Thursday, June 9, 2011

Chicago Criminal Attorney Comments on the Difficulty in Protecting Gun Rights in Chicago

This Chicago Criminal Attorney gets asked, by people who know her, what do they have to do in order to get a Concealed Carry Permit in Illinois.  I tend to shake my head and tell them they don’t want to be a test case to figure out where the law, especially in Chicago, may fall on that issue.

Still, the Illinois Supreme Court did recently rule to make it easier for those who are out-of-state and valid FOID card holders to avoid being harassed here in Illinois.

Defendant was charged by information with two counts of aggravated unlawful use of a weapon. Count I alleged that defendant carried in his vehicle an “uncased, loaded, and immediately accessible” firearm. Count II alleged defendant carried in his vehicle a firearm and “had not been issued a currently valid Firearm Owner’s Identification Card.” A jury, in the circuit court of Cook County, returned a general verdict of guilty and the appellate court affirmed.
 The record reveals the following. On May 8, 2005, defendant, Leonard Holmes, a resident of Indiana, was stopped by Chicago police officers for a traffic violation on 115th Street in Chicago. At that time, a gun was recovered from a backseat armrest in his car. This armrest separated the two back seats and contained a storage compartment that closed with a latch. The compartment could be
Folded up into the seat or left in a down position. At the time the gun was recovered, the compartment was closed and latched.
 We agree with defendant that the two statutes must be read together in order to avoid absurd results. Reading the statutes separately, as the appellate court did, would mean that an out-of-state resident who transports a firearm into Illinois when the firearm is legally registered in his home state would be exempt from
misdemeanor prosecution under the FOID Card Act but that the same conduct would subject such individual to felony prosecution under section 24–1.6(a)(1)(3)(C). This cannot be what the legislature intended. Reading these statutes together, as we must, we find that the exception identified in section 2(b)(10) of the FOID Card Act can be applied to the unlawful use of weapons statute and, therefore, a valid permit or license from another state can substitute for the FOID card requirement in section 24–1.6. Accordingly, we hold that the exception contained in section 2(b)(10) must be incorporated in the unlawful use of weapons act.
 The State argues that, even if the exception contained in section 2(b)(10) applies to the unlawful use of weapons statute, defendant cannot avail himself of  that exception because he did not have his Indiana permit in his possession at the time of his arrest. According to the State, this is a requirement in order to invoke the exception. We disagree.
 The unlawful use of a weapon statute provides that it is an aggravating factor where the defendant “has not been issued a currently valid FOID card.” The language of the unlawful use of a weapons statute only contemplates that a FOID card has been issued to that individual. There is no requirement in the unlawful use of weapons statute that an individual have his or her FOID card or other similar permit in his or her possession. Accordingly, we reject the State’s argument.
 There’s more and you really should read the court’s decision.  I’m wondering if Mr. Holmes has bothered coming back to Chicago after a “routine traffic” stop turned into the big case of the year in Illinois on gun rights.

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