Calif. appeals court objects to no-gangs parole condition

Tuesday, November 6, 2012

Courts, particularly in California, often impose gang-related probation conditions on criminal defendants to prevent future gang activity. Such restrictions tend to prohibit defendants from associating with known members of criminal street gangs, hanging out in spots where such individuals congregate or wearing gang-related tattoos.

But a recent California appeals court decision added one important caveat: A trial court shouldn’t impose gang-related conditions on a person unless the person has been involved with a gang.

The case involved António Brandão, who pleaded no contest to possessing methamphetamine. A trial court placed Brandão on three years’ probation and imposed the condition that he “[n]ot associate with any individuals you know or are told by the Probation Officer to be gang members, drug users or on any form of probation or parole supervision.”

This sounds normal enough, as many defendants who have had experience with gangs have such restrictions placed upon them. But in this case there was a catch. The probation report stated Brandão had never been affiliated with any criminal street gangs.

Brandão challenged this condition on appeal, noting his lack of gang affiliations. He alleged the condition infringed on his First Amendment free-association rights.

The California Court of Appeals, 6th Appellate District, agreed with the probation condition was improperly placed on the defendant in its Oct. 24 decision in People v. Brandão.

“Not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable,” the appeals court wrote, emphasizing “there is nothing in the record to suggest that defendant has any current or prior ties to any criminal street gangs.”

Brandão did have a criminal history but it did not “mirror that of many gang members.” The appeals court concluded that a “no-gang-contact provision” cannot be imposed on a defendant when there are no ties between the defendant and a gang, no such ties to the defendant’s family and no criminal history indicating gang involvement.

California argued the condition was reasonable because it might have some possible good impact in the defendant’s future.

The appeals court disagreed with some First Amendment-based reasoning: “If the courts could forbid probationers from having contact with any person or entity that could conceivably tempt an individual to stray from the path of the straight and narrow, they could forbid probationers to watch violent television programs and movies; to play violent video games … to read works ranging from comic books to classical literature that contain violent or antisocial themes.”

The appeals court modified the probation condition to prohibit Brandão from associating with known drug users.

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