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People vs Burns - aggravated unlawful use of a weapon - Unconstitutional


Molly B.

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ETA:

More implications just came to mind. As an FCCA licensee, you have fewer rights than someone without a carry license. To wit, someone with FOID only could conceivably carry on public transit or in other areas prohibited to carry licensees. Carry restricted areas only applies to FCCA licensees.

 

Yes and no. The statutory gun free zones only apply to carrying a concealed firearm by a licensee.

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If that statute is facially unconstitutional and therefore void, doesn't that mean that "constitutional concealed carry" is effectively in place? If you're carrying a concealed firearm what else would you be charged with? ETA:More implications just came to mind. As an FCCA licensee, you have fewer rights than someone without a carry license. To wit, someone with FOID only could conceivably carry on public transit or in other areas prohibited to carry licensees. Carry restricted areas only applies to FCCA licensees.
The statute he was convicted under was found unconstitutional, but it has been amended since his conviction, and it's current form is considered constitional. There is no effective "constitutional carry" or FOID carry in placeSent from my SM-G920P using Tapatalk
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Interesting. Although this seems very specific to 24-1.6 (a ) 1 and (a) 3 A, there is no acknowledgement that a licensing scheme would provide an acceptable exception.

 

Hypothetical: I hang a loaded, uncased AR in my back window and go for a drive. This ruling explicitly states the law I would be breaking is unconstitutional. The question is, could I catch a 24-1 a(4) charge? It would be silly to think one could be charged for an uncased gun, but not an uncased and loaded gun.

 

I'm cautiously optimistic. God Bless the lawbreakers that unwittingly work on our behalf. :)

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Only the AGUUW was struck. It may take more litigation to attack UUW. The difference UUW/AGGUUW is misdemeanor or felony.

 

According to the ruling, a penalty does not create a separate offense. In (loosely) following that logic, a statute (AUUW) warranting a felony charge contains the lesser elements of the UUW plus aggravating factors. If the statute defining the offense plus aggravating factors is unconstitutional, would it not follow that the statute containing only the lesser elements be unconstitutional also? Yes, it may take some more time in the court, but I think they have effectively neutered the UUW as well (part of it.)

 

 

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Its kind of funny that so many of our pro-Second Amendment allies in the ILGA were so afraid of going "over the cliff", but it certainly seems to me that the Seventh Circuit destroyed Illinois AUUW and UUW in Moore v Madigan.

 

We went over the cliff and and the world didn't end.

 

The UUW and AUUW laws were poorly written and the FCCA couldn't save them. Maybe if Madigan hadn't played 11th hour games with the issue after the ruling by 7th cir. in Moore v Madigan, the Illinois General Assembly would have had time to create a well-thought out law. Mike Madigan's arrogance has come back to bite him in the a**.

 

What I fear now is another round of fear-mongering by anti-gunners trying to panic republican law-makers to re-write the UUW to pass constitutional muster, and while they're at it they'll eliminate the transport provision and add in a bunch of restrictions to whittle down gun right in Illinois.

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IIRC, the issue at first was that you could not have 2 laws cover a single criminal act. So if it was illegal to break a window, the state could not have one law called breaking a window that carried 3 days in jail and another law called aggravated breaking of a window which carried 3 years in jail.

 

The court could have invalidated the AUUW law by saying it violated due process - like Chief Justice Garman argued, but what the Supreme Court of Illinois has said in People v. Aguilar and People v. Burns is that the basic wording of the law operates as an absolute ban on an individual’s right to possess a gun for self-defense outside the home and, as such, is facially unconstitutional under the second amendment of the United States Constitution.

 

Here is AUUW:

 

(720 ILCS 5/24-1.6)
Sec. 24-1.6. Aggravated unlawful use of a weapon.
(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; or
(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:
(A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible at the time of the offense
Here is UUW:
(720 ILCS 5/24-1) (from Ch. 38, par. 24-1)
Sec. 24-1. Unlawful use of weapons.
(a) A person commits the offense of unlawful use of weapons when he knowingly:
(1) Sells, manufactures, purchases, possesses or carries any bludgeon, black-jack, slung-shot, sand-club, sand-bag, metal knuckles or other knuckle weapon regardless of its composition, throwing star, or any knife, commonly referred to as a switchblade knife, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife, or a ballistic knife, which is a device that propels a knifelike blade as a projectile by means of a coil spring, elastic material or compressed gas; or
(2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, stun gun or taser or any other dangerous or deadly weapon or instrument of like character; or
(3) Carries on or about his person or in any vehicle, a tear gas gun projector or bomb or any object containing noxious liquid gas or substance, other than an object containing a non-lethal noxious liquid gas or substance designed solely for personal defense carried by a person 18 years of age or older; or
(4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions:
(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card; or
(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act

 

The AUUW law in Illinois has been destroyed. I think the UUW could be overturned using the same logic because the wording is significantly similar. The only thing that might save the UUW is the 5th and most recently added subsection:

 

(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act
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People v. Burns, 2015 IL 117387 deals with 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional.
(A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible at the time of the offense;

 

And two more subsequent rulings to really confuse things, these two cases (see below) deal with 24-1.6(a)(1), (a)(3)[C]

IL Supreme court says - it is clear that the location element in sections 24-1.6(a)(1) and (a)(2) of the AUUW statute is constitutional and enforceable when combined with subsection (a)(3)([C] of the AUUW statute - [C] the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card;


People v. Williams, 2015 IL 117470 - 12/28/15 deals with 24-1.6(a)(1), (a)(3)[C]
Direct appeal from the circuit court of Cook County
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
In April of 2013, Juan Williams was arrested for possessing a firearm while in an automobile on a public street in Chicago. At the time, he did not have a currently valid Firearm Owner’s Identification Card. In the circuit court of Cook County, he was charged under sections of the statute on aggravated unlawful use of a weapon which make it a Class 4 felony to be in a vehicle or on a public street with a firearm, but without a FOID card. The defendant asserted that mere possession of a weapon without a FOID card was punishable only as a Class A misdemeanor under the Firearm Owners Identification Card Act, and that this discrepancy as to punishment was a violation of the clause of the Illinois Constitution which requires that penalties be proportionate. The circuit court agreed with him, dismissing the charges for aggravated unlawful use of a weapon which were based on lack of a FOID card, and declaring the statutory sections on which they were based unconstitutional.

In this decision, the Illinois Supreme Court applied the “identical elements” test, finding that the two offenses being compared by the defendant do not have the same elements, and thus cannot be validly compared. A violation of the FOID card statute can be based on mere possession of a firearm within the home, while a violation of the statute on aggravated unlawful use of a weapon has an additional requirement that the offense must occur either in a vehicle or on a street or public way. This is an additional requirement as to location. These offenses do not have identical elements and cannot be validly compared for purposes of proportionate penalties analysis.

The circuit court was reversed, and the cause was remanded there for reinstatement of the charges.

People v. Schweihs, 2015 IL 117789 - 01/08/16 deals with 24-1.6(a)(1), (a)(3)[C]
Direct appeal from the circuit court of Kane County.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.
This defendant was charged in Kane County in 2012 with several offenses, including domestic battery and weapons violations, only one of which is at issue here. Count I of the indictment was brought under the statute on aggravated unlawful use of a weapon. It alleged that the defendant knowingly carried or concealed in a motor vehicle a .45-caliber handgun at a time when he had not been issued a currently valid card under the Firearm Owners Identification Card (FOID) Act. This is a Class 4 felony. The circuit court took note of the fact that simple possession of a firearm without that card (with which the defendant was not charged) is merely a Class A misdemeanor under the FOID Card Act. Viewing this as an invalid disproportionality of penalties under the Illinois Constitution, the circuit court dismissed the charge under count I. The State appealed, bringing the matter directly before the Illinois Supreme Court.

In this decision, the supreme court reversed the circuit court’s declaration of unconstitutional disproportionality of penalty and its dismissal of the charge. The court here applied the identical elements test. The penalties are not identical if more would need to be proved to establish aggravated unlawful use of a weapon under count I than would have to be proved to establish simple failure to have a FOID card. To prove the latter, the State need only prove possession of a firearm without the card. Such a violation can occur in the home without being a violation of the statute on aggravated unlawful use of a weapon. The additional location element means that these two offenses are not identical, and there can be no proportionate penalties violation.

The supreme court also noted that, when a defendant’s conduct violates more than one statute, each of which requires a different proof, he is not denied equal protection if he is prosecuted under the statute providing the greater penalty.

The circuit court was reversed, and the cause was remanded to it for further proceedings.

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People v. Burns, 2015 IL 117387 deals with 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional. (A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible at the time of the offense; And two more subsequent rulings to really confuse things, these two cases (see below) deal with 24-1.6(a)(1), (a)(3)[C]
It seems like the defense used different strategies in Burns than in the other two cases. In Burns it was argued that because the AUUW statute he was convicted under was found unconstitutional, his conviction under that unconstitutional law should be vacated. In the other two they argued that because portions of AUUW are duplicated under UUW then they should have been charged and convicted under the lesser charge, a misdemeanor as opposed to a felony. Neither the Moore ruling nor Aguilar seem to have been cited in the defense, which is why the judge ruled that those convictions can stand, since the aggravating factors in AUUW make it substantially different from UUWSent from my SM-G920P using Tapatalk
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If that statute is facially unconstitutional and therefore void, doesn't that mean that "constitutional concealed carry" is effectively in place? If you're carrying a concealed firearm what else would you be charged with?

 

ETA:

More implications just came to mind. As an FCCA licensee, you have fewer rights than someone without a carry license. To wit, someone with FOID only could conceivably carry on public transit or in other areas prohibited to carry licensees. Carry restricted areas only applies to FCCA licensees.

 

This. Time to dump the license. :-)

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Since the AUUW statute was amended as part of the FCCA it's already "fixed"

 

 

I'm not sure what you mean. I think you mean that a change was made to the AUUW to exclude people who were issued a CCL by the state.

 

It seems though that the ILGA is either going to have to tolerate charging criminals caught with guns with a Class A misdemeanor or write new legislation to deal with it. Any crafting of new gun legislation will have the anti-gunners salivating to add new gun control provisions.

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Since the AUUW statute was amended as part of the FCCA it's already "fixed"

 

 

 

I'm not sure what you mean. I think you mean that a change was made to the AUUW to exclude people who were issued a CCL by the state.

 

It seems though that the ILGA is either going to have to tolerate charging criminals caught with guns with a Class A misdemeanor or write new legislation to deal with it. Any crafting of new gun legislation will have the anti-gunners salivating to add new gun control provisions.

This decision is based on Aguilar, which is in turn based on Moore. All 3 cases dealt with the old, pre-FCCA, version of AUUW, which was an unconstitutional flat ban on carrying firearms. That version of AUUW no longer exists. We are probably going to see cases like this roll in for the next several years, but we don't need to amend the law after every single one of them.

 

As for the misdemeanor/felony distinction, see the two cases Molly mentioned, they argued that a felony can't be charged because a misdemeanor crime existed, and they lost both those cases.

 

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Since the AUUW statute was amended as part of the FCCA it's already "fixed"

 

 

 

I'm not sure what you mean. I think you mean that a change was made to the AUUW to exclude people who were issued a CCL by the state.

 

It seems though that the ILGA is either going to have to tolerate charging criminals caught with guns with a Class A misdemeanor or write new legislation to deal with it. Any crafting of new gun legislation will have the anti-gunners salivating to add new gun control provisions.

This decision is based on Aguilar, which is in turn based on Moore. All 3 cases dealt with the old, pre-FCCA, version of AUUW, which was an unconstitutional flat ban on carrying firearms. That version of AUUW no longer exists. We are probably going to see cases like this roll in for the next several years, but we don't need to amend the law after every single one of them.

 

As for the misdemeanor/felony distinction, see the two cases Molly mentioned, they argued that a felony can't be charged because a misdemeanor crime existed, and they lost both those cases.

 

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This ruling reads a bit differently, to me at least. We can't forget that this is not only dealing with handguns, so anything the FCCA might relieve for licensed handgun carry isn't really applicable. The state would ultimately have to argue (and win) that the court was only referring to handguns, when the statute clearly says "or other firearm." This ruling is real similar to Myerscough's comments regarding Moore, where she basically stated that the FCCA didn't fix the whole issue. The outright ban applies to all weapons and modes of possession named in the statute, and granting an exception for handguns does not relieve the rest.
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You are correct that there still cases, even Moore, that are knocking around that may find the existing AUUW also unconstitutional, but that hasn't happened yet. Until it does the statute is presumed constitutional. The fact that Sheppard was dismissed as moot is evidence that cases dealing with the old AUUW are not applicable to its current reading.

 

In fact, since Burns was convicted under the old statute this result can't be applied to the current one even if the judge wanted it to. The judge can't issue a ruling on what is technically a different law any more than he can issue a ruling on a different defendant

 

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Apologies for not posting anything in re the reasoning and whatnot. The way I read it is because Burns and Aguilar were both convicted under the exact same subsections of the AUUW statute because...the Court erred in its analysis and conclusion in Aguilar. There is no "Class 2" or "Class 4" version. There's Class 4 and then aggravating circumstances (such as a felon in possession). There's no distinct offenses. It's always AUUW so if it's been held facially unconstitutional in Aguilar, it's also unconstitutional in this case simply because the enhancements don't create a new offense. It's still the AUUW, still unconstitutional. State argued that it's not unconstitutional because they can only apply it to felons but that's a toothless argument. It's unconstitutional because the subsections have already been ruled facially unconstitutional. It doesn't matter how the law is applied, it cannot be applied because it doesn't exist.

 

Effectively the state has used a sentencing enhancement as a subject classification. Application of a law which has been held unconstitutional on its face cannot be made constitutional by only enforcing it with respect to a person with the status of "felon."

 

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