Our panel of leading appellate attorneys reviews the Illinois Supreme Court opinions handed down Friday, January 20. 

Chaudhary v. Department of Human Services, 2023 IL 127712

By Amelia Buragas

In Chaudhary v. Department of Human Services, the Illinois Supreme Court was tasked with determining which party bears the burden of proof in an action alleging overpayment of benefits paid pursuant to the Supplemental Nutrition Assistance Program (SNAP). In its analysis, the Supreme Court noted that that it was “mindful that care should be taken to ensure against an erroneous deprivation of critical nutrition benefits that jeopardize the health, wellness, and stability of low-income state residents.” With that consideration, along with the application of a long-standing default rule regarding the burden of proof where the relevant statutory language is silent on the issue, the court held that where the Department of Human Services initiatives an action to divest a SNAP recipient of benefits the burden of proof lies with the Department and stays with the Department throughout the appeal process.

Chaudhary was set into motion when the Department discovered that beneficiary recipient Ayesha Chaudhary, who along with her three children received SNAP benefits, and her ex-husband, Jon Mohammad Ramzan, who also received SNAP benefits, shared the same address. After an investigation, the Department concluded that the two shared a household and that, because they both were receiving benefits individually, Chaudhary had received benefits in excess of her household maximum. The Department began an overpayment collection process pursuant to Title 89, section 165.10(a) of the Illinois Administrative Code seeking to recover overpayments totaling $21,821. Chaudhary challenged the determination by filing an agency appeal. She presented evidence that she and Ramzan had been divorced since 2012 and that the two of them did not live at the same address during the overpayment period, but rather, Ramzan had been using that address solely to receive mail. Nevertheless, both an administrative law judge and the Secretary of Human Services found there was sufficient evidence presented by the Department to establish that the overpayment had occurred. Chaudhary then appealed to the circuit court, which reversed the Secretary’s final administrative decision. Defendants appealed, the appellate court affirmed the judgment of the circuit court, and the Supreme Court allowed defendants’ petition for leave to appeal.

The burden of proof was at issue throughout the proceedings with the Department arguing that Chaudhary bore the burden of proof because she initiated the action and because she was the party who had access to relevant information regarding the circumstances of the overpayment. The Department also argued that the language of the Code implicitly placed the burden of proof on Chaudhary. Chaudhary countered that the Department initiated the action when it sought to divest her of a benefit and, therefore, carried the burden of proof. Chaudhary also argued that the Department had superior access to the relevant public records and that the language of the Code did not implicitly place the burden on the SNAP beneficiary recipient.

The Illinois Supreme Court, acting under a de novo standard of review, noted that where a statute is silent, the “default rule” places the burden of proof on the party that initiates the action. It then rejected the Department’s argument that Chaudhary’s request of an appeal was “the affirmative step that starts the action,” and that that the determination that an overpayment occurred was merely an “internal process.” The court held instead that the action was initiated when the Department issued the notice of overpayment and that, under the default rule, the burden of proof belonged to the Department. The Supreme Court distinguished this conclusion from cases cited by the Department involving the denial of benefits, where the burden is placed on the applicant, noting that “there is a distinction between a party who appeals a benefit denial on application and a party who appeals and challenges an agency’s determination to divest the party of a benefit the party already receives.” The court instead found case law addressing the burden of proof in Social Security overpayment determinations to be instructive. The court noted that the Social Security Act does not designate which party bears the burden of establishing an overpayment, but that the federal courts have concluded that the burden of proving the existence and amount of an overpayment rests with the Administration. The court also was not persuaded by the Department’s argument that the Code implicitly placed the burden of proof on Chaudhary because of language relating to the disqualification of a recipient from SNAP benefits because of an intentional violation, saying that “we see no intent, either implicitly or explicitly, that the legislature intended to place the burden of proof in overpayment proceedings on a vulnerable population such as SNAP recipients.” Finally, the court found that the Department “obviously” had superior access to the records it used to make the determination that there was an overpayment. Thus, the court held that the Department carried the burden of proof in SNAP overpayment proceedings. In doing so, the court overruled Smoke N Stuff, 2015 IL App (1st) 140936 to the extent that it suggested that the burden of proof belonged to the recipient beneficiary.

The court then went on to conclude that the ALJ and Secretary’s decisions were against the manifest weight of the evidence because the record supported the conclusion that they solely relied on evidence submitted by the Department from outside of the overpayment period. The court also noted that Chaudhary submitted an “abundance of evidence” supporting her position that Ramzan did not reside at the same address during the overpayment period. The unanimous opinion was authored by Justice Neville. Justices Rochford and O’Brien took no part in the decision.

Duniver v. Clark Material Handling Co., 2023 IL 128141 

By Michael T. Reagan, Law Offices of Michael T. Reagan

The plaintiff filed this complaint for personal injury arising out of a very serious workplace injury.  A month later he filed for bankruptcy protection.  In his bankruptcy filings, he did not disclose this personal injury lawsuit, and answered “no” when asked whether he was suing anyone.  However, in response to another question concerning contingent claims, he disclosed, without elaboration, that he had a worker’s compensation case, and, with prominent misspellings, he listed the name of the firm which is representing him in the personal injury case.  On another form he answered “yes” as to whether he was involved in any other lawsuits, court actions or administrative proceedings.  He listed a collection action against him, but did not list this personal injury case. When asked under oath by the trustee whether he was suing anyone, he answered “no.”

A bankruptcy plan was confirmed by the bankruptcy court.

The defendants in this case filed a motion for summary judgment asserting that plaintiff should be estopped from maintaining this suit because he had failed to disclose it in that bankruptcy petition, and that plaintiff lacks standing because the claim belonged to the bankruptcy estate.

Plaintiff responded with an affidavit stating that he had relied on his bankruptcy counsel to tell him what needed to be included in the petition, that he had not intended to deceive anyone, and that he had directed his attorney to correct the plan once he learned that this claim should have been included.

The circuit court granted summary judgment.  On a motion for reconsideration, plaintiff informed the court that he had filed disclosed this case in an amended petition, and that the bankruptcy case had been dismissed due to plaintiff’s failure to make payments under the bankruptcy plan. With respect to the elements of judicial estoppel, he argued that he had not obtained a benefit because the bankruptcy case had been dismissed without a discharge of debt.  Reconsideration was denied.

The appellate court reversed.  Here, the Supreme Court affirmed the appellate court. At several junctures in this opinion, the court quotes felicitous language from plaintiff’s brief.  In finding that plaintiff still had standing, the court agreed with plaintiff that upon dismissal of the bankruptcy case, “no matter the reason, the claim had to revest in Duniver; it did not move to some kind of legal purgatory.” The court agreed that the complaint could have been amended to reflect the true owner of the claim, noting that misnomers most commonly occur when defendants are misnamed, ‘but plaintiffs also sometimes misname themselves.” The court contrasted Barnes v. Lolling, 2017 IL App(3d) 150157 where the debtor was discharged without disclosing an accrued cause of action.

Then turning to judicial estoppel, the court noted that the doctrine “addresses the problem of a party acting in bad faith, playing fast and loose with the court.” The court set out the five prerequisites for the doctrine, but then said that even where they exist, the party’s inconsistent positions additionally must have resulted from an intent to deceive or mislead.

In examining the standard of review, and noting relevant precedent, the court contrasted the abuse of discretion standard that applies to a circuit court’s application of judicial estoppel with the de novo standard that applies to an appeal from the grant of summary judgment. A de novo standard is to be applied, with the presumptions attendant to review of summary judgment.

The court concluded that the circuit court erred in granting summary judgment because reasonable people could draw divergent inferences on whether plaintiff’s omissions and misstatements revealed inadvertence or an intent to deceive.

In light of that conclusion, the court did not need to reach any of the other elements of judicial estoppel.  However, as to defendants’ argument that the appellate court had mischaracterized the necessity of having received by saying it had to be “significant,” the court said that it reaffirmed the “some benefit” standard from precedent.

Justice Holder White wrote for the court; Justices Rochford and O’Brien did not participate.

Lintzeris v. City of Chicago, 2023 IL 127547 

By Joanne R. Driscoll, Forde & O’Meara LLP

The issue in this case was whether the City’s ordinance imposing administrative penalties on the owners of impounded vehicles (Chicago Municipal Code § 2-14-132 (amended Nov. 16, 2016)) was an invalid exercise of the City’s home rule authority because it was preempted by section 11-208.7 of the Illinois Vehicle Code (625 ILCS 5/11-208.7 (West 2016)). The circuit court dismissed the complaint upholding the City’s authority, and the appellate court affirmed.

The City’s ordinance sets forth procedures, penalties, and fees that apply to vehicle owners when their vehicle is impounded because of its use in certain enumerated municipal code offenses. See Chicago Municipal Code § 2-14-132 (added Apr. 29, 1998).

In a unanimous decision written by Chief Justice Theis, with three justices taking no part, the supreme court rejected the plaintiffs’ preemption argument. The decision began with a discussion of the constitution’s broad grant of power to home rule units to regulate for the protection of public safety and the authority of the General Assembly to limit that power only by express statements to that effect. Ill. Const. 1970, art. VII, §§ 6(a), (h). Absent express limitation or denial of home rule authority, home rule units are permitted to operate concurrently with the General Assembly. Id., § (6)(i).

Turning to the plain language of the Vehicle Code, the court explained the relevant provisions in Chapter 11. Section 11-207 forbids the adoption of ordinances that conflict with Chapter 11 (625 ILCS 5/11-207 (West 2016)), and section 11-208.2 expressly limits home rule units to enact ordinances that are not inconsistent with local police regulations (id. § 11-208.2). A 2012 amendment authorizes counties and municipalities to “provide by ordinance procedures for the release of properly impounded vehicles” and to impose “a reasonable administrative fee” for administrative and processing costs associated with the investigation, arrest, and detention of an offender, or the removal, impoundment, storage, and release of the vehicle. 625 ILCS 5/11-208.7(a) (West 2016). A 2016 amendment added subsection (j), which stated that the fee limitations in section 208.7 did not apply to home rule units that tow a vehicle on a public way if a circumstance requires the towing or if the vehicle is towed due to a violation of a statute or local ordinance and the home rule unit owns and operates a towing facility and owns or operates tow trucks. 625 ILCS 5/11-208.7(j) (West 2016).

According to the court, section 208.7 allowed home rule units to impose reasonable administrative fees to recoup remedial costs related to impoundment of a vehicle and that the City’s imposition of administrative penalties related to the impoundment were not inconsistent with that section. Nothing in the statute expressly negated the home rule unit’s authority to impose administrative penalties, and there was no express language of prohibition or exclusion in the statute stating that only “fees” may be charged.

Before addressing the plaintiffs’ second argument―that the City’s ordinance was unconstitutional because it did not pertain to the City’s local government and affairs as required by article VII, section 6―the court explained the law on forfeiture, noting that plaintiffs’ argument had not been raised, including in the petition for leave to appeal. Finding that the new issue did not meet the exception to forfeiture, when the issue is inextricably intertwined with other matters before the court, the court took note of its ability to relax the forfeiture rules if the issue is one of law, the issue is fully briefed and argued by the parties, and the public interest favors considering the issue. Addressing the issue on that basis, the court then rejected plaintiffs’ new argument, concluding that vehicle regulation does pertain to a home rule unit’s government and affairs.

Relaxing the forfeiture rules for a second time, the court then considered and rejected plaintiffs’ last argument, that the City’s impoundment ordinance violated double jeopardy. Noting that this protection only applies to criminal offenses, the court explained that civil penalties that are so punitive can be transformed into criminal penalties. Considering several of the factors set forth in Hudson v. United States, 522 U.S. 93, 99 (1997) to determine whether a punishment is civil or criminal in nature, the court concluded that the City’s ordinance was not so punitive as to be subject to double jeopardy.

People v. Heineman, 2023 IL 127854

By Kerry J. Bryson, Office of the State Appellate Defender

In 2016, Ryan Heineman was charged with two counts of aggravated DUI, one alleging that Heineman operated a motor vehicle while the alcohol concentration in his blood was .08 g/dl or greater, and the other alleging that Heineman operated a motor vehicle while under the influence of alcohol. The charges arose out of a motor vehicle accident which resulted in Tanya McDonough’s death. McDonough was Heineman’s longtime friend and neighbor.

At trial, there was evidence that Heineman and McDonough had hosted a birthday party on the night in question. Witnesses testified that Heineman drank “Jack and Coke” and “Jell-o shots” throughout the evening. At some point, McDonough and Heineman left in Heineman’s Jeep and got into the accident which resulted in McDonough’s death.

Heineman was taken to the emergency room after the accident, and a serum alcohol test was done on his blood. The emergency room doctor testified that Heineman’s serum alcohol was 155 mg/dl, which was consistent with intoxication. Officer Marc Fisher then testified that Heineman’s serum alcohol level of 155 mg/dl equated to a whole blood alcohol level of .131 g/dl. Fisher calculated Heineman’s whole blood alcohol concentration by using a “conversion factor” of 1.18, which he based on Section 1286.40 of the Illinois Administrative Code. Defense counsel objected to this testimony on the ground that Fisher was not an expert in toxicology, but the objection was overruled.

On appeal, Heineman argued that the State had not introduced competent evidence to prove that his whole blood alcohol concentration was greater than .08 g/dl. Specifically, he noted that Fisher was not an expert and his testimony about Section 1286.40 was hearsay. The appellate court affirmed, with a dissenting justice concluding that the conversion factor was a scientific fact requiring expert testimony.

The Illinois Supreme Court agreed with Heineman that Fisher’s testimony was outside the bounds of that which is appropriate for a layperson. The conversion factor is a scientific fact determined by a scientific process. In reality, there is not a single conversion factor; instead there is a scientifically acceptable range of possible conversion factors (generally between 1.12 and 1.20), defined by science and developed by toxicologists. While Section 1286.40 of the Administrative Code purports to establish a conversion factor, expert testimony is required to establish the scientifically acceptable range of conversion factors and to establish that the 1.18 factor set forth in Section 1286.40 falls within that range. No such evidence was produced here. All the jury heard was Fisher’s testimony that he applied a mathematical formula to convert Heineman’s blood serum alcohol concentration to its whole blood equivalent, without any scientific basis. This was insufficient to prove Heineman’s whole blood alcohol concentration, and the admission of Fisher’s testimony on that point was error.

Additionally, while the trial court did not take judicial notice of the conversion factor, the State argued that it could have, thereby dispensing with the need for expert testimony. The Supreme Court disagreed. When a court takes judicial notice of the existence of Section 1286.40, it is accepting the section’s existence, but not it’s truth. That is, the 1.18 conversion factor contained in the administrative code is an “incomplete picture of the scientific community’s understanding” that there is a scientifically acceptable range of conversion factors. Because there is a scientifically acceptable range, rather than a single accepted factor, the 1.18 conversion factor is not capable of accurate and ready determination by sources whose accuracy cannot reasonably be questioned. While a court may take judicial notice of Section 1286.40, application of the 1.18 conversion factor contained in that section is a permissive presumption that the court need not accept. And, importantly, where a court takes judicial notice of an adjudicative fact, the jury must be instructed that it may, but is not required to, accept the judicially noticed fact. Thus, the potential for judicial notice does not dispense with the need for expert testimony.

The circuit court abused its discretion in admitting Fisher’s testimony regarding the conversion factor, and the State therefore failed to prove that Heineman’s blood alcohol concentration was 0.08 g/dl or greater. Accordingly, the court reversed Heineman’s conviction on that count.

But, the court upheld Heineman’s other aggravated DUI conviction, which was predicated on his driving while under the influence of alcohol. While the jury was instructed it could presume that Heineman was under the influence if it found that his blood alcohol concentration was 0.08 g/dl or greater, the jury was not required to make that presumption. And, there was ample other evidence from which a rational trier of fact could find that Heineman was under the influence of alcohol, including testimony Heineman had consumed several alcoholic drinks before the accident, that he was intoxicated, and that his eyes were glassy and he was behaving out-of-character on the night in question. Additionally, the jury could consider the testimony of the emergency room doctor that Heineman’s serum alcohol level was “consistent with intoxication.” Thus, the court concluded that the improper admission of Fisher’s testimony as to the conversion factor was harmless with regard to Heineman’s alternate conviction.

People v. Davidson, 2023 IL 127538

By Kerry J. Bryson, Office of the State Appellate Defender

Lance Davidson was charged with aggravated battery to a correctional institution employee, alleging that he made insulting or provoking contact with James Stitt by pushing him during an altercation at the jail. At trial, Stitt testified that Davidson was in a common area of the jail, also known as a day room, when he became agitated and angry. Stitt told Davidson he was going to be put on “lock down,” but Davidson said he would not comply. Davidson was screaming and swearing. Stitt then entered the day room and approached Davidson, who ran to the other side of the room. After chasing Davidson across the room, Stitt moved toward Davidson to restrain him and put him in his cell. Davidson then shoved Stitt. Stitt ultimately succeeded in taking Davidson to his cell. Stitt did not have any marks or injuries as a result of the encounter. Stitt testified that he believed Davidson had become upset after a court appearance earlier that day.

Davidson testified and confirmed that he was upset because he had expected to be released from custody at his court hearing. While he was yelling and kicking doors, his anger was not directed at anyone in particular. Davidson said Stitt tried to grab him and chased him around the day room. Davidson jumped across a table to get away, and Stitt then pushed Davidson into his cell. Davidson said he never hit Stitt. Another inmate who was present, Wallace, said he did not see any physical contact between Davidson and Stitt, but Wallace could not see the corner of the day room where the pushing allegedly occurred. After deliberating for about 90 minutes, the jury indicated it could not reach a verdict. The court instructed the jury to continue deliberations, and the jury subsequently found Davidson guilty.

On appeal, Davidson argued that the State failed to prove that he made physical contact of an insulting or provoking nature with Stitt where the evidence failed to show that Stitt was insulted or provoked. The appellate court affirmed, concluding that insulting or provoking contact can be inferred from the circumstances and that the alleged victim need not testify that he was insulted or provoked.

The Supreme Court granted leave to appeal and affirmed. Under 720 ILCS 5/12-3(a), a person commits battery if he knowingly without legal justification “makes physical contact of an insulting or provoking nature” with another. The question of whether contact is insulting or provoking is an objective inquiry. The court noted that the statute uses the noun “nature,” which suggests a focus on the type of contact involved rather than the victim’s subjective impressions of that contact. Thus, the State need not prove that the victim was insulted or provoked by the contact to sustain a battery conviction. Accordingly, Davidson’s conviction was affirmed.

People v. Jones, 2023 IL 127810

By Kerry J. Bryson, Office of the State Appellate Defender

Teranza Jones was charged with unlawful possession of ammunition by a felon when, during a traffic stop, two .40 caliber bullets were located in the bottom of the glove box of her car. No gun was found in the car. Jones’s previous felony conviction was for identity theft in 2002, when Jones was 19 years old.

The officer who discovered the ammunition, Zachary Wakeland, testified at trial that the bullets were found under the vehicle owner’s manual and several other papers in the glove box. Wakeland said Jones told him the ammunition belonged to her husband. Jones testified she did not know that the bullets were in the glove box until Wakeland asked her about them. She said she assumed the bullets belonged to her husband because he regularly drove the vehicle and was a licensed firearm owner. Jones’s husband, Lee Brown, confirmed that the ammunition was his, explaining that he used the car to drive to East St. Louis to visit his children. Brown testified that his usual practice on those trips was to put the firearm in the trunk and the ammunition in the glove box. Brown said he must have left the two bullets in the glove box on accident.

During jury deliberations, the jury asked for the definition of “knowingly.” Initially, the State requested that the court give the jury the first paragraph of IPI 5.01B, and defense counsel asked the court to give the first and second paragraphs, expressing concern over the second sentence of the first paragraph, which states, “knowledge of a material fact includes awareness of the substantial probability that the fact exists.” The court then suggested that “knowingly” has a plain meaning within the jury’s understanding such that no instruction need be given. The State’s Attorney agreed, and defense counsel assented, stating that he would “rather just have the jury define it for themselves.” Ultimately, the court responded to the jurors that “the word ‘knowingly’ should be given its plain meaning within the jury’s common understanding.” The jury subsequently found Jones guilty.

On appeal, Jones argued that the State failed to prove her guilty beyond a reasonable doubt in that it failed to prove knowing possession of the ammunition. And, Jones argued in the alternative that the Court improperly instructed the jury on the definition of “knowingly” and that defense counsel was ineffective for failing to object to the court’s response to the jury’s request.  The appellate court rejected Jones’s arguments and affirmed her conviction. Jones raised both the sufficiency and instruction issues in her petition for leave to appeal, and the Illinois Supreme Court affirmed the decision of the appellate court.

With regard to Jones’s challenge to the sufficiency of the evidence, the court first noted that the standard of review is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Under that standard, all reasonable inferences from the evidence must be drawn in favor of the prosecution. Here, reasonable inferences from the evidence established that Jones had constructive possession of the ammunition. In particular, she had control over the vehicle in which the ammunition was located. She was both its registered owner and its driver at the time the bullets were found in the bottom of the glove box. And, a rational trier of fact could conclude that she had knowledge of the presence of the ammunition where, at the time of her arrest, Jones told the officer that the bullets belonged to her husband. The court noted that Jones testified that she had simply assumed that the ammunition was her husband’s because he had guns and a FOID card, and also noted that the evidence of Jones’s knowledge was “highly circumstantial.” But, when viewed in the light most favorable to the prosecution, the evidence was sufficient to permit a rational trier of fact to conclude that Jones knowingly possessed the ammunition.

With regard to the court’s response to the jury’s request for a definition of “knowingly,” the court agreed with the State that Jones’s counsel had affirmatively acquiesced to telling the jury to give the word its plain meaning, thereby precluding plain error review. The court went on to hold that the failure to give the IPI actually favored Jones’s position because the IPI included the “substantial probability” language about which counsel had expressed concern. Given Jones’s husband’s testimony that Jones knew he transported his firearm in her vehicle, it is likely the jury would have found Jones was aware of a substantial probability that there were two bullets in her glove box. Thus, counsel’s decision to acquiesce in the court’s response was a matter of strategy and was not deficient performance.

People v. Villareal, 2023 IL 127318

By Kerry J. Bryson, Office of the State Appellate Defender

Juan Villareal was charged with, and convicted of, unlawful possession of a firearm by a streetgang member. Villareal did not take a direct appeal. He subsequently filed a 2-1401 petition challenging his mandatory supervised release term. On appeal from the denial of that petition, Villareal abandoned the MSR claim and instead challenged the constitutionality of the unlawful possession of a firearm by a streetgang member statute, 720 ILCS 5/24-1.8(a)(1), alleging that it constituted cruel and unusual punishment, violated substantive due process, and was unconstitutionally vague, thus violating the eighth and fourteenth amendments to the constitution. The Illinois Supreme Court rejected each of those challenges.

          Section 24-1.8(a)(1) provides:

          (a) A person commits unlawful possession of a firearm by a street gang member when he or she knowingly:

               (1) possesses, carries, or conceals on or about his or her person a firearm and firearm ammunition while on any street, road, alley, gangway, sidewalk, or any other lands, except when inside his or her own abode or inside his or her fixed place of business, and has not been issued a currently valid Firearm Owner’s Identification Card and is a member of a street gang[.]

With regard to substantive due process, Villareal argued that the statute improperly criminalizes gang association without requiring any nexus between an individual’s gang member status and the prohibited conduct of firearm possession. The court rejected this argument, applying the rational basis test because the parties agreed that the statute does not impact a fundamental right. For a statute to survive rational basis review, it must serve a legitimate state interest and there must be a reasonable relationship between the interest and the statute. Here, the purpose was specifically identified by the legislature as protecting innocent citizens and public areas by severely punishing gang members, who are prone to cause violence in public. The statute is targeted at gang members who possess firearms and ammunition in public areas, and it increases the penalty for the proscribed conduct when the offender is a gang member. The court concluded this was reasonable and rationally related to the purpose of curbing gang violence against innocent persons in public places.

The court rejected Villareal’s argument that the statute should fail rational basis review because it does not require any connection between gang association and the underlying conduct of unlawfully possessing a firearm. But, the court explained that while requiring a direct connection between gang membership and firearm possession would be an alternate means of accomplishing the legislative purpose, it is not the only means. The court also rejected Villareal’s argument that the statute does not require active gang membership and thus risks penalizing individuals with only passive association with a gang. Instead, the court noted that the definition of gang member refers to those who “actually and in fact belong to” a gang, requiring more than a passive degree of association.

As to vagueness, Villareal argued that the two gang member definitions included in the statute fail to provide sufficient guidance for determining whether an individual is a gang member. The court disagreed, noting that under either, gang membership requires active participation in criminal activity by someone who actually belongs to the gang or is acting as an agent for the gang. While the second definition also includes those who “voluntarily associate” with the gang, in the context of the entire definition it is clear that such association must be connected to the criminal activity of the gang. Thus, the definitions are sufficient to provide adequate guidance for enforcement and are not unconstitutionally vague.

Finally, Villareal’s eighth amendment argument was predicated on the notion that gang membership is a status, not conduct, and that the statute improperly imposed criminal liability based solely on status. But, the court concluded that the statute includes a prohibition on conduct, that being the unlawful possession of a firearm or ammunition without a FOID card, and thus it does not criminalize mere status. And, while that act itself is already criminalized elsewhere in the code, the legislature has the authority to increase the penalty for that offense when committed by offenders of a particular status, here gang members.