Jump to content

People vs Aguilar


Recommended Posts

Under federal law, if a state has restored the civil rights of a person convicted of misdemeanor domestic violence, then that person is no longer banned by federal law from possessing firearms. So the state judge's order should be treated under federal law as a restoration of the person's civil rights, and the federal ban would no longer apply to that person.

I need a link to this law or the case setting this precedent, please.

Check out 18 USC 921(a)(33)(B)(ii).

 

"A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

 

Incidentally, there is a sister provision for felony convictions located at 921(a)(20).

 

The Illinois Supreme Court's decision this morning was that a person can have their rights restored as contemplated by 921(a)(33)(B)(ii) by going through the procedure outlined in 430 ILCS 65/10© -- which is the section of the FOID act that allows a person to challenge a denial of a FOID card in court.

Edited by Phatty
Link to comment
Share on other sites

So does that mean we can start carrying today?

That's what I was saying.....

And that's the million dollar question. The Illinois Supreme Court only held that the law pre-FCCA was unconstitutional. They could very well hold that the law is no longer unconstitutional after FCCA was enacted. More specifically, after FCCA was enacted but before anyone can actually get a license, is the law still unconstitutional? This is the same question that the 7th Circuit is currently considering.

 

That's affirmative.

The question is still before the 7th in the continuation of Shepard.

Link to comment
Share on other sites

Under federal law, if a state has restored the civil rights of a person convicted of misdemeanor domestic violence, then that person is no longer banned by federal law from possessing firearms. So the state judge's order should be treated under federal law as a restoration of the person's civil rights, and the federal ban would no longer apply to that person.

I need a link to this law or the case setting this precedent, please.

Check out 18 USC 921(a)(33)( :cool:(ii).

 

"A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

 

Incidentally, there is a sister provision for felony convictions located at 921(a)(20).

 

The Illinois Supreme Court's decision this morning was that a person can have their rights restored as contemplated by 921(a)(33)( :cool:(ii) by going through the procedure outlined in 430 ILCS 65/10© -- which is the section of the FOID act that allows a person to challenge a denial of a FOID card in court.

 

Interesting, I guess it's time for my friend to lawyer up and get the mess straightened out as the ISP denied his FOID... In conversations over the phone with the ISP they told him that even though his rights were restored in IL the Feds had him marked for a lifetime ban and thus they would not issue his card...

Edited by RockerXX
Link to comment
Share on other sites

Over the next few days we should see some state attorneys come out with their positions on this. I looks to me like the AUUW law is toast. If I have a right to carry a loaded weapon outside my home, then just because the state re-works some words and adds some permit scheme that is not yet operational, does not change the logic the court uses to come to it's opinion. Chicago tried to get away with this. It did not work. They had to pay some money.
Link to comment
Share on other sites

Over the next few days we should see some state attorneys come out with their positions on this. I looks to me like the AUUW law is toast. If I have a right to carry a loaded weapon outside my home, then just because the state re-works some words and adds some permit scheme that is not yet operational, does not change the logic the court uses to come to it's opinion. Chicago tried to get away with this. It did not work. They had to pay some money.

 

+1000 maybe more in dollars when you win your case in court. LOL

Link to comment
Share on other sites

From What I interpret the ruling, Citizens of the state shall not have there 2nd amendment right infringed, they have a right to defense outside the home as well as in. However, it is strongly urged they have training. In a nut shell, it reaffirms the F.C.C.A.

The court stood up and behind the 2nd amendment, but same time realized that they have an "obligation" to public safety as well. As far as minor, the U.S. code as well as state law spell's it out as well as statute for gang members and firearms.

Link to comment
Share on other sites

Does anyone else remember Paul "the constitutional scholar" Castiglione's statement that since the IL SC has not ruled that carry outside the home falls under the scope of the 2A so Crook County doesn't have to follow Moore? Well, now he's got his ruling. And now the state has to follow precedents set in Moore and Aguilar. Have a nice day, Paul :)

 

Sent from my SCH-R530U using Tapatalk 2

 

 

Yup i was there and giggled all day long about it yesterday

Link to comment
Share on other sites

From What I interpret the ruling, Citizens of the state shall not have there 2nd amendment right infringed, they have a right to defense outside the home as well as in. However, it is strongly urged they have training. In a nut shell, it reaffirms the F.C.C.A.

 

My interpretation of your interpretation leads me to believe that the already approved instructors can carry today since they are exempt from training per F.C.C.A.

 

Sent from my Nexus 7 using Tapatalk 4

Link to comment
Share on other sites

Does anyone else remember Paul "the constitutional scholar" Castiglione's statement that since the IL SC has not ruled that carry outside the home falls under the scope of the 2A so Crook County doesn't have to follow Moore? Well, now he's got his ruling. And now the state has to follow precedents set in Moore and Aguilar. Have a nice day, Paul :)

 

Sent from my SCH-R530U using Tapatalk 2

 

 

Yup i was there and giggled all day long about it yesterday

 

YEAH WE KNOW

 

You had me and Gary giggling too !! Especially with what we deemed as the quote of the day :rofl:

Link to comment
Share on other sites

People v. Aguilar was cited in a Notice of Supplemental Authority filed in Palmer v. D.C. last Thursday when the ruling was published. Palmer, you know, the case that's been dragging ... out in DCD for the last, oh I dunno, half decade.

 

https://ia600408.us.archive.org/2/items/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.45.0.pdf

Link to comment
Share on other sites

Forgive the length - but I had some thoughts tonight.. I may be way off base - but...

 

Decision:

http://www.state.il....2013/112116.pdf

 

The principal issue in this case is whether section 24-1.6(a)(1),
(a)(3)(A) of the Illinois aggravated unlawful use of weapons
(AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008))
violates the right to keep and bear arms, as guaranteed by the second
amendment to the United States Constitution (U.S.Const., amend. II).
We hold that it does.

 

So, 720 ILCS 5/24-1.6(a)(1) and 720 ILCS 5/24-1.6 (a)(3)(A) have been struck down (the pre-FCCL versions)

 

http://web.archive.o...72000050K24-1.6

 

The post-FCCL statute is:

http://www.ilga.gov/...72000050K24-1.6

 

Before FCCL, this stated:

 

720 ILCS 5/24-1.6(a)(1):
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;

 

This is the post FCCL section:

 

720 ILCS 5/24-1.6(a)(1):
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;

 

As you can see - nothing changed in this section AT ALL. The old section was invalidated - the new law did not amend the old section - so this section in the current law is also invalidated.

 

 

 

Now, the second invalidated section (a)(3)(A) was amended by FCCL. This provides the agrivating factor of the firearm being 'uncased, loaded and immediately accessible at the time of the offense' when you are subject to (a)(2) (note the 'OR' and the end of (a)(1) - it's (a)(1) OR (a)(2) and (a)(3)(A))

 

(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 possessed was uncased, loaded and
immediately accessible at the time of the offense;

 

Now, (A) has been changed to:

(A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded,
and immediately accessible at the time of the offense;

and (A-5) has been added:

(A-5) the pistol, revolver, or handgun possessed was uncased, loaded, and immediately accessible
at the time of the offense and the person possessing the pistol, revolver, or handgun has not been issued a
currently valid license under the Firearm Concealed Carry Act;

 

Clearly different - though the effect of the change is an identical prohibition until permits are actually issued.

 

My take on all of this..

 

First, IANAL.. Now.

 

It's not possible for an agrivating action to be applied to a prohibition that no longer exists. But - (a)(3)(A) was changed and is no longer the same law. So - let's play devils advicate and say it still applies. That covers ONLY actions "upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town".

 

So - it's really clear to me that even open carry is now fully legal only outside of any city, village or incorporated town.

 

However, read the new (a)(3)(A) and (a)(3)(A-5) again.. they both say

 

"was uncased, loaded, and immediately accessible at the time of the offense"

 

Note the 'and'. Loaded, immediately accessible but CASED would not mean that the aggravating factor could apply the way the new law is written.

 

Summary: Outside of any corporate limits of a city, village or incorporated town, any carry is OK. Enter any corporate limits of a city, village or incorporated town - case it (say - glove box / fanny pack / other case). I don't see how anything would apply following those rules.

Edited by RoadyRunner
Link to comment
Share on other sites

Forgive the length - but I had some thoughts tonight.. I may be way off base - but...

 

Decision:

http://www.state.il....2013/112116.pdf

 

The principal issue in this case is whether section 24-1.6(a)(1),
(a)(3)(A) of the Illinois aggravated unlawful use of weapons
(AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008))
violates the right to keep and bear arms, as guaranteed by the second
amendment to the United States Constitution (U.S.Const., amend. II).
We hold that it does.

 

So, 720 ILCS 5/24-1.6(a)(1) and 720 ILCS 5/24-1.6 (a)(3)(A) have been struck down (the pre-FCCL versions)

 

http://web.archive.o...72000050K24-1.6

 

The post-FCCL statute is:

http://www.ilga.gov/...72000050K24-1.6

 

Before FCCL, this stated:

 

720 ILCS 5/24-1.6(a)(1):
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;

 

This is the post FCCL section:

 

720 ILCS 5/24-1.6(a)(1):
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;

 

As you can see - nothing changed in this section AT ALL. The old section was invalidated - the new law did not amend the old section - so this section in the current law is also invalidated.

 

 

 

Now, the second invalidated section (a)(3)(A) was amended by FCCL. This provides the agrivating factor of the firearm being 'uncased, loaded and immediately accessible at the time of the offense' when you are subject to (a)(2) (note the 'OR' and the end of (a)(1) - it's (a)(1) OR (a)(2) and (a)(3)(A))

 

(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 possessed was uncased, loaded and
immediately accessible at the time of the offense;

 

Now, (A) has been changed to:

(A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded,
and immediately accessible at the time of the offense;

and (A-5) has been added:

(A-5) the pistol, revolver, or handgun possessed was uncased, loaded, and immediately accessible
at the time of the offense and the person possessing the pistol, revolver, or handgun has not been issued a
currently valid license under the Firearm Concealed Carry Act;

 

Clearly different - though the effect of the change is an identical prohibition until permits are actually issued.

 

My take on all of this..

 

First, IANAL.. Now.

 

It's not possible for an agrivating action to be applied to a prohibition that no longer exists. But - (a)(3)(A) was changed and is no longer the same law. So - let's play devils advicate and say it still applies. That covers ONLY actions "upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town".

 

So - it's really clear to me that even open carry is now fully legal only outside of any city, village or incorporated town.

 

However, read the new (a)(3)(A) and (a)(3)(A-5) again.. they both say

 

"was uncased, loaded, and immediately accessible at the time of the offense"

 

Note the 'and'. Loaded, immediately accessible but CASED would not mean that the aggravating factor could apply the way the new law is written.

 

Summary: Outside of any corporate limits of a city, village or incorporated town, any carry is OK. Enter any corporate limits of a city, village or incorporated town - case it (say - glove box / fanny pack / other case). I don't see how anything would apply following those rules.

 

Playing :devil: 's advocate here....

 

That would depend on the investigating officer, and subsequently the SA and court's interpretation of "immediately accessible". If the officer felt that loaded and in a case, fanny pack, etc was still "immediately accessible", and the court later agreed with him/her, you could still end up being charged with carrying in violation of the statute.

 

Strike that, I see what you're saying now. It would have to meet ALL THREE requirements because of the word "AND". So as long as you took away one of the three, ie it was "cased" you wouldn't be in violation of the law.

 

You could very well be right. :)

Edited by cshipley92
Link to comment
Share on other sites

I agree with this interpretation. However, it is going to take someone winning in court to stop Some LEOs from arresting and prosecutors from charging. Sadly, this will take awhile.

 

I sincerely believe that many prosecutors have seen the writing on the wall and will charge another offense that is related, like the catch all Disorderly Conduct, or not charge at all.

Link to comment
Share on other sites

Could someone please provide the cliff notes version in English of what this opinion handed down means? Was the defendant on his own property or a friends property at the time of the stop and that is why it doesn't affect carrying in public without a license? I just can't get my head around this case
Link to comment
Share on other sites

Could someone please provide the cliff notes version in English of what this opinion handed down means? Was the defendant on his own property or a friends property at the time of the stop and that is why it doesn't affect carrying in public without a license? I just can't get my head around this case

 

Basically, the IL SC said that the law in place at the time amounted to a statutorily prohibition on the carrying of a ready to use gun outside of the home. They stated that they were not going to allow this - and they struck the statute.

 

However, there is a newer statute. The new statute ALSO amounts to a statutory prohibition in my opinion, at least until the State starts issuing permits. So, the Court will (if they agree) also strike the new one if asked.

 

If you choose to carry now and you are discovered and arrested, you will likely eventually prevail based on this opinion. But it will cost you dearly defending yourself.

 

That being said, this opinion adds a *lot* of options for getting many restricted places struck from the carry law (like public transit) - because IL SC has now gone on record that the right exists outside of the home in Illinois to protect against confrontation. Are we somehow less likely to face confrontation on the CTA or Metra? I think not. How can we have this right - but the right depend on using a car for transport? That denies the right to a large percentage of the population - in Chicago at least. There just needs to be someone arrested to provide a case to defend.

Edited by RoadyRunner
Link to comment
Share on other sites

He was carrying a pistol with a defaced serial, in other words he was committing a federal offense but Anita, being the whiz prosecutor that she is, refused to turn over the case to the U.S. Attorney. Instead, Aguilar and his co-defendant were brought up on state charges. Had she turned it over to the feds like she should have, we wouldn't have this IL SC ruling. Thank you, Anita Alvarez...for your hubris, otherwise we wouldn't be the first state to have its highest court rule the right to keep and bear arms extends outside the home.

 

To answer your question, the Court addressed the constitutionality of two statutes (AUUW and UPF). The section of the AUUW statute that flatly prohibited carry outside the home yet, when he was arrested, he was in his friend's (co-defendant's) backyard. Basically, the IL SC analyzed the AUUW statute, using Heller, McDonald, and Moore as guidance and came to the same conclusion as CA7 - that RKBA extends outside the home and rejected the state's interpretation. I'm really not sure where all of this stuff about carrying in unincorporated areas is coming from or carrying is now legal, because it is specifically addressed in a footnote that the Court is considering the "old" statute not the amended, nearly identical statute. The new one is ripe for challenge and SAs know that.

 

Sent from my SCH-R530U using Tapatalk 2

 

 

Link to comment
Share on other sites

Had she turned it over to the feds like she should have, we wouldn't have this IL SC ruling. Thank you, Anita Alvarez...for your hubris, otherwise we wouldn't be the first state to have its highest court rule the right to keep and bear arms extends outside the home.

 

Well, maybe not the first... :-)

 

Vermont 1903

http://www.handgunlaw.us/documents/agopinions/VTSupCtCarryingFirearms.pdf

Link to comment
Share on other sites

He was carrying a pistol with a defaced serial, in other words he was committing a federal offense but Anita, being the whiz prosecutor that she is, refused to turn over the case to the U.S. Attorney. Instead, Aguilar and his co-defendant were brought up on state charges. Had she turned it over to the feds like she should have, we wouldn't have this IL SC ruling. Thank you, Anita Alvarez...for your hubris, otherwise we wouldn't be the first state to have its highest court rule the right to keep and bear arms extends outside the home.

 

To answer your question, the Court addressed the constitutionality of two statutes (AUUW and UPF). The section of the AUUW statute that flatly prohibited carry outside the home yet, when he was arrested, he was in his friend's (co-defendant's) backyard. Basically, the IL SC analyzed the AUUW statute, using Heller, McDonald, and Moore as guidance and came to the same conclusion as CA7 - that RKBA extends outside the home and rejected the state's interpretation. I'm really not sure where all of this stuff about carrying in unincorporated areas is coming from or carrying is now legal, because it is specifically addressed in a footnote that the Court is considering the "old" statute not the amended, nearly identical statute. The new one is ripe for challenge and SAs know that.

 

Sent from my SCH-R530U using Tapatalk 2

 

Interesting that they did not mention A4or A10 of the 24-1 section. But I think those as practicle matter are tossed as well

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
 Share

  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...