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Victor D. Quilici
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Braglia v. McHenry County State’s Attorney’s Office (Illinois Department of State Police, Appellant), 371 Ill. App. 3d 790. 863 N.E. 2d 1150 ( 2d District, 2/27/07) . |
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| In an appeal brought by the Illinois Department of State Police, the principal issue before the Appellate Court was whether, pursuant to section 10 (b) of the Illinois Firearm Owner’s Identification Act [430 ILCS 65/10(b)] “a firearm owner’s identification (FOID) card should be issued to an applicant who would ordinarily be disqualified from holding one because of a conviction of domestic battery.” The Illinois State Police Department filed the appeal, claiming that it should have been named as a party in the initial action brought by the Plaintiff, Daniel Braglia, in the Circuit Court of McHenry County where he filed his action against the office of the State’s Attorney of McHenry County. | ||
| The Appellate Court rejected the claim of the Illinois Department of State Police that it had standing to appeal the order of the Circuit Court directing the Department to issue a FOID card to the Plaintiff. The following summary of the case, including the Appellate Court’s decision, contains some omissions not noted in the quoted text: | ||
| Facts: The Plaintiff below had been convicted of domestic battery and his FOID card application had been denied by the Illinois Department of State Police (ISP). He then brought an action naming the McHenry County State’s Attorney’s Office as the party defendant, and neither gave any notice of the proceedings to the IPS nor named it in the lawsuit. Plaintiff offered testimony at a hearing regarding his personal background, including history of arrests and convictions. “On 11/30/05 the Trial Court entered its Order directing the IPS to issue a FOID card to the Plaintiff. On December 30, 2005, the Department moved to vacate the order. The Trial Court denied the Department’s motion, and the Department brought this appeal.” The Plaintiff filed a motion to dismiss the appeal claiming the Department lacked standing to appeal the matter. | ||
| Appellate Court Decision: The Court noted the prior provisions of the FOID Act where an applicant is denied he may appeal to the Director of the ISP for a hearing, who, “upon receipt of such an appeal . . .the Director is satisfied that substantial justice has not been done . . . may order a hearing to be held by the Department upon the denial or revocation.” [430 ILCS 65/10, prior to August 2001]. | ||
| The Court went on to note that “ the General Assembly amended Section 10 of the Act so that the aggrieved party may appeal to the director of the Department of State Police for a hearing upon such denial “ . . . unless the denial . . . was based upon a . . . domestic battery . . . in which case the aggrieved party may petition the Court in writing in the county of his or her residence fro a hearing upon such denial . . .” [Section 10(a)]. | ||
| Further, “(b) At least 30 days before any hearing in the circuit court, the petitioner shall serve the relevant State’s Attorney with a copy of the petition. The State’s Attorney may object to the petition and present evidence. At the hearing the Court shall determine whether substantial justice has been done. Should the court determine that substantial justice has not been done, the court shall issue an order directing the Department of State Police to issue a card. Pub. Act. 92-442, eff. August 17, 2001. | ||
| The Department argued that the language in Section 10 requiring the petition to be served on the State’s Attorney “does not supersede general common-law jurisdictional principals that preclude entry of a judgment against a state agency over which personal jurisdiction is lacking,” citing Akmakjia v. Department of Professional Regulation, 287 Ill App. 3d 894 (1997) and People v. Grau, 263 Ill. App. 3d 874 (1994). | ||
| The Appellate Court distinguished both cases, noting that in Akmajia the Department of Professional Regulation (DPR), and in Grau, the Secretary of State, were both vested with quasi-judicial powers which entitled them to be joined as parties to the judicial proceedings. However, the Department (ISP) is charged with purely “ministerial duties . . .” The Court then notes that the question before the lower court “was whether justice required granting [Braglia’s] application despite the disqualification. The Department’s ministerial duty to deny Plaintiff’s application did not vest it with any direct interest in that distinct (albeit related) question.” | ||
| “. . . Our decision might have been different if the trial court’s order imposed extensive duties on the Department. See People v. White, 165 Ill. App. 3d 249 (1988) . . . However, the order merely required the issuance of a FOID card. “ | ||
| The Court noted further that in In re Detention of Hayes, 321 Ill. App. 3d, 178 (2001), it held that “the Department of Human Resources would have ‘non-party standing to appeal the court’s commitment order if it believes the order exceeds the trial court’s [statutory] authority.”’ Lastly, “arguably, even if the Department had any direct interest in the matter before the trial court, it should have been the Director of State Police (not the Department) who asserted the interest. The absence of the Director of State Police as a party to this special appeal further attenuates the Departments’ asserted interest in the trial court’s decision." | ||
| “. . .For the foregoing reasons, we conclude that the Department lacks standing to appeal from the order of the circuit court of McHenry County. Accordingly, we grant plaintiff’s motion to dismiss this appeal. Appeal dismissed.” | ||
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People v. Price. Ill. App. 1st District. ____N.E. 2d ____, 2007 WL 2163997 |
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| NOTE: This opinion has not been released for publication in the permanent law reports, and until released it is subject to revision or withdrawal. | ||
| A question often asked by clients is whether or not the “right to bear arms” as guaranteed by our 2nd Amendment, and our State Constitution (Article I, Section 22) gives one the right to carry a loaded firearm outside of the abode—that is, on the “home” property, be it the yard or even in the garage in urban areas; so long as it is on one’s land the latter encompassing “farmland” in rural areas. | ||
| The answer to that inquiry is not as simple as many citizens believe, and, depending on the factual scenario, our state statutes regarding self-defense, defense of dwelling, defense of other property, use of force in making arrest, and private, person’s use of force in making arrest, may come into play when an issue of “right to carry” arises as part of an affirmative defense to a charge of “aggravated unlawful use of a weapon.” 720 ILCS 5/24-1.6. | ||
| While the average citizen/client is inclined to shout “my 2nd amendment rights,” or “my individual rights guaranteed by Illinois’ Section 22,” our Constitutional rights are normally not plead beyond window dressing to a “motion to suppress” or reserved for pleading on appeal. In the lower court litigation arena the correct interpretation of various Illinois statutory provisions should be determinative of a just outcome. However, there are some pro-gun activists who feel there is “a striking and serious contradiction regarding law and policy in the State of Illinois.” | ||
| The present case I am reporting does not anwser the "outside of abode" question, but addresses an interesting issue regarding the definition of “abode” upon which the Ist District Appellate Court focused. The defendant relied on a prior statute and case, People v. Taylor, 28 Ill. App. 3d 186 (1975), alleging the Taylor Court held “abode” included “overnight living quarters.” Because the Court in this case distinguishes “home” from “abode” as the former term was used in an earlier Act, its conclusion of the meaning attributable to “abode” containing the word “home,” leaves the door open to criticism of the Court’s analysis of the legislature’s intentions during the debates surrounding passage of the “unlawful use of weapons” provisions. An interesting point. Of the two major cases discussed and distinguished in this case by the First District Court (5th Division), People v.Taylor is a 4th Division case, and People v. McClure is a 3rd Division case, all three cases decided by different Justices in the same District. | ||
| FACTS: Chicago police officers, while executing a warrant for defendant’s nephew at his home observed defendant, who had been sleeping in a living room adjacent to the entryway, attempt to conceal a handgun he retrieved from an armchair cushion. The officers then confiscated the gun (a fully loaded and uncased Ruger pistol). At a bench trial the defendant was convicted of aggravated unlawful use of a weapon, given 30 months probation and ordered to pay $729 in fine, fees and costs. | ||
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STATUTE: The statutory provision re: “aggravated unlawful use of a weapon” provides, in relevant part:
“(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 on land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearms, and . . . (3) One of the following factors is present: (A) The firearm was uncased, loaded and immediately accessible at the time of the offense [emphasis added.] 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002). |
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| APPELLATE COURT DECISION: Following are highlights of the opinion, with some omissions not noted in the quoted text, Justice Gallagher delivering the opinion, with O’Brien, P.J., and O’Mara Frossard, J., concurring. | ||
| The Court began its inquiry with the ordinary meaning of “abode” and after referring to Webster’s and Black’s Law Dictionaries stated: | ||
| “A person . . .may have more than one residence at a time, but only one Domicile.” [Citations omitted.] (“the word ’“abode,” in its usual and ordinary meaning, connotes the place where one resides”). In short, this authority suggests that the ordinary meaning of ‘abode’ is a place with which one has significant and persistent contacts, i.e., a place that a person considers his home and where he or she intends to live on a more than transient basis. See also United Bank of Love Park v. Dohm, , 115 Ill. App. 3d 286, 291, 450 N.E. 2d 974, 978 (1983), (holding that a person’s usual place of “abode” as used in 2-203 of the Code of Civil, Procedure is a residence with which an individual maintains intimate, unbroken and substantial ties). | ||
| “Accordingly, while the ordinary meaning of ‘abode’ stands alone— without a modifier such as ‘permanent’ or ‘temporary’ preceding it—always encompasses one’s domicile or places of legal or permanent residence, the term also includes those places with which a person has established significant contacts through continued or extended habitation. | ||
| “Under this definition, a person who merely spends the occasional night someplace, even if he does so regularly, cannot be said to have established such substantial and uninterrupted ties with that location as to make it his abode.” | ||
| [ The defendant’s position that he was an overnight guest, and thus his sister’s house was his “abode” rested entirely on the Taylor decision, and the State countered with People v. McClure, 43 Ill. App. 3d 1059, where the Court held that a defendant found with a shotgun in his possession while in his briefs in his girl friend’s apartment (located on the same floor as his apartment) was not in his “abode.” McClure held that ”unlike in Taylor, no evidence suggested the defendant kept any of his possessions at his girlfriend’s apartment.” McClure at 1063. This Court held that “the McClure court distinguished Taylor without addressing how defining ‘abode’ as ‘overnight living quarters’ might affect the outcome of the case.” Also, this Court has previously held that ‘abode’ as addressed in Taylor was merely dicta.] | ||
| “Despite our agreement with defendant that “abode” has the same meaning in both weapons offenses [ Unlawful use of weapons (720 ILCS 5/24-1 & Aggravated unlawful use of weapons (720 ILCS 5/24.6)] because equating “abode” with the “overnight living quarters” is inconsistent with the law’s purpose and legislative intent, we disagree that “abode” means any overnight living quarters. Instead, we must ascribe “abode” its ordinary meaning, namely a place of residence with which an individual has established substantial and uninterrupted ties and which he treats as a home.” [Underscoring added.] | ||
| “ . . . Further, legislative history from subsequent amendments to the unlawful use offenses supports attributing to “abode” its ordinary meaning. In response to a number of municipal ordinances that made it unlawful to keep a firearm in one’s home—thereby abrogating the ”abode” element—the legislature passed section 24-10 of the Criminal Code, creating an affirmative defense against such ordinances. Specifically, the statute provides: | ||
| It is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another *** when on his or her land or in his or her abode or fixed place of business.’ (Empahsis added.) 720 ILCS 5/24-10 (West 2004).” | ||
| “. . . Our conclusion is supported by the fact that equating ‘abode’ with ‘overnight living quarters’ significantly erodes the purpose of the law and also leads to potentially absurd results. Indeed, accepting defendants interpretation of “abode” would exclude from prosecution any individual who could plausibly show that he had either spent the night or intended to spend the night at the place of arrest.’ | ||
| [Defendant also argued that because, under Section 2-6 of the Criminal Code, the legislature defined “dwelling” to be ‘a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence,’ it is synonymous with residence ( relying on Talylor), but not with abode; thus, “abode” must mean “overnight living quarters.”] The Court rejected this argument, as well, stating: | ||
| “ We disagree, . The legislature’s definition of dwelling is not synonymous with residence or abode. To the contrary, the legislative definition of “delling” in the Criminal Code sweeps so broadly as to include any possible location fit for human habitation. See 720 ILCS 5/2-6 (West 2002).” | ||
| “. . . We find no merit in distinguishing between terms used in statutes that are not in para materia. We therefore decline to follow Taylor’s definition of “abode” as “overnight living quarters. | ||
| “. . . In sum, we hold that the ordinary meaning of “abode” is a place of residence where an individual maintains substantial and long-lasting contacts—i.e., his home—and that the legislature intended this definition when it used the word ’abode” in the unlawful-use offenses. Although under this definition an individual may have more than one abode, it does not follow that any place a defendant spends a night as a guest qualifies as his abode.” | ||
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“. . . Affirmed in part and vacated in part. NOTE: In addition to affirming the defendant’s conviction for the Aggravated UUW charge, the Appellate Court considered several other non-firearm issues, not addressed in this report and commentary, re: whether defendant’s sentence was excessive (No); whether sentence was erroneous as a matter of law (No); whether the lower court abused its discretion when sentencing (No); whether the trial court improperly imposed various fines and fees (Yes). |
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United States v. Mixon, C.A. 7 (Wis.) , 457 F. 3d 615 (6/12//06) |
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| As noted in my comments at other sections of this site, normally “felon in possession of firearm(s) cases” are not reported unless they involve novel issues, or a judge makes some comment regarding gun control—the object then being to alert viewers of those courts expressing pre-conceived notions about our right to keep and bear arms. This case demonstrates how far the prosecution can stretch a factual scenario to make a charge stick--with a little help from the Court. | ||
| The applicable law: Under the federal Gun Control Act, 18 U.S.C. Sec. 922(g)(1), “ . . .a felon may not ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” In its definition of firearm, the Act specifically excludes from its application “any gun that is an antique ‘i.e., any firearm manufactured in or before 1898.’’’ 18.U.S.C. Sec. 921(a)(3), (a) (16). Defining “ammunition” the Act states: “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” Id Sec. 921(a)(17)(A). “Bullets are ‘ammunition’ if they are designed for use in any firearm.” 18. Sec. 921 (a)(17)(B). | ||
| [Note: Throughout its reported decision, the Court, as common with gun cases, when referring to ammunition describes the rounds or cartridges as “bullets.”] | ||
| Facts When stopped by police on suspicion that he planned to rob a video store, the defendant, a convicted felon, was found in possession of a revolver with five rounds, later identified as a .38 caliber Hopkins & Allen revolver manufact ured before 1899. | ||
| The defendant’s initial approach was to attack the police recovery of the gun and ammunition by motion on the theory that the police had no probable cause for the stop and search. A magistrate judge issued a finding recommending the District Court find there was “reasonable suspicion” for the stop & search. Before that could be effectuated, the Defendant executed a plea agreement, part of which stipulated to the commerce element (the bullets having been manufactured in Russia and brought to the U.S. in foreign commerce). The guilty plea was withdrawn when the defendant alleged he entered into the plea on the mistaken belief that any federal sentence would have to run concurrent with one he was serving for his parole violation. | ||
| Although Mixon could legally possess the firearm because it is exempted under the Act as an antique firearm, he was charged with unlawful possession of “ammunition.” | ||
| Arguments & Appellate Court Decision: | ||
| The ammunition loaded in the gun were Russian-made 9mmWolf cartridges, and the prosecution alleged they were designed for use in any firearm. | ||
| The defendant argued that his 1898 .38 caliber revolver is not a “firearm” within the meaning of the Act, and, therefore,” because ammunition is prohibited only if it is designed for a firearm, bullets designed for an antique are not prohibited for felons to possess.” On that issue the Court had this to say: | ||
| “If these bullets had been designed exclusively for use in the Hopkins & Allen revolver, they would not be ‘ammunition’ because by definition this antique revolver is not a ‘ firearm.’ On the other hand, if the bullets were designed for use, not just in this antique revolver, but in other guns manufactured after 1898, then it would appear, given the literal language of the definition, that they are ‘ammunition’ because they would be designed for any firearm.” | ||
| Defendant had an additional argument, that is—“the only logical construction of the statute is that bullets loaded in an antique firearm—whether or not they are usable in a gun that’s not an antique—are not ’ammunition’ as that term is used in the Gun Control Act.” The Court’s response to that argument: | ||
| “What was not disputed before trial is that Mixon had a .38-caliber firearm loaded with 9mm rounds. But it’s the design of the bullets, not the location, that matters, There was no agreement—indeed no effort by Mixon to suggest—that these bullets were ‘designed’ for use in this gun. It is true that the bullets were in the cylinder, but that simple fact hardly establishes as a matter of law that they were designed for, and could be safely used , in this weapon. | ||
| “ . . . More importantly, though, Mixon did not even stipulate that the 38-caliber handgun was an ‘antique firearm’ or that it was manufactured in 1898 or before. Thus, as far as the trial evidence shows, Mixon was caught with both a gun and bullets that he could not lawfully possess as a felon.” Affirmed. | ||
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