* 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.