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People v. Horton - 1st District - Seeing Gun Isn't RS

reasonable suspicion Fourth Amendment

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#1 skinnyb82


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Posted 09 April 2017 - 08:23 AM

Been meaning to post this because it spits in the face of the Fourth Circuit's en banc ruling in U.S. v. Shaquille Robinson and reaches precisely the opposite conclusion.  This is a State felon in possession (UPF) appeal out of the First District , too bad it isn't unanimous as the dissenting "Justice" (not quite sure why appellate court judges are called "Justices" thought that was reserved for the Supreme Courts) who essentially spat out the same nonsense contained within Judge Wynn's concurrence in Robinson.  The issue raised was does the mere possession or suspected possession of a handgun create reasonable suspicion and the Court answered it in the negative.


Attached is the opinion and order:  Attached File  1142019.pdf   164.41KB   329 downloads

Alternatively, the opinion and order is published here: http://illinoiscourt...ict/1142019.pdf


The majority takes an interesting step here in the introduction, something that should not need to be put to paper by a judge or judges but, in these times, is sometimes necessary to get a point across:


"As judges, we are stuck between a hammer and the anvil. On the one hand, we are ever mindful of, and horrified by, the level of gun violence that continues to plague the City of Chicago. We feel confident in saying that all members of the judiciary wish for reformative solutions. But we also are mindful of our limited role in a constitutional system. We cannot sidestep or disregard instruction from both the United States and Illinois Supreme Courts to achieve a specific outcome. When we hold that precedent dictates the result here, it is not because we are naïve, or 'soft on crime.' On the contrary, it is because we must follow, not rewrite, the established law and the facts in evidence."


This case is much like Robinson, not surprising to see judges who actually respect their roles, precedent, properly applying the law.  The gist of the issue here:


"[A]n officer had a hunch, based on seeing 'a metallic object' in Markell Horton’s waistband, that Horton might have a handgun and pursued him. Eventually, police found a handgun hidden under a mattress in a bedroom where they found Horton, and he was charged with possession."


Hunches are not reasonable suspicion.  LEOs can't say "It's just a gut feeling, I can't explain it" as the entire standard for reasonable suspicion requires that it be articulable.  It goes from bad, to worse, when the arresting officer testified that he thought he saw a bulge, then a glimpse of something reflective in defendant's shirt/pants and that was the entire basis of his pursuit, detention, and arrest of Horton.  He argued that Horton running was another factor in developing RS but the judges said it isn't unreasonable for someone to run from a Chicago Police Officer due to all of the misconduct in the Department (which is a stinging indictment of the entire CPD).  In fact, this Officer actually contradicted himself when he said he didn't know what he saw....until he was certain that he saw a gun (even though the barrel was not visible).


"Hummons made eye contact with Horton and noticed a  'bulge' on the right side of his waist that had the 'characteristics of a weapon.' Horton was wearing a t-shirt. Horton then turned toward the house, and 'his shirt raised a little' giving Hummons 'a glimpse of a chrome metallic object' that he thought was the butt of a handgun."


Not only does this case have the most fatal of all fatal flaws, it would still be problematic due to Hummons' partner's testimony would create a credibility issue:


"Meredith never saw a bulge in Horton’s waistband, and Hummons never told him he had seen a weapon. Finally, he testified that he never saw Horton in the bedroom or Horton place the gun under the mattress."


Let the smackdown begin. Majority begins taking the State apart, piece by piece:


"Post-Aguilar, the possible observation of a handgun is not in itself, without any other evidence of a crime, sufficient to provide an officer with probable cause for arrest. We have reviewed the record and have found the evidence established no basis for probable cause other than a hunch that the metallic object might be a handgun, nor does the State provide a different basis for probable cause."


And so on.  The State argues that the Krull good faith exception applies, as it does in every single one of these cases, and that argument never holds up. Good faith exception basically gives LEOs a free pass to violate your civil liberties because they had a "good faith" belief that a crime was being committed.  Now, that doesn't fly unless a cop has been living under a rock since Moore, Aguilar, Burns, etc.


Excerpts from majority citing the dissent insanity (same convoluted logic as Judge Wynn's concurrence that exercising 2A rights forfeits 1A and 4A rights):


"The dissent argues the officer did have reasonable suspicion for an investigatory Terry stop, because, although possessing a handgun could be a legal concealed-carry, it could be illegal if Horton did not possess a FOID card (as required by statute), and the officer could have stopped Horton to investigate whether Horton was carrying the gun legally. This rationale leads down a dangerous path. By way of analogy, it is also illegal to drive a car without a valid license. If an officer makes eye contact with another motorist, and that motorist then turns onto another street, can the officer execute a traffic stop to verify that the motorist has a valid driver’s license?" (Ironically, SCOTUS already answered the question posed by the majority in Delaware v. Prouse, cannot stop motorists to simply check a license)


"The dissent would hold the totality of the circumstances supports a finding of reasonable suspicion and the officer’s pursuit of Horton was reasonable." (Reasonable because "I said so")


"The dissent attempts to justify the entry into the residence with a factually unrelated scenario, asking, 'Should [a police officer] allow a person with a firearm to run into a building and possibly inflict mayhem on its occupants or warn his confederates who may be engaged in criminal activity that the police are outside?'" (SERIOUSLY?  Hummons didn't even know if he had a gun)


Scathing indictment of the CPD while discussing defendant's flight:


"This excessive-force problem occurs most often in black and Latino neighborhoods—in fact, CPD officers use force almost 10 times more often against blacks than against whites."


Aaaaaand I'll allow everyone to read the opinion.  It's great but the dissent is pure insanity.  I'm just happy that we have (enough) level-headed judges on the bench so we don't end up with some BS like what occurred in Robinson.  Even Slate published a piece on this ruling, titled "Why liberals should be alarmed that courts are eroding the Second Amendment," saying liberals should also be concerned at the erosion of 4A rights because someone is conducting a lawful activity (carriage of a firearm, home defense, etc).  Ripped Judge Wynn's concurrence in Robinson and applauded this decision.  Here is a link to the article, it's excellent and surprisingly unbiased.





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#2 Hipshot Percussion


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Posted 09 April 2017 - 11:56 AM

Skinny, as always, thanks from the laymen here on the board.  


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Posted 09 April 2017 - 01:54 PM

Sounds like the ruling is consistent with US v DeBerry   7th circuit ruling written by Judge Posner. 

One persons paranoia is another persons situational awareness.

Maybe it is time to remove immunity from all public officials and be able to hold them fully accountable for their actions.

#4 Sweeper13


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Posted 09 April 2017 - 08:52 PM

Thanks Skinny   :clap:

#5 skinnyb82


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Posted 11 April 2017 - 07:21 AM

Bottom line is that forfeiture of one constitutional right as "the price for exercising another" is unconstitutional. Ample case law supports this, and it is long-standing case law. Ironically, many of the rulings by SCOTUS regarding the "trading rights" issue was decided when Byron White was on the Court (and Justice Gorsuch was one of White's clerks). Here's a few cases.

Lefkowitz v. Cunningham, 431 U.S. 801 (1977) which addresses compelled self-incrimination via subpoena to testify without protections against self-incrimination.

"Section 22 is coercive for yet another reason: it requires appellee to forfeit one constitutionally protected right as the price for exercising another." See Simmons v. United States, 390 U.S. 377, 390 U.S. 394 (1968).

"[I]t is intolerable that one constitutional right should have to be surrendered in order to assert another." Simmons v. United States, 390 U.S. 377, 390 U.S. 394 (1968).

Collecting cases now.
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#6 Charles Nichols


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Posted 14 April 2017 - 06:28 AM

I have created a separate topic for the U.S. v. Shaquille Robinson case here.

Concealed carry is of no use to me because I don't carry a purse or wear a dress, and I'm not into secret advantage and unmanly assassination.


"Should the Open Carry movement become successful it will result in the greatest dissolution of government power since the collapse of the Soviet Union." - Charles Nichols
"If a monkey looks into a book, a sage cannot look out." - Georg Christoph Lichtenberg
"La plus belle des ruses du diable est de vous persuader qu'il n'existe pas." - Charles Baudelaire 
"God doesn't want me and the devil isn't finished with me." - Raymond Reddington
"When you lift the last veil, you might discover that your bride is an ignorant, illiterate child living in a world of fear and superstition." - Charles Nichols.* 
* I posted this on my Facebook page on May 20, 2011.  Unable to find its origin, I claim to be its creator.