It’s not uncommon for a retailer to ban shoplifters from ever stepping foot on the premises again. However, a California man convicted of stealing from a Home Depot says that being barred from going back to the store — or any other Depot in the state — is a violation of his rights.

Back in Oct. 2012, the man was caught walking out of a San Jose, CA, Home Depot with $128 worth of purloined items stashed in his backpack. He eventually owned up to the theft and pleaded no contest to second degree burglary. As a condition of his probation, he agreed to not “go on the premises, parking lot adjacent or any store of Home Depot in the State of California.”

He subsequently appealed this order, arguing that there should be an exception “that would allow [him] to be on Home Depot property on legitimate business,” and that the probation condition violates his constitutional right to travel.

In 2013, a state court of appeal sided with the shoplifter [PDF], calling the probation condition “overbroad” and concluding that it would have been sufficient for the court to simply direct the man to not break the law again.

Prosecutors appealed that decision to the California Supreme Court, which issued an opinion [PDF] earlier this week rejecting the shoplifter’s argument and overturning the appeals court ruling.

Unlike freedoms of religion and speech, the “right to travel” is not explicitly spelled out in the Constitution or any of its amendments. However, in the 1969 U.S. Supreme Court decision in Shapiro v. Thompson, the court noted that “the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”

And in 1995, the California Supreme Court ruling in Tobe v. City of Santa Ana clarified that the “right of intrastate travel has been recognized as a basic human right” protected by the state constitution.

However, in the Home Depot matter, California’s highest court found that the probation condition was nowhere near restrictive enough to be considered an unconstitutional prohibition on travel.

“Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible,” writes the court, pointing to examples like the man barred from going near his friend’s house after he was caught stealing $9,500 in jewelry from his pal’s bedroom. Similarly, the court had upheld a requirement that a juvenile former gang member in Orange County, CA, could not enter Los Angeles county — where his former gang was located — without being accompanied by a parent.

The Home Depot shoplifter argued that the probation condition barred him “from entering large areas of the state” and from “shopping or working in any store that shares a parking lot with a Home Depot.” That was not enough to convince the court.

“He remains free to drive on any public freeway, street or road, use public transportation, work (except in Home Depot stores), shop, visit the doctor’s office, attend school, enjoy parks, libraries, museums, restaurants, bars, clubs, and movie theaters,” writes the court. “He may — without violating the challenged condition — freely move about his community, the city, and the State of California.”

The court also rejected the argument that the parking lot prohibition went too far. While that restriction does expand the no-go zone for the shoplifter, “the overall limitation remains so minimal that the Home Depot stay-away condition does not implicate the concerns that underlie the constitutional right to travel.”

[via WSJ Law Blog]

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