People v. Villareal

2023 IL 127318IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127318)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JUAN VILLAREAL, Appellant.
Opinion filed January 20, 2023.
JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville and Overstreet concurred in the
judgment and opinion.
Justices Cunningham, Rochford, and O’Brien took no part in the decision.
OPINION
¶1 Petitioner, Juan Villareal, pleaded guilty in the circuit court of Cook County to
unlawful possession of a firearm by a gang member in violation of section 24-
1.8(a)(1) of the Criminal Code of 1961 (720 ILCS 5/24-1.8(a)(1) (West 2010)). The
circuit court sentenced petitioner to four years in prison pursuant to a plea
agreement. Petitioner subsequently filed a petition pursuant to section 2-1401 of
the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)) arguing his sentence
was improperly increased because he was required to serve a period of mandatory
supervised release. The circuit court dismissed the petition.
¶2 On appeal, petitioner challenged section 24-1.8(a)(1) as facially
unconstitutional under the eighth amendment to the United States Constitution
(U.S. Const., amend. VIII) because the statute impermissibly criminalized his status
as a gang member. See 720 ILCS 5/24-1.8(a)(1) (West 2010). In supplemental
briefing, petitioner added an additional claim, arguing the statute was facially
unconstitutional, as it violated substantive due process. The appellate court rejected
petitioner’s eighth amendment challenge and declined to address the due process
claim, as it was raised for the first time in petitioner’s supplemental brief. 2021 IL
App (1st) 181817, ¶¶ 17-21, 28. One dissenting justice found the statute violated
substantive due process. Id. ¶ 44 (Walker, P.J., dissenting).
¶3 Petitioner now argues section 24-1.8(a)(1) is facially unconstitutional for three
reasons: (1) it violates the fourteenth amendment’s guarantee of substantive due
process (U.S. Const., amend. XIV) because it is not rationally related to a legitimate
state interest, (2) it violates substantive due process because it is vague, and (3) it
violates the eighth amendment. For the following reasons, we hold the statute is
constitutional and comports with both the eighth and fourteenth amendments to the
United States Constitution.
¶4 BACKGROUND
¶5 In October 2011, police officers stopped petitioner while he was driving a car
the officers believed had been involved in a neighborhood shooting. During the
traffic stop, officers searched the car and recovered a fully loaded handgun.
Petitioner was charged with several offenses related to the firearm, including
unlawful possession of a firearm by a streetgang member in violation of the
Criminal Code of 1961 (720 ILCS 5/24-1.8(a)(1) (West 2010)). Petitioner pleaded
guilty to unlawful possession of a firearm by a streetgang member. The State
dropped the additional charges pursuant to the plea agreement. As part of the factual
basis for the plea, the State informed the court petitioner was “a member of the
Satan Disciples from 24 and Washtenaw” and that he had never been issued a
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Firearm Owner’s Identification (FOID) card. Petitioner stipulated to this
information. The circuit court sentenced petitioner to four years in prison. Petitioner
did not file a direct appeal.
¶6 In April 2018, petitioner filed a petition pursuant to section 2-1401 of the Code
of Civil Procedure (735 ILCS 5/2-1401 (West 2018)), arguing the statute governing
Illinois’s mandatory supervised release scheme was unconstitutional because his
sentence was improperly increased when he was required to serve an additional
two-year period of mandatory supervised release. The circuit court dismissed the
petition. Petitioner appealed the dismissal.
¶7 On appeal, petitioner abandoned the claims raised in his petition. Instead, he
argued his conviction for unlawful possession of a firearm by a streetgang member
was unconstitutional under the eighth amendment to the United States Constitution
because it increased the penalty for unlawful possession of a firearm based solely
on the person’s status as a gang member. See 720 ILCS 5/24-1.8(a)(1) (West 2010).
Petitioner acknowledged he had not previously raised the claim in the circuit court
but argued the issue was properly before the appellate court because a facially
unconstitutional statute could be challenged at any time. See People v. Thompson,
2015 IL 118151, ¶ 32.
¶8 After the parties filed their briefs, the appellate court sua sponte asked the
parties to file supplemental briefs addressing two cases—State v. O.C., 748 So. 2d
945 (Fla. 1999), and State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016)—
dealing with the constitutionality of sentencing enhancements for streetgang
members. In petitioner’s supplemental brief, he argued section 24-1.8(a)(1) was
also facially unconstitutional because it violated substantive due process.
¶9 A majority of the appellate court rejected petitioner’s eighth amendment
challenge, finding the statute criminalized more than mere gang membership
because it also prohibited the voluntary possession of a firearm without a valid
FOID card. 2021 IL App (1st) 181817, ¶¶ 17-21. In addition, the majority noted
that, in a prosecution for unlawful possession of a firearm by a gang member, the
“State must prove substantially more than mere gang member status; it must prove
specific criminal offenses directly related to or in furtherance of the gang’s
objectives, and therefore, an explicit nexus is required between illegal firearm
possession and gang-related activity.” Id. ¶ 21. The statute did not allow for the
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prosecution of passive gang members and only permitted the prosecution of gang
members involved in specific criminal acts who also unlawfully possessed
weapons. Id. ¶ 20. The majority declined to address the substantive due process
claim, as it was raised for the first time in petitioner’s supplemental brief, which
the majority found was in violation of Illinois Supreme Court Rule 341(h)(7) (eff.
Oct. 1, 2020). 2021 IL App (1st) 181817, ¶¶ 23-28.
¶ 10 Presiding Justice Walker dissented because he found the application of the
harsher penalty under the statute was triggered solely by petitioner’s status as a
gang member. Id. ¶ 33 (Walker, P.J., dissenting). Presiding Justice Walker noted:
“The issue here is proof that the group qualifies as a street gang does not
entail proof that an individual knew of the group’s criminal activities. In
addition, proof that the group qualifies as a street gang does not entail proof
connecting the possession of the firearm to any of the criminal acts that qualify
the group for street gang status.” Id. ¶ 34.
Presiding Justice Walker concluded the statute violated due process. Id. ¶ 43.
¶ 11 This court granted petitioner’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Oct. 1, 2020). We allowed the American Civil Liberties Union of Illinois leave
to file an amicus curiae brief in support of petitioner’s position. Ill. S. Ct. R. 345(a)
(eff. Sept. 20, 2010).
¶ 12 ANALYSIS
¶ 13 Before this court, petitioner argues section 24-1.8(a)(1) is facially
unconstitutional for the following reasons: (1) it violates the eighth amendment to
the Unites States Constitution because it increases an individual’s sentence based
solely on his status as a gang member, and (2) it violates substantive due process
under the fourteenth amendment to the United States Constitution because it
(a) criminalizes mere gang association without requiring a nexus between the
association and the conduct prohibited under the statute and (b) is vague as written
and is therefore void. See 720 ILCS 5/24-1.8(a)(1) (West 2010); U.S. Const.,
amends. VIII, XIV. Although the appellate court declined to address petitioner’s
substantive due process argument, we choose to address all of petitioner’s claims
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because they are facial challenges to the statute, which this court has held can be
raised at any time. In re J.W., 204 Ill. 2d 50, 61 (2003).
¶ 14 We begin with the familiar rules controlling the review of a facial constitutional
challenge to a statutory provision. A party bringing a facial challenge to a statute
faces a particularly heavy burden. People v. Eubanks, 2019 IL 123525, ¶ 34. The
party must prove there is no set of circumstances under which the statute would be
valid. Id. Statutes are presumed constitutional, and the party challenging the
constitutionality of a statute has the burden of clearly establishing its invalidity.
People v. Coty, 2020 IL 123972, ¶ 22. This court has a duty to construe a statute in
a manner upholding the statute’s validity and constitutionality if it can be
reasonably done. People v. Hollins, 2012 IL 112754, ¶ 13. The issue of whether a
statute is constitutional presents a question of law, which this court reviews
de novo. People v. Austin, 2019 IL 123910, ¶ 14.
¶ 15 Petitioner challenges the constitutionality of section 24-1.8(a)(1), which states:
“(a) A person commits unlawful possession of a firearm by a street gang
member when he or she knowingly:
(1) possesses, carries, or conceals on or about his or her person a firearm
and firearm ammunition while on any street, road, alley, gangway,
sidewalk, or any other lands, except when inside his or her own abode or
inside his or her fixed place of business, and has not been issued a currently
valid Firearm Owner’s Identification Card and is a member of a street
gang[.]” 720 ILCS 5/24-1.8(a)(1) (West 2010).
The definitions of a “streetgang” and a “streetgang member” are found in the
Illinois Streetgang Terrorism Omnibus Prevention Act (Act) (740 ILCS 147/10
(West 2010)). 720 ILCS 5/24-1.8(c) (West 2010).
¶ 16 The Act defines a “streetgang” as “any combination, confederation, alliance,
network, conspiracy, understanding, or other similar conjoining, in law or in fact,
of 3 or more persons with an established hierarchy that, through its membership or
through the agency of any member engages in a course or pattern of criminal
activity.” 740 ILCS 147/10 (West 2010). A course or pattern of criminal activity is
defined as two or more gang-related criminal offenses committed in whole or in
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part within this State when (1) at least one such offense was committed after
January 1, 1993 (the effective date of the Act); (2) both offenses were committed
within five years of each other; and (3) at least one offense involved the solicitation
to commit, conspiracy to commit, attempt to commit, or commission of any offense
defined as a felony or forcible felony under the Criminal Code of 1961 (now the
Criminal Code of 2012). Id. A “gang-related” criminal offense “means any criminal
activity, enterprise, pursuit, or undertaking directed by, ordered by, authorized by,
consented to, agreed to, requested by, acquiesced in, or ratified by any gang leader,
officer, or governing or policy-making person or authority, or by any agent,
representative, or deputy of any such officer, person, or authority” for the benefit
of the gang. Id.¶ 17 A “streetgang member” is defined as
“[(1)] any person who actually and in fact belongs to a gang, and [(2)] any
person who knowingly acts in the capacity of an agent for or accessory to, or is
legally accountable for, or voluntarily associates himself with a course or
pattern of gang-related criminal activity, whether in a preparatory, executory,
or cover-up phase of any activity, or who knowingly performs, aids, or abets
any such activity.” Id.¶ 18 We take each of petitioner’s constitutional arguments in turn and review these
definitions as they impact each argument.
¶ 19 A. Petitioner’s Substantive Due Process Challenges
¶ 20 The fourteenth amendment to the United States Constitution provides no person
shall be deprived of life, liberty, or property without due process of law. U.S.
Const., amend. XIV. There are two aspects to the guarantee of due process,
procedural and substantive. People v. Pepitone, 2018 IL 122034, ¶ 13. Petitioner
argues section 24-1.8(a)(1) violates substantive due process. Substantive due
process limits the State’s ability to act, irrespective of the procedural protections
provided. People v. Cardona, 2013 IL 114076, ¶ 17. A statute violates the
constitutional guarantee of due process if it does not bear a rational relationship to
a legitimate legislative purpose. People v. Boeckmann, 238 Ill. 2d 1, 7 (2010). A
statute can also violate due process if it is unconstitutionally vague. People v. Plank,
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2018 IL 122202, ¶ 12. Petitioner argues section 24-1.8(a)(1) violates due process
for both reasons.
¶ 21 1. Rational Basis
¶ 22 In this case, the parties agree section 24-1.8(a)(1) does not impact a
fundamental constitutional right. When a statute does not impact a fundamental
constitutional right, the applicable standard for reviewing whether the statute
conforms with substantive due process is the rational basis test. Boeckmann, 238
Ill. 2d at 7. Applying the rational basis test, we must determine (1) whether there is
a legitimate state interest behind the statute and, if so, (2) whether there is a
reasonable relationship between the interest and the means the legislature has
chosen to pursue it. Pepitone, 2018 IL 122034, ¶ 14 (citing People v. Johnson, 225
Ill. 2d 573, 584 (2007)). If a statute is reasonably related to a legitimate state
interest, the means or method the legislature has chosen to serve the state interest
will also be reasonable. Id. ¶ 16. A challenged statute must be upheld if there is a
conceivable basis for finding it is rationally related to a legitimate state interest.
Boeckmann, 238 Ill. 2d at 7. Although it is not toothless, the rational basis test is
highly deferential to the findings of the legislature. Pepitone, 2018 IL 122034, ¶ 17;
People v. Jones, 223 Ill. 2d 569, 596 (2006).
¶ 23 In enacting section 24-1.8(a)(1), the legislature identified the legislative
purpose of the statute as “to protect innocent citizens, public areas by severely and
justly punishing those individuals who are prone to cause violence in public areas—
gang members.” 96th Ill. Gen. Assem., Senate Proceedings, Oct. 29, 2009, at 152
(statements of Senator Muñoz). To implement this legislative purpose, the statute
was specifically aimed at “gang members who possess firearms and ammunition in
areas where gang violence is most likely to erupt—the streets, sidewalks, alleys,
gangways and roadways of urban areas throughout Illinois.” Id. The legislature thus
enacted section 24-1.8(a)(1) and increased the penalty for the unlawful possession
of a firearm or firearm ammunition in public without a FOID card when the person
in possession of the firearm or ammunition is a gang member. 720 ILCS 5/24-
1.8(a)(1), (b) (West 2010). We conclude the legislature’s decision to increase the
penalty was reasonable and rationally related to its stated purpose of curbing gang
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violence against innocent citizens in public areas. Accordingly, we hold section 24-
1.8(a)(1) does not violate substantive due process.
¶ 24 Petitioner argues the statute fails the rational basis test because it does not
require any connection between the gang association and the underlying offense of
unlawfully possessing a firearm. Without this connection, petitioner argues, the
statute does not actually target criminal gang activity, thus failing the rational basis
test. However, in enacting section 24-1.8(a)(1), the legislature found violence
against innocent citizens in public areas was committed by armed gang members.
Connecting the legislative purpose of reducing this specific violence to the conduct
to be prohibited—gang members possessing firearms—the legislature chose to
enact a statute heavily punishing gang members for unlawfully possessing firearms
in public areas. This direct connection distinguishes this case from Bonds, 502
S.W.3d at 157, where the court found the gang enhancement statute increasing
penalties for all offenses committed by a gang member failed “to even obtusely
target gang-related criminal activity.” See also O.C., 748 So. 2d at 947 (striking
down a gang enhancement statute increasing the penalty for all offenses committed
by a gang member because there was no connection between the underlying offense
and the gang membership).
¶ 25 The rational basis test asks whether there is a reasonable relationship between
the legislative purpose and the means the legislature has chosen to pursue it.
Johnson, 225 Ill. 2d at 584. We find increasing the penalty for the unlawful
possession of a firearm in public when the offender is a gang member was a rational
method of accomplishing the legislative goal of protecting innocent citizens from
gang violence. While requiring the possession of the firearm to be directly
connected to specific gang activity may be an alternate means of accomplishing the
legislative purpose, the rational basis test does not require the statute to be the best
means of accomplishing the legislature’s objectives. J.W., 204 Ill. 2d at 72. The
determination of the best means to achieve the legislative goal is best left to the
legislature, not the courts. Id.¶ 26 Petitioner further argues the definition of a streetgang member does not require
active gang membership and can sweep up individuals with mere passive
association with the gang—thus violating substantive due process. The State
contends the plain language of the statute makes it clear only gang members who
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are ready and willing to commit crimes on behalf of the gang are swept into the
definition of a gang member. We agree with the State and find the phrase “actually
and in fact belongs to” when defining a gang member refers to a level of association
beyond mere passive association.
¶ 27 We return to the definition of a gang member provided in the Act as
“[(1)] any person who actually and in fact belongs to a gang, and [(2)] any
person who knowingly acts in the capacity of an agent for or accessory to, or is
legally accountable for, or voluntarily associates himself with a course or
pattern of gang-related criminal activity, whether in a preparatory, executory,
or cover-up phase of any activity, or who knowingly performs, aids, or abets
any such activity.” 740 ILCS 147/10 (West 2010).
The second definition of a gang member undoubtedly encompasses active
participation in gang-related criminal activity by a person acting as an agent of the
gang. See id. Petitioner argues the first definition of a gang member includes gang
members who passively associate with the gang with no knowledge of the gang’s
criminal activity. Since the phrase “actually and in fact belongs to” is not statutorily
defined, we turn to a dictionary for the common meaning of the term “belongs to.”
People v. Comage, 241 Ill. 2d 139, 144 (2011) (“When a statutory term is
undefined, it is appropriate to employ a dictionary definition to ascertain its
meaning.”).
¶ 28 The Act went into effect in 1993. See Pub. Act. 87-932, art. II, § 1 (eff. Jan. 1,
1993). The contemporaneous dictionary definitions of “belong” were “to become
attached or bound (as to a person, group, or organization) by birth, allegiance,
residence, or dependency.” Webster’s Third New International Dictionary 201
(1993). “Bound” was defined as “under legal or moral restraint or obligation” (id.
at 260), and “allegiance” was defined as “devotion or loyalty esp. to a person,
group, or cause entitled to obedience or service and respect” (id. at 55). These
definitions can also be found on the current online version of the Merriam-Webster
Dictionary. In the context of section 24-1.8(a)(1), to belong to a gang thus means
to be attached or bound to a gang in a manner expressing an active devotion or
loyalty to the gang.
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¶ 29 This definition is in line with the definition of a gang, which is “any
combination, confederation, alliance, network, conspiracy, understanding, or other
similar conjoining, in law or in fact, of 3 or more persons with an established
hierarchy that, through its membership or through the agency of any member
engages in a course or pattern of criminal activity.” (Emphasis added.) 740 ILCS
147/10 (West 2010). A “course or pattern of criminal activity” means two or more
gang-related criminal offenses. Id. The statute also provides a detailed definition of
gang-related criminal activity, which includes criminal activity to benefit the gang,
such as by increasing the gang’s dominance in a geographical area or providing the
gang with an advantage in a criminal sector. Id. Read together, these definitions
indicate gang members are necessarily active participants in criminal activities on
behalf of the gang. See Comage, 241 Ill. 2d at 144 (“To determine the plain
meaning, we must consider the statute in its entirety and be mindful of the subject
it addresses.”).
¶ 30 We find the plain language of section 24-1.8(a)(1) and the definitions it
incorporates from the Act are clear as to the legislative intent. However, “[t]o the
extent any residual doubt exists, it is erased through examination of
the legislative history.” People v. Blair, 2013 IL 114122, ¶ 38. A reading of the
statute to include only active gang members implements the legislative intent as
confirmed by the sentiments of the legislature when section 24-1.8(a)(1) was
enacted. When legislators expressed concern about criminalizing individuals who
were not active gang members, they were reassured the statute would only include
gang members who were “actively engaged in the criminal enterprise” “in that gang
and the burden of proof from the State’s attorney’s office is—it has to be very, very
high.” 96th Ill. Gen. Assem., Senate Proceedings, Oct. 29, 2009, at 158 (statements
of Senator Millner); see People v. Murray, 2019 IL 123289, ¶ 39.
¶ 31 Therefore, for an individual to be prosecuted for unlawful possession of a
firearm in public as a gang member, the State must prove—as an element of the
offense—the individual was an active gang member at the time he possessed the
firearm. We decline to read into the statute a legislative intent to punish passive
members of a gang. Scales v. United States, 367 U.S. 203, 222 (1961) (declining to
attribute to Congress a purpose to punish nominal membership); Hollins, 2012 IL
112754, ¶ 13 (“We have a duty to construe the statute in a manner that upholds the
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statute’s validity and constitutionality, if it can be reasonably done.”).
¶ 32 2. Void for Vagueness
¶ 33 A vagueness challenge arises from the notice requirement of the fourteenth
amendment’s due process clause. Bartlow v. Costigan, 2014 IL 115152, ¶ 40. As a
basic principle of due process, a statute is void for vagueness if its prohibitions are
not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A
statute can be impermissibly vague if it (1) fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits or
(2) authorizes or even encourages arbitrary and discriminatory enforcement. Hill v.
Colorado, 530 U.S. 703, 732 (2000). In addressing a vagueness challenge to a
statute, we first examine the plain language of the statute in light of its common
understanding and practice. Wilson v. County of Cook, 2012 IL 112026, ¶ 24. If the
plain text of the statute sets forth clearly perceived boundaries, the vagueness
challenge fails, and our inquiry ends. Id.¶ 34 Petitioner contends section 24-1.8(a)(1) is vague because the first definition of
a gang member does not provide guidance on how a person may join a gang and
because the second definition does not provide the minimal level of association
necessary to trigger the statute. We disagree. Section 24-1.8(a)(1) provides a person
of ordinary intelligence a reasonable opportunity to understand the prohibited
conduct, which is the possession of a firearm or firearm ammunition in public
without a valid FOID card. See 720 ILCS 5/24-1.8(a)(1) (West 2010). Additionally,
the definitions of what constitutes a streetgang, a gang member, and criminal
activity are highly detailed and specific and further provide a person of ordinary
intelligence with guidance on who is prohibited from the public possession of
firearms under section 24-1.8(a)(1). The fact the definition does not provide an
explanation for how a person may join a gang does not undermine the plain
language explaining when a person is in fact an active gang member.
¶ 35 We find Lanzetta v. New Jersey, 306 U.S. 451 (1939), on which petitioner
relies, distinguishable. In that case, the United States Supreme Court struck down
a New Jersey statute holding,
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“Any person not engaged in any lawful occupation, known to be a member of
any gang consisting of two or more persons, who has been convicted at least
three times of being a disorderly person, or who has been convicted of any
crime, in this or in any other State, is declared to be a gangster . . .” (Internal
quotation marks omitted.) Id. at 452.
The Supreme Court noted the definition of a gang as “consisting of two or more
persons” did not provide enough information on the meaning of the word. Id. at
453. The Court looked to dictionaries and other sources and concluded the term
“gang” was defined in many different ways, with no common-law definition. Id. at
454-55.
¶ 36 The Court further found the expression “known to be a member” was
ambiguous because it did not indicate whether it included active or putative
membership. Id. at 458. The Court also noted the statute failed to indicate what
constituted membership or how an individual could join a gang. Id. Ultimately, the
Court struck down the statute because it “condemn[ed] no act or omission; the terms
it employ[ed] to indicate what it purport[ed] to denounce [were] so vague, indefinite
and uncertain” as to violate the due process clause. Id.¶ 37 In contrast to the language at issue in Lanzetta, section 24-1.8(a)(1) provides
detailed, clear definitions of a “gang” based on more than the number of a group’s
membership. 720 ILCS 5/24-1.8(c) (West 2010); 740 ILCS 147/10 (West 2010).
Furthermore, the definition of a “gang member” requires active participation in
criminal activity by an actual gang member or one acting as an agent for the gang.
740 ILCS 147/10 (West 2010). Unlike in Lanzetta, the statute requires a person to
actually belong to a gang or act on behalf of a gang, not simply be suspected of
belonging to one. See Lanzetta, 306 U.S. at 458. Section 24-1.8(a)(1) is also clear
on what conduct it condemns—the unlawful possession of firearms in public spaces
by gang members. 720 ILCS 5/24-1.8(a)(1) (West 2010). Section 24-1.8(a)(1) thus
comports with due process.
¶ 38 Petitioner also argues the second definition of a streetgang member lacks clarity
because it does not provide notice of what it means for a person to “voluntarily
associate” and what minimal level of association is required. Petitioner fails to read
“voluntarily associate” in the context of the entire definition, under which a person
is a gang member if he
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“knowingly acts in the capacity of an agent for or accessory to, or is legally
accountable for, or voluntarily associates himself with a course or pattern of
gang-related criminal activity, whether in a preparatory, executory, or cover-up
phase of any activity, or who knowingly performs, aids, or abets any such
activity.” 740 ILCS 147/10 (West 2010).
The phrase “voluntarily associates himself with” must be read in the context of the
entire statutory text because “a word is given more precise content by the
neighboring words with which it is associated.” Corbett v. County of Lake, 2017 IL
121536, ¶ 31 (quoting United States v. Williams, 553 U.S. 285, 294 (2008)). In
context, an individual’s association with a course or pattern of criminal activity
must be in the same vein as one who acts as an agent or accessory in the planning,
execution, and cover-up of a gang-related offense.
¶ 39 Further, to “associate” is not defined under the statute. See 740 ILCS 147/10
(West 2010). We therefore rely on the dictionary definition, which is “to join often
in a loose relationship as a partner, fellow worker, colleague, friend, companion, or
ally.” Webster’s Third New International Dictionary 132 (1993). The plain
language of the statute provides that a person voluntarily associates with a course
or pattern of gang-related criminal activity when he joins as a partner, friend,
companion, or ally in the preparation, execution, or cover-up of the gang-related
criminal activity. This would not include the examples the petitioner cites, i.e., a
person who merely likes a social media post about an offense he took no part in or
one who makes laudatory comments about the offense or its perpetrators but
otherwise did not participate in the offense. These activities do not generally
constitute joining in the course or pattern of gang-related criminal activity, whether
in a preparatory, executory, or cover-up phase.
¶ 40 Similarly, petitioner fails to show section 24-1.8 is vague because it authorizes
or even encourages arbitrary and discriminatory enforcement by not providing a
clear definition of a gang member. See Hill, 530 U.S. at 732. To avoid being struck
down as vague, a statute must provide explicit standards to regulate the discretion
of governmental authorities who apply the law. People v. Maness, 191 Ill. 2d 478,
484 (2000). If the legislature fails to provide minimal guidelines to govern law
enforcement, a criminal law “ ‘may permit “a standardless sweep [that] allows
policemen, prosecutors, and juries to pursue their personal predilections.” ’ ” Id.- 13 -
(quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983), quoting Smith v. Goguen,
415 U.S. 566, 575 (1974)). We find section 24-1.8(a)(1) provides the necessary
guidance, through its clear and detailed definitions of both a gang member and a
gang, to guide members of law enforcement and prosecutors properly following
these definitions. The statute itself does not leave the determination of what
constitutes a gang member to an officer’s or prosecutor’s personal discretion.
¶ 41 Petitioner argues the Chicago Police Department often relies on gang databases
compiled in a discriminatory manner. This is a serious concern. However, this
argument goes to the amount of evidence the State must introduce at trial to prove
beyond a reasonable doubt that a person is a gang member under section 28-
1.4(a)(1), including proving the group he is charged as a member of is a gang. See
740 ILCS 147/10 (West 2010); Murray, 2019 IL 123289, ¶ 34 (finding, in a
prosecution for a violation of section 24-1.8(a)(1), when proving the defendant is a
gang member, the State must prove beyond a reasonable doubt the existence of the
gang as defined under the Act).
¶ 42 We also note the issue of whether a person is a gang member under the statute
would arise only when the person is being charged for being in unlawful public
possession of a firearm without a valid FOID card. At the point of arrest, the police
officers would presumably arrest all individuals unlawfully possessing firearms
without valid FOID cards, whether they are gang members or not. See 720 ILCS
5/24-1.6(a)(1), (a)(3)(C) (West 2010). Therefore, section 24-1.8(a)(1) would not
permit an officer’s personal predilection to determine who would be arrested for
unlawfully possessing a firearm. Once a person is arrested, the determination of
how to charge him will depend on how much evidence the State believes it has to
prove the defendant’s gang membership. Murray, 2019 IL 123289, ¶ 37. Because
the statute provides detailed definitions of these terms, we find it is not vague under
either vagueness standard and hold section 24-1.8 does not violate due process.
¶ 43 B. Petitioner’s Eighth Amendment Challenge
¶ 44 The eighth amendment to the United States Constitution prohibits cruel and
unusual punishments and applies to the states through the fourteenth amendment.
U.S. Const., amends. VIII, XIV; People v. Buffer, 2019 IL 122327, ¶ 15. In
Ingraham v. Wright, 430 U.S. 651, 664-67 (1977), the United States Supreme Court
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reviewed the history of the eighth amendment and the Court’s decisions in an effort
to determine how the clause circumscribes the criminal process. The Court
concluded the clause does so in three ways: (1) it limits the kinds of punishment
that can be imposed on those convicted of crimes, (2) it proscribes punishment
grossly disproportionate to the severity of the crime, and (3) it imposes substantive
limits on what can be made criminal and punished as such. Id. at 667. The Supreme
Court has recognized the last limitation as one to be applied sparingly. Id.Petitioner’s eighth amendment argument in this case concerns this last category,
which stems from the Supreme Court’s decision in Robinson v. California, 370
U.S. 660 (1962).
¶ 45 In Robinson, the Supreme Court struck down a statute criminalizing “the status”
of drug addiction. Id. at 666. In reaching its holding, the Court found drug addiction
to be “an illness which may be contracted innocently or involuntarily” and that
criminalizing addiction was cruel and unusual punishment. Id. at 667. The Court
subsequently reviewed the limits of Robinson in Powell v. Texas, 392 U.S. 514(1968). In Powell, the Court was asked to determine the constitutionality of a statute
criminalizing public intoxication. Id. at 517. The Court upheld the statute after
finding it did not criminalize the status of being a chronic alcoholic but the public
behavior of being drunk in public on a particular occasion. Id. at 532. The Powell
Court noted:
“The entire thrust of Robinson’s interpretation of the Cruel and Unusual
Punishment Clause is that criminal penalties may be inflicted only if the
accused has committed some act, has engaged in some behavior, which society
has an interest in preventing, or perhaps in historical common law terms, has
committed some actus reus. It thus does not deal with the question of whether
certain conduct cannot constitutionally be punished because it is, in some sense,
‘involuntary’ or ‘occasioned by a compulsion.’ ” Id. at 533.
¶ 46 Petitioner, relying on Robinson and Powell, argues section 24-1.8(a)(1)
criminalizes an individual’s mere status of being a gang member. See 720 ILCS
5/24-1.8(a)(1) (West 2010). We find Powell instructive and find section 24-
1.8(a)(1) constitutional because it includes an actus reus—a gang member’s public
possession of a firearm or firearm ammunition without a valid FOID card. See
Powell, 392 U.S. at 533. Section 24-1.8(a)(1) does not criminalize mere status as
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in Robinson. See Robinson, 370 U.S. at 666-67. As a result, section 24-1.8(a)(1)
comports with the cruel and unusual punishment clause and does not violate the
eighth amendment.
¶ 47 Petitioner notes the act of possessing a firearm is already criminalized under
section 24-1 and that section 24-1.8(a)(1)’s increase of the penalty is based solely
on gang membership. See 720 ILCS 5/24-1, 24-1.8(a)(1) (West 2010). The State
contends the legislature may properly determine certain criminal acts warrant a
greater penalty when committed by offenders with particular statuses. Given our
conclusions regarding the statutory definition of gang member and the kind of
offender the statute was intended to reach, we agree with the State. Section 24-
1.8(a)(1) and (b) provide a greater penalty for an active gang member’s public
possession of a firearm without a FOID card because the legislature determined it
was an effective deterrent aimed at addressing the serious problem of gang violence
in public areas. See 96th Ill. Gen. Assem., House Proceedings, Oct. 15, 2009, at 69-
70. The legislature is free to do this under the eighth amendment. See Spencer v.
Texas, 385 U.S. 554, 559 (1967) (noting the Court’s history of sustaining enhanced-
sentence statutes and other recidivist statutes); Rummel v. Estelle, 445 U.S. 263,
284 (1980) (upholding a statute imposing a life sentence on a defendant due to his
criminal history as constitutional under the eighth and fourteenth amendments).
¶ 48 Petitioner further argues section 24-1.8(a)(1) is unconstitutional because it
criminalizes the involuntary status of gang membership, just as the statute struck
down in Robinson criminalized the involuntary status of drug addiction. See
Robinson, 370 U.S. 660. Petitioner argues some gang members are forced to join
gangs for protection and self-preservation and that their membership is thus
involuntary. In furtherance of his involuntary membership argument, petitioner
urges this court to examine another category of status offenses found
unconstitutional under the eighth amendment—homelessness or vagrancy laws.
¶ 49 Petitioner relies on Pottinger v. City of Miami, 810 F. Supp. 1551, 1562 (S.D.
Fla. 1992), where the district court noted courts had overturned vagrancy laws
because they punish status or condition, but in deciding such cases, the
voluntariness of the status or condition was the decisive factor. Because petitioner
raises a facial constitutional challenge, he must show gang membership is an
involuntary condition in all cases to show section 24-1.8(a)(1) is facially
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unconstitutional. See 720 ILCS 5/24-1.8(a)(1) (West 2010). Petitioner fails to
allege or show all gang membership is involuntarily, as he notes some gang
members join a gang for social reasons or to reap the benefits of gang protection.
Therefore, his facial challenge fails. Thompson, 2015 IL 118151, ¶ 36 (noting a
facial challenge requires showing the statute is unconstitutional under any set of
facts).
¶ 50 Petitioner’s facial challenge fails for a second reason. Petitioner’s argument
focuses on the first definition of a streetgang member—one who is actually and in
fact belongs to a gang. 740 ILCS 147/10 (West 2010). Petitioner acknowledges the
second definition of a streetgang member may, in some cases, fulfill the requisite
actus reus for purposes of the eighth amendment. This acknowledgement ends
petitioner’s facial constitutional challenge. Thompson, 2015 IL 118151, ¶ 36.
However, petitioner argues the statute is still facially unconstitutional because it
does not generally require all gang members to have engaged in criminal gang-
related conduct before their sentences are enhanced. Citing City of Los Angeles v.
Patel, 576 U.S. 409, 418 (2015), petitioner argues this court can review this as a
facial challenge because “only applications of the statute in which it actually
authorizes or prohibits conduct” should be considered. We find Patel inapplicable.
¶ 51 Patel involved the facial constitutional challenge to a statute granting police
officers access to hotel records on their guests without a warrant. Id. The petitioner
argued the facial challenge failed because the warrantless searches authorized under
the statute would never be unconstitutional in all applications. Id. at 417. In some
situations, warrantless searches would be allowed by consent, exigent
circumstances, and court-ordered warrants. Id. at 417-18. The United States
Supreme Court rejected this argument, noting while the person raising a
constitutional challenge had to establish a law is unconstitutional in all its
applications, when assessing whether a statute meets this standard, courts consider
only applications of the statute in which it actually authorizes or prohibits conduct.
Id. at 418. In situations where there was consent to search, exigent circumstances,
or court-ordered warrants, the statute was not implicated. Id. at 418-19. As a result,
these exceptions to the statute were irrelevant because they did not involve actual
applications of the statute. Id. at 419.
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¶ 52 This is not the situation we have in the present case. Here, section 24-1.8(a)(1)
plainly applies to both definitions of a streetgang member provided under the Act
(740 ILCS 147/10 (West 2010)). The second definition is not an exception to
section 24-1.8(a)(1). The application of the second definition to section 24-
1.8(a)(1) is therefore relevant to a determination of whether the statute is
constitutional. To sustain his facial constitutional challenge, petitioner must show
section 24-1.8(a)(1) is unconstitutional when applied to both definitions of a
streetgang member. Since he acknowledges there may be situations where the
statute may be constitutionally applied to the second definition, his facial challenge
fails.
¶ 53 CONCLUSION
¶ 54 For the foregoing reasons, we find section 24-1.8(a)(1) is facially constitutional
under the eighth and fourteenth amendments to the United States Constitution. We
therefore affirm the judgment of the appellate court, which affirmed petitioner’s
conviction and sentence.
¶ 55 Affirmed.
¶ 56 JUSTICES CUNNINGHAM, ROCHFORD, and O’BRIEN took no part in the
consideration or decision of this case.
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