Not guilty by reason of admission omission

Today in court at 26th and California one of our clients was found not guilty of possessing a single bullet in a junk drawer in her home.  Because she was a convicted felon, she was facing a mandatory 2 -10 years in jail.  Police arrived at her home with a search warrant and saw 2 people standing on the porch.  Those people ran inside and barricaded the front door.  After police broke down the door, they searched the residence and arrested our client when they found a single bullet in a 1st floor dresser drawer.  Possession of a bullet by a felon is otherwise known as Unlawful Use of a Weapon by a felon, a class 3 felony.

At trial, one of the police officers testified that our client told the officers that the bedroom where the bullet was found was her bedroom.  Moreover, an officer testified that she found several pieces of mail addressed to our client in the bedroom. On cross examination, Villalobos & Associates attorney, Klaudia Stolarczuk, asked the officer to show her where in the police report it says that our client identified the bedroom as her own- an admission by a suspect is a big deal and would no doubt be one of the most important things to write in a police report.  However, the officer could not show her because it was not in the report.

For the defense, our client testified that she never told police officers that the bedroom was hers because her bedroom was actually on the second floor of the house.  The first floor bedroom was her mother’s and the drawer where the bullet was found was a junk drawer where her mother would keep everyone’s important pieces of mail.

The judge held that he normally doesn’t think it is very significant when police officers omit something from their police reports.  The big exception is when an officer does not include any mention of an admission by a suspect. Admissions by suspects are gold for police officers and prosecutors so the fact that the supposed admission wasn’t included in the police reports cast a doubt as to whether it actually happened.  Ultimately, that fact was fatal to the State’s case.


Conflicts in law: how Illinois Courts will proceed in the face of a Federal Injunction

The Seventh Circuit’s December 11, 2012, opinion in Moore v. Madigan ended with a bang: an order prohibiting prosecution of defendants on charges based on two Illinois gun laws.  That order, or injunction, was postponed for 180, giving the State legislature time to write a new gun law that would pass Constitutional muster.  After two extensions, that deadline was extended to July 9th, 2013. The two gun laws, Unlawful Use of a Weapon and Aggravated Unlawful Use of a Weapon, prohibited concealed and open carriage of firearms outside gun owners’ homes.  With some exceptions for hunters, law enforcement agents,and gun club members, this meant that people could own guns, but had to keep them at home or in their fixed place of business. With those laws in effect,Illinois was the only State in the country that had a blanket ban on gun possession outside the home.  However, two important United States Supreme Court cases set the stage for Constitutional challenges of Illinois’ gun laws.

First, in District of Columbia v. Heller, the U.S. Supreme Court struck down a District of Columbia law that prohibited people from possessing firearms in their own homes unless they were kept unloaded and disassembled, or were locked with a trigger lock.  The Supreme Court held that the right to keep and bear arms for reasons such as self defense was a fundamental right, protected by the 2nd Amendment. The D.C. statute unreasonably restricted people from exercising that right. The Court held that the Federal government may not pass laws that infringe on that right.  Because the District of Columbia is a federal district, and not a State, the Court did not address whether the 2nd Amendment right extended to States.

The Supreme Court, however, addressed this issue in McDonald v. City of Chicago and held that the 2nd amendment applies to States- meaning that States cannot pass laws that unreasonably restrict the 2nd Amendment right.  In McDonald, the Court looked at several Chicago ordinances that restricted and prohibited people from possessing firearms at home.  The Court held that the Due Process Clause of the Fourteenth Amendment incorporates fundamental rights, so States cannot pass laws that infringe on those rights.  As a result, Chicago’s long-time ban on handguns in the City was struck down.

The Seventh Circuit’s decision in Moore v. Madigan built on those two cases when it considered Illinois’ laws banning possessing firearms outside of a gun owner’s home. The court held that a blanket ban on possession of firearms infringed people’s fundamental right to bear arms, as recognized in Heller and McDonald.  While the two Supreme Court cases only addressed laws that prohibited gun possession at home, the Seventh Circuit said that the right to bear arms for self defense logically must extend outside of people’s homes because that is where they are more likely to need to protect themselves.  As a result, the Seventh Circuit declared the two Illinois’ laws unconstitutional and ordered an injunction that prohibited enforcement of them.  That injunction, however, would not ultimately take force until July 9, 2013.

Effects in State Court

Before the injunction took force, many judges denied defendants’ motions to dismiss gun charges, stating that decisions of Federal courts are not binding on State court proceedings. To support that decision, in March 2013, the 1st District Court of Appeals in Illinois decided People v. Tamar Moore, which expressly disagrees with the Seventh Circuit’s holding.  After Tamar Moore, Illinois judges were bound by the Illinois Appellate Court’s ruling and could continue prosecuting people for violations of Illinois’ gun laws.

On July 9th, things changed when the Illinois Legislature passed a new gun law for Illinois and the injunction from the Seventh Circuit took effect.  The new law legalized concealed carry in Illinois and the injunction prohibits enforcement of the old laws.  The question is, how will Illinois judges respond when presented an injunction from federal court?

On Thursday, an Illinois Circuit Court judge had a scheduled hearing of five defendants’ motions to dismiss gun charges.  The defendants were all seeking to have their charges dismissed in the wake of the Seventh Circuit’s decision. Many of these motions have been pending for months, but after the 9th, when the injunction took force,the defendants had more to hang their hats on. At the motion hearing, defense lawyers argued that Illinois judges had no choice but to obey the federal court’s injunction, whether they agreed with the court’s reasoning or not.  Lawyers for the defense cited People v. Nance, an Illinois Supreme Court case that held that State courts are not bound by decisions in Federal courts, but are bound by injunctions issued by them. In addition, the injunction stays in effect until lifted by the court that issued it. The judge expressed concern about following the injunction versus following Tamar Moore. Following the injunction, he stated, would require him to ignore Tamar Moore, which is binding precedent on the lower State courts.

Clearly, this is not a decision that Circuit Court judges often have to make.   Given the recency of the passage of the new laws and the injunction, it is not surprising that judges are not prepared to deal with rare issues of law without having the benefit of seeing how others deal with it.  Indeed, during the hearing, the judge asked all the attorneys present if they were aware of any other judges at 26th st who have dismissed gun charges because of the injunction. Instead of ruling on the motions, he took the matter under advisement and requested that all parties appear back in front of him in August.

Defendants in Illinois Still in Limbo While Waiting for Legislature to Pass New Gun Law

In December 2012, the Seventh Circuit Court of Appeals -the Federal Appellate Court that hears appeals from the Chicago area- decided Moore V. Madigan, a lawsuit that challenged the Constitutionality of Illinois’ gun laws.  The statutes at issue, Unlawful Use of a Weapon, 720 ILCS 5/24-1, and Aggravated Unlawful Use of a Weapon, 720 ILCS 720 24-1.6, make it a crime to carry a firearm outside of your home in Illinois.  Laws permitting gun possession outside the home are commonly known as “concealed carry” laws.  Currently, Illinois is the only State in the U.S. that does not have a concealed carry law.

In Moore v. Madigan, the Seventh Circuit held that Illinois gun laws unreasonably limited Illinois citizens’ ability to carry firearms outside of the home for self-defense.  The Court built upon two earlier Supreme Court cases that held that the 2nd Amendment right to bear arms for self-defense in case of confrontation is a fundamental right.  Until this case, Illinois courts understood the holding to authorize only guns within the home.  The Seventh Circuit, however, extended the Supreme Court’s ruling and held that the 2nd Amendment protection extends outside of the home, where most confrontations are likely to occur.  The Seventh Circuit reasoned that the right to defend yourself must extend beyond the four corners of your home because people are “more likely to be attacked on a sidewalk in a rough neighborhood than in than in his apartment on the 35th floor of the Park Tower.”

As a result, the Court held that two of Illinois’ most often prosecuted gun laws are unconstitutional and would have to be re-written. While many criminal defense lawyers and gun-rights supporters celebrated, the Seventh Circuit gave the Illinois legislature until June 2013 to re-write the law.  After the deadline, the Court would issue an injunction barring any prosecutions based on the old laws.  The Seventh Circuit extended that deadline to Tuesday July 9th.

Since the December decision, every criminal defense attorney with a gun case has filed motions to dismiss charges based on the two Illinois laws. In most cases, Illinois Circuit Court judges denied the motions stating either that the Federal Court of Appeals had no power to enforce its decision on the lower State court, or stating that it would wait to proceed on gun cases until the new gun laws are passed.

As of now, the state of the law is unclear.  The Illinois House and Senate passed the new law legalizing possession of firearms outside the home but are still awaiting Governor Pat Quinn’s more restricted version of the law. As the law is changed and amended, the situation becomes less and less predictable.  Until the new law is put into effect, defendants won’t know what to expect when facing gun charges in front of a judge.

As such, if you are charged with Unlawful Use of a Weapon or Aggravted Unlawful Use of a Weapon, it is extremely important to be represented by attorneys who are experienced and who know the current state of the law.  Villalobos & Associates has unparalleled experience defending gun cases and is closely monitoring the situation in Springfield as it unfolds.

Illinois’ gun laws are changing as we speak.  Whether you have been charged with a crime, or simply want to know how to comply with the new laws, our experienced attorneys can help you exercise your rights.  Contact our Chicago office at 312.666.9982 to set up an appointment or contact us anytime at