People v. Bell, 2018 IL App (1st) 153373 (June). Episode 513 (Duration 7:40)
This UUW provision in a park is found constitutional.
Following a bench trial, defendant Armani Bell was found guilty of unlawful use of a weapon in a public park and sentenced to two years in the Illinois Department of Corrections.
On appeal, defendant claims that the unlawful use of a weapon in a public park provision of the unlawful use of a weapon (UUW) statute is facially unconstitutional. Defense counsel argued that the UUW statute at issue in this case was identical to the aggravated UUW statute analyzed in Aguilar.
UUW Gun Charge
He was charged under section 720 ILCS 5/24-1(a)(10), (c)(1.5).
The version of the law was changed with the new conceal and carry legislation.
The version of the UUW statute that was in effect at the time defendant was charged stated in pertinent part:
“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (10) Carries or possesses 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, 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 land or in his 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, except that this subsection (a)(10) 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.
(c) Violations in specific places. (1.5) A person who violates subsection 24-1(a)(4), 24-1(a)(9), or 24-1(a)(10) in any school, regardless of the time of day or the time of year, in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, in a public park, in a courthouse, on the real property comprising any school, regardless of the time of day or the time of year, on residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, on the real property comprising any public park, on the real property comprising any courthouse, in any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, in any conveyance owned, leased, or contracted by a public transportation agency, or any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”
720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014).
Police responded to a call of a person with a gun. The man was on the corner of Washington Park.
Defendant didn’t match the description, but he started running when police got there. He then slips and falls and the gun is dropped. Police take custody of the gun and 15 seconds later catch and arrest defendant.
First There Was Aguilar
Our supreme court in Aguilar recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home,” and therefore, the offense set forth in section 24-1.6(a)1, (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face. Aguilar, 2013 IL 112116, ¶¶ 21-22.
Then There Was Mosley
Two years later, in Mosley, 2015 IL 115872, ¶ 25, our supreme court extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way.
Don’t Forget Chariez
Most recently in Chairez, the question was whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroached on the conduct at the core of the second amendment. Chairez, 2018 IL 121417, ¶ 26.
See Episode 457 – People v. Chairez, 2018 IL 121417 (February) (Gun ban prohibiting guns within 1,000 feet of a park found unconstitutional).
What About Burns?
Defendant contends that section 24-1(a)(10) of the UUW statute is facially unconstitutional because it amounts to a flat ban on carrying ready-to-use guns outside the home, which violates the second amendment of the United States Constitution.
He cites to Mosley, 2015 IL 115872, People v. Burns, 2015 IL 117387, and Aguilar, 2013 IL 112116. In Burns, the defendant was convicted of violating 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)). Burns, 2015 IL 117387, ¶ 1. At sentencing, pursuant to the sentencing provision of the AUUW statute, section 24-1.6(d), the State presented proof of defendant’s prior felony conviction to enhance the classification of the offense from a Class 4 felony to a Class 2 felony. Id. ¶ 13.
The defendant argued before the Illinois Supreme Court that his conviction of the Class 2 form of the offense must be reversed in light of Aguilar, which found the Class 4 form of the same AUUW offense to be unconstitutional. Id. ¶ 20. The court agreed with the defendant’s contention and reversed his conviction.
The Burns Analysis
Here, defendant argues that the penalty enhancement found under section 24-1(c)(1.5) of the UUW statute acts similarly to the sentencing enhancement of section 24-1.6(d) of the AUUW statute, and thus is a sentencing factor and not an element of the offense.
This exact issue was recently addressed by our supreme court in People v. Chairez, 2018 IL 121417. In Chairez, this court noted that “[u]nlike in Burns where the felony enhancement came after the defendant was found guilty of the charged offense, the felony enhancement under section 24-1(c)(1.5) is a specific fact that must be proved to the trier of fact prior to a guilty finding.”
Our supreme court elaborated, stating “[t]his difference is significant to our finding because any fact, other than a prior conviction, which, by law, increases the penalty for a crime, is an element of a distinct and aggravated crime that must be submitted to the jury.”
That is the precise situation here, where, in order to enhance the offense from a Class A misdemeanor to a Class 3 form of UUW, the State must prove the aggravating fact that defendant was within a public park. 720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014). Our supreme court found that this conclusion was supported by the plain language of the UUW statute, where, unlike in Burns, section 24-1(c)(1.5) is separate and apart from the sentencing provision of the UUW statute, section 24-1(b).
Don’t Forget The Second Amendment
The second amendment to the United States Constitution provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., amend. II.
Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). Our supreme court in Chairez noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment.
There Are Limits
While Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.” Chairez, 2018 IL 121417, ¶ 24 (quoting Heller, 554 U.S. at 626).
The Supreme Court explained, in dicta, that its holding should not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Heller, 554 U.S. at 626.
The Constitutionality of Section 24-1(a)(10), (c)(1.5)
We now turn to the constitutionality of section 24-1(a)(10), (c)(1.5) of the UUW statute.
The Chairez court addressed section 24-1(a)(4), (c)(1.5), of the UUW statute, but only made a finding as to the portion of that section that criminalized possessing a firearm within 1000 feet of a public park. While the only portion of the section before us is that criminalizing possession of a firearm within a public park.
It appears that public parks may be considered sensitive places.
We find this argument compelling, especially in light of the fact that public parks are notoriously “where large numbers of people, including children, congregate for recreation,” and that “[s]uch circumstances justify reasonable measures to secure public safety.”
Our supreme court found that some level of scrutiny must apply at the second step, and noted that courts generally recognized that Heller’s reference to any standard of scrutiny means any heightened level of scrutiny, not rational-basis scrutiny. Chairez, 2018 IL 121417, ¶ 32. Under this approach, the Chairez court noted that “the second step of the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve.” Id. ¶ 35.
The idea here is that that a blanket prohibition on carrying a gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed selfdefense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment. While conversely, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state does not need to prove so strong a need.
Our supreme court noted in Chairez that the closer in proximity the restricted activity was to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review. Chairez, 2018 IL 121417, ¶ 45.
The court noted that if the State could not proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held to be unconstitutional.
Parks Are Protected Places
We now turn to whether the possession of a firearm in a public park provision of the UUW statute is facially unconstitutional by examining the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve. Id. ¶ 35.
We find that public parks are areas “where large numbers of people, including children, congregate for recreation,” and that such circumstances justify reasonable measures to secure public safety. While the Chairez court ultimately found that the “most troubling aspect” of the 1000 feet from a public park provision was “the lack of any notification where the 1000-foot restriction zone starts and where it would end,” no such issues exist in the portion of the statute at issue here.
The Chairez court noted that “[i]nnocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner.” Chairez, 2018 IL 121417, ¶ 55.
These “troubling aspects” are not present here, and a person can certainly preserve an undiminished right of self-defense by simply not entering a public park.
Accordingly, we find that the firearm restriction’s “within a public park” provision continues to accomplish this aim without “effectively prohibit[ing] the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago.”
We reiterate that all statutes carry a strong presumption of constitutionality, and that we will find a statute constitutional if it can be reasonably done. Aguilar, 2013 IL 112116, ¶ 15. We find that it can reasonably be done in this case, and decline to find section 24-1(a)(10), (c)(1.5) of the UUW statute facially unconstitutional.