Capitol - Your Illinois News Radar » *** UPDATED x1 *** Cook County judge rules gun law unconstitutional
SUBSCRIBE to Capitol Fax      Advertise Here      Mobile Version     Exclusive Subscriber Content     Updated Posts    Contact
To subscribe to Capitol Fax, click here.
*** UPDATED x1 *** Cook County judge rules gun law unconstitutional

Wednesday, Mar 27, 2013

* Donta Mosley, 20, was convicted in Cook County of two charges of aggravated unlawful use of a weapon. He had an uncased, loaded and immediately accessible gun without a valid FOID card. Not good.

But Cook County Judge Michael Brown recently declared the Aggravated UUW law unconstitutional and tossed out the felony charge against Mosley.

* Part of the problem for Mosley, as outlined by Brown, was that he was ineligible to obtain a FOID card. From the opinion

Thus, an offender under the age of 21 cannot independently obtain an FOID card. An offender cannot compel his parent or guardian to consent to an FOlD card application. Further, even if consent would be availing, the status of the parent/guardian could prohibit the offender from obtaining the FOlD card. The FOID Act requires the parent/guardian, under pain of perjury, to claim they are themselves eligible for a card. Neither can the underage offender be held legally accountable for the failure of a third party to give consent to an FOlD card. See 720 ILCS 5/5-2.

15. Thus, first-time underage offenders subject to the non-probationable sentence provision under 720 ILCS 5/24-1.6(d)(2) face a juridical impossibility. Simply put, the FOlD Card Act prohibits 18-, 19-, and 20-year-olds from individually complying with the very law that prevents the imposition of a nonprobationable sentence.

16. Further, in this particular case according to the presentence investigation, the defendant’s parents had been incarcerated. They were legally prevented from providing the consent that defendant required to obtain a FOlD card.

17. In the court’s view, this juridical impossibility offends due process as enumerated in the United States Constitution, Fourteenth Amendment and Article I, Section 2 of the Constitution of the State of Illinois. For these reasons, the court finds 720 ILCS 5/24-1. 6(d)(2) to be unconstitutional.

* The judge also found an inherent contradiction in the UUW law

Thus, a person carrying an uncased, loaded, immediately accessible weapon without a FOlD card can be charged and convicted under either statute, the misdemeanor UUW statute or the AGG UUW statute. The greater punishment required for a violation of the AGG UUW statute can only be justified under the proportionate penalties clause if the statute requires the State to prove different or additional elements to convict a defendant of AGG UUW; however, contrary to McGee, the statute makes no such requirement. The elements of the two offenses are identical. The AGG UUW statute is therefore unconstitutional under the proportionate penalties clause of the Illinois Constitution because it fails the identical elements test.

The full opinion is here. One of the better explanations I’ve seen in the online message boards is from a commenter who also posts here

Imagine you had 2 Speeding laws. one said 30 MPH over you get a ticket and the other says felony and 1 year in jail. Same act, nothing else. just two state laws and is arbitrary which one the cop or prosecutors charge you with.

Which law did you break? If both, and they are both identical how can one be a simple ticket and the other a mandatory year in jail?

That is what he pointed out here. You have two laws and can be charged with either one, but very different penalties and no difference in why you get a Mis A or a Felony.

This is a lower court, so the opinion is not binding outside the case itself. But the UUW laws regarding public carry have already been declared federally unconstitutional by an appellate court, so the gun folks now have a little more ammo.

*** UPDATE *** Rep. Mike Zalewski (D-Riverside) saw today’s post and sent me a note..

Rich, I was made aware of the Mosley ruling last week. As it potentially affected one of my bills, I asked for an opinion from the Cook County State’s Attorney’s Office on Judge Brown’s ruling. Below is their Appeal’s chief’s response.

Thanks for letting me respond.

* The analysis…

The trial court in the Mosley case ruled that misdemeanor UUW and Aggravated UUW are the same offense with two different penalties, and can be charged either way at the sole discretion of the State’s Attorney. The obvious problem with this conclusion is that it is directly contrary to long-standing Illinois law. As the Illinois Appellate Court ruled over 10 years ago inPeople v. McGee, 341 Ill. App. 3d 1029, 1035 (1st Dist. 2003), when it specifically rejected an identical argument:

    “[T]he aggravated UUW statute contains nine aggravating factors, at least one of which must be present for the felony charge to succeed. Of particular interest to this defendant are factors (A) and (C). That is, he was charged with carrying or possessing a weapon that was ‘uncased, loaded and immediately accessible,’ and with possessing or carrying concealed the firearm without having been issued a valid Firearm Owner’s Identification Card. Those factors are not required for the misdemeanor UUW offense. The misdemeanor does not require that the gun be loaded. Nor does it require that the defendant had not been issued a valid FOIC. Further, if the weapon is loaded and enclosed in a case, it does not come within aggravating factor A of the felony charge; it still may be charged as a misdemeanor, which excepts “unloaded and enclosed in a case” firearms. 720 ILCS 5/24-1 (a) (4) (iii)(West 2000).

    We also note that none of the other seven aggravating factors’ is a required element of the misdemeanor offense. These aggravating factors thus narrow the universe of persons subject to felony penalties for UUW. In, short, the felony charge applies to more serious conduct. They are not the same.

    We see no disproportionality here.” (emphasis added).

As McGee makes clear, Aggravated UUW is the appropriate charge when a person engages in the “more serious conduct” of possessing a loaded, uncased and immediately accessible firearm while in public, and when no currently valid FOID card has been issued. This is precisely what the trial court found that the State’s Attorney proved beyond a reasonable doubt. The trial court was bound to follow that decision and erred when it refused to.

Furthermore, McGee is entirely consistent with the concept that more serious conduct is punished more severely. Just as robbery is based on the same conduct as armed robbery, armed robbery is properly punished more harshly because it poses a greater risk to the public.

Aggravated UUW works the same way, when a person who does not possess an FOID card and has never even attempted to obtain one, carries a loaded, uncased and immediately accessible gun into a public park, he is not a law-abiding citizen and poses a greater risk to the people around him. He should be punished more severely.

- Posted by Rich Miller        

  1. - How Ironic - Wednesday, Mar 27, 13 @ 8:59 am:

    “…so the gun folks now have a little more ammo.”

    Rimshot please.

    And as far as the ruling goes, makes perfect sense.

  2. - Mason born - Wednesday, Mar 27, 13 @ 9:03 am:

    I actually did not know about the Parents signature thing for under 21. Pretty ironic since at age 18 it is legal for you to buy a rifle or shotgun but you cannot get the foid required to purchase without your parents signature. (i got mine the first time at 12 and my boys got theirs at 13. You have to have one to hunt if you are by yourself.)

  3. - OneMan - Wednesday, Mar 27, 13 @ 9:09 am:

    Besides the fact that either the judge came up with this on his own or the defendant had a sharp attorney is worth noting.

    Wonder how many other things you can’t legally do as a 18-20 year old because of something your parents did?

  4. - RonOglesby - Wednesday, Mar 27, 13 @ 9:14 am:

    This is an interesting case because of the two thigns this judge pointed out. but as Rich noted, only binding to this case and will be appealed I am sure. Though the logic of a law that requires you have a FOID to have or even touch a gun a Illinois yet you cannot legally get a FOID without a parents signature is silly.

    One thing of note, this is not the only logical contradiction in Illinois gun laws. There are others where laws conflict with things like the wild life code.

    Part of the problem (I believe) is that a simple review to find illogical or conflicting laws when it comes to guns is impossible in Illinois. Any time a gun law of any type is discussed Chicago wants to add more restrictions and has no intention of cleaning up conflicts, while downstate (south of I80 ;-) has to intention of giving anything else to chicago, so very little gets done.

  5. - mcb - Wednesday, Mar 27, 13 @ 9:23 am:

    “Part of the problem (I believe) is that a simple review to find illogical or conflicting laws when it comes to guns is impossible in Illinois. Any time a gun law of any type is discussed Chicago wants to add more restrictions and has no intention of cleaning up conflicts, while downstate (south of I80 ;-) has to intention of giving anything else to chicago, so very little gets done.”

    Might be the best synopsis of the gun debates in Illinois.

  6. - RonOglesby - Wednesday, Mar 27, 13 @ 9:39 am:

    BTW, I am not south of I 80 and I know that is a huge generalization, but its close. I am closer to 355 off of i55 than I80.

    Didnt want to rile up my buddies in Cook County.

  7. - 47th Ward - Wednesday, Mar 27, 13 @ 11:30 am:

    Further reason to update the statutes on firearms use to bring everything up to date with the soon to be new reality of legal CCW. The hodge podge approach to the criminal code and firearms legislation leads to exactly this kind of stupid legal trap.

    Let’s get this on the table with CCW and bring some sense and consistency (and fairness) to our criminal code.

  8. - Mason born - Wednesday, Mar 27, 13 @ 11:50 am:


    Well said. Which is precisely why the GA won’t do it. I swear it’s like someone reccomends a common sense fix and then they all decide to do the opposite.

  9. - RonOglesby - Wednesday, Mar 27, 13 @ 12:11 pm:

    47th and I actually agree a little here. Though Mason is right. it wont happen.

    Instead we have a gigantic shell bill with 3 dozen amendments that are supposed to cover everything from CCW to magazine limits, to assualt weapon bans to AgUUW changes to mandatory minimums for certain things…

    a bill at a time and some reason would do well for this situation, but its not what we are known for in Illinois.

  10. - Mason born - Wednesday, Mar 27, 13 @ 12:45 pm:

    I am curious with the update how does it apply if he is an Adult 18+ but cannot obtain a FOID because of his parents action. It seems to me there is no way for him not to run afoul of the more severe charge. (exempting of course not carrying a gun)

  11. - OneMan - Wednesday, Mar 27, 13 @ 12:53 pm:

    Aggravated UUW works the same way, when a person who does not possess an FOID card and has never even attempted to obtain one

    Dude, the key here IMHO is he couldn’t obtain one legally due to to no action of his own since he parents had been incarcerated.

    I am not an attorney, but are you saying that if he had tried to submit an invalid FOID application or a fraudulent one it wouldn’t be an issue since he had tried?

    Again, not a lawyer, also curious if this is the same bunch who said we don’t have to listen to federal courts.

  12. - RonOglesby - Wednesday, Mar 27, 13 @ 12:57 pm:

    The appeal’s chief has to find a way to appeal.

    But no where in that statement does he address the the reason the 20 year old man has no FOID. He has no FOID because the state would not issue him one because his PARENTS are not eligible.

    Meaning the state can say you must have something, BUT put you in a position that someone else’s behavior keeps you from having what the state requires…

    That is a key issue and is not addressed in the response.

  13. - Amalia - Wednesday, Mar 27, 13 @ 1:43 pm:

    I’m still going to post what I did on Monday in the Sheriff’s thread about guns on this matter….it’s confusing. even with the new information. cause certainly this new case will be taken up on appeal, right?

    1) current situation with the law….we’d like such crimes to be taken seriously. so here’s hoping we can continue to punish more severely.

    2) future…what if there is no FOID card? why would we need one if universal background checks are the law in Illinois? isn’t it just a big expense that will be made not necessary in all cases?

    3) I really don’t like it when out of one side of their mouth the ISRA/NRA is pleading for stronger punishment and then they jump to this immediately as a giant problem. which now we find out it is not, well, not really. here’s hoping for the appellate court to sort out Judge Brown’s decision. after all, the Appeal’s chief’s response is not an opinion, it is a position. an opinion comes from a Justice.

    like I said, it’s confusing.

  14. - Skirmisher - Wednesday, Mar 27, 13 @ 3:36 pm:

    The fact that Chicago zealously wants to make felonies out of guns related offenses that would be regarded as misdemeaners almost everywhere else (or no offense at all)leads me to suspect that City Hall is less interested in suppressing violent crime and much more interested in suppressing civil disobedience. If you are not seeing things the Rahm way, then you are a political enemy, and political enemies are to be destroyed.

  15. - RonOglesby - Wednesday, Mar 27, 13 @ 3:37 pm:


    I like your thoughts on number 2. but I will say this, Illinois would NOT drop the FOID even if there were universal background checks. Its a ratchet, tighter, addition hoops, but no way backwards.

    I would be ok with background checks on every purchase. In Illinois we have this to some extent, any purchase at a gun show has to have one (we have no gun show loophole) and every face to face has to have a FOID today.

    But you are right, and my guess is the FOID would not go away regardless of the background check model.

  16. - Formerly Known As... - Wednesday, Mar 27, 13 @ 3:50 pm:

    === I asked for an opinion from the Cook County State’s Attorney’s Office ===

    === curious if this is the same bunch who said we don’t have to listen to federal courts ===

    Pardon me if I side with the judge rather than the Cook County State’s Attorney for the moment.

  17. - Todd - Wednesday, Mar 27, 13 @ 5:46 pm:

    Rich — with all,due respect to Rep. Zalewski, your kidding right?

    Themjudge specifically cited McGee and said it was wrong and contrary to the illinois supreme court decision in people v. Laubsher para #26 in the Mosley decision, and found the McGee court did not take it into account.

    Judge Brown found a direct conflict between the 1st District Appealate court and the Illinois Supreme Court and said he was bound by the Supreme Court decision.

    The opinion from SA’s office doesn’t even attempt to,addres what the judge spends atleast 3 paragraphs layout and explaining the conflict and his reasoning.

    This looks to be more kindercare legal work by the incompetent SA’s office who just wants to run around and say because we say so it must be so. Are they to incompentent to address judge Brown’s legal analisys, or just to lazy?

    What they gave you was a smoke screen and not an answer as the judge took the issue head on and dealt with it in a legal way.

    From my persective, they didn’t even read his decision.

  18. - Just The Way It Is One - Wednesday, Mar 27, 13 @ 8:18 pm:

    Whoa–this is big news in a dangerous, murder-ridden place like Chicago. It appears to me, I guess, that in the jurisprudential approach of some, at least, donning the Black Robes in the Circuit Court in Cook County, the “new” Illinois version of the 2nd Amendment in Illinois has really arrived…!

Sorry, comments for this post are now closed.

* Madigan tells audience he rejected a 2015 deal proposed by Rauner
* Today's number: 11 Illinois women in 200 years
* Mark Brown and Eric Zorn on Chris Kennedy
* Citizen Action backs Pritzker, Evanston backs Biss, Kennedy to unveil property tax reform plan
* SUBSCRIBERS ONLY - Campaign updates
* SUBSCRIBERS ONLY - Today's edition of Capitol Fax (use all CAPS in password)
* Yesterday's stories

Visit our advertisers...






* Madigan greeted warmly at Ottawa labor summit -.....
* Automatic voter registration 'smooth sailing' s.....
* Northern Illinois utility says customers can ge.....

* Sangamon County Jail increases inmate mental health services
* Truck driver charged in fatal accident in West Virginia
* U of I's capital plan will focus on facilities
* Bald eagle takes flight at Litchfield lake after rehab
* Bill would give rural Illinois schools high-speed internet
* Northern Illinois utility says customers can get assistance
* EXCHANGE: Basketball bookends Vietnam veteran's story
* EXCHANGE: Brown's Chicken murders changed business forever
* Thousands protest Trump at Illinois women's marches
* $1.9M in Mellon Foundation grants aid UIC humanities studies

* New session will bring new efforts at pension reform
* Rauner order bars lawmakers from property-tax appeals
* Outdoor sports participants hoping for larger cut in farm bill
* U of I trustees approve 4th-straight tuition freeze
* Rauner to air extended ad of Pritzker, Blagojevich on wiretap
* Mendoza to keynote Women's March Saturday in Springfield
* Chicago mayor vows to step up Amazon second headquarters bid
* Under the Dome Podcast: More Blago-Pritzker talk, Rauner confirms Duke is racist
* U of I withdrew 35 job offers after background checks
* Frerichs: Can't get tax break for using college savings plan on private K-12 tuition

* Gutierrez' 'support' for Trump's wall not quite what it seems
* Gutierrez's 'support' for Trump's wall not quite what it seems
* How important is job flexibility? Our survey wants to know.
* Like our roundup? Share it around.
* What you need to know about the L.A. Times 'frat-boy executive' scandal

* Dear Abby: Losing out on job left me humiliated
* Patriots’ defense key to another postseason comeback
* Super Bowl LII preview: The Patriots and Eagles will square off for title
* Loyola peels away from Valparaiso for 70-54 win
* Horoscope for Jan. 22, 2018
* Man, 27, reported missing from Rogers Park
* Patriots in record 10th Super Bowl; Eagles in search of first Super Bowl win
* Patriots open as favorite over Eagles in Super Bowl LII
* Eagles rout Vikings for first Super Bowl berth since 2004 season
* Woman, 18, critically wounded in Bridgeport shooting

* Woman shot in Bridgeport among 2 wounded in Sunday shootings
* 2 IEDs detonated inside Florida mall, no injuries: police
* Senate fails to reach deal to end government shutdown, pushes vote to Monday
* 'The Chi' Episode 3 recap: 'Ghosts' shows characters haunted by past
* First-year Golden Knights win again, now have best record in NHL
* 'Three Billboards' sweeps female-focused and led SAG Awards
* Patriots open as favorite over Eagles in Super Bowl
* Stephen Miller, immigration agitator and White House survivor, is at the center of the fight over ‘Dreamers’
* Aly Raisman's mom rips into Michigan State coach Tom Izzo: 'Are you a moron?'
* Much as White House might try to soften blow, government shutdowns are costly and cumbersome

» Hundreds Of Thousands Gathered For Women's March In Chicago
» Chicago Schools Chief: Cost A Driver In Special Ed Overhaul
» One Year Later, Women’s March Demands More Than Attendance
» State Week: Education Funding, Pritzker-Blagojevich, Rauner-Duke
» Sheriff Offers To Help Review Police Shootings In Suburban Cook County
» A Prescription For Fruits And Veggies: One Solution To Food Insecurity in Illinois
» A Call For Transparency
» 2 Illinois Governor Candidates Spend $26M In Last 3 Months
» State Board of Education: Double School Funding Now
» Lawmakers Demand Fast Internet For Rural Schools

* Their View: Is civics still taught in our schools?
* George Will: Choosing immigration criteria is a Sisyphean task
* New session will bring new efforts at pension reform
* Rauner goes after Madigan's other job
* Madeleine Doubek: May we better value journalism and the journalists
* Our View: Springfield needs more than a cautious plan for Y block
* Statehouse Insider: Rauner goes after Madigan's other job
* UIS Perspectives: Public affairs internships lead to success
* Petty, Davidsmeyer both decry anti-Petty calls
* Ed Rogers: High stakes for Trump at the World Economic Forum

* Parkland student picked as Illinois fair queen
* Two homes damaged during shots-fired incident in Davenport
* Fallen officers honored at I–80 overpass
* Glen Carbon man gets 12 years in prison for stealing marijuana
* Greater Peoria Honor Flight wants more diversity among its vets
* 5 juveniles struck by car in St. Louis; 1 in critical condition
* UI Women's Tennis vs Florida State
* Tazewell, Woodford marriages, divorces: Jan. 21, 2018
* Random Acts of Kindness: Stranger rescues dog in rush hour
* Missing 10-year-old from Missouri found safe

* Trump business ethics pledges left plenty room for profiting
* The Latest: Federer, again, into Australian Open quarters
* Eagles fans take to streets to celebrate after team's win
* Philippine volcano explodes, authorities raise alert level
* Boedker, Thornton lead Sharks in 6-2 rout of Ducks

* Dissident artist Ai Weiwei and US Rep. Ran...
* Our view: End patronage at Algonquin Towns...
* Bipartisan Illinois criticism follows Trum...
* Shutdown Stalemate As Immigration Negotiat...
* Time Magazine's Powerful New Cover Feature...
* Letter: Talk to tax preparer about GOP tax...
* Rep. Hultgren: It is Not Safe for Salvador...
* Hultgren makes strong mark on nation's new...
* US places Pakistan on special watch list f...
* Congressman Randy Hultgren Disagrees with ...

* This RSS feed URL is deprecated...
* Dick Durbin & Donald Trump: Males of Their......
* Dick Durbin & Donald Trump: Males of Their......

* This RSS feed URL is deprecated...
* Duckworth Calls Trump '5-Deferment Draft D......
* Sen. Duckworth Slams Trump as '5-Deferment......

* Federal government shutdown shows we really likely are that shallow
* Women's March: The Sequel, or this time we have a destination
* Sketchbook.
* From Bev Johns: The ISBE and legislators turned a blind eye to CPS special education mess.
* Hearing aids print money and executives steal it.
* Sketchbook.
* Observing Epiphany With A Plunge In The Lake
* Michael Pfeiffer, Former Crew Server, Missing
* Don't Get Conned By The Armani Jacket Scam
* Sketchbook.

* Illinois Awarded Funds to Offer Advanced Training on Detecting Impaired Driving
* Illinois EPA Announces Upcoming Household Hazardous Waste Collection Events
* IEMA Highlights Emergency Preparedness for People with Access and Functional Needs in May - Ready Illinois website offers preparedness tips for people, caregivers
* First Lady Launches Illinois Family Connects
* Governor and Lt. Governor Unveil 2016 Journal of Local Government Shared Service Best Practices

* Will Sony Xperia XZ Pro lose headphone jack? Dongle pictured in FCC docs
* B&H has LG G6+ for 25 percent off at $599.99
* Sprint HTC U11 getting Android Oreo update this week
* Moto X4 kernel on Android Oreo now on GitHub
* After a year of delays, cashier-less Amazon Go store to open Monday
* Lacking iPhone 6 Plus repair stock, iPhone 6s Plus units may be given out
* New Nokia flagship leaks with five camera lenses and Snapdragon 845

* Advocating for retired non-numbers
* Getting ready for Soxfest 2018
* White Sox seeking new flagship radio home
* Engel working to steady barrel in Year 2
* WLS parent company looking to end White Sox radio deal
* Inbox: Who replaces Rodon in the rotation?
* 2018 South Side Sox Hall of Fame Ballot

Main Menu
Pundit rankings
Subscriber Content
Blagojevich Trial
Updated Posts

January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004

Blog*Spot Archives
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005


RSS Feed 2.0
Comments RSS 2.0

Hosted by MCS SUBSCRIBE to Capitol Fax Advertise Here Mobile Version Contact Rich Miller