People v. Martin , 2018 IL App (1st) 152249 ( 2018 )

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Appellate Court Date: 2018.10.23
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People v. Martin, 2018 IL App (1st) 152249
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ERICK MARTIN, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-15-2249
Filed June 22, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 13-CR-9003; the
Review Hon. Thomas M. Davy, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Jonathan Yeasting, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and John E. Nowak, Assistant State’s Attorneys, of counsel), for the
People.
Panel PRESIDING JUSTICE REYES delivered the judgment of the court,
with opinion.
Justices Lampkin and Rochford concurred in the judgment and
opinion.
OPINION
¶1 Following a bench trial, defendant Erick Martin was convicted of (1) armed habitual
criminal, (2) unlawful use of a weapon by a felon, and (3) six counts of aggravated unlawful
use of a weapon. These convictions were merged into the single offense of armed habitual
criminal, and the trial court imposed the minimum six-year term of imprisonment. Defendant’s
sole contention on appeal is that the armed habitual criminal statute is unconstitutional as
applied to him, where his underlying felony offenses were nonviolent and more than 20 years
old. For the reasons that follow, we affirm the judgment of the circuit court.
¶2 BACKGROUND
¶3 Defendant was charged with multiple offenses including armed habitual criminal (720
ILCS 5/24-1.7(a) (West 2012)), unlawful use of a weapon by a felon (id. § 24-1.1(a)) and six
counts of aggravated unlawful use of a weapon (id. §§ 24-1.6(a)(1), (3)(A), (C); 24-1.6(a)(2),
(3)(C)) based, in part, on his possession of a .357 blue steel revolver without a firearm owner’s
identification (FOID) card. Defendant waived his right to a jury and elected to proceed by way
of a bench trial.
¶4 At trial, two officers, Steve Jarosz and Ryan Harty of the Chicago Police Department,
testified regarding their interaction with defendant and their recovery of a blue steel .357
revolver on April 24, 2013. According to Jarosz, while on patrol they observed defendant’s
vehicle turn into an alley without using a turn signal. Jarosz activated the siren and followed
the vehicle into the alley, but the vehicle did not stop. The vehicle continued to travel through
the alley, during which time Jarosz observed the driver open the driver’s side door and drop a
handgun onto the ground. Harty also observed the driver drop an object outside of the driver’s
side door, but he was unable to discern what the object was. The vehicle later stopped at the
end of the alley, and defendant was removed from the driver’s side of the vehicle. Jarosz
recovered the handgun from where he had observed it fall. The handgun was loaded with six
live rounds of ammunition. Jarosz further testified that defendant did not have a FOID card. A
certified copy of a firearm service bureau report was entered into evidence which revealed that
defendant did not possess a FOID card.
¶5 Certified copies of defendant’s two prior felony convictions—a 1989 manufacture/
delivery of a controlled substance offense and a 1992 unlawful use of a weapon by a felon
offense—were entered into the record without objection.
¶6 Defendant testified that he was not in possession of a firearm that evening nor did he open
his vehicle door while driving through the alley. According to defendant, after he was stopped
by the officers he waited for 30 minutes while one of the officers walked down the alley and
returned with a handgun and asked if it was his weapon. Defendant informed the officers at that
time that it was not his weapon.
¶7 After considering the evidence presented, the trial court indicated it found the officers to be
credible and thus found defendant guilty on all counts. The counts were then merged into a
single armed habitual criminal conviction. At the sentencing hearing, defendant presented
evidence in mitigation that he was employed, participated in church, volunteered as a disc
jockey for neighborhood events, and had no criminal convictions since 1992. The trial court
also reviewed defendant’s presentence investigation report. This report indicated that
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defendant had been convicted of five felonies between 1989 and 1992. However, after 1992
defendant earned a vending machine operator’s license, was employed at a mailing company,
and then for the last 25 years worked as an independent professional disc jockey earning $3200
a week. The presentence investigation report further indicated that defendant had a “great”
relationship with his family and provided financial support to his 18-year-old son. After
hearing evidence offered in aggravation and mitigation, the trial court sentenced defendant to
the minimum six years’ imprisonment for the Class X offense of armed habitual criminal. This
appeal followed.
¶8 ANALYSIS
¶9 Defendant’s sole contention on appeal is that the Illinois armed habitual criminal statute is
unconstitutional as applied to him because the statute’s application to him was triggered by
nonviolent offenses that were more than 20 years old. Defendant asserts that the statute
violates his second amendment right to possess a firearm. U.S. Const., amend. II (“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.”).1 Defendant does not challenge the sufficiency of the
evidence.
¶ 10 In response, the State maintains that defendant’s as-applied challenge fails both
procedurally and substantively. The State asserts that the challenge fails procedurally because
he did not raise the issue in the trial court and therefore there was no evidentiary hearing and no
findings of fact regarding his as-applied challenge. Substantively, the State maintains that
defendant’s as-applied challenge fails because he has not established that his conduct was
entitled to second amendment protection where he chose to possess a firearm knowing that his
prior felony convictions had not been vacated or otherwise set aside. The State maintains
defendant was not a “law abiding, responsible citizen” protected by the second amendment.
¶ 11 As relevant here, an individual commits the offense of armed habitual criminal when he or
she
“receives, sells, possesses, or transfers any firearm after having been convicted a total
of 2 or more times of any combination of the following offenses:
***
(2) unlawful use of a weapon by a felon; ***
(3) any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a)
(West 2012).
An as-applied challenge arises from a defendant’s contention that the statute or law as it is
applied to his particular situation is unconstitutional. People v. Campbell, 2014 IL App (1st)
112926, ¶ 57. The facts that surround a defendant’s particular circumstances are relevant to an
as-applied challenge. Id. We review de novo whether the armed habitual criminal statute under
section 24-1.7 of the Criminal Code of 2012 (720 ILCS 5/1-1 et seq. (West 2012)), as applied
to the defendant, was unconstitutional under the second amendment of the United States
1
During oral argument, defense counsel declined to argue an as-applied challenge under our Illinois
Constitution, indicating the main thrust of his argument was in regards to the federal second
amendment.
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Constitution. See People v. Robinson, 2011 IL App (1st) 100078, ¶ 12; see also U.S. Const.,
amend. II.
¶ 12 We first address the State’s contention that defendant’s as-applied challenge fails
procedurally due to a lack of an evidentiary hearing below. We decline to find the issue
procedurally defaulted. We recognize that in People v. McFadden, 2016 IL 117424, ¶ 36, and
People v. Mosley, 2015 IL 115872, ¶ 47, our supreme court declined to consider as-applied
challenges that were raised for the first time on appeal. In so concluding, the Mosley court
stated that
“A court is not capable of making an as applied determination of unconstitutionality
when there has been no evidentiary hearing and no findings of fact. [Citation.] Without
an evidentiary record, any finding that a statute is unconstitutional as applied is
premature. [Citation.] Nor would it be appropriate for this court, sua sponte, to
consider whether [a] statute has been constitutionally applied since we, as a reviewing
court, are not arbiters of the facts.” (Internal quotation marks omitted.) Id.
Our supreme court, however, has also held that where the evidentiary record developed below
is sufficient, the constitutionality of a statute may be challenged on appeal. People v. Holman,
2017 IL 120655, ¶ 32; see People v. Gray, 2017 IL 120958, ¶¶ 55-67 (considering an
as-applied constitutional challenge raised for the first time on appeal); Robinson, 2011 IL App
(1st) 100078, ¶¶ 12, 17, 29 (considering facial and as-applied constitutional challenges that
were raised for the first time on appeal).
¶ 13 On appeal, defendant’s as-applied challenge is based on facts already in the record, i.e., the
age and nature of his felony convictions and his alleged rehabilitation since his last conviction.
In the prosecution of defendant’s current offenses, evidence was presented at trial as to
defendant’s possession of the firearm and his two prior felony convictions. Other relevant
facts, such as defendant’s age at the time of his prior felonies and his lack of criminal history
after 1992 as well as his employment history, were presented during the sentencing hearing
and in the court-ordered presentence investigation report. We fail to see what further facts
would be necessary to adduce at an evidentiary hearing, and notably, the State fails to identify
any additional facts not in the record that would preclude our review of this issue. Accordingly,
we conclude that defendant’s as-applied challenge to the armed habitual criminal statute is
reviewable on appeal. See, e.g., Gray, 2017 IL 120958, ¶¶ 55-67; Robinson, 2011 IL App (1st)
100078, ¶¶ 12, 17, 29.
¶ 14 Turning to the merits, while our supreme court has not expressly addressed the appropriate
analysis of an as-applied challenge to the armed habitual criminal statute in circumstances such
as this, we find the recent decision of People v. Chairez, 2018 IL 121417, to be instructive. In
that case, our supreme court considered the constitutionality of section 24-1(a)(4), (c)(1.5) of
the unlawful use of a weapon statute (UUW) (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. Chairez, 2018 IL 121417, ¶ 1. The defendant raised a facial
challenge to this subsection of the UUW statute, arguing that an individual who is barred from
carrying a firearm within 1000 feet of many locations listed in section 24-1(c)(1.5) of the
UUW statute is essentially barred from carrying a firearm in public, and it is thus more closely
akin to a blanket prohibition than a restriction on carrying a weapon in certain sensitive places.
Id. ¶ 6. In examining the facial constitutionality of the statute, our supreme court set forth a
two-part test:
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“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.’ [Citation.] 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. [Citation.] 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. [Citation.]” Id. ¶ 21.
Accordingly, we first turn to consider whether the armed habitual criminal statute under these
circumstances imposes a burden on conduct that was historically understood to be within the
scope of the second amendment’s protection at the time of ratification. Id. In other words, we
examine whether the offense of armed habitual criminal as applied to defendant
“impermissibly encroaches on conduct at the core of the second amendment.” Id. ¶ 26.
¶ 15 In regard to the first step, defendant asserts that at the time of ratification of the second
amendment there were no regulations prohibiting felons, particularly nonviolent ones, from
possessing firearms and maintains that such regulations were not in existence until 150 years
after ratification. With this in mind, defendant, citing District of Columbia v. Heller, 554 U.S.
570, 635 (2008), maintains that “the mere fact that he has long-past convictions does not mean
that he is not one of Illinois’s ‘law-abiding, responsible citizens’ today.”
¶ 16 In Heller, the Supreme Court briefly discussed the historical implications of the second
amendment, observing that, “[l]ike most rights, the right secured by the Second Amendment is
not unlimited.” Id. at 626. The Court further stated that, “nothing in our opinion should be
taken to 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, or laws imposing conditions and qualifications on the commercial
sale of arms.” Id. at 626-27. The Court repeated its assurances in McDonald v. City of Chicago,
561 U.S. 742 (2010), stating, “We made it clear in Heller that our holding did not cast doubt on
such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons
and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.’ ” Id. at 786 (quoting Heller, 554 U.S. at 626-27).
¶ 17 The concept that the right to bear arms under the second amendment is not unlimited,
particularly in regards to felons, has been reiterated by our supreme court in People v. Aguilar,
2013 IL 112116, ¶ 26, People v. Burns, 2015 IL 117387, ¶ 29, McFadden, 2016 IL 117424,
¶ 35, and most recently in Chairez, 2018 IL 121417, ¶ 24. Specifically, in McFadden our
supreme court stated that, with respect to the second amendment, the unlawful use of a weapon
by a felon statute is a presumptively lawful, longstanding prohibition on the possession of
firearms. McFadden, 2016 IL 117424, ¶ 35. Moreover, in Burns, our supreme court indicated
that the legislature can constitutionally prohibit felons from carrying readily accessible
firearms outside the home. Burns, 2015 IL 117387, ¶ 29.
¶ 18 The Illinois appellate court has also held that the imposition of a felon-based firearm ban
does not fall within the scope of the second amendment. See People v. Montgomery, 2016 IL
App (1st) 142143, ¶ 17 (“Although the second amendment does not categorically exclude
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felons from its protection, this court has found that laws prohibiting felons from possessing
firearms does [not] run afoul of the second amendment.”); Campbell, 2014 IL App (1st)
112926, ¶ 60 (holding “felon-based firearm bans, like the [unlawful use of a weapon by a
felon] and [armed habitual criminal] statutes, do not impose a burden on conduct falling within
the scope of the second amendment”); People v. Garvin, 2013 IL App (1st) 113095, ¶¶ 33, 40
(considering the constitutionality of both the unlawful use of a weapon by a felon and armed
habitual criminal statutes); People v. Black, 2012 IL App (1st) 110055, ¶ 13 (holding the
armed habitual criminal statute could prohibit defendant felon from possessing a firearm in his
own home); People v. Ross, 407 Ill. App. 3d 931, 942 (2011) (holding the armed habitual
criminal statute is a constitutionally permissible restriction of the second amendment right to
bear arms). The breadth of authority supports a conclusion that dispossessing felons from
bearing arms is outside the scope of the second amendment.
¶ 19 However, our supreme court in Chairez agreed with other courts that “some level of
scrutiny” should apply even to regulations which are “presumptively lawful.” Chairez, 2018
IL 121417, ¶ 30 (citing 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), and 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.”)). Therefore, we will follow Chairez and proceed to step two of the analysis, which
requires this court to 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.” Chairez, 2018 IL 121417, ¶ 21; see Garvin, 2013 IL App (1st)
113095, ¶ 34 (holding felon-based firearm bans do not impose a burden on conduct falling
within the scope of the second amendment but also examining whether the unlawful use of a
weapon by a felon statute passed constitutional scrutiny). Since defendant raises an as-applied
challenge to the statute, our second-step analysis will include a consideration of defendant’s
particular circumstances, namely the age and nature of his prior felony convictions along with
his potential for rehabilitation. See Chairez, 2018 IL 121417, ¶ 30; Campbell, 2014 IL App
(1st) 112926, ¶ 57.
¶ 20 We, however, must first determine the appropriate level of scrutiny in this case. In Chairez,
our supreme court examined Heller and relevant Seventh Circuit cases and found that the
heightened means-end analysis involves a sliding-scale approach. Chairez, 2018 IL 121417,
¶ 35. The court explained:
“[S]tep 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. [Citation.] 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.” ’
[Citation.] The closer in proximity the restricted activity is to the core of the second
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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. [Citation.]” Id. ¶ 45.
See also Wilson v. County of Cook, 2012 IL 112026, ¶¶ 41-42.
¶ 21 To determine where on the sliding scale of intermediate scrutiny the armed habitual
criminal statute should be analyzed, we must first determine the breadth of the statute and the
severity of its burden on the second amendment. Chairez, 2018 IL 121417, ¶ 46.
¶ 22 One commits the offense of armed habitual criminal when he or she receives, sells,
possesses, or transfers any firearm after having been twice convicted of certain felonies
enumerated in the statute. 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). The core right protected
by the second amendment is the right to self-defense, inside and outside the home. See
Chairez, 2018 IL 121417, ¶ 48. As applied to defendant in this case, the armed habitual
criminal statute prohibits him from possessing a firearm, as he was a twice-convicted felon,
with prior convictions of unlawful use of a weapon by a felon and manufacture/delivery of a
controlled substance. See 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). As discussed previously,
prohibiting felons from possessing firearms falls outside the scope of the second amendment.
See Campbell, 2014 IL App (1st) 112926, ¶ 60. In addition, those individuals who can be
classified as twice-convicted felons (i.e., having two of the specific felonies as listed in the
armed habitual criminal statute) constitute a relatively narrow group in relationship to the
entire population. Therefore, because restricting felons from possessing firearms is not in close
proximity to the core of the second amendment right and a narrow group of individuals is
affected by the restriction, the intermediate scrutiny is less rigorous. See Chairez, 2018 IL
121417, ¶ 45; Wilson, 2012 IL 112026, ¶ 42 (acknowledging that “courts generally recognize
that Heller rejected rational-basis review [of second amendment claims] and requires some
form of heightened scrutiny”); see also Montgomery, 2016 IL App (1st) 142143, ¶ 18 (finding
the armed habitual criminal statute to be constitutional under either rational basis or
intermediate scrutiny); Ross, 407 Ill. App. 3d at 939 (applying intermediate scrutiny standard
in upholding the constitutionality of the armed habitual criminal statute). “To withstand
intermediate scrutiny, the legislative enactment must be substantially related to an important
governmental interest.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 308 (2008). To
survive such intermediate scrutiny, the fit between the challenged regulation and the asserted
governmental objective need only be reasonable. People v. Fields, 2014 IL App (1st) 130209,
¶ 60.
¶ 23 Applying the level of intermediate scrutiny discussed, we conclude that the restrictions of
the armed habitual criminal statute are a tight fit with its public interest justification. It is
well-settled that prohibitions on the possession of firearms by felons are a permissible
restriction on the constitutional right to bear arms. Heller, 554 U.S. at 626. The legislature
enjoys wide latitude in prescribing criminal penalties under its police power and has an
obligation to protect its citizens from known criminals. Robinson, 2011 IL App (1st) 100078,
¶ 31. Moreover, “[i]t is deeply rooted in our jurisprudence that the government inherently
possesses and may lawfully exercise ‘such power of restraint upon private rights as may be
found to be necessary and appropriate to promote the health, comfort, safety and welfare of
society and may enact prohibitions to promote the general welfare even though the prohibition
invade[s] the right of liberty or property of an individual.’ ” Ross, 407 Ill. App. 3d at 942
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(quoting Napleton, 229 Ill. 2d at 310). The armed habitual criminal statute reflects the
legitimate governmental interest in preventing the danger associated with repeat felons having
firearms. Black, 2012 IL App (1st) 110055, ¶ 13; see Ross, 407 Ill. App. 3d at 942; Garvin,
2013 IL App (1st) 113095, ¶ 40. Furthermore, the armed habitual criminal statute is not a
comprehensive ban, but rather it affects only a certain limited class of people, namely those
individuals who have been twice convicted of certain defined felonies. See 720 ILCS 5/24-1.7
(West 2012). We find the armed habitual criminal statute does not restrict activity that is at the
core of the second amendment, addresses a significant government interest, and has
restrictions closely related to that interest.
¶ 24 Defendant argues that the armed habitual criminal statute is unconstitutional as applied to
him because (1) his prior felony convictions were nonviolent and occurred over 20 years ago
and (2) he has been rehabilitated since his last felony conviction in 1992. Defendant cites
Binderup v. Attorney General, 836 F.3d 336, 356-57 (3d Cir. 2016) (opinion of Ambro, J.,
joined by Smith and Greenaway Jr., JJ.), Britt v. State, 681 S.E.2d 320 (N.C. 2009), and
Baysden v. State, 718 S.E.2d 699 (N.C. Ct. App. 2011) in support of his position.
¶ 25 Defendant relies primarily on the case of Binderup to demonstrate that the armed habitual
criminal statute must be held unconstitutional as applied to him. 2 Binderup involved
complaints for declaratory and injunctive relief filed in two separate Pennsylvania federal
district courts by two plaintiffs, Daniel Binderup and Julio Suarez (the challengers). Binderup,
836 F.3d at 340 (majority opinion). Binderup had pled guilty in a Pennsylvania state court to
corrupting a minor, a misdemeanor subject to possible imprisonment for up to five years. Id.
His sentence, however, “was the colloquial slap on the wrist: probation (three years) and a
$300 fine plus court costs and restitution.” Id. Suarez, while in Maryland, pled guilty in state
court to unlawfully carrying a handgun without a license, a misdemeanor subject to possible
imprisonment for not less than 30 days and not more than three years or a specified fine. Id.
Suarez received a suspended sentence of 180 days’ imprisonment and a $500 fine, followed by
a year of probation. Id. Pennsylvania law disqualified the challengers from possessing firearms
due to their convictions, but in 2009 they successfully petitioned the Pennsylvania courts to
remove that prohibition. Id. Federal law, however, continued to bar them from possessing
firearms because their convictions had not been expunged or set aside, they had not been
pardoned, and their civil rights had not been restored. Id.; 18 U.S.C. § 922(g)(1) (2006)
(prohibiting possession of firearms by any person convicted in any court of “a crime
punishable by imprisonment for a term exceeding one year”); see 18 U.S.C. § 921(a)(20)
(2006). They argued that, as a matter of statutory construction, the federal law (id. § 922(g)(1))
did not apply to their convictions and, if it did, the statute was unconstitutional as applied to
them. Binderup, 836 F.3d at 340 (majority opinion).
¶ 26 The federal district court rejected their statutory argument, but held that section 922(g)(1)
was unconstitutional as applied. Id. at 340-41. The Court of Appeals for the Third Circuit,
en banc, considered the challengers’ as-applied argument under a two-step test. Id. at 347
(opinion of Ambro, J., joined by Fuentes, Smith, Greenaway Jr., Vanaskie, Krause, and Roth,
JJ.). In considering the first step, the Binderup court observed that most “scholars of the
Second Amendment agree that the right to bear arms was tied to the concept of a virtuous
citizenry and that, accordingly, the government could disarm unvirtuous citizens.” (Internal
2
We observe that Binderup was a fractured, plurality decision. See Binderup, 836 F.3d at 338.
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quotation marks omitted.) Id. at 348 (quoting United States v. Yancey, 621 F.3d 681, 684-85
(7th Cir. 2010)). The court further observed that Heller “recognized ‘longstanding prohibitions
on the possession of firearms by felons,’ not just violent felons” and therefore concluded that
“[t]he category of ‘unvirtuous citizens’ is thus broader than violent criminals; it covers any
person who has committed a serious criminal offense, violent or nonviolent.” (Emphasis
added.) Id. (quoting Heller, 554 U.S. at 626).
¶ 27 Having found that only those convicted of “serious crimes” can forfeit their right to possess
firearms, the Binderup court went on to step two and determined that there was “not a
substantial fit between the continuing disarmament of the [c]hallengers and an important
government interest.” Id. at 356 (opinion of Ambro, J., joined by Smith and Greenaway Jr.,
JJ.). In so finding, the court discussed four defining factors that were unique to the challengers’
prior felonies: (1) the state legislatures had enacted the offenses as misdemeanors, which “are,
and traditionally have been, considered less serious than felonies”; (2) the lack of violence
involved in the offense; (3) the minor sentences imposed; and (4) a lack of a
“cross-jurisdictional consensus regarding the seriousness of the [c]hallengers’ crimes.” Id. at
351-52. In sum, the Binderup court concluded that “[t]he [c]hallengers’ isolated, decades-old,
non-violent misdemeanors do not permit the inference that disarming people like them will
promote the responsible use of firearms.” Id. at 356.
¶ 28 In the present case, we find defendant’s particular circumstances distinguish him from the
challengers in Binderup. Our state legislature has classified defendant’s prior offenses
(manufacture/delivery of a controlled substance offense and unlawful use of a weapon by a
felon) as felonies, not misdemeanors as in Binderup. See 720 ILCS 570/401 (West 2012); 720
ILCS 5/24-1.1 (West 2012). Even the Binderup court itself noted that a state-law felon’s
“burden would be extraordinarily high—and perhaps even insurmountable” to demonstrate
that the crime was not serious. Binderup, 836 F.3d at 353 n.6 (opinion of Ambro, J., joined by
Smith and Greenaway Jr., JJ.). Additionally, unlike the challengers in Binderup, defendant
here waited until after he was convicted of being in possession of a firearm to challenge the
constitutionality of the armed habitual criminal statute. While defendant was initially
sentenced to probation for his manufacture/delivery of a controlled substance offense, he
subsequently violated his probation and was sentenced to three years’ imprisonment.
Defendant was also sentenced to three years’ imprisonment for the unlawful use of a weapon
by a felon conviction. In contrast, the Binderup challengers were never imprisoned. Finally, we
observe that our Illinois jurisprudence has consistently upheld the constitutionality of the
armed habitual criminal statute against facial and as-applied challenges even where the
underlying felony was nonviolent. See Montgomery, 2016 IL App (1st) 142143, ¶ 19.
¶ 29 Defendant maintains that, like the challengers in Binderup, his prior felony offenses were
nonviolent. In response, the State disagrees and posits that defendant’s drug conviction is
equivalent to a violent offense, citing United States v. Torres-Rosario, 658 F.3d 110, 113 (1st
Cir. 2011) (“drug dealing is notoriously linked to violence” and “[a]ssuming arguendo that the
Supreme Court might find some felonies so tame and technical as to be insufficient to justify
the ban, drug dealing is not likely to be among them”). We observe that the armed habitual
criminal statute does not provide any exceptions for a person convicted of nonviolent felonies.
Moreover, unlike the statutes involved in Binderup, our state legislature expressly included
within the armed habitual criminal statute that “any violation of the Illinois Controlled
Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or higher” is
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a qualifying felony. 720 ILCS 5/24-1.7(a)(3) (West 2012). Thus, our legislature already
contemplated what was discussed in Binderup—that only those convicted of “serious crimes”
can forfeit their right to possess firearms. See Binderup, 836 F.3d at 351 (opinion of Ambro, J.,
joined by Smith and Greenaway Jr., JJ,). Accordingly, we decline to find that the armed
habitual criminal statute is unconstitutional as applied to defendant even if his previous
felonies could be considered nonviolent.
¶ 30 In so concluding, we find Montgomery to be instructive. In Montgomery, the defendant
was found guilty of being an armed habitual criminal and unlawful use of a weapon by a felon
after police seized firearms and ammunition from his home during the execution of a search
warrant. Montgomery, 2016 IL App (1st) 142143, ¶ 1. On appeal, the defendant argued that the
statutes were unconstitutional as applied to him because his prior felony convictions were
nonviolent and he kept the firearms for protection. Id. ¶ 8. The Montgomery court first
concluded that neither statute implicated the second amendment where the Supreme Court in
Heller “noted that its decision does not cast doubt on the longstanding prohibitions on,
inter alia, the possession of firearms by felons” and “our [Illinois] [S]upreme [C]ourt [has]
expressed its approval of felon-based bans on firearm possession.” Id. ¶¶ 14-15 (citing Heller,
554 U.S. at 626-27, and Aguilar, 2013 IL 112116, ¶ 26). The reviewing court further observed
that “this court has consistently rejected constitutional challenges to the statutes at issue here”
and thus declined to depart from these holdings. Id. ¶ 16 (citing, in pertinent part, Campbell,
2014 IL App (1st) 112926, ¶ 60 (holding “felon-based firearm bans, like the [unlawful use of a
weapon by a felon] and [armed habitual criminal] statutes, do not impose a burden on conduct
falling within the scope of the second amendment”)); see Garvin, 2013 IL App (1st) 113095,
¶ 40 (finding the unlawful use of a weapon by a felon statute, like the armed habitual criminal
statute, is a valid exercise of Illinois’s right to protect the health, safety, and general welfare of
its citizens of the potential danger posed by convicted felons in possession of firearms or
firearm ammunition); Black, 2012 IL App (1st) 110055, ¶ 13 (holding armed habitual criminal
statute could prohibit the defendant-felon from possessing a firearm in his own home); Ross,
407 Ill. App. 3d at 942 (holding the armed habitual criminal statute is a constitutionally
permitted restriction of the second amendment right to bear arms).
¶ 31 Second, the Montgomery court rejected defendant’s as-applied challenge to the unlawful
use of a weapon by a felon statute, observing (as we have here) that the unlawful use of a
weapon by a felon statute “does not provide any exceptions for persons convicted of
nonviolent felonies” and that no such exception was recognized by the Supreme Court in
Heller and McDonald. Montgomery, 2016 IL App (1st) 142143, ¶ 19 (finding even if the
defendant had made a procedurally proper as-applied constitutional challenge to the unlawful
use of a weapon by a felon statute, the court would still reject his claims where the unlawful
use of a weapon by a felon statute does not include an exception for persons convicted of
nonviolent felonies and neither Heller nor McDonald recognized such an exception (citing 720
ILCS 5/24-1.1(a) (West 2012), and People v. Spencer, 2012 IL App (1st) 102094, ¶ 32)). The
Montgomery court thus concluded that the statute is not unconstitutional as applied to the
defendant even though his previous felonies were nonviolent. Id.
¶ 32 Defendant cites no relevant authority in support of his additional claims that the age of his
felony convictions and his rehabilitation since completing those sentences render the armed
habitual criminal statute unconstitutional as applied to him. Defendant cites two cases having
no precedential value in this court, Britt and Baysden, to support these claims. Britt and
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Baysden involve similar sets of facts. The plaintiffs in each case had been convicted of
nonviolent felonies in the 1970s. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701. After
completing their respective sentences, their civil rights were fully restored by operation of law,
including their right to possess a firearm. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701.
Both plaintiffs owned firearms for 17 years or more without any incident until the North
Carolina General Assembly changed the law in 2004 and prohibited the possession of all
firearms by any person convicted of any felony. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d
at 701-02. Thereafter, the plaintiffs intentionally divested themselves of their firearms and
filed suits in North Carolina state courts challenging the law as unconstitutional. In
undertaking a rational basis review, the North Carolina courts ultimately concluded that the
law was unconstitutional as applied to the plaintiffs. Britt, 681 S.E.2d at 323; Baysden, 718
S.E.2d at 703-04. As stated in Britt,
“[p]laintiff, through his uncontested lifelong nonviolence towards other citizens, his
thirty years of law-abiding conduct since his crime, his seventeen years of responsible,
lawful firearm possession between 1987 and 2004, and his assiduous and proactive
compliance with the 2004 amendment, has affirmatively demonstrated that he is not
among the class of citizens who pose a threat to public peace and safety.” Britt, 681
S.E.2d at 323.
See Baysden, 718 S.E.2d at 704.
¶ 33 We decline to consider these cases as persuasive authority as the plaintiffs in those cases
conclusively demonstrated their respect for the law by divesting themselves of their weapons
when the law changed and sought redress through the judicial system. Unlike the Britt and
Baysden plaintiffs, defendant here possessed a firearm knowing that he was a twice-convicted
felon and only sought to challenge the law regarding his possession of a firearm after he was
charged with the weapons-related offenses. These facts cut against defendant’s argument that
he has been rehabilitated. Moreover, we observe the courts in Britt and Baysden applied a
rational basis inquiry. Britt, 681 S.E.2d at 323; Baysden, 718 S.E.2d at 703-04. Furthermore, it
is notable that the North Carolina plaintiffs were legally allowed to possess weapons for 17
years prior to the change in the law that made their possession of firearms illegal. Britt, 681
S.E.2d at 321; Baysden, 718 S.E.2d at 701-02.
¶ 34 Defendant also asserts that the fact his first felony conviction for manufacture/delivery of a
controlled substance, which occurred when he was age 17, is now no longer punishable as an
adult offense supports his conclusion that the armed habitual criminal statute is
unconstitutional as applied. Defendant, however, cites no relevant authority that a subsequent
change in the law has any bearing on the nature of his first felony conviction or his status as a
felon. Accordingly, we find this argument to be forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July
1, 2017); People v. Hunt, 234 Ill. 2d 49, 67 (2009) (points not argued with citation to authority
are forfeited).
¶ 35 In sum, the armed habitual criminal statute “is a valid exercise of Illinois’s right to protect
the health, safety, and general welfare of its citizens from the potential danger posed by
convicted felons in possession of firearms” and survives intermediate scrutiny. Garvin, 2013
IL App (1st) 113095, ¶ 40. The application of the armed habitual criminal statute is not
unconstitutional as applied to defendant, who committed two prior felonies, despite his
assertions that these were older, nonviolent felonies and that he has since been rehabilitated.
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Accordingly, we hold that the judgment of the circuit court is affirmed.
¶ 36 CONCLUSION
¶ 37 For the reasons stated above, the armed habitual criminal statute is not unconstitutional as
applied to defendant. Therefore, we affirm the judgment of the circuit court of Cook County.
¶ 38 Affirmed.
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