IL Self-Defense Case(s) of the Month (2/2014): AUUW charges

Well, I’m sorry to say I didn’t find any particularly interesting self-defense cases for Illinois for the month of February 2014.
I did, however, find several interesting cases that touch directly upon Second Amendment law in the context of a specific Illinois gun possession crime statute, so I thought perhaps those might be of interest.

All three cases involve convictions under Illinois’ aggravated unlawful use of a weapon (AUUW) statute. Essentially, this statute makes it a crime to knowingly carry a firearm under specified circumstances. One portion of the statute makes it illegal to possess an uncased, loaded, immediately accessible firearm on your person outside of your abode or place of business [720 ILCS 5/24-1.6(a)(3)(A)]. Another portion makes it illegal to possess a firearm in the absence of a valid Firearm Owner’s Identification Card (FOID) [720 ILCS 5/24-1.6(a)(3)©]

The Illinois supreme court had recently ruled that the AUUW state violated the second amendment to the United States Constitution (People v. Aguilar, 2 N.E.3d 321). As a result, there are now a number of appeals by people seeking to have their convictions under AUUW dismissed.

These following three cases are interesting for a couple of reasons.

First, they were all decided by the same appellate court—the First District, Fifth Division. Indeed, they were all decided by the same trio of appellate justices—Taylor, Gordon, and McBride.

Second, these cases make clear that convictions under AUUW premised on simple access to a firearm will be dismissed, but that AUUW convictions premised on other gun law violations and other possessory gun crimes will remain vigorously enforced.

In essence, then, this trio of decisions is intended as a guide by this appellate court to prosecutors to insure that they understand what statutes to use in charging gun possession cases, such that dismissals under

That said, let’s get to them. Because there are three, I’ll treat each in brief. The full text of each case is available on my blog, as usual. If you want the links to them or any of the statutes, jury instructions, or cases cited within them, just DM me, I’m happy to provide.

(Caveat—my area of expertise is “self-defense law”, not “gun law”. I’m sure there are many people on this forum with vastly greater knowledge of IL gun law than I will ever possess. I present these cases, then, as interesting topics of discussion, not as cases in which I claim any particular expertise.

People v. Andrade, 2014 IL App (1st) 113786-U (IL Ct. App. 2014)

February 28, 2014

The defendant, Carlos Andrade, was convicted at trial of four counts of aggravated unlawful use of a weapon (AUUW). Three of these convictions were premised on the defendant being in possession of an accessible firearm, and the fourth was premised on the defendant being in possession of a firearm in the absence of a Firearm Owner’s Identification Card (FOID). He appealed, based on the IL supreme court’s ruling that the AUUW statute was unconstitutional.

(Notably, the defendant had also been charged with unlawful possession of a firearm by a street gang member [720 ILCS 5/24-1.8], but apparently the prosecutors were unable to prove that the Latin Kings constituted a street gang under Illinois law.)

The facts of the case were straightforward. Two uniformed officers on patrol observed Andrade shout “King love” and flash a Latin King gang sign at a passing car. When they approached, Andrade fled. As they pursued they observed Andrade throw a silver pistol into a house. One of the officers later recovered the loaded handgun.

Importantly, an investigation revealed that the house into which the pistol had been thrown was not the abode of Andrade, and further that Andrade had never been issued a FOID card.

At trial, as noted, Andrade was convicted of four counts of AUUW. He appealed.

The appellate court here ruled that the three of his AUUW convictions that were premised on his mere access to a loaded firearm [720 ILCS 5/24-1.6(a)(3)(A)] must be dismissed, based on the IL supreme court ruling that those facets of the AUUW law violated the second amendment to the US Constitution.

The fourth of his AUUW counts, however, was premised on his being in possession of a gun in the absence of a valid FOID [720 ILCS 5/24-1.6(a)(3)©]. This, the appellate court determined, would stand.

In making this decision the appellate court fond that the Aquilar court found unconstitutional only the “comprehensive ban” of firearms as embodied in 720 ILCS 5/24-1.6(a)(3)(A), but allowed for the “reasonable regulation” of firearm possession as embodied in 720 ILCS 5/24-1.6(a)(3)©.

Because at trial this remaining conviction was merged with the others for sentencing purposes, the appellate court remanded the case back to the sentencing court for an explicit sentence on this remaining charge.

Message to the prosecution: “Where you used to charge under (a)(3)(A), make sure you now charge under (a)(3)©.”

People v. Rojas, 2014 IL App (1st) 113362-U (IL Ct. App. 2014)

February 14, 2014

In this case the defendant, Salvador Rojas, was convicted of AUUW solely under provision 720 ILCS 5/24-1.6(a)(3)(A) of that statute. He was sentenced to two years probation and ordered to pay fines and fees. He appealed his conviction on the basis that the IL supreme court had found the AUUW statute unconstitutional under People v. Aguilar.

Notably, he had also initially been charged under (a)(3)©, the FOID portion of the AUUW statute, but the prosecutors figured they had enough and they elected not to pursue that charge at trial.

Here again two police officers happened to observe the defendant toss a rifle—this time out the window of a single family home and onto some railroad tracks. One of the officers recovered the loaded weapon. They identified and arrested the defendant.

Importantly, the home was not the defendant’s abode.

Here the appellate court again found that Aquilar was dispositive on a conviction under 720 ILCS 5/24-1.6(a)(3)(A).

Because that was the only charge under which the defendant had been convicted, the conviction was vacated.

Message to the prosecution: “Make sure you charge these gun possession guys with something in addition to (a)(3)(A).”

People v. Garg, 2014 IL App (1st) 120621-U (IL Ct. App. 2014)

February 14, 2014

In this case, as in Andrade, the defendant, Sahil Garg, was convicted for possession of a firearm in violation of both 720 ILCS 5/24-1.6(a)(3)(A)–carrying an uncased, loaded, immediately accessible firearm—and 720 ILCS 5/24-1.6(a)(3)©—possession of a firearm in absence of an FOID card. (He was also found guilty of possession while a gang member.)

Here another two police officers saw the defendant reach into his pocket and pull out what appeared to be a white sock, and place that white sock into a an empty beer case. The defendant then noted the officers and fled. He was pursued and captured, and when the officers returned to the beer case they found the sock within, and a .22LR revolver within the sock.

The defendant argued that his convictions under the AUUW statute must be dismissed because of the IL supreme court’s ruling in Aguilar.

Here again the appellate court agreed that convictions under 720 ILCS 5/24-1.6(a)(3)(A) could not stand. Nevertheless, the convictions under 720 ILCS 5/24-1.6(a)(3)©—the FOID charge—was still valid.

Message to prosecutors: Well, I’m pretty sure they’ve got the message by now.

–-Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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