People Of Illinois v. Burns

On June 13, 2009, at about 4 a.m., two police officers in a marked police squad car responded to a dispatch call of “shots fired” in the area of 73rd and Blackstone in the city of Chicago. As the officers approached that location, they saw three men getting into a black Nissan, which was parked on 73rd Street, facing east. A woman was sitting in the driver’s seat. ¶ 6 Officer McDonough, who was driving the police car, pulled up to the parked Nissan, “nose-to-nose,” blocking the Nissan’s exit. As Officer McDonough was exiting the police car, he saw the man who had been sitting in the front passenger seat of the Nissan—later identified as defendant, Edward Burns—exit the car with a gun in his hand. When the officer ordered defendant to “Stop, put your hands up,” defendant tossed the handgun back into the car and fled on foot. Officer McDonough pursued defendant and, at one point during the chase, saw defendant throw an object to the ground. Officer McDonough recovered the object, which he discovered was a magazine, or “clip,” loaded with 9-millimeter rounds and then continued to pursue defendant, who appeared to be doubling back to the parked Nissan. ¶ 7 When defendant arrived back at the Nissan, he was detained by Officer McDonough’s partner, Officer Sobczyk. While Officer McDonough was pursuing defendant, Officer Sobczyk had retrieved a gun from the front passenger seat of the Nissan. The gun had no clip but had one live 9-millimeter round in the chamber. When Officer McDonough returned to the scene, he found that the clip he had retrieved during the chase fit the gun recovered from the car.

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¶ 8 Defendant was arrested and later charged by an indictment which contained eleven counts: Count I alleged that defendant was an armed habitual criminal (720 ILCS 5/24-1.7 (West 2008)), counts II and III alleged unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2008)), and counts IV through XI alleged aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a) (West 2008)). ¶ 9 The AUUW statute provides, in pertinent part: “(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 ***[,] 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 ***; 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; *** *** (C) the person possessing the firearm has not been issued a currently valid Firearm Owner’s Identification Card[.] * * * (d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second or subsequent offense is a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 7 years. Aggravated unlawful use of a weapon by a person who has been previously convicted of a felony in this State or another jurisdiction is a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 7 years.” 720 ILCS 5/24-1.6 (West 2008). ¶ 10 Subsequently, on the State’s motion, the circuit court of Cook County entered an order of nolle prosequi on counts V, VII, IX, and XI—four counts alleging AUUW based on defendant’s possession of a firearm without a valid Firearm Owner Identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(C) (West 2008)). The State then elected to proceed against defendant on counts I, II, III, VI, and X. Count VI alleged AUUW based on the possession of an uncased, loaded and readily accessible firearm in a vehicle, in violation of section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute; count X alleged AUUW based on the possession of an uncased, loaded and readily accessible firearm on a public way, in violation of section 24-1.6(a)(2), (a)(3)(A). On November 28, 2011, a bench trial was held. At the conclusion of the bench trial, defendant was found guilty on all counts. ¶ 11 Defendant filed a motion to reconsider in the circuit court. Defendant asserted that the State failed to prove that he had a prior felony conviction, which was a necessary element of the charged offenses. At trial, the State had entered into evidence a certified copy of conviction for a “Damion Smith.” Although the State alleged that defendant used the name “Damion Smith” as an alias, the State presented no proof that defendant was the individual named in the certified copy of conviction. Thus, defendant argued, the State, having failed to prove that he

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had a prior felony conviction, failed to prove him guilty beyond a reasonable doubt and his convictions must be vacated. ¶ 12 The circuit court vacated defendant’s convictions for armed habitual criminal and unlawful use of a weapon by a felon, under counts I, II, and III, agreeing with defendant that a prior felony conviction was a necessary element of those offenses which the State failed to prove. However, the circuit court denied defendant’s motion with regard to his AUUW convictions, under counts VI and X. The court ruled that a prior felony conviction is not an element of AUUW but, rather, is a sentencing factor to be proven at the time of sentencing. The matter then proceeded to sentencing on defendant’s conviction under count VI, for AUUW pursuant to section 24-1.6(a)(1), (a)(3)(A) of the statute.1 ¶ 13 At the sentencing hearing, the State presented, for the first time, a certified copy of defendant’s record as proof that he had a prior felony conviction (possession of a controlled substance in case number 99-CR-21991, which was a different felony conviction from the one submitted at trial). Based on this evidence, the circuit court ruled that, pursuant to subsection (d) of the AUUW statute, defendant’s conviction for AUUW was a Class 2 felony. However, the circuit court further found that, because the State had presented additional evidence in aggravation, showing that defendant also had two other prior felony convictions, a Class X sentence was mandated. Accordingly, the circuit court imposed a sentence of 10 years’ imprisonment. ¶ 14 Defendant appealed. In his initial brief, filed on March 12, 2012, defendant argued that his AUUW conviction must be vacated because the section of the AUUW statute under which he was convicted—section 24-1.6(a)(1), (a)(3)(A)—unconstitutionally infringes on the right to keep and bear arms as guaranteed by the second amendment of the United States Constitution (U.S. Const., amend. II). ¶ 15 On September 12, 2013, while defendant’s appeal was still pending, this court issued its decision in Aguilar, 2013 IL 112116. In Aguilar, the defendant was convicted of AUUW pursuant to section 24-1.6(a)(1), (a)(3)(A) of the statute, which was a Class 4 felony pursuant to section (d) of the statute. We reversed the defendant’s conviction for AUUW, holding that section 24-1.6(a)(1), (a)(3)(A) is facially unconstitutional because it operates as a flat ban on the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. ¶ 16 Subsequently, we modified our decision in Aguilar upon denial of the State’s petition for rehearing. In our modified opinion, we added language stating that our finding of unconstitutionality was limited to the “Class 4 form” of AUUW, which referred to a conviction which was subject to sentencing as a Class 4 felony pursuant to section (d) of the statute. See id. ¶ 22 n.3. ¶ 17 Relying on our modified opinion in Aguilar, the appellate court in the case at bar affirmed defendant’s AUUW conviction. 2013 IL App (1st) 120929. The appellate court noted that, “[i]n general, where a statute initially sets forth the elements of the offense, then separately provides sentencing classifications based on other factors, these factors only enhance the punishment and do not create a new offense.” Id. ¶ 24. Nevertheless, the court interpreted our

1Because defendant was in possession of a single weapon, defendant’s conviction for AUUW under count X, merged with his conviction under count VI.

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decision in Aguilar to mean that our holding of unconstitutionality with respect to section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, was limited to the so-called “Class 4 form” of that offense. Id. Further, the appellate court concluded that felons lack second amendment rights and, as a result, held that a conviction under section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute which, pursuant to subsection (d), is a Class 2 felony because the defendant has a prior felony conviction, is not unconstitutional. The appellate court then concluded that this so-called “Class 2 form” of the offense is enforceable and, thus, defendant’s conviction could stand. Id. ¶ 27.

¶ 18 ANALYSIS ¶ 19 The sole issue before this court is, as it was in the appellate court, whether section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) is facially unconstitutional because it violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II). This is a question of law, which is subject to de novo review. People v. Zimmerman, 239 Ill. 2d 491, 497 (2010). ¶ 20 Defendant argues that the appellate court erred when it held that the “Class 2 form” of aggravated unlawful use of a weapon was constitutional. Defendant contends that a “Class 2 form” of aggravated unlawful use of a weapon does not exist. There is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A) and a prior felony conviction is not an element of that offense. Rather, a prior felony conviction is a sentencing factor which elevates the offense, for penalty purposes, from a Class 4 felony to a Class 2 felony. See 720 ILCS 5/24-1.6(d) (West 2008). Moreover, defendant contends that, in Aguilar, 2013 IL 112116, this court held section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute facially unconstitutional. For that reason, defendant argues that his conviction, which is based on a violation of the same provision—section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute—must be reversed. We agree. ¶ 21 In Aguilar, this court held that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute 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 (U.S. Const., amend. II). In so ruling, we relied heavily on the Seventh Circuit’s decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), which applied the holdings of the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010), and held that “the Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.” Moore, 702 F.3d at 942. In Aguilar, we expressly adopted the analysis and holding in Moore, that section 24-1.6(a)(1), (a)(3)(A) of our AUUW statute operates as a “ ‘flat ban on carrying ready-to-use guns outside the home,’ ” and, therefore, held it to be unconstitutional on its face. Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore, 702 F.3d at 940). Since Aguilar was decided, we have reaffirmed its central holding of the statute’s facial unconstitutionality in two unanimous opinions, People v. Mosley, 2015 IL 115872, ¶ 24 (recognizing that Aguilar held section 24-1.6(a)(1), (a)(3)(A), (d) of the statute facially unconstitutional), and In re Jordan G., 2015 IL 116834, ¶ 7 (same). ¶ 22 Admittedly, in Aguilar, we specifically limited our holding of facial invalidity to a so-called “Class 4 form” of the offense. See Aguilar, 2013 IL 112116, ¶ 21. However, we now

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acknowledge that our reference in Aguilar to a “Class 4 form” of the offense was inappropriate. No such offense exists. There is no “Class 4 form” or “Class 2 form” of AUUW. ¶ 23 The elements of the offense of AUUW are contained in subsection (a) of the statute (720 ILCS 5/24-1.6(a) (West 2008)). See Zimmerman, 239 Ill. 2d at 499. Pursuant to subsection (a), a person commits the offense of AUUW when he or she knowingly carries or possesses “any pistol, revolver, stun gun or taser or other firearm” “on or about his or her person or in any vehicle” or “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” and one of nine factors is present. 720 ILCS 5/24-1.6(a) (West 2008). Subsection (a) sets forth the conduct which the legislature proscribed. Zimmerman, 239 Ill. 2d at 499. To obtain a conviction, the State need not prove anything more. ¶ 24 In a separate subsection entitled “Sentence,” subsection (d) provides that the offense of AUUW is a Class 4 felony. It then lists certain factors which increase an individual’s sentence for AUUW from one classification to a higher level classification. 720 ILCS 5/24-1.6(d) (West 2008). Specifically, in subsection (d), the legislature increases the penalty for any violation of the statute from a Class 4 felony to a Class 2 felony if the person found guilty of committing the offense is a convicted felon. This sentencing provision does not create separate and distinct offenses of AUUW. Nor does making the sentence for a violation of the statute a Class 4 felony or a Class 2 felony transform the offense of AUUW into a different “form.” See People v. Van Schoyck, 232 Ill. 2d 330, 337 (2009) (“Under the plain language of the statute, there is only one offense of driving under the influence. *** The enhancing factors in subsection (c) do not create a new offense, but rather serve only to enhance the punishment.”); People v. Robinson, 232 Ill. 2d 98, 112 (2008) (involuntary manslaughter statute, providing that if the victim was a family or household member then the offense is a Class 2 felony rather than a Class 3 felony, sets forth a sentencing-enhancement element rather than creating a separate and distinct offense); People v. Green, 225 Ill. 2d 612, 619-20 (2007) (Illinois has a single offense called “robbery” that is either a Class 1 or a Class 2 felony, depending upon the nature of the victim); People v. Smith, 2012 IL App (1st) 102354, ¶ 110 (the plain, unambiguous language of section 8-4(a) sets forth the elements of the attempt offense; section 8-4(c)(1), under the heading “Sentence,” states that the sentence for the offense of attempted first-degree murder is the same as the sentence range for a Class X felony); see also People v. White, 2011 IL 109616, ¶ 26 (“[F]irst degree murder is a single offense—there is no separate offense of ‘armed murder’ or ‘enhanced murder.’ ”). The penalty enhancements in subsection (d) are not elements of the offense. They do not come into play until after the defendant is found guilty. ¶ 25 In Aguilar, we improperly placed limiting language on our holding that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional. We now clarify that section 24-1.6(a)(1), (a)(3)(A) of the statute is facially unconstitutional, without limitation. Section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute provides that a person commits the offense of AUUW when he or she knowingly carries on or about his or her person or in any vehicle, any pistol, revolver, stun gun, taser or other firearm, when the firearm possessed is uncased, loaded, and immediately accessible at the time of the offense. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). On its face, this statutory provision constitutes a flat ban on carrying ready-to-use guns outside the home. It “categorically prohibits the possession and use of an operable firearm for self-defense outside the home” (In re Jordan G., 2015 IL 116834, ¶ 13), and, as such, it “amounts to a wholesale statutory ban on the exercise of a

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personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court.” Aguilar, 2013 IL 112116, ¶ 21. It is precisely because the prohibition is not limited to a particular subset of persons, such as felons, that the statute, as written, is unconstitutional on its face. See City of Los Angeles, California v. Patel, 576 U.S. ___, 135 S. Ct. 2443 (2015). ¶ 26 The State, in support of the appellate court judgment in this case, contends that the offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), is not facially unconstitutional because it can be applied to felons without violating the second amendment. Quoting Hill v. Cowan, 202 Ill. 2d 151, 157 (2002), and United States v. Salerno, 481 U.S. 739, 745 (1987), the State relies on the long-accepted principle that a statute is facially unconstitutional “only if ‘no set of circumstances exists under which the [statute] would be valid.’ ” (Emphasis and internal quotation marks omitted.) The State’s argument, however, is misplaced. ¶ 27 In Patel, 576 U.S. at ___, 135 S. Ct. at 2451, the United States Supreme Court explained the proper analysis for facial challenges: “Under the most exacting standard the Court has prescribed for facial challenges, a plaintiff must establish that a ‘law is unconstitutional in all of its applications.’ Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449 (2008). But when assessing whether a statute meets this standard, the Court has considered only applications of the statute in which it actually authorizes or prohibits conduct. For instance, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court struck down a provision of Pennsylvania’s abortion law that required a woman to notify her husband before obtaining an abortion. Those defending the statute argued that facial relief was inappropriate because most women voluntarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The ‘[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.’ Id., at 894.” ¶ 28 In Heller, 554 U.S. at 626-27, the United States Supreme Court stated: “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ***.” ¶ 29 It would appear, therefore, that the legislature could constitutionally prohibit felons from carrying readily accessible guns outside the home. See also McDonald, 561 U.S. at 786; Moore, 702 F.3d at 940. In fact, Illinois already has legislation which prohibits felons from possessing guns at all. See 720 ILCS 5/24-1.1 (West 2008) (unlawful use of a weapon by a felon). But that is not what the legislature proscribes in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute. The offense, as enacted by the legislature, does not include as an element of the offense the fact that the offender has a prior felony conviction. An unconstitutional statute does not “become constitutional” simply because it is applied to a particular category of persons who could have been regulated, had the legislature seen fit to do so. ¶ 30 It would be improper for this court to condition the constitutionality of section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute on the State’s proof of a defendant’s felon status

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when the legislature did not make that requirement an element of the offense. In essence, we would be “rewrit[ing] state law to conform it to constitutional requirements” and “substitut[ing] the judicial for the legislative department of the government.” (Internal quotation marks omitted.) Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 329-30 (2006). As the Ayotte court held, “ ‘[I]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside’ to announce to whom the statute may be applied.” Id. at 330 (quoting United States v. Reese, 92 U.S. 214, 221 (1875)). See also MacDonald v. Moose, 710 F.3d 154, 166 (4th Cir. 2013) (anti-sodomy statute, which prohibited sodomy between two persons without any qualification, was facially unconstitutional).

For the foregoing reasons, we find the offense of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, facially unconstitutional. As a result, the provision is not enforceable against anyone, including defendant. Accordingly, we vacate defendant’s conviction and sentence for AUUW.



Appellate court judgment reversed.