Juvenile tagger can be barred from possessing graffiti tools

Friday, September 18, 2009

A minor in Orange County convicted of vandalism for tagging residential buildings with his street moniker can be prohibited from possessing a Sharpie pen or any other tool of the graffiti trade as part of his probation conditions, a California appeals court has ruled.

A juvenile known in court papers as “E.A.” was charged with several counts of vandalism after spray-painting his street name on several residential buildings as a sign of his involvement in a criminal street gang. A juvenile court ruled against the teenager and then orally imposed the following probation condition: “Not to have on you or in your possession any graffiti tools. No Sharpie pens. No paint. No shoe polish. No dark permanent markers. No spray paint of any kind. No scratching tools for the purpose of graffiti.”

The juvenile appealed this condition of his probation, contending it was unconstitutionally vague, unconstitutionally overbroad and that it violated his First Amendment free-speech rights. The juvenile argued on appeal that the probation condition would limit his speech in ways unrelated to graffiti. For instance, he noted that he might need shoe polish to polish his shoes for a job interview.

“As a practical matter, possessing a Sharpie pen, shoe polish or a dark permanent marker is not itself criminal and is definitely not indicative of an individual’s intent to create graffiti,” his appellate brief read.

The California Court of Appeal, 4th Appellate District, disagreed in its three-judge panel ruling Aug. 27 in In Re E.A. “We are distinctly unimpressed,” the panel wrote collectively. The appeals court panel said the banned tools were reasonably related to the juvenile’s past crimes and possible future crimes.

“Even though the possession of paint, shoe polish, Sharpie pens, and permanent markers is not itself criminal, the juvenile court does not abuse its discretion by imposing a probation condition that prohibits appellant from possessing graffiti tools if that condition is reasonably related to appellant's crime or future criminality,” the panel concluded.

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