People v. Gullens, 2017 IL App (3d) 160668 (October). Episode 429 (Duration 11:50)
Fundamental fairness demands that this defendant be allowed to finish his conditional discharge rather than go to prison for possessing a gun for only 10 minutes.
Defendant was on conditional discharge for theft. As terms of his conditional discharge, the court ordered defendant not to violate any criminal statutes and to refrain from possessing a firearm or dangerous weapon.
Approximately one month later, the State filed a petition to revoke conditional discharge.
The petition alleged that defendant violated his conditional discharge by committing the offense of possession of a weapon by a felon (720 ILCS 5/24-1.1).
Defendant came to the South Post Guns, a store that sold firearms and related items with his brother.
The clerk could not remember if defendant had purchased anything, but said defendant might have purchased some ammunition.
Later that day, defendant returned to the store with a Glock 42 and gave it to the clerk. Defendant told him that his younger brother had stolen the gun. The store’s surveillance footage revealed that a man who entered the store with defendant stole the Glock 42 while the clerk was in a different area of the store talking to defendant about magazines or cleaning brushes.
Defendant said he went to the store to price guns for his girlfriend’s dad. He bought a cleaning kit but no ammunition. When his brother’s friend produced the gun he immediately took it from him and returned it. Defendant explained that he returned the gun because he did not want to get into trouble. Defendant returned the gun himself because he did not believe his brother’s friend would return it, and everyone he knew with a valid FOID card was at work.
Defendant said the gun could have been sold in Chicago and used for crime. Defendant explained that his only goal in possessing the gun was to return it to the store. Defendant said he did not take the gun to the police because he was a felon and he did not want to get in trouble.
The court said necessity did not apply and sentenced defendant to 3 years.
Defendant argued that by possessing the gun for a few minutes, he avoided a public harm significantly greater than him possessing a firearm.
In section 7-13 of the Criminal Code of 2012, the affirmative defense of necessity is defined as follows:
“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.”
720 ILCS 5/7- 13 (West 2016).
The defense of necessity “is viewed as involving the choice between two admitted evils where other optional courses of action are unavailable, and the conduct chosen must promote some higher value than the value of literal compliance with the law.” People v. Janik, 127 Ill. 2d 390, 399 (1989).
The reviewing court agreed with defendant.
Defendant reasonably believed that returning the gun was necessary to avoid a greater public or private injury than committing the offense of being a felon in possession of a weapon.
Returning a stolen firearm to its rightful owner undoubtedly promoted a higher value than refraining from being a felon in possession of a weapon for the 10 minutes it took to return the gun to the store.
We also find that defendant established that there were no other courses of action available to him.
Defendant testified that he did not believe Anchondo would return the gun on his own because he had helped steal it. This belief was reasonable. Defendant also said that he did not know anyone available with a valid FOID card to return the gun. Had defendant called the police and reported the stolen gun without taking possession of the gun, it is uncertain that the police would have recovered the gun.
We acknowledge that both the circuit court and the State have taken the position that there were other alternatives available to defendant.
The State gave no explanation as to what other options were available to defendant.
Specific And Immediate Threat
We note that our supreme court has held that a defendant must show that he faced a “specific and immediate threat” for the necessity defense to apply. People v. Kite, 153 Ill. 2d 40, 46 (1992).
We are inclined to believe that a specific and immediate threat to public safety occurs any time a stolen firearm is out on the street, as a stolen firearm may never be transferred legally.
Defendant alternatively argues that fundamental fairness demanded that the court deny the State’s petition to revoke conditional discharge because the purposes of defendant’s conditional discharge were served by his continued liberty.
“The issue in a probation revocation proceeding is two-fold: first, whether a probation violation actually occurred, and second, whether the purposes of defendant’s probation are being served by his continued liberty.” People v. Butler, 137 Ill. App. 3d 704, 712 (1985).
Defendant violated his conditional discharge.
However, as in Clark, given the unique circumstances of the violation, revoking defendant’s conditional discharged “thwarts the fundamental objective of restoring him to useful citizenship” and “results in an unsatisfactory application of the law to the facts of this case.”
Here, defendant possessed the stolen firearm for approximately 10 minutes.
Defendant testified that his only intent in possessing the gun was to return it to its rightful owner, and the State has presented no evidence to the contrary.
Though defendant technically committed the offense of being a felon in possession of a weapon for the approximately 10 minutes he possessed the gun, defendant acted to avoid the greater harm of the stolen firearm being out on the street where it most likely would have been sold and used for criminal purposes.
In this way, defendant’s possession of the gun actually served to protect the public.
We deem this a good thing.
The facts of this case suggest that but for defendant’s presence and actions, another illegal gun would have been in the hands of criminals. We deem that a bad thing.
Due to the unique extenuating circumstances of this offense, we believe that the purposes of defendant’s conditional discharge—i.e., defendant’s rehabilitation and protection of the public—are served by his continued liberty.
As such, we find that the circuit court’s revocation of defendant’s conditional discharge was against the manifest weight of the evidence. Reversed and remanded.