Updated: 03-20-08

  Victor D. Quilici
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Posted: 03/20/2008

People v. Michael Diggins, No. 07-0016 (3^rd Dist., 2008)

This case covers the latest of Illinois State Court decisions dealing with the issue of defining “case” and/or the meaning of “uncased” or “container”as those terms would apply to the exemption provision of the Illinois Statute dealing with the offense of “aggravated unlawful use of weapon” wherein the legislature specifically provided that the offense of aggravated UUW does not apply to the transportation or possession of weapons that are “unloaded and enclosed in a case, firearm carrying box, or other container.” (720 ILCS 5/24-1.6 (c ) (iii).

A person commits the offense of aggravated UUW in Illinois by knowingly carrying a firearm in a vehicle that was uncased, loaded and immediately accessible at the time of the offense, unless the person was carrying the firearm on his land, abode, or fixed place of business. (720 ILCS 5/24-1.6(a)(1)(3)(A).

Facts: the defendant in this case was stopped for a traffic violation, and when asked for his I.D. he showed the officer his FOID. The officer then asked if he had a gun and the defendant pointed to his center console and said there were two guns therein. The ensuing search produced a revolver, semi automatic pistol, six rounds of .357 ammo and a magazine loaded with .45 ammunition. The officer maintained that the center console lid was open and he also found the key within the console. Defendant testified that the console was locked and the key was in the car’s glove box. It was uncontroverted that the weapons were unloaded.

Issues/Challenges: The defendant insisted on a jury instruction stating: ”[U]nder Illinois law a person is not guilty of aggravated unlawful use of a weapon if the weapons are enclosed in a ‘case, firearm carrying box, or other container’ by a person who has been issued a currently valid Firearm Owner’s Identification Card (FOID card).” The Judge denied defendant’s counsel’s attempt to argue in closing that “the location in which the officer found the firearms was a ‘case’ or ‘other container’.”

Decisions: The trial Judge not only denied the instruction tendered by defendant, but also when queried by the jurors: “What is the legal definition of a ‘case’?” the Judge, over objection, advised the jurors that a center console was not a “case” under Illinois law. The Jury verdict was “guilty as charged” and Defendant appealed.

The Appellate Court Reversed and remanded, finding the issue regarding the exception was a question of law to be considered de novo. and that the center console constituted a “case” under the Statute. The Court looked at several prior decisions—among which People v. Cameron, 336 Ill. App. 3d 548 ( 4th Dist., 2002), People v. Smyth, 352 Ill App. 3d 1056 ( Ist Dist., 2004), and People v. Williams, 368 Ill. App. 3d 616 (Ist Dist., 2006) dealt with various “firearms-in-vehicles” scenarios and the resulting interpretations of the exceptions language in the aggravated Unlawful Use of Weapon statutory provisions.

The Court refuted the Cameron decision, finding its decision fails to meet the guideline of People v. Hanna, 207 Ill. 2d. 486 ( 2003), that “statutes are to be construed in a manner that avoids absurd or unjust results.” Instead, the Court found the rationale in People v. Smyth, 352 Ill. App. 3d 1056 ( Ist Dist., 2004) appropriate, and applied it to this case. Cameron held that a vehicle’s glove compartment is not an “other container” within the meaning of the exemption, and distinguished between “fixed” and “portable” containers, holding the Legislature intended the exemptions to apply only to “portable devices.” But the Appellate Court here, in rejecting Cameron, and Williams, which had followed its rationale [Gun found in zippered compartment of vehicle deemed “uncased”], opted to accept the Smyth court’s rationale—that is, the term “case” is to have its ordinary meaning, and no distinction is made between portable and fixed containers, so long as they are truly “enclosed in a “case ( meaning completely closed or “enveloped”).

To get a clear overview of the contrasting interpretations of these issues by the Courts in the various Districts (Ist, 2^nd, 3^rd and 4^th) look for more of the cited cases in this author’s Archives. You may also want to see in Archives: People v. Dieppa, a 2^nd District case (2005) holding a “glove compartment, whether locked or unlocked is a container.”

Posted: 11/21/2007
UPDATE: U.S. Supreme Court Accepts D.C. Gun Ban Appeal

Parker, et al. v. District of Columbia & Mayor Adrian M. Fenty 478 F. 3d 370 (D.C. Cir. 2007 ( pending appeal as District of Columbia & Adrian M. Fenty v. Heller and Shelly Parker, et al v. District of Columbia and Adrian M. Fenty).

On 11/20/07 the Unites States Supreme Court accepted the District of Columbia’s appeal of its now infamous gun ban case. Our highest court granted certiorari regarding the District’s case against the one Plaintiff (Dick Anthony Heller) who survived the initial appeal to the D.C. Appellate Court.

The Supreme Court took no action on a cross-appeal filed by five of the original Plaintiffs in the lower district court—that is, Parker et al. v. D.C. and Mayor Adrian Fenty. That appeal remains open for further action by the Court, and determination as to whether that matter may be accepted by the High Court is expected soon.

On March 9, 2007 the United States Court of Appeals for the District of Columbia rendered a milestone decision striking parts of the District of Columbia “Firearms Control Regulations Act “ which had been on the books since 1975, thereby becoming the very first federal court of appeals in the U.S. to render a decision holding a gun control law to be unconstitutional while relying on the Second Amendment of the United States Constitution. This decision gives credence to and strengthens the interpretation of the 2nd Amendment as stated in United States v. Emerson, 270 F. 3d 203 (5^th Circuit, 2001), that is—the 2^nd Amendment applies to and protects individual Americans in their right to keep and bear arms whether or not they are members of a select militia or performing active military service or training. The Appeals Court reversed the District Court decision granting the defendants’ motion to dismiss the Complaint, the lower Court having relied upon United States v. Miller, 307 U.S. 174, 178, where the U.S. Supreme Court, dealing with a criminal case involving a sawed-off shotgun, held that the Second Amendment applied only to that use in connection with service in a state-regulated militia.

The.1975 law had been passed pursuant to the District of Columbia’s “home rule” powers similar to those exercised later by Morton Grove, Illinois, in 1981, when it enacted the infamous handgun ban that prohibited the possession of a handgun within one’s home. Quilici v. Morton Grove, 695 F. 2d 261 (7^th Cir. 1982). The D.C. ordinance banned owning or possessing handguns and required rifles and shotguns to be kept “unloaded, disassembled , or bound by a trigger lock.”

In summation, the D.C. Court of Appeals stated: “[W]e conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood assistance to either private lawlessness or the depredations of a tyrannical government ( a threat from abroad). In additions, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their anti-federalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” (Emphasis added.)

A petition by defendants-appellees for rehearing before the full court of appeals (en banc) was denied on May 8, 2007, and defendants then appealed to the United States Supreme Court. Five of the original plaintiffs whom the Appeals Court found did not to have jurisdictional standing to challenge the law prior to its enforcement then cross-appealed for reinstatement of their claims. Highlights of the various contentions of the parties to the petitions asking the

U.S.

Supreme Court to hear the case, and highlights of the positions in response to the petitions, are outlined below.

Petition for Writ of Certiorari to the U.S. Court of Appeals for the District of Columbia .District of Columbia and Mayor AdrianM. Fenty v. Dick Anthony Heller (No. 07-280).

Outline Highlights of Petitioners’ arguments to the U.S. Supreme Court:

The brief in support of the Petition for Certiorari states that “the decision of the Appellate Court is wrong in three respects” and captions them as follows:

“A.	The right protected by the Second Amendment is limited to weapons possession and use in connection with service in state-regulated militias;
B.	Laws limited to the District of Columbia do not violate the Second Amendment;
C.	Under any view of the Second Amendment the District’s law, which permits ownership of rifles and shotguns but bans handguns, does not infringe the right to keep and bear arms.” (Some capitalization removed.)

The Petitioner District and mayor Fenty, Appellees below, open their pleadings with the observation that “the decision below directly conflicts with the rulings of nine Circuits and the highest courts of the District and numerous states.

“. . . The majority acknowledged that its decision was in direct conflict with the holdings of the First, Third, Fourth, Sixth Seventh, Eighth, Ninth, Ten and Eleventh Circuits and the District of Columbia Court of Appeals.

Petitioners further allege that the Appeals Court erred when it “adopted a categorical rule that any prohibition on the possession of any type of protected ‘Arm’ is per se unconstitutional, without regard to the reasonableness of the regulatory scheme as a whole: ‘Once it is determined . . .that handguns are ‘arms’ referred to in the Second Amendment, it is not open to the District to ban them.’”

“. . .Because the Appeals Court’s decision drastically departs from the mainstream of the American Jurisprudence, it warrants review.”

Outline Highlights of Response to Petition for Certiorari:

Respondent Heller’s brief initially focuses on “[w]hether the Second Amendment guarantees law-abiding adult individuals a right to keep ordinary, functional firearms, including handguns in their homes”. Heller’s summary of argument sets forth the following:

“I.	The Court should provide essential guidance to courts that misconstrue the Second Amendment;
II.	The question presented by petitioners misconstrues the Court of Appeals’ holding and the central issue in the case;
III.	Whether the second amendment forbids handgun prohibition is a discrete Constitutional question that must be answered on its own terms;
IV.	The City’s policy and the social science arguments are irrelevant and factually . baseless;.
V.	Citizens under criminal attack are not required to stand by and die awaiting police protection.” (Some capitalization removed.)

The following are highlights from Respondents’ “Summary of Argument” with some omissions not noted in the quoted text.:

“This case presents the Court a unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically enumerated in the Constitution. ‘The People”—individuals in our country—retain the right to keep and bear arms.’”

“. . . [T]he question presented by this case is whether the Second Amendment secures an individual right to keep basic functional firearms, including ordinary handguns, within the home

“ . . . The question in this case is not merely whether the City may ban handguns as a subclass of firearm; the question is whether a law that prevents people from keeping functional firearms—of any kind—in their homes violate the ‘right to keep and bear arms’ recognized by the Second Amendment. Thus, unlike Petitioner’s formulation, the question presented by Respondents fairly and accurately reflects all the laws adjudicated by the Courts below

“. . . Respondents are constrained to respond to the remarkable declaration that ‘[w]hatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.’[citing Petitioners’ brief] The statement suggests, contrary to Petitioners’ consistent litigating position in other cases, that citizens are generally entitled to rely upon the city for police protection.”

Cross-Petition for Writ of Certiorari to the U.S. Court of Appeals of the District of Columbia . Shelley Parker et al. v. District of Columbia and Mayor Adrian M. Fenty
(07-335).

Outline Highlights of Cross-Petitioners’ arguments to U.S. Supreme Court:

The Parker cross- petitioners’ brief captions state:

“I.	On the issue of standing, the opinion below admittedly contradicts this Court’s settled precedent;
2.	On the issue of standing, the opinion below conflicts with other federal courts of appeals;
3.	The D.C. Circuit’s erroneous standing doctrine renders the declaratory judgment act a dead letter in the nation’s Capital.” (Some capitalization removed.)

The question presented stated:

“Whether the Court of Appeals erred in holding, in acknowledged conflict with this Court’s decisions in Babbitt v. United Farm Workers National Union, 442 U.S. 289 (198=79) and Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1989), that cross-petitioners cannot maintain a pre-enforcement constitutional challenge to a criminal law without showing that they ‘have been singled out or uniquely targeted by the D.C. government for prosecution’”

Outline Highlights of Response to Cross-Petition:

The District of Columbia and Fenty note that the Supreme Court “has on more than one occasion noted that it is unnecessary for it to consider whether other plaintiffs have standing, [citing] Babbitt v. United Farm Workers National Union, 442 U.S. at 299; Buckely v. Valeo, 424 U.S. 1, 12 (1976).”

“	“Because respondent Heller was held to have standing, the cross-petitioners have little if anything to gain from their submission. Any judgment by this Court in No. 07-280 will bind the District as against all of its citizens, including cross- petitioners…”
	“Peoples Rights Organization, Inc., v. City of Columbus, 152 F. 3d 522(6^thCir. 1998) cited by Cross-Petitioners “is distinguishable. . . . The fact that the plaintiffs owned guns that became unlawful was the critical factor in finding standing and was the reason the 6^th Circuit in PRO distinguished its earlier decision in Magaw [National Rifle Ass’n v. Magaw, 132 F. 3d 272] See PRO, 152 F. 3d at 530. . . .”
	“ Granting the cross-petition would unnecessarily complicate the pending litigation on the meaning of the Second Amendment. Indeed, given the D.C Circuit’s holding that Heller has standing, the District would have little interest in defending the decision of the court of appeals that cross-petitioners lacked standing even if the cross-petition were granted.”

Posted: 07/10/2007

Hiland v. Trent, 868 N.E. 2d 396, Third District Appellate Court (5/16/07). The Appellate Court, Lytton, J., held that the Director of the Illinois Department of State Police abused his discretion in denying a FOID card application.

Facts: Larry Hiland had been convicted of several federal crimes, including multiple counts of mail fraud in 1988. At the time of his conviction, Hiland possessed a Firearm Owners Identification (FOID) card, but was required to turn it in upon request by the Illinois State Police.

Several years after his conviction Hiland requested a hearing with the Director of the Illinois State Police to seek re-issuance of his FOID card pursuant to the FOID ACT, 430 ILCS 65/10(c) At the hearing, Hiland established that the mail fraud charges were the result of his participation as president of a pharmaceutical company that failed to obtain FDA approval when adding a new substance to an existing drug. Both the manufacturer of the drug and the executive v.p of the company had urged him to add the substance to the product line without a need to obtain FDA approval. Hiland’s good character was established at the hearing, including statements by the pastor of his church, and a letter from his former probation officer indicating his non-violent past and “that he had made a very positive adjustment to supervision and is not perceived as being a threat to himself or the community.”

Administrative Law Judge rulings:
The hearing officer issued a ruling recommending that Hiland be issued a FOID card, and the deputy director agreed and granted a FOID card with a cautionary comment that Hiland also seek relief from any disability that may have been imposed by the Federal Gun Control Act of 1968 (18 U.S.C. Sec. 921 et. seq. (1988). Hiland never sought relief from federal authorities.

When the FOID card renewal date came up in 1997, the card was renewed upon Hiland’s application. However, when he applied again for renewal in 2002, the application was denied “because of his 1988 convictions.” Another hearing was requested pursuant to section 10(c) of the Act, and all the prior evidence from the prior hearing, including the character reference letters, were allowed to be introduced at the 2003 hearing. Hiland stated his need for a FOID card so that he could hunt on his own property.

At this second administrative law hearing the ALJ concluded “that Hiland had not committed a forcible felony within 20 years and that his criminal history and reputation were such that he was not likely to act in a dangerous manner. [However] . . .granting Hiland a FOID card ‘would be contrary to the public interest as Section 8(n) of the FOID Card Act prohibits the issuance of a FOID card to an individual who is prohibited from possessing firearms or ammunition under federal law.’” The Director, Larry G. Trent, denied the application based on the ALJ’s findings and recommendations.

Circuit Court and Apellate Decisions:

Upon appeal to the Circuit Court of Hancock County the Court “reversed the denial, holding that the Director [Trent] abused his discretion by denying Hiland’s FOID card application.” Defendants then appealed, arguing that “the Director properly denied Hiland a FOID card because [his] federal criminal convictions prevented him from possessing firearm under federal law.”

The Third District Appellate Court noted that proper method of review of the Director’s decision to deny issuance of a FOID card is whether there has been an“abuse of discretion.” See Rawlings v. Ill. Department of Law Enforcement, 73 Ill. App. 3d 267 (1979). “An abuse of discretion will be found where the decision is ‘fanciful, arbitrary or unreasonable to the degree that no reasonable person would agree with it.’” Also, if the decision is based on a misinterpretation of the applicable law, it is an abuse of discretion, as well. See Mid-America Television Co. v. Peoria Housing Authority, 93 Ill. App. 3d 314 (1981)

While Section 8 of the FOID Act notes the authority in the Department to deny an application if, among other things, it finds that the applicant is prohibited from acquiring or possessing a firearm by state or federal law, the provisions of Section 10 allows an applicant who has been denied a FOID card under Section 8 to apply to the Director for relief, and the Director may grant a FOID card if the applicant establishes:

   a.) he has not been convicted of a forcible felony within 20 years;
   b.) the circumstances surrounding his criminal conviction, criminal history, and reputation are
        such that he will not be likely to act in a manner dangerous to public safety, and
   c.) granting relief would not be contrary to the public interest. 430 ILCS 65/10 (c).

“By not exercising the discretion granted him in Section 10 (c), the Director ignored the overwhelming evidence establishing that Hiland has been a law-abiding citizen and productive member of his community since his convictions. . . .Judgment of the Circuit Court of Hancock County is affirmed.”

NOTE: Concurring in the decision, Justices Carter and Holdrige noted that while the provisions of Section 922(g)(1) of the Federal Gun Act of 1968 prohibit a convicted felon to possess a firearm, Section 925(c) nevertheless allows an individual so disqualified from possessing a firearm to apply to the Secretary of the Treasury for Relief. However, since federal funding had been suspended regarding review requests under Section 925(c),” an individual disqualified from ownership under Section 922(g)(1) of the federal Gun Control Act has no avenue for relief from that disqualification.”

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