Calif. appeals court modifies probation rules for parolee
Probation restrictions that broadly prohibit parolees from attending court proceedings often infringe on First Amendment freedoms. The California Court of Appeals recognized this principle in its recent decision in People v. Negron.
Two Salinas, Calif., police officers noticed a man, Anthony Joe Negron Jr., dressed all in red outside his home in May 2008. Because red is the color associated with the Norteño street gang, the officers approached Negron, who consented to a search. After the officers found an eight-inch sharpened metal rod in his pocket, they charged him with a weapons offense and also for unlawful participation in a criminal street gang. Negron admitted he had been involved with the Norteño gang.
After Negron pleaded guilty to the two offenses, the court imposed several probation conditions on him. One instructed him “not be present at any court proceeding or at any courthouse unless you’re scheduled for a court hearing or have the express permission of the probation officer.” The rationale behind such a broad restriction is that gang members might intimidate witnesses or otherwise threaten public safety.
Negron argued on appeal that this prohibition was overbroad and restricted his First Amendment freedoms. The state appeals court agreed in its April 6 opinion, writing that such a restriction infringes upon the First Amendment right of access to attend criminal and civil proceedings.
The appeals court called that the restriction far too broad, explaining: “There can be a variety of legitimate reasons for being at a court proceeding other than to intimidate or threaten a witness or give support or encouragement to another gang member.”
The probation condition did allow Negron to attend court proceedings if he had the permission of his probation officer. However, the appeals court correctly discerned that this provision did not save the restriction because it gave the probation officer “unfettered discretion.” First Amendment freedoms are at grave risk when government officials have no limitations on their decision making. The appeals court modified the courtroom-attendance probation restriction to the following:
“You shall not be present at any court proceeding or courthouse if you know or suspect that a member of a criminal street gang is present or if the proceeding concerns a member of a criminal street gang, unless you are scheduled for a court hearing or have the express permission of your probation officer.”
Lest critics think that the appeals court caters to the criminal element, the court did uphold a very broad probation restriction on gang paraphernalia. The trial court had ordered Negron “not to possess, wear, use, or display any item you know, suspect, or have been told by the probation officer to be associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandana, or any article of clothing, hand sign or paraphernalia, to include the color red.”
A restriction prohibiting any red clothing appears incredibly broad, but the appeals court deferred to the government’s contention that the restriction was necessary because red is associated with the Norteño street gang.