IL SC to rule on 2A cases on 9/12/13 - Page 2

Jim March · September 13, 2013, 09:35 PM

Let's go back to talking about Illinois.

We've missed something important.

Several guys on the IL Carry forums (link I provided) are claiming to have contacted their county prosecutors for clarification and so far have gotten bupkis even from ones that normally talk to them. (Cook County's not among that number, obviously!)

Well somebody official needs to make a statement muy pronto. Because this sure as hell looks like the IL Supremes just took the state to Vermont Carry or something damned close. Now, maybe they did and maybe they didn't but guess what guys? If it ain't clear, criminal law sides with "we the people". You can't prosecute if you don't have a "wilful violation of the law" ("mens rea" to a lawyer) when the law isn't clear. Unclear criminal law statutes get tossed out all the time - their existence is an abomination under US legal principles.

So. The ball is now in the hands of the state. Somebody official needs to write an official memo laying out what they think is going on. We can then wrangle over it, hell we can sue over it, we can show it's a steaming southbound product of a northbound male bovine, whatever, but we'll have a starting point.

Right now everybody is standing around wondering what the heck - and in criminal law that's serious bad mojo.

rwilson452 · September 13, 2013, 10:20 PM

I'm not a lawyer but it seems to me that anyone convicted only on that statue could get their conviction overturned. Somebody set me straight here.

KyJim · September 13, 2013, 11:37 PM

Good decision! Straight forward and concise.

I will add that those previously convicted may not necessarily have their convictions overturned. Under federal constitutional law, a case announcing a new rule of law cannot be used to overturn previous convictions unless their direct appeal is still pending. Teague v. Lane, 489 U.S. 288 (1989) available at http://supreme.justia.com/cases/federal/us/489/288/.

Teague and its principles are difficult for lawyers and judges to apply because there are a million shades of grey in whether a decision is announcing a new rule of law. I won't pretend to know whether this Illinois decision is "new law." Of course, Illinois can give greater retroactive effect under state law if it wants to do so.

Jim March · September 14, 2013, 01:11 AM

Don't have details yet but I'm hearing that IL has state-level case law on this more strict (against the government) than the federal standards.

States can enact constitutional safeguards that are better (better in the civil liberties sense) than federal.

press1280 · September 14, 2013, 07:26 AM

The new law is officially on the books in IL, however, with no permits issued at this point, it's still in reality the old law. CA7 will hear this next month. The conflict is that IL claims someone must challenge the new law, which means months in district court and the case mooted when the first permits go out. Our side(specifically NRA) is claiming the old law is in effect and that the statute is invalid UNTIL permits are issued.

Al Norris · September 14, 2013, 08:22 AM

Unless I'm missing something, under the old law, no carry was permitted. Under the new law, concealed carry is permitted, but only with a proper license.

Under Aguilar and Moore, you can't be prosecuted for UUW or AUUW, because the laws violates the 2A. Except, the new law says with a permit, you can carry, albeit concealed.

That appears to leave open carry (at the moment) as the only viable means of carry, until the permitting process is actually established (up and running).

Even then, it may mean that unfettered open carry will still remain a viable means of carry.

I think that it is this, that has caused the massive huddle between the State Attorneys.

maestro pistolero · September 14, 2013, 12:53 PM

It's hilarious that after all the machinations, that Illinois could well end up a so-called constitutional open carry state.

mrray13 · September 14, 2013, 05:14 PM

Al, under the old law one could carry in Illinois, with these specific requirements,

Unloaded,
Enclosed in a case,
Must have valid FOID.

The language is clear, as this link explains. It's been discussed and disputed, but it's there in black and white.

Quote:

Originally Posted by 720 ILCS 5/24-2(i)

nothing in this Article shall prohibit, apply to, or affect the transportation, carrying, or possession of any pistol, revolver, stun gun, taser, or other firearm which is unloaded and enclosed in a case, firearm carrying box, shipping box, or other container, by the possessor of a valid Firearms Owners Identification Card.

Key word emphasized by me....

Al Norris · September 14, 2013, 06:30 PM

Quote:

Originally Posted by mrray13

Al, under the old law one could carry in Illinois, with these specific requirements, [snip]...

I'm aware of this. Just like in CA, up until recently, they could carry - Unloaded Open Carry (UOC).

Like it or not, that is simply not a form of carry that we (mostly, the rest of the country) would recognize.

hermannr · September 14, 2013, 07:31 PM

Mrray13; IMHO: unload, you are carrying a hammer, or transporting a firearm. It may look like you are carrying a firearm, but with no ammo, it is no more dangerous than a hammer.

mrray13 · September 15, 2013, 10:14 AM

Yeah, it isn't the greatest option, but until now, it was the only option. As the website said, 6 seconds to safety, and we all know that you might not have 4 seconds, let alone 6.

hermannr, you could carry your ammo with you, but of course, not in the firearm. A loaded magazine can even be carried in the same case as the firearm, just not in the weapon. Still not optimal, but it was all we had.

Yeah, it sucks.

Al Norris · September 15, 2013, 11:45 AM

Quote:

Originally Posted by mrray13

Yeah, it isn't the greatest option, but until now, it was the only option. As the website said, 6 seconds to safety, and we all know that you might not have 4 seconds, let alone 6.

[snip]

Yeah, it sucks.

Please believe me when I say that I'm not trying to deride you, or any others that live in areas that won't recognize self-defense. I think its great what is going on in IL, just as I think it horrible with what the CA legislature is doing.

Gary L. Griffiths · September 15, 2013, 12:19 PM

Quote:

I'm aware of this. Just like in CA, up until recently, they could carry - Unloaded Open Carry (UOC).

It actually may be better for us in the long run that CA has now outlawed UOC. The Supreme Court might not strike down a UOC statute because it allows one to "bear arms," but outright prohibition should be off the table.

mrray13 · September 15, 2013, 10:25 PM

Al, no hard feelings here. And as Gary pointed out for CA, in the long run it's better that Illinois was believed to not have a legal way to carry. Or better yet, a legal way to defend oneself with the Constitutional right to bear arms.

Lt. Skrumpledonk Ret · September 19, 2013, 01:22 PM

Congratulations to this man and the 100+ others who's charges have been dropped in light of the recent Illinois Supreme Court ruling in the People v. AGUUWlar

.

A representative of State's Attorney Anita Alvarez had the audacity to say this when pressed by Fox 32 News to explain their policy: "It would not be prudent for citizens to carry loaded firearms in public, whether they possess a valid Firearm Owners ID card or not. As for whether these cases would result in criminal charges...I would only say that we would evaluate any individual incident on a case-by-case basis."

http://www.myfoxchicago.com/story/23...#ixzz2fJj841Vx

I'd sue for $3 million.

csmsss · September 19, 2013, 02:50 PM

Quote:

I would only say that we would evaluate any individual incident on a case-by-case basis."

Aka those we are friendly with will get a pass and everyone else will get socked.

cobra81 · September 19, 2013, 05:00 PM

14 months in jail and then quietly released with no charges? I'm glad he didn't cop a plea. Nothing like a good multi-million dollar lawsuit victory to adjust Ms. Alvarez' attitude. I hope he gets a good attorney and eats them alive.

Armed_Chicagoan · September 20, 2013, 06:06 PM

The infuriating thing is this guy, who has a clean criminal record, spent more time in jail than criminal gang members get for actually threatening people with a loaded gun.

Like this admitted gang mamber from my own neighborhood:

Quote:

Jaime Gutierrez, 20, pleaded guilty to aggravated unlawful use of a weapon before Cook County Criminal Court Judge Sharon Sullivan who sentenced him to one year in prison, said Lisa Gordon, a spokeswoman for the Cook County State's Attorney.

Gutierrez, of the 3600 block of West Leland Avenue in the Albany Park neighborhood, was arrested July 29 and originally charged with unlawful use of a weapon and possession of a firearm with a defaced serial number, both felonies.

He got upset with the way his soccer game was going one morning, and pulled a gun out of his backpack and threatened other players and spectators with it.

Chicago has a horrible track record of prosecuting gun crimes by career criminals, letting them plead to light sentences. These are the same guys who then go on to murder someone eventually, it's extremely rare for someone charged with murder to have a clean record. And very often they have a record of gun crimes prior to their murder, for which they receive light sentences and are released to commit more crimes. It's absolutely ridiculous.

shaunpain · September 21, 2013, 01:20 AM

^^^Armed Chicagoan

This is exactly the problem. I am an 11 year resident of the Humboldt Park/Logan Square area and can say without question that the most sickening aspect of the justice system here is the inability, due to money or prison capacity, to prosecute gun crimes as they are already on the books in Chicago. While our legislators seem to save political face by piling on more municipal gun ordinances, there seems to be a disconnect in even attempting to prosecute career criminals with a laundry list of felonious gun charges. I'm sure paying the piper is all it takes (there is a serious amount of ineptitude in the wealthy class here) and it's obvious to anyone that facts and statistics answer to no one. Police Chief McCarthy was in the Tribune this week voicing his opinion after the Navy Yard shooting saying we need more "reasonable" gun control to the tune of federal and fingerprinted registration. We know this doesn't work. We've seen that every law has been ineffective here. We aren't so stupid (these days) to believe that had the citizens been armed at any of these shootings, the outcome could have somehow been worse.

The winds are blowing another way these days. This is good. Our leaders here are panicking. I assure you that changes are coming soon. Not just in policy, but in leadership as well.

September 13, 2013, 09:35 PM	#26
Jim March Senior Member Join Date: February 14, 1999 Location: Pittsburg, CA, USA Posts: 7,417	Let's go back to talking about Illinois. *We've missed something important.* Several guys on the IL Carry forums (link I provided) are claiming to have contacted their county prosecutors for clarification and so far have gotten bupkis even from ones that normally talk to them. (Cook County's not among that number, obviously!) Well somebody official needs to make a statement muy pronto. Because this sure as hell looks like the IL Supremes just took the state to Vermont Carry or something damned close. Now, maybe they did and maybe they didn't but guess what guys? If it ain't clear, criminal law sides with "we the people". You can't prosecute if you don't have a "wilful violation of the law" ("mens rea" to a lawyer) when the law isn't clear. Unclear criminal law statutes get tossed out all the time - their existence is an abomination under US legal principles. So. The ball is now in the hands of the state. Somebody official needs to write an official memo laying out what they think is going on. We can then wrangle over it, hell we can sue over it, we can show it's a steaming southbound product of a northbound male bovine, whatever, but we'll have a starting point. Right now everybody is standing around wondering what the heck - and in criminal law that's serious bad mojo. __________________ Jim March

September 13, 2013, 10:20 PM	#27
rwilson452 Senior Member Join Date: June 10, 2004 Location: Tioga co. PA Posts: 2,647	I'm not a lawyer but it seems to me that anyone convicted only on that statue could get their conviction overturned. Somebody set me straight here. __________________ USNRET '61-'81

September 14, 2013, 01:11 AM	#29
Jim March Senior Member Join Date: February 14, 1999 Location: Pittsburg, CA, USA Posts: 7,417	Don't have details yet but I'm hearing that IL has state-level case law on this more strict (against the government) than the federal standards. States can enact constitutional safeguards that are better (better in the civil liberties sense) than federal. __________________ Jim March

September 19, 2013, 01:22 PM	#40
Lt. Skrumpledonk Ret Senior Member Join Date: May 30, 2012 Location: Oh, Jesus. Posts: 226	Congratulations, Hambrick! Congratulations to this man and the 100+ others who's charges have been dropped in light of the recent Illinois Supreme Court ruling in the People v. AGUUWlar . A representative of State's Attorney Anita Alvarez had the audacity to say this when pressed by Fox 32 News to explain their policy: "It would not be prudent for citizens to carry loaded firearms in public, whether they possess a valid Firearm Owners ID card or not. As for whether these cases would result in criminal charges...I would only say that we would evaluate any individual incident on a case-by-case basis." http://www.myfoxchicago.com/story/23...#ixzz2fJj841Vx I'd sue for $3 million. Last edited by Lt. Skrumpledonk Ret; September 19, 2013 at 01:30 PM.

September 21, 2013, 01:20 AM	#44
shaunpain Senior Member Join Date: September 12, 2008 Location: Chicago Posts: 854	^^^Armed Chicagoan This is exactly the problem. I am an 11 year resident of the Humboldt Park/Logan Square area and can say without question that the most sickening aspect of the justice system here is the inability, due to money or prison capacity, to prosecute gun crimes as they are already on the books in Chicago. While our legislators seem to save political face by piling on more municipal gun ordinances, there seems to be a disconnect in even attempting to prosecute career criminals with a laundry list of felonious gun charges. I'm sure paying the piper is all it takes (there is a serious amount of ineptitude in the wealthy class here) and it's obvious to anyone that facts and statistics answer to no one. Police Chief McCarthy was in the Tribune this week voicing his opinion after the Navy Yard shooting saying we need more "reasonable" gun control to the tune of federal and fingerprinted registration. We know this doesn't work. We've seen that every law has been ineffective here. We aren't so stupid (these days) to believe that had the citizens been armed at any of these shootings, the outcome could have somehow been worse. The winds are blowing another way these days. This is good. Our leaders here are panicking. I assure you that changes are coming soon. Not just in policy, but in leadership as well. __________________ "Shut up, crime!"

September 13, 2013, 11:37 PM	#28
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 9,142	Good decision! Straight forward and concise. I will add that those previously convicted may not necessarily have their convictions overturned. Under federal constitutional law, a case announcing a new rule of law cannot be used to overturn previous convictions unless their direct appeal is still pending. Teague v. Lane, 489 U.S. 288 (1989) available at http://supreme.justia.com/cases/federal/us/489/288/. Teague and its principles are difficult for lawyers and judges to apply because there are a million shades of grey in whether a decision is announcing a new rule of law. I won't pretend to know whether this Illinois decision is "new law." Of course, Illinois can give greater retroactive effect under state law if it wants to do so.

September 14, 2013, 07:26 AM	#30
press1280 Senior Member Join Date: May 17, 2012 Posts: 228	The new law is officially on the books in IL, however, with no permits issued at this point, it's still in reality the old law. CA7 will hear this next month. The conflict is that IL claims someone must challenge the new law, which means months in district court and the case mooted when the first permits go out. Our side(specifically NRA) is claiming the old law is in effect and that the statute is invalid UNTIL permits are issued.

September 14, 2013, 08:22 AM	#31
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Unless I'm missing something, under the old law, no carry was permitted. Under the new law, concealed carry is permitted, but only with a proper license. Under Aguilar and Moore, you can't be prosecuted for UUW or AUUW, because the laws violates the 2A. Except, the new law says with a permit, you can carry, albeit concealed. That appears to leave open carry (at the moment) as the only viable means of carry, until the permitting process is actually established (up and running). Even then, it may mean that unfettered open carry will still remain a viable means of carry. I think that it is this, that has caused the massive huddle between the State Attorneys.

September 14, 2013, 12:53 PM	#32
maestro pistolero Senior Member Join Date: August 16, 2007 Posts: 2,153	It's hilarious that after all the machinations, that Illinois could well end up a so-called constitutional open carry state.

September 14, 2013, 07:31 PM	#35
hermannr Senior Member Join Date: March 24, 2011 Posts: 730	Mrray13; IMHO: unload, you are carrying a hammer, or transporting a firearm. It may look like you are carrying a firearm, but with no ammo, it is no more dangerous than a hammer.

September 15, 2013, 10:14 AM	#36
mrray13 Senior Member Join Date: January 26, 2008 Location: Missouri Posts: 911	Yeah, it isn't the greatest option, but until now, it was the only option. As the website said, 6 seconds to safety, and we all know that you might not have 4 seconds, let alone 6. hermannr, you could carry your ammo with you, but of course, not in the firearm. A loaded magazine can even be carried in the same case as the firearm, just not in the weapon. Still not optimal, but it was all we had. Yeah, it sucks.

September 15, 2013, 10:25 PM	#39
mrray13 Senior Member Join Date: January 26, 2008 Location: Missouri Posts: 911	Al, no hard feelings here. And as Gary pointed out for CA, in the long run it's better that Illinois was believed to not have a legal way to carry. Or better yet, a legal way to defend oneself with the Constitutional right to bear arms.

September 19, 2013, 05:00 PM	#42
cobra81 Senior Member Join Date: February 18, 2005 Location: Land of Lincoln Posts: 336	14 months in jail and then quietly released with no charges? I'm glad he didn't cop a plea. Nothing like a good multi-million dollar lawsuit victory to adjust Ms. Alvarez' attitude. I hope he gets a good attorney and eats them alive.