People v. Holmes

Docket No. 109130.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
LEONARD HOLMES, JR., Appellant.
Opinion filed April 7, 2011.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier,
and Theis concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion.
OPINION
Defendant was charged by information with two counts of
aggravated unlawful use of a weapon. Count I alleged that defendant
carried in his vehicle an “uncased, loaded, and immediately accessible”
firearm. Count II alleged defendant carried in his vehicle a firearm and
“had not been issued a currently valid Firearm Owner’s Identification
Card.” A jury, in the circuit court of Cook County, returned a general
verdict of guilty and the appellate court affirmed. No. 1–07–1490
(unpublished order under Supreme Court Rule 23). In this appeal, we
must determine whether defendant’s conviction for aggravated
unlawful use of a weapon is proper under either count charged. For
the reasons that follow, we answer that question in the negative and,
therefore, reverse the judgment of the appellate court.
Background
The record reveals the following. On May 8, 2005, defendant,
Leonard Holmes, a resident of Indiana, was stopped by Chicago
police officers for a traffic violation on 115th Street in Chicago. At
that time, a gun was recovered from a backseat armrest in his car. This
armrest separated the two back seats and contained a storage
compartment that closed with a latch. The compartment could be
folded up into the seat or left in a down position. At the time the gun
was recovered, the compartment was closed and latched.
On May 18, 2005, a two-count information was filed charging
defendant with aggravated unlawful use of a weapon. The first count
alleged that defendant carried an “uncased, loaded, and immediately
accessible” firearm in his vehicle in violation of section
24–1.6(a)(1)(3)(A) of the Criminal Code of 1961 (720 ILCS
5/24–1.6(a)(1)(3)(A) (West 2004)). The second count alleged
defendant carried in his vehicle a firearm “at a time when he was not
on his own land or in his own abode or fixed place of business” and
had “not been issued a currently valid Firearm Owner’s Identification
Card” in violation of section 24–1.6(a)(1)(3)(C) (720 ILCS
5/24–1.6(a)(1)(3)(C) (West 2004)).
Prior to trial, defendant filed a motion to suppress. At the hearing
on defendant’s motion, Officer Eric Gonzalez testified that he stopped
defendant for a lane violation. At that time, Gonzalez was riding in a
squad car with his two partners, John McCarthy and Wilfredo Lapitan.
Gonzalez testified he approached the driver’s side door and observed
an open bottle of beer on the backseat passenger side floor. After
defendant provided his license and insurance information, Gonzalez
ordered defendant out of the car. According to Gonzalez, as
defendant exited, he spontaneously commented, “Hold on, hold on.
I’m just letting you know now I have a gun in the car.” Gonzalez then
took defendant into custody.
Officer Gonzalez testified that defendant told the police officers
where the gun was located. Officer McCarthy retrieved the gun,
unloaded it, and then handed it to Gonzalez. According to Gonzalez,
the armrest was in the down position, but not open. He further
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testified that defendant’s driver’s seat was “leaned back very far” and
that defendant would have access to the armrest.
Defendant testified at the suppression hearing that the police
officers stopped him, came up to the car, told him to turn the car off
and get out, and advised him he had been stopped because of his
tinted windows. Defendant and a friend who was riding with him were
ordered out of the car. According to defendant, it was not until he was
standing near the rear of his car that the police noticed the beer.
Defendant testified that the beer was not open. Defendant further
denied telling the police there was a gun in the car and, according to
defendant, he never gave them consent to search his car.
Defendant admitted at the suppression hearing there was a gun in
the backseat armrest. However, he testified that the armrest was
folded up, not in the down position, as Officer Gonzalez stated.
Defendant further testified the gun was not loaded. Rather, the police
found the clip in his pants pocket after he had been arrested.
On cross-examination, defendant denied that his seat was reclined
all the way back, but stated it was reclined somewhat due to his
height–6 foot, 2 inches.
Officer Wilfredo Lapitan’s testimony essentially confirmed Officer
Gonzalez’s testimony except that he provided no testimony as to the
position of the armrest or whether the gun was loaded or not. The trial
court denied defendant’s motion to suppress and the matter proceeded
to trial.
At trial, Officer Gonzalez testified that after stopping defendant,
he and Officer McCarthy approached defendant’s car, spoke with
defendant, and asked for his license and insurance information, which
defendant provided. Gonzalez said that, as he was speaking with
defendant, he noticed an open bottle of beer in the backseat of the car.
He then asked defendant to exit the car. At that time, according to
Gonzalez, defendant made his spontaneous statement about the gun.
Gonzalez stated that he immediately cuffed defendant, patted him
down, and directed him to the rear of the car. Defendant told the
officer he had an Indiana permit for the gun, which he did not have
with him. Defendant then told Gonzalez where the gun was. At that
time, McCarthy asked defendant’s passenger to step out of the car.
Gonzalez and McCarthy got into the car and McCarthy retrieved the
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gun, unloaded it, and handed it to Gonzalez. Defendant was then
placed under arrest.
On cross-examination, Officer Gonzalez admitted that all of
defendant’s windows were tinted. He stated he observed the beer
bottle when he was standing outside the driver’s side door. He stated
the bottle was not inventoried.
After Officer Lapitan testified in accord with his testimony at the
suppression hearing, the State rested.
Twice during the presentation of the State’s case, defense counsel
sought leave to offer defendant’s Indiana handgun permit into
evidence. Counsel argued this permit was a basis for dismissal of the
charge of aggravated unlawful use of a weapon under count II
because of a provision contained in the Firearm Owners Identification
Card Act (FOID Card Act). 430 ILCS 65/2(b)(10) (West 2004).
Under the FOID Card Act, an out-of-state resident who possesses a
valid permit or license from his state is not required to obtain a FOID
card. It was defendant’s position that, because he possessed a valid
permit from Indiana, he could not be prosecuted for aggravated
unlawful use of a weapon. The trial court concluded, as a matter of
law, that defendant’s possession of an Indiana permit was not a
substitute for a FOID card and, therefore, it was irrelevant.
Accordingly, the trial court ruled that defense counsel could not enter
defendant’s permit into evidence.
Defendant then testified on his own behalf. He stated that, on the
day of his arrest, it was Mother’s Day, and he had been out to dinner
with his wife and in-laws. After he dropped his wife off at home, he
left Indiana with a friend to drop a gift off at his mother’s home in
Chicago. While returning home to Indiana, he was stopped by the
Chicago police.
Defendant testified that Officer Gonzalez approached his car on
the driver’s side and immediately ordered him out of the car. Gonzalez
did not ask for defendant’s license or insurance. When defendant got
out of the car, he was told to go to the back of his vehicle. Before
doing so, defendant told the police there was a gun in the car for
which he had a permit. At that time, according to defendant, Gonzalez
yelled, “He’s got a gun.” Gonzalez grabbed defendant’s belt buckle,
handcuffed him, walked him to the rear of the car, and turned him
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over to Officer Lapitan, who placed defendant in the squad car.
Defendant further testified that he had just purchased the gun about
three days before and that it was not loaded and that the clip was in
his pocket.
According to defendant, Officers Gonzalez and McCarthy
searched for the gun, could not find it and came back to him and
asked where it was. Defendant told them it was in the back armrest.
The police then retrieved the gun, came back to defendant, and asked
where the clip was. Defendant told them it was in his pocket. The
officers then recovered the clip from his pocket.
On cross-examination, defendant stated he put the gun in his car
over the weekend because he planned to go to the range to learn how
to shoot it since he had not yet fired it. He forgot the gun was in his
car and only remembered after he left his house. When he
remembered, he pulled over, unloaded the gun, and put it in the back
armrest.
In rebuttal, the State called Officer McCarthy, who testified to
confirm the other officers’ version of the events.
During the jury instruction conference, defense counsel requested
an instruction on the lesser-included offense of misdemeanor unlawful
use of a weapon. See 720 ILCS 5/24–1 (West 2004). The trial court
denied this request. The trial court also denied defendant’s request to
instruct the jury that, because he was a nonresident who was licensed
to possess a firearm in his own state, he could lawfully carry a firearm
in his vehicle.
The jury was given a single form listing both counts alleged
against defendant. The jury returned a general verdict finding
defendant guilty of aggravated unlawful use of a weapon. Defendant
was later sentenced to 30 days in jail, followed by 18 months of
probation.
The appellate court affirmed. No. 1–07–1490 (unpublished order
under Supreme Court Rule 23). The appellate court first held that the
trial court did not err in refusing the lesser-included jury instruction on
misdemeanor unlawful use of a weapon. The court found that the jury
could not rationally acquit defendant of the greater offense
(aggravated unlawful use of a weapon) but find him guilty of the lesser
offense (misdemeanor unlawful use of a weapon). The court then
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found that the exception contained in section 2(b)(10) of the FOID
Card Act for a licensed out-of-state resident could not be read into the
unlawful use of weapons statute.
We granted the defendant’s petition for leave to appeal. Ill. S. Ct.
R. 315 (eff. Feb. 26, 2010).
Analysis
Prior to addressing the merits of this appeal, we consider the
State’s motion, taken with the case, seeking to strike portions of
defendant’s reply brief. The State argues that defendant, for the first
time in his reply brief, raised an alterative theory that the FOID Card
Act does not provide reasonable notice that an out-of-state permit or
license does not exempt one from prosecution for aggravated unlawful
use of a weapon. The State contends that raising a new argument in
a reply brief violates Supreme Court Rules 341(h)(7) and 341(j).
Defendant maintains, however, that this argument is not new, but is
in response to contentions made by the State in its brief.
Because we resolve this case on the grounds raised by defendant
in his original brief, we do not consider the argument raised in the
reply brief and need not decide whether it is made in response to an
argument made by the State. Therefore, the State’s motion to strike
defendant’s reply brief is denied as moot.
Count I–Section 24–1.6(a)(1)(3)(A)
Count I of the information charged defendant with aggravated
unlawful use of a weapon based on carrying an “uncased, loaded and
immediately accessible” firearm in his vehicle in violation of section
24–1.6(a)(1)(3)(A) of the Criminal Code of 1961 (720 ILCS
5/24–1.6(a)(1)(3)(A) (West 2004)). Section 24–1.6(a)(1)(3)(A)
provides:
“(a) A person commits the offense of aggravated unlawful
use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any
vehicle or concealed on or about his or her person except
when on his or her land or in his or her abode or fixed
place of business any pistol, revolver, stun gun or taser or
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other firearm; [and]
***
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and
immediately accessible at the time of the offense[.]”
720 ILCS 5/24–1.6(a)(1)(3)(A) (West 2004).
Thus, to prove aggravated unlawful use of a weapon under this
section, there must be evidence that the firearm was (1) uncased, (2)
loaded, and (3) immediately accessible. Defendant contends that the
State failed to prove beyond a reasonable doubt that he possessed an
uncased gun where the uncontested evidence established that the gun
was fully encased inside a closed, latched compartment.1 Accordingly,
defendant maintains that his conviction cannot be sustained under
count I.
In Diggins, we were called upon to interpret the meaning of the
word “case” as used in the unlawful use of weapon statute, although
with reference to the exceptions contained in paragraph (c) of section
24–1.6.2 Looking to the plain and ordinary definition of “case”
1
Defendant acknowledges he did not raise this uncased argument before
the appellate court or in his petition for leave to appeal. However, he
maintains this is a challenge to the sufficiency of the evidence, based on our
decision in People v. Diggins, 235 Ill. 2d 48 (2009), and that this claim is
not subject to forfeiture. The State informed this court at oral argument that
it was not advancing any forfeiture argument since Diggins had not been
decided when defendant filed his petition for leave to appeal and because
defendant’s assertion that the gun was enclosed in a case presents a challenge
to the sufficiency of the evidence.
2
This paragraph provides:
“(c) This Section does not apply to or affect the transportation
or possession of weapons that:
(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.”
720 ILCS 5/24–1.6(c) (West 2004).
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(Diggins, 235 Ill. 2d at 55), we concluded that the center console of
a vehicle is a case (id. at 58). As such, the defendant’s conduct in
Diggins, storing two unloaded handguns in the center console, fell
within the exception outlined in paragraph (c). Accordingly, we found
that the trial court erred in refusing the defendant’s proposed jury
instruction based on that section and erred in refusing to permit the
defendant to argue the console was a case in his closing argument. Id.
at 58. We remanded the cause for a new trial because a factual
question remained as to whether the handguns were “enclosed” since
there was conflicting evidence on whether the console was closed or
ajar. Id. at 58.
In this case, the gun was retrieved from the back armrest, which
Officer Gonzalez himself described as a “compartment.” As with the
front seat console in Diggins, we conclude that this backseat armrest,
which contained a cover and latch, falls within the meaning of a case
under section 24–1.6. Moreover, the evidence is undisputed that the
armrest was closed and latched. As such, the gun was enclosed in a
case.
Because the firearm was enclosed in a case, the State failed to
prove every element of the offense of aggravated unlawful use of a
weapon as outlined in section 24–1.6(a)(1)(3)(A). Accordingly, a
conviction for aggravated unlawful use of a weapon, as charged in
count I, cannot stand.
Although defendant’s conviction for aggravated unlawful use of
a weapon cannot stand under count I, our inquiry does not end here.
The jury returned a general verdict of guilty. It is well established in
Illinois that where an indictment contains several counts arising out of
a single transaction and a general verdict is returned, the effect is that
the defendant is guilty as charged in each count to which the proof is
applicable. People v. Cardona, 158 Ill. 2d 403, 411 (1994). See also
Hiner v. People, 34 Ill. 297, 304 (1864) (a rule of “uniform
application” is that a general verdict may be sustained, although some
counts are faulty, if there be “one good count”). Thus, we must
determine whether defendant’s conviction may be sustained under
count II.
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Count II–Section 24–1.6(a)(1)(3)(C)
Count II of the State’s information charged defendant with
aggravated unlawful use of a weapon based on carrying a firearm in
his vehicle “at a time when he was not on his own land or in his own
abode or fixed place of business” and had “not been issued a currently
valid Firearm Owner’s Identification Card” in violation of section
24–1.6(a)(1)(3)(C). Section 24–1.6(a)(1)(3)(C) provides:
“(a) A person commits the offense of aggravated unlawful
use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any
vehicle or concealed on or about his or her person except
when on his or her land or in his or her abode or fixed
place of business any pistol, revolver, stun gun or taser or
other firearm; [and]
***
(3) One of the following factors is present:
***
(C) the person possessing the firearm has not been
issued a currently valid Firearm Owner’s Identification
Card[.]” 720 ILCS 5/24–1.6(a)(1)(3)(C) (West 2004).
Defendant contends that his conviction cannot be sustained under
count II because, as an Indiana resident with a valid Indiana gun
permit, he was exempt from the requirement of having a FOID card.
In support of his argument, defendant points to section 2 of the FOID
Card Act, which provides, in pertinent part:
“(a)(1) No person may acquire or possess any firearm
within this State without having in his or her possession a
Firearm Owner’s Identification Card previously issued in his
or her name by the Department of State Police under the
provisions of this Act.
***
(b) The provisions of this Section regarding the possession
of firearms and firearm ammunition do not apply to:
***
(10) Nonresidents who are currently licensed or
registered to possess a firearm in their resident state[.]”
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430 ILCS 65/2 (West 2004).
The appellate court rejected this contention. According to the
appellate court, there is “no authority suggesting that the exceptions
in one [statute] are to be read into the other.” We disagree.
Section 24–1.6(a)(1)(3)(C) of the unlawful use of a weapon
statute states that the absence of a FOID card is an aggravating factor.
In order to determine what a FOID card is and, therefore, whether
section 24–1.6(a)(1)(3)(C) applies, reference must be made to the
FOID Card Act. Thus, the FOID Card Act gives meaning to section
24–1.6(a)(1)(3)(C), and the statutes, by their own terms, must be read
together.
We agree with defendant that the two statutes must be read
together in order to avoid absurd results. Reading the statutes
separately, as the appellate court did, would mean that an out-of-state
resident who transports a firearm into Illinois when the firearm is
legally registered in his home state would be exempt from
misdemeanor prosecution under the FOID Card Act but that the same
conduct would subject such individual to felony prosecution under
section 24–1.6(a)(1)(3)(C). This cannot be what the legislature
intended. Reading these statutes together, as we must, we find that the
exception identified in section 2(b)(10) of the FOID Card Act can be
applied to the unlawful use of weapons statute and, therefore, a valid
permit or license from another state can substitute for the FOID card
requirement in section 24–1.6. Accordingly, we hold that the
exception contained in section 2(b)(10) must be incorporated in the
unlawful use of weapons act.
The State argues that, even if the exception contained in section
2(b)(10) applies to the unlawful use of weapons statute, defendant
cannot avail himself of that exception because he did not have his
Indiana permit in his possession at the time of his arrest. According to
the State, this is a requirement in order to invoke the exception. We
disagree.
The unlawful use of a weapon statute provides that it is an
aggravating factor where the defendant “has not been issued a
currently valid FOID card.” The language of the unlawful use of a
weapons statute only contemplates that a FOID card has been issued
to that individual. There is no requirement in the unlawful use of
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weapons statute that an individual have his or her FOID card or other
similar permit in his or her possession. Accordingly, we reject the
State’s argument.
Based on our holding that the exception contained in section
2(b)(10) of the FOID Card Act applies to the unlawful use of weapons
statute, we find that the trial court erred when it concluded that
defendant’s Indiana permit was irrelevant and prevented defendant
from presenting this relevant evidence. If defendant had been able to
produce evidence that he had been issued a valid Indiana permit, a
conviction on count II would not have been proper since the
aggravating factor contained in section 24–1.6(a)(1)(3)(C) would not
be present. As such, the trial court’s refusal to allow defendant to
introduce the permit into evidence was prejudicial error. Accordingly,
a conviction for aggravated unlawful use of a weapon, as charged in
count II, cannot stand.
Misdemeanor Unlawful Use of a Weapon
The State maintains that, if defendant’s convictions for aggravated
unlawful use of weapon cannot stand, then this court should enter
judgment on the lesser-included offense of unlawful use of a weapon.
See, e.g., People v. Rowell, 229 Ill. 2d 82, 97 (2008) (“ ‘state and
federal appellate courts have long exercised the power to reverse a
conviction while at the same time ordering the entry of a judgment on
a lesser-included offense’ ”) (quoting People v. Knaff, 196 Ill. 2d 460,
477-78 (2001)).
The unlawful use of a weapon statute provides:
“(a) A person commits the offense of unlawful use of
weapons when he knowingly:
***
(4) Carries or possesses in any vehicle *** 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
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(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[.]” 720 ILCS
5/24–1(a)(4) (West 2004).
According to the State, it was established beyond a reasonable
doubt at trial that the gun found in defendant’s car was immediately
accessible and that it was loaded. Therefore, in the State’s view, the
conditions listed in sections 24–1(a)(4)(ii) and 24–1(a)(4)(iii) of the
unlawful use of a weapon statute are inapplicable and this court may
properly reduce defendant’s conviction to misdemeanor unlawful use
of a weapon. We disagree.
Defendant was charged with two counts of aggravated unlawful
use of a weapon. Count I was based on the aggravating factor that the
“firearm possessed was uncased, loaded and immediately accessible at
the time of the offense” (720 ILCS 5/24–1.6(a)(1)(3)(A) (West
2004)). Count II was based on the aggravating factor that “the person
possessing the firearm has not been issued a currently valid Firearm
Owner’s Identification Card” (720 ILCS 5/24–1.6(a)(1)(3)(C) (West
2004)). The jury returned a general verdict of guilty. Because the jury
returned a general verdict, we cannot say that the jury unanimously
concluded, as alleged in count I, that the gun was loaded and that it
was immediately accessible. The jury may have based its verdict on a
unanimous determination that defendant lacked a FOID card, the
aggravating factor alleged in count II, or the verdict may have been
based on some members agreeing with count I and some with count
II. See, e.g., People v. Smith, 233 Ill. 2d 1, 27 (2009) (holding that
“when a defendant is charged with murder in multiple counts based on
different theories, a general verdict finding the defendant guilty does
not mean that the jury unanimously agreed that any one of the alleged
means of committing the offense was proven beyond a reasonable
doubt. It simply means that the jury unanimously agreed that the
offense of murder was proven beyond a reasonable doubt. That
determination can be based on any combination of findings with
respect to the separate theories charged.”). Further, the testimony at
trial conflicted as to whether the gun was loaded or whether it was
immediately accessible to defendant. Accordingly, on this record, we
cannot say that it was proven at trial beyond a reasonable doubt that
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the gun was loaded and that it was immediately accessible. Thus, we
cannot reduce defendant’s conviction to misdemeanor unlawful use of
a weapon.
Conclusion
For the foregoing reasons, we reverse the judgments of the
appellate court and circuit court and remand this cause to the circuit
court for proceedings consistent with this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
JUSTICE GARMAN, specially concurring:
I join the majority’s decision to reverse the appellate court and its
specific holdings in this case. However, I write separately to explain
why I believe the majority correctly held that the exception contained
in the FOID Card Act for nonresidents whose firearm is licensed in his
or her home state should be read into the aggravated unlawful use of
a weapon statute.
The principles we follow when approaching a question of statutory
construction are familiar:
“The primary rule of statutory construction is to ascertain and
give effect to the intention of the legislature. The best
evidence of legislative intent is the language used in the statute
itself, which must be given its plain and ordinary meaning. The
statute should be evaluated as a whole, with each provision
construed in connection with every other section.” Cinkus v.
Village of Stickney Municipal Officers Electoral Board, 228
Ill. 2d 200, 216-17 (2008).
It is only where the meaning of a statute is not plain on its face that we
resort to other tools of statutory construction. Id. at 217. In this case,
the aggravated unlawful use of a weapon (AUUW) statute includes
two provisions which reference a firearm owner’s identification card.
720 ILCS 5/24–1.6(a)(1)(3)(C), (c) (West 2008). To determine what
a FOID card is and, therefore, whether either of these provisions
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applies, reference must be made to the FOID Card Act. When two
statutes relate to the same subject, we presume that the legislature
intended them to be harmonious and will “construe them with
reference to each other, so as to give effect to all of the provisions of
each if possible.” Cinkus, 228 Ill. 2d at 218. We further presume “that
statutes which relate to one subject are governed by one spirit and a
single policy.” People v. Maya, 105 Ill. 2d 281, 286 (1985).
Therefore, the FOID Card Act must inform our understanding of the
FOID card requirement as laid out in the AUUW statute.
The AUUW statute makes two references to the FOID card. First,
it is an aggravating factor when the person possessing a firearm has
not been issued a currently valid FOID card. 720 ILCS
5/24–1.6(a)(1)(3)(C) (West 2008). Second, the AUUW statute
exempts the transportation or possession of weapons that “are
unloaded and enclosed in a case, *** by a person who has been issued
a currently valid Firearm Owner’s Identification Card.” 720 ILCS
5/24–1.6(c)(iii) (West 2008). Reading the AUUW statute as the State
suggests, to require an Illinois-issued firearm owner’s identification
card, would mean that a nonresident who has not obtained an Illinois
FOID card would be subject to prosecution for the felony of AUUW
even when carrying a firearm that is unloaded and enclosed in a case.
However, this is contrary to the clearly articulated legislative intent
expressed in the FOID Card Act.
The FOID Card Act requires an individual to have in his or her
possession a FOID card in order to acquire or possess any firearm,
stun gun, taser, or firearm ammunition. 430 ILCS 65/2(a)(1), (a)(2)
(West 2008). The Act makes 16 enumerated exceptions to this
requirement (430 ILCS 65/2(b)(1) through (b)(16) (West 2008)), in
addition to a broad exception for law enforcement officials of any
jurisdiction (430 ILCS 65/2(c) (West 2008)). Many of the exceptions
are specifically for nonresidents. 430 ILCS 65/2(b)(5), (b)(7), (b)(8),
(b)(9), (b)(10), (b)(13) (West 2008). Three of those exceptions list
specific situations where the nonresidents do not require a FOID card,
and then note that “at all other times and in all other places these
persons must have their firearms unloaded and enclosed in a case.”
430 ILCS 65/2(a)(5) (nonresident hunters during hunting season with
valid nonresident hunting licenses and while in an area where hunting
is permitted), (a)(8) (nonresidents at a firearm showing or display)
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(West 2008); see also 430 ILCS 65/2(a)(7) (West 2008) (nonresidents
on a firing or shooting range). Another exception exempts any
nonresident whose firearm is “unloaded and enclosed in a case”
generally. 430 ILCS 65/2(a)(9) (West 2008). The plain language of
these exceptions indicates a legislative intent to allow nonresidents to
possess a firearm in Illinois whenever the weapon is unloaded and
enclosed in a case without requiring them to have an Illinois FOID
card.
As the majority points out, if we were to strictly apply the FOID
card requirement in the AUUW statute, as the State suggests,
nonresidents whose weapons are unloaded and enclosed in a case but
who do not have an Illinois FOID card would be guilty of a felony
under section 24–1.6(a)(1)(3)(C), but not of the misdemeanor of
possession under the FOID Card Act. Further, the positive language
instructing nonresidents to keep their firearms unloaded and enclosed
in a case “at all other times and in all other places” would be rendered
meaningless. Thus, to give full effect to the legislature’s express intent
and to avoid absurd results, I agree with the majority’s conclusion that
the statutes must be read together and that the exception contained in
the FOID Card Act for nonresidents licensed to carry a gun in their
home state must be read into the AUUW statute.
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