People v. Rush
2014 IL App (1st) 123462
Ill. App. Ct.2014Background
- In April 2009 defendant Cordell Rush argued with his daughter, retrieved a .45-caliber handgun, waved it, unloaded and reloaded it, and threatened to kill her; the daughter escaped and police recovered the gun (with scratched serial number) from his home.
- Defendant, a convicted felon (burglary conviction in 1997), was charged and convicted by a jury of unlawful use of a weapon by a felon (UUWF) and possession of a firearm with defaced identification marks; the latter merged into the UUWF conviction.
- The trial court imposed an extended eight-year sentence; Rush appealed.
- Rush raised an as-applied Second Amendment challenge: because Illinois bars a person convicted of a forcible felony from applying for a FOID card until 20 years after conviction, he argued the UUWF statute unconstitutionally criminalized his in-home possession.
- He also argued due process/equal protection (statutory process is arbitrary), complained of double use of his prior conviction to elevate offense class, and sought correction of the mittimus to reflect the merged count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of UUWF under the Second Amendment | State: felon-based firearm bans are longstanding, permissible limits on the Second Amendment to protect public safety | Rush: as-applied challenge — his 1997 burglary was remote; FOID bar for 20 years makes criminalization arbitrary and unconstitutional | Court: UUWF does not burden Second Amendment rights because felons are categorically outside its core; statute upheld (adopts Garvin analysis) |
| Due Process / Equal Protection — arbitrary FOID eligibility | State: legislature legitimately restricts firearm rights of felons; time-based restrictions are rationally related to public safety | Rush: statute arbitrarily permits some felons but bars others; remoteness of conviction should matter | Court: No arbitrary deprivation shown; legitimate state interest and no controlling authority supporting defendant's theory; claim rejected |
| Double use of prior conviction to prove element and enhance offense class | State: use is proper under statute/precedent | Rush: prior conviction used twice is impermissible double enhancement | Held: Issue foreclosed by People v. Easley; defendant concedes Easley controls, so no relief |
| Mittimus error (merged count) | State: acknowledges clerical error and agrees mittimus should be corrected | Rush: requests correction to show merged conviction structure | Court: Corrects mittimus to reflect single UUWF conviction |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognized individual right to possess firearms for self-defense but identified longstanding prohibitions and exceptions)
- McDonald v. City of Chicago, 561 U.S. 742 (U.S. 2010) (incorporated Second Amendment protections against the states while reaffirming that prohibitions on felons possessing firearms are unaffected)
- People v. Aguilar, 2013 IL 112116 (Ill. 2013) (Illinois Supreme Court: certain comprehensive bans on bearing operable firearms outside the home violate the Second Amendment, but recognized longstanding exceptions including felon prohibitions)
- People v. Easley, 2014 IL 115581 (Ill. 2014) (Illinois Supreme Court decision cited by defendant’s counsel that forecloses the argument against using prior convictions both as an element and a sentencing factor)