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*** 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…!

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