People v. Santillanes , 2024 IL App (1st) 221178-U ( 2024 )

2024 IL App (1st) 221178-UNo. 1-22-1178
Filed May 30, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 1375
)
MICHAEL SANTILLANES, ) Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: Aggravated unlawful use of a weapon conviction affirmed over facial constitutional
challenge.
¶2 Following a bench trial, Michael Santillanes was convicted of three counts of aggravated
unlawful use of a weapon (AUUW) and sentenced to two years in prison. On appeal, he asserts
the provision of the AUUW statute that criminalizes possession of a firearm in public without
having been issued a valid firearm owner’s identification (FOID) card is facially unconstitutional
No. 1-22-1178
in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc.
v. Bruen, 597 U.S. 1 (2022). We disagree and affirm the conviction. 1
¶3 I. BACKGROUND
¶4 At trial, Andrew Szparkowski testified his car broke down near the intersection of West
67th Street and South Keating Avenue in Chicago on the evening of December 27, 2019. As
Szparkowski was examining his car’s engine, a man he identified as Santillanes stepped down
from a Hummer SUV parked nearby. Santillanes approached Szparkowski and told him to get out
of the neighborhood. Szparkowski replied that he was waiting for a friend who was on his way
and that he would leave once they jumpstarted the car. Santillanes said that was fine and began
walking away. He turned, however, and pointed a handgun at Szparkowski, telling him there would
be bullet holes in his car if it were not gone by morning. Szparkowski called the police a short time
later.
¶5 Chicago Police Officer Evans 2 testified he responded to Szparkowski’s call. Upon reaching
the location, he observed a Hummer SUV parked on the street. Officer Evans approached the
passenger side of the vehicle, where he found Santillanes, the sole occupant, seated. A search of
Santillanes’s person revealed nothing, but Officer Evans discovered a Taurus 9mm semi-automatic
handgun on the rear seat. A computer inquiry revealed Santillanes did not have a valid FOID card
or concealed carry license (CCL). The Hummer SUV was not registered to Santillanes, and the
handgun was not registered to anyone.
¶6 The parties stipulated that Santillanes did not possess a valid FOID card or CCL at the time
of the offense. Santillanes did not testify or present any evidence.
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.
2
The record does not contain Officer Evans’s first name.
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No. 1-22-1178
¶7 The trial court found Santillanes guilty of three counts of AUUW: one count premised on
lack of a CCL and FOID card, the second premised on lack of a CCL, and the third premised on
the lack of a FOID card. The court acquitted him of a fourth count, which alleged he made a threat
of violence against Szparkowski. The court sentenced Santillanes to two years in prison on the
count premised on the lack of a FOID card. The other two counts merged. This appeal followed.
¶8 II. ANALYSIS
¶9 Santillanes argues that, based on Bruen, criminalizing the public carrying of a firearm
without a valid FOID card violates the Second Amendment. For that reason, Santillanes asserts
that his AUUW conviction must be vacated. In his opening brief, Santillanes takes issue with the
FOID Card Act’s (430 ILCS 65/0.01 et seq. (West 2018)) requirements, which are a precondition
for a person to lawfully acquire or possess a firearm in Illinois. He contends the requirement to
obtain a FOID card burdens the right to carry firearms in public for self-defense. Santillanes then
argues that historical tradition from the 18th and 19th century precludes burdening that right by
requiring a person to first obtain a license. He also submits that historical firearm regulation was
not punitive but either required certain persons to post a surety or imposed small fines. Santillanes
further insists that a footnote in the Bruen decision—appearing to approve of state firearm “shall
issue” licensing schemes like the one in Illinois—is dicta and should not control the issue.
¶ 10 In his reply brief, however, Santillanes states that he is not asserting an “ ‘unqualified
right’ ” to public carry “that cannot be burdened by any restriction whatsoever.” He also observes
that the State’s counterarguments are “overly focused on the perspective of an applicant seeking a
license under the FOID Card Act” and explains that his challenge pertains to “the punitive AUUW
statute under which he was convicted.” Santillanes then emphasizes a comparison between those
penalties imposed by historical regulations versus the criminal AUUW statute.
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¶ 11 The arguments in Santillanes’s briefs are not consistent. He initially asserts his challenge
is to the criminalization of possessing a firearm without a FOID card, but he then devotes much of
his brief to attacking the FOID Card Act itself as burdening the right to bear arms. In contrast,
Santillanes’s reply brief suggests he is not challenging the FOID Card Act, but only the penalty for
violating it, which is contained in the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West
2018)). This inconsistency makes our review difficult, as it is unclear what precise question is
before us. We are entitled to have issues clearly defined with pertinent authority and coherent
arguments presented. Maday v. Township High School District 211, 2018 IL App (1st) 180294,
¶ 50. Nevertheless, Santillanes asserts his claim is a facial challenge to the portion of the AUUW
statute making firearm possession without a FOID card a criminal offense subject to criminal
penalties, including imprisonment.
¶ 12 Facial challenges to a statute may be raised at any time. People v. Villareal, 2023 IL 127318,
¶ 13. A party raising a facial challenge must establish that the statute is unconstitutional under any
possible set of facts. People v. Harris, 2018 IL 121932, ¶ 38.
¶ 13 The Bruen decision “announced a new analytical framework for evaluating the
constitutionality of firearm regulations.” People v. Brooks, 2023 IL App (1st) 200435, ¶ 68.
Previously, if the regulated activity fell within the scope of the Second Amendment, courts could
weigh the severity of a firearm regulation—the means—against the ends the government sought
to achieve. Id. ¶ 67. In Bruen, the Supreme Court condemned any means-ends analysis and instead
required the government to “ ‘justify its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. ¶ 69 (quoting Bruen, 597 U.S. at 24).
¶ 14 Under the Bruen framework, the government must point to a historical representative
analogue from before, during, and after the Nation’s founding as precedent to justify its firearm
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regulation. Id. ¶¶ 70-71. The historical analogue need not be exact, but should be “ ‘relatively
similar’ ” to the challenged modern-day regulation. Id. ¶ 72 (quoting Bruen, 597 U.S. at 29). The
inquiry would turn on “whether the ‘modern and historical regulations impose a comparable
burden on the right of armed self-defense and whether that burden is comparably justified.’ ” Id.
¶ 73 (quoting Bruen, 597 U.S. at 29).
¶ 15 In Bruen, the Court struck down New York’s licensing regime that required applicants to
demonstrate “some additional special need” to carry a handgun publicly, rather than “issu[ing]
licenses to carry based on objective criteria.” Bruen, 597 U.S. at 11. The Court differentiated
between “may-issue” licensing regimes like New York’s, where “authorities have discretion to
deny concealed-carry licenses even when the applicant satisfies the statutory criteria,” and
“shall-issue” licensing regimes in 43 states, where “authorities must issue concealed-carry licenses
whenever applicants satisfy certain threshold requirements, without granting licensing officials
discretion to deny licenses based on perceived lack of need or suitability.” Id. at 13-14. The Court
included Illinois among the 43 “shall-issue” regimes. Id. at 13 n.1. In a footnote, the Court stated:
“To be clear, nothing in our analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general
desire for self-defense is sufficient to obtain a [permit].’ [Citation.] Because these licensing
regimes do not require applicants to show an atypical need for armed self-defense, they do
not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second
Amendment right to public carry. [Citation.] Rather, it appears that these shall-issue
regimes, which often require applicants to undergo a background check or pass a firearms
safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in
fact, ‘law-abiding, responsible citizens.’ [Citation.] And they likewise appear to contain
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No. 1-22-1178
only ‘narrow, objective, and definite standards’ guiding licensing officials, [citation] rather
than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an
opinion,’ [citation] features that typify proper-cause standards like New York’s. That said,
because any permitting scheme can be put toward abusive ends, we do not rule out
constitutional challenges to shall-issue regimes where, for example, lengthy wait times in
processing license applications or exorbitant fees deny ordinary citizens their right to
public carry.” Id. at 38 n.9.
¶ 16 In People v. Gunn, 2023 IL App (1st) 221032, a defendant sought reversal of his AUUW
conviction premised on lack of a FOID Card. Like Santillanes, Gunn argued his conviction could
not stand in light of Bruen. Id. ¶¶ 7, 17. This court rejected Gunn’s challenge, noting the Supreme
Court’s differentiation between “shall-issue” and “may-issue” licensing regimes. Id. ¶ 19 (citing
Bruen, 597 U.S. at 38 n.9). We remarked, “[t]here is no need for us to engage in a historical analysis
of firearm regulation when the Supreme Court has already done so and explicitly sanctioned the
use of background checks.” Id.
¶ 17 Insofar as Santillanes challenges the FOID Card Act itself, his challenge offers no reason
to revisit the issue we resolved in Gunn. 3 We decline to consider the Supreme Court’s footnote as
mere obiter dicta, 4 as the Court’s distinction between “may-issue” and “shall-issue” licensing
regimes was essential to Bruen’s holding that New York’s law was unconstitutional. Nor does the
footnote’s indication that the Court would not “rule out” challenges to “shall-issue” licensing
regimes prompts us to conduct a historical comparison. The Court contemplated that such a
3
This court has rejected similar Bruen-based challenges in several unpublished orders. See People
v. Smith, 2023 IL App (4th) 220958-U, People v. Kuykendoll, 2023 IL App (1st) 221266-U, People v.
Richardson, 2024 IL App (1st) 221508-U.
4
“Obiter dicta are comments in a judicial opinion that are unnecessary to the disposition of the
case.” People v. Williams, 204 Ill. 2d 191, 206 (2003).
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challenge could be cognizable when licensing regimes impose obstacles to public carry such as
lengthy wait times or exorbitant fees. In no way, however, can the Court’s comment be read to
endorse an attack on a licensing requirement itself. But that is the sort of challenge Santillanes
asserts regarding the FOID Card Act—an attack on the basic requirement to obtain a license as a
precondition to carry a firearm in public for self-defense. Accordingly, we follow Gunn and reject
Santillanes’s challenge to the FOID Card Act.
¶ 18 We turn to the thrust of Santillanes’s challenge. Unlike Gunn, who solely challenged the
FOID Card Act, Santillanes argues that the Second Amendment prohibits the imposition of
criminal penalties for carrying a firearm in public without a valid FOID card. He contends that
historical analogues restricting public carry only required posting a surety or imposed small fines.
Thus, in Santillanes’s view, the analytical framework announced in Bruen should lead us to find
that the criminal penalties of the AUUW statute are contrary to the historical tradition of firearm
regulation and therefore unconstitutional.
¶ 19 Taken to its logical conclusion, Santillanes’s argument would have us interpret the Second
Amendment to prohibit a state from imposing criminal penalties for violating a firearm licensing
regulation, even if the regulation itself passes constitutional muster. No court has taken such a leap.
We are aware of no authority that supports limitations on penalties for otherwise valid firearm
regulations and Santillanes does not cite any. Second Amendment jurisprudence has been
concerned with protecting the right to armed self-defense from burdens imposed by regulations,
not protecting individuals from penalties if they choose to disregard valid regulations. Since the
Second Amendment has never been interpreted to bar a state from making public firearm
possession in violation of a valid regulation a criminal offense, Santillanes facial challenge fails.
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¶ 20 Separate from his appeal of the AUUW conviction in this case, Santillanes seeks vacatur
of two prior AUUW convictions. Unlike this case, Santillanes was previously convicted under a
subsection of the AUUW statute that was found to amount to a flat ban on firearm possession
outside the home and facially invalid under the second amendment. See People v. Aguilar, 2013
IL 112116, ¶¶ 19-22. Such convictions are void and may be attacked at any time in any court. In re
N.G., 2018 IL 121939, ¶ 57. The State agrees that Santillanes prior AUUW convictions are void
and should be vacated. Thus, we vacate both convictions.
¶ 21 III. CONCLUSION
¶ 22 For these reasons, we affirm the judgment of the trial court in this case and vacate the
judgments of conviction in case number 11 CR 00131 and case number 11 CR 09407.
¶ 23 Appeal No. 1-22-1178 Affirmed.
¶ 24 Case No. 11 CR 00131 Judgment vacated.
¶ 25 Case No. 11 CR 09407 Judgment vacated.
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