Court of Appeals of Illinois, First District, First Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 09 CR 12104. Honorable James B. Linn, Judge Presiding.
Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, Office of the State Appellate Defender, Elgin, Illinois, (Kerry Goettsch, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney, County of Cook, Chicago, Illinois, (Alan J. Spellberg, Annette Collins and Veronica Calderon Malvavia, of counsel), for APPELLEE.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Hoffman and Rochford concurred in the judgment and opinion.
[¶1] The defendant-appellant Charles Grant was arrested in June 2009 on the front porch of his residence at 10920 South Wabash Avenue, Chicago, Illinois (the Grant residence), after police found him carrying a loaded handgun. The defendant was charged with four counts of violating Illinois' aggravated unlawful use of a weapon (AUUW) statute. 720 ILCS 5/24-1.6(a)(1)-(2),
(a)(3)(A), (a)(3)(C) (West 2008). Two of those counts related to the prohibition in section 24-1.6(a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(3)(A) (West 2008)) against carrying an " uncased, loaded and immediately accessible" firearm. Specifically, count I charged the defendant with carrying such a weapon " at a time when he was not on his own land, abode or fixed place of business" pursuant to section 24-1.6(a)(1), (a)(3)(A), and count III charged the defendant with carrying such a weapon while on a public street in violation of section 24-1.6(a)(2), (a)(3)(A). The remaining two counts against the defendant concerned separate provisions of the AUUW statute which prohibit the carrying of a firearm by one who " has not been issued a currently valid Firearm Owner's Identification Card [FOID card]." Count II alleged that the defendant lacked a valid FOID card while carrying a firearm while not on his own land, abode, or place of business in violation of section 24-1.6(a)(1), (a)(3)(C), and count IV alleged that the defendant had carried a firearm on a public street without a FOID card in violation of section 24-1.6(a)(2), (a)(3)(C).
[¶2] The circuit court of Cook County conducted a bench trial on September 23, 2009. Dan Kasper, the Chicago police officer who arrested the defendant, testified that he and his partner, Officer Mohammad, were on patrol in an unmarked police car on June 19, 2009 when they received a report of " shots fired" in the vicinity of the Grant residence at 10:20 p.m. The officers proceeded to " check out the neighborhood" of the reported gunfire. As the police car neared the Grant residence, Officer Kasper observed the defendant standing on the sidewalk in front of the residence. When the defendant saw the police car, he turned and ran toward the residence. Officer Kasper saw a handgun in the defendant's hand and exited the police car in pursuit of the defendant. Officer Kasper testified that the defendant ran up the front stairs of the house onto the porch and tried to enter the house. However, Officer Kasper was able to apprehend the defendant on the front porch, where four or five other men were sitting. Officer Kasper recovered a loaded .38-caliber revolver from the defendant's right hand.
[¶3] The defendant was placed into custody and spoke with the officers after he was read his Miranda rights. According to Officer Kasper, the defendant stated he had a handgun for protection because there had been a lot of shooting in the area. The defendant told the officers that he bought the handgun for $75 from a " crack head" about three months earlier. Officer Kasper also testified that he asked the defendant if he had a current valid FOID card, and the defendant responded that he did not. At no point did the defendant present a valid FOID card.
[¶4] Officer Mohammad's testimony corroborated Officer Kasper's recollection of events. Officer Mohammad testified that he and Officer Kasper responded to a radio call of " shots fired" in the vicinity of the Grant residence. Officer Mohammad testified that he observed the defendant standing on the sidewalk in front of the residence with a handgun in his right hand and that the defendant turned and ran towards the residence. Officer Mohammad corroborated that Officer Kasper exited the police car, apprehended the defendant on the front porch of the residence, and recovered a handgun from the defendant. The parties stipulated that police recovered a loaded .38-caliber handgun from the defendant.
[¶5] Junior Grant (Junior), the defendant's younger brother, testified that at 10 p.m. on the night of the defendant's arrest,
he, their brother Edward, and two other friends were sitting on the porch of the Grant residence drinking with the defendant. Contrary to the arresting officers' testimony, Junior stated that the defendant was on the porch the whole time and did not go to the sidewalk. According to Junior, the defendant had a cell phone in one hand and a drink in the other. Junior testified that a police officer approached the porch with his gun drawn, searched the defendant, and found a weapon.
[¶6] The defendant testified that on the evening of his arrest he was on the porch of the Grant residence with his brothers celebrating his brother Edward's birthday. Around 10:20 p.m., the group heard gunshots in the area. The defendant testified that 5 or 10 minutes later, he was talking on his cellular phone when the police " rushed [the] porch." The defendant stated that he was holding his cellular phone in one hand and a beverage in his other hand. The defendant testified that he asked the police if he could go inside the house to get his " ID." The defendant stated that a police officer threw him against a wall, searched him, and found a handgun that he was carrying in his pocket.
[¶7] The defendant acknowledged in his testimony that he told the police that he purchased the handgun for his own protection because there had been shooting incidents in the neighborhood. The defendant testified that he bought the handgun from a " crack head" for $75. The defendant stated that on the night of his arrest he remained on the porch, was not on the sidewalk, and denied that he had run from the police.
[¶8] After hearing closing argument from defense counsel, the trial court made a general finding that the defendant was guilty of violating the AUUW statute. On December 21, 2009, the trial judge sentenced the defendant to 18 months of probation, in addition to statutory fines and costs.
[¶9] On January 6, 2010, the defendant filed a timely notice of appeal in this court. In that appeal, the defendant argued that the AUUW statute's prohibition against carrying an " uncased, loaded and immediately accessible" firearm outside one's home or place of business was unconstitutional both on its face and as applied to the defendant. The defendant argued that this portion of the statute violated the second amendment right to bear arms in light of the United States Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), which recognized that the second amendment of the United States Constitution protects the right of citizens to bear arms for self-defense. The defendant's appeal also asked us to reexamine our supreme court's holding in Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 470 N.E.2d 266, 83 Ill.Dec. 308 (1984), which held that a village ordinance prohibiting the possession of handguns did not violate the Illinois Constitution.
[¶10] In a decision entered May 20, 2013, we affirmed the judgment of the circuit court that entered a general guilty verdict with respect to all four charged AUUW counts. People v. Grant, 2013 IL App. (1st) 100174-U. With respect to the defendant's argument that the AUUW statute was unconstitutional as applied to him, we held that this challenge was not subject to our review as the defendant had not raised the issue before the trial court. With respect to the defendant's facial challenge to the statutory provision on carrying " uncased, loaded and immediately accessible" firearms, we noted that a facial constitutional challenge must establish that no set of circumstances exists
under which the statute would be valid. We concluded that the defendant had not met this standard, since the statutory provision at issue had only restricted the manner in which firearms could be carried rather than prohibiting them altogether. Moreover, we noted that our court had repeatedly held that the AUUW statute was constitutional. We also declined to reexamine the Illinois Supreme Court's decision in Kalodimos, recognizing that we lacked the authority to overrule decisions of our supreme court.
[¶11] The defendant subsequently petitioned for rehearing. Pending that petition, the Illinois Supreme Court issued its decision in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. In Aguilar, the court determined that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, in prohibiting possession of an " uncased, loaded and immediately accessible" firearm outside the home, violated the second amendment of the United States Constitution as construed by the United States Supreme Court's decisions in Heller and McDonald. Our supreme court agreed with the reasoning of the Seventh Circuit in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), in " concluding that the second amendment protects the right to possess and use a firearm for self-defense outside the home." Aguilar, 2013 IL 112116, ¶ 21. Since section 24-1.6(a)(1), (a)(3)(A) " categorically prohibit[ed] the possession and use of an operable firearm for self-defense outside the home," our supreme court concluded that it " amount[ed] to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court." Id. Thus, the Aguilar decision held that the section of the AUUW statute underlying count I against the defendant was unconstitutional. However, the supreme court emphasized that its holding was " specifically limited to the Class 4 form of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A), (d)" but made no finding " with respect to the constitutionality or unconstitutionality of any other section or subsection of the AUUW statute." Id. ¶ 22 n.3.
[¶12] On January 29, 2014, our supreme court issued a supervisory order vacating this court's May 20, 2013 judgment on the defendant's appeal and instructing us to " reconsider the matter in light of" Aguilar " to determine if another outcome is warranted." People v. Grant, 4 N.E.3d 1115, 378 Ill.Dec. 743 (2014) (supervisory order). We subsequently permitted the parties to file supplemental briefing.
[¶13] In his supplemental brief, the defendant argues that the reasoning of Aguilar invalidates all sections of the AUUW statute of which he was convicted, " as each is centered upon possession of an uncased, loaded, and immediately accessible firearm while not on one's own land, abode or fixed place of business." The defendant argues that " the essential reasoning of Aguilar is that the Second Amendment right extends outside the home, and that reasoning thus invalidates all the Class 4 charges in this case." Thus, although Aguilar explicitly reversed only that portion of the AUUW statute ...