People v. Benson , 2024 IL App (1st) 221230-U ( 2024 )

2024 IL App (1st) 221230-UNo. 1-22-1230
October 29, 2024
Second 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. 22 CR 1006
)
JAMES BENSON, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: The trial court judgment is affirmed where (1) the evidence was sufficient to convict
defendant of reckless discharge of a firearm, and (2) the unlawful use or possession
of a weapon by a felon statute is not unconstitutional on its face or as applied to
defendant. We reduce defendant’s improper sentence for misdemeanor domestic
battery and order correction of his mittimus.
¶2 Following a bench trial, defendant James Benson was found guilty of reckless discharge of
a firearm (720 ILCS 5/24-1.5(a) (West 2020)), unlawful use or possession of a firearm by a felon
(UUWF) (720 ILCS 5/24-1.1(a) (West 2020)), and misdemeanor domestic battery (720 ILCS 5/12-
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3.2(a)(2) (West 2020)). He was sentenced to concurrent terms of three, four, and three years’
imprisonment, respectively. On appeal, defendant argues that (1) the evidence was insufficient to
prove him guilty of reckless discharge of a firearm; (2) the court sentenced him above the
maximum term for misdemeanor domestic battery; and (3) his UUWF conviction is
unconstitutional both facially and as applied to him under New York State Rifle & Pistol
Association, Inc. v. Bruen, 597 U.S. 1 (2022). We affirm defendant’s convictions, reduce his
sentence for domestic battery, and order correction of his mittimus.
¶3 Defendant was charged by indictment with one count each of aggravated discharge of a
firearm, UUWF, and domestic battery arising from an incident on December 24, 2021.
¶4 At trial, Alisha Bradley testified that in December 2021, she lived in an apartment in
Chicago with defendant, whom she dated. Late on December 23, 2021, into early December 24,
Bradley was in the apartment with a friend, Valencia Johnson. Bradley and Johnson were drinking
shots of liquor until defendant arrived at 11 to 11:30 p.m. Defendant was intoxicated, so Bradley
put him in bed. Afterward, Bradley and Johnson drove to purchase food.
¶5 When they returned, Johnson was “very intoxicated” and wanted to “sober up.” She asked
Bradley for towels so that she could bathe. While searching for towels, Bradley reviewed
defendant’s phone and saw text messages that he sent other women. Bradley became “really, really
upset” and retrieved a firearm from a lockbox in their bedroom closet. Bradley “cock[ed]” the
firearm, causing bullets to fall onto the floor. She punched defendant to wake him and yelled at
him. Then, she set down the firearm and defendant hid it from her. Defendant never used the
firearm against her. Bradley confronted defendant about the messages, which he claimed were
“old.” She argued with defendant for a few minutes, then threw cups at his computer. Defendant
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broke a chair in the living room and Johnson left the apartment. The police arrived “not too long”
later.
¶6 Bradley, while crying, informed the police that defendant had a firearm. The officers
arrested defendant, and Bradley told them that defendant was “really intoxicated,” she and
defendant fought, and he hit her with a chair. She also told them that defendant was “very hostile”
when she and Johnson returned from the restaurant, and removed a firearm from its holster and
cocked it. She stated to the officers that Johnson ran downstairs, and defendant kicked Bradley as
she attempted to FaceTime her mother, “got mad,” and broke her phone. She informed the officers
that defendant asked, “Are you ready to die, b***?” Then, defendant hit her with a chair, breaking
it. She also told the officers that as she told defendant to “calm down,” he shot at her, and then hid
the firearm under the mattress or bed; afterwards, Bradley gave the officers permission to search
the apartment.
¶7 On cross-examination, Bradley stated that she and Johnson were intoxicated during the
events. Bradley showed officers a hole in the floor and informed them it was where defendant
discharged the firearm. She testified that it was not a bullet hole.
¶8 Johnson testified that late on December 23 and early on December 24, 2021, she was at
Bradley and defendant’s apartment. Defendant returned home and lay down in the bedroom, and
Johnson and Bradley left to get food. Later, Johnson and Bradley sat at the dining room table to
eat. Bradley and defendant argued for 10 to 15 minutes. Johnson left the apartment before the fight
became physical and did not see Bradley or defendant with a firearm. Johnson went to her vehicle
and called the police “because of the arguing.”
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¶9 Johnson acknowledged that, when officers arrived, she told them that Bradley woke
defendant, who began to slap Bradley, and he retrieved a firearm from the bedroom, which he
placed on the table. Johnson informed officers that during the argument, defendant picked up the
firearm and “started shooting” in Bradley’s direction. Johnson told the officers that she heard the
first gunshot and walked away. In court, Johnson described the firearm as a “[s]mall cop gun,”
meaning a “regular” firearm without “[t]he little barrel with twirls.”
¶ 10 On cross-examination, Johnson agreed that she was “very intoxicated” during the incident.
When officers arrived, she was lying on the sidewalk. Later, she experienced “dry heaving or
vomiting.” Johnson did not know whether defendant and Bradley had relationships with other
people.
¶ 11 Chicago police officer Thomas Kowal testified that he responded to the scene, an apartment
building with store fronts on the main level. Kowal spoke with Johnson, who was lying on the
ground. He believed she was having a panic attack, and that she “had something to drink” but was
not intoxicated. Afterward, Kowal walked to the second-floor apartment. There, he saw Bradley,
who was frantic and crying but did not appear to be intoxicated. Kowal arrested defendant, placed
him in a police vehicle, and returned to the apartment. Bradley reported that defendant struck her,
threatened her with a firearm, said he would kill her, and shot at her. Bradley directed Kowal to
the bedroom to search for the firearm, and to the dining room, which had a hole in the floor near
the window, and to an expended shell casing. Kowal believed the hole was from a bullet. Kowal
recovered a loaded semiautomatic firearm from underneath the mattress in the bedroom.
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¶ 12 Kowal testified that he activated his body-worn camera while conversing with Bradley and
Johnson and searching the apartment, and identified the footage in court. Portions were published
without audio, but the following events were narrated by Kowal.
¶ 13 In the video, Bradley leads officers to the windows in the corner of the dining room. Kowal
testified that Bradley led them to the hole, but it is not visible in the footage. In another clip, the
officers discover a black firearm underneath the mattress in the bedroom.
¶ 14 Chicago police detective Douglas Livingstone testified that he attempted to speak with
Bradley after the incident but was unable to contact her. Johnson gave Livingstone her statement,
and Livingstone spoke with defendant after he was arrested. After the officers Mirandized
defendant, he informed Livingstone that he “possessed” the recovered firearm for two or three
weeks prior to the incident.
¶ 15 Chicago police officer Melinda Guillen testified that she responded to the scene with
Kowal. Guillen identified footage from her body camera, segments of which were published with
audio.
¶ 16 The published footage shows, in relevant part, Guillen’s conversation with Johnson outside
the apartment. Johnson tells Guillen that defendant was “slapping [Bradley] around,” retrieved his
firearm from the room, placed it on the table, and then picked it up and shot it in Bradley’s
direction. Johnson then left.
¶ 17 The State entered into evidence a certified copy of defendant’s 2015 conviction for
aggravated unlawful use of a weapon (AUUW) premised upon the lack of a Firearm Owners
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Identification (FOID) card. 1
¶ 18 The defense called Thomas Stamps, who testified that he owned a .40-caliber firearm.
Stamps had a FOID card, which he obtained on November 2, 2020. Stamps identified his FOID
card and receipt for the firearm. Stamps “received” the firearm on April 12, 2020.
¶ 19 In late December 2021, Stamps lived with defendant and Bradley. When Stamps was at
work, he kept his firearm in its box on the top shelf of defendant and Bradley’s closet. Stamps
worked the evening of December 23, 2021. On cross-examination, Stamps stated that he did not
know who handled his firearm on December 23, 2021.
¶ 20 Defendant testified that he was convicted of AUUW in 2015 and attempt to unlawfully
possess a weapon in 2018. Defendant had been dating Bradley for approximately 1½ years at the
time of trial and lived with her in the apartment. Defendant described his relationship with Bradley
as “exclusive,” but Johnson was “part” of the relationship as she was Bradley’s girlfriend.
¶ 21 On December 23, 2021, defendant was out drinking with his friend and became intoxicated.
Defendant returned home where he saw Bradley and Johnson in the dining room drinking. Bradley
helped defendant into bed and he slept for “a little while,” before waking to Bradley hitting him
and telling him about seeing a message on his phone. The message was from 2016, but Bradley
continued to yell, so they moved into the dining room. Defendant did not want to fight and told
her that he could pack her a bag and she could leave with Johnson.
¶ 22 At that point, Bradley said, “this mother*** think I’m playing with him,” and cocked a
firearm, with a round hitting the floor. Defendant asked Bradley if she would shoot him. He took
1
The certified copy of conviction notes that defendant entered two guilty pleas for the case on April
6, 2015, and September 4, 2018.
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the firearm from Bradley and hid it under the bed. The firearm belonged to Stamps, defendant’s
friend whom he considered a brother. Defendant had discharged the firearm at the “gun range”
and kept the shell casings.
¶ 23 The police arrived and defendant cooperated when they arrested him, although he argued
and tried to explain what happened because they did not ask him questions.
¶ 24 On cross-examination, defendant stated that he told the officers that the firearm was not
fired that evening and that he did not have a firearm. Defendant told the officers that Bradley was
trying to kill him, but he understood that Bradley was just trying to get his attention by cocking
the firearm. Bradley never pointed the firearm at him. Defendant told a detective that he possessed
the firearm for two to three weeks after the detective did not “listen” when he said that the firearm
was not his or Bradley’s. Defendant did not own the firearm.
¶ 25 On redirect examination, defendant testified that he told officers multiple times that he took
the firearm from Bradley but they did not listen to him.
¶ 26 The court found defendant guilty of the lesser included offense of reckless discharge of a
firearm, UUWF, and misdemeanor domestic battery. In ruling, the court commented that Bradley
and Johnson told police the same story regarding defendant’s actions and asked the officers for
assistance. The court acknowledged that events Bradley and Johnson described at trial were “much
different,” but noted that “[i]t happens frequently” in domestic battery cases. The body camera
footage showed that Bradley and Johnson were anxious when speaking with the officers, and
Bradley showed them the bullet hole and told them the location of the firearm. The court believed
that the original story that Bradley and Johnson told to police was “accurate” and “fresh” and, thus,
the court believed the events occurred.
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¶ 27 Regarding the aggravated discharge of a firearm count, the court noted that the firearm was
likely pointed at Bradley “at one point” and discharged into the ground, which was “certainly scary
enough.” Thus, the State proved the lesser included offense of reckless discharge of a firearm. The
court also commented that defendant possessed the firearm but did not own it.
¶ 28 The court denied defendant’s motion for a new trial, finding “no question” that Bradley
and Johnson lied on the witness stand, which “happens frequently.” It found their prior statements
“compelling” and “believable beyond a reasonable doubt.”
¶ 29 Defendant’s presentence investigative report (PSI) listed four prior convictions from 2000
through 2018, comprising AUUW premised on the lack of a FOID card, a violation of bail bond,
driving on a suspended license, and retail theft. After a hearing, the court sentenced defendant to
four years’ imprisonment for UUWF, concurrent to terms of three years’ imprisonment for the
reckless discharge and misdemeanor domestic battery offenses. The court denied defendant’s
motion to reconsider sentence.
¶ 30 On appeal, defendant argues that the evidence was insufficient to prove him guilty of
reckless discharge of a firearm because the State did not establish that he endangered the bodily
safety of another person. Defendant contends that Bradley’s testimony and the location of the
bullet hole in the floor of the apartment belies the contention that she was endangered.
¶ 31 The standard of review for a challenge to the sufficiency of the evidence is “whether,
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks
omitted.) People v. Belknap, 2014 IL 117094, ¶ 67. The trier of fact resolves conflicts in the
testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.
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People v. Brown, 2013 IL 114196, ¶ 48. Accordingly, this court will not retry the defendant or
substitute its judgment for that of the trier of fact on the weight of the evidence or credibility of
witnesses. Id. A reviewing court must allow all reasonable inferences from the record in favor of
the prosecution (People v. Cunningham, 212 Ill. 2d 274, 280 (2004)) and will not reverse a
conviction unless the evidence is “unreasonable, improbable, or so unsatisfactory as to justify a
reasonable doubt of the defendant’s guilt” (People v. Jackson, 232 Ill. 2d 246, 281 (2009) (internal
quotation marks omitted)).
¶ 32 As noted, defendant was charged with aggravated discharge of a firearm and found guilty
of the lesser included offense of reckless discharge. To prove reckless discharge of a firearm, the
State had to prove beyond a reasonable doubt that defendant discharged a firearm in a reckless
manner, which endangered “the bodily safety of an individual.” 720 ILCS 5/24-1.5(a) (West 2020).
¶ 33 Defendant does not dispute that he discharged a firearm or acted recklessly. He only
challenges the sufficiency of the evidence establishing that he endangered the bodily safety of
another person. To endanger a person means that a defendant’s conduct “created a dangerous
situation—such that an individual was in peril of probable harm or loss.” People v. Collins, 214
Ill. 2d 206, 215 (2005). Endangerment in this context does not require the discharge of a firearm
in the direction of another person. Id. at 215-16. Rather, it is sufficient that the defendant discharge
the firearm “in such a way as to place a person in danger.” People v. Kasp, 352 Ill. App. 3d 180,
188 (2004).
¶ 34 Here, the evidence is sufficient to establish that defendant endangered the bodily safety of
Bradley. Bradley told the responding police officers that she and defendant argued. Defendant
said, “[a]re you ready to die, b***?” and hit her with a chair. Then, he fired in Bradley’s direction.
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Bradley showed the officers a bullet hole in the floor of the dining room and directed them to the
bedroom where defendant hid the firearm underneath the mattress. Bradley and Johnson gave the
officers consistent statements, although they both recanted their statements at trial. The State also
presented body camera footage from both Kowal and Guillen which included Johnson’s statement
to Guillen and Bradley showing the officers the bullet hole. Given this record, we cannot say that
the evidence was insufficient to establish endangerment.
¶ 35 Defendant nevertheless contends the evidence was insufficient because Bradley’s and
Johnson’s testimonies varied significantly from their statements to officers. Further, both admitted
at trial that they had been drinking alcohol that evening, with Johnson intoxicated to the point of
lying on the sidewalk outside. Defendant also argues that the location of the bullet hole in the floor
is “not consistent with an attempt by [defendant] to endanger Bradley.” Defendant additionally
contends that no physical evidence established that the hole was from a bullet, and the apartment
was above a business with no evidence presented that the business was occupied at the time of the
incident.
¶ 36 We reject defendant’s interpretation of the evidence. First, the trial judge concluded that
those statements were accurate and “fresh,” and noted that “frequently” complaining witnesses
change their testimonies in domestic battery cases. Given the evidence regarding the initial
statements, including Bradley showing officers the bullet hole and general location of the firearm,
we will not substitute our judgment for that of the trial court regarding the weight of the evidence
or Bradley’s and Johnson’s credibility. See Brown, 2013 IL 114196, ¶ 48.
¶ 37 Additionally, both Bradley and Johnson testified that defendant discharged the firearm in
Bradley’s direction inside the dining room. The location of the bullet hole suggests that the firearm
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was pointed down rather than aimed at Bradley; however, this evidence is sufficient to establish
that defendant placed Bradley in danger. See Kasp, 352 Ill. App at 188. As noted, endangerment
does not require the discharge of a firearm in the direction of another person. See Collins, 214 Ill.
2d at 215-16. Accordingly, any rational trier of fact could have found that this evidence established
that defendant endangered Bradley’s bodily safety. See Belknap, 2014 IL 117094, ¶ 67.
Consequently, the evidence was sufficient to establish that defendant committed reckless discharge
of a firearm.
¶ 38 Defendant further contends, and the State concedes, that the court erred in imposing a three-
year prison term for defendant’s misdemeanor domestic battery conviction, which carries a
maximum sentence of 364 days’ imprisonment.
¶ 39 Defendant recognizes that he did not raise his sentencing challenge before the trial court,
forfeiting the claim. See People v. Hillier, 237 Ill. 2d 539, 544-45 (2010). However, defendant
seeks review under the plain error doctrine, which allows a reviewing court to consider an
unpreserved claim where a clear and obvious error occurred and (1) the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant, or (2) the
error is so serious that it affected the fairness of the trial and challenged the integrity of the judicial
process. People v. Sebby, 2017 IL 119445, ¶ 48. Sentencing errors can be reviewed under the
second prong of plain error review where, as here, a defendant’s substantial rights are affected.
See People v. Myrieckes, 315 Ill. App. 3d 478, 483 (2000).
¶ 40 Defendant was convicted of misdemeanor domestic battery, which carries a maximum
sentence of “less than one year.” See 720 ILCS 5/12-3.2(a)(2), (b) (West 2020); 730 ILCS 5/5-
4.5-55(a) (West 2020). Thus, we agree with the parties that defendant’s three-year sentence for
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domestic battery is erroneous, reduce the sentence to 364 days, and order defendant’s mittimus be
corrected. See Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967). 2 All other convictions and sentences will
remain as imposed by the trial court. We further direct the clerk of the circuit court to correct the
mittimus to reflect the reduced sentence. See People v. Kline, 2024 IL App (1st) 221595, ¶ 91.
¶ 41 Lastly, defendant argues that the UUWF statute is unconstitutional on its face under the
second amendment to the United States Constitution because it does not comply with the
framework established by the United States Supreme Court in Bruen. He also argues that the
UUWF statute is unconstitutional as applied to him as his prior conviction for UUWF without a
FOID card is not an inherently dangerous offense justifying a permanent ban on firearms
possession.
¶ 42 Here, defendant was convicted of UUWF under section 24-1.1(a) of the Criminal Code of
2012, which provides that “[i]t is unlawful for a person to knowingly possess on or about his person
*** any firearm *** if the person has been convicted of a felony.” 720 ILCS 5/24-1.1(a) (West
2020). Relevant here, defendant was convicted of UUWF premised upon the lack of a FOID card.
¶ 43 The constitutionality of a statute is a matter of law, which we review de novo. People v.
Ligon, 2016 IL 118023, ¶ 11. In analyzing a challenge to the constitutionality of a statute, “we
begin with the presumption that the statute is constitutional and that, if reasonably possible, this
court must construe the statute so as to affirm its constitutionality and validity.” Id.¶ 44 A party raising a facial challenge to the constitutionality of a statute “faces a particularly
heavy burden,” because “[a] statute will be deemed facially unconstitutional only if there is no set
2
The website of the Illinois Department of Corrections, which is subject to judicial notice (People
v. Johnson, 2021 IL 125738, ¶ 54), states defendant’s parole date as November 6, 2023.
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of circumstances under which the statute would be valid.” People v. Bochenek, 2021 IL 125889,
¶ 10. Therefore, a facial challenge fails if any situation exists where the statute could be validly
applied. People v. Davis, 2014 IL 115595, ¶ 25. In contrast, an as-applied challenge “requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” People v. Thompson, 2015 IL 118151, ¶ 36.
¶ 45 The second amendment provides: “A well regulated Milita, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in District of Columbia v.
Heller, 554 U.S. 570 (2008), holding that the second amendment elevated “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635.
The second amendment applies to the States through the fourteenth amendment of the United
States Constitution. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).
¶ 46 Under Heller and McDonald, courts developed a two-step test to assess second amendment
challenges to firearm regulations. See People v. Smith, 2024 IL App (1st) 221455, ¶ 11. First, the
government could justify the regulation by establishing that the regulated activity fell outside the
scope of the second amendment as it was originally understood. Id. If the conduct fell beyond the
second amendment’s original scope, it was “categorically unprotected.” Id. Otherwise, the court
would progress to the second step and conduct a “means-end analysis” where the court weighed
the severity of the regulation against the ends the government sought to achieve. Id.¶ 47 In Bruen, the United States Supreme Court announced a new analytical framework for
evaluating the constitutionality of firearm regulations under the second amendment. People v.
Brooks, 2023 IL App (1st) 200435, ¶ 68 (citing Bruen, 597 U.S. at 17). Under Bruen, a court must
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first determine whether “the Second Amendment’s plain text covers an individual’s conduct.”
Bruen, 597 U.S. at 24; Brooks, 2023 IL App (1st) 200435, ¶ 69. If it does, then the Constitution
“presumptively protects that conduct” and the government must justify the regulation by showing
that it is consistent with the nation’s historical tradition of firearm regulation. Bruen, 597 U.S. at
24; Brooks, 2023 IL App (1st) 200435, ¶ 69. To make this showing, the government must point to
historical precedent which establishes what the founders understood the second amendment to
mean. Bruen, 597 U.S. at 24-25; Brooks, 2023 IL App (1st) 200435 ¶ 70.
¶ 48 Regarding defendant’s facial challenge, he has not established that the UUWF statute could
not be validly applied to any defendant. This court has interpreted Bruen in the context of UUWF
and has determined that Bruen does not apply to felons, because the holding was limited to laws
affecting “law-abiding citizens.” See People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (rejecting
the defendant’s as-applied constitutional challenge to the UUWF statute); see also People v.
Mobley, 2023 IL App (1st) 221264. As the UUWF statute could be validly applied to the
defendants in Baker and Mobley, defendant’s facial challenge to the statute must also fail. See
Bochenek, 2021 IL 125889, ¶ 10; People v. Burns, 2024 IL App (4th) 230428, ¶¶ 18-22 (rejecting
the defendant’s facial challenge to the UUWF statute using the reasoning in Baker).
¶ 49 Defendant requests we depart from our holding in Baker, and instead follow the reasoning
in Brooks, 2023 IL App (1st) 200435, ¶ 89, where we found that a defendant’s status as a felon is
irrelevant under the first step of the Bruen analysis and “is more properly evaluated under the
second step’s historical tradition analysis.” Under Brooks, the first step of the Bruen analysis
addresses an individual’s conduct, and “does not contemplate the actor or the subject” and, thus, a
defendant’s possession of a firearm is “presumptively constitutional.” See Brooks, 2023 IL App
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(1st) 200435, ¶ 89. However, even if we did follow Brooks, sufficient historical precedent exists
to ban felons from possessing firearms under the second step of the Bruen analysis. See id. ¶¶ 100-
105 (“[T]he legislature’s ability to impose status-based restrictions disqualifying certain categories
of people from possessing firearms is consistent with the historical tradition of firearm
regulation.”); People v. Travis, 2024 IL App (3d) 230113, ¶¶ 27-33 (finding that the UUWF statute
was “consistent with this nation’s history of preventing potentially dangerous individuals from
exercising the right to bear arms,” and so was facially constitutional).
¶ 50 Regarding defendant’s as-applied challenge, the State argues that defendant forfeited the
issue because he raises it for the first time on direct appeal. See People v. Holman, 2017 IL 120655,
¶ 32 overruled on other grounds by People v. Wilson, 2023 IL 127666 (“[A] defendant must
present an as-applied constitutional challenge to the trial court in order to create a sufficiently
developed record.”).
¶ 51 Normally, “as-applied constitutional challenges are dependent on the specific facts and
circumstances of the challenging party and, therefore, it is paramount that the record be sufficiently
developed in terms of those facts and circumstances for purposes of appellate review.” (Internal
quotation marks omitted.) People v. House, 2021 IL 125124, ¶ 27. Here, defendant premises his
as-applied challenge on the contention that the founders permitted disarmament only for persons
who were presently dangerous, not for persons who were mere felons. He argues his conviction
for UUWF was predicated upon a conviction for possession of a firearm without a FOID card,
which is not “inherently dangerous” to justify a permanent ban on firearm possession. Defendant
also argues that his as-applied challenge is “legal in nature,” and so the trial record is sufficient to
review the issue. See People v. Gross, 2024 IL App (2d) 230017-U, ¶ 18 (the question of whether
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it is constitutionally permissible to restrict a person from possessing a firearm if previously
convicted of a felony which does not have a violent act as an element is legal in nature). 3 We agree
with defendant and, accordingly, reach the merits of the issue.
¶ 52 Here, the facts and circumstances of defendant’s case do not support his contention that
the UUWF statute is unconstitutional as applied to him. See Thompson, 2015 IL 118151, ¶ 36.
Although defendant, in applying Bruen, contends that the founders intended permanent
disarmament only for violent felons, Bruen does not make any such distinction. As noted, this
court has interpreted Bruen in the context of UUWF and has determined that Bruen only applies
to laws that regulate the firearm possession of “law-abiding citizens.” See Baker, 2023 IL App
(1st) 220328, ¶ 37. This court has also found Bruen inapplicable to a constitutional challenge to
the FOID Card Act, a violation of which was the basis for defendant’s underlying AUUW
conviction. See People v. Gunn, 2023 IL App (1st) 221032, ¶ 19 (noting that the Bruen court
“explicitly acknowledged that background checks, which are the cornerstone of the FOID Card
Act, are permissible”).
¶ 53 In sum, we do not find that the UUWF statute is unconstitutional on its face or as applied
to defendant.
¶ 54 For the reasons stated, we reduce defendant’s sentence for misdemeanor domestic battery
to 364 days’ imprisonment and correct the mittimus to reflect the correct sentence. We otherwise
affirm the judgment of the circuit court of Cook County.
¶ 55 Affirmed as modified; mittimus corrected.
3
Under Illinois Supreme Court Rule 23(e)(1) (eff. Feb. 1, 2021), unpublished orders entered on or
after January 1, 2021, may be cited for persuasive purposes.
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