THE PEOPLE OF THE STATE OF ILLINOIS v. DEVIN KUYKENDOLL
No. 1-22-1266
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
December 12, 2023
2023 IL App (1st) 221266-U
JUSTICE COBBS delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.
Second Division. Appeal from the Circuit Court of Cook County. No. 22 CR 1403. Honorable James B. Linn, Judge, presiding. NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Held: Statute criminalizing the public possession of a firearm without a Firearm Owners Identification Card or Concealed Carry License is not facially unconstitutional. Defendant‘s conviction for the aggravated unlawful use of a firearm is affirmed.
¶ 1 Following a bench trial, defendant Devin Kuykendoll was convicted of the aggravated unlawful use of a weapon (AUUW) and sentenced to one year in prison. The charges were based on defendant‘s possession of a firearm in public without having been issued a valid Firearm
I. BACKGROUND
¶ 3 On the night of February 6, 2022, Chicago police officers Ryan Corrigan and Christine Golden were patrolling in their vehicle near Ashland Avenue in Chicago. Officer Golden was the driver and Officer Corrigan was the passenger. Just before midnight, they observed defendant, who was driving a sedan, commit a traffic violation. The officers activated their emergency equipment, but defendant did not immediately pull over. The officers quickly forced him to stop by overtaking his sedan along the driver‘s side and pulling in front of it.
¶ 4 Officer Corrigan exited his vehicle and approached the sedan. Defendant was sitting in the driver‘s seat with an extended firearm magazine protruding from his left pocket. Officer Corrigan reached into defendant‘s sedan and grabbed the magazine, at which point he discovered that it was attached to a handgun. Officer Corrigan placed the gun on the roof of defendant‘s sedan, but at some point it slid off the roof and onto the ground. Officer Corrigan then ordered defendant out of the sedan and, after several minutes, defendant complied and was arrested.
¶ 5 Officer Golden testified that after curbing defendant‘s sedan, she exited her vehicle and walked around the front to reach where Officer Corrigan was already engaged with defendant. As Officer Golden approached, she observed Officer Corrigan pull an “object” out of defendant‘s sedan and place it on the roof, but she was unable to see what the object was. However, Officer Golden later saw a firearm on the ground “directly below” where Officer Corrigan had placed the object on the roof. The firearm was recovered after defendant was taken into custody.
¶ 7 Based on this evidence, the trial court found defendant guilty of AUUW. Defendant filed a posttrial motion attacking the sufficiency of the evidence, which the court denied. The court later sentenced defendant to one year in prison.
¶ 8 This appeal followed.
II. ANALYSIS
¶ 9 On appeal, defendant argues that his conviction should be overturned because the portions of the AUUW statute under which he was convicted are facially unconstitutional. He contends that requiring an otherwise law-abiding citizen to first obtain a FOID card or CCL before possessing a firearm in public impermissibly restricts one‘s right to keep and bear arms under the second amendment to the United States Constitution. More specifically, defendant maintains that the AUUW statute fails the “new two-step test” announced in Bruen, where the United States Supreme Court held that restrictions on the right to bear arms must be analyzed through the lens of our nation‘s historical regulation of firearms. Bruen, 142 S. Ct. at 2126.
¶ 10 A defendant may challenge the facial constitutionality of a statute at any time, even, as here, for the first time on appeal. People v. Thompson, 2015 IL 118151, ¶ 32. A facially unconstitutional statute is void ab initio, meaning that “the statute was constitutionally infirm from the moment of its enactment and, therefore, unenforceable.” Id. However, a facial challenge is “the most difficult challenge to mount” because a statute is facially unconstitutional only if there are no possible circumstances in which the statute could be validly applied. People v. Davis, 2014 IL 115595, ¶ 25. Moreover, all statutes are strongly presumed to be constitutional, and the challenging party bears the burden of rebutting that presumption by demonstrating a clear constitutional
¶ 11 As relevant here, the AUUW statute provides that:
“(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her 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; ***
*** and
(3) One of the following factors is present:
***
(A-5) the pistol, revolver, or handgun possessed was uncased, loaded, and immediately accessible at the time of the offense and the person possessing the pistol, revolver, or handgun has not been issued a currently valid license under the Firearm Concealed Carry Act; or
***
(C) the person possessing the firearm has not been issued a currently valid Firearm Owner‘s Identification Card[.]”
720 ILCS 5/24-1.6(a)(1).
¶ 12 The process for obtaining a FOID card is laid out in the FOID Card Act, which the General Assembly enacted “to provide a system of identifying persons who are not qualified to acquire or possess firearms, firearm ammunition, stun guns, and tasers within the State of Illinois[.]”
¶ 13 Similarly, the Firearm Concealed Carry Act details the requirements for obtaining a CCL. To qualify for a CCL, individuals must possess a valid FOID card and pay a fee of $150.
¶ 14 As previously stated, defendant‘s sole contention on appeal is that the FOID card and CCL requirements fail the test recently articulated in Bruen because this nation‘s history does not reveal any reasonably analogous restrictions on the right to bear arms.
¶ 15 Before addressing the merits of defendant‘s position, however, we briefly acknowledge that in its brief on appeal, the State argued that defendant lacked standing to bring his challenge because there is no evidence that he attempted to procure either a FOID card or CCL. However, at oral argument, the State conceded that defendant had standing. We agree with the State‘s concession, as a party generally has standing to challenge the constitutionality of a statute where “he has sustained or is in immediate danger of sustaining some direct injury as a result of the statute.” Aguilar, 2013 IL 112116, ¶ 12. Here, defendant was convicted and punished under the AUUW statute, which as explained, incorporates the requirements of the FOID Card and Concealed Carry Act by criminalizing noncompliance. Thus, he has standing to challenge the statute‘s constitutionality. See People v. Fulton, 2016 IL App (1st) 141765, ¶ 19 (defendant had standing to challenge his conviction for being an armed habitual criminal despite never applying for a FOID card); see also People v. Gunn, 2023 IL App (1st) 221032, ¶ 25, n. 1 (rejecting State‘s argument that defendant convicted of AUUW lacked standing to challenge the Conceal Carry Act).
¶ 16 We now turn to the merits of defendant‘s claim. The heart of his argument is that the AUUW statute violates the protections of the second amendment, which are made applicable to the states through the fourteenth amendment. Bruen, 142 S. Ct. at 2137.
¶ 17 The second amendment provides: “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.”
¶ 18 After reviewing its second amendment jurisprudence, the Court articulated a two-part test for evaluating the constitutionality of firearm regulations. Id. at 2126. At the first step, an individual‘s conduct is presumptively protected by the constitution if the conduct is covered by the second amendment‘s plain text. Id. Second, if the individual‘s conduct is covered by the second amendment, then “the government must demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation.” Id.
¶ 19 The Court ultimately held that New York‘s regime was unconstitutional, reasoning that the “proper cause” requirement gave the government too much discretion to deny a license to an applicant seeking to possess a firearm out of a generalized desire for self-protection. Id. at 2156.
¶ 20 In so ruling, however, the Court made special note to contrast discretionary “may-issue” regimes like New York‘s with the so-called “shall-issue” laws used by vast majority of states.1 Under these “shall-issue” regimes, licensing authorities were required to grant a license to any
“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit].’ Drake v. Filko, 724 F.3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry. District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ Ibid. And they likewise appear to contain only ‘narrow, objective, and definite standards’ guiding licensing officials, Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969), rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion,’ Cantwell v. Connecticut, 310 U.S. 296, 305, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)—features that typify proper-cause standards like New York‘s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” Id.
¶ 21 Justice Kavanaugh, joined by Chief Justice Roberts, also wrote a concurring opinion to emphasize that the Court‘s decision “does not affect” shall-issue regimes like the one used in
¶ 22 Here, defendant spends much of his brief on appeal arguing that the FOID card and CCL requirements are not rooted in our nation‘s historical tradition of firearm regulation. This is exactly the same argument we rejected in People v. Gunn, 2023 IL App (1st) 221032, ¶¶ 19, 28, a case we find instructive. In Gunn, we explained that there was “no need to engage in a historical analysis of firearm regulation when the Supreme Court has already done so and explicitly sanctioned” the licensing requirements in the FOID Card and Conceal Carry Acts. Id. ¶ 20.
¶ 23 We will follow Gunn here because, as the previous discussion shows, nothing in Bruen supports defendant‘s position that the AUUW statue is unconstitutional. To the contrary, it is clear that Illinois employs the kind of shall-issue regime endorsed by the Bruen Court. Indeed, both the FOID Card Act and the Conceal Carry Act provide that the Illinois State Police “shall issue” a license to any applicant who meets the well-defined, objective criteria contained therein.
¶ 24 We acknowledge defendant‘s contention that Illinois is not a shall-issue state with regard to CCLs, but this argument can be easily dismissed. Specifically, defendant points out that an applicant will not be deemed to have completed the required firearms training course if he “does not follow the orders of the certified firearms instructor.”
¶ 25 Finally, we also note that Bruen recognized the possibility of shall-issue regimes violating the constitution if, in practice, they denied average citizens their second amendment rights through things like “lengthy wait times” or “exorbitant fees.” Bruen, 142 S. Ct. at 2138 n. 9. However, we cannot say that is the case here, where a FOID card must be issued within 30 days, with a $10 fee, and a CCL must be issued within 90 days, with a $150 fee. Defendant does not make any serious argument to the contrary.2 Thus, Bruen provides no basis to declare the AUUW statute unconstitutional.
III. CONCLUSION
¶ 26 For the reasons stated, we affirm the judgment of the circuit court.
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