People v. Aguilar

Citation2 N.E.3d 321,377 Ill.Dec. 405,2013 IL 112116
Decision Date19 December 2013
Docket NumberNo. 112116.,112116.
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Alberto AGUILAR, Appellant.
CourtSupreme Court of Illinois


Held Unconstitutional

S.H.A. 720 ILCS 5/24–1.6(a)(1), (a)(3)(A), (d)Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and David C. Holland, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Fowler, Annette Collins, Susan Schierl Sullivan, Veronica Calderon Malavia and Kathryn Schierl, Assistant State's Attorneys, of counsel), for the People.

Victor D. Quilici, of River Grove, and Stephen P. Halbrook, of Fairfax, Virginia, for amici curiae Illinois State Rifle Association et al.

William N. Howard and Garry L. Wills, of Freeborn & Peters, of Chicago, for amici curiae Certain Illinois Legislators.

Stephen A. Kolodziej, of Brenner, Ford, Monroe & Scott, Ltd., of Chicago, and Charles J. Cooper, David H. Thompson and Peter A. Patterson, of Cooper & Kirk, PLLC, of Washington, D.C., for amicus curiae National Rifle Association of America, Inc.

Michael P. O'Shea, of Oklahoma CIty, Oklahoma, for amicicuriae Professor Nicholas J. Johnson et al.

Janet Garetto, of Chicago (David H. Tennant, of Rochester, New York, Lynette Nogueras-Trummer, of Buffalo, New York, and Cameron R. Cloar, of San Francisco, California, of counsel), for amici curiae Legal Community Against Violence et al.

Alexander D. Marks, of Burke, Warren, MacKay & Serritella, P.C., of Chicago, and Jonathan L. Diesenhaus, S. Chartey Quarcoo and Matthew C. Sullivan, of Hogan Lovells US LLP, and Jonathan E. Lowy and Daniel R. Vice, all of Washington, D.C., for amici curiae Brady Center To Prevent Gun Violence et al.

Ranjit Hakim, of Mayer Brown LLP, of Chicago, for amicicuriae Historians Patrick J. Charles, Peter Charles Hoffer, Stanley N. Katz, William Pencak and Robert J. Spitzer.


Justice THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman dissented upon denial of rehearing, with opinion. Justice Theis dissented upon denial of rehearing, with opinion.

¶ 1 The principal issue in this case is whether the Class 4 form of section 24–1.6(a)(1), (a)(3)(A), (d) of the Illinois aggravated unlawful use of weapons (AUUW) statute (720 ILCS 5/24–1.6(a)(1), (a)(3)(A), (d) (West 2008)) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II). We hold that it does.


¶ 3 The facts are not in dispute. Officer Thomas Harris of the Chicago police department testified that, on the evening of June 12, 2008, he was on surveillance duty near 4217 West 25th Place. Officer Harris observed a group of male teenagers screaming, making gestures, and throwing bottles at passing vehicles. This group included defendant, who Officer Harris noticed was holding the right side of his waist area. After watching the group walk into a nearby alley, Officer Harris radioed other officers who were nearby.

¶ 4 Officer John Dolan testified that, after receiving a radio communication from Officer Harris, he and Officers Wagner and Triantafillo traveled to 4217 West 25th Place. Once there, Officer Dolan watched several individuals walk into the backyard. The officers followed, and Officer Dolan heard defendant yell an expletive. Officer Dolan then saw that defendant had a gun in his right hand. Defendant dropped the gun to the ground, and Officer Dolan took defendant into custody while another officer recovered the gun. When Officer Dolan examined the gun, he saw that the serial number had been scratched off and that it was loaded with three live rounds of ammunition. Officer Dolan learned later that defendant did not live at 4217 West 25th Place.

¶ 5 Defense witness Romero Diaz testified that he lived at 4217 West 25th Place and that defendant was his friend. Diaz explained that, on the evening in question, he was with defendant and another friend in his backyard waiting for defendant's mother to pick up defendant, when three or four police officers entered the backyard with flashlights and ordered him and his friends to the ground. When defendant hesitated to comply, one of the officers tackled him to the ground. According to Diaz, defendant did not have a gun and did not drop a gun to the ground when the officers entered the backyard.

¶ 6 Defendant testified that, on the night of June 12, 2008, he was with friends at the corner of 26th Street and Keeler Avenue. After spending about 45 minutes there, he and another friend walked to Diaz's backyard. While defendant was waiting there for his mother to pick him up, three police officers entered the yard with flashlights and guns drawn. One officer yelled at defendant to get on the ground, and when defendant moved slowly, another of the officers tackled defendant. The officers then searched the yard, showed defendant a gun, and accused him of dropping it. Defendant denied ever having a gun that evening, and he denied dropping a gun to the ground.

¶ 7 After weighing the credibility of the witnesses, the trial court found defendant guilty of both the Class 4 form of section 24–1.6(a)(1), (a)(3), (d) and unlawful possession of a firearm (UPF) ( 720 ILCS 5/24–3.1(a)(1) (West 2008)). The trial court sentenced defendant to 24 months' probation for the AUUW conviction and did not impose sentence on the UPF conviction.

¶ 8 Defendant appealed, and the appellate court affirmed with one justice dissenting. 408 Ill.App.3d 136, 348 Ill.Dec. 575, 944 N.E.2d 816. We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).1

¶ 10 Standing

¶ 11 In this case, we are asked to decide whether the two statutes under which defendant stands convicted—namely, the Class 4 form of section 24–1.6(a)(1), (a)(3)(A), (d) and section 24–3.1(a)(1) of the UPF statute—violate the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. Before we get to those questions, however, we must quickly dispose of the State's argument that defendant lacks standing to contest the constitutionality of these statutes. In support of this argument, the State invokes the familiar principle that, in order to have standing to contest the constitutionality of a statutory provision, the party bringing that challenge must show that he falls within the class of persons aggrieved by the alleged unconstitutionality. See, e.g., People v. Bombacino, 51 Ill.2d 17, 20, 280 N.E.2d 697 (1972). According to the State, this principle means that, in this case, before defendant can argue that either of these statutes violates the second amendment, he first must be able to show that he was engaged in conduct that enjoys second amendment protection. Yet there is no way defendant can do this, the State maintains, because defendant himself concedes that the conduct involved in this case, namely, possessing a loaded, defaced, and illegally modified handgun on another person's property without consent, enjoys no such protection. Thus, the State insists, defendant has no standing to bring a second amendment challenge.

¶ 12 We reject the State's argument. The State assumes that defendant is arguing that the enforcement of sections 24–1.6(a)(1), (a)(3)(A), (d) and 24–3.1(a)(1) in this particular case violates his personal right to keep and bear arms, as guaranteed by the second amendment. But that is not what defendant is arguing. Rather, he is arguing that these statutes themselves facially violate the second amendment, and that consequently neither statute can be enforced against anyone, defendant included. See, e.g., People v. Manuel, 94 Ill.2d 242, 244–45, 68 Ill.Dec. 506, 446 N.E.2d 240 (1983) (a defendant cannot be prosecuted under a criminal statute that is unconstitutional in its entirety, as such a statute is void ab initio). This is a very different argument from the one the State assumes, and one that defendant undoubtedly has the standing to make. “One has standing to challenge the validity of a statute if he has sustained or if he is in immediate danger of sustaining some direct injury as a result of enforcement of the statute.” People v. Mayberry, 63 Ill.2d 1, 8, 345 N.E.2d 97 (1976). Here, the challenged statutes were enforced against defendant in the form of a criminal prosecution initiated by the People of the State of Illinois, and the “direct injury” he sustained was the entry of two felony convictions for which he was sentenced to 24 months' probation. If anyone has standing to challenge the validity of these sections, it is defendant. Or to put it another way, if defendant does not have standing to challenge the validity of these sections, then no one does. The State's standing objection is rejected.

¶ 13 Second Amendment
¶ 14 Class 4 AUUW

¶ 15 We now turn to the main issue, namely, the constitutionality of the two statutes at issue. We begin with the Class 4 form of section 24–1.6(a)(1), (a)(3)(A), (d), which states:

(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 land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]

* * *

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense;

* * *

* * *

(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony * * *.” 720 ILCS 5/24–1.6(a)(1), (a)(3)(A), (d) (West 2008).

Statutes are presumed constitutional, and the party challenging the constitutionality of a statute carries the...

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