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The Magazine of Illinois Lawyers

November 2013Volume 101Number 11Page 554

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LawPulse

Defense attorneys challenge gun-possession convictions after high court ruling

In Aguilar, the Illinois Supreme Court overturned a law prohibiting gun possession outside the home. Criminal-defense attorneys are seeking to undo convictions based on the statute.

Following a recent decision in which the Illinois Supreme Court declared unconstitutional a statute prohibiting gun possession outside the home, criminal-defense attorneys around the state are now seeking to undo the convictions of people charged under that statute.

One Chicago-based lawyer said state prosecutors have also been dropping charges in pending cases against defendants charged with the now-defunct crime. News reports indicate that the Cook County state's attorney's office will be dropping charges against about 80 defendants in light of the recent ruling.

"The state's attorneys have stopped charging people under the statute and they're dismissing charges on pending cases," said Frank Tedesso, a sole practitioner who spends much of his professional life inside Cook County's criminal court on 26th and California streets in Chicago. "I have a client right now with a prior [conviction] under the exact same section that was declared unconstitutional, and I'm working to vacate that conviction. I'm also amending my motions to say you can't enhance a charge under the unconstitutional statute" in current or future cases.

Following the seventh circuit's lead

In People v. Aguilar, 2013 IL 112116, the state's high court unanimously struck down section 24-1.6(a)(1), (a)(3)(A) of the Illinois aggravated unlawful use of weapons statute, holding that the law violates the right to keep and bear arms guaranteed by the Second Amendment to the U.S. Constitution.

The most recent version of the statute, which generally prohibited the carrying and use of firearms outside a person's home or business, stated:

A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly: (1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her 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; or ...(3) One of the following factors is present: (A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded and immediately accessible at the time of the offense;....

For years, the Illinois Appellate Court had routinely upheld the law and the entry of convictions based upon it. In recent years, those courts cited to, as support for the convictions, a pair of U.S. Supreme Court decisions that the local courts interpreted to mean that the right to bear arms existed only inside a person's home.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court struck down a D.C. ordinance that banned handgun possession inside the home, and in McDonald v. City of Chicago, 561 U.S. ___ (2010), the court invalidated a similar ordinance in Chicago.

However, in 2012, the U.S. Court of Appeals for the Seventh Circuit held that the very same section of Illinois' statute was unconstitutional because it resulted in "a flat ban on carrying ready-to-use guns outside the home." Moore v. Madigan, 702 F.3d 933. That court ordered the Illinois General Assembly to pass a constitutional concealed-carry gun law, which it did this July with Public Act 98-0063.

In Aguilar, the Illinois Supreme Court held that the Heller and McDonald cases did, indeed, uphold the right to bear arms inside the home, but they did not state that the right to gun possession ceased to exist outside the home.

Defense lawyers: extend Aguilar to entire statute

Justice Robert R. Thomas wrote in Aguilar that a review of all three prior federal court decisions reveals that the right to bear arms extends beyond the walls of one's home. In Heller and McDonald, the courts discussed the right to bear arms not only within a home, but also for purposes of self defense.

"According to Moore, the clear implication of Heller's extensive historical analysis is that 'the constitutional right of armed self-defense is broader than the right to have a gun in one's home.' Moore notes, for example, that '[t]he first sentence of the McDonald opinion states that 'two years ago, in District of Columbia v. Heller, we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense,'" Thomas wrote.

Tedesso said he and many other defense attorneys believe Aguilar should be extended to apply to the entire statute, not just this particular subsection. "I think the court's decision opens it up [to vacate convictions] for anyone who has a conviction under that one particular subsection for sure.... If you had a FOID card, they're dumping [the case]," Tedesso said. "I think the defense bar has taken the position that the entire law [including a different subsection dealing with defendants who did not have a FOID card] is unconstitutional, but that has yet to be litigated."


Adam W. Lasker <alasker@ancelglink.com> is a lawyer in the Chicago office of Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer.