SIXTH DIVISION

December 22, 2023

No. 1-22-1264

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 18 CR 16864 ) CARL MOBLEY, ) Honorable ) Michael R. Clancy, Defendant-Appellant. ) Judge, presiding.

JUSTICE C.A. WALKER delivered the judgment of the court, with opinion. Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant Carl Mobley was found guilty of unlawful use of weapon by a

felon (UUWF) (720 ILCS 5/24-1.1 (West 2016)) and sentenced to five years’ imprisonment. He

appeals, claiming that the statute is unconstitutional as applied to him. Specifically, Mobley claims No. 1-22-1264

the statute improperly infringes on his right to keep and bear arms by barring him from possessing

a firearm because he has a nonviolent felony conviction. We affirm.

¶2 I. BACKGROUND

¶3 The State charged Mobley by indictment with six counts, including count I for UUWF,

pursuant to an incident on November 3, 2018. Count I alleged that Mobley possessed a firearm

after being convicted of escape, a felony, in case No. 10-CR-10915. The State nol-prossed counts

II through VI before trial and proceeded on count I alone. In a motion in limine, Mobley indicated

he had 12 previous felony convictions, including the escape conviction.

¶4 A jury trial began on June 7, 2022. Lewis Sellers testified that on November 3, 2018, at

approximately 1:51 a.m., he was working as an escort near the intersection of Troy Street and 47th

Street in Chicago. At some point, a man approached, whom Sellers identified in court as Mobley.

Sellers had never interacted with Mobley before but had seen him in the area. Mobley said “vulgar”

things to Sellers, walked away, then returned carrying a firearm. He pointed the firearm at Sellers’

head and told him to leave or “there would be a problem.” A female “associate” of Mobley’s then

“intervened,” and she and Mobley exited. Sellers did not know the woman personally but had

witnessed her working as an escort in the same area previously.

¶5 Sellers called 911, and police officers arrived on scene shortly thereafter. The officers

interacted with Mobley in a nearby parking lot. Sellers also spoke to the officers and identified

Mobley as the man who threatened him with a firearm. The officers showed a firearm to Sellers,

and he identified it as the same Mobley used to threaten him.

¶6 Chicago police officer Madrigal 1 testified that he and his partner responded to the incident

on November 3, 2018. Madrigal wore a body camera that recorded the incident. The officers spoke

1 Officer Madrigal’s first name does not appear in the report of proceedings.

2 No. 1-22-1264

with Sellers on the scene, then located Mobley in a nearby strip mall parking lot. Mobley, alone in

a red SUV, exited to interact with the officers. The officers eventually located a firearm in the

SUV’s backseat area, then arrested Mobley. Later, the officers learned the woman Mobley was

with, Charlene McCaa, owned the SUV. The State entered portions of the body camera recording

into evidence.

¶7 Chicago police sergeant Robert Franks testified that he served as an evidence technician in

Mobley’s case and unsuccessfully attempted to obtain fingerprint evidence from the recovered

firearm.

¶8 Chicago police detective Elliot Flagg testified that he interviewed Mobley in connection

with the incident. The interview was not recorded. During the interview, Mobley stated that he

was a pimp, McCaa was his girlfriend, and they had been losing money due to Sellers working on

the same corner as McCaa. Mobley denied having a firearm at any point during the incident with

Sellers, but admitted McCaa owned a firearm, and Mobley knew it was in the vehicle on the night

of the incident. On cross-examination, Flagg testified that McCaa claimed she owned the firearm.

¶9 The State entered a stipulation that Mobley had “a prior felony conviction which qualifies

him to be charged in this case with the charge of unlawful use of a weapon by a felon.”

¶ 10 The State rested, and Mobley called McCaa, who testified that she worked as a prostitute in

November 2018. On November 3, 2018, she was with Mobley on the scene and had her SUV with

her, with the firearm in the backseat. She and Sellers argued that night. During the argument,

Mobley exited the SUV and walked to an area across the street. McCaa did not observe anything

in Mobley’s hands at this time. She then left the area with a “John,” and when she returned, she

saw police officers near her SUV. One officer indicated he had recovered a firearm and asked if it

belonged to McCaa, who responded affirmatively.

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¶ 11 The defense rested, and the State called Flagg in rebuttal. Flagg testified that he interviewed

McCaa and Mobley about the incident. Mobley stated that Sellers would know what the firearm

looked like because McCaa showed it to Sellers previously. McCaa, conversely, told Flagg she did

not show the firearm to Sellers. The defense called McCaa in surrebuttal, who stated she did show

Sellers the firearm at some point before November 3, 2018.

¶ 12 The jury found Mobley guilty of UUWF. Mobley’s presentencing investigation report listed

numerous felony convictions, including those listed by the defense in its motion in limine, along

with additional convictions for robbery and two counts of aggravated battery.

¶ 13 Mobley filed a motion for a new trial, which he later supplemented. He did not claim that

the UUWF statute was unconstitutional as applied to him in the motion. At a proceeding on August

11, 2022, the circuit court denied the motion for a new trial. The matter moved to sentencing,

where the State emphasized that Mobley had 14 felony convictions. Defense counsel argued that

his prior felony convictions for retail theft and escape were “nonviolent.” The court sentenced

Mobley to five years’ imprisonment and denied his motion to reconsider sentence. This appeal

followed.

¶ 14 II. JURISDICTION

¶ 15 This court has jurisdiction pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)

and Rule 606 (eff. Sept. 18, 2023) because the circuit court sentenced Mobley on August 11, 2022,

and he filed his notice of appeal that same day.

¶ 16 III. ANALYSIS

¶ 17 Mobley’s lone claim on appeal is that there is no historical tradition in America of the

government barring an individual from possessing a firearm on the basis that the person has a

nonviolent felony conviction and that UUWF as applied to him in this case is unconstitutional

4 No. 1-22-1264

under the test announced by the United States Supreme Court in New York State Rifle & Pistol

Ass’n v. Bruen,

,

(2022).

¶ 18 We must first determine whether Mobley forfeited this claim because, as he acknowledges,

he did not properly preserve the issue through a timely objection at trial and inclusion in a posttrial

motion. See People v. Galarza,

. Before resolving this issue, we briefly note

that there are two types of constitutional challenges—facial and as-applied—with Mobley’s claim

here an as-applied challenge. See People ex rel. Hartrich v. 2010 Harley-Davidson,

. A facial challenge requires the claimant to demonstrate that the statute is

unconstitutional under any set of facts. To establish an as-applied challenge, the claimant only

“has the burden of showing that a constitutional violation arises from the application of the statute

to a specific set of facts and circumstances.”

¶ 19 Mobley argues that we may consider his claim because an as-applied constitutional

challenge can be raised for the first time on appeal, so long as the record is sufficient to permit the

reviewing court to fully analyze the issue. See People v. Martin,

, ¶¶ 12-

13. The State responds that this rule of forfeiture avoidance only applies to as-applied

constitutional challenges arising under Miller v. Alabama,

(2012) (mandatory life

sentences without the possibility of parole for juveniles are unconstitutional). The State further

contends that even if the rule can apply beyond Miller generally, it does not excuse Mobley’s

forfeiture because the record is insufficient to consider his claim. In support of this argument, the

State claims that had it known Mobley intended to raise a constitutional challenge earlier in the

proceedings, it could have potentially uncovered, and introduced at trial or sentencing, information

regarding any history of violence in Mobley’s past. The State does not identify any such

information in its briefing.

5 No. 1-22-1264

¶ 20 We find that we may consider Mobley’s as-applied constitutional claim, despite his failure

to properly preserve it. First, the State’s contention that a reviewing court may only consider as-

applied Miller claims raised for the first time on appeal is inaccurate; courts in Illinois have

considered constitutional claims in other contexts outside of Miller based on this theory of

forfeiture avoidance. See People v. Brooks,

. Additionally, and

most importantly, the record here is sufficient for review of Mobley’s claim. The only fact at issue

is what conviction the State used as the predicate for UUWF, which is apparent from both the

stipulation in the record and the report of proceedings. The claim is that UUWF is unconstitutional

as applied to Mobley because the State used his conviction for escape, a nonviolent felony, to bar

him from future firearm possession. 2 Whatever additional convictions the State might have used

as a predicate, violent or nonviolent, are not at issue, nor is Mobley’s history of violent behavior

aside from his convictions, if such a history exists.

¶ 21 The second amendment reads, “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. A brief history of the recent United States Supreme Court jurisprudence regarding the

second amendment is necessary to establish the parameters of our task here.

¶ 22 In 2008, the United States Supreme Court fundamentally altered second amendment

jurisprudence in District of Columbia v. Heller,

(2008). There, in a Justice Scalia-

penned majority opinion, the Court declared for the first time that the right to keep and bear arms

is an individual right, not a collective right.

. Though Heller did not specifically establish

2 The State does not contend that escape is a violent felony, and as such, we will consider it a nonviolent felony for purposes of our review here. We note, however, that the details of the escape charge were not introduced below and are not before us here, and it does not appear so facially obvious to this court that “escape” is an inherently nonviolent offense.

6 No. 1-22-1264

a mode of analysis for courts to use in reviewing whether a firearm regulation infringed upon the

new individual right, the opinion did state that the familiar framework of means-end scrutiny,

which permits a reviewing court to balance interests, was of suspect value in this context because

the second amendment was already “the very product of an interest balancing by the people.”

(Emphasis omitted.)

. The Heller majority justified its decision not to provide a mode of

analysis by stating, “there will be time enough to expound upon the historical justifications for the

exceptions [(i.e., felons and the mentally ill)] we have mentioned if and when those exceptions

come before us,” and continuing, “whatever else [the second amendment] leaves to future

evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens

to use arms in defense of hearth and home.”

Speculating as to what these potential future

challenges might be, the Heller Court noted, “nothing in our opinion should be taken to cast doubt

on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

.

¶ 23 Two years later, in McDonald v. City of Chicago,

(2010), the Court held

that the fourteenth amendment incorporated the second amendment, and thus claims for

infringement on the right to keep and bear arms could be raised by an individual against state

governments. The Court again declined to establish a test for evaluating second amendment

claims.

¶ 24 After Heller and McDonald, it was clear that the second amendment protected an individual

right to keep and bear arms, which could be vindicated against infringement from both the federal

and state governments. But how were courts to decide whether a regulation infringed? The Court

answered this question in Bruen: not through the widely applied and understood means-ends

analysis process, but through a historical tradition test. Bruen,

,

-

7 No. 1-22-1264

30. Justice Thomas, writing for the majority, stated the post-Heller consensus approach—a hybrid

intermediate/strict scrutiny approach—had “one step too many.”

at ___,

.

Bruen set out a new test, where the analysis of a firearm regulation consists only of two

considerations:

(1) Is an individual’s conduct covered by the plain text of the second amendment; and

(2) If so, the conduct is presumptively protected, and “[t]he government must then justify

its regulation by demonstrating that it is consistent with the [n]ation’s historical tradition

of firearm regulation.”

at ___,

.

¶ 25 Under this regime, the government’s goal for a particular regulation is irrelevant, as is the

narrowness or broadness of the means employed in pursuit of that goal. Instead, so long as the

regulated conduct is covered by the second amendment’s plain text, the only consideration is if the

government can demonstrate the regulation is consistent with the nation’s historical tradition.

at ___,

. Bruen does not explicitly provide a relevant time period to

determining historical tradition but emphasizes that the understanding at the time of ratification

takes precedence, quoting Heller: “ ‘Constitutional rights are enshrined with the scope they were

understood to have when the people adopted them.’ ” (Emphasis in original.)

at ___,

(quoting Heller,

).

¶ 26 In performing the historical analysis, courts must use analogical reasoning to determine if

regulations from the nation’s history are “relevantly similar” to the modern regulation at issue.

at ___,

. Justice Thomas explained that “analogical reasoning under the [s]econd

[a]mendment is neither a regulatory straightjacket nor a regulatory blank check,” and the test

“requires only that the government identify a well-established and representative historical

analogue, not a historical twin.” He summarized this point by stating, “even if a modern-day

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regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass

constitutional muster.” (Emphases in original.)

at ___,

. The Bruen majority

further acknowledged “that there is an ongoing scholarly debate on whether courts should

primarily rely on the prevailing understanding of an individual right when the Fourteenth

Amendment was ratified in 1868,” but declined to resolve the dispute because, with respect to the

New York public carry law at issue in Bruen, “the public understanding of the right to keep and

bear arms in both 1791 and 1868” was the same “for all relevant purposes.”

at ___,

. The majority also warned, however, that post-Civil War discussions may not provide

significant insight into the historical tradition of firearm regulation.

at ___,

.

¶ 27 The same panel as in this case (with Presiding Justice Oden Johnson writing the unanimous

opinion) recently addressed a nearly identical claim in People v. Baker,

, where the defendant claimed that the UUWF was unconstitutional as applied to him.

This court held Baker could not invoke Bruen because the test only applies to “laws that attempt[ ]

to regulate the gun possession of ‘law-abiding citizens,’ ” a category to which Baker did not belong

because he had a felony conviction. (Internal quotation omitted.) Id. ¶ 37. This conception is

consistent with the statement in Heller that felon bans are “presumptively lawful,” which, though

debatably dicta, suggests the Court did not believe felons maintained second amendment rights

post-conviction. Heller,

n.26.

¶ 28 We maintain this position here. For the reasons stated in Baker, we hold that Mobley cannot

appeal to the Bruen test to argue that the UUWF statute is unconstitutional as applied to him, and

we reiterate that Bruen strongly suggests the test only applies when a regulation impacts a law-

abiding citizen’s ability to keep and bear arms. Baker,

; see Bruen,

,

(“While we do not now provide an exhaustive survey of the

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features that render regulations relevantly similar under the Second Amendment, we do [believe]

that Heller and McDonald point toward at least two metrics: how and why the regulations burden

a law-abiding citizen’s right to armed self-defense.” (Emphasis added.)).

¶ 29 That Mobley is not a “law-abiding citizen” cannot be contested, though that term is not

specifically defined in Heller or Bruen. The record shows Mobley has at least 14 felony

convictions, including convictions for violent crimes—robbery and aggravated battery. This

record is even more serious than the one we found disqualifying in Baker, and it denies Mobley

the ability to contest his conviction under Bruen.

¶ 30 In so holding, however, we wish to clarify that our determination in Baker does not

completely foreclose any defendant from arguing that Bruen applies to them simply because they

have a felony conviction of any nature. Baker stands for the proposition that Bruen applies “only

to laws that attempt[ ] to regulate the gun possession of ‘law-abiding citizens,’ ” which excluded

“felons like defendant.” Baker,

. Mobley’s voluminous record,

including convictions for violent crimes, excises him from the law-abiding citizen category,

despite his protestation that he is a nonviolent offender. But we neither here, nor in Baker,

endeavored to define comprehensively who is or is not “law-abiding.” Whether a defendant who

is not a violent offender can demonstrate that he or she is a law-abiding citizen, and thus not a

felon like Baker or Mobley, is an issue for another case. See, e.g., Range v. Attorney General,

(3d Cir. 2023) (en banc).

¶ 31 The scenario in Range is helpful on this point. There, the United States Court of Appeals

for the Third Circuit ruled that 18 U.S.C. 922(g)(1) (2018) was unconstitutional as applied to

Range because his underlying conviction was for a nonviolent offense of “making a false statement

to obtain food stamps,” and it was inconsistent with America’s historical tradition to disarm

10 No. 1-22-1264

someone based on such a conviction. Range,

. The Range court found that the

government’s historical analogues regarding the disarming of categories of dangerous people did

not apply to Range, stating the fact that “[f]ounding-era governments disarmed groups they

distrusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to prove

that Range is part of a similar group today.”

. Additionally, the Range court found no

guidance in the fact that nonviolent crimes could be punished by death at the time of ratification,

contending that, “The greater does not necessarily include the lesser: founding-era governments’

execution of some individuals convicted of certain offenses does not mean the State, then or now,

could constitutionally strip a felon of his right to possess arms if he was not executed.”

.

The Range court also suggested the government had failed to demonstrate that the specific

punishment of lifetime disarmament was consistent with the nation’s historical tradition for those

in Range’s position.

¶ 32 The Range court, of course, used a different mode of analysis than the one this court

believes represents the proper interpretation of Bruen. Despite this difference, we believe that it is

valuable to note the case here, and particularly its result, as an example of an individual with a

conviction who nonetheless was a law-abiding citizen, and thus could successfully vindicate his

or her second amendment rights even under the Bruen test. We emphasize, however, the

importance of legislative specificity in fashioning firearm regulations post-Bruen. While Mobley

is not a litigant that presents a problematic case, in Bruen’s wake, it is incumbent on legislatures

to carefully draft firearm regulations like UUWF to not sweep too broadly (as a regulation that

impacts law-abiding citizens might) because the courts are now seriously hindered by Bruen’s

historical tradition test from correcting overbroad law. A means-end scrutiny test, of course,

controls for this issue. Consider the current issue through that prism. The goal of UUWF—the

11 No. 1-22-1264

“end”—of protecting Illinoisans from firearm violence is undoubtedly a worthy one. However, is

the “means” of barring all felons, including the most non-threatening amongst them, sufficiently

narrowly tailored to further this end? Perhaps not. But that is no longer a framework courts can

use when reviewing a firearm regulation.

¶ 33 Finally, we also cannot help but note the deluge of cases interpreting Bruen, many of which,

utilizing a divergent framework than the one this court established in Baker, have analyzed the

substance of felon bans, using the Bruen test, and upheld those bans, even as applied to nonviolent

offenders, by analogizing to the nation’s historical tradition of regulating a person’s firearm

possession based on that person belonging to a group the government deemed dangerous. This

historical tradition is firmly rooted in racism, racial prejudice, bias, and discrimination, and this

court finds it incredibly unfortunate that the Bruen majority believed it was appropriate to revive

it. See, e.g., United States v. Rowson,

, 466 (S.D.N.Y. 2023) (“It goes without

saying that, in our modern era, a law that would disarm a group based on race, nationality, or

political point of view—or on the assumption that these characteristics bespoke heightened

dangerousness—would be anathema, and clearly unconstitutional. [Citation.] But the Second

Amendment’s inquiry into historical analogues is not a normative one. Viewing these laws in

combination, the above historical laws bespeak a ‘public understanding of the [second amendment]

right’ in the period leading up to 1791 as permitting the denial of access to firearms to categories

of persons based on their perceived dangerousness.”); see also United States v. Jackson,

(8th Cir. 2023) (acknowledging that the historical record suggested that, “Legislatures

historically prohibited possession by categories of persons based on a conclusion that the category

as a whole presented an unacceptable risk of danger if armed,” which encompassed historical

firearm bans for Native Americans and Catholics, and which had analogical value in applying

12 No. 1-22-1264

Bruen’s second prong). Upholding modern regulations because they are rooted in this tradition is

not a tenable form of jurisprudence, but Bruen has been interpreted to require it, and this

unacceptable regime is likely to persist until the Supreme Court rectifies the current state of the

law. We echo the sentiments of Judge Sharon Coleman of the Northern District of Illinois on this

subject:

“The Court is dismayed by the government’s continuous reliance on admittedly

bigoted and racist laws in these cases. [Citations.] Indeed, the Court would be remiss in

failing to point out that the government’s characterization of [the defendant], a Black man,

as an ‘untrustworthy adherent to the law’ would have been the same characterization the

founders had about the enslaved Africans. The government essentially expands on Bruen’s

test to argue that the denial of all constitutional rights at the founding can justify the denial

of some constitutional rights today. The government should be careful in ‘pick[ing] [its]

friends out of history’s crowd.’ [Citation.]

The government demonstrates ignorance and insensitivity toward this nation’s

history of slavery and the peculiar institution’s modern impact on Black Americans. This

level of disregard becomes all the more concerning when the realities of how Section

922(g)(1) is enforced against primarily Black Americans is considered. [Citations.]

Unsurprisingly, this Court rejects the government’s reliance on slavery and

discrimination toward Native Americans as historical analogues to Section 922(g)(1) given

the regulations impermissible premise cannot impose a ‘comparably justified’ burden on

the right of armed self-defense. Accordingly, the Court finds that Section 922(g)(1) is not

analogous to discriminatory regulations regarding slavery and Native Americans.” United

13 No. 1-22-1264

States v. Washington, No. 23-cr-00274,

, at *5-6 (N.D. Ill. Nov. 29,

2023).

See also United States v. Mitchell, No. 1:23-cr-00198 (ALC),

(S.D.N.Y., Nov.

17, 2023). 3

¶ 34 IV. CONCLUSION

¶ 35 Mobley cannot raise a claim under Bruen because he is not a law-abiding citizen, and

accordingly, we affirm his conviction for UUWF.

¶ 36 Affirmed.

3 In discussing this issue, the Mitchell court, despite Bruen, declined to analogize to historical firearm bans based on membership in now-protected classes, such as racial and religious firearm bans, explaining:

“The Court rejects the abhorrent and morally corrupt historical regulations barring individuals from possessing forearms or ammunition on the basis of race, religious affiliation, and suspected disloyalty. These laws undoubtedly would not pass constitutional muster today. Despite this, several courts have found these laws relevant in determining the constitutionality of the felon-in- possession statute.” Mitchell,

, at *6.

The Mitchell Court continued,

“This Court does not need to uphold the constitutionality of [section] 922(g)(1) on these repulsive historical regulations. Bruen of course requires a robust historical analysis. But it cannot stand for the proposition that the government *** should rely on questionable ill-reasoned regulations to justify burdening an individual’s constitutional right to bear arms in the present day. There is undoubtedly a plethora of irrational and unjustified regulations in English and this country’s histories founded at their core on discrimination. The government may not satisfy Bruen by relying on these laws, particularly when better suited historical analogues are available. Setting aside the morally corrupt reasoning justifying these historical regulations, this Court fails to see how race or religious-based restrictions are at all analogous to the disarming of felons. Casting such a broad net of legislation would render Bruen’s analogous requirement meaningless.”

14 No. 1-22-1264

People v. Mobley,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-16864; the Hon. Michael R. Clancy, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Tomas G. Gonzalez, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Jessica R. Ball, and Caitlin Chenus, Assistant State’s Appellee: Attorneys, of counsel), for the People.

15