Moving time? Know your rights as a tenant.

Now that July is almost over, we’re officially in the middle of moving season.  In Chicago that means moving trucks blocking streets and clogging up the expressways.  You also can’t miss the alleys full of old mattresses and beat up furniture.  It also means thousands and thousands of dollars in security deposits being deposited and returned by and to renters.  Renters can get caught up in the chaos of packing, moving out, and moving in that they don’t take the time to carefully review documents given to them by their former and future landlords.

In Chicago, the Municipal Code has an extremely important section that applies to many apartments.  The Chicago Residential Landlord Tenant Ordinance (“RLTO”) is a City ordinance that applies to apartments within the City of Chicago except those that are in buildings that are owner occupied and contain less than six units.

The RLTO lays out the rights and obligations of tenants and landlords.  There is no question that the RLTO gives tenants more rights and imposes more obligations on landlords. Some of the most important sections deal with security deposits.

Upon initiating a lease, landlords who ask for security deposits are required to give tenants a receipt of the security deposit.  The RLTO also requires landlords to deposit the security deposit into an interest bearing account separate from rent checks or other funds.  Landlords must provide the name and address of the financial institution where they deposit the security deposits, and must pay renters the interest earned on the security deposits.

When a lease ends, and the tenants are moving out, landlords may only withhold money from the security deposit for reasonable charges for necessary repairs.  Landlords cannot charge tenants for normal wear and tear on apartments such as light cleaning, painting, and even replacement of old carpet.  When landlords do withhold money from security deposits for damage, they must give tenants an itemized explanation of the deductions accompanied by receipts for the repairs.  If the landlord has not done the work yet, he must provide tenants with estimates of the work to be done and must provide receipts for the work done within thirty days of sending the estimate.

Any failure to follow these procedures with the security deposit is a violation of the RLTO and the tenant may be entitled to double the amount of the security deposit plus court costs and attorney’s fees if the case goes to court.  Tenants also need to look out for clauses in leases that appear to sidestep obligations imposed by the RLTO.  For example, clauses that require tenants to waive their rights to contest security deposit charges are violations of the RLTO.

This is just a small sample of what the RLTO covers; several other sections describe almost all the steps of renting, including proper procedures for collecting rent, withholding rent, and what happens if a tenant stops paying rent.  As always, before signing a contract, it is best to have a legal professional review it to evaluate its legality and to suggest any possible changes. If you are unsure whether the RLTO covers your apartment, or if you think your landlord might have violated the RLTO, call Villalobos & Associates to discuss your rights.

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 info@villaloboslaw.com.