People v. K.M. (In re K.M.)

• Decision Date: 29 June 2018
• Docket Number: No. 1–17–2349,1–17–2349
• Citation: 2018 IL App (1st) 172349,117 N.E.3d 347,426 Ill.Dec. 930
• Parties: IN RE K.M., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. K.M., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 172349

117 N.E.3d 347

426 Ill.Dec. 930

IN RE K.M., a Minor

(The People of the State of Illinois, Petitioner–Appellee,

v.K.M., Respondent–Appellant).

No. 1–17–2349

Appellate Court of Illinois, First District, Fourth Division.

June 29, 2018

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 After a bench trial in juvenile court, 16–year–old minor-respondent, K.M., 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 ordered respondent, among other things, to have "no contact with gangs, guns, or drugs," to clear his social media of "anything that looks like gangs, guns, or drugs," and to disable the feature allowing others to "tag" him in a social-media post.

¶ 2 Respondent contends that the no-gang-contact and social-media probation conditions are overly broad and vague, and thus violate, respectively, his fifth-amendment liberty interests and first-amendment right of free expression. These alleged errors are unpreserved, but respondent contends that they are reviewable as second-prong plain error. For the reasons that follow, we vacate the no-gang-contact condition but affirm the social-media condition. We remand to the juvenile court for entry of a revised probation order.

¶ 3 I. BACKGROUND

¶ 4 The State charged respondent with various counts of AUUW and UPF, alleging that he was seen tossing a loaded Glock handgun into a gangway while fleeing from the police. Initially, respondent was held in the Juvenile Temporary Detention Center (JTDC), but the juvenile court released him on electronic monitoring three weeks after his arraignment. The judge ordered him not to leave his house without permission from his mother and the probation officer overseeing his electronic monitoring. A week later, the State moved to revoke his electronic monitoring. According to the probation officer's report, respondent had left his house without permission at least 16 times, often in the middle of the night, and was tracked (via his ankle bracelet) to a boarded-up house, a vacant lot, and other locations. Respondent denied that he ever left his house, but based on the probation officer's report, the judge found it "obvious[ ]" that he was "lying to her" and ordered him to return to custody at the JTDC.

¶ 5 Chicago police officer Ayala testified for the State at respondent's trial. At 9:50 p.m. on July 11, 2017, he responded to a call for backup near 79th and South Loomis Streets. He was accompanied by two other officers. As they pulled up to the scene, Officer Ayala saw three people run inside through the front door. Unsure of what was happening, Officer Ayala ran around to the back of the house, while his two partners went to the front to assist the sergeant who had called for backup. Officer Ayala saw respondent and two others jump out of a window and into the gangway. Respondent was holding a black object in his right hand. Officer Ayala heard a "clank" when respondent threw that object and it hit a fence. Respondent started running toward Officer Ayala, who was standing in a nearby alley, but stopped and ran in the opposite direction (toward 79th Street) when he saw the officer.

¶ 6 Officer Ayala walked over to the area in the gangway where respondent had tossed the object. He recovered a black .40–caliber Glock 22 firearm, loaded with 15 live rounds. The only other object on the ground near the gun was a flower pot, and there was nothing else, anywhere in the gangway, that looked like the object respondent had tossed.

¶ 7 A short time later, Officer Ayala identified respondent at the station as the person he had seen with the gun.

¶ 8 Respondent called Officer Whiting, who had arrived on the scene with Officer Ayala. Officer Whiting testified that he chased respondent after seeing him hop a fence and run toward 79th Street. But from his vantage point in front of the house, he could not see respondent toss the firearm in the gangway.

¶ 9 The juvenile court found the officers credible and attributed any potential inconsistencies in their testimony to their different vantage points. The juvenile court entered findings of guilt on one count each of AUUW and UPF.

¶ 10 Before sentencing, the juvenile probation department prepared a social investigation report. Among other things, the report stated that respondent lived with his mother, stepfather, and siblings in the Roseland community, on the far south side of Chicago, an area "known to be a high crime, gang, and drug related neighborhood." Before moving to Roseland, respondent lived in the Auburn–Gresham community, near 79th and South Laflin Streets—where he was arrested for this offense. He was arrested at or near that same intersection five times before (for criminal trespass, reckless conduct, and possession of replica firearms), but this was the first arrest that resulted in an adjudication of delinquency.

¶ 11 The Chicago Police Department claimed that respondent provides "street security" for the G-ville faction of the Gangster Disciples, based in Auburn–Gresham. Respondent denied any affiliation with the Gangster Disciples. Instead, as he admitted, he is a member of the Every Body Killer gang, which is also based in Auburn–Gresham. Respondent told the probation officer that he spends his free time in Auburn–Gresham because he does not know anybody in Roseland. He also said that he spends time near 63rd Street and King Drive, but he did not say whom he knows or what he does there. Respondent liked to smoke marijuana in his free time, but he denied any other drug or alcohol use. His mother described him as "not the most honest person," and said that he frequently violates his curfew, sometimes sneaking out of the house to spend the night in his old neighborhood in Auburn–Gresham without her permission.

¶ 12 Respondent was diagnosed with a learning disability. After falling behind academically at his neighborhood high school, he had recently transferred to an alternative school, where he was enrolled in special education classes. Respondent's mother attributed his academic difficulties to the time he spent hanging out with "negatively influencing peers." His academic performance improved at his new school, and his attendance and disciplinary records were positive. Although he had fallen behind in his academic credits, he said that he hoped to get back on track and graduate. For this reason, he expressed no interest in getting a job. In recent years, respondent's former interest in playing organized sports (basketball, in particular) had waned, and he was "uncertain" whether he wished to resume these activities.

¶ 13 Respondent maintained his innocence. He said that he went to a house party in his old neighborhood, went into the backyard, and heard someone scream that the police were coming down the alley. Everyone ran, including respondent, and he was the one who just happened to be caught. And since he was the one in custody, the police attributed the gun they found to him. But it was not his, and he did not know whose it was or where it came from.

¶ 14 After reviewing respondent's social history, the juvenile court sentenced him to 2 years on probation, subject to various conditions, including mandatory school, 20 hours of community service, a substance-abuse assessment, and participation in the SYNC mentoring program. The court also ordered respondent to stay away from the area of 79th and South Laflin Streets, unless he was accompanied by an adult.

¶ 15 In a written sentencing order, entered on a standard, preprinted form, the judge checked the box for "no gang contact or activity," and wrote in "clear social media" in the space provided for "other" probation conditions. A written probation order stated, "No contact with gangs, guns, drugs including social media."

¶ 16 At the dispositional hearing, the judge further instructed respondent as follows:

"No contact with gangs, guns, or drugs. Take a look at your social media when you go home. Make sure you remove anything on there that looks like gangs, guns, or drugs. So if you've got something on there that's just you pointing your finger, that's enough for me not to like it, and that's enough for you to violate your probation. If it's a friend, and you're on there on some social media—who's posted a picture of you or who's holding a gun or has something that looks like drugs, make sure they remove it.

You are under the age of 18. That includes smoking cigarettes or anything that you could have in your mouth that looks like a drug. Make sure you take off the ability to be tagged."

¶ 17 Respondent acknowledged that he understood how to disable the "tag" function on his social media, and the court reiterated that "from this day forward," respondent was "responsible" for "anything that shows up in [his] social media." Respondent did not have any questions about these conditions when the judge asked, and his attorney did not object to any of them. This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 A. In–Person No–Gang–Contact Condition

¶ 20 Respondent is an admitted gang member. For this reason, he does not dispute that the juvenile court could, as a general matter, impose "valid restrictions" on his contact with (other) gang members. We agree that the juvenile court has broad discretion to restrict a minor's gang contact or activity. Such restrictions are often a critical tool for "protecting a juvenile * * * from the downward spiral of criminal activity into which peer pressure may lead the child." See Schall v. Martin , 467 U.S. 253, 266, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). But we reject any implication that this discretion can be exercised reasonably only when the minor freely admits, or the evidence otherwise proves, that he is already gang-affiliated. See In re Jawan S. , 2018 IL App (1st) 172955, ¶¶ 17–20, ––– Ill.Dec. ––––, –––...