People v. Barnes, 2017 IL App (1st) 142886 (September). Episode 405 (Duration 12:06)
Defendant shot at someone that first shot at him, the state says this constitutes mob action and armed violence.
What does it mean for two or more people to be “acting together” as required to commit the offense of mob action? See 720 ILCS 5/25-1(a)(1).
Defendant Tyrone Barnes and an unidentified man shot at each other on the street, resulting in the death of an innocent bystander.
A jury acquitted defendant of felony murder but convicted him of armed violence predicated on mob action. He was sentenced to 24 years in prison.
The theory of the predicate charge was that defendant and the unidentified man acted together by “participating” in a “gunfight” that the State has likened, both at trial and on appeal, to a “21st century version of a duel” held on the streets of Harvey.
Defendant was outside the restaurant waiting for his friend who went inside.
Defendant exchanged gunfire with an unidentified man in front of Gus Restaurant, a popular neighborhood spot located on Center Avenue near 153rd Street in Harvey. The unidentified man was with Bivens, who recently had a dispute of some kind with defendant.
That’s when Bivens came by with another man who was the shooter. Bivens had a beef with the defendant. The other man lifted his shirt and showing a gun and then started shooting. By this point defendant was back in his car and returned fired. The victim was hit by the other man’s shooting.
An errant gunshot fired by the unidentified man, and intended for defendant, struck and killed Sanders, a stranger who was passing by the restaurant.
Defendant was tried for the felony murder of Simeon Sanders, predicated on the aggravated discharge of a firearm at Maurice Bivens, and for armed violence predicated on mob action.
The State’s theory was that defendant and the unidentified man agreed to fight in a duel—a “shootout and a show-down in the middle of Center Street,” like “something that you would see at the Okay Corral,” or like “what happens in those western movies that we have all watched at some point growing up.”
The State argued that defendant agreed to the duel by standing in the street, assuming a “stand-off showdown position.”
Based on “this acting together of shooting at each other and creating this western scene in the middle of Harvey,” the State concluded, defendant was guilty of mob action.
The State views Bivens pointing at defendant, and the unidentified man displaying his gun, as the “challenge,” and defendant’s retrieval of his weapon and return fire after being shot at as the acceptance of the challenge.
Defendant’s theory of defense, in turn, was that the unidentified man opened fire on him, and he returned fire in self-defense. For this reason, defense counsel argued, they were not “acting in concert with common purpose,” and thus defendant did not commit mob action.
The crux of his challenge is legal rather than factual.
Specifically, he argues that the “acting together” element requires concerted action—an agreement or common purpose—by the participants. The State says that it needed to prove only that defendant participated in the gunfight, regardless of any agreement or common purpose.
Thus, Defendant argues for a reversal of his conviction for armed violence, claiming the State failed to prove beyond a reasonable doubt that he committed the predicate offense of mob action.
“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law” that does not “make the possession or use of a dangerous weapon” an element of the offense. 720 ILCS 5/33A-2(a) (West 2008).
These and other charges are listed in this Illinois crimes index.
For the mob-action predicate, the jury received the pattern instructions; like the statute, those instructions use, but do not define, the phrase “acting together.” See Illinois Pattern Jury Instructions, Criminal, Nos. 19.03, 19.04 (4th ed. 2000).
So the jury was never instructed on the meaning of “acting together.”
Mob action, as charged in this case, was defined at the time as “[t]he use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law.” 720 ILCS 5/25- 1(a)(1) .
Among other things, the State had to prove that defendant was one of “2 or more persons acting together” in the use of force of violence.
Thus, the question of law presented: Do two (or more) people “act together” simply by shooting at each other; or does this statutory element require them to have an agreement, or otherwise to share a common purpose or intent?
The minimal case law on this subject, the plain language of the statute, and a review of the legislative history of the mob-action statute guides the results in this case.
First of all the definition of “together” suggests a course of concerted action, a collaborative, cooperative effort, something beyond merely being proximate to one another, beyond merely doing the same thing at the same time.
Those dictionary definitions are consistent with a lay understanding of that word. Thus, an interpretation of the phrase “acting together” as requiring some agreed-upon pursuit or unity of purpose among the actors strikes us as a perfectly reasonable interpretation of the phrase, consistent with its plain and ordinary meaning.
To the extent that the dictionaries supply a definition of “together” that suggests mere proximity between the defendant and another person during the commission of the crime, we cannot accept it as a reasonable construction.
No doubt, defendant “participated” in the gunfight.
But is participation alone enough?
The State’s definition would impose criminal liability even when, as here, the two actors each “participated” in the violence but did not have the same criminal purpose when they did so. They were not aiding each other toward a mutual goal. Their goals could not have been more diametrically opposed. They were shooting at each other, not a common victim.
Under the State’s interpretation of “acting together,” every exchange of gunfire constitutes mob action, because every exchange of gunfire necessarily requires the “participation” of two shooters. For that matter, every fight of any kind—with bats, knives, or just fists—would be mob action, no matter how spontaneous, and mattering not one wit that the two individuals were at cross-purposes, not joined in a quest to commit violence against an agreed-upon third party.
The offense of mob action, in its current form, was first enacted as part of the Criminal Code of 1961. Ill. Rev. Stat. 1961, ch. 38, § 25-1. The legislature intended the offense to provide “a comprehensive codification of the former law regarding” the offenses of
unlawful assembly, and
mob action. Ill. Ann. Stat., ch. 38, § 25-1, Committee Comments—1961, at 140 (Smith-Hurd 1964).
These antecedent offenses, derived from the common law, were designed to address the heightened threats posed to public safety and law enforcement “[w]hen numerous persons confederate against the public peace” in various ways; or in other words, when a group of people acts together toward a common, violent or illegal, end.
The offenses of riot, rout, and affray all required the participants to have an agreement or common purpose.
Riot – As our supreme court explained, the “universal conception and understanding of the meaning of the word ‘riot’ ” was “a mob or an assemblage of people of threatening attitude, acting in concert, with force and violence and determined to accomplish some injury to a person or property in spite of any resistance which might be offered.”
The requirement of “acting in concert” was understood to mean that the use of force or violence must be the product of “a concerted intent of the perpetrators to mutually assist one another against all who should oppose them in the doing of an unlawful act.”
Rioters, in short, had to share a common purpose or intent; and for that reason, they were accountable for each other’s actions in the course of the riot.
Rout – Second, the offense of rout required that two or more people “meet to do an unlawful act *** and make advances toward it.” A rout was more than an unlawful assembly but less than a riot; it required the participants to “perform an act in the direction of their common purpose, i.e., they are on their way toward executing their plan,” but “because their objective is not yet accomplished, it is not yet a riot.”
Affray – Third, the offense of affray was committed when two or more people, “by agreement, fight in a public place.” Thus, under the Illinois statute, an affray was akin to a duel, except that it did not require the use of deadly weapons, nor did it involve the ritualized practice of issuing and accepting a challenge through seconds that was characteristic of dueling.
So each of the three offenses that were incorporated into the subsection of the statute under consideration required concerted action of some kind—a common purpose (riot and rout) or an agreed-upon course of conduct (affray)—as an element.
Mob Action – Because the legislature’s purpose in enacting subsection 25-1(a)(1) was merely to unify and simplify these antecedent offenses, we see no reason to conclude that the legislature intended to eliminate their common requirement of concerted action. To the contrary, we believe the legislature used the phrase “acting together” to express precisely that requirement in one all-encompassing, intuitive general term.
Simple Matter of Self Defense
Thus, to prove the predicate charge of mob action in this case, the State had to prove that defendant and the unidentified man “acted together” in that they shared a common criminal purpose, or they agreed to a gunfight. Nothing in the record here suggests anything other than the most obvious of intentions—the unidentified man tried to shoot defendant; and defendant, perhaps in self defense, shot at the unidentified man.
They were trying to shoot each other, plain and simple, putting themselves at “cross purposes”—and about as far from concerted action as they could possibly be.
Unless the participants have agreed to a gunfight, as in a duel or affray, an exchange of hostile gunfire is not concerted action.
There is absolutely no evidence in this record that defendant agreed to a gunfight. There was no testimony, first of all, that defendant had planned anything in advance with Bivens or his companion, the man in black. The evidence shows only that the men happened upon defendant.
There is nothing in the record to demonstrate that defendant had been expecting the men, much less that an encounter had been planned in advance. Nor do we find any evidence that, once the men all came upon each other, a non-verbal “agreement” to a shoot-out somehow blossomed on the spot during this approximately 15-to-20- second interval.
Both Young and defendant said that defendant did not retrieve his gun until the man in black displayed his gun, which can only be taken to mean that defendant was reacting to the threat of the handgun by getting his own gun. There was no evidence from the record to indicate that defendant wanted this gunfight, much less that he “agreed” to it.
We find nothing in the record that indicates that defendant indicated, verbally or non-verbally, that he agreed to a gunfight. Rather, the facts of this case seem to resemble so many cases we see of one instance of bad judgment following another, of senseless violence erupting spontaneously and ending tragically.
We agree with defendant that the phrase “acting together” requires some concerted action—some common purpose or agreed-upon course of conduct— among the actors.
It is not only a reasonable interpretation of the statute—which would be enough in itself—but the interpretation that the General Assembly clearly intended.
For all of these reasons, we read “acting together” under section 25-1(a)(1) of the mob action statute as requiring concerted action—that is, a common purpose or agreed-upon course of action among the “2 or more people” who engage in “[t]he use of force or violence disturbing the public peace.” 720 ILCS 5/25-1(a) (West 2008).
This was a senseless shooting, spawned by animosity, that resulted in the death of an innocent bystander. It was tragic and unnecessary. But it was not the 21st-century equivalent of a duel.
Because the State was required to show that defendant and the other shooter had agreed to a gunfight to show that they were “acting together” in their use of violence, and because the evidence wholly failed to show as much, defendant was not proven guilty beyond a reasonable doubt of the predicate offense of mob action.
As such, his conviction for armed violence is reversed.
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- People v. Kent, 2016 IL App (2d) 140340, ¶ 25.