Category Archives: Criminal Law

The interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C. 922 (g) (9)

This is an article which examines the interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C.  922 (g) (9).  It also highlights potential areas of concern in the interaction between the statutes.

725 ILCS 5/112A-11.1 states that,

  • “When a defendant has been charged with a violation of Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5 of the Criminal Code of 1961 or the Criminal Code of 2012, the State may, at arraignment or no later than 45 days after arraignment, for the purpose of notification to the Department of State Police Firearm Owner’s Identification Card Office, serve on the defendant and file with the court a notice alleging that conviction of the offense would subject the defendant to the prohibitions of 18 U.S.C. 922(g)(9) because of the relationship between the defendant and the alleged victim and the nature of the alleged offense.” 725 ILCS 5/112A-11.1(a) (Emphasis Added)

  • “The notice shall include the name of the person alleged to be the victim of the crime and shall specify the nature of the alleged relationship as set forth in 18 U.S.C. 921(a)(33)(A)(ii). It shall also specify the element of the charged offense which requires the use or attempted use of physical force, or the threatened use of a deadly weapon, as set forth 18 U.S.C. 921(a)(33)(A)(ii). It shall also include notice that the defendant is entitled to a hearing on the allegation contained in the notice and that if the allegation is sustained, that determination and conviction shall be reported to the Department of State Police Firearm Owner’s Identification Card Office.” 725 ILCS 5/112A-11.1(b). (Emphasis Added)

  • After having been notified as provided in subsection (b) of this Section, the defendant may stipulate or admit, orally on the record or in writing, that conviction of the offense would subject the defendant to the prohibitions of 18 U.S.C. 922(g)(9). In that case, the applicability of 18 U.S.C. 922(g)(9) shall be deemed established for purposes of Section 112A-11.2. If the defendant denies the applicability of 18 U.S.C. 922(g)(9) as alleged in the notice served by the State, or stands mute with respect to that allegation, then the State shall bear the burden to prove beyond a reasonable doubt that the offense is one to which the prohibitions of 18 U.S.C. 922(g)(9) apply. The court may consider reliable hearsay evidence submitted by either party provided that it is relevant to the determination of the allegation. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established beyond a reasonable doubt and shall not be relitigated. At the conclusion of the hearing, or upon a stipulation or admission, as applicable, the court shall make a specific written determination with respect to the allegation. 725 ILCS 5/112A-11.1 (Emphasis Added)

18 U.S.C. 922 (g) (9) states that,

“[It shall be unlawful for any person] who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  18 U.S.C. 922 (g) (9)

Misdemeanor crime of domestic violence is defined in 18 U.S.C. 921 (a)(33)(A) as,

“Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. “ 18 U.S.C. 921 (a) (33)  (Emphasis Added) [Note, there was no subparagraph (c) ever enacted]

I was doing a little bit more research on the interaction between 922 (g) (9) and 725 ILCS 5/112A-11.1 when I ran across U.S. v. Hayes, 555 U.S. 415 (2009)Hayes held that the existence of a domestic relationship, although it must be established beyond a reasonable doubt, need not be a defining element of the predicate offense to support a conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence.  Hayes instead held that the word “element” applied only to the phrase,  “use or attempted use of physical force”.  The entire U.S. v. Hayes opinion from the U.S. Supreme Court should be read, including Justice Robert’s dissent.  It actually surprised me that only Justices Roberts and Scalia dissented.

However, 725 ILCS 5/112-11.1 purports to apply when a defendant has been charged with a violation of Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5 of the Criminal Code of 1961 or the Criminal Code of 2012, and that conviction of those offenses would subject the Defendant to the prohibitions of 18 U.S.C. 922 (g) (9).

720 ILCS 5/12-1 is the Illinois statutory citation for assault. 720 ILCS 5/12-2 is the Illinois statutory citation for aggravated assault. 720 ILCS 5/12-3 is the Illinois statutory citation for battery.  720 ILCS 5/12-3.2 is the Illinois statutory citation for domestic battery.  720 ILCS 5/12-3.4 is the Illinois statutory citation for violation of an order of protection.  720 ILCS 5/12-3.5 is the Illinois statutory citation for interference with the reporting of domestic violence.

An important factor to note is that no domestic relationship is an element to 720 ILCS 5/12-1, 12-2, or 12-3.  Indeed, the existence of a domestic relationship need not even be alleged.  Further, Sections 3.4 and 3.5 do not require as an element the use or threatened use of force.  By a narrow reading, even section 3.2 does not have as an element that the offense be committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. Instead, section 3.2 only requires that the victim be a family or household member, which also includes relationships such as siblings, and dating and formerly dating relationships.  Although designated relationships of 18 U.S.C. 922 are a subset of the Illinois definition of family or household relationships, the Illinois family or household relationships are not a subset of 18 U.S.C. 922, and the burdens of complying with 18 U.S.C. 922 are higher than the burdens of complying with the Illinois statutes.

Therefore, 725 ILCS 5/112A-11 permits the State to file a notice with the Court an allegation that the provisions of 18 U.S.C. 922 would apply when the Defendant is charged with a variety of offenses, when only some situations contain sufficient elements such that 18 U.S.C. 922 is truly applicable.

In an attempt to harmonize the statutes, the Court may construe the statutes as permitting the State to file with the Court a notice that 18 U.S.C. 922 is applicable to a wide range of cases, but the State would be unable to prove that 18 U.S.C. 922 is applicable to any charge at the secondary hearing.  Alternatively, if the Court finds that the federal domestic relationship definition requires as an element a more narrow classification than the Illinois domestic relationship definition, and because only some Illinois domestic relationships satisfy the higher Federal burden instead of all Illinois domestic relationships, the statute is unsalvageable.

*Note – Article written in 2013.