defendant was clearly an unreasonable, impermissible and completely
unrelated imposition when viewed in light of the purpose of the Act
to secure "care and guidance" that will serve the "emotional,
mental, and physical welfare of the minor." 705 ILCS 405/1--2
(West 1992). It is difficult to imagine how tattoo removal would
relate to rehabilitation of defendant as, for example, the
condition of holding a job or actively seeking employment did in
Wells.
This court has, in cases not cited by either defendant or the
State, considered the issue of whether a trial court exceeded the
scope of its authority when imposing conditions of probation, and
has determined that the conditions in those cases were
unreasonable. See e.g., People v. Meyer, 176 Ill. 2d 372, 680 N.E.2d 315 (1997) (the court held that posting large signs at all
entrances to the defendant's family farm reading, "Warning! A
violent felon lives here. Enter at your own risk!" was not a
reasonable condition of probation for the defendant who was found
guilty of aggravated battery because the sign, which contained a
strong element of public humiliation, may actually hamper its
intended goal of rehabilitation and cause problems of greater
magnitude), and People v. Johnson, 174 Ill. App. 3d 812, 528 N.E.2d 1360 (1988) (the court held that in ordering the defendant to make
an advertised apology for the offense of driving under the
influence, the trial court exceeded the intent of the statute, and
warned that trial courts should not impose unconventional
conditions of probation which may have unknown consequences, even
when the overall intent of the trial court appears to aid the
defendant in rehabilitation and avoiding future violations).
On the other hand, we recognize that this court held in Stocke
that presenting a speech to driver's education students on the
effects of driving too fast for conditions was a reasonable
probation condition for the 18-year-old defendant found guilty of
that offense. Stocke, 212 Ill. App. 3d at 555. The Stocke court
determined that the record reflected that the trial court carefully
considered the defendant's ability to perform the condition, and
that the condition was related to the offense.
In the present case, unlike the record on appeal in Stocke
which adequately reflected that the trial court carefully
considered the defendant's ability to perform the condition, the
record on appeal here is entirely devoid of information regarding
the exact medical procedure that defendant would have to undergo to
remove his tattoos. The record contains no evidence as to the
pain, if any, involved in the tattoo removal procedure and the
monetary costs of such a procedure. We observe, however, that
courts in other jurisdictions have had the occasion to examine the
consequences of tattoo removal. See e.g., People v. Page, 104 Cal. App. 3d 569, 163 Cal. Rptr. 839 (1980) (expert testimony
established that tattoos were "permanent" and that an attempt to
remove them would "leave permanent scarring for life"); Williams v.
Fields, 570 So. 2d 20 (1990) (expert testimony established that
there is a possibility of scar formation after tattoo removal); and
Stephenson v. Davenport Community School District, 110 F.3d 1303
(8th Cir. 1997) (the record contained evidence that laser treatment
for the removal of a tattoo, at a cost of approximately $500,
requires burning through four layers of skin followed by two months
of treatments where the skin is scraped with a razor blade to
prevent bleeding of the tattoo). In light of the above authority,
we note that forcing defendant here to remove his tattoos may
actually hamper the intended rehabilitative goal of the court
because it may be considered a humiliating, not to mention painful,
procedure for this young defendant.
Furthermore, we find that the State's argument, that imposing
a condition that would comply with the direct language of section
5--24(2)(s) which would require that defendant refrain from contact
with gang members may be difficult because defendant was living in
an area populated heavily by gangs, is without merit. The Act
contains no provision stating that its express conditions can only
be imposed when it would not be "difficult" to impose such
conditions. It is undoubtedly difficult to enforce the condition
provided in section 5--24(2)(s) in any given situation where it is
ordered. Furthermore, we are not persuaded that the facts in this
case offer a uniquely "difficult" situation in which enforcement of
the condition would be exceptionally difficult. We therefore hold
that the condition in this case was not a reasonable condition of
probation within the scope of the Act. While the trial court is
afforded a great deal of discretion in issuing conditions of
probation, ordering tattoo removal was not a reasonable measure of
rehabilitation for defendant in the present case, and was therefore
an abuse of that discretion.
The State also maintains that defendant's argument, that the
order was "intrusive," is without merit because the Act allows for
several intrusive procedures as conditions for probation, one of
which is section 5--24(2)(u), providing that a court may order a
minor to provide samples of his or her blood or urine for tests to
determine the presence of an illicit drug. 705 ILCS 405/5--
24(2)(u) (West 1992). A court also may order a minor found
delinquent of a sexual offense to undergo medical testing which may
include an analysis of bodily fluids and an examination of the
minor's person. 705 ILCS 405/5--23(9) (West 1992). The State
further argues that reviewing courts have also approved of several
"intrusive" conditions of probation which were not specifically
provided for by statute, i.e., People v. Ferrell, 277 Ill. App. 3d
74, 659 N.E.2d 992 (1995) (the court upheld the condition that the
defendant submit to blood testing every two months for the purpose
of detecting pregnancy after the defendant was convicted of
aggravated battery of her child), and People v. McDonald, 52 Ill.
App. 2d 298, 202 N.E.2d 100 (1964) (the court upheld mental
institutionalization as a proper condition of probation for
rehabilitative purposes after the defendant was found guilty of
aggravated battery and expert testimony established that he was a
dangerous individual capable of homicide). None of these cases,
however, even those upholding mandatory laboratory blood and urine
samples, imposed conditions as directly intrusive to the human body
as the removal of a permanent tattoo. Even though the overall
intent of the trial court here in ordering the condition was to
positively dissuade defendant from associating with gangs, we find,
as did the Johnson court, that mandating such an unconventional
condition may give rise to unknown consequences.
We also find the State's argument, that the condition of
tattoo removal in the present case was reasonable because Illinois
courts have even approved of the restriction of several different
constitutional protections as conditions to probation, is
unpersuasive under the facts of this case. In support of its
argument, the State cites to People v. Eiland, 217 Ill. App. 3d
250, 576 N.E.2d 1185 (1991), where the court upheld the probation
condition that the defendant submit to searches of his "person,
residence, papers, automobile and/or effects" at any time the
probation officer requested. After the defendant was arrested for
possession of ammunition and illegal drugs revealed in a search
pursuant to the condition, the court held that the condition was a
justified departure from the fourth amendment requirements of a
warrant or probable cause. Eiland, 217 Ill. App. 3d at 257.
Likewise, the State notes that our supreme court in People v.
Adams, 149 Ill. 2d 331, 597 N.E.2d 574 (1992), upheld the probation
condition requiring submission to an HIV test by the defendants
convicted of prostitution as not violative of their right to equal
protection of the laws, and not an invalid search and seizure.
Adams, 149 Ill. 2d at 352-54. The court's determination was based
on its weighing of the "important governmental interest" in
protecting the public from a disease with no known cure against the
minimal intrusion of submitting the defendants to a "minor, routine
laboratory procedure" that "poses no threat to the health or safety
of the individual tested." Adams, 149 Ill. 2d at 344-47. The court
also noted in its holding that "offenders necessarily have reduced
expectations of personal privacy." Adams, 149 Ill. 2d at 348. See
also, People v. Hazelwonder, 138 Ill. App. 3d 213, 485 N.E.2d 1211
(1985) (the court upheld a probation condition that prohibited the
defendant from having any visitation with his minor child after the
defendant was convicted of violating an order of protection for his
former wife), and People v. Pickens, 186 Ill. App. 3d 456, 542 N.E.2d 1253 (1989) (the court held that a defendant's right to
travel can be removed or restricted as a condition of probation).
We first note that none of the cases cited by the State in
support of the above argument dealt specifically with the
disposition of a minor in contravention with the Act. As held by
the court in In re J.C., delinquency dispositions are to be handled
as protective rather than punitive in nature. Because the cases
cited by the State were analyzed under the Unified Code of
Corrections or other criminal statues besides the Act, they dealt
with a different standard of reasonableness than does the case at
bar. See In re J.G., No. 97--3480 (March 18, 1998). Moreover, the
cases cited by the State can be distinguished on their facts.
Probation conditions such as ordering a defendant to submit to
routine laboratory blood testing during probation after she was
found guilty of aggravated battery of a child (Ferrell) or
prostitution (Adams), or ordering placement of a defendant in a
mental hospital for rehabilitative purposes (McDonald), are hardly
as intrusive as ordering a minor defendant found delinquent of
criminal trespass to a vehicle to permanently remove tattoos. Such
a condition not only directly interferes with personal bodily
appearance, as the impermissible hair cutting condition did in
Dunn, but it also is of such a permanent nature that it will affect
defendant far beyond his probation period of one year.
Defendant next argues that the order is unconstitutional
because it is vague, overbroad and prohibitive of his rights to
engage in "symbolic speech." Specifically, defendant argues that
the order is vague because it does not indicate which, if any,
tattoos should be removed. Defendant argues that the trial court
neither established what type of tattoos would qualify as gang
related tattoos nor did the court ever indicate that defendant s
tattoos, if there were any, had any connection to the criminal
trespass to a vehicle charge for which defendant was found
delinquent. In asserting his "unconstitutionality" argument,
defendant relies on City of Harvard v. Gaut, 277 Ill. App. 3d 1,
660 N.E.2d 259 (1996), where the reviewing court invalidated a city
ordinance which prohibited the wearing of gang colors, emblems or
other insignia, after determining that the conduct prohibited in
the ordinance included a wide and undefined range of clothing and
jewelry that is not necessarily gang related. Gaut, 277 Ill. App.
3d at 4. In Gaut, the defendant was arrested and prosecuted for
wearing a six pointed star, which was believed to be a gang symbol.
Defendant argues that because the Gaut opinion "exemplifies that
gang colors or symbols could be almost anything, [it] shows that
[the order] directed against [him] is vague and overbroad as well."
First, while defendant argued in his motion to modify the
trial court's May 22, 1996, order that the only tattoo he had was
an "M" on his leg, the findings of the social investigation prove
otherwise. Because the probation officer stated that defendant had
two specifically located, gang related tattoos, defendant's
argument that the order was vague because it did not indicate which
tattoos should be removed is without merit. Moreover, other than
these two gang related tattoos and the alleged "M" tattoo on
defendant's leg, the record contains no further evidence of other
tattoos. Second, defendant's conclusory assertion that the Gaut
holding "shows" that the order in this case is unconstitutional,
vague and overbroad is unsupported by reasoned argument. When an
appellant seeks reversal, theories which are not pursued nor
advanced with citation to relevant authority are deemed waived.
People v. Wendt, 163 Ill. 2d 346, 356, 645 N.E.2d 1794 (1994).
Moreover, because there is sufficient evidence in the record that
the order was not reasonable under the standards set forth in the
Act, this court need not specifically address the constitutional
issues that defendant merely references in his brief.
Lastly, we note that in People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596 (1997), cited as additional authority by
the State, the California Supreme Court rejected the defendants'
argument that gang affiliations are protected by the first
amendment guarantee to the right of "social association." The
State in this case argues that, like the defendants in Acuna,
defendant's gang tattoos are not protected by the first amendment.
Our supreme court, however, has recently reached a different result
on the related issue of whether restricting the general activities
of street gang members violates substantive due process. In City
of Chicago v. Morales, 177 Ill. 2d 440, 687 N.E.2d 53 (1997), the
court held that a city "gang loitering" ordinance was violative of
substantive due process because persons suspected of being involved
in street gangs under the terms of the ordinance were deprived of
their right to freely walk the streets and associate with friends.
Morales, 177 Ill. 2d at 460-61.
This court does not find substantial merit in the State's
reliance on Acuna, a California case having no precedential effect
on this court. The issue in this case is the reasonableness of a
condition of probation, which is reviewed under a different
standard than the preliminary injunction at issue in Acuna.
Moreover, in light of Morales, the State's reliance on the
reasoning in Acuna as supportive of the reasonableness of the
condition imposed in this case is inapposite. Although the Morales
court did not specifically rule on the first amendment issues
raised by the defendants in that case, the language and reasoning
of the holding indicates that our courts are willing to afford
persons "suspected" of criminal gang activity, at the very least,
the "personal liberty" of walking the streets and associating with
friends.
For the reasons stated, we reverse the trial court's August
14, 1996, order and remand this cause for further proceedings
consistent with this order.
Reversed and remanded.
McNAMARA and WOLFSON, JJ., concur.
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