People v. Crowder, 2018 IL App (1st) 161226 (November). Episode 564 (Duration 9:49)
Convict grabs his dad’s gun when 3 big dudes start punching them.
Defendant was charged with one count of reckless discharge of a firearm and six counts of AUUW.
Defendant and his 73 year old father drove to the home of defendant’s estranged wife.
They drove there to pick up Defendant’s young daughter and some clothes for his aunt’s funeral, which they planned to attend the next day. There was trouble when they got there. Defendant’s father was lawfully carrying a loaded .380-caliber Glock handgun in a holster on his right hip. Both men were on the front porch and were about to leave after receiving no answer when the door opened and three men appeared in the doorway.
3 Angry Hostile Men
2 of the men were the brothers of the wife and the big guy (over 400 lbs) in the middle was “Ra-Ra” from the neighborhood. The witnesses agreed that, with no provocation and no words exchanged, the men starting swinging at defendant and his father. The old man was hit in his upper shoulder, causing him to fall backward, lose his balance, and fall off the left side of the porch. Defendant’s father hit the ground five feet below.
1 Shot In The Air
Defendant sees his father fall, so he runs down to check on him. Defendant saw he was dazed. He tried to lift him but could not. The men above were yelling threats and obscenities at him, and he saw Ra-Ra reach for a bulge under his shirt that defendant believed was a weapon. One of the three men yell “I will empty the caps in his a**.”
This is when Defendant grabbed his father’s handgun from its holster and fired one shot vertically into the air. He testified that he did this “for protection for me and my father.” Defendant then backed away from the porch, holding the gun up in the air, thinking he would thereby draw the men away from his father. He did not fire again but turned and ran down the street, without looking behind him.
Police arrive and stop Defendant within a matter of minutes.
The officer found Claude roughly a block from the scene of the altercation, conducted a protective pat-down of him, and discovered the handgun.
Defendant told the officer that he had manually ejected bullets from the handgun and guided the officer to the ejected bullets. The officer testified that there were two rounds remaining in the handgun, and that he recovered two intact ejected bullets from where defendant pointed them out, along with one spent shell casing at the scene of the altercation.
The State admitted into evidence a certification from the Illinois State Police Department, stating that defendant did not have a FOID card or CCL.
Defendant was found not guilty of reckless discharge but guilty of multiple counts of AUUW.
Defendant was convicted of AUUW under section 24-1.6(a) of the Criminal Code of 2012, in that
(1) he knowingly carried or concealed on his person an uncased and loaded pistol;
(2) at a time when he was not on his own land, in his own abode, or in a fixed place of business, or he was on public land;
(3) that pistol was immediately accessible to him at the time he carried it; and
(4) he did not have a FOID card or CCL.
720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(A), (a)(3)(C), (a)(3)(A-5).
The trial court’s entire ruling on this issue was as follows:
“I find the evidence has been uncontroverted. The defendant had a gun on him. He carried it on his person. And so the State has met each and every element of each and every one of those offenses. So I find the defendant guilty beyond a reasonable doubt.”
The trial court merged Defendant’s AUUW charges into a single count and sentenced him, he had no felony background, to the minimum sentence, which was one year of incarceration, with credit for 188 days he had spent on electronic monitoring.
Self Defense Claim
Defendant argues that the evidence at trial was insufficient to support a conviction for AUUW, based on possessing a weapon without a FOID card, because the evidence demonstrated that, under the circumstances, it was necessary for him to possess the firearm in question to adequately defend himself and his father.
To properly raise an affirmative defense, a defendant is required to present some evidence on the issue, unless the State’s evidence itself raises the defense. People v. Kite, 153 Ill. 2d 40, 44-45 (1992). “Generally, the quantum of proof necessary to raise an affirmative defense is evidence sufficient to raise a reasonable doubt as to defendant’s guilt or innocence,” which is a relatively low threshold.
Use of force in self defense or defense of another includes the following elements:
(1) unlawful force threatened against a person,
(2) the person threatened was not the aggressor,
(3) the danger of harm was imminent,
(4) the use of force (by the threatened person) was necessary,
(5) the person threatened actually and subjectively believed a danger existed that required the use of force applied, and
(6) the beliefs of the person threatened were objectively reasonable.
People v. Gray, 2017 IL 120958, ¶ 50 (citing 720 ILCS 5/7-1).
Can A Person Raise Self Defense On A Gun Possession Charge?
The State’s first argument is that self defense is not available to negate a charge of AUUW because the second amendment allows the State to impose regulations for carrying weapons. According to the State,
“the failure to have been issued a currently valid license under the Concealed Carry Act at the time of the offense, means that defendant’s reliance upon his right to self defense is not valid as his conduct is not protected by the Second Amendment right to self defense.”
However, defendant nowhere asks to be permitted to walk around armed with a firearm without a FOID card or CCL, in derogation of the state’s clear power to meaningfully regulate the possession of firearms.
Rather, he acknowledges that his possession violated the law but argues that his brief, unlawful possession of a handgun was justified because it was necessary to defend himself and his father.
In People v. Gullens, 2017 IL App (3d) 160668 (October) we held that a defendant was justified in momentarily possessing a handgun for the greater good.
In that case the defendant was “without blame in occasioning or developing the situation that resulted in the theft,” returning the gun himself was the sole option available, and returning it “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.”
This was a necessity defense.
Self defense, defense of another, and necessity are all justification defenses that employ a similar balancing of the circumstances a defendant faced against the actions he took. See 720 ILCS 5/7-1, 7-13; see also People v. Houser, 305 Ill. App. 3d 384, 392 (1999) (noting that, although “compulsion and necessity defenses are comprised of different elements,” the two “are closely linked, sharing the same factual basis”).
For all the reasons that necessity can be raised as a defense to an AAUW charge, so can self defense—which is itself a type of necessity, justifying the use of force when an immediate, greater evil threatens a person who initiated no violence and had no other recourse.
The State’s right and need to regulate guns does not mean that a criminal defendant cannot raise such a defense to a gun charge.
In our view, no reasonable trier of fact could have found any of these elements to be missing or that the threat was not imminent.
The unrebutted testimony was that defendant and his father were attacked without provocation, 73-year-old man suffered injuries as a result of being knocked off of the porch, and the three men coming out of the house were continuing to threaten them.
All of this transpired before defendant reached for the handgun, and none of it was initiated by him. The entire episode took only minutes. Throughout that time, defendant retained a reasonable concern for his and his father’s safety.
The record also indicates that defendant saw a bulge under Ra-Ra’s shirt that he believed was a weapon.
He faced a genuine dilemma when the men on the porch continued to threaten him and his father. Regardless of whether the men who had attacked him had a gun, he had a legitimate fear of injury to himself and further injury to his father, who was already immobilized with injuries. It was not unreasonable for defendant to leave the scene with the weapon rather than leave it there, where the three aggressors could have used it and where his incapacitated father was neither able to secure it nor use it to defend himself.
Claude’s conduct after leaving the altercation— manually unloading the handgun and identifying the ejected bullets for the police—reveals that defendant attempted to minimize or eliminate any harm resulting from his continued possession of the weapon. No rational trier of fact could have found that the State negated any element of Claude’s claim of self defense, and we find that defense justifies his conduct in this instance.
No rational trier of fact could find the State carried its burden with respect to negating either the defense of self defense or the defense of necessity, based on the undisputed evidence presented at trial.
We thus reverse Claude’s conviction for AUUW. See also
- Episode 429 – People v. Gullens, 2017 IL App (3d) 160668 (October) (Fundamental Fairness And The Necessity Defense Save Defendant 3 Years In This Gun Possession Conviction)
- Episode 504 – People v. Wilkinson, 2018 IL App (3d) 160173 (June) (A Test For Criminal Justice…Guy Gets Convicted For Defending Himself)