People v. Chairez , 104 N.E.3d 1158 ( 2018 )

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People v. Chairez, 2018 IL 121417Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JULIO
Court: CHAIREZ, Appellee.
Docket No. 121417
Filed February 1, 2018
Decision Under Appeal from the Circuit Court of Kane County, the Hon. John A.
Review Barsanti, Judge, presiding.
Judgment Circuit court judgment affirmed in part and vacated in part.
Counsel on Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Appeal Solicitor General, and Michael M. Glick and Garson S. Fischer,
Assistant Attorneys General, of Chicago, of counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien,
Deputy Defender, and Erin S. Johnson, Assistant Appellate Defender,
of the Office of the State Appellate Defender, of Elgin, for appellee.
Justices CHIEF JUSTICE KARMEIER delivered the judgment of the court,
with opinion.
Justices Freeman, Thomas, Kilbride, Garman, Burke, and Theis
concurred in the judgment and opinion.
OPINION
¶1 At issue in this appeal is the constitutionality of section 24-1(a)(4), (c)(1.5) of the unlawful
use of a weapon (UUW) statute (720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012)), which, in
pertinent part, prohibits an individual from carrying or possessing a firearm within 1000 feet of
a public park.
¶2 PRINCIPAL STATUTE INVOLVED
¶3 At the time of the proceedings herein, the UUW statute provided:
Ҥ 24-1. Unlawful Use of Weapons.
(a) A person commits the offense of unlawful use of weapons when he knowingly:
***
(4) Carries or possesses in any vehicle or concealed on or about his person
except when on his land or in his own abode, legal dwelling, or fixed place of
business, or on the land or in the legal dwelling of another person as an invitee with
that person’s permission, any pistol, revolver, stun gun or taser or other firearm,
except that this subsection (a)(4) does not apply to or affect transportation of
weapons that meet one of the following conditions:
(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping
box, or other container by a person who has been issued a currently valid
Firearm Owner’s Identification Card[.] ***
***
(c) Violations in specific places.
***
(1.5) A person who violates subsection 24-1(a)(4) *** on any public way
within 1,000 feet of the real property comprising any school, public park,
courthouse, public transportation facility, or residential property owned, operated,
or managed by a public housing agency or leased by a public housing agency as
part of a scattered site or mixed-income development commits a Class 3 felony.”
720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012).
¶4 BACKGROUND
¶5 On April 24, 2013, pursuant to a negotiated plea agreement, defendant Julio Chairez pled
guilty in the circuit court of Kane County to possessing a firearm within 1000 feet of Virgil
Gilman Trail, a park in Aurora, Illinois, in exchange for the State’s agreement to file a nolle
prosequi for several other charges and the recommendation that defendant receive a sentence
of two years’ probation.
¶6 On November 5, 2015, defendant filed a postconviction petition, seeking to vacate the
conviction on the basis that the statute was unconstitutional under the second amendment to
the United States Constitution. U.S. Const., amend. II. The circuit court heard arguments by
counsel for defendant and the State regarding defendant’s petition for relief. At the hearing,
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defendant argued that an individual who is barred from carrying a firearm within 1000 feet of
the many locations listed in section 24-1(c)(1.5) of the UUW statute is essentially barred from
carrying a firearm in public. Therefore, counsel reasoned, section 24-1(c)(1.5) was more
closely akin to a blanket prohibition than a restriction on carrying a gun in certain sensitive
places. In response, the State argued that the firearm restriction is not a blanket prohibition
because it prevents people from carrying firearms only in certain proscribed areas.
¶7 In its oral ruling given on July 29, 2016, the circuit court declared section 24-1(a)(4),
(c)(1.5) of the UUW statute unconstitutional. In so ruling, the court found that the 1000-foot
firearm restriction was not a reasonable regulation on the second amendment. On this point,
the court stated:
“The effect of the thousand foot language on gun rights is a near comprehensive
ban. The practical effect is that a person cannot leave his house with his licensed
firearm because he would constantly be in jeopardy of accidentally and unknowingly
entering within a thousand feet of a school, public park, public transportation facility,
or residential property owned, operated or managed by [a] public housing agency[ ].”
¶8 Comparing the language of section 24-1(a)(4) to that of the offenses declared facially
unconstitutional in People v. Aguilar, 2013 IL 112116, and People v. Mosley, 2015 IL 115872,
the circuit court found the offense established by section 24-1(a)(4), (c)(1.5) unconstitutional.
The court went on to further note that the language concerning defendant’s charge of
possessing a firearm within 1000 feet of a public park, albeit different from the facially
unconstitutional statutes in Aguilar and Mosley, “does not rescue the Statute.” Accordingly,
the court ruled defendant’s conviction void, granted his motion, and vacated his UUW
conviction.
¶9 On September 7, 2016, the circuit court entered its written order, as required by Illinois
Supreme Court Rule 18 (eff. Sept. 1, 2006). Pursuant to Illinois Supreme Court Rule 603 (eff.
Feb. 6, 2013), the State’s appeal from the circuit court’s finding of statutory unconstitutionality
comes directly to this court.
¶ 10 ANALYSIS
¶ 11 As an initial matter, we must address some discrepancies and incomplete portions of the
circuit court’s Rule 18 order finding section 24-1(a)(4), (c)(1.5) unconstitutional. The court’s
order is the latest of recent direct appeals in which we have been required to discern the scope
of the written order declaring a statute to be unconstitutional. See People v. Rizzo, 2016 IL
118599, ¶ 25 (Rule 18 order lacked a sufficient discussion or analysis); People v. Schweihs,
2015 IL 117789, ¶ 17 (same); Mosley, 2015 IL 115872, ¶ 11 (discrepancy as to which section
of the aggravated UUW (AUUW) statute the circuit court actually found unconstitutional).
Here, we are again faced with a ruling that is conclusory and unsupported by a clear legal
analysis or explanation despite Rule 18’s requirement that the circuit court “clearly identif[y]”
in a written or transcribed oral order what portions of the statute are being held unconstitutional
and on what specific grounds. Rather, the court’s single-page order simply restated the
requirements set forth in the rule and concluded that section 24-1(a)(4), (c)(1.5) was
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unconstitutional “for reasons previously stated of record.”1 Without a clear explanation for its
ruling, this court is left with the difficult task of determining the basis of the circuit court’s
ruling. We reiterate, again, “ ‘[w]hen a circuit court does something as serious as holding that a
statute violates the constitution, then the circuit court must also be mindful to clearly state ***
the legal basis for that ruling.’ ” Schweihs, 2015 IL 117789, ¶ 17 (quoting People v. Cornelius,
213 Ill. 2d 178, 189 (2004)).
¶ 12 Not readily apparent from the written order or the court’s oral pronouncement is a clear
answer to the important question of whether the statute was unconstitutional facially or as
applied. From what we can construe from the record, the circuit court held that the restricted
conduct under section 24-1(a)(4) within 1000 feet of schools, public parks, courthouses, public
housing, and public transportation facilities was facially unconstitutional. We arrive at this
conclusion based on the court’s continuous reference and application of the holdings in
Aguilar and Mosley. The circuit court found that the language of section 24-1(a)(4) of the
UUW statute was “almost identical” to the comprehensive firearm ban on the possession of a
firearm for self-defense purposes declared unconstitutional in Aguilar and Mosley. The court
determined further that the 1000-foot language in section 24-1(c)(1.5) does not save the statute
because the additional restriction is a “near comprehensive ban on the [d]efendant’s [s]econd
[a]mendment rights,” by prohibiting carriage in areas where Aguilar and Mosley allow an
individual to carry. Central to the court’s concern was the practical inability of any individual
to bypass the various areas protected under section 24-1(c)(1.5) and the lack of an exception
for carrying or possessing a firearm in self-defense. The court’s reasoning makes it clear the
court held section 24-1(a)(4), (c)(1) unconstitutional on its face as violative of the second
amendment because it viewed the regulation as a comprehensive firearm restriction on all
individuals. Moreover, our finding is supported by the fact that the parties have confined their
contentions before this court on the basis that the circuit court made a facial unconstitutionality
declaration.
¶ 13 Next, we must determine whether the circuit court touched upon legal questions not before
it. Addressing this same concern, this court in Mosley reaffirmed the general rule that “courts
do not rule on the constitutionality of a statute where its provisions do not affect the parties
[citation], and decide constitutional questions only to the extent required by the issues in the
case.” Mosley, 2015 IL 115872, ¶ 11. The circuit court’s order conflicts with this rule by
finding unconstitutional the entirety of section 24-1(a)(4), (c)(1.5), without limitation to the
single offense of which defendant was convicted under the statute. Because defendant was
convicted of violating section 24-1(a)(4), (c)(1.5) by being within 1000 feet of a public park,
the various other “specific places” offenses set forth in section 24-1(c)(1.5) were not before the
circuit court, and therefore defendant lacked standing to challenge the constitutionality of the
offenses of which he was not charged. See Exelon Corp. v. Department of Revenue, 234 Ill. 2d
1Rule 18 requires that a court “shall not” find a statute unconstitutional unless the court makes a
finding in a written or transcribed oral order; the order clearly identifies which portion of the statute is
unconstitutional; and the order states the specific grounds of unconstitutionality, including the
constitutional provision upon which the finding is based, whether the statute is invalid on its face or as
applied, whether the statute can be construed in a manner that could preserve its constitutionality, that
the finding cannot rest on an alternate ground, and that proper notice has been served on the State. Ill. S.
Ct. R. 18 (eff. Sept. 1, 2006).
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266, 296 (2009) (Thomas, J., specially concurring) (“A court cannot rule on the
constitutionality of a statute that is not before it, nor can the court rule on the merits of a case
over which it lacks jurisdiction.”). Therefore, the circuit court’s finding as to the
constitutionality of the other offenses included under section 24-1(c)(1.5) constituted an
advisory opinion, which Illinois courts are not permitted to render. Mosley, 2015 IL 115872,
¶ 11. Accordingly, we limit our discussion to the firearm restriction under section 24-1(a)(4),
(c)(1.5) to which defendant pled guilty—possession of a firearm within 1000 feet of a public
park. To the extent that the circuit court’s order or statements could be interpreted as finding
any other portion of section 24-1(a)(4), (c)(1.5), which is not at issue, as being
unconstitutional, such finding is vacated. Id. ¶ 12. We make no finding, express or implied,
with respect to the constitutionality or unconstitutionality of any offense within the UUW
statute other than what is properly before this court. Id.
¶ 14 Merits
¶ 15 Turning to the merits of this case, all statutes are presumed constitutional, and courts have
a duty to construe legislative enactments so as to uphold their validity if reasonably possible.
Aguilar, 2013 IL 112116, ¶ 15. To overcome this presumption, the party challenging the
constitutionality of a statute has the burden of clearly establishing that it violates the
constitution. Mosley, 2015 IL 115872, ¶ 22. The question of whether a statute is
unconstitutional is a question of law, which this court reviews de novo. Id.¶ 16 Defendant first argues that this court need not engage in any constitutional analysis
because the case is controlled by our recent decision in People v. Burns, 2015 IL 117387. In
Burns, the defendant was convicted of violating section 24-1.6(a)(1), (a)(3)(A) of the AUUW
statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)). Burns, 2015 IL 117387, ¶ 1. At
sentencing, pursuant to the sentencing provision of the AUUW statute, section 24-1.6(d), the
State presented, for the first time, proof of defendant’s prior felony conviction to enhance the
classification of the offense from a Class 4 felony to a Class 2 felony. Id. ¶ 13. Before this
court, defendant Burns argued that his conviction of the Class 2 form of the offense must be
reversed in light of Aguilar, which found the Class 4 form of the same AUUW offense to be
unconstitutional. Id. ¶ 20. This court agreed with defendant’s contention and reversed his
conviction and sentence. Id. ¶ 32. In doing so, we found that section 24-1.6(a)(1), (a)(3)(A) of
the AUUW statute is facially unconstitutional “without limitation” (id. ¶ 29) because “[t]he
offense, as enacted by the legislature, does not include as an element of the offense the fact that
the offender has a prior felony conviction” (id. ¶ 25). As such, we held there is only one
offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), and a prior felony conviction that
enhances the felony classification at sentencing is not an element of that offense but, rather, a
sentencing factor which enhances the penalty from a Class 4 felony to a Class 2 felony. Id.
¶ 24.
¶ 17 Here defendant argues that the penalty enhancement found under section 24-1(c)(1.5) of
the UUW statute acts similarly to the sentencing enhancement of section 24-1.6(d) of the
AUUW statute. Defendant, however, is mistaken on a fundamental point. Unlike in Burns
where the felony enhancement came after the defendant was found guilty of the charged
offense, the felony enhancement under section 24-1(c)(1.5) is a specific fact that must be
proved to the trier of fact prior to a guilty finding. This difference is significant to our finding
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because any fact, other than a prior conviction, which, by law, increases the penalty for a
crime, is an element of a distinct and aggravated crime that must be submitted to the jury. See
Alleyne v. United States, 570 U.S. 99, ___, ___, 133 S. Ct. 2151, 2155, 2163 (2013); Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000). That is the precise situation here where, in order to
enhance the offense from a Class 4 felony to a Class 3 form of UUW, the State must prove the
aggravating fact that defendant was within 1000 feet of a public park. 720 ILCS 5/24-1(a)(4),
(c)(1.5) (West 2012).
¶ 18 This conclusion is supported by the plain language of the UUW statute. Unlike in Burns
where the enhancement issue came from the specific sentencing provision of the AUUW
statute, section 24-1(c)(1.5) is separate and apart from the sentencing provision of the UUW
statute, section 24-1(b). Thus, we presume that the General Assembly intended that, if proven
at trial, the specific locations enumerated in section 24-1(c)(1.5) are to be separate offenses
that carry their own enhanced sentences different from the prescribed sentences in section
24-1(b). See People v. Goossens, 2015 IL 118347, ¶ 12 (“It is well settled that when the
legislature uses certain language in one instance of a statute and different language in another
part, we assume different meanings were intended.”). Accordingly, we find the sentencing
enhancement in Burns distinguishable from the provision at issue in this case because it adds
an extra element to the Class 4 felony offense of UUW.
¶ 19 We also reject defendant’s alternative argument that because section 24-1(a)(4) was
declared unconstitutional in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), his
conviction, which incorporates section 24-1(a)(4), cannot stand.2 Defendant’s argument fails
because, as explained, his conviction is qualitatively different from that in Moore, as it
incorporates an additional element—being within 1000 feet of a public park. This additional
location element creates a separate offense from the offense at issue in Moore.
¶ 20 Constitutionality of Section 24-1(a)(4), (c)(1.5) of the UUW Statute
¶ 21 In holding a portion of the UUW statute unconstitutional, the circuit court of Kane County
found the offense of possessing a firearm within 1000 feet of a public park (720 ILCS
5/24-1(a)(4), (c)(1.5) (West 2012)) violated defendant’s right to keep and bear arms, as
guaranteed by the second amendment to the United States Constitution. U.S. Const., amend. II.
To answer the question presented, our analysis involves a two-part approach. Mosley, 2015 IL
2
The Moore court remanded both consolidated cases for entry of a declaration of
unconstitutionality and a permanent injunction but stayed its mandate for 180 days to permit the Illinois
General Assembly to “craft a new gun law that will impose reasonable limitations, consistent with the
public safety and the Second Amendment.” Moore, 702 F.3d at 942. The stay was extended an
additional 30 days to accommodate the General Assembly’s legislative process in enacting the Firearm
Concealed Carry Act. Pub. Act 98-63 (eff. July 9, 2013). On the same day the law became effective,
defendants filed a motion to dismiss on the grounds that plaintiffs’ claims were moot. Shepard v.
Madigan, 958 F. Supp. 2d 996, 997 (S.D. Ill. 2013). The United States District Court for the Southern
District of Illinois agreed with the defendants’ motion, holding that the mandate’s directive for a
declaration of unconstitutionality and issuance of a permanent injunction was rendered moot by the
enactment of the Firearm Concealed Carry Act. Id. at 1000. The Seventh Circuit Court of Appeals
affirmed. Shepard v. Madigan, 734 F.3d 748, 752 (7th Cir. 2013). Neither the Firearm Concealed Carry
Act nor the amended UUW statute is at issue in this case.
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115872, ¶ 34 (citing Wilson v. County of Cook, 2012 IL 112026, ¶ 41). First, we conduct a
textual and historical analysis of the second amendment “to determine whether the challenged
law imposes a burden on conduct that was understood to be within the scope of the second
amendment’s protection at the time of ratification.” Id. If the conduct falls outside of the scope
of the second amendment, then the regulated activity “is categorically unprotected,” and the
law is not subject to further second amendment review. Id. But if the historical evidence is
inconclusive or suggests that the regulated activity is not categorically unprotected, then we
apply the appropriate level of heightened means-ends scrutiny and consider the strength of the
government’s justification for restricting or regulating the exercise of second amendment
rights. Id. (citing Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011) (Ezell I)).
¶ 22 Step One: Scope of the Regulated Activity
¶ 23 The second amendment to the United States Constitution provides that “[a] well regulated
Militia, 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. Through the fourteenth amendment to the
United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the
States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).
¶ 24 In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme
Court determined that there is a guaranteed “individual right to possess and carry weapons in
case of confrontation,” based on the second amendment. However, Heller instructs that even
though the second amendment guarantees an individual right to bear arms, that right is “not
unlimited.” Id. at 626. Specifically, the Court explained, in dicta, that its holding should not
“cast doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings.” Id. In a footnote, the Court emphasized that its list of “presumptively
lawful regulatory measures” provided only examples and that the list did “not purport to be
exhaustive.” Id. at 627 n.26.
¶ 25 In Moore, 702 F.3d 933, the Seventh Circuit broadened Heller and McDonald by ruling
that the offenses proscribed under sections 24-1(a)(4) and 24-1(a)(10) of the UUW statute (720
ILCS 5/24-1(a)(4), (10) (West 2010)) as well as the Class 4 form of section 24-1.6(a)(1),
(a)(3)(A), (d) of the AUUW statute (id. § 1.6(a)(1), (a)(3)(A), (d)) were unconstitutional since
they prohibited carrying ready-to-use firearms outside of a person’s home. Moore, 702 F.3d at
942. The Moore court reached this conclusion after determining that the historical evidence
supporting a tradition of public carriage of firearms was more persuasive than evidence to the
contrary. See id. at 939 (“In sum, the empirical literature on the effects of allowing the carriage
of guns in public fails to establish a pragmatic defense of the Illinois law.”). Further, the court
found that Illinois’s blanket prohibition on carrying firearms in public “prevents a person from
defending himself anywhere except inside his home; and so substantial a curtailment of the
right of armed self-defense requires a greater showing of justification than merely that the
public might benefit on balance from such a curtailment, though there is no proof it would.”
(Emphasis in original.) Id. at 940. The court, however, stated in contrast, “when a state bans
guns merely in particular places, such as public schools, a person can preserve an
undiminished right of self-defense by not entering those places; since that’s a lesser burden, the
state doesn’t need to prove so strong a need.” Id.
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¶ 26 Adopting the reasoning in Moore, this court in People v. Aguilar, 2013 IL 112116, ¶ 21,
recognized that “the second amendment protects the right to possess and use a firearm for
self-defense outside the home.” As such, we held the offense set forth in section 24-1.6(a)(1),
(a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle,
outside the home, an uncased, loaded, and immediately accessible firearm, to be
unconstitutional on its face. Id. ¶¶ 21-22. Two years later, in Mosley, 2015 IL 115872, ¶ 25, we
extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW
statute, section 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)),
which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public
way. Collectively, this court has held that the second amendment protects an individual’s right
to carry a ready-to-use gun outside the home, subject to certain regulations. Mosley, 2015 IL
115872, ¶ 25; Aguilar, 2013 IL 112116, ¶ 26. The question, then, is whether the offense of
possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4),
(c)(1.5) of the UUW statute, impermissibly encroaches on conduct at the core of the second
amendment.
¶ 27 The State argues that the conduct of possessing a firearm within 1000 feet of a public park
is unprotected by the second amendment because the prohibition falls within Heller’s
declaration that “laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings” do not violate the second amendment rights of those prosecuted
under such laws. Heller, 554 U.S. at 626. For support, the State cites various historical sources,
chiefly the 1328 Statute of Northampton (Statute of Northampton 1328, 2 Edw. 3, c. 3 (Eng.)),
to support its argument that possessing a firearm within 1000 feet of a public park is not a
protected right.
¶ 28 Defendant, on the other hand, contends that regardless of whether a public park qualifies as
a sensitive place, the 1000-foot firearm restriction surrounding a public park falls outside of
Heller’s presumptively lawful restrictions. Defendant argues that the preposition “in,” which
precedes “sensitive places” in Heller’s statement, makes the list of presumptively lawful
regulations limited to the actual sensitive place, not an exclusion zone around the particular
place. Defendant finds support for his argument in Moore’s statement that “when a state bans
guns merely in particular places, such as public schools, a person can preserve an
undiminished right of self-defense by not entering those places.” Defendant claims that Moore
supports his position that public spaces outside of the particular place are protected by the
second amendment. Thus, he reasons that the conduct of possessing a firearm within 1000 feet
of a public park does not meet one of Heller’s presumptively lawful regulatory measures.
Defendant also notes the court in Moore rejected the various sources the State cites, including
the fourteenth-century Statute of Northampton.
¶ 29 Beyond Heller’s two examples of “sensitive places,” i.e., “schools and government
buildings,” the Supreme Court has not yet provided a list of additional sensitive places that fall
outside the second amendment protection or given any guidance on the breadth of its
statement. Among the few cases that have specifically addressed Heller’s statement, we are
unable to find a federal circuit case that has addressed a 1000-foot firearm restriction around a
public park. Instead, most cases have been limited to laws restricting firearms within the
disputed location. See e.g., United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011)
(holding that a defendant’s conviction for possession of a loaded weapon in a motor vehicle on
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national park land in violation of then-applicable regulations, did not violate his second
amendment right to keep and bear arms).
¶ 30 We, however, need not address whether the 1000-foot firearm restriction falls outside of
the ambit of the second amendment because we agree with the approach taken by other courts
that assume some level of scrutiny must apply to Heller’s “presumptively lawful” regulations.
See United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (explaining that courts should
apply some level of scrutiny even to regulations identified in Heller as presumptively lawful);
Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) (stating that the court was not
“obliged to impart a definitive ruling at the first step” but, rather, “deemed it prudent” to
resolve some post-Heller challenges to firearm prohibitions at the second step), cert. denied,
___ U.S. ___, 134 S. Ct. 422 (2013); National Rifle Ass’n of America, Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 204 (5th Cir. 2012) (“Although we
are inclined to uphold the challenged federal laws [banning the sale of firearms to persons
under the age of 21] at step one of our analytical framework, in an abundance of caution, we
proceed to step two.”). Accordingly, our analysis moves to the second step.
¶ 31 Step Two: Level of Scrutiny
¶ 32 Although the Heller Court did not explicitly designate a level of scrutiny for evaluating
second amendment restrictions (see Heller, 554 U.S. at 634 (acknowledging the dissent’s
criticism of the majority for not adopting a level of scrutiny)), the majority rejected the rational
basis test, stating that it “could not be used to evaluate the extent to which a legislature may
regulate a specific, enumerated right,” such as “the right to keep and bear arms.” Id. at 628
n.27. As a result, courts generally recognize that Heller’s reference to any standard of scrutiny
means any heightened level of scrutiny and not rational-basis scrutiny. See Wilson v. County of
Cook, 2012 IL 112026, ¶ 42 (citing Ezell I, 651 F.3d at 702-04, United States v. Chester, 628
F.3d 673, 680 (4th Cir. 2010), United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010),
and Heller v. District of Columbia, 670 F.3d 1244, 1251-53 (D.C. Cir. 2011) (Heller II)).
¶ 33 Defendant advocates for this court to apply strict scrutiny to the 1000-foot firearm
restriction around a public park. Defendant argues that, since Heller declared the right to bear
arms in self-defense to be a fundamental right, and this court in Aguilar and Mosley extended
that right outside of the home and onto the public ways, the right to possess a firearm for
self-defense outside the home is infringed when the 1000-foot firearm restriction around a
public park extends onto public ways. Such a firearm restriction, he contends, directly impacts
the second amendment protection of self-defense in public.
¶ 34 The State urges us to use intermediate scrutiny to uphold the statute’s ban on possessing a
firearm within 1000 feet of a public park. The State argues that the challenged restriction is
substantially related to an important government objective in preventing harm to children and
other vulnerable populations.
¶ 35 In any event, the Seventh Circuit, which this court has followed when analyzing second
amendment challenges (see Mosley, 2015 IL 115872, ¶ 34; Aguilar, 2013 IL 112116, ¶ 20),
teaches us that the argument is not strict versus intermediate scrutiny but rather how rigorously
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to apply intermediate scrutiny to second amendment cases.3 Under this approach, the second
step of the inquiry requires the court to examine the strength of the government’s justifications
for restricting certain firearm activity by evaluating the restriction the government has chosen
to enact and the public-benefits ends it seeks to achieve. Ezell I, 651 F.3d at 703; Wilson, 2012
IL 112026, ¶ 42. The Seventh Circuit stated in Ezell I that “a severe burden on the core Second
Amendment right of armed self-defense will require an extremely strong public-interest
justification and a close fit between the government’s means and its end.” Ezell I, 651 F.3d at
708. However, “laws restricting activity lying closer to the margins of the Second Amendment
right, laws that merely regulate rather than restrict, and modest burdens on the right may be
more easily justified.” Id. Thus, the heightened means-end inquiry is a sliding scale that is
neither fixed nor static. Id.; Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F.
Supp. 2d 928, 934 (N.D. Ill. 2014).
¶ 36 On one end of the scale are cases that categorically restrict the possession of firearms by
persons convicted of misdemeanor domestic violence (United States v. Skoien, 614 F.3d 638(7th Cir. 2010) (en banc)) or convicted felons (United States v. Williams, 616 F.3d 685 (7th
Cir. 2010)).
¶ 37 In Skoien, an en banc decision, the Seventh Circuit considered the constitutionality of a
federal law that forbids convicted domestic-violence misdemeanants from possessing
firearms. 614 F.3d at 639. The defendant, who was twice convicted for misdemeanor crimes of
domestic violence, challenged the statute’s validity, in part on the basis of Heller. Id. The court
rejected the defendant’s reliance on Heller’s declaration of presumptive validity for
longstanding prohibitions, holding the declaration was “precautionary language,” intended
only to “warn[ ] readers not to treat Heller as containing broader holdings than the Court set
out to establish.” Id. at 640. Following its own analytical route, the Skoien court concluded that
it was possible for a “categorical limit on the possession of firearms” to be constitutional. Id. at
641. Applying what it characterized as “some form of strong showing,” the court upheld the
statute after finding it “substantially related to an important governmental objective.” Id.
¶ 38 In Williams, the defendant was charged with possessing a firearm after an Indiana robbery
conviction. 616 F.3d at 693. The defendant claimed the felon-in-possession statute violated his
second amendment rights, while the government argued that the ban on possession of firearms
by felons falls outside the scope of the second amendment because the restriction is one of the
“presumptively lawful” regulatory measures specifically identified in Heller. Id. at 692-93.
Despite Heller’s clear language, the Seventh Circuit explained that “the government does not
3
We note that some federal circuits have used different approaches when addressing second
amendment claims. For example, the Fourth Circuit Court of Appeals has applied a sliding scale
approach and has applied a level of scrutiny based on the context of the restriction upon second
amendment rights. Masciandaro, 638 F.3d at 470. The Second Circuit Court of Appeals has required a
showing that the regulation “operate[s] as a substantial burden on the ability of law-abiding citizens to
possess and use a firearm for self-defense (or for other lawful purposes)” before a heightened scrutiny
is triggered. United States v. Decastro, 682 F.3d 160, 166 (2d Cir. 2012). As stated, we elect to continue
to follow the Seventh Circuit Court of Appeals. For a comprehensive overview of the various standards
of review courts have applied in second amendment cases, see Nicholas J. Johnson, David B. Kopel,
George A. Mocsary & Michael P. O’Shea, Firearms Law and the Second Amendment Regulation,
Rights, and Policy, 903-83 (2d ed. 2018).
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get a free pass” because “it still must prove that the ban is constitutional, a mandate that flows
from Heller itself.” Id. at 692. After applying intermediate scrutiny, the Williams court found
that the government had met its burden because the government’s interest in keeping “firearms
out of the hands of violent felons” was important because defendant’s prior felony robbery
conviction was violent and because taking away his right to possess a firearm was substantially
related to the government’s important interest. Id. at 692-94.
¶ 39 On the other end of the scale are cases dealing with a categorical ban on the second
amendment right. For instance, in Ezell I, the plaintiffs sought a preliminary injunction against
a City of Chicago ordinance that prohibited firing ranges within the city. 651 F.3d at 689-90.
At the time, the City had a prerequisite of firing range training before people could exercise
their core constitutional right to possess guns in their own home for self-defense. Id. at 691.
However, the City had, at the same time, prohibited firing ranges within the city limits. Id. In
reviewing the ordinance, the court indicated that the ban was “a serious encroachment on the
right to maintain proficiency in firearm use, an important corollary to the meaningful exercise
of the core right to possess firearms for self-defense.” Id. at 708. The Ezell I court noted that
plaintiffs were “the law-abiding, responsible citizens whose Second Amendment rights are
entitled to full solicitude under Heller, and their claim comes much closer to implicating the
core of the Second Amendment right.” (Internal quotation marks omitted.) Id. After analyzing
first amendment jurisprudence, which Heller, 554 U.S. at 582, and McDonald, 561 U.S. at 783,
suggest is an appropriate analogue, the Ezell I court, as outlined above, set forth the scope of
heightened means-end scrutiny when dealing with second amendment challenges:
“First, a severe burden on the core Second Amendment right of armed self-defense will
require an extremely strong public-interest justification and a close fit between the
government’s means and its end. Second, laws restricting activity lying closer to the
margins of the Second Amendment right, laws that merely regulate rather than restrict,
and modest burdens on the right may be more easily justified. How much more easily
depends on the relative severity of the burden and its proximity to the core of the right.”
Ezell I, 651 F.3d. at 708.
¶ 40 Applying this standard, the court reasoned that because the ordinance reached close to the
core of the second amendment and curtailed the rights of all law-abiding citizens within its
jurisdiction, the court had to apply “a more rigorous showing than that applied in Skoien *** if
not quite ‘strict scrutiny.’ ”4 Id. The court took issue with the City’s defense of the challenged
regulation, which rested on sheer “speculation” about accidents and thefts from firing ranges.
Id. at 709. For instance, the City had argued that gun ranges cause secondary harmful effects
such as gun theft, fire hazards, and airborne lead contamination. Id. at 694. The court noted,
however, that the City “produced no evidence to establish that these are realistic concerns,
much less that they warrant a total prohibition on firing ranges.” Id. at 709. The court
concluded further that the City had not shown an extremely strong public-interest justification
or a close fit between the government’s means and its ends. Accordingly, the court granted the
plaintiffs’ request for a preliminary injunction. Id. at 709-10.
4
The Seventh Circuit later held that laws that come near to the core of the second amendment right
must satisfy “a strong form of intermediate scrutiny.” Ezell v. City of Chicago, 846 F.3d 888, 893 (7th
Cir. 2017).
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¶ 41 After Ezell I was decided, the City responded by promulgating a new comprehensive
regulatory scheme governing firing ranges, including licensing provisions, construction
requirements, environmental regulations, and zoning restrictions for firing ranges. Ezell v. City
of Chicago, 846 F.3d 888, 891 (7th Cir. 2017) (Ezell II). In a second round of litigation,
plaintiffs returned to court mounting a facial attack on each of the City’s regulations, generally
contending that none of the ordinances can survive heightened constitutional scrutiny. Id. at
890. At issue were three zoning provisions that (1) allowed gun ranges only as special uses in
manufacturing districts; (2) prohibited gun ranges within 100 feet of another range or within
500 feet of a residential district, school, place of worship, or multiple other uses; and (3) barred
anyone under the age of 18 from entering a shooting range. Id.
¶ 42 Reviewing the revised provisions under the framework articulated in Ezell I, the court
determined that the City must meet the requirement of establishing “a close fit between the
challenged zoning regulations and the actual public benefits they serve—and to do so with
actual evidence, not just assertions.” Id. at 894. In striking down the City’s revised zoning
ordinance, the court stated that although the provisions did not create an outright ban, the new
provisions “severely limit[ed] where shooting ranges may locate” so that “no publicly
accessible shooting range yet exist[ed] in Chicago.” Id. at 894-96. In fact, the court noted that
the combined effect of the zoning regulations meant “only about 2.2% of the city’s total
acreage [is] even theoretically available to site a shooting range (10.6% of the total acreage
currently zoned for business, commercial, and manufacturing use).” Id. As such, the court
determined that the zoning regulations, “though not on their face an outright prohibition of gun
ranges, nonetheless severely restrict the right of Chicagoans to train in firearm use at a range.”
Id. The court, therefore, found that the ordinance directly, and meaningfully, interfered with
the ability of city residents to maintain firearms proficiency, a right found to be an “important
corollary” to the core right to bear arms. (Internal quotation marks omitted.) Id. at 893. As in
Ezell I, the Ezell II court rejected the City’s “speculative claims of harm to public health and
safety,” which the court stated were “not nearly enough to survive the heightened scrutiny that
applies to burdens on Second Amendment rights.” Id. at 890.
¶ 43 In Moore, the Seventh Circuit applied Ezell I-like scrutiny to invalidate Illinois’s blanket
ban on the public carrying of firearms under the UUW and AUUW statutes. 702 F.3d 933. In
doing so, the court conducted an analysis of Supreme Court jurisprudence, the history of the
second amendment, and the plain meaning of the second amendment’s language to find that,
under Heller and McDonald, the second amendment’s core right of armed self-defense extends
past the four walls of the home and into public. Id. at 942. The Moore court reached this
conclusion after determining that the Supreme Court’s interpretation of the second amendment
conferred a right to bear arms for self-defense, which the Moore court believed was as
important outside the home as it was inside. Id. at 936 (“The right to ‘bear’ as distinct from the
right to ‘keep’ arms is unlikely to refer to the home.”). The court noted that “[a] blanket
prohibition on carrying gun[s] in public prevents a person from defending himself anywhere
except inside his home; and so substantial a curtailment of the right of armed self-defense
requires a greater showing of justification than merely that the public might benefit on balance
from such a curtailment, though there is no proof it would.” (Emphasis in original.) Id. at 940.
While, conversely, “when a state bans guns merely in particular places, such as public schools,
a person can preserve an undiminished right of self-defense by not entering those places; since
that’s a lesser burden, the state doesn’t need to prove so strong a need.” Id. Determining that
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since the curtailment of gun rights concerned the entire law-abiding adult population of
Illinois, the court stated that the State “would have to make a stronger showing” than in Skoien.
Id.
¶ 44 Implementing the factors of a second amendment analysis, the Moore court went on to
assess the State’s public-safety rationales for banning public gun carriage, finding that the
State’s empirical evidence did not provide a justification for a complete public-carriage ban.
Thus, the court held that the State failed to make an extremely strong showing that the law
furthered public safety. Id. at 937-39, 942.
¶ 45 In sum, what is taught from these cases is that step two of our second amendment analysis
begins with a balance of considerations where the quantity and persuasiveness of the State’s
evidence required to justify the challenged restrictions varies depending on how much it
affects the core second amendment right to armed self-defense and whose right it affects. See
Ezell I, 651 F.3d at 703. The rigor of this means-end analysis “depends on ‘how close the law
comes to the core of the Second Amendment right and the severity of the law’s burden on the
right.’ ” Ezell II, 846 F.3d at 892 (quoting Ezell I, 651 F.3d at 703). The closer in proximity the
restricted activity is to the core of the second amendment right and the more people affected by
the restriction, the more rigorous the means-end review. If the State cannot proffer evidence
establishing both the law’s strong public-interest justification and its close fit to this end, the
law must be held unconstitutional. Ezell I, 651 F.3d at 703.
¶ 46 Applying this framework to the law at issue here requires an initial determination of where
on the sliding scale of intermediate scrutiny the law should be analyzed. To answer this
question, our first task is to determine the breadth of the law and the severity of its burden on
the second amendment.
¶ 47 The State argues that prohibiting possession of a firearm within 1000 feet of a public park
falls outside the core protection of the second amendment because it has no impact on the right
to use arms “in defense of hearth and home” and is not a ban on carrying arms for self-defense
in public. Rather, the State argues, it is a part of the well-established class of regulations that
limit carriage in sensitive locations. Citing Skoien, the State maintains it is subject to plain
intermediate scrutiny.
¶ 48 We believe the State defines the core right protected by the second amendment too
narrowly. According to this court’s holding in Aguilar, neither Heller nor McDonald expressly
limited the second amendment protections to the home. Aguilar, 2013 IL 112116, ¶¶ 18-20. To
the contrary, both Heller and McDonald at least strongly suggest that the second amendment
right to keep and bear arms extends beyond the home. Id. ¶ 20. Moreover, the State’s reliance
on Skoien—which did not involve the core self-defense component of the right to bear
arms—is misplaced. We find that the 1000-foot firearm restriction at issue more closely
resembles the restrictions at issue in Ezell I, Ezell II, Moore, and Aguilar. In fact, the 1000-foot
firearm restriction not only directly implicates the core right to self-defense, it does so more
severely than the regulations at issue in the Ezell cases. That is so because section 24-1(a)(4),
(c)(1.5) of the UUW statute prohibits the carriage of weapons in public for self-defense,
thereby reaching the core of the second amendment, while in the Ezell cases, the laws only
affected a right (maintain firearm proficiency) that was merely a “corollary” to the right to
possess firearms for self-defense. Although the firearm restriction at issue is not a
comprehensive statewide ban, like in Moore or Aguilar, the restriction is not minimal. The
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firearm restriction not only covers a vast number of public areas across the state, it
encompasses areas this court held in Mosley to be areas where an individual enjoys second
amendment protection, i.e., public ways. See Mosley, 2015 IL 115872, ¶ 25.
¶ 49 As to the second variable on the sliding scale, the severity of the law’s burden on the right,
the law at issue affects the gun rights of the entire law-abiding population of Illinois like the
laws in Moore, Ezell, Aguilar, and Mosley. As in those cases, the law functions as a categorical
prohibition without providing an exception for law-abiding individuals. It is therefore a severe
burden on the recognized second amendment right of self-defense.
¶ 50 All of this suggests that elevated intermediate scrutiny should apply. And under this more
rigorous review, the government bears the burden of showing a very strong public-interest
justification and a close fit between the government’s means and its end, as well as proving
that the “public’s interests are strong enough to justify so substantial an encumbrance on
individual Second Amendment rights.” Ezell I, 651 F.3d at 708-09. That means the State must
establish a close fit between the 1000-foot firearm restriction around a public park and the
actual public interests it serves.
¶ 51 Turning to the State’s proffered public-interest justifications, the State claims a compelling
interest in public safety is served by reducing firearm possession within 1000 feet of a public
park. In support, the State relies heavily on an analysis of school violence and the 1000-foot
firearm ban surrounding schools. For instance, the State references the federal Gun Free
School Zones Act of 1990, which restricts firearm possession within 1000 feet of school
grounds. 18 U.S.C. § 921(a)(25) (2012). The State claims that it was in the atmosphere behind
the passage of the Gun Free School Zones Act—a rise in school violence in the late
1980s—that the General Assembly passed the law extending the existing restriction on drugs
within 1000 feet of schools, public parks, and public housing to also ban firearms from these
locations. The State attempts to relate the reasoning behind the gun-free school zones to public
parks, stating that because there is a substantial and distinctive interest in protecting those in
parks due to a large number of children who frequent these places, prohibiting firearms near
public parks is substantially related to the important government interest in protecting these
children and others. According to the State, the goal of the 1000-foot firearm restriction around
public parks is to extend the distance where a shooter might fire a weapon.
¶ 52 We certainly accept the general proposition that preventing crime and protecting children
are important public concerns. See Schall v. Martin, 467 U.S. 253, 264 (1984) (“The
‘legitimate and compelling state interest’ in protecting the community from crime cannot be
doubted.”). After all, “[g]uns are inherently dangerous instrumentalities.” Loitz v. Remington
Arms Co., 138 Ill. 2d 404, 419 (1990). The State, however, cannot simply invoke these
interests in a general manner and expect to satisfy its burden.
¶ 53 Just as in Ezell I and II, the State’s propositions are devoid of any useful statistics or
empirically supported conclusions. See Ezell I, 651 F.3d at 709 (“shoddy data or reasoning”
and speculative claims are insufficient; there must be sufficient evidence to support the State’s
rationale. (Internal quotation marks omitted.)). First, the State cites data on school shootings
from 1993 to 1999 purporting to show the pervasiveness of guns and violence in schools. It
fails to connect these statistics to the challenged restriction in any meaningful way—it merely
recites numbers and concludes that children need to be protected from gun violence. Secondly,
the State cites data showing that, in Illinois between 1982 and 1991, there was an increase in
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the number of juvenile arrests for both weapons violations and for murder by use of a firearm.
Based on these statistics, the State concludes that “juvenile violence is inextricably linked to
firearms.” The State’s third statistic merely provides that during the 1992-93 school years, 158
firearms “were confiscated on or near public school grounds in Chicago.”
¶ 54 In sum, based on the record, the State provides no evidentiary support for its claims that
prohibiting firearms within 1000 feet of a public park would reduce the risks it identifies.
Without specific data or other meaningful evidence, we see no direct correlation between the
information the State provides and its assertion that a 1000-foot firearm ban around a public
park protects children, as well as other vulnerable persons, from firearm violence. The State
merely speculates that the proximity of firearms within 1000 feet threatens the health and
safety of those in the public park. The lack of a valid explanation for how the law actually
achieves its goal of protecting children and vulnerable populations from gun violence amounts
to a failure by the State to justify the restriction on gun possession within 1000 feet of a public
park.
¶ 55 There is another flaw in the State’s position. The State claims that the restriction is not
overly burdensome because there are areas throughout Illinois where one could exercise the
core second amendment right. Although this may be true, Ezell II found that despite the
existence of areas where the shooting range restriction was constitutionally valid, that fact
alone did not save the restriction because it nonetheless “severely restrict[ed] the right of
Chicagoans.” Ezell II, 846 F.3d at 894. Indeed an individual can preserve an undiminished
right of self-defense by not entering one of the restricted areas. But the State conceded at oral
argument that the 1000-foot firearm restriction zone around a public park would effectively
prohibit the possession of a firearm for self-defense within a vast majority of the acreage in the
city of Chicago because there are more than 600 parks in the city. See About Us, Chicago Park
District, http://www.chicago parkdistrict.com/about-us/ (last visited Jan. 10, 2018). Aside
from the sheer number of locations and public areas that would qualify under the law, not only
in the city of Chicago, but throughout Illinois, the most troubling aspect is the lack of any
notification where the 1000-foot restriction zone starts and where it would end. Innocent
behavior could swiftly be transformed into culpable conduct if an individual unknowingly
crosses into a firearm restriction zone. The result could create a chilling effect on the second
amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot
firearm-restricted zones by just turning a street corner. Likewise, in response to a question at
oral argument, the State conceded that an individual who lives within 1000 feet of a public
park would violate section 24-1(a)(4), (c)(1.5) every time that individual possessed a firearm
for self-defense and walked to his or her vehicle parked on a public street. To remain in
compliance with the law, the State said that the individual would need to disassemble his or her
firearm and place it in a case before entering the restricted zone. This requirement, however,
renders the ability to defend oneself inoperable and is in direct contradiction to this court’s
decisions in Aguilar, which recognized that the right to carry firearms for self-defense may be
especially important when traveling outside of the home, and perhaps even more important
than while at home. Aguilar, 2013 IL 112116, ¶¶ 19-20. Moreover, the State’s proposition
conflicts with Heller’s decision that struck down the requirement that firearms be kept
“unloaded and disassembled or bound by a trigger lock” because it “makes it impossible for
citizens to use them for the core lawful purpose of self-defense.” (Internal quotation marks
omitted.) Heller, 554 U.S. at 630. Thus, the State’s suggestion runs counter to established law.
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¶ 56 For these reasons, the State has not established the required means-end fit between the
challenged law and its justifications.5 Accordingly, we hold that possessing a firearm within
1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is
facially unconstitutional.
¶ 57 Severability
¶ 58 Having found the charged offense under section 24-1(a)(4), (c)(1.5) of the UUW statute
unconstitutional, we must now consider whether the invalid provision in the statute is
severable from the remaining provisions absent the invalid one. Resolving this issue involves a
question of statutory construction, which first requires ascertaining and giving effect to the
intent of the legislature by looking at either the statute’s own specific severability provision, if
one exists, or the Statute on Statutes’ general severability provision (5 ILCS 70/1.31 (West
2012)). In re Jordan G., 2015 IL 116834, ¶ 17.
¶ 59 Because the UUW statute at issue does not contain its own specific severability provision,
pursuant to the Statute on Statutes (5 ILCS 70/1.31 (West 2012)), we must determine whether
the invalid portion and the remaining portions of the statute are essentially and inseparably
connected in substance, such that the General Assembly would not have passed the valid
portions of the statute absent the invalid portion. Mosley, 2015 IL 115872, ¶ 30. The
unconstitutional portion of a statute may be severed “if what remains is complete in and of
itself, and is capable of being executed wholly independently of the severed portion.” Id. We
have the obligation of upholding the constitutionality of the remainder of the statute if
reasonably possible. People v. Sanders, 182 Ill. 2d 524, 534 (1998).
¶ 60 As explained earlier, to convict a defendant of the Class 3 form of section 24-1(a)(4),
(c)(1.5) of the UUW statute, the State must prove beyond a reasonable doubt the elements set
forth in section 24-1(a)(4) and one of the several specific location factors in section
24-1(c)(1.5). 720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012). Possession of a firearm within 1000
feet of a public park is one of several specific locations that can operate in conjunction with the
offense of section 24-1(a)(4) to comprise the substantive Class 3 form of the offense. Id. Other
offenses in section 24-1(c)(1.5) include, “on any public way within 1,000 feet of the real
property comprising any school, public park, courthouse, public transportation facility, or
residential property owned, operated, or managed by a public housing agency or leased by a
public housing agency as part of a scattered site or mixed-income development.” Id.§ 24-1(c)(1.5).
¶ 61 We find that the severability question in this case is similar to the issue in Mosley and
Jordan G. In both cases, this court severed the unconstitutional provision, section
24-1.6(a)(3)(A), from the AUUW statute, finding that the remainder of the statute could be
executed without the invalid provision because the provision operated only to criminalize
possession of a loaded, uncased firearm in public. Mosley, 2015 IL 115872, ¶ 31; Jordan G.,
2015 IL 116834, ¶ 19. In doing so, we held that the other provisions in the AUUW statute of
not possessing a valid Firearm Owner’s Identification card or being under the age of 21 could
5
We do not pass judgment on whether a less restrictive firearm zone regulation may satisfy court
scrutiny if it were carefully crafted to serve public interests while at the same time upholding the
constitutional right to bear arms in self-defense.
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“stand independently without the inclusion of subsection factor (a)(3)(A)” because they
criminalize other firearm violations. Mosley, 2015 IL 115872, ¶ 31; Jordan G., 2015 IL
116834, ¶ 19.
¶ 62 The purpose of the UUW statute, like that of the AUUW statute, is to protect the police and
public from dangerous weapons. Mosley, 2015 IL 115872, ¶ 31. Subsection (c)(1.5) continues
to accomplish that aim with and without inclusion of the offense of possession of a firearm
within 1000 feet of a public park. Although section 24-1(c)(1.5) is not drafted as clearly as the
factors in the AUUW statute, our finding is supported by the fact that some of the other areas
protected with 1000-foot restrictions under section 24-1(c)(1.5) were separately enacted. See,
e.g., Pub. Act 86-465 (eff. Jan. 1, 1990) (adding carriage ban in public housing to existing ban
on carriage in schools); Pub. Act 87-930 (eff. Jan. 1, 1993) (adding carriage ban in public parks
and creating carriage ban within 1000 feet of schools, public parks, and public housing); Pub.
Act 88-156 (eff. July 28, 1993) (adding carriage ban within 1000 feet of courthouses); Pub. Act
96-41 (eff. Jan. 1, 2010) (adding carriage ban within 1000 feet of public transportation
facility). As such, the history is indicative that the legislature intended for each separate
location to be enforced wholly independently of the ban on carriage within 1000 feet of a
public park. Removing this single location offense does not undermine the completeness of the
remaining locations in section 24-1(c)(1.5). The remaining specific locations are capable of
being executed without the offense of possessing a firearm within 1000 feet of a public park.
We, therefore, find the unconstitutional portion of the statute at issue severable from the
remaining portions of the statute.
¶ 63 Reinstatement of Nol-Prossed Charges
¶ 64 Finally, the State requests that if this court vacates defendant’s conviction, we should
revisit our recent decision in People v. Shinaul, 2017 IL 120162, in order to reinstate the
charges it agreed to nol-pros as part of defendant’s negotiated plea agreement. In Shinaul, we
held that where the statute of limitations has run, it acts as an “absolute bar” on reinstating such
charges following a defendant’s successful motion to vacate a guilty plea. Id. ¶ 18. The State
concedes that in light of Shinaul, the nol-prossed charges may not be reinstated because the
three-year statute of limitations has run. We decline the State’s invitation to revisit Shinaul.
¶ 65 CONCLUSION
¶ 66 For the reasons set forth above, we affirm the circuit court’s judgment vacating defendant’s
Class 3 felony conviction of UUW in violation of section 24-1(a)(4), (c)(1.5) within 1000 feet
of a public park, which we find to be unconstitutional. We vacate the circuit court’s judgment
to the extent that it declared portions of section 24-1(a)(4), (c)(1.5) of the UUW statute not at
issue in this case unconstitutional.
¶ 67 Circuit court judgment affirmed in part and vacated in part.
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