SUPREME COURT OF ILLINOIS
509 N.E.2d 1001, 117 Ill. 2d 28, 109 Ill. Dec. 162 1987.IL.790
Appeal from the Circuit Court of Randolph County, the Hon. Carl Becker, Judge, presiding.
JUSTICE MILLER delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
Each of the four defendants in these consolidated cases-John Ryan, Don Rico Reese, Peter Lee, and Juan DeJesus-was charged in the circuit court of Randolph County with unlawful possession of a weapon by a felon, a violation of section 24-1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1). The trial Judge dismissed the charges on two separate grounds, ruling that section 24-1.1 was unconstitutional and that the charging instruments failed to allege an offense. Because the statute was found to be unconstitutional, the cases are here on direct appeal. See 87 Ill. 2d R. 603.
All four defendants were inmates of Menard Correctional Center when they allegedly committed their offenses. Defendants Ryan, Lee, and DeJesus were each charged with possession of a homemade weapon fashioned from a metal rod and sharpened into what was described as a dagger, dirk, or pick; defendant Reese was charged with possession of two homemade knives, each about seven inches long and made from pieces of Plexiglas. According to investigation reports that appear in the records in these cases, the weapons were found in the defendants' cells at Menard in the course of searches conducted by prison authorities during December 1985 and January 1986.
The defendants moved to dismiss the charges, contending that section 24 -- 1.1 was unconstitutional on a number of grounds. Later, the defendants moved to dismiss the charges on the separate ground that the informations filed against them failed to allege an offense. Following a hearing, the circuit Judge granted the defendants' motions and dismissed the charges for the reasons urged by them.
Section 24 -- 1.1 of the Criminal Code of 1961 provides:
"(a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24 -- 1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction. . . .
(b) Sentence. Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony. Any person who violates this Section while confined in a penal institution as defined in Section 2-14 of this Code is guilty of a Class 1 felony, if he possesses any weapon prohibited under Section 24-1 of this Code regardless of the intent with which he possesses it, and a Class X felony if he possesses any firearm, firearm ammunition or explosive." Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1.
Section 24-1, the unlawful use of weapons statute, prohibits certain weapons outright (Ill. Rev. Stat. 1985, ch. 38, pars. 24-1(a)(1), (a)(5), (a)(6), (a)(7), (a)(11)), prohibits other weapons only in certain situations (Ill. Rev. Stat. 1985, ch. 38, pars. 24-1(a)(3), (a)(4), (a)(8), (a)(9), (a)(10), (a)(12)), and, in subsection (a)(2), prohibits still other items only when carried or possessed "with intent to use the same unlawfully against another" (Ill. Rev. Stat. 1985, ch. 38, par. 24-1(a)(2)). Included in that last group are "a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, stun gun or taser or any other dangerous or deadly weapon or instrument of like character," and the weapons allegedly possessed by the defendants here would fall within that list.
Thus, the offense of unlawful use of weapons requires an unlawful intent when the charge is based on a weapon contained in section 24 -- 1(a)(2). (People v. Fink (1982), 91 Ill. 2d 237.) The appellate court has held that the same unlawful-intent requirement is incorporated in offenses charged under section 24 -- 1.1, unlawful use of weapons by a felon, when the felon is not confined in prison and the weapon involved is one contained in section 24 -- 1(a)(2) (People v. Crawford (1986), 145 Ill. App. 3d 318); to hold otherwise would mean that a felon who is not in confinement would be in violation of section 24 -- 1.1 for the innocent possession of common household objects such as razors or broken bottles. But section 24 -- 1.1(b) eliminates any unlawful-intent requirement with respect to a felon who is confined in prison at the time of the offense, and the apparent purpose of the statute is to prohibit even the innocent possession of items that are likely to be hazardous in the penal setting.
The circuit court's order invalidating section 24 -- 1.1 said, in general terms, that the statute was vague and overbroad, that it denied the defendants due process, and that it denied equal protection. In this court, however, the defendants would sustain the trial Judge's decision only on the ground that the statute violates due process because it is vague. Accordingly, we do not consider here the additional constitutional grounds relied on by the circuit Judge. We note, however, that the over-breadth doctrine, which permits a party to attack a penal statute that trenches on first amendment freedoms though he would not otherwise have standing to make the challenge (New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348; People v. Holder (1983), 96 Ill. 2d 444, 449), is inapplicable here; the provision in question does not implicate any rights of speech or association or any other form of activity protected by the first amendment. "utside the limited ...