THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARMANI BELL, Defendant-Appellant.
No. 1-15-3373
Appellate Court of Illinois, First District, Sixth Division
June 29, 2018
2018 IL App (1st) 153373
Appeal from the Circuit Court of Cook County, No. 15-CR-4773; the Hon. Maura Slattery Boyle, Judge, presiding. Judgment Affirmed; mittimus corrected.
Michael J. Pelletier, Patricia Mysza, and Lauren A. Bauser, of State Appellate Defender‘s Office, of Chicago, for appellant.
Kimberly M. Foxx, State‘s Attorney, of Chicago (Alan J. Spellberg and Matthew Connors, Assistant State‘s Attorneys, of counsel), for the People.
OPINION
¶ 1 Following a bench trial, defendant Armani Bell was found guilty of unlawful use of a weapon (UUW) in a public park and sentenced to two years in the Illinois Department of Corrections. On appeal, defendant claims that the UUW in a public park provision of the 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.
BACKGROUND
¶ 2 ¶ 3 Defendant was charged with one count of UUW and six counts of aggravated unlawful use of a weapon (AUUW). Prior to trial, defendant filed a motion to dismiss count I of the indictment, which charged defendant with UUW in a public park pursuant to
¶ 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, 2013 IL 112116, and its progeny applied in this case. Defense counsel argued that the UUW statute at issue in this case was identical to the AUUW statute analyzed in Aguilar. In Aguilar, our supreme court found that it was unconstitutional for the government to pass any law that is an unqualified ban on carrying ready-to-use weapons in public. Defense counsel noted that after he wrote his motion, he discovered that the Illinois legislature amended the UUW statute in question and added a fourth exception, which states that a person is not guilty of UUW on public land if that person can prove that he or she was carrying a firearm pursuant to the concealed carry law. Defense counsel argued that the amendment proves that the prior version of the statute, pursuant to which defendant wаs charged, was unconstitutional. The trial court disagreed and found that the statute was not unconstitutional, and “the motion regarding declaring that portion of the statute unconstitutional will be denied.”
¶ 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 thе 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.
¶ 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 рublic 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.
ANALYSIS
¶ 8 ¶ 9 On appeal, defendant first contends that the statute upon which his conviction rests,
¶ 10 Defendant was convicted pursuant to
“(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
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 pаrt 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
¶ 12 In Burns, the defendant was convicted of violating
¶ 13 Here, defendant argues that the penalty enhancement found under
defendant was within a public park.
¶ 14 We also reject, based on the analysis in Chairez, defendant‘s argument that because
¶ 15 However, because Chairez was published while this appeal was pending, defendant addressed the unconstitutionality of
¶ 16 We now turn to the constitutionality of
¶ 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, 2015 IL 115872, ¶ 34. If the cоnduct falls outside of the scope of the second amendment, then the regulated activity “is not categorically unprotected,” and the law is not subject to further second amendment review. Id. But if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected, 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. Id.
¶ 18 The second amendment to the United Statеs 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.”
¶ 19 Our supreme court in Chairez noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment. The court in Chairez stated that while Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is ” ‘not unlimited.’ ” Chairez, 2018 IL 121417, ¶ 24 (quoting Heller, 554 U.S. at 626). The Supreme Court explained, in dicta, that its holding should not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Heller, 554 U.S. at 626.
¶ 20 In Moore, the Seventh Circuit ruled that the offenses proscribed under
¶ 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
¶ 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
¶ 23 In the case at bar, the State contends, relying on United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), that a public park should be cоnsidered a sensitive place, and thus the
analysis should stop here. In Masciandaro, the park at issue was a national park, and the court specifically found that it “need not *** resolve the ambiguity in the ‘sensitive places’ language in this case, because even if [the National Park] is not a sensitive place *** [the statute at issue] still passes constitutional muster under the intermediate scrutiny standard.” Id. at 473. The court specifically refrained from finding that a national park was a sensitive place. Judge Wilkinson, writing separately, expressed concern in Masciandaro that
“[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.” Id. at 473 (majority opinion).
¶ 24 Compelling argument aside, we are reminded that if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected,
¶ 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, 2018 IL 121417, ¶ 32. Under this approach, the Chairez court noted that “the second step of the inquiry requires the court to examine 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. The court noted that in Moore, the Seventh Circuit stated that “[a] blanket prohibition on carrying gun[s] in public prevents a person from
defending himself anywhere except inside his home; and so substantial a 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, though there is no proof it would.” (Emphasis in original.) Moore, 702 F.3d at 940. While conversely, “when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that‘s a lesser burden, the state [does not] need to prove so strong a need.” Id.
¶ 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, 2018 IL 121417, ¶ 45. The court noted that if the State could not proffer evidence establishing both the law‘s strong public-interest justification and its close fit to this end, the law must be held to be unconstitutional. Id. Applying this framework, the court found that elevated intermediate scrutiny should apply, and that under this more rigorous review, the government bears the burden of showing a very strong public-interest justification and a closе fit between the government‘s means and its end, as well as proving that the public‘s interests are strong enough to justify the substantial and encumbrance on individual second
¶ 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 corrеlation 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 rеstriction 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 thе 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
¶ 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, 702 F.3d at 940; Chairez, 2018 IL 121417, ¶ 43. Conversely, “when a state bans guns mеrely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that‘s a lesser burden, the state [does not] need to prove so strong a need.” Moore, 702 F.3d at 940. We find that public parks are areas “where large numbers of people, including children, congregate for recreation,” and that “[s]uch circumstances justify reasonable measures to secure public safety.” Masciandaro, 638 F.3d at 473.
¶ 30 While the Chairez court ultimately found that the “most troubling aspect” of the 1000-feet from a public park provision wаs “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, 2018 IL 121417, ¶ 55. These “troubling aspects” are not present here, and a person can certainly preserve an undiminished right of self-defense by simply not entering a public park. Accordingly, while the evidence that the State points to largely concerns public schools, we nevertheless find, as noted in Chairez, that the purpose of the UUW statute “is to protect the police and public from dangerous weapons.” Id. ¶ 62. We find that the firearm restriction‘s “within a public park” provision continues to accomplish this aim without “effectively prohibit[ing] the possession of a firearm for self-defense within a vast majority of the acreage in the city оf Chicago.” Id. ¶ 55.
¶ 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, 2013 IL 112116, ¶ 15. We find that it can reasonably be done in this case, and decline to find
¶ 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.
CONCLUSION
¶ 33 ¶ 34 For the foregoing reasons, we аffirm 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.
¶ 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
¶ 39 In this aрpeal, 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, 638 F.3d 458, 473 (4th Cir. 2011)). The State argues, and I agree, that a public park is a sensitive place akin to a school and, as a consequence, the inquiry as to the constitutionality of the statute ends. In contrast, the majority concludes that, as the State has not provided conclusive evidenсe or authority that a public park is a sensitive place, it was required to examine the strength of the State‘s justification for restricting the possession of a weapon in a public park by evaluating the restriction and the public-benefit ends it seeks to achieve.
¶ 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