HB2257 - Citizen's Self-Defense Bill

[Molly B.]

Several have asked about a current copy of HB2257 as amended. A copy incorporating the amendments will not be posted on the ILgov website until the bill reaches Third Reading. In the attachment below we have added the amendments as they would appear.

 

Molly B.

 

HB2257amended_word_5_8_09.doc

[bob]

Several have asked about a current copy of HB2257 as amended. A copy incorporating the amendments will not be posted on the ILgov website until the bill reaches Third Reading. In the attachment below we have added the amendments as they would appear.

 

Molly B.

 

HB2257amended_word_5_8_09.doc

Something that has occurred to me.

 

This does not explicitly overrule the provisions in the wildlife code that prohibit having a loaded firearm in a vehicle.

 

(520 ILCS 5/2.33) (from Ch. 61, par. 2.33)

Sec. 2.33. Prohibitions.

(n) It is unlawful for any person, except persons who possess a permit to hunt from a vehicle as provided in this Section and persons otherwise permitted by law, to have or carry any gun in or on any vehicle,

 

One might argue that the phrase "otherwise permitted by law" would apply, but why argue it out in court?

 

 

We should also see if we can do something to limit the scope of this little nasty.

 

(720 ILCS 5/21‑6) (from Ch. 38, par. 21‑6)

Sec. 21‑6. Unauthorized Possession or Storage of Weapons.

(a) Whoever possesses or stores any weapon enumerated in Section 33A‑1 in any building or on land supported in whole or in part with public funds or in any building on such land without prior written permission from the chief security officer for such land or building commits a Class A misdemeanor.

( The chief security officer must grant any reasonable request for permission under paragraph (a).

(Source: P.A. 89‑685, eff. 6‑1‑97.)

 

I bet the other bills have similar holes in them.

[Federal Farmer]

Several have asked about a current copy of HB2257 as amended. A copy incorporating the amendments will not be posted on the ILgov website until the bill reaches Third Reading. In the attachment below we have added the amendments as they would appear.

 

Molly B.

 

HB2257amended_word_5_8_09.doc

Something that has occurred to me.

 

This does not explicitly overrule the provisions in the wildlife code that prohibit having a loaded firearm in a vehicle.

 

(520 ILCS 5/2.33) (from Ch. 61, par. 2.33)

Sec. 2.33. Prohibitions.

(n) It is unlawful for any person, except persons who possess a permit to hunt from a vehicle as provided in this Section and persons otherwise permitted by law, to have or carry any gun in or on any vehicle,

 

One might argue that the phrase "otherwise permitted by law" would apply, but why argue it out in court?

 

 

We should also see if we can do something to limit the scope of this little nasty.

 

(720 ILCS 5/21‑6) (from Ch. 38, par. 21‑6)

Sec. 21‑6. Unauthorized Possession or Storage of Weapons.

(a) Whoever possesses or stores any weapon enumerated in Section 33A‑1 in any building or on land supported in whole or in part with public funds or in any building on such land without prior written permission from the chief security officer for such land or building commits a Class A misdemeanor.

( The chief security officer must grant any reasonable request for permission under paragraph (a).

(Source: P.A. 89‑685, eff. 6‑1‑97.)

 

I bet the other bills have similar holes in them.

 

I have it on pretty good authority that when two laws concern the same action, the one more favorable to the defendent is the one that is binding.

[bob]

I have it on pretty good authority that when two laws concern the same action, the one more favorable to the defendent is the one that is binding.

 

Why argue it in court?

 

Do you have 100 grand to take a misdemeanor case to the ILSC with no guarantee you will prevail?

 

And if what you are saying is so, why would the definition of gun case in the wildlife code matter one bit?

 

Something to deal with next session IMO.

[Federal Farmer]

I have it on pretty good authority that when two laws concern the same action, the one more favorable to the defendent is the one that is binding.

 

Why argue it in court?

 

Do you have 100 grand to take a misdemeanor case to the ILSC with no guarantee you will prevail?

 

And if what you are saying is so, why would the definition of gun case in the wildlife code matter one bit?

 

Something to deal with next session IMO.

 

You are correct that one would not want to have to defend this. Just passing along info.

[Don Gwinn]

The law concerning written permission from the CLEO to possess any weapon on public property was the one Marion County tried to use to charge Vana Haggerty (she was selling stuff at a county fair when she was arrested.) The charge was thrown out; the law is absolutely never enforced, and it would be very hard to go back and get a conviction based on it now. It was successfully argued at the time that this law would make criminals out of all the fishermen with filet knives in their tackleboxes on public land, not to mention the tens of thousands of people who go to gun shows on county and state property every year.

 

This is one reason I'm not buying the argument that the Nordyke decision in the 9th Circuit is a blow against STHR LTC bills. The argument is that, with the 9th Circuit holding that a unit of government may ban guns on property it actually manages, we would see similar bans here if we let home-rule entities opt out of LTC. The rub is that there's no connection (legally) between the powers a unit of government has over the property it actually owns and runs, and the powers a unit of government has over all the property within its borders. If the Nordyke decision's standard stands, it means that local governments will have the right to ban guns on property they own, period. Having shall-issue LTC within the borders of those local governments will NOT stop them from exercising their power over the property they own. Similarly, if the Nordyke standard is not extended to the 7th Circuit (aka, us) it won't get new life just because Chicago has opted out of LTC within its borders. They're separate issues.

 

Bottom line? Right now, the last case I'm aware of that concerned possession of a weapon on county-owned property without written permission from the CLEO was unsuccessful because the law has gone unenforced so long that it's no longer considered enforceable. It might be something to bring up to the Sheriff's Association before making any big moves on it, in any case. Make sure they understand what the problem is first, so they don't read the bill one day and freak out.

[bob]

There was an appeals court case where someone was charged and convicted, and the conviction upheld.

 

in the same case the court said a purse was a case for purposes of the UUW act and threw that charge out. They still got her for the public lands charge. i think it was a courthouse.

[lockman]

There was an appeals court case where someone was charged and convicted, and the conviction upheld.

 

in the same case the court said a purse was a case for purposes of the UUW act and threw that charge out. They still got her for the public lands charge. i think it was a courthouse.

 

Yes there was If I remember correctly it was a woman attempting to bring a handgun in her purse through the metal detectors at a courthouse.

[abolt243]

There was an appeals court case where someone was charged and convicted, and the conviction upheld.

 

in the same case the court said a purse was a case for purposes of the UUW act and threw that charge out. They still got her for the public lands charge. i think it was a courthouse.

 

Yes there was If I remember correctly it was a woman attempting to bring a handgun in her purse through the metal detectors at a courthouse.

 

You may be referring to a case in Macon County. I thought all charges were dropped, but then I've never seen the details of the case. Just heresay and listening to the County State's Attorne refer to the case. He's pro CCW and helped to position the case so she was aquitted.

 

Tim

[Silver Guardian]

Yes there was If I remember correctly it was a woman attempting to bring a handgun in her purse through the metal detectors at a courthouse.

 

You may be referring to a case in Macon County. I thought all charges were dropped, but then I've never seen the details of the case. Just heresay and listening to the County State's Attorne refer to the case. He's pro CCW and helped to position the case so she was aquitted.

 

Tim

 

Damn, what is that miracle workers name and number?

[Bitter]

There was an appeals court case where someone was charged and convicted, and the conviction upheld.

 

in the same case the court said a purse was a case for purposes of the UUW act and threw that charge out. They still got her for the public lands charge. i think it was a courthouse.

 

Yes there was If I remember correctly it was a woman attempting to bring a handgun in her purse through the metal detectors at a courthouse.

 

You may be referring to a case in Macon County. I thought all charges were dropped, but then I've never seen the details of the case. Just heresay and listening to the County State's Attorne refer to the case.

 

Tim

 

The case is

 

People v. Bruner

285 Ill.App.3d 39, 675 N.E.2d 654

Ill.App. 4 Dist.,1996.

 

She was acquitted at the trial and appellate level.

[junglebob]

There was an appeals court case where someone was charged and convicted, and the conviction upheld.

 

in the same case the court said a purse was a case for purposes of the UUW act and threw that charge out. They still got her for the public lands charge. i think it was a courthouse.

 

Yes there was If I remember correctly it was a woman attempting to bring a handgun in her purse through the metal detectors at a courthouse.

 

You may be referring to a case in Macon County. I thought all charges were dropped, but then I've never seen the details of the case. Just heresay and listening to the County State's Attorne refer to the case. He's pro CCW and helped to position the case so she was aquitted.

 

Tim

So if the goofy law requiring permission from the "chief security officer" has never been upheld, open carry in rural unincorporated areas of Illinois with no local ordinance against it could be practiced and upheld in court. Open carry inside a vehicle is prohibited BTW.

[Molly B.]

So if the goofy law requiring permission from the "chief security officer" has never been upheld, open carry in rural unincorporated areas of Illinois with no local ordinance against it could be practiced and upheld in court. Open carry inside a vehicle is prohibited BTW.

I'm sure the part about the vehicle is true but could you post the specific statute please?

[bob]

So if the goofy law requiring permission from the "chief security officer" has never been upheld,

IIRC, the appeals court found it was not UUW because a purse is a container.

 

I seem to recall the appeals court did not reverse the public place charge.

 

What would you be charged with if you brought an unloaded encased gun to school, for instance?

[bob]

So if the goofy law requiring permission from the "chief security officer" has never been upheld, open carry in rural unincorporated areas of Illinois with no local ordinance against it could be practiced and upheld in court. Open carry inside a vehicle is prohibited BTW.

I'm sure the part about the vehicle is true but could you post the specific statute please?

 

720 ILCS 5/24‑1

 

(4) Carries or possesses in any vehicle or concealed

on or about his person except when on his land or in his own abode or fixed place of business 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;

 

720 ILCS 5/24‑1.6 makes it a felony under certain circumstances.

 

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 or fixed place of business 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 or fixed place of business, any pistol, revolver, stun gun or taser or other firearm; and

 

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded

and immediately accessible at the time of the offense; or

 

( the firearm possessed was uncased, unloaded

and the ammunition for the weapon was immediately accessible at the time of the offense; or

 

© the person possessing the firearm has not

been issued a currently valid Firearm Owner's Identification Card;

[bob]

You may be referring to a case in Macon County. I thought all charges were dropped, but then I've never seen the details of the case. Just heresay and listening to the County State's Attorne refer to the case. He's pro CCW and helped to position the case so she was aquitted.

If thats what he told you, he is giving you a line.

 

She was NOT acquitted on the UUW charge, even though the SA knew the law, he charged her anyway.

 

the appeals court said she did not violate the UUW law and threw out that charge.

[abolt243]

""Damn, what is that miracle workers name and number?""

 

Macon County State's Attorney, Jack Ahola.

[burningspear]

The Bruner case. Search this forum for the cite.

[Bitter]

You may be referring to a case in Macon County. I thought all charges were dropped, but then I've never seen the details of the case. Just heresay and listening to the County State's Attorne refer to the case. He's pro CCW and helped to position the case so she was aquitted.

If thats what he told you, he is giving you a line.

 

She was NOT acquitted on the UUW charge, even though the SA knew the law, he charged her anyway.

 

the appeals court said she did not violate the UUW law and threw out that charge.

 

Yes, they charged her anyway BUT the district court dismissed, the State appealed. She was never convicted on the UUW. Dismissal was affirmed. See the direct quote below:

 

Justice KNECHT delivered the opinion of the court:

 

Defendant, Joan E. Bruner, was charged in the circuit court of Macon County with unlawful use of weapons and unauthorized possession of weapons in violation of sections 24-1(a)(4) and 21-6(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1(a)(4), 21-6(a) (West 1994)). Defendant filed a motion to dismiss count I for unlawful use of weapons alleging it did not state an offense as charged because defendant was exempt from criminal responsibility under section 24-2(i) of the Code (720 ILCS 5/24-2(i) (West 1994)) due to the fact the gun in her possession was unloaded; it was in a case, and she possessed a valid firearm owners identification (FOID) card. The trial court dismissed count I and the State has appealed. We affirm.

 

 

 

People v. Bruner 285 Ill.App.3d 39, 40, 675 N.E.2d 654, 654, 221 Ill.Dec. 459, 459 (Ill.App. 4 Dist.,1996)

[bob]

The point is she was still convicted on the count of having a gun on publicly supported land.

 

I was mistaken on the UUW thing. I thought the court convicted her and on appeal she got off. The cite says the court dismissed the UUW charge, and the SA appealed the dismissal, but the appeal's court agreed with the dismissal.

 

 

You may be referring to a case in Macon County. I thought all charges were dropped, but then I've never seen the details of the case. Just heresay and listening to the County State's Attorne refer to the case. He's pro CCW and helped to position the case so she was aquitted.

If thats what he told you, he is giving you a line.

 

She was NOT acquitted on the UUW charge, even though the SA knew the law, he charged her anyway.

 

the appeals court said she did not violate the UUW law and threw out that charge.

 

Yes, they charged her anyway BUT the district court dismissed, the State appealed. She was never convicted on the UUW. Dismissal was affirmed. See the direct quote below:

 

Justice KNECHT delivered the opinion of the court:

 

Defendant, Joan E. Bruner, was charged in the circuit court of Macon County with unlawful use of weapons and unauthorized possession of weapons in violation of sections 24-1(a)(4) and 21-6(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1(a)(4), 21-6(a) (West 1994)). Defendant filed a motion to dismiss count I for unlawful use of weapons alleging it did not state an offense as charged because defendant was exempt from criminal responsibility under section 24-2(i) of the Code (720 ILCS 5/24-2(i) (West 1994)) due to the fact the gun in her possession was unloaded; it was in a case, and she possessed a valid firearm owners identification (FOID) card. The trial court dismissed count I and the State has appealed. We affirm.

 

 

 

People v. Bruner 285 Ill.App.3d 39, 40, 675 N.E.2d 654, 654, 221 Ill.Dec. 459, 459 (Ill.App. 4 Dist.,1996)

[Bitter]

The point is she was still convicted on the count of having a gun on publicly supported land.

 

 

Yes, I'm not sure what else would be expected though, unless you just disagree with the law. It isn't like this was a case of legislating from the bench. the statute was directly on point.

 

Chapter 720. Criminal Offenses

Criminal Code

Act 5. Criminal Code of 1961 (Refs & Annos)

Title III. Specific Offenses

View the full text of all sections at this level Part C. Offenses Directed Against Property

View the full text of all sections at this level Article 21. Damage and Trespass to Property (Refs & Annos)

Current Section5/21-6. Unauthorized Possession or Storage of Weapons

 

 

§ 21-6. Unauthorized Possession or Storage of Weapons.

 

(a) Whoever possesses or stores any weapon enumerated in Section 33A-1 in any building or on land supported in whole or in part with public funds or in any building on such land without prior written permission from the chief security officer for such land or building commits a Class A misdemeanor.

[1957Human]

I have it on pretty good authority that when two laws concern the same action, the one more favorable to the defendent is the one that is binding.

 

Not true. The rule adopted in Illinois is called the "charging instrument approach." Under that policy, the criminal law that applies is the one set forth by the State in the complaint or the indictment. It's not at all unusual for more than one statute to apply to unlawful conduct. However, neither the defendant nor the trial judge has the power to direct under which statute a defendant will be charged.

 

There are a couple of other situations that your informant may have referred to that are similar, such as the doctrine of lesser-included offenses, or the rule of leniency, or the doctrine of merger of offenses. But those aren't what you're describing.

[Smallbore]

"I have it on pretty good authority that when two laws concern the same action, the one more favorable to the defendent is the one that is binding."

 

I don't think the issue is what law is used in the state's charge, but what law the defense can use to successfully get the case dismissed or an aquittal.

 

The success of the above quote may defend on the ability of the defense lawyer.

[bob]

"I have it on pretty good authority that when two laws concern the same action, the one more favorable to the defendent is the one that is binding."

 

I don't think the issue is what law is used in the state's charge, but what law the defense can use to successfully get the case dismissed or an aquittal.

 

The success of the above quote may defend on the ability of the defense lawyer.

I find it hard to believe that a court would allow you to claim you should be charged with a different crime. You pretty much have to defend yourself against the crime you were charged with. you don't get to chose the crime you are charged with. The state gets to chose that.

 

Sometimes they are nice and will charge you with a crime that has a lesser penalty than you might otherwise have earned.

[1957Human]

"I have it on pretty good authority that when two laws concern the same action, the one more favorable to the defendent is the one that is binding."

 

I don't think the issue is what law is used in the state's charge, but what law the defense can use to successfully get the case dismissed or an aquittal.

 

The success of the above quote may defend on the ability of the defense lawyer.

 

 

You're right if what you mean is the defendant has an affirmative defense under another statute, such as the affirmative defense under section 24-10 of the Criminal Code.

 

 

But if you mean the defendant can argue that he should have been charged under a different statute, then that's not right.

"Finally, defendant contends that the licensing statute does not apply to ATVs because the Code contains a separate offense of driving an ATV on a public highway. *** The creation of a separate offense of driving an ATV on a highway does not alter this result.

It is no defense to argue that defendant could also have been charged with some other violation.

Just as the driver of a truck that had not had a safety test could also be guilty of speeding or some other traffic offense, a person driving an ATV on a highway is still subject to the other traffic laws while doing so." People v. Martinez, No. 2--96--1517 (Ill. App. Ct. 1998).

[junglebob]

So if the goofy law requiring permission from the "chief security officer" has never been upheld, open carry in rural unincorporated areas of Illinois with no local ordinance against it could be practiced and upheld in court. Open carry inside a vehicle is prohibited BTW.

I'm sure the part about the vehicle is true but could you post the specific statute please?

Molly, Sorry I didn't reply sooner had some issues with my computer yesterday.

 

Everyone who wants to can google Illinois General Assembly website (ilga.gov) it will be the first entry on the google page, click on compiled statutes. You want to find 720ILCS 5 which is Criminal Offenses go down to 24.1 under (a)4 is the vehicle prohibition.

 

go down to 720 ILCS 5/24-10 says- Carries or posssesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village, or incorporated town.

 

The part I cited above doesn't include unincorporated areas, so you should be able to possess on your person if it is not concealed, carrying concealed is prohibited in the section before.

 

Bitter, Where can I find the Bruner case? Are you sure she wasn't charged under 720 ILCS 5/24-13 © which is the section Violations in Specific Places. It mentions real property comprising a public park, public housing, real property comprising any court house and other things.

 

If 720 ILCS 5/21-6(a) Which covers Damage and Trespass to Property is enforceable for open carry along a road in a rural area how can a person legally get a firearm to their home? Unless you parachute in with it you normally travel the highways. This would mean you break the law when you bring a firearm home from the store and anytime you leave your property with it even when encased as the statutes require.

 

I would guess most folks understand you won't find anything in the statutes saying "You may open carry a firearm" You also won't find anything saying "You may read a book while sitting on a park bench" unless there is a local ordinance against reading a book while sitting on a park bench it should be legal.

 

I am not a lawyer of course and since many in Illinois law enforcement don't seem to know firearms law I can't guarantee you won't get arrested for open carry in a rural area. Same thing goes for "fanny pack transport" and anything else that law enforcement doesn't like but is legal!

[bob]

I am not a lawyer of course and since many in Illinois law enforcement don't seem to know firearms law I can't guarantee you won't get arrested for open carry in a rural area. Same thing goes for "fanny pack transport" and anything else that law enforcement doesn't like but is legal!

Its not that they do not know the law. they do. There is just no penalty for them charging you with something that is not a crime and running you through the wringer for sport.

[burningspear]

Here is the citation for the Bruner case: People v. Bruner, 285 Ill.App.3d 39, 42-43, 221 Ill.Dec. 459, 461, 675 N.E.2d 654, 656 (1996)

 

Also consider the Hesler .case's discussion of legal transportation methods, including dicta on "not immediately accessible."

[sctman800]

I can't get the Hessler link to work, Jim.

[burningspear]

From Hesler:

 

People v. Hesler, 682 NE2 1224, 1227, 289 IllApp3 1084, which provides

 

There are at least three ways an average citizen can legally transport a firearm. First, the possessor of a valid firearm owner's identification card (FOID card) can legally transport an unloaded firearm so long as it is enclosed in a container. 720 ILCS 5/24-2(i) (West 1994); People v. Bruner, 285 Ill.App.3d 39, 42-43, 221 Ill.Dec. 459, 461, 675 N.E.2d 654, 656 (1996). Second, a person can legally transport a firearm by placing it in an area that is not immediately accessible, such as a locked trunk. 720 ILCS 5/24-2(cool.gif(4) (West 1994). Finally, a person can legally transport a firearm that is "broken down in a non-functioning state." 720 ILCS 5/24-2(cool.gif(4) (West 1994). The first two methods are inapplicable to the instant case, and defendant does not argue otherwise. Rather, defendant argues that he proved, by a preponderance of the evidence, that he was entitled to the "broken down" exemption.

 

Under the "broken down" exemption, removing the cylinder from a revolver or the bolt from a rifle would render the weapon legal for transportation purposes, even if the two parts were sitting next to each other on the front seat of the vehicle. Cf. People v. White, 253 Ill.App.3d 1097, 1098, 194 Ill.Dec. 267, 268, 627 N.E.2d 383, 384 (1993) (suggesting that, in a prosecution for possession of firearms by a felon, "temporarily inoperable firearms which can be made operable within a reasonable time fall within the purview of the statutes governing use and possession[289 Ill.App.3d 1089] of firearms"). The statute requires only that the weapon be broken down and in a nonfunctioning state, and nothing more. Any other conclusion would make it difficult for

 

Page 1228

 

[225 Ill.Dec. 151] owners of pickup trucks and vans to transport firearms.