THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KASHIF MUHAMMAD, Defendant-Appellee.
No. 1-23-0121
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
December 19, 2023
2023 IL App (1st) 230121-U
Honorable Kenneth J. Wadas, Judge Presiding.
SECOND DIVISION
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court of Cook County is affirmed; the unlawful use of a weapon by a felon (UUWF) statute is constitutional as applied to defendant and on its face under the second amendment to the United States Constitution.
¶ 2 The State charged defendant, Kashif Muhammad, with unlawful use of a weapon by a felon (UUWF) in violation of
¶ 3 Accordingly, we affirm the trial court‘s judgment.
¶ 4 BACKGROUND
¶ 5 A police officer stopped a vehicle defendant was driving for a traffic violation. Based on defendant‘s movements, the officer suspected defendant possessed something he did not want the officer to find. The officer performed a pat-down search of defendant, whereupon the officer discovered that defendant possessed a handgun. The officer arrested defendant and, in May 2021, the State charged defendant with two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful use of a weapon by a felon (UUWF).
¶ 6 Defendant represented himself in the trial court. Defendant filed a pro se motion to quash arrest and suppress evidence. At a hearing on the motion, the officer who arrested defendant testified the officer stopped defendant because the driver‘s view was obstructed by an air freshener hanging from the rearview mirror. When the officer stopped defendant‘s vehicle, there was a passenger in the front passenger seat, the officer could detect the smell of burnt cannabis in the vehicle, and defendant failed to produce proof of insurance. Based on defendant‘s movements during the stop and the smell of burnt cannabis the officer suspected defendant was
¶ 7 Following the hearing, the trial court denied the motion to quash arrest and suppress evidence. The case proceeded to a jury trial on the UUWF count only. The State moved to bar defendant from arguing at trial that the UUWF statute is unconstitutional. The court granted the State‘s motion. At trial, the State entered a certified copy of defendant‘s prior felony conviction for theft into evidence. After the State rested its case, defendant did not present any evidence. The jury found defendant guilty of UUWF.
¶ 8 The trial court appointed the public defender to represent defendant for posttrial proceedings. Defendant, through counsel, filed a motion for judgment notwithstanding the verdict or new trial. The posttrial motion did not argue the UUWF statute is unconstitutional. The trial court denied the motion. Defendant, through counsel, also filed an amended motion for a new trial and a motion to reconsider sentence. The trial court denied both motions.
¶ 9 This appeal followed.
¶ 10 ANALYSIS
¶ 11 The issue in this appeal is whether
¶ 12 It is universally accepted that Bruen “set out a new framework for lower courts to evaluate gun laws.” Herrera v. Raoul, 23 CV 532, 2023 WL 3074799, at *5 (N.D. Ill. Apr. 25, 2023), aff‘d sub nom. Bevis v. City of Naperville, Illinois, 23-1353, 2023 WL 7273709 (7th Cir. Nov. 3, 2023) (citing Bruen, 142 S. Ct. at 2126-34; United States v. Rahimi, 61 F.4th 443, 450-51 (5th Cir. 2023) (“acknowledging that ’Bruen clearly fundamentally changed our analysis of laws that implicate the Second Amendment, rending our prior precedent obsolete’ (cleaned up and internal citation omitted)“)). See also Baker, 2023 IL App (1st) 220328, ¶ 2; People v. Brooks, 2023 IL App (1st) 200435, ¶ 68 (“in Bruen, the Supreme Court announced a new analytical framework for evaluating the constitutionality of firearm regulations“).
“The Bruen Court outlined a two-step analysis to determine whether a challenged gun regulation is constitutional. Bruen, 142 S. Ct. at 2126-34. The Court must first determine whether ‘the Second Amendment‘s plain text covers an individual‘s conduct.’ [Citation.] If the plain text does not cover the challenged regulation, then the regulation is outside of the Second Amendment‘s scope and is
unprotected. [Citation.] However, if the text does include such conduct, ‘the Constitution presumptively protects that conduct.’ [Citation.] As such, for the regulation to be upheld as constitutional, ‘[t]he government must *** justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.’ [Citation.]” Herrera, 23 CV 532, 2023 WL 3074799, at *5.
¶ 13 We have no need to reach the test the government must pass “[t]o demonstrate that a regulation is ‘consistent with the Nation‘s historical tradition of firearm regulation.‘” Herrera, 23 CV 532, 2023 WL 3074799, at *5. This case can be disposed of on the ground the second amendment‘s plain text does not cover the conduct at issue; specifically, possession of a firearm by a convicted felon regardless of the nature of the felony, or, in other words, defendant‘s status-based prohibition on gun possession. Id.; Baker, 2023 IL App (1st) 220328, ¶ 37.
¶ 14 In Baker, the defendant argued that the UUWF statute was unconstitutional as applied to him. Baker, 2023 IL App (1st) 220328, ¶ 33. The difference between an as-applied challenge to the constitutionality of a statute and a facial challenge is that an as-applied challenge “alleges only that the statute violates the constitution as applied to the particular facts and circumstances in the instant case” whereas a facial challenge alleges the statute is unconstitutional under any set of facts (id. ¶ 34); that is, a facial challenge alleges there is no set of facts under which the statute could be applied constitutionally (People v. Ruth, 2022 IL App (1st) 192023, ¶ 35 (citing Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 228 (2010))). Our analysis in this case can end with defendant‘s as-applied challenge, for if the statute may be constitutionally applied to defendant, clearly there is a set of circumstances under which the statute could be constitutionally applied, and the facial challenge must also fail. See People v. Villareal, 2023 IL 127318, ¶ 52 (“Since he acknowledges there may be situations where the statute may be constitutionally applied ***, his facial challenge fails“); In re Jawan S., 2018 IL App (1st) 172955, ¶ 48 (“A facial challenge fails if we can conceive of any set of circumstances in which the statute could be validly applied—including as applied to the very party before us.“).
¶ 15 In Baker, as in this case, the defendant argued that the UUWF statute is unconstitutional under the second amendment pursuant to the test for constitutionality the United States Supreme Court announced in Bruen. In Baker, the defendant‘s predicate felony was manufacturing and delivery of heroin. Baker, 2023 IL App (1st) 220328, ¶ 5. This court found that
“[t]he problem with defendant‘s argument is that Bruen just does not apply to him. The Bruen Court could not have been more clear that its newly announced test applied only to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and not felons like defendant. Bruen, 597 U.S. at ___, 142 S. Ct. at 2156 (the holding was limited to laws affecting ‘law-abiding citizens‘).” Baker, 2023 IL App (1st) 220328, ¶ 37 (citing Bruen, 597 U.S. at ___, 142 S. Ct. at 2156).
The Baker court also noted that “Justice Kavanaugh in his concurrence quoted an earlier case that stated: ’ “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ***.“’ Bruen, 597 U.S. at ___, 142 S. Ct. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.) (quoting [District of Columbia v.] Heller, 554 U.S. [570,] 626-27 [(2008)]).” Baker, 2023 IL App (1st) 220328, ¶ 37. In Heller, the Court wrote that “the right secured by the Second Amendment is not unlimited” and that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Heller, 554 U.S. at 627. This court held that based on “the
¶ 16 In this case, defendant does not dispute, and agrees, writing in defendant‘s opening brief, that “[t]o evaluate the constitutionality of
¶ 17 We disagree with defendant‘s conclusion that the second amendment “presumptively applies to him.” We agree with the Baker court‘s reasoning that the Bruen court expressly and repeatedly limited its holding to “law abiding citizens” and, as importantly, confirmed that
¶ 18 In further reply, defendant claims that this court‘s decision in People v. Brooks, 2023 IL App (1st) 200435, ¶ 89, rejects the argument that the burden is on defendant to establish that the regulated activity falls within the protection of the second amendment and a defendant‘s—a felon‘s—possession of a firearm is presumptively constitutional. We are not swayed by Brooks.
¶ 19 As a threshold matter, even if we were to follow Brooks rather than Baker, defendant‘s outcome would remain the same. This court in Brooks acknowledged that “since Bruen, courts of various jurisdictions have grappled with this issue and in the vast majority of cases have found that, as applied to nonviolent felons, statutes prohibiting felons from possessing weapons are constitutional under Bruen.” Brooks, 2023 IL App (1st) 200435, ¶ 79. See also id. ¶ 105.
¶ 20 In Brooks, the State did argue that the plain text of the second amendment did not encompass the defendant because he was “not a ‘law abiding citizen,’ ” and the Brooks court did hold that the defendant‘s status as a felon is irrelevant at the stage of the analysis that asks whether the regulated conduct falls under the conduct protected by the plain language of the second amendment. Brooks, ¶¶ 87-89. Instead, according to Brooks, “[h]ow the defendant‘s prior felony might impact his second amendment right to possess a firearm is more properly evaluated under the second step‘s historical tradition analysis.” Brooks, 2023 IL App (1st) 200435, ¶ 89. The Brooks
“there is a historical tradition of legislatures exercising their discretion to impose ‘status-based restrictions’ disarming entire ‘categories of persons’ who, based on their past conduct, were presumed unwilling to obey the law. Range, 69 F.4th at 129 (Krause, J., dissenting). ‘Legislatures did so not because the individuals in
these groups were considered dangerous [or violent], but because, based on their status, they were deemed non-law-abiding subjects.’ [Citations.] While the particular groups varied over time, the founders understood that felons were one such group. Range, 69 F.4th at 129.” Brooks, 2023 IL App (1st) 200435, ¶ 97. But see Baker, 2023 IL App (1st) 220328, ¶ 38 (finding Range “does not cause us to reconsider our decision“, in part because it “is limited to misdemeanor convictions [and] does not aid [the] defendant“).
¶ 21 Nonetheless, we find support for our view in the Brooks court‘s own analysis. See Brooks, 2023 IL App (1st) 200435, ¶ 95.1 The Brooks court ultimately held that: “Since the defendant in the instant case was twice convicted of a felony, albeit nonviolent ones, he is not a law-abiding citizen, and the armed habitual criminal statute that prohibits his possession of firearms is constitutional as applied to him.” Brooks, 2023 IL App (1st) 200435, ¶ 100. Ironically, in reaching that decision allegedly under the second step of the Bruen analysis, the Brooks court agreed that categorical restrictions on the possession of firearms such as by felons “are inextricably linked to the notion of ‘law-abiding citizens.’ ” Id. ¶ 92. Later, the court further found:
“The majority of legal historians agree with this position, noting that in ‘classical republican political philosophy’ the right to bear arms was ‘inextricably and multifariously tied to’ the concept of a ‘virtuous citizenry.’ [Citations.] In other words:
‘[T]he right to bear arms in the Founding era [was] a civic right. Such a right was not something that all persons could claim but was limited to those members of the polity who were deemed capable of exercising it in a virtuous manner.’ (Emphasis in original and emphasis added.) [Citation.].
As such ‘[f]elons simply did not fall within the benefit of the common law right to possess arms,’ which turned on one‘s law-abiding character. [(Emphasis added.) Citations.].
This conclusion is further bolstered by Supreme Court precedent. In Heller, the Court held that the second amendment ‘elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’ (Emphasis added.) Heller, 554 U.S. at 635. *** Subsequently, in Bruen, the Supreme Court characterized the holders of second amendment rights as ‘law-abiding citizens’ no fewer than fourteen times. [Citation.] These included its instruction to identify historical analogues to modern firearm regulations by assessing how and why the regulations burden a ‘law-abiding citizen‘s’ right to armed self-defense. [(Emphasis added.) (Citation.)] In addition, the Bruen Court indicated that it would not disfavor a licensing regime that required applicants to undergo criminal background checks that are ‘designed to
ensure’ that ‘those bearing arms in the jurisdiction are, in fact law-abiding, responsible citizens.’ (Emphasis added and internal quotation marks omitted.) [Citation.]” Brooks, 2023 IL App (1st) 200435, ¶¶ 98-99.
¶ 22 Based on our reading of the Brooks court‘s historical analysis, we find that the history on which Brooks relies finds that categorical prohibitions on felons’ possession of firearms are “consistent with the Nation‘s historical tradition of firearm regulation” under Bruen‘s second prong and lends support to the Baker court‘s finding that ”Bruen just does not apply” because “defendant is simply outside the box drawn by Bruen.” Baker, 2023 IL App (1st) 220328, ¶ 37. We note that the Brooks court did nothing to elucidate the distinction it drew between the conduct of possessing a firearm and the status of the actor possessing the firearm for second amendment purposes. We agree with Baker‘s implicit finding that the regulated conduct in this context is not mere possession but possession by a felon.
¶ 23 We reject Brooks’ holding that relying on the defendant‘s status as a felon to find that the defendant‘s possession of a firearm is removed from the protections of the second amendment “conflates Bruen‘s first step with its second” because the first step “asks only whether ‘the Second Amendment‘s plain text covers an individual‘s conduct” (emphasis in original), meaning only the conduct of possession, not the conduct of a particular actor engaged in the conduct. See id. ¶ 89. We find this to be an overly narrow view of the first step of the Bruen analysis that the Supreme Court did not intend. As evidence the Supreme Court did not intend the first step to be read in this way, we agree with Baker: “Just in case a reader missed the first time that the court said it, the court repeated it 18 times. Bruen, 597 U.S. ___, 142 S. Ct. 2111 passim (the six justices in the majority repeated the phrase ‘law-abiding’ 18 times in their majority opinion and their concurrences).” Baker, 2023 IL App (1st) 220328, ¶ 37.
¶ 25 CONCLUSION
¶ 26 For the foregoing reasons, the circuit court of Cook County is affirmed.
¶ 27 Affirmed.