Armed Violence Statute
The gist behind the armed violence offense in Illinois is to create a more serious felony offense anytime a person commits a felony while armed with a weapon.
The Illinois armed violence statute is found at 720 ILCS 5/33A-2(a)(1) of the Criminal Code of 2012. It states:
Discharges A Firearm
Section (b) covers using a firearm:
Causes Great Bodily Harm
Section (c) covers causing bodily harm with a firearm:
Weapon Categories Definition
The definitions section under 720 ILCS 5/33A-1(c) defines the various categories of weapons as follows:
Category I Weapon
A Category I weapon is a
- Sawed-off shotgun
- Sawed-off rifle
- Firearm small enough to be concealed upon the person
- Semiautomatic firearm
- Machine Gun.
Category II Weapon
A Category II weapon is a
- Any other rifle
- Spring gun
- Other firearm, stun gun or taser
- Knife with a blade of at least 3 inches in length
- Switchblade knife
- Other deadly or dangerous weapon or instrument of like character.
Category III Weapon
A Category III weapon is a
- Other Dangerous weapon of like character.
Armed Violence Is A Class X Felony
A person convicted of an armed violence has essentially committed a Class X Felony. The sentencing statute for armed violence creates certain minimum number of years a person must serve if convicted.
|Dangerous Weapon||Category I||15 yrs|
|Dangerous Weapon||Category II||10 yrs|
|Dangerous Weapon||Category III||Class 2 Felony|
The more serious forms of armed violence involve discharging a firearm during the commission of another felony.
|Discharges a firearm||Category I or II||20 yrs|
|Causes death or gbh||Category I or II||25 to 40 yrs|
See also 720 ILCS 5/33A-3(c), (c-5), (d) for other sentencing enhancement related to armed violence.
Our supreme court has interpreted the meaning of “otherwise armed” as follows:
People v. Condon, 148 Ill. 2d 96, 109-10, 592 N.E.2d 951, 958 (1992).
Case Law On Immediate Accessible Firearm
People v. Norwood, 2018 IL App (4th) 150883 (May). Episode 499 (Duration 10:30) (What does it mean for a firearm to be immediately accessible?)
The only real issue was whether the State established beyond a reasonable doubt defendant was armed or had immediate access to the rifle found in his bedroom.
Police entered a home to execute a search warrant.
An officer went straight to defendant’s room. When he opened the bedroom door, defendant was standing naked with his hands up in the air at the foot of the bed near the door. Walter ordered defendant to get on the ground. Defendant laid on the bed.
Defendant was allowed to put on some pants. Police then found a loaded assault rifle in the far left corner of defendant’s bedroom behind a storage container at the furthest point from the bedroom door.
Defendant was 10 feet from the rifle and he advised officers it was for home security.
Defendant argues the trial court erred in finding he was guilty of armed violence because the rifle was not immediately accessible to him at the moment the police entered his bedroom because he was 10 feet from the rifle, and it was blocked by the bed.
Defendant argues the trial court erred by considering whether the rifle was immediately accessible to defendant when the police entered the residence prior to seeing defendant.
Nothing in the case law suggest a court should only look at the moment of arrest to determine whether a defendant is armed.
Instead, the case law says a court can look back to the moment the police entered the residence while executing the search warrant, not just the moment the police physically encountered or arrested the defendant.
In this case, like Condon and Smith, the police were executing a search warrant on defendant’s home. Contrary to defendant’s suggestion, the question before this court is not whether the rifle was immediately accessible to defendant when the police officer opened the bedroom door.
Instead, the question is whether the State established beyond a reasonable doubt that the rifle was immediately accessible to defendant after the police entered his home.
Based on the evidence in this case, the trial court did not err in finding defendant guilty of armed violence.
The evidence supports a reasonable inference the rifle in the bedroom was immediately accessible to defendant during the period between the police officers entering the home and opening the bedroom door.
Defendant slept on the same side of the bed as the rifle. When the police opened the door to the bedroom, defendant was standing naked with his hands up in the air. Based on this evidence, the trial court could have reasonably inferred defendant heard the police entering the house and got up from the bed in a manner making the rifle immediately accessible.
Further, after Walter opened the bedroom door and ordered defendant to get on the ground, defendant instead laid down on the bed, decreasing the distance between the rifle and defendant.
The Case Law – People v. Smith
In People v. Smith, 191 Ill. 2d 408, 732 N.E.2d 513 (2000), the defendant dropped a handgun out of his apartment window while police officers were approaching his apartment building to execute a search warrant on his apartment.
The Illinois Supreme Court reversed that armed violence conviction.
According to the majority opinion, the court found the deterrent purpose of the statute was not met by convicting Smith.
The court said that permitting an armed violence conviction to stand against a felon such as defendant, who exhibited no propensity to violence and dropped the unloaded gun out of the window as the police approached his apartment to search for drugs, would not serve, but rather would frustrate, the statute’s purpose of deterring criminals from involving themselves and others in potentially deadly situations.
The court in Smith cited a previous decision, People v. Condon, 148 Ill. 2d 96 (1992).
The Case Law – People v. Condon
In Condon the court found defendant did not have have immediate access to the guns when he was in the kitchen when police entered and found guns in other parts of the house.
The Case Law – People v. Neylon
In People v. Neylon, 327 Ill. App. 3d 300, 762 N.E.2d 1127 (2002), the defendant was arrested outside his house after the police received a “shots fired” report.
After defendant’s arrest, the police found a .38-caliber pistol inside the house in a bedroom closet.
The court said,
“In this case it is true the gun was not immediately accessible to defendant. When he was arrested outside the house, the gun was in the house, in a closet and unloaded. The ammunition was not kept with the gun. Even if there were evidence defendant had been in the house minutes before his arrest, the gun was still not immediately accessible to him unless he were standing next to the open closet door and the gun were loaded. Under the facts of this case, the precedent of Smith suggests the danger the armed violence statute seeks to curb was not present and the evidence was not sufficient to support a conviction for armed violence (possession of a firearm).” Neylon, 327 Ill. App. 3d at 309.
Case Going The Other Way – People v. Harre
In People v. Harre, 155 Ill. 2d 392, 394, 614 N.E.2d 1235, 1236-37 (1993), defendant had immediate access to a gun when he was seen getting out of a car and riding on the hood for a brief period.
This clearly supported the inference that defendant had moments before his apprehension been riding in the car on his way to a drug delivery with a weapon inches from his grasp.
The guns were on the front seat. Such circumstantial evidence was not so clearly unreasonable, improbable, or unsatisfactory that no rational trier of fact could have found beyond a reasonable doubt that defendant had immediate access to or timely control over such weapons while riding in the car enroute to the delivery of the cannabis.
The evidence supported the jury’s finding that defendant had immediate access to and control over the weapons during the course of the underlying felony. Plus, defendant was walking towards the car door and was getting closer to the gun.
- People v. Wise, 2019 IL App (2d) 160611 (February). Episode 600 (Duration 5:57) (Armed Violence? Gun In The Waist Band Drugs Are Upstairs)
- People v. Hernandez, 2016 IL 118672 (May). Episode 175 (Duration 7:12) (The common-law definition of “dangerous weapon” found in the armed robbery statute is broader than the definition of “dangerous weapon” in the armed violence statute.)
- People v. Ligon, 2016 IL 118023 (February). Episode 162 (Duration 6:45) (Category of Dangerous Weapons Is Narrow for Armed Violence)
- People v. Brown, 2018 IL App (3d) 150070-B (July). Episode 519 (Duration 5:48) (UUW Felon Does Not Merge With Armed Violence)
- People v. Anderson, 2018 IL App (4th) 160037 (May). Episode 500 (Duration 10:00) (There is a difference between constructive possession and having immediate access to a gun.)
- People v. Haron, 85 Ill.2d 261 (1981) (presence of a weapon can not serve to enhance an offense from a misdemeanor to a felony and also serve as the predicatgeoffesne for armed violence)
- People v. Miller, 284 Ill.App.3d 16 (2nd Dist. 1996) (armed violence may not be predicated on aggravated battery by use of a deadly weapon but it may be supported by aggravated battery by causing great bodily harm)
- In re T.G., 285 Ill.App.3d 838 (1st Dist. 1996) (knife less than 3 inches may still be a dangerous weapon)
- People v. Vue, 353 Ill.App.3d 774 (2nd Dist. 2004) (flashlight not a dangerous weapon
- People v. Ptak, 193 Ill.app.3d 782 (2nd Dist. 1990) (broken glass is a dangerous weapon)
- People v. Varela, 194 Ill.App.3d 364 (3rd Dist. 1990) (whisky bottle either broken or intact is without a question a dangerous weapon)
- People v. Davis, 199 Ill.2d 130 (2002) (bb gun or pellet gun is not a firearm in the armed violence statutes but bb gun used as a bludgeon is a dangerous weapon)
- People v. Lucas, 231 Ill.2d 169 (felony DWLS cannot be the predicate offense for armed violence because 725 ILCS 5/111-3(c) prevents the prior form being an element of the felony offense)
- People v. Becker, 315 Ill.App.3d 980 (predicate offenses with reckless or mitigated mental state cannot support an armed violence charge because it goes against the legislative intent)
- People v. Shelato, 592 N.E.2d 585 (weapon not immediately accessible when it was wrapped in a rag in a zipped duffle bag under 60 bags of cannabis in an area with police officers)
- People v. Stamos, 214 Ill.App.3d 895 (guilty of armed violence when defendants were selling drugs and a sawed-off shot gun to undercover officer; here defendant clearly had the gun in his possession during the sale of the cocaine)
- People v. Brown, 839 N.E.2d 596 (defendant guilty of armed violence when he threw a gun out the car window after leading police in a high speed chase)
- People v. Orsby, 675 N.E. 237 (gun that next to defendant’s right thigh while he was pulled over was immediately accessible)
- People v. Anderson, 848 N.E.2d 98 (guilty of armed violence for fighting with police even though defendant eventually abandoned the gun)
- People v. Lewis, 175 Ill.2d 412 (1996) (armed violence predicated on armed robbery has proportionate penalties problems)
- People v. Espinoza, 184 Ill.2d 252 (1998) (armed violence predicated on aggravated battery public way does not have a proportionate penalties problem)
- People v. Koppa, 184 Ill.2d 159 (1998) (armed violence predicated on aggravated criminal sexual abuse based on bodily harm and aggravated kidnapping based on concealing pass the double enhancement and proportionate penalties test)
- People v. Taylor, 314 Ill.App.3d 943 (2nd Dist. 2000) (attempt armed violence is possible – he caused great bodily harm while making a substantial step toward possessing a handgun)