The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old March 18, 2013, 07:07 AM   #451
Patriot86
Senior Member
 
Join Date: December 23, 2010
Location: Chicagoland
Posts: 1,293
Story on the Texas Prosecutor who was gunned down:

http://www.nytimes.com/2013/02/02/us...ting.html?_r=0

Rumor is he worked on a number of cases involving the ABT, which could play into this.
__________________
"....The swords of others will set you your limits".
Patriot86 is offline  
Old March 19, 2013, 10:01 PM   #452
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,676
Quote:
KyJim, I think Thomas Provenzano shooting up the courthouse in Orlando, FL in 1984 had more to do with metal detectors and gun bans in courthouses.
Maybe nationally, but not in this state. I remember it well. The judge was a neighbor at the time.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old March 23, 2013, 07:30 AM   #453
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 379
A portion of Illinois gun law ruled unconstitutional by Cook Co Circuit

I can't find the actual court docs but on 3/15, in the case of People v. Donta Mosley, 12-CR-5646-01, Judge Michael Brown found two provisions of 720 ILCS 5/24-1.6 6(d)(2) unconstitutional.


That is the section on classifying the offense as a felony and a minimum sentence of 1 year:

Quote:
a first offense of aggravated unlawful use of a weapon committed with a firearm by a person 18 years of age or older where the factors listed in both items (A) and (C) of paragraph (3) of subsection (a) are present is a Class 4 felony, for which the person shall be sentenced to a term of imprisonment of not less than one year and not more than 3 years.
The problem with the provision is 2 fold according to Judge Brown, 18-20 year olds aren't allowed to obtain or sign their own FOID cards, under the FOID statute they need a parent or gaurdian to obtain a FOID for them.

I haven't read the opinion yet - I'm not even sure it will ever be available online. But what I think the judge is saying is that a law cannot treat a person as an adult under its sentencing provisions while not treating that same person as an adult under it's other provisions.

Or another way of putting it is that you cannot sentence someone as an adult for failing to comply with a statute, when the statute itself disqualifies their compliance because it doesn't categorize them as an adult.

The second problem with the law according to Judge Brown is that the punishment is disproportionate.

He also makes a general reference in the opinion that the AUUW law is unconstitutional on it's face and as applied.

I don't have the printed decision so I'm not sure what the last comment really means, but there are 2 sections of the law in Illinois

1) Unlawfull Use of a Weapon (UUW)

(720 ILCS 5/24-1) (from Ch. 38, par. 24-1)

2) Aggravated Unlawfull Use of a Weapon (AUUW)

(720 ILCS 5/24-1.6)

It seems that Judge Brown just ruled AUUW uncostitutional which might mean that only the UUW portion of the law remains.

There are provisions under UUW for felonies - such as possesion of a firearm on school property, a courthouse, a place that serves alcohol and some other caveats, but for the most part violating Illinois UUW law in most cases would be only a misdemeanor.
Luger_carbine is offline  
Old March 26, 2013, 02:46 PM   #454
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 379
A link to People v Mosley - Illinois Aggravated Unlawfull use of a Weapon

http://illinoiscarry.com/forum/index...ttach_id=10683
Luger_carbine is offline  
Old March 26, 2013, 05:38 PM   #455
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,676
The court's holding that the punishment was disproportionate was based on state law grounds, not the federal constitution. The 8th Amendment's ban on cruel and unusual punishment is not involved (as the trial court noted).

The trial judge also ruled that the law prevented a 20-year old from getting a FOID and it would therefore violate due process to charge him with having a firearm without an FOID. An alternate interpretation is that this is exactly what the Illinois legislature intended -- to make it unlawful for anyone under 21 years of age to possess a handgun. I would think the state might consider appealing the decision if this were the only issue. They may not since the case has no precedential value (at least as far as I know).
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old March 28, 2013, 11:53 AM   #456
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 379
Cook County Circuit Court decision that seems to say Moore does't apply to IL AUUW

http://www.state.il.us/court/Opinion...ct/1110793.pdf

Quote:
II. Second Amendment

¶ 15 In addition, defendant argues his conviction under the AUUW statute violates his right to keep and bear arms under the second amendment of the United States Constitution.

After the filing of this appeal, however, the Seventh Circuit Court of Appeals issued an opinion finding Illinois's AUUW statute unconstitutional. See Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).1 Nonetheless, the decision is not binding on Illinois courts. People v. Stansberry, 47 Ill. 2d 541, 544-45 (1971). Without a ruling from the United States Supreme Court, a split often exists between the lower federal courts.2 Id. at 545. As the United States Supreme Court has not yet ruled on this question, the Seventh Circuit's decision in Moore constitutes at most persuasive authority.

Regarding the constitutionality of the AUUW statute, we do not find the Seventh Circuit's reasoning in Moore persuasive. We find it important to note again that the Court in "Heller and McDonald specifically limited its rulings to interpreting the second amendment's protection of the right to possess a handgun in the home for self-defense purposes, not the right to possess handguns outside of the home." Aguilar, 408 Ill. App. 3d at 148. Accordingly, we do not agree with the Seventh Circuit that the right to self-defense delineated in Heller and McDonald encompasses a right to carry a loaded, readily accessible firearm in public areas. Given the line of contrary precedent in Illinois courts on this issue, we see no reason to adopt the decision in Moore.
The first time this notion came up - Paul Castiglione, policy director for the Cook County State’s Attorney’s office, told lawmakers there is no need for a new law.

Quote:
“Only the Illinois Supreme Court can declare a statue from (the legislature) unconstitutional,” Castiglione told lawmakers Tuesday. “I heard (someone) say that after 180 days our UUW (unlawful use of weapon) statute is unconstitutional. Not so.”
It seemed a bit farcical, but now we have a judge saying somethig similar in an opinion. If they were saying that Moore doesn't give a convicted felon the right to carry a handgun - I could see that, but that doesn't seem to be what the judge is saying.
Luger_carbine is offline  
Old March 28, 2013, 02:05 PM   #457
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,676
No, the state courts don't have to follow a federal circuit court of appeals. However, that doesn't mean the federal courts are without teeth. If officials violate an injunction (say, Chicago), it and those acting in active concert or participation with it can be held in contempt. A violation of the 2nd Amendment could also lead to a civil judgment with damages and attorney fees -- at least in regard to local governmental entities and officials. The 11th amendment makes money judgments in those cases against state government more problematic but it has been a while since I reviewed any of that case law so I won't try to discuss it.

The worst problem is that someone could get convicted of a criminal offense in state court and, after unsuccessful appeals in state court, go to federal district court seeking a writ of habeas corpus because the constitution was violated. However, the state would defend by arguing that the state court's interpretation of the law's constitutionality was not contrary to clearly established Supreme Court precedent or a clearly unreasonable application of Supreme Court precedent. The state interpretation must be objectively unreasonable. It may be wrong but not objectively unreasonable. The fact that some of the circuit courts of appeal have ruled contrary to the 7th Circuit's interpretation would give Illinois ammo to make this argument.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.

Last edited by KyJim; March 28, 2013 at 02:22 PM.
KyJim is offline  
Old March 28, 2013, 02:06 PM   #458
press1280
Senior Member
 
Join Date: May 17, 2012
Posts: 221
I'm sure this will be appealed.
Someone will have to explain why Moore isn't binding in the IL state court.
press1280 is offline  
Old March 28, 2013, 02:11 PM   #459
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 379
Maybe giving the Illinois politicians so much time was a mistake

Maybe Posner should have only given them 100 days or someting, because it looks like the more time they have the more they mess things up:

An article in the Tribune that summarizes the messy legal landscape in Illinois right now:

http://www.chicagotribune.com/news/l...,6942232.story

Last edited by Luger_carbine; March 28, 2013 at 02:38 PM.
Luger_carbine is offline  
Old March 28, 2013, 02:22 PM   #460
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 379
Quote:
I'm sure this will be appealed.
An appeal would end up in front of either Judge Meyerscough or Judge Stiehl right?

That would be interesting especially if it was Myerscough.

But really - I seriously doubt that Moore can be construed to allow a convicted felon to carry a firearm.

I guess the argument is that since the entire law was ruled unconstitutional - so then were the provisions concerning felons with firearms.

I would have thought the illinois legislature could have created a simple law prohibiting convicted felons from carrying firearms relatively quickly - but it looks like they've been wasting their time haggling over creating gun-free VFWs, libraries, truckstops and gun-free hosptial parking lots.
Luger_carbine is offline  
Old March 28, 2013, 02:26 PM   #461
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,676
Quote:
Someone will have to explain why Moore isn't binding in the IL state court.
Because the states still have a measure of sovereignty. Just like there may be splits of opinions between federal circuits, there can also be splits between a state and a federal circuit court of appeal, even if that state is located within that circuit. As I mentioned in my post #457 above, the federal courts still have teeth for violations of an injunction or by awarding monetary judgments under 11 U.S.C. section 1983.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old March 29, 2013, 08:20 AM   #462
press1280
Senior Member
 
Join Date: May 17, 2012
Posts: 221
This is a county circuit court ruling, not the IL Supreme Court. Cook County can overrule the CA7?
Seems you now have some chaos in IL-I thought I read another county was going to throw out an UAW conviction based on Moore. It would seem there's a split now between Moore and this Cook County ruling, one saying a total carry ban is OK, one saying it isn't OK. Seems this throws fuel on the fire for SCOTUS to take Kachalsky(or some other case).

Last edited by Vanya; March 29, 2013 at 07:46 PM. Reason: removed Crook County AGAIN. This is not OK here.
press1280 is offline  
Old March 29, 2013, 03:29 PM   #463
mrray13
Senior Member
 
Join Date: January 26, 2008
Location: deep south illinois
Posts: 726
Ok, a little insight needed. Did the judge just rule AUUW unconstitutional on just those two accounts? Someone was saying something about a felon trying to overturn UUW, or AUUW? Here's why I ask...

on Tuesday I go to court on a prelim, I'm a deputy Sheriff in this wonderful state of Illinois, on a felon, caught with an uncased, loaded firearm in a vehicle within reach, and with a bag of cannabis in his pocket. More then enough to charge AUUW, not too mention UUW by Felon. Both of which are felonies, and this pillar of the community needs another stay at our fine DOC. Depending on who his appointed attorney is, one is a plea bargin machine, the other fights everything, this could turn south quickly. Does any of those rulings apply to a county as far away from Cook as you can get in Illinois, or do they apply to Cook County only? Or am I misreading/misunderstanding all of it?

Thanks ahead of time!!
mrray13 is offline  
Old March 30, 2013, 11:11 PM   #464
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,676
mrray13 --

I don't think any of this effects your arrest (the 7th Circuit case is not final yet) but your local DA is the person to ask.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old March 30, 2013, 11:18 PM   #465
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,676
Quote:
This is a county circuit court ruling, not the IL Supreme Court. Cook County can overrule the CA7?
It's not overruling the 7th Circuit because it is not a superior court to the 7th. It's sorta' like the county circuit court is in a different chain of command than the 7th Circuit. Both chains eventually merge and answer to the U.S. Supreme Court. This is not a perfect analogy because, as I mentioned before, the federal courts can enjoin enforcement of the laws and enforce it through contempt proceedings.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old March 31, 2013, 05:52 AM   #466
press1280
Senior Member
 
Join Date: May 17, 2012
Posts: 221
http://www.state.il.us/court/Media/On_Demand_2012.asp

The People v. Aguilar case(argued 9-11-2012) is waiting for an opinion at the IL supreme Court. I'm actually hoping for a loss here, then CA7 and the IL Supreme Court will have split. It's all about getting a case before the high court, and more conflict among lower courts the better chance.
press1280 is offline  
Old March 31, 2013, 11:22 AM   #467
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
I had forgotten about Aguilar! Thanks for the reminder, press1280.

Should the IL Supreme Court agree with the CA7, before the conference for Kachalsky, this would tend to push the SCOTUS towards granting cert.

I suspect that the IL Court may be watching to see what the SCOTUS might do.

This gets very convoluted, very quick. There is a general feeling, among court watchers and constitutionalists, that should the SCOTUS deny the grant of cert in Kachalsky, then we will not see any cases before the Supreme Court for a long time. This despite what Scalia has publicly said to the contrary.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old April 1, 2013, 07:28 AM   #468
Patriot86
Senior Member
 
Join Date: December 23, 2010
Location: Chicagoland
Posts: 1,293
Quote:
The People v. Aguilar case(argued 9-11-2012) is waiting for an opinion at the IL supreme Court. I'm actually hoping for a loss here, then CA7 and the IL Supreme Court will have split. It's all about getting a case before the high court, and more conflict among lower courts the better chance.

I wonder if the Illinois Supreme Court will go the Anita Alvarez route and claim to be "above the law" and that federal courts have no power over Illinois law

As painful as it is to watch, I cannot help and laugh some of the just downright stupid things that my state tries to pass off.
__________________
"....The swords of others will set you your limits".
Patriot86 is offline  
Old April 1, 2013, 10:43 AM   #469
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 379
IANAL, but Illinois looks like it has a very messed up legal landscape.

You have one judge ruling that AUUW is unconstitutional - unrelated to Moore. You have another judge who goes out of his or her way to say that the Moore decision is not binding on Illinois courts, in a situation that Moore wouldn't necesarily have applied to (convicted felon with a firearm).

I'm wondering how this gets sorted out. If the state appeals People vs Mosely, could the case even be heard before the June 9th deadline?

It seems like it will be a mess at least until June 9th, but what happens then?
Luger_carbine is offline  
Old April 2, 2013, 06:26 PM   #470
Jim March
Senior Member
 
Join Date: February 14, 1999
Location: Pittsburg, CA, USA
Posts: 7,323
Let's not forget the Supreme Court of PUERTO RICO of all places ruling for a 2A right to carry and implementing shall-issue by court order.
__________________
Jim March
Jim March is offline  
Old April 3, 2013, 12:59 AM   #471
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 215
The one judge who said that the Seventh Circuit decision is not binding on state courts is right, but for the wrong reasons. He is right only because the 7th has not yet issued an injunction barring enforcement of the carry ban. If and when it does so, you can bet your bippy that the decision will be binding on all state government, including the courts.

Which leaves an interesting question. We are down to a couple of months before the decision becomes final, and it won't if Illinois passes a carry bill. So what is the status? I haven't heard anything in weeks other than that hearings were being scheduled.
62coltnavy is offline  
Old April 3, 2013, 06:01 AM   #472
ming
Member
 
Join Date: July 26, 2009
Posts: 65
spring break for the legislature. Their back next week.
ming is offline  
Old April 3, 2013, 07:35 AM   #473
Patriot86
Senior Member
 
Join Date: December 23, 2010
Location: Chicagoland
Posts: 1,293
Quote:
Let's not forget the Supreme Court of PUERTO RICO of all places ruling for a 2A right to carry and implementing shall-issue by court order.
I am starting to agree with that whole 51st state thing all of a sudden...
__________________
"....The swords of others will set you your limits".
Patriot86 is offline  
Old April 5, 2013, 05:15 PM   #474
MTGreen
Member
 
Join Date: January 20, 2013
Posts: 35
Jurisdictional Authority

Quote:
No, the state courts don't have to follow a federal circuit court of appeals. However, that doesn't mean the federal courts are without teeth.
Quote:
However, the state would defend by arguing that the state court's interpretation of the law's constitutionality was not contrary to clearly established Supreme Court precedent or a clearly unreasonable application of Supreme Court precedent. The state interpretation must be objectively unreasonable. It may be wrong but not objectively unreasonable.
This may well be the case where the Circuit in which the state court resides has not spoken, but not before the same Circuit that has clearly spoken on a federal constitutional grounds.

Any Circuit that would allow states to pick among Circuits in direct conflict with its own rulings on federal issues would soon be toothless indeed.

Quote:
It may be wrong but not objectively unreasonable.
If there is not a case ruling on this issue, any Federal Court of Appeals could quickly make this objectively unreasonable by asserting its jurisdictional authority.

Until the Supreme Court rules on an issue in which there are conflicts among the circuits, a circuit court's ruling is binding precedent in that circuit.

There are many conflicts among the Circuits which the Supreme Court has yet to address. A system in which trial courts could disregard the relevant circuit court’s jurisdictional authority on federal issues would be objectively unreasonable.
MTGreen is offline  
Old April 7, 2013, 04:21 PM   #475
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,676
MTGreen --

Let me try to make myself clear. If a federal court enjoins enforcement of a state law, than those who know of the injunction can be held in contempt of court. However, state courts are under no obligation to follow the opinions of the federal court of appeals for their circuit. These are often very influential, however.

Now, I put out a hypothetical worst case scenario where a person could be convicted in state court under a law the federal circuit court of appeals thinks is unconstitutional. The defendant could ask for a federal writ of habeas corpus but it may be appropriately denied. The U.S. Supreme Court has so held many times and routinely reverses the 9th Circuit and, to a lesser extent, the 3rd and 6th Circuits. What follows is a bit of boilerplate that I use to defend against typical habeas corpus petitions:

Quote:
The Antiterrorism and Effective Death Penalty Act (hereinafter “AEDPA”) controls the scope of review of state court decisions filed after its effective date (April 24, 1996). Lindh v. Murphy, 521 U.S. 320 (1997) AEDPA prohibits federal courts from granting writs of habeas corpus on claims previously adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. §2254(d)(1) and (d)(2).
In reviewing a state court decision, a federal habeas court must first determine whether there was a controlling rule prescribed by the Supreme Court and then decide whether the state court legal determination was an objectively unreasonable application of that rule. Williams v. Taylor, 529 U.S. 362, 402-413 (2000) (Part II of Justice O’Connor’s opinion, joined by majority of the Court). If there is no controlling rule, the federal court must determine whether the state court’s decision resulted from an objectively unreasonable application of U.S. Supreme Court precedent. Id.

For a state to have acted contrary to clearly established precedent, the Supreme Court must have decided a case differently which has “materially indistinguishable facts” than the state case. Id. at 413. The federal habeas court must determine the governing legal standard by referring to holdings, not dicta, of the Supreme Court which clearly established the federal law governing state court trials at the time of the state court’s ruling. Williams, 529 U.S. at 403-413; Carey v. Musladin, 549 U.S. 70, 127 (2006) (holding the Ninth Circuit improperly cited its own precedent in determining state court had unreasonably applied clearly established Supreme Court precedent); see also Ramdass v. Angelone, 530 U.S. 156 (2000).

The Supreme Court has reiterated that "an unreasonable application of federal law is different from an incorrect application of federal law." Renico v. Lett, __ U.S. __, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010). A federal court cannot issue a writ simply because, by it’s own independent judgment, it thinks the state court applied the federal law incorrectly; instead, the state’s application of federal law must be “objectively unreasonable.” Id. The “objectively unreasonable” standard is higher even than the “clear error” standard. Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

The Supreme Court has emphasized the purpose of AEDPA, “The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). To that end, even where the state court summarily denies a claim, the burden remains on the petitioner to show the state court had no reasonable basis for denying relief. Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011).

The AEDPA standard was intended to be “difficult to meet.” Id. at 786. A writ should issue only “where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Id.
I apologize for the length and fear we may be drifting off topic.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:02 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.24475 seconds with 10 queries