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March 18, 2013, 07:07 AM | #451 |
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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.
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March 19, 2013, 10:01 PM | #452 | |
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March 23, 2013, 07:30 AM | #453 | |
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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:
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. |
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March 26, 2013, 02:46 PM | #454 |
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A link to People v Mosley - Illinois Aggravated Unlawfull use of a Weapon
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March 26, 2013, 05:38 PM | #455 |
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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). |
March 28, 2013, 11:53 AM | #456 | ||
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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
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March 28, 2013, 02:05 PM | #457 |
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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. Last edited by KyJim; March 28, 2013 at 02:22 PM. |
March 28, 2013, 02:06 PM | #458 |
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I'm sure this will be appealed.
Someone will have to explain why Moore isn't binding in the IL state court. |
March 28, 2013, 02:11 PM | #459 |
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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. |
March 28, 2013, 02:22 PM | #460 | |
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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. |
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March 28, 2013, 02:26 PM | #461 | |
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March 29, 2013, 08:20 AM | #462 |
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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 Evan Thomas; March 29, 2013 at 07:46 PM. Reason: removed Crook County AGAIN. This is not OK here. |
March 29, 2013, 03:29 PM | #463 |
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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!! |
March 30, 2013, 11:11 PM | #464 |
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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. |
March 30, 2013, 11:18 PM | #465 | |
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March 31, 2013, 05:52 AM | #466 |
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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. |
March 31, 2013, 11:22 AM | #467 |
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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. |
April 1, 2013, 07:28 AM | #468 | |
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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.
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April 1, 2013, 10:43 AM | #469 |
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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? |
April 2, 2013, 06:26 PM | #470 |
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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.
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April 3, 2013, 12:59 AM | #471 |
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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. |
April 3, 2013, 06:01 AM | #472 |
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spring break for the legislature. Their back next week.
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April 3, 2013, 07:35 AM | #473 | |
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April 5, 2013, 05:15 PM | #474 | |||
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Jurisdictional Authority
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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:
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. |
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April 7, 2013, 04:21 PM | #475 | |
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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:
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