Chicago Cook County Court Finds Aggravated Unlawful Use of a Weapon Statue Violates the Proportionate Penalties Clause of the Illinois Constitution

A Circuit Court Judge dismissed all remaining charges against a defendant after the Court ruled that the Aggravated Unlawful Use of a Weapon statute violated the proportionate penalties clause of the Illinois Constitution. The defendant was arrested for possessing a loaded firearm with in a vehicle that was on a public street and was charged with several counts of violating the Aggravated Unlawful use of a Weapon statute including: 720 ILCS 5/24-1/6(a)(1),(3)(A); (a)(1),(3)(C); (a)(2),(3)(A); and (a)(2),(3)(C).

After the Illinois Supreme Court ruled in People v. Aguilar, 2013 IL 112116 (2013), that section 24-1.6(1)(1), (a)(3)(A), violated the right to keep and bears arms as guaranteed by the Second Amendment to the United States Constitution, the Cook County State’s Attorney dismissed those counts. The remaining counts charged defendant with possessing a firearm without a valid Firearm Owner’s Identification Card (FOID). Defendant filed a motion to dismiss the remaining counts on the basis that the possession of a firearm without a valid FOID contains the same elements as a violation of the Firearm Owner’s Identification Act, 430 ILCS 65/2(a)(1). Because the same acts must be proven for both offenses, the penalties must be the same. Here the court concluded that the proportional penalties provision of the Illinois Constitution was violated and thus dismissed the remaining charges against defendant.

Below is the Illinois Pattern Jury Instruction of the offense of Failure to Possess a Firearm Owner’s Identification Card.

18.26

Issues In Failure To Possess A Firearm Owner’s Identification Card

To sustain the charge of failure to possess a firearm owner’s identification card, the State must prove the following propositions:

First Proposition: That the defendant knowingly [(acquired)(possessed)] [(a firearm) (Firearm ammunition)] within this State; and

Second Proposition: That the defendant at the time of his [(acquisition) (possession)] of the [(firearm)(firearm ammunition)] failed to have in his possession a firearm owner’s identification card previously issued in his name by the Department of State Police.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.

For More information contact Chicago Criminal Defense attorney Michael Rosenblat.