In re Jawan S. , 428 Ill. Dec. 228 ( 2018 )

2018 IL App (1st) 172955
FIRST DISTRICT
FOURTH DIVISION
June 29, 2018
No. 1-17-2955
In re JAWAN S., a Minor ) Appeal from the
) Circuit Court of
(The People of The State of Illinois, ) Cook County.
)
Petitioner-Appellee, )
)
v. ) No. 17 JD 01262
)
Jawan S., ) Honorable
) Kristal Royce Rivers,
Respondent-Appellant). ) Judge Presiding.
PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justice McBride concurred in the judgment and opinion.
Justice Gordon specially concurred, with opinion.
OPINION
¶1 After a bench trial in juvenile court, 17-year-old minor-respondent, Jawan S., was found
guilty of aggravated unlawful use of a weapon (AUUW) and unlawful possession of a firearm
(UPF). Respondent was adjudicated delinquent and sentenced to two years of probation. As
conditions of his probation, the juvenile court required, among other things, that respondent
“shall refrain from all illegal gang, guns, [and] drug activity,” and that “none shall be displayed
on his social media.”
¶2 Respondent contends that the gang and social-media restrictions were an abuse of the
juvenile court’s sentencing discretion, and they unduly burden his first- and fifth-amendment
rights. These alleged errors are unpreserved, but respondent contends that they are reviewable as
first-prong or second-prong plain error, or alternatively, that his attorney was ineffective for
failing to object to either restriction. Lastly, respondent contends that section 5-715(2)(s) of the
Juvenile Court Act of 1987, which authorizes the juvenile court to prohibit a probationer from
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having “any contact, directly or indirectly, with *** members of street gangs,” is facially
unconstitutional because it is vague. See 705 ILCS 405/5-715(2)(s) (West 2016). For the reasons
that follow, we find no error at all and thus affirm respondent’s probation conditions.
¶3 I. BACKGROUND
¶4 Around 11:20 p.m. on July 1, 2017, Officer Zondranika Williams of the Chicago Police
Department heard several gunshots while on patrol near 87th and State Streets. From her vehicle,
she saw respondent about 40 feet away, running down the street. He had a large silver handgun
with an extended clip in his right hand. Officer Williams called for backup, turned into a gas
station where respondent was running, and tried to “cut him off” by pulling her vehicle in front
of him. Respondent dodged the squad car and ran behind the gas station’s convenience store. But
he had nowhere to go from there; as Officer Williams testified, there was no exit point behind the
building. When respondent emerged a few seconds later, he was no longer carrying the firearm.
Officer Williams and her partner left their vehicle, ordered respondent to the ground, and placed
him in custody.
¶5 Several officers, including Officer Zieman, soon arrived on the scene. Officer Williams
told them that respondent had a gun before, but not after, he ran behind the convenience-store
building. While searching the area behind the store, Officer Zieman saw a handgun on the roof of
the store and retrieved it. He testified that it was a stainless steel, .45-caliber semi-automatic with
a long, 16-round extended magazine. Officer Williams testified that it was the same gun
respondent was carrying when she saw him running down the street. Officer Williams later
processed respondent at the station, where she learned, based on his birthday, that he was too
young to have been issued a valid Firearm Owner’s Identification (FOID) card.
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¶6 The juvenile court found Officers Williams and Zieman credible, and thus found, based
on their testimony, that respondent “clearly had a gun that he was carrying” before throwing it on
the roof of the convenience store. The juvenile court entered findings of guilt on all charges.
¶7 Before continuing the case for sentencing, the judge told respondent that she was taking
him off of electronic monitoring (based on the positive report of his pretrial compliance) and
imposing an 8 p.m. curfew. Respondent told the judge that the curfew would prevent him from
working the late shift, which he often did, at his job. The judge made an exception to the curfew
to accommodate respondent’s work schedule.
¶8 Before sentencing, the juvenile probation department prepared a Social Investigation
Report. Among other things, the report detailed respondent’s history of foster care since he was
first removed from his mother’s custody at the age of 14. For a time, respondent was placed with
his aunt, but “conflict” with the other children in the house led the Department of Children and
Family Services (DCFS) to move him to his present foster home. Once he arrived, respondent
“began to miss school” (although he was on track for a timely graduation) and “spent time with
negative peers.” The report stated that, according to the Chicago Police Department, respondent
was “an alleged member of the Gangster Disciple Eight Tray Mob.” Respondent, for his part,
denied that he was gang-affiliated or that he spent time with any negative peers.
¶9 The report also detailed respondent’s own account of the offense, as he conveyed it to the
probation officer. Respondent said that he was at the McDonald’s on 87th and State Streets with
a friend when some “enemies from a past incident in the neighborhood,” who were driving by,
started shooting at him. Respondent ran. A few minutes later, he “found himself fighting with the
shooter and took a gun away from him.” Respondent ran to a nearby gas station and threw the
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gun, a .45-caliber silver handgun, on the roof. Gas-station employees pointed respondent out to
the police, and he was arrested after the officers found the gun.
¶ 10 After reviewing respondent’s social history, and discussing his current employment and
future career goals with him at some length, the juvenile court sentenced respondent to two
years’ probation, subject to various conditions, including mandatory school and keeping a job (or
in lieu of a job, community service). At the hearing, the judge instructed respondent as follows:
“Clear your social media of gangs, guns, and drugs. Stay away from gangs, guns, and
drugs. What I mean by clear your social media is make sure you’re not even pointing
your finger at the camera. I want nothing that looks like a gun.
You are too young to smoke cigarettes. I want nothing that looks like you’re smoking
anything. I don’t know if it’s a cigarette. I don’t know if it’s a blunt. Neither of those are
showing up on your social media anywhere.”
Counsel did not object to any of these conditions, and respondent acknowledged that he
understood them. On the written probation order, entered on a standard, preprinted form, the
judge checked the box for “no gang contact or activity” and wrote “unlawful activity or its
promotion” next to that condition.
¶ 11 Three weeks later, on November 22, 2017, the juvenile court recalled respondent’s case
to modify the conditions of his probation. Respondent’s attorney was present and, at counsel’s
request, the juvenile court waived respondent’s appearance. The judge then addressed
respondent’s probation conditions:
“[I]n light of the Appellate Court’s recent ruling, the Court’s original order restricting the
minor from gangs, guns, and—or all gangs, guns, and drug contact along with posting on
social media will be revoked. The minor is to stay away from illegal gang, gun and drug
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activity and not post anything that is obviously illegal on his websites or on any social
media.”
¶ 12 The juvenile court entered a contemporaneous written order stating as follows:
“Minor’s sentencing restricting gang, guns, & drugs & the prohibition of their display on
social media is hereby vacated. Minor shall refrain from all illegal gang, guns & drug
activity & none shall be displayed on his social media.”
Counsel did not object to the modified probation conditions. The juvenile court entered its order
nunc pro tunc to November 1, 2017, the date of respondent’s sentencing hearing. This appeal
followed.
¶ 13 II. ANALYSIS
¶ 14 A. Abuse of Discretion
¶ 15 First, respondent contends that the juvenile court abused its discretion in imposing any
gang restrictions at all, whether in person or on social media. Respondent offers only one reason
for this conclusion: There was no evidence that his offense was gang related, or even that he was
a member of any gang.
¶ 16 Delinquency proceedings seek to protect and rehabilitate, not to punish, minors. In re
D.S., 198 Ill. 2d 309, 328 (2001); In re R.H., 2017 IL App (1st) 171332, ¶ 15; see 705 ILCS
405/1-1 et seq. (West 2016). The juvenile court has wide discretion to impose conditions of
probation (whether expressly authorized by the juvenile-probation statute or not), as long as they
are consistent with these protective and rehabilitative aims. In re J.C., 260 Ill. App. 3d 872, 884
(1994). Like other aspects of sentencing, juvenile-probation conditions are thus reviewed for an
abuse of discretion (In re M.P., 297 Ill. App. 3d 972, 976 (1998)), which occurs when a ruling is
“arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by
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the trial court.” (Internal quotation marks omitted.) People v. Patrick, 233 Ill. 2d 62, 68 (2009).
Generally, a condition will not be deemed unreasonable if it has some connection either to the
specific crime committed, or to the “behavior or attitude,” more generally, that needs “adjusting”
if the probationer is to rehabilitate. See In re J.W., 204 Ill. 2d 50, 79 (2003); R.H., 2017 IL App
(1st) 171332, ¶ 17.
¶ 17 We disagree with respondent’s contention that the record does not support a finding of
any gang activity, either in the specific context of his offense, or in the context of his life more
generally. It is true, as respondent says, that the trial evidence did not reveal any gang activity—
for example, a display of gang signs by the shooter(s). Officer Williams did not see the shooting;
she only heard gunshots in the vicinity, and then saw defendant running down the street after the
shooting was already over. So the only account of the shooting available to the juvenile court at
the time of sentencing was respondent’s own. As he told the probation officer, his “enemies from
a past incident in the neighborhood” stumbled upon him while driving by a McDonald’s and
tried to kill him. If that was not a textbook example of rival gang violence, it surely seemed like
one, and we cannot imagine faulting the juvenile court for thinking (if in fact the court did—it
did not say one way or the other) that it probably was.
¶ 18 That inference was further supported by the Chicago Police Department’s claim that
respondent had been identified as an “alleged” member of the Eight Tray Mob faction of the
Gangster Disciples, as well as the case worker’s report that respondent had been spending time
with “negative peers.” Respondent denied any gang affiliation, but viewing that denial in light of
the record as a whole, the juvenile court had ample reason not to believe it.
¶ 19 And suppose for a moment that these appearances were deceiving. Maybe these armed
teenage “enemies” were not members of rival gangs or gang factions after all. That still would
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not lead us to say that the juvenile court abused its discretion in imposing gang restrictions as
conditions of respondent’s probation. Respondent was seen with a gun—loaded with an extended
magazine—immediately after facing down his “enemies” in a violent midnight confrontation on
the street. If gangs were not already a presence and a “problem” in his life, as he is at pains to
deny in his brief, the juvenile court had reason to worry that they might soon be, and that
respondent was moving all too quickly toward a gang orientation in his life.
¶ 20 The juvenile court, acting out of concern for respondent’s rehabilitation and his prospects
for a successful and productive life, could take steps to head these problems off at the pass. Thus,
given the conduct underlying this offense, it was not arbitrary or unreasonable for the juvenile
court to conclude that gangs were indeed a “problem”—if not an actual problem, then at the very
least a potentially imminent problem—that respondent urgently needed to overcome. In
fashioning probation conditions aimed at restricting his gang-related activity, both in person and
on social media, the juvenile court acted well within its discretion.
¶ 21 Neither of respondent’s cited cases convinces us otherwise. In M.P., 297 Ill. App. 3d at
979, the juvenile court abused its discretion in requiring the minor probationer to have his gang
tattoos removed. M.P. was “heavily involved in and proud of his gang,” and he was with fellow
gang members when he committed the offense. Id. So the problem with this probation condition
was not, as respondent contends here, that M.P.’s offense was not gang-related, or that M.P. was
not a gang member at all. Rather, requiring M.P. to remove his gang tattoos would not help—and
might even hinder—his rehabilitation, since the procedure would likely be painful and
humiliating, and had the potential for other unintended adverse consequences. Id. at 979-80. (The
legislature evidently disagreed with this assessment, as it later amended the juvenile-probation
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statute to expressly authorize the removal of gang tattoos as a probation condition. See 705 ILCS
405/5-715(2)(s-5) (West 2016). These concerns are not relevant here.
¶ 22 In People v. Dunn, 43 Ill. App. 3d 94, 95 (1976), the trial court sentenced the defendant
to two years of probation for the traffic offense of failure to signal. As a condition of his
probation, the court ordered Dunn to get a haircut and to maintain a “ ‘personal appearance’ ”
that met with his probation officer’s approval. Id. The court abused its discretion in imposing
these conditions, since a shorter hairdo and a more kempt appearance bore no reasonable relation
to the rehabilitative goal of making Dunn a safer and more law-abiding driver. Id. at 96.
¶ 23 We reject any suggestion that the juvenile court acted in a similarly arbitrary and
inexplicable manner here. Given the concerns, recounted above, about the actual or potential role
of gangs in respondent’s life, and the specific evidence that he was likely involved in a gang-
related shooting immediately before his arrest, the in-person and online gang restrictions were
directly related to the facts of the offense and the juvenile court’s specific concerns about the
potential obstacles to respondent’s rehabilitation. We find no abuse of discretion.
¶ 24 B. Constitutionality of Illegal-Gang-Activity Restriction
¶ 25 Next, respondent claims that the juvenile court ordered that he have no contact, of any
kind, with any member of any gang. This probation condition, he contends, is overly broad and
unconstitutional, since it unreasonably burdens his constitutionally protected liberty interests (his
“right[ ] to due process”) and his first-amendment right of free association. Respondent variously
casts the argument as a constitutional challenge to the specific condition imposed by the juvenile
court, and then as an as-applied challenge to subsection 2(s) of the juvenile-probation statute,
which authorizes the juvenile court to prohibit a probationer from having “any contact, directly
or indirectly, with *** members of street gangs.” 705 ILCS 405/5-715(2)(s) (West 2016). Either
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way, respondent argues that the no-gang-contact condition is unconstitutional for two highly
overlapping reasons: (1) it does not differentiate between lawful and unlawful contact with gang
members; and (2) it does not provide exceptions allowing respondent to have contact with family
members, classmates, coworkers, or others who might happen to be gang members, but whom
respondent will unavoidably encounter in the course of his legitimate daily activities.
¶ 26 A probation condition that burdens the exercise of fundamental constitutional rights (as
almost all of them do) must reasonably relate to the compelling state interest in reformation and
rehabilitation. J.W., 204 Ill. 2d at 78. To be reasonable in this sense, the condition must, among
other things, “narrowly focus on its rehabilitative goal.” R.H., 2017 IL App (1st) 171332, ¶ 22. A
condition is “overly broad,” and thus not “narrowly drawn,” if it burdens the probationer’s
exercise of his constitutional rights substantially more than is necessary to achieve that goal.
J.W., 204 Ill. 2d at 78; R.H., 2017 IL App (1st) 171332, ¶¶ 22-24. The constitutionality of a
probation condition, or of a statute, presents a question of law that we review de novo. In re
Omar F., 2017 IL App (1st) 171073, ¶ 56; In re Derrico G., 2014 IL 114463, ¶ 54.
¶ 27 There is a threshold problem with respondent’s arguments: They all take aim at an order
that the juvenile court vacated and supplanted. On the standard-form probation order entered at
respondent’s sentencing, the judge checked the box for “no gang contact or activity.” Shortly
after respondent’s sentencing, we held, in Omar F., 2017 IL App (1st) 171073, that the same
probation condition, imposed by the same judge, was unconstitutional. In response to Omar F.,
the judge recalled respondent’s case, vacated that probation condition in a written order, and
imposed a new condition in its place. The new condition was set forth in the written order as
follows: “Minor shall refrain from all illegal gang, guns & drug activity ***.” On the record,
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with respondent’s counsel present, the judge reiterated: “The minor is to stay away from illegal
gang, gun and drug activity ***.”
¶ 28 We do not review vacated orders. The proper subject of our review is the revised, no­
illegal-gang-activity condition that actually governs respondent’s conduct during his term of
probation. Yet respondent says nothing of substance about it. Instead, he argues that the vacated,
no-gang-contact condition is unconstitutional, for the same reasons we gave in Omar F. He then
asserts, with no further analysis, that the vacated and revised conditions are “nearly identical.”
They are not. The revised condition is significantly and obviously narrower than the vacated
condition. Indeed, it was meant to avoid precisely the objections that respondent presses. The
only question for us is whether the juvenile court succeeded in avoiding those objections in its
revised probation order. Our answer is yes.
¶ 29 In Omar F., 2017 IL App (1st) 171073, ¶ 63, the minor was required, as a condition of
his probation, to “stay away from” and have “no contact” with gangs. We did not invalidate gang
restrictions in general in Omar F., but we did find that the condition imposed in that case—the
same condition initially imposed on respondent but later vacated—was too broad and general,
and thus unreasonably burdened the minor’s constitutionally protected liberty interests. Id. That
“blanket” restriction on any contact with a gang member appeared to prohibit even “innocuous”
contact that the minor would be hard-pressed to avoid in a gang-infested neighborhood. Id.
¶¶ 63, 68. And it failed to make exceptions allowing the minor to have contact with gang
members that he would naturally have contact with for legitimate familial, educational, or
employment purposes. Id. ¶ 63. In particular, it prevented the minor from having any contact
with his own brother, a former gang member who had turned his life around and now served as a
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role model for the minor. Id. Respondent elaborates on these points in his challenges to the no­
gang-condition initially imposed here.
¶ 30 First, respondent contends that the no-gang-contact condition is unconstitutional because
it does not differentiate between lawful and unlawful contact with gang members. Taking this
condition “at face value,” respondent says, he could violate it simply by going somewhere where
gang members happen to be, and having even the slightest incidental and innocuous contact with
them.
¶ 31 Applied to the revised, no-illegal-gang-activity condition, this argument is a non-starter.
For one thing, this condition does not prohibit contact with anyone who is (even unbeknownst to
respondent) a gang member. It prohibits gang activity—or more precisely, illegal gang activity.
Innocent or incidental contact with a gang member, unrelated to the gang’s illegal activities, is
not within its scope.
¶ 32 Suppose, for example, respondent rides a CTA bus to work. On his way to the bus stop,
he walks past a gang member who acknowledges him and says hello. Respondent wants to steer
clear of gang members, as best he can, to comply with the terms of his probation. But snubbing
the gang member could be risky; it might be perceived as a slight and trigger a confrontation.
Respondent’s concern is that he could violate his probation simply by exchanging greetings—if
only for the innocent purpose of mollifying the gang member—and continuing on his way. On
the revised, no-illegal-gang-activity condition, respondent would not violate his probation, for
the obvious reason that he has not engaged in any illegal gang activity, or, for that matter, any
gang activity at all. Of course, the juvenile court will find a violation if he stops to talk to the
gang member about an upcoming drug deal, or a heist, or an ambush on a rival gang. But the
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revised condition does not prohibit the kinds of innocent, incidental contact that respondent is
likely to have with gang members during the course of his ordinary daily activities.
¶ 33 Second, respondent contends that the no-gang-contact condition is overly broad because
it does not carve out exceptions based on “relationship” or “social situations.” He says it thus
prohibits him from having any contact with family members, classmates, coworkers, or others
whom he has legitimate reasons (or even a day-to-day need) to contact, but who also happen to
be gang members. If this condition is strictly enforced, respondent could find himself “banished
from his home, school or workplace” even though he has done nothing wrong—a result that
would surely be counterproductive with respect to his rehabilitation.
¶ 34 Applied to the revised, no-illegal-gang-activity condition, this argument is also a non­
starter, and for much the same reasons as respondent’s first argument. If there are gang members
living at respondent’s foster home, for example, he will not violate his probation just by joining
them for dinner. That is contact, strictly speaking, but it is not gang activity, and it is certainly
not illegal. If respondent’s lab partner in biology class is a gang member, and they dissect a
worm together, respondent will not violate his probation. Their teenage conversation can wander
in the predictable ways—to sports, music, current events, or anything else that does not involve
the prospect of respondent joining in the gang’s illegal activities—without consequence. And
what goes for respondent’s classmates goes equally for his coworkers.
¶ 35 Respondent’s arguments have no force at all against the revised, no-illegal-gang-activity
condition to which he is subject. That condition easily avoids the overbreadth we found in Omar
F., which resulted from the use of the word “contact” without any limitation. In a gang-infested
neighborhood, that sweeping order would be, for all practical purposes, impossible to comply
with. And it would leave a probationer perpetually walking on eggshells. At any moment, he
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could violate his probation, just by doing what he was supposed to be doing while on
probation—attending school, holding down a job, staying home at night instead of taking to the
streets. See id. ¶ 68. That is why the condition needed to be narrowed: to allow the minor to go
about his life; to engage in positive, productive activities; and to interact in innocuous ways with
the people he will inevitably encounter while doing so.
¶ 36 To this end, there is more than one way the overly broad condition in Omar F. could have
been effectively narrowed. And within constitutional limits, the juvenile court should have wide
discretion to tailor gang-related conditions to individual cases; some may call for more restrictive
conditions, while others may call for less. Here, the juvenile court imposed a condition that could
hardly have been any less restrictive. Obviously, respondent was required to refrain from illegal
activity, gang-related or otherwise, with or without a court order, and whether or not he was on
probation. If we did not affirm this condition, it is hard to imagine what kind of gang restriction
could ever survive our scrutiny.
¶ 37 C. Subsection 2(s) of Juvenile Probation Statute
¶ 38 Next, respondent contends that subsection 2(s) of the juvenile-probation statute is facially
unconstitutional. Subsection 2(s) provides in part that the juvenile court may, as a condition of
probation, require the minor to “refrain from having any contact, directly or indirectly, with ***
members of street gangs.” 705 ILCS 405/5-715(2)(s) (West 2016). Respondent contends that this
statutory provision, “as written, is impossibly vague,” and thus violates due process.
¶ 39 A statute is vague, and thus violates due process, if the requirements it imposes are not
“set forth in terms definite enough to serve as a guide to those who must comply with it.” People
ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291 (2003). Thus, its terms must be clear enough that
“a person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so
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that he may act accordingly” (internal quotation marks omitted) (id.), without having to “guess at
its meaning” (internal quotation marks omitted) (Fagiano v. Police Board of the City of Chicago,
98 Ill. 2d 277, 282 (1983)). And its terms must be sufficiently definite to regulate the discretion
of the government officials charged with applying it, and thus to prevent arbitrary or
discriminatory enforcement. People v. Maness, 191 Ill. 2d 478, 484 (2000); City of Chicago v.
Morales, 177 Ill. 2d 440, 448 (1997), aff’d, 527 U.S. 41 (1999). Like a statute, a probation order
must clearly notify the probationer of what conduct is required of him and what conduct is
prohibited. People v. Taube, 299 Ill. App. 3d 715, 723 (1998).
¶ 40 The most glaring problem with this constitutional challenge should be obvious by now:
the trial court’s revised probation order was not based on this statutory provision, at least not to
the letter or even particularly close to it. The revised probation condition did not bar respondent
from any contact, directly or indirectly, with gang members. It ordered him to refrain from
illegal gang activity. There is some overlap, to be sure, between the order and the statute. But
there is also plenty of overlap between the court’s no-illegal-gang-activity condition and the
provision in the juvenile-probation statute allowing a court to require that a minor “not violate
any criminal statute of any jurisdiction” while on probation. 705 ILCS 405/5-715(2)(a) (West
2016). And there is also the catch-all provision of the statute, which permits the trial court to
impose “other conditions” in its discretion. Id. § 5-715(2)(u).
¶ 41 If anything, subsection 2(b)’s prohibition on violating any criminal statute is the most
analogous statutory provision to what the juvenile court did here. So even if it were true that
subsection 2(s)’s prohibition on “contact, directly or indirectly” with gang members were
facially invalid, the trial court still had ample statutory authority for the condition it imposed.
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¶ 42 In other words, respondent would not be entitled to relief even if his constitutional
challenge to subsection 2(s) prevailed. He cannot demonstrate that this statute caused him an
injury in fact. We thus seriously question whether respondent has standing to raise this challenge.
See Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988) (injury-in-fact
required to confer standing to challenge statute); People v. Greco, 204 Ill. 2d 400, 409 (2003)
(challenger “must have suffered or be in immediate danger of suffering a direct injury as a result
of enforcement of the challenged statute”).
¶ 43 But standing is not a prerequisite to subject matter jurisdiction; it is the State’s burden to
demonstrate lack of standing, and that argument may be forfeited if not timely raised. Lebron v.
Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252-53 (2010); People v. $1,124,905 U.S. Currency
& One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 330-31 (1997). The State had no opportunity
to raise lack of standing in the juvenile court, as respondent raised no challenge to either the
order or the authorizing statute below. But before this court, the State has not so much as
mentioned respondent’s lack of standing. That argument is forfeited.
¶ 44 Another preliminary problem here is that we do not see how a vagueness challenge may
lie against a permissive statute governing conditions of probation. Typically, as we have just
noted, a vagueness challenge claims that a statute is so uncertain in its terms that individuals
must guess at its meaning, and thus have no idea how to conform their conduct so that they “may
act accordingly.” (Internal quotation marks omitted.) Cryns, 203 Ill. 2d at 291. That makes sense
for a criminal statute—even an administrative rule with a sanction for noncompliance—which
directly prohibits or prescribes a certain act, because in our everyday lives, we must conduct
ourselves consistent with that prohibition or prescription, so it is crucial that we understand what,
exactly, it is.
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¶ 45 But a permissive statute concerning probation? It does not prohibit anything, in and of
itself. It does not mandate anything, either. It has no sanction for noncompliance. It is nothing
more than an authorizing statute. A juvenile-court judge is not required to impose this no-gang­
contact provision. Challenging a discretionary sentencing statute on vagueness grounds is thus
fitting a square peg into a round hole. See Beckles v. United States, 580 U.S. ___, 137 S. Ct. 886,
894-95 (2017) (federal sentencing guidelines are not subject to vagueness challenge, as they “do
not regulate the public by prohibiting any conduct or by establishing minimum and maximum
penalties for [any] crime” but, rather, simply provide guidelines for exercise of sentencing
court’s discretion (internal quotation marks omitted)); United States v. Wivell, 893 F.2d 156,
159-60 (1990) (federal sentencing guidelines “are simply not susceptible to a vagueness
challenge” because they “do not define illegal conduct: they are directives to judges for their
guidance in sentencing convicted criminals, not to citizens at large”).
¶ 46 The only time this statutory provision could possibly affect someone is if a juvenile court
chooses, in its discretion, to issue an order consistent with that provision. And even then, nothing
requires the trial court to follow that statutory provision to the letter, without modifying language
(this case being a perfect example). At that point, of course, juvenile respondents are not without
recourse—they are perfectly free to challenge the juvenile court’s order as an abuse of discretion
or as an infringement on their constitutional rights. The statutory provision, which merely gave
the juvenile court the option to impose this condition, would fall out of play at that point.
¶ 47 Simply stated, subsection 2(s) of the juvenile-probation statute does not prohibit
anything; it does not require respondent to guess at anything; nor does it regulate his behavior in
the least. It is not the proper subject of a vagueness challenge. See Beckles, 580 U.S. ___, 137 S.
Ct. at 894-95; Wivell, 893 F.2d at 159-60.
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¶ 48 But if we were to consider the merits of respondent’s claim, it would fail. A facial
challenge fails if we can conceive of any set of circumstances in which the statute could be
validly applied—including as applied to the very party before us. People v. Garvin, 219 Ill. 2d
104, 125 (2006) (if as-applied challenge fails, facial challenge necessarily fails); In re M.T., 221
Ill. 2d 517, 537 (2006) (“[S]o long as there exists a situation in which a statute could be validly
applied, a facial challenge must fail.” (Internal quotation marks omitted.)). Here, if we indulge in
the premise that the trial court applied subsection 2(s) of the juvenile-probation statute to
respondent, the condition the court imposed was not the least bit uncertain or vague.
¶ 49 Respondent has been ordered to refrain from “illegal gang activity.” Thus, the prohibited
“contact” with “members of street gangs” (705 ILCS 405/5-715(2)(s) (West 2016)) is not generic
contact—a “hello” in the hallway or working alongside a gang member at a part-time job—but
contact with gang members specifically linked to illegal endeavors, such as drug-dealing or theft
or acts of violence. We find it impossible to believe that respondent is left to guess at what
conduct is prohibited and what conduct is not. We reject the vagueness challenge.
¶ 50 D. Constitutionality of Social-Media Restriction
¶ 51 Lastly, respondent also challenges the social-media restriction included in his probation
conditions. Having required respondent to “refrain from all illegal gang, guns, [and] drug
activity,” the juvenile court further required that “none shall be displayed on his social media.”
Respondent now contends that this social-media restriction violates his first-amendment right to
freedom of expression.
¶ 52 The juvenile court restricted, to some degree at least, respondent’s social-media postings
on three topics—illegal gang, gun, and drug activity. The State does not contest that this is a
content-based restriction, since it regulates his speech based on “the topic discussed or the idea
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or message expressed.” See Reed v. Town of Gilbert, Arizona, 576 U.S. ___, 135 S. Ct. 2218,
2227 (2015). Generally, content-based restrictions are highly disfavored, subject to strict
scrutiny, and must be narrowly tailored to serve compelling state interests. Id. at ___, 135 S. Ct.
at 2226. But the need to supervise a probationer, foster his rehabilitation, and protect the public
permits a court to impose restrictions on his constitutionally protected freedoms that would not
be reasonable to impose on the public at large. United States v. Knights, 534 U.S. 112, 119
(2001); Griffin v. Wisconsin, 483 U.S. 868, 873-75 (1987). The constitutional standards that
apply to probationers, in other words, are not necessarily the same as those that apply to the
public at large; thus, probation conditions that restrict the exercise of constitutional rights are
considered “narrowly tailored” as long as they “reasonably relate” to the probationary goal of
rehabilitation. J.W., 204 Ill. 2d at 78; R.H., 2017 IL App (1st) 171332, ¶ 22. And in reviewing a
juvenile probation condition, we are mindful that minors, due to their special vulnerabilities, do
not enjoy the full measure of constitutional rights that adults do. Bellotti v. Baird, 443 U.S. 622,
633-34 (1979) (plurality opinion); R.H., 2017 IL App (1st) 171332, ¶ 20.
¶ 53 At the outset, it is important to be clear about the precise order under review. In its initial,
written sentencing order, the juvenile court did not expressly mention social media at all. But at
respondent’s sentencing hearing, the judge instructed him as follows:
“Clear your social media of gangs, guns, and drugs. Stay away from gangs, guns, and
drugs. What I mean by clear your social media is make sure you’re not even pointing
your finger at the camera. I want nothing that looks like a gun.
You are too young to smoke cigarettes. I want nothing that looks like you’re smoking
anything. I don’t know if it’s a cigarette. I don’t know if it’s a blunt. Neither of those are
showing up on your social media anywhere.”
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¶ 54 As we have explained, the juvenile court vacated its initial order, including its condition
(as the juvenile court later interpreted it) that respondent shall not “display” any “gangs, guns, or
drugs” on his social media. In its place, the juvenile court entered a new written order, requiring
that no “illegal gang, guns & drug activity *** shall be displayed on his social media.” Speaking
to counsel on the record, the juvenile court said that respondent may “not post anything that is
obviously illegal on his websites or on any social media.” It is the social-media restriction set
forth in the revised order that is subject to our review.
¶ 55 Respondent first contends that the social-media restriction was an unconstitutional “prior
restraint”—that is, a “ ‘predetermined judicial prohibition restraining specified expression.’ ”
In re A Minor, 127 Ill. 2d 247, 264 (1989) (quoting Chicago Council of Lawyers v. Bauer, 522
F.2d 242, 248 (7th Cir. 1975)). “In the context of a pending judicial proceeding,” he says, a
judicial order restraining speech is invalid unless it is necessary to avert a serious and imminent
threat of impeding harm that cannot adequately be addressed by other, less speech-restrictive
means. Id. at 265-66 (citing cases). Here, respondent argues that restricting his social-media use
was not necessary to avert any impending harm; the juvenile court could have effectively steered
him away from gang involvement just by requiring him to attend school, hold down a job, and
attend youth-outreach programs—while leaving his social-media access unfettered.
¶ 56 Respondent does not cite, and we have not found, any case holding that a probation
condition can ever qualify as a prior restraint on speech. “In the context of a pending judicial
proceeding,” as respondent says is the case here, a “prior restraint” ordinarily refers to a court
order (or statute) that limits the press’s freedom to publish information about the proceeding.
See, e.g., id. at 250-51, 265-66; Oklahoma Publishing Co. v. District Court in and for Oklahoma
County, Oklahoma, 430 U.S. 308, 308-09 (1977); Nebraska Press Ass’n v. Stuart, 427 U.S. 539,
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541 (1976). The doctrine also applies to statutory schemes that delegate an impermissibly broad
discretion to administrative officials to censor publications in advance of a judicial finding that
they are not constitutionally protected. See, e.g., Freedman v. Maryland, 380 U.S. 51, 52-60
(1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 59-64, 70 (1963) (collecting cases).
¶ 57 Respondent does not even try to explain how the animating concerns of the prior-restraint
doctrine, as it applies in these contexts, are present when the juvenile court sets the conditions on
which it will permit a delinquent minor to serve a term of probation in lieu of a term in juvenile
detention. Nor does he cite any authority holding that any probation condition—juvenile or adult,
speech-related or otherwise—ever bears the “heavy presumption” of unconstitutionality that
attaches to a prior restraint in the proper sense of the term. See, e.g., Sullivan, 372 U.S. at 70;
In re A Minor, 127 Ill. 2d at 265.
¶ 58 We will not afford that presumption here. Probationers are not publishers; their speech
cannot blithely be equated to the constitutional role of a free press in a democratic society. Of
course, probationers do not lose their first-amendment rights entirely upon conviction or
adjudication, but they can be censored more liberally than, say, a newspaper protecting the
public’s interest in open and transparent judicial proceedings, provided that the censorship
reasonably relates to the rehabilitative goals of the probation.
¶ 59 In his prior-restraint argument, respondent also seems to suggest that any social-media
restriction, regardless of its scope, would be presumptively invalid, because the juvenile court’s
rehabilitative goals could be reached by other means that do not restrict speech, such as requiring
respondent to stay in school, keep a job (both of which the juvenile court required), and attend
youth-outreach programs. We will not tie the juvenile court’s hands to this degree. Social-media
restrictions are not, in general, invalid, or even presumptively invalid. Among other reasons, they
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are indispensible, in today’s world, to the goal of rehabilitating a minor. There can be no dispute
that social media is a ubiquitous method of communication and interaction among adolescents
like respondent. Thus, “[i]f the juvenile court has any hope of steering [an adolescent] toward a
new direction and productive life,” given the central importance social media has assumed, “it
would be absurd to target only real-world behavior and ignore online activity.” R.H., 2017 IL
App (1st) 171332, ¶ 26. Subject to the attenuated constitutional standards we outlined above, the
juvenile court may continue to impose properly tailored restrictions on juvenile probationers’ use
of social media.
¶ 60 To this end, respondent argues that the social-media restriction was not narrowly tailored
toward the goal of his rehabilitation. Respondent says, for example, that it does not permit him to
appear in photos with gang members, even if the photos are “unrelated to gang activity.” And it
does not specify whether he must know that the people who appear in a photograph with him are
gang members. These objections fail for the same reason as respondent’s previous arguments:
they target the juvenile court’s initial order and are not responsive to the court’s efforts to narrow
that order in light of Omar F.
¶ 61 Indeed, all respondent says about the revised order is that the addition of the phrase
“illegal” changes nothing. Not so. An order that prohibits respondent from displaying illegal
gang activity on his social media does not thereby prohibit him from posting a photo of himself
with a relative, classmate, coworker, or anyone else who happens to be in a gang—as long as the
photo does not depict any illegal gang activity. And that is true whether or not respondent knows
that someone else in the photo is a gang member. What matters is what is happening in the
photo, not who else appears in it, or how much respondent knows about that person.
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¶ 62 Even if some social-media restrictions were justified by the juvenile court’s admittedly
compelling interest in keeping respondent away from street gangs and their negative influence,
respondent says that this interest would only license the juvenile court to restrict his future posts,
not to require him to remove any past posts that run afoul of the order. We agree that the revised
condition does require respondent to remove any past posts that display illegal gang, gun, or drug
activity. But we do not agree that this requirement is unreasonable. As the State rightly points
out, respondent’s continued public association with illegal activity—online or otherwise—poses
a clear threat to his prospects for rehabilitation and a successful, productive life. Among other
things, a lingering “criminal, digital footprint” may jeopardize his stated ambitions to attend
college and pursue a corporate position with his current employer in the restaurant industry. The
juvenile court was acting reasonably, and in respondent’s best interests, when it required him to
clear his social media of any posts that could stand in the way of the positive ambitions that the
court was trying to nurture.
¶ 63 Respondent also objects that the social-media order is a “blanket restraint” or total ban on
any social-media posts that make “reference” to, or are in any way “related to gangs, guns, [or]
drugs.” As a result, it restricts his core political speech and his right to engage in discussion of
various pressing social issues. For instance, he could not advocate against joining a gang, lament
the gun violence that plagues many Chicago neighborhoods, or take part in constructive debates
over the legalization of drugs or the opioid crisis—at least not on social media. Respondent thus
contends that the social-media order is not narrowly tailored and is unconstitutionally overbroad.
¶ 64 Respondent’s argument misconstrues the scope of the revised social-media restriction. It
does not, as he claims, ban all posts that are in any way “related to gangs, guns, [or] drugs.” It
bans posts that display any illegal gang, gun, or drug activity. The obvious intent of this order, as
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No. 1-17-2955
the judge’s explanations in open court made clear, was to prohibit respondent from posting any
images or depictions (whether still photos or videos) of the prohibited activities. It does not
prevent him from discussing these topics.
¶ 65 And even if the word “display,” adopted to the modern world of Facebook and other
social media, could be interpreted to mean anything posted on that site—including nothing but
the written word, without images—we would still find the order constitutional. Given the
juvenile court’s concerns with respondent, it does not strike us as unreasonable in the least to
want to keep respondent as far away from these topics as possible. He is not an ordinary citizen.
He is a delinquent minor who got a pass on juvenile detention in exchange for probation with
restrictions. And he either is, or may well be on the brink of becoming, ensnared in gang and gun
violence. This minimal curtailment of his first-amendment rights is reasonably related to his
rehabilitative needs, and well within the constitutional limits of the juvenile court’s authority.
¶ 66 In sum, respondent has not identified any way in which the juvenile court’s revised
social-media condition places an unreasonable burden on his first-amendment rights.
¶ 67 III. CONCLUSION
¶ 68 For the foregoing reasons, we affirm respondent’s conditions of probation.
¶ 69 Affirmed.
¶ 70 JUSTICE GORDON specially concurring in the judgment only:
¶ 71 I concur in the judgment only. Like the majority, I would affirm the trial court's
probation conditions ordering (1) that the juvenile "shall refrain from all illegal gang, guns, [and]
drug activity," and (2) that "none shall be displayed on his social media."
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No. 1-17-2955
¶ 72 However, the majority goes further and attempts to distinguish "activity" from "contact"
and, in dicta, generates random hypotheticals not found on our facts. Supra ¶ 32 ("Suppose, for
example, ***).
¶ 73 I also cannot agree with the majority's conclusion that, if a trial court imposed a no-
contact condition pursuant to the statute, then "[t]he statutory provision, which *** gave the
juvenile court the option to impose this condition, would fall out of play at that point." ¶ 46.
¶ 74 If a statute authorizes a condition, and the trial court acts pursuant to that statute and
imposes that condition, word for word, as the statute provided, then we cannot find an abuse of
discretion, unless the particular facts of the case did not warrant the imposition of that particular
condition. But if the statute authorizes a no-contact-with-gangs condition, and the facts show
gang activity, how can we then find that the trial court acted as no reasonable person would—
unless we find the statute itself unconstitutional? People v. Kladis, 2011 IL 110920, ¶ 42 ("an
abuse of discretion exists only where the decision of the trial court is fanciful, arbitrary, or
unreasonable to the degree that no reasonable person would take the view adopted by the trial
court").
¶ 75 A statute does not simply evaporate, after a trial court acts pursuant to it. It is just the
opposite. When a trial court acts pursuant to a statute, a reviewing court should look to the
statute first.
¶ 76 However, I do agree with the majority's finding that subsection 2(s), which authorizes a
trial court to impose a no-contact-with-gangs condition, is "not the proper subject of a vagueness
challenge." Supra ¶ 47.
¶ 77 For the foregoing reasons, I concur with the judgment only.
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