Category Archives: Firearm/FOID

Guns within 1000 ft of public park law ruled unconstitutional

Defendants who have been charged or convicted of unlawful use of weapons charges involving firearms within 1000 feet of a public park (and potentially some other locations) could have their cases overturned or dismissed based upon the new Illinois Supreme Court ruling in People v. Chairez, 2018 IL 121417.

The Illinois Supreme Court held in People v. Aguilar, 2013 IL 112116 that portions of the law concerning unlawful use of weapons, 720 ILCS 5/24-1, were unconstitutional. In legal terms, sections of Unlawful Use of Weapons/Aggravated Unlawful Use of Weapons law were declared v”oid ab initio”. The Aguilar decision was followed by People v. Mosley, 2015 IL 115872.

According to 725 ILCS 5/24-1(c)(1.5),

A person who [commits the offense of unlawful use of weapons] on any public way (road) within 1000 feet of real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.

Chairez specifically held that possessing a firearm within 1000 feet of a public park was unconstitutional based upon intermediate scrutiny. The Illinois Supreme Court held that Chairez was a facial challenge to the statute, and that the statute violated a Defendant’s core 2nd Amendment right to possess a firearm with respect to parks, but reserved ruling on the other locations. However, the logic of Chairez can be easily extended. One of the primary issues is that there is no notice for what is a public park. Similarly, 1000 feet is a substantial distance for schools, public transportation facilities, and public housing agencies in an urban location. I suspect a map with overlapping circles in Chicago would cause almost every area to be within 1000 feet of a school, courthouse, public transportation facility, or public housing agency property. After all, a “public transportation facility” could potentially include every subway station in Chicago. That would prevent any meaningful exercise of a Defendant’s Second Amendment rights.

Here is a freehand drawn map of only the first page of Chicago schools listed on Google. There are many more pages of schools. As you can see from the number of schools, it would be nearly impossible to move in Chicago without violating the law in some manner.

Areas within 1000 feet of Chicago Schools

A similar map appears if you draw a 1000 foot circle around every “M” public transportation facility. Urban density makes it impossible for the Second Amendment rights to be exercised.

Locations where I suspect there is a stronger probability that it is still permissible to restrict firearms include near courthouses. Comparatively speaking, it is less likely that the prohibition against firearms at public transportation facilities or public housing agency property  will survive a direct challenge.

As when Aguilar and Mosley were decided, it seems likely that future post-conviction petitions alleging the unlawful use of weapons/aggravated unlawful use of weapons (UUW/AGG UUW) statute as applied to parks is unconstitutional will be successful. People who have been convicted of the charge in Kane, Kendall, Will or DuPage Counties should highly consider retaining an attorney to vacate their previous convictions by contacting us.

 

First Time Weapon Offender Program

On January 1, 2018 the Illinois Code of Criminal Procedure will have a new first offender program to deal with young Defendants who are charged with Unlawful Use of Weapons (UUW) or Aggravated Unlawful Use of a Weapon (Agg UUW). Under the new First Time Weapon Offender Program, 730 ILCS 5/5-6-3.6, the Court may defer the proceedings against an offender for 18 to 24 months. If the Defendant complies with all requirements, the Court may then discharge and dismiss the proceedings against the person. This is a form of deferred sentencing scheme similar to First Offender Probation, along with Section 410/Section 10 probations.

 Under the law, the Defendant will NOT qualify for the First Time Weapon Offender Program if:

(1) The offense is a Class 3 felony or greater; or

(2) The offense was committed during the commission of a violent offense (Defined as: Any offense in which bodily harm was inflicted or force was used against any person or threatened against any person; any offense involving the possession of a firearm or dangerous weapon; any offense involving sexual conduct, sexual penetration, or sexual exploitation; violation of an order of protection, stalking, hate crime, domestic battery, or any offense of domestic violence.) ; or

(3) He or she has had a prior successful completion of the First Time Weapon Offender Program; or

(4) He or she has previously been adjudicated a delinquent minor for the commission of a violent offense; or

(5) He or she is 21 years of age or older; or

(6) He or she has an existing order of protection issued against him or her; or

(7) The State’s Attorney does not consent to the placement to the Defendant in the program.

If the Defendant is placed within the program, he or she will be required to fulfill conditions in order to successfully complete the First Offender Program. The conditions of the First Time Weapon Offender Program shall be that the defendant:

(1) not violate any criminal statute of this State or any other jurisdiction; and

(2) refrain from possessing a firearm or other dangerous weapon; and

(3) obtain or attempt to obtain employment; and

(4) attend educational courses designed to prepare the defendant for obtaining a high school diploma or to work toward passing high school equivalency testing or to work toward completing a vocational training program; and

(5) refrain from having in his or her body the presence of any illicit drug prohibited by the Methamphetamine Control and Community Protection Act, the Cannabis Control Act, or the Illinois Controlled Substances Act, unless prescribed by a physician, and submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug; and

(6) perform a minimum of 50 hours of community service; and

(7) attend and participate in any Program activities deemed required by the Program administrator, including but not limited to: counseling sessions, in-person and over the phone check-ins, and educational classes; and

(8) pay all fines, assessments, fees, and costs.

The Program may, in addition to other conditions, require that the defendant:

(1) wear an ankle bracelet with GPS tracking; or

(2) undergo medical or psychiatric treatment, or treatment or rehabilitation approved by the Department of Human Services; or

(3) attend or reside in a facility established for the instruction or residence of defendants on probation.

Finally, there may only be one discharge and dismissal under this program. If the Defendant is convicted of any offense which occurs within five years subsequent to the discharge and dismissal, the discharge and dismissal shall be admissible in the sentencing proceeding for that conviction as evidence in aggravation.

These are some additional issues to consider which occurred to me as this article was being written:

(1) Although the age range of this program is essentially from 18 to 21, the educational requirement is that the Defendant complete high school, GED, or a vocational program. If the Defendant has already completed high school though, the only remaining condition option is that the Defendant shall attend educational courses to work towards completing a vocational program. That condition appears to specifically exclude a non-vocational college education. In other words, under the current law, a Defendant with a high school degree must attend a vocational training program, even if they have no intention to attend a vocational training program or are college bound. I look forward to determining how the DuPage County State’s Attorney’s Office and the Dupage County Court handles the Defendant who have graduated high school. I suspect the Court may simply accept proof of college attendance as “working towards completing a vocational training program”.

(2) Although the evidence of First Offender Weapon Probation may be considered “admissible” in subsequent proceedings, it may be insufficient to trigger additional sentencing scheme penalties which depend upon a prior conviction, such as extended term sentencing schemes, or the subsequent cannabis offense enhancements.