THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAPHAEL L. SMITH, Defendant-Appellant.
NO. 4-22-0958
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
September 14, 2023
2023 IL App (4th) 220958-U
Honorable C. Robert Tobin III, Judge Presiding.
Appeal from the Circuit Court of Boone County No. 20CF47. Justice DeARMOND delivered the judgment of the court. Justice Doherty concurred. Justice Turner specially concurred.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court.
Justice Doherty concurred in the judgment.
Justice Turner specially concurred.
ORDER
Held: The appellate court affirmed, finding the circuit court did not err in dismissing defendant‘s postconviction petition.
para 1 In January 2022, defendant, Raphael L. Smith, pleaded guilty to aggravated unlawful use of a weapon (AUUW). Defendant did not file a postplea motion or a notice of appeal. In September 2022, defendant filed a pro se postconviction petition, which the circuit court dismissed for failing to state the gist of a constitutional claim. Defendant appeals, arguing the AUUW statute under which he was convicted is unconstitutional pursuant to the United States Supreme Court‘s decision in New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). We affirm the circuit court‘s judgment.
para 2 I. BACKGROUND
para 3 On March 5, 2020, the State charged defendant with AUUW and possession of a
para 4 On January 27, 2022, defendant entered a negotiated guilty plea to AUUW in exchange for a sentence of four years’ imprisonment, and the State dismissed the second count. According to the plea‘s factual basis, officers performed a traffic stop of a vehicle in which defendant was a passenger. The officers’ canine unit alerted to the odor of narcotics, and the officers searched the vehicle, where they discovered a handgun in a sock resting in the “passenger side trunk liner.” The vehicle‘s driver, who said she was defendant‘s girlfriend, told the officers that “she had seen [defendant] with the gun inside the sock at his mom‘s house,” and “[defendant] did not have permission to bring the gun inside the vehicle.” Defendant was previously convicted of AUUW in 2007, and he did not have a valid FOID card. The circuit court accepted defendant‘s plea as knowing and voluntary and sentenced him to four years’ imprisonment. Defendant did not file a postplea motion or notice of appeal.
para 5 On September 26, 2022, defendant filed a pro se postconviction petition, arguing he was “coerced by force” to plead guilty, the officers improperly extended the traffic stop, and the officers’ search of the vehicle violated defendant‘s fourth amendment rights (see
para 6 This appeal followed.
para 7 II. ANALYSIS
para 8 As a preliminary matter, we note defendant has abandoned his postconviction petition‘s allegations on appeal. While this generally results in forfeiture, “a challenge to the
para 9 Defendant argues his two AUUW convictions—one in this case and one in a 2007 case—should be vacated because the FOID card requirement found in subsection 24-1.6(a)(3)(C) of the Criminal Code of 2012 (Code) is facially unconstitutional. Our review pertains only to defendant‘s 2022 conviction. “A statute will be deemed facially unconstitutional only if there is no set of circumstances under which the statute would be valid.” People v. Bochenek, 2021 IL 125889, para 10, 183 N.E.3d 61. “Statutes are presumed constitutional, and the party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. A court must construe a statute so as to uphold its constitutionality if reasonably possible.” People v. Gray, 2017 IL 120958, para 57, 91 N.E.3d 876. We review de novo whether a statute is facially unconstitutional. Bochenek, 2021 IL 125889, para 9.
para 10 Defendant contends his AUUW convictions should be vacated because the Code‘s FOID card requirement is inconsistent with our nation‘s historical tradition of firearm regulation. Defendant relies on the test articulated by the United States Supreme Court in Bruen, which held a government, when regulating conduct presumptively covered by the second amendment (
para 12 Section 24-1.6(a)(1), (a)(3)(C) of the Code, which contains the FOID card requirement, provides:
“(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, *** any pistol, revolver, stun gun or taser or other firearm; [and] *** (3) One of the following factors is present: *** (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) ,(a)(3)(C) (West 2020).
para 13 To obtain a FOID card, an individual must submit an application and evidence showing, inter alia, they are not a convicted felon, they have not been convicted of domestic battery or a substantially similar offense, they have not been convicted of battery or a substantially similar offense in the last five years, they are not addicted to narcotics, and they have not been a patient in a mental health facility in the last five years. See
para 14 The FOID card application process constitutes a shall-issue licensing regime, which Bruen did not find unconstitutional. See
“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].’ [Citation.] 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. [Citation.] 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.’ [Citation.]” Bruen, 142 S. Ct. at 2138 n.9.
para 15 Bruen‘s concurrences reiterated the decision‘s boundaries. Justice Kavanaugh‘s concurrence, which Chief Justice Roberts joined, emphasized, “[T]he Court‘s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court‘s decision does not affect the existing licensing regimes—known as ‘shall-issue’ regimes—that are employed in 43 States.” Bruen, 142 S. Ct. at 2161 (Kavanaugh,
para 16 Unlike the licensing regime at issue in Bruen, the Firearm Owners Identification Card Act (FOID Card Act) dictates an application must be approved when the applicant satisfies the objective criteria laid out in the act. See
para 17 B. The Historical Analysis Approach Has Already Found Favor With Illinois Courts
para 18 Even if our FOID card requirement was not distinguishable from the New York licensing regime in Bruen, Illinois courts have consistently found the requirement constitutional after performing historical analyses.
para 19 In articulating the test courts should apply when determining a firearm regulation‘s constitutionality, Bruen rejected the two-step analysis developed by lower courts after District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), which “combine[d] history with means-end scrutiny.” Bruen, 142 S. Ct. at 2125. The Court held the two-step approach was “one step too many,” as ”Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.” Bruen, 142 S. Ct. at 2127. Instead, the Court specified Heller “demands a test rooted in the Second Amendment‘s text, as informed by history,” and it found “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, 142 S. Ct. at 2127.
para 20 Since Heller and McDonald, Illinois courts have used historical analyses to find the AUUW statute‘s FOID card requirement is a constitutional regulation. Applying both a strict scrutiny analysis and the “text, history, and tradition” approach, the First District determined
para 21 Defendant acknowledges these cases and their holdings, but he argues they are irrelevant because they preceded Bruen. However, as previously discussed, Bruen repeatedly distinguished between may-issue and shall-issue licensing regimes, and it explicitly excepted shall-issue regimes from its holding. See Bruen, 142 S. Ct. at 2123-24, 2138 n.9, 2161 (Kavanaugh, J., concurring, joined by Roberts, C.J.). While defendant urges us to dismiss this distinguishing language as mere dicta, we will not ignore Bruen‘s unambiguous efforts to exclude shall-issue regimes from its decision.
para 22 Bruen requires courts to determine whether a firearm regulation is part of our nation‘s historical tradition. Bruen, 142 S. Ct. at 2126-27. Illinois courts have repeatedly performed historical analyses of subsection (a)(3)(C) and found it constitutional. See Mosley, 2015 IL 115872, para 34-36; Wiggins, 2016 IL App (1st) 153163, para 76-81; Taylor, 2013 IL App (1st) 110166, para 31-32. Additionally, Bruen repeatedly distinguished between may-issue and shall-issue licensing regimes and found shall-issue licensing regimes may continue. See Bruen,
para 23 III. CONCLUSION
para 24 For the foregoing reasons, we affirm the circuit court‘s judgment.
para 25 Affirmed.
para 26 JUSTICE TURNER, specially concurring:
para 27 I concur in the majority order affirming the circuit court‘s judgment dismissing defendant‘s postconviction petition. However, my concurrence is based only on the analysis set forth in paragraphs 1 through 16 of the majority order (supra para para 1-16), and I take no part in the majority‘s analysis in paragraphs 17 through 22 (supra para para 17-22).