People v. Bell
People v. Bell
Opinion
*1049 ¶ 1 Following a bench trial, defendant Armani Bell was found guilty of unlawful use of a weapon in a public park and sentenced to two years in the Illinois Department of Corrections. On appeal, defendant claims that the unlawful use of a weapon in a public park provision of the unlawful use of a weapon (UUW) statute is facially unconstitutional and that his mittimus should be corrected to accurately reflect the trial court's pronouncement that defendant was only to be sentenced on one conviction. For the following reasons, we affirm the conviction and order the mittimus to be corrected.
¶ 2 BACKGROUND
¶ 3 Defendant was charged with one count of UUW and six counts of aggravated unlawful use of a weapon. Prior to trial, defendant filed a motion to dismiss count I of the indictment, which charged defendant with unlawful use of a weapon in a public park pursuant to section 24-1(a)(10), (c)(1.5) of the Criminal Code of 2012 (Code) ( 720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014) ).
¶ 4 At the hearing on defendant's motion to dismiss count I of the indictment based on the unconstitutionality of this provision of the statute, defense counsel argued that
People v. Aguilar
,
¶ 5 A bench trial then commenced. The facts presented at that bench trial are not at issue, but we will briefly discuss them. Chicago police officer Carlos Mendez, and his partner, received a radio transmission on the evening of March 11, 2015, at about 5:45 p.m., regarding a person with a gun at 6000 South King Drive. When Officer Mendez and his partner arrived at that location, he saw an individual matching the description in the radio transmission of a black male with a red jacket and beige pants standing on the corner with four other men, one of whom was defendant.
*1050 When Officer Mendez arrived, defendant began to walk away. As Officer Mendez got out of his patrol car, defendant started to run. Officer Mendez testified that as defendant was running, defendant reached into his waistband and pull out a gun. Officer Mendez and his partner gave chase. As they were chasing defendant, defendant slipped and the weapon fell to the ground. Officer Mendez secured the weapon, which was loaded, while his partner continued to chase defendant. Defendant was apprehended approximately 15 seconds later.
¶ 6 The State introduced into evidence a certification from the Illinois State Police, providing that no one with defendant's name and birthday had ever been issued a Firearm Owner's Identification (FOID) card or a concealed carry license as of April 29, 2015.
¶ 7 The trial court found that Officer Mendez's testimony was credible and subsequently found defendant guilty on all counts. At sentencing, the trial court merged the six AUUW counts into the UUW in a public park count and sentenced defendant to two years in prison on the UUW in a park conviction. Defendant filed a motion for reconsideration of sentence, which was denied. Defendant now appeals.
¶ 8 ANALYSIS
¶ 9 On appeal, defendant first contends that the statute upon which his conviction rests, section 24-1(a)(10), is facially unconstitutional. All statutes are presumed constitutional, and courts have a duty to construe legislative enactments so as to uphold their validity if reasonably possible.
Aguilar
,
¶ 10 Defendant was convicted pursuant to section 24-1(a)(10), (c)(1.5) of the UUW statute. The version of the UUW statute that was in effect at the time defendant was charged stated in pertinent part:
"(a) A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(10) Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own 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, except that this subsection (a)(10) does not apply to or affect transportation of weapons that meet one of the following conditions:
(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping *1051 box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card.
* * *
(c) Violations in specific places.
(1.5) A person who violates subsection 24-1(a)(4), 24-1(a)(9), or 24-1(a)(10) in any school, regardless of the time of day or the time of year, in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, in a public park, in a courthouse, on the real property comprising any school, regardless of the time of day or the time of year, on residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, on the real property comprising any public park, on the real property comprising any courthouse, in any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, in any conveyance owned, leased, or contracted by a public transportation agency, or any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony." 720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014).
¶ 11 Defendant contends in his opening appellate brief that section 24-1(a)(10) of the UUW statute is facially unconstitutional because it amounts to a flat ban on carrying ready-to-use guns outside the home, which violates the second amendment of the United States Constitution. In support of this argument, he cites
Mosley
,
¶ 12 In
Burns
, the defendant was convicted of violating section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008) ).
Burns
,
¶ 13 Here, defendant argues that the penalty enhancement found under
*1052
section 24-1(c) (1.5) of the UUW statute acts similarly to the sentencing enhancement of section 24-1.6(d) of the AUUW statute, and thus is a sentencing factor and not an element of the offense. This exact issue was recently addressed by our supreme court in
People v. Chairez
,
¶ 14 We also reject, based on the analysis in
Chairez
, defendant's argument that because section 24-1(a)(10) was declared unconstitutional in
Moore v. Madigan
,
¶ 15 However, because Chairez was published while this appeal was pending, defendant addressed the unconstitutionality of section 24-1(a)(10), (c)(1.5) in his reply brief, acknowledging that our supreme court found that the constitutionality of section 24-1(a)(10) would not have an effect on the provision at issue in this case, section 24-1(a)(10), (c)(1.5), and arguing that the "within a public park" provision was facially unconstitutional for the same reasons the court in Chairez found the "within 1000 feet of a public park" provision facially unconstitutional. Chairez had not been published before the State filed its response brief, and thus the State did not have an opportunity to address the merits of Chairez . Even without Chairez , the State nevertheless argued that section 24-1(a)(10), (c)(1.5) of the UUW statute was not facially unconstitutional because there was a significant interest in keeping children safe, as evidenced by studies that had been done regarding school zones and school shootings.
¶ 16 We now turn to the constitutionality of section 24-1(a)(10), (c)(1.5) of the UUW statute. The
Chairez
court addressed section 24-1(a)(4), (c)(1.5), of the UUW statute, but only made a finding as to the portion of that section that criminalized possessing a firearm within 1000 feet of a public park. While the only portion of the section before us is that criminalizing possession of a firearm within a public park,
*1053
we find guidance in the analysis set forth in
Chairez
. See
Chairez
,
¶ 17 To answer the question presented, we must take the same two-part approach taken in
Chairez
.
Id.
¶ 21. First, we conduct a textual and historical analysis of the second amendment "to determine whether the challenged law imposes a burden on conduct that was understood to be within the scope of the second amendment's protection at the time of ratification."
Mosley
,
¶ 18 The second amendment to the United States Constitution provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const., amend. II. Through the fourteenth amendment to the United States Constitution ( U.S. Const., amend. XIV ), this right is "fully applicable to the States."
McDonald v. City of Chicago
,
¶ 19 Our supreme court in
Chairez
noted that in
District of Columbia v. Heller
,
¶ 20 In
Moore
, the Seventh Circuit ruled that the offenses proscribed under sections 24-1(a)(4) and 24-1(a)(10) ( 720 ILCS 5/24-1(a)(4), (10) (West 2012) ) of the UUW statute, as well as the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) (
id.
§ 24-1.6(a)(1), (a)(3)(A), (d) ) of the AUUW statute, were unconstitutional since they prohibited carrying ready-to-use firearms outside of a person's home.
Moore
,
¶ 21 Adopting this same reasoning, our supreme court in
Aguilar
recognized that "the second amendment protects the right to possess and use a firearm for self-defense outside the home," and therefore, the offense set forth in section 24-1.6(a)1, (a)(3)(A) of the AUUW statute, which prohibited
*1054
carrying on one's person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face.
Aguilar
,
¶ 22 Most recently in
Chairez
, the question was whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroached on the conduct at the core of the second amendment.
Chairez
,
¶ 23 In the case at bar, the State contends, relying on
United States v. Masciandaro
,
"[i]t is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that 'self-defense has to take place wherever [a] person happens to be' [citation], appears to use to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities. * * * The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree."Id. at 475 (Wilkinson, J., specially concurring, joined by Duffy, J.)
It appears from this language that public parks may be considered sensitive places. We find this argument compelling, especially in light of the fact that public parks are notoriously "where large numbers of people, including children, congregate for recreation," and that "[s]uch circumstances justify reasonable measures to secure public safety."
¶ 24 Compelling argument aside, we are reminded that if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected,
*1055
then we apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government's justification for restricting or regulating the exercise of second amendment rights.
Mosley
,
¶ 25 Our supreme court found that some level of scrutiny must apply at the second step, and noted that courts generally recognized that
Heller
's reference to any standard of scrutiny means any heightened level of scrutiny, not rational-basis scrutiny.
Chairez
,
¶ 26 Our supreme court noted in
Chairez
that the closer in proximity the restricted activity was to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review.
Chairez
,
¶ 27 Our supreme court found that the State provided no evidentiary support for its claim that prohibiting firearms within 1000 feet of a public park would reduce the risks it identified. Id. ¶ 54. "Without specific data or other meaningful evidence, we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence." Id. The court stated:
"Aside from the sheer number of locations and public areas that would qualify under the law, not only in the City of Chicago, but throughout Illinois, the most troubling aspect is the lack of any notification where the 1000-foot restriction zone starts and where it would end. Innocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner. Likewise, in response to a question at oral argument, the State conceded that an individual who lives within 1000 feet of a public park would violate section 24-1(a)(4), (c)(1.5) every time that individual possessed a firearm for self-defense and walked to his or her vehicle parked on a public street. To remain in compliance with the law, the State said that the individual would need to disassemble his or her firearm and place it in a case before entering the restricted zone. This requirement, however, renders the ability to defend oneself inoperable and is in direct contradiction to this court's decisions in Aguilar , which recognized that the right to carry firearms for self-defense may be especially important when traveling outside of the home, and perhaps even more important than while at home." Id. ¶ 55.
¶ 28 Our supreme court in Chairez found that the State had not established the required means-end fit between the challenged law and its justifications, and that therefore possessing a firearm within 1000 feet of a public park in violation of the UUW statute was facially unconstitutional. Id. ¶ 56. Having found the charged offense under section 24-1(a)(4), (c)(1.5) of the UUW statute unconstitutional, the Chairez court then considered whether the invalid provision in the statute was severable from the remaining provisions absent the invalid one. Id. ¶ 58. The court found that removing this single location offense did not undermine the completeness of the remaining locations in section 24-1(c) (1.5), and that the remaining specific locations were capable of being enforced without the offense of possessing a firearm within 1000 feet of a public park. Id. ¶ 62.
¶ 29 We now turn to whether the possession of a firearm in a public park provision of the UUW statute is facially unconstitutional by examining the strength of the government's justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve.
Id.
¶ 35. We reiterate, as stated in both
Chairez
and
Moore
, that a blanket prohibition on carrying guns in public prevents a person from defending himself anywhere except inside his home, and such a substantial curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment.
Moore
,
*1057
Chairez
,
¶ 30 While the
Chairez
court ultimately found that the "most troubling aspect" of the 1000-feet from a public park provision was "the lack of any notification where the 1000-foot restriction zone starts and where it would end," no such issues exist in the portion of the statute at issue here. The
Chairez
court noted that "[i]nnocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner."
Chairez
,
¶ 31 We reiterate that all statutes carry a strong presumption of constitutionality, and that we will find a statute constitutional if it can be reasonably done.
Aguilar
,
¶ 32 Defendant's final argument, which the State concedes, is that the mittimus should be corrected to reflect the trial court's oral pronouncement that defendant was to be sentenced to two years' imprisonment on the Class 3 UUW conviction, and that his remaining convictions for AUUW merged into that count.
¶ 33 CONCLUSION
¶ 34 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County and order the mittimus to be corrected in accordance with this order.
¶ 35 Affirmed; mittimus corrected.
Justice Cunningham concurred in the judgment and opinion.
Presiding Justice Hoffman specially concurred, with opinion.
¶ 36 PRESIDING JUSTICE HOFFMAN, specially concurring:
¶ 37 I concur in the result reached by the majority and write separately to explain my reasons for doing so.
¶ 38 As the majority notes, the Supreme Court in
Heller
held that, although it found that an individual's right to possess and carry weapons is constitutionally guaranteed, that right is not unlimited. The
Heller
court explained that its holding that an individual's right to possess and carry weapons is constitutionally guaranteed should not "cast doubt on * * * laws forbidding the carrying of firearms in sensitive places such as schools and government
*1058
buildings."
District of Columbia v. Heller
,
¶ 39 In this appeal, we are considering the constitutionality of a statute that forbids the carrying of a weapon in a public park. As the majority states, public parks are places "where large numbers of people, including children, congregate for recreation" (see
United States v. Masciandaro
,
¶ 40 I believe a public park's status as a sensitive place is evident and requires no further evidence or authority of its status as such. The State's justification for prohibiting the possession of a firearm in a public park is manifest in light of the public benefit the prohibition seeks to achieve. Therefore, I am of the opinion that section 24-1(a)(10), (c)(1.5) of the Code, which prohibits carrying or possessing a firearm in a public park, is constitutional without further analysis.
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Armani BELL, Defendant-Appellant.
- Cited By
- 3 cases
- Status
- Unpublished