Opinion
1-24-0493B
05-23-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMIAH D. BRAND, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 24 C 660036 Honorable Tiana S. Blakely, Judge Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justice McBride dissents in the judgment. Justice Ellis specially concurs in the judgment.
ORDER
HOWSE, PRESIDING JUSTICE
¶ 1 Held: The judgment of the circuit court of Cook County denying defendant's release from detention is reversed; the trial court erred when it ruled no condition or combination of conditions could mitigate defendant's threat to the safety of any person or the community.
Notice of Appeal was filed on March 5, 2024 with a disposition due date of May 17, 2024. The record was filed on March 22, 2024; Appellant's Memorandum was filed on April 11, 2024; and Appellee's Memorandum was filed on May 3, 2024. Pursuant to Rule 604(h), for good cause shown, the decision due date is extended to June 17, 2024.
¶ 2 Defendant, Jeremiah D. Brand, appeals the judgment of the circuit court of Cook County denying defendant pretrial release. For the following reasons, we reverse the circuit court's judgment and remand for further proceedings.
¶ 3 BACKGROUND
¶ 4 On January 12, 2024, the State indicted defendant, Jeremiah D. Brand, on one count of unlawful use or possession of a weapon by a felon (UPWF) in that he knowingly possessed, in his own abode, a rifle after having been previously convicted of unlawful use of a weapon by a felon (UUWF) (count I) and one count of UPWF in that he knowingly possessed, in his own abode, a shotgun after having been previously convicted of UUWF (count II). The matter was set for arraignment on January 31, 2024, but defendant requested a continuance. On February 1, 2024, the circuit court of Cook County arraigned defendant and he pleaded not guilty to both counts. The matter was continued by agreement. On February 1, 2024, the trial court entered an order that defendant shall remain in custody.
¶ 5 On February 29, 2024, defendant filed a Motion to Reconsider Detention. Defendant's motion stated that the State filed a motion for detention on December 16, 2023, which the trial court granted. Defendant's motion argued that defendant was not charged with a crime of violence, the weapons recovered were registered to his father, and that defendant was not in possession of the weapons that were recovered in his residence, which is his father's home. On March 1, 2024, defendant appeared in court. The court held a hearing on defendant's motion to reconsider detention. At the hearing, the State proffered the following evidence in support of retaining defendant in custody.
¶ 6 The State claimed that evidence would show that on December 10, 2023, a juvenile lived in the same household as defendant. The defense informed the trial court that the juvenile, who the defense said was around 15 or 16 years old, had been living in the residence and was the child of defendant's father's girlfriend. The father's girlfriend recently died. The child continued to live in defendant's father's home. On December 10, 2023, the juvenile was removed from defendant's father's residence, after which the juvenile's uncle became aware of images on the juvenile's phone of defendant "brandishing firearms." The uncle reported the images to police who obtained "the phone dump of the phone," which revealed "numerous" photos of defendant "brandishing" various firearms. Police learned defendant does not have a FOID card or CCL and that he did have two prior convictions for gun-related offenses. By comparing body-worn camera footage of the interior of defendant's home with the images on the phone police determined the images were taken inside defendant's home.
¶ 7 On December 14, 2023, police executed a search warrant at defendant's home with defendant present. Police seized four firearms including a Smith and Wesson rifle and a Rock Island Armory shotgun. The rifle was unloaded and in a gun case. The ammunition for the rifle was in the same room in which the rifle was located. The shotgun was unloaded and in the same room with the rifle. Ammunition for the shotgun was found in other rooms throughout the home. (The State did not proffer how the room in which the firearms were seized was being used; e. g., bedroom, living room, etc.) The State proffered: "The defendant is seen with the shotgun on a video obtained from a cell phone." Police seized two more handguns, neither of which was loaded. The first handgun was in defendant's father's bedroom in an unlocked filing cabinet. The second handgun was in a bag on a workbench in the attached garage. The ammunition for both handguns was in "multiple rooms throughout the home." The State proffered that video from defendant's phone shows him "brandishing" two different handguns police did not locate in the home.
¶ 8 The State stated that defendant's father claimed ownership of all of the firearms and that defendant's father has a valid FOID card. Defendant's father thought the handgun seized from the garage should have been in the metal filing cabinet and that the father did not know how that gun got in the garage. Police removed all guns from defendant's father's home.
¶ 9 The State then proffered defendant's criminal history, including that defendant received a sentence of three and a half years in the Department of Corrections for his 2021 conviction for the class 3 felony UUWF. Defendant was paroled for that offense and was discharged from parole on September 3, 2023. The State argued:
"Based on the defendant's history and the fact that the defendant does not seem to be understanding the fact that he is not allowed to have weapons, the fact that he is video-videoing his weapons, holding weapons with a juvenile in the home, we believe that there is no set of circumstances or no set of limitations to place on this defendant, and we request that you hold the defendant in custody."
¶ 10 The defense restated that defendant's father has a valid FOID card and CCL and is the registered owner of all of the weapons at issue. Defendant's attorney had not viewed the photos or videos from defendant's phone. Nonetheless, defendant's attorney argued the State failed to establish when they were taken and by whom. The defense argued that the State's proffer made it unclear whether the minor was present for any of the photos or videos. The defense also argued the firearms were in the residence lawfully, there is no question to whom they belonged, who put them there, and who brought them into the home. The defense conceded "that an individual who is on parole is not supposed to be in a residence where there are firearms, but that defendant is no longer on parole, so there is no restriction on him being in a residence where there are firearms."
¶ 11 The defense argued defendant does not have a violent background and this case does not involve violence. However, defendant was in a home where a homeowner owns and possesses firearms. The defense argued the photos and/or videos and the State's proffer do not necessarily rise to the level of possession because "to be able to possess firearms, you really have to be able to show that you exert exclusive control." Defendant's attorney characterized the photos and/or videos as "show and tell."
¶ 12 The defense argued there is nothing about the case that demonstrates by clear and convincing evidence that defendant is a threat to the community. Defendant is living with his father, suffers from a seizure condition, and had developmental issues as a minor. There was no evidence of a failure to appear in court, of any threat being made to the minor, or that "this case deals with someone running around in the community brandishing weapons." Defendant's attorney added that "it is not considered child endangerment to have a minor residing in a home where the homeowner owns a firearm." All of the weapons were unloaded, and they are no longer in the residence because they were seized. The defense argued that the State's argument that defendant is a threat or a presumption that defendant is a threat was "overcome by the facts and circumstances in this case."
¶ 13 Additionally the defense argued that defendant could be placed on electronic monitoring and that a condition of his release could be that the defendant cannot reside in a residence where there are any firearms or ammunition. The defense argued the case could be resolved without requiring the loss of defendant's liberty without putting the community at risk.
¶ 14 The trial court orally found that defendant's arguments about who owned the firearms were "issues for trial on whether the State would be able to prove possession of those firearms." The court noted that what it heard from the State's proffer is that two of the firearms in the photos were not recovered so the court did not know if those firearms were loaded. The court agreed defendant does not have a violent criminal history but noted that he does have two weapons convictions including reckless discharge of a firearm. The court stated that was a concern "when he's alleged to have been handling firearms with the minor present, taking photos."
¶ 15 The trial court again said that was a concern for the court, so it found that defendant is a threat to the community, "or maybe not the community at large, but he's at home." The court expressed concern that defendant could have injured himself, his father, or anyone in the room with him. The court found that "clearly he doesn't have any professional training with firearms and that defendant has already been convicted of a reckless discharge of a firearm. The court found that placing defendant on electronic monitoring will not mitigate the risk because this offense occurred in a home. The court stated it had not heard anything that "will alter what has already been put in place, which is that [defendant] was to be detained in the Cook County Department of Corrections pending trial in this case." The court orally denied defendant's motion to reconsider defendant's detention status.
¶ 16 On March 1, the trial court entered a written order that defendant shall remain in custody. The trial court's written order found that the proof was evident or the presumption great for the following elements: (1) The court found that defendant committed an eligible offense; (2) The court found that defendant posed a real and present threat to the safety of any person or the community, based on the articulable facts of the case, in that he was shown in photographs with various firearms with a minor nearby and that although most of the firearms were recovered two were not, and defendant has two weapons offenses in his background including reckless discharge of a firearm; (3) The court found that no conditions or combinations of conditions can mitigate the real and present threat because electronic monitoring would not mitigate the threat.
¶ 17 The trial court found that electronic monitoring would not mitigate the threat because the offenses occurred in a home with access to weapons and defendant poses a threat to himself and others in the home by carelessly handling them. The court found that defendant's lack of training and experience with a firearm is evidenced by his conviction for reckless discharge of a firearm. The court ordered defendant detained and remanded him to the custody of the Cook County Sheriff.
¶ 18 On March 5, 2024, defendant filed a notice of appeal under the Pretrial Fairness Act (Act) pursuant to Illinois Supreme Court Rule 604(h) (eff. Dec. 7, 2023) of the trial court's order that he shall remain in custody. Defendant's notice of appeal argued the State failed to meet its burden of proving by clear and convincing evidence that the proof is evident or the presumption great as to the following elements for the following reasons: The defense argued that the State failed to meet its burden as to whether defendant committed the offense charged because the photos showing defendant in possession of a weapon are undated and unverified as to when they were taken or if the weapons in the photos are the weapons that were recovered. The defense also argued the weapons that were recovered (which may not be the weapons in the photos) belong to defendant's father in whose home defendant was staying. The defense claimed defendant's father has a valid Firearm Owners Identification Card and Concealed Carry License for the weapons that were recovered.
¶ 19 The defense argued the State failed to meet its burden of proving defendant poses a real and present threat to the safety of any person or persons or the community because neither his prior offense nor his current offense present clear and convincing evidence that defendant is a threat especially since the weapons were not loaded, not uncased, and not immediately accessible. The defense argued that defendant's conviction for UUWF is a class 3 felony, and his conviction for reckless discharge was a class 4 felony that resulted in a sentence of probation, which defendant terminated satisfactorily, and was 11 years ago. The defense argued the weapons were encased and unloaded, they belonged to defendant's father, and they were recovered in defendant's father's home. The weapons were not recovered from defendant's living quarters in his father's home.
¶ 20 Defendant also argued the State failed to meet its burden to prove that no condition or combination of conditions can mitigate the threat to any person or the community because the State relied solely upon defendant's prior firearms related convictions and a child endangerment charge "for which the State provided no evidence of said endangerment of the child." ¶ 21 Finally, defendant argued the court erred in its determination regarding conditions of pretrial release to ensure defendant's appearance for later hearings or from being charged with another offense because placing defendant on electronic monitoring would have ensured his presence in court and prevented defendant from committing subsequent offenses. Defendant argued there was no indication by the State that defendant had any history of failing to appear. Defendant argued he was denied an opportunity for a fair hearing prior to the entry of the order denying pretrial release.
¶ 22 On April 11, 2024, defendant filed a Memorandum in Support of Rule 604(h) Appeal. Defendant's memorandum only argues that the trial court erred in finding that the State clearly and convincingly established that home detention enforced by electronic home monitoring would not mitigate any threat defendant posed to any person(s) or the community "where the firearms he was charged with possessing were his father's and had been removed from the home by police." On May 3, 2024, the State filed a Response to Defendant's Memorandum in Support of Rule 604(h) Appeal. The State argues that defendant's arguments lack merit and that it demonstrated by clear and convincing evidence that no condition or combination of conditions would be sufficient to safeguard the public from defendant.
¶ 23 This appeal followed.
¶ 24 ANALYSIS
¶ 25 This is an appeal pursuant to the Pretrial Fairness Act, section 110-6.1(a)(1) of the Code (725 ILCS 5/110-6.1(a)(1) (West 2024)), from an order denying defendant's motion to reconsider the trial court's order retaining defendant in custody before trial. Pursuant to section 110-6.1(a)(1), the State may file a petition, and the circuit court shall conduct a hearing, to deny a defendant pretrial release only if a defendant is charged with a felony offense for which, based on the charge or the defendant's criminal history, a sentence of imprisonment, without probation, periodic imprisonment or conditional discharge, is required by law upon conviction (725 ILCS 5/110-6.1(a)(1) (West 2022)) and it is alleged that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case. 725 ILCS 5/110-6.1(a)(1) (West 2022). The State has the burden to prove, by clear and convincing evidence, the following relevant propositions:
"(a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction. * * * (e) Sentence. Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person shall be sentenced to no less than 2 years and no more than 10 years." 720 ILCS 5/24-1.1(a), (e) (West 2022).
"(1) the proof is evident or the presumption great that the defendant has committed an offense listed in subsection (a), and
(2) *** the defendant poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case, by conduct which may include, but is not limited to, a forcible felony, the obstruction of justice, intimidation, [or] injury, *** and
(3) no condition or combination of conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate (i) the real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case." 725 ILCS 5/110-6.1(e) (West 2024).
¶ 26 In making a determination that a defendant poses a real and present threat to the safety of any person or the community, the court may, but is not required, to consider, the following relevant factors:
"(1) The nature and circumstances of any offense charged, including whether the offense is a crime of violence, involving a weapon, or a sex offense.
(2) The history and characteristics of the defendant including:
(A) Any evidence of the defendant's prior criminal history indicative of violent, abusive or assaultive behavior, or lack of such behavior. ***
(B) Any evidence of the defendant's psychological, psychiatric or other similar social history which tends to indicate a violent, abusive, or assaultive nature, or lack of any such history.
(3) The identity of any person or persons to whose safety the defendant is believed to pose a threat, and the nature of the threat.
* * *
(8) Whether, at the time of the current offense or any other offense or arrest, the defendant was on probation, parole, aftercare release, mandatory supervised release or other release from custody pending trial, sentencing, appeal or completion of sentence for an offense under federal or state law.
(9) Any other factors, including those listed in Section 110-5 of this Article deemed by the court to have a reasonable bearing upon the defendant's propensity or reputation for violent, abusive, or assaultive behavior, or lack of such behavior." 725 ILCS 5/110-6.1(g) (West 2024).
¶ 27 STANDARD OF REVIEW
¶ 28 This appeal is based on the trial court's decision on the third element the State must prove to retain a defendant in custody before trial: that "no condition or combination of conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate (i) the real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case." 725 ILCS 5/110-6.1(e) (West 2024).
¶ 29 "The trial court must exercise a degree of discretion to determine whether any less restrictive means will mitigate the threat a defendant poses to a person or the community. 'Courts are "endowed with considerable discretion" where, as here, they are called upon to weigh and balance a multitude of factors and arrive at a decision that promotes not only "principles of fundamental fairness" but "sensible and effective judicial administration."' Id. ¶ 30. Thus,'
"[o]n the circuit court's determination that there were no conditions of release that could mitigate the safety risk, *** an abuse of discretion standard is most appropriate." Id.' 'An abuse of discretion occurs when the circuit court's decision is arbitrary, fanciful or unreasonable, or where no reasonable person would agree
with the position adopted by the [circuit] court.' (Internal quotation marks omitted.) Id." People v. Saucedo, 2024 IL App (1st) 232020, ¶ 36.
¶ 30 NO CONDITIONS WILL MITIGATE THE THREAT
¶ 31 Defendant's notice of appeal argues the State failed to meet its burden of proving that no conditions can mitigate the real and present threat to the safety of any person or persons or the community, based on the facts of the case or defendant's willful flight, for the following reason:
"The State relied solely upon the facts of [defendant's] prior criminal history involving firearms and a child endangerment charge for which the State provided no evidence of said endangerment of the child."
¶ 32 On appeal to this court, defendant confines his argument to whether any conditions of pretrial release will mitigate any threat defendant poses to a person or the community; specifically, defendant argues that home detention enforced by GPS location monitoring could mitigate any threat. Defendant claims this case is not like a case in which a defendant charged with unlawful firearm possession could obtain possession of a firearm again because it is unknown how they did so in the first place. Here, the facts of the case demonstrate how defendant obtained possession of the firearms. Defendant came into possession of firearms because they were his father's. Now, however, the guns have been removed and no facts of record suggest that defendant's father would bring more firearms into the home; therefore, home confinement with defendant's father would mitigate any threat that defendant may harm someone by recklessly discharging a firearm.
¶ 33 Defendant argues "releasing [defendant] on conditions of home detention with his father enforced by GPS location monitoring would be sufficient to mitigate the already distant risk that he would hurt someone by recklessly discharging a firearm." Defendant argues that any threat he poses is comparatively slight. The current offenses were not reckless, and no reckless or dangerous meaning or purpose was ascribed to the photographs. The threat the trial court identified was that "having fired a gun in a reckless fashion roughly a decade ago, [defendant] might do so again." Defendant argues that this threat the trial court identified is based on speculation rather than specific articulable facts supported by clear and convincing evidence.
¶ 34 Furthermore, defendant argues that any threat can be mitigated by home confinement with GPS monitoring with the condition that defendant not possess firearms or reside in a home where firearms are present. Defendant argues the facts of the case do not suggest defendant's father would bring firearms back into the home because the facts are that defendant's father legally obtained and possessed the guns, has no criminal history, and further suggest defendant's father was surprised defendant was handling his guns in the first place. Defendant argues there is no reason to believe defendant might obtain firearms in the future because the facts demonstrate how he acquired the firearms he did possess. As for the weapons in the photos that were not recovered, defendant argues the facts of the case reveal nothing about them including where the photos were taken and whether the firearms were real.
¶ 35 The State responds defendant was seen in photos holding multiple firearms "while in the home in which a juvenile lives." Defendant has a prior "violent offense" for reckless discharge and should "absolutely know that he cannot possess a firearm," yet he did so anyway. Defendant had access to and possessed guns despite his violent gun conviction, demonstrating that defendant is a real and present threat to the community and that no conditions would mitigate that threat. The State argues that the trial court's finding that, "given the nature and circumstances of the offense, combined with defendant's access to guns despite not being able to possess them, [defendant] constitutes a danger to the community," is not an abuse of discretion because it is not arbitrary or unreasonable. The State also asserts that given defendant's history and characteristics, the trial court had no basis to believe any conditions would mitigate the real and present threat to safety defendant poses or ensure defendant's appearance in court, and therefore its findings are not an abuse of discretion.
¶ 36 "[T]he State has the burden to prove by clear and convincing evidence that the proof is evident or the presumption great that *** no condition or combination of conditions can mitigate the real and present threat to the safety of any person or the community or prevent the defendant's willful flight from prosecution." People v. Trottier, 2023 IL App (2d) 230317, ¶ 10. The State has failed to meet that burden. The specific, articulable facts of the case do not support finding that no condition or combination of conditions can mitigate the real and present threat to the safety of any person or persons or the community.
¶ 37 In this case, the trial court relied on the following specific, articulable facts. The trial court noted that two of the firearms in the photos were not recovered, so the court did not know if those firearms were loaded. The specific facts of the case do not establish that defendant has a violent criminal history (the circumstances of defendant's reckless discharge conviction being unknown), but nonetheless he does have two weapons convictions including reckless discharge of a firearm. The court found defendant is "alleged to have been handling firearms with the minor present, taking photos." That was a concern for the court because "defendant could have injured himself, his father, or anyone in the room with him." The court found that "clearly he doesn't have any professional training with firearms and that defendant has already been convicted of a reckless discharge of a firearm. The court found that placing defendant on electronic monitoring will not mitigate the risk because this offense occurred in a home.
¶ 38 The trial court considered the fact two guns in the pictures were not recovered and, therefore, the court did not know whether they were loaded when the photos were taken. However, police searched the home and seized all of the guns. There was no evidence presented from which to reasonably conclude those additional two guns were secreted somewhere in the home. The trial court considered defendant's prior weapons offense but the State did not proffer any evidence of the circumstances of those offenses. The State repeatedly argues on appeal that defendant took the photos in a home where a juvenile lives but fails to recognize that the facts of the case are that the juvenile was removed from defendant's father's home, which is what lead to police becoming aware of the photos in the first place. Even assuming, arguendo, defendant's prior reckless discharge resulted from defendant recklessly handling a weapon under similar circumstances, i.e., holding it for a photograph or another reason, a condition of release forbidding defendant from being present in any residence where guns are kept and enforcing that restriction with electronic monitoring would mitigate the risk of a similar reckless discharge occurring again. The only fact of record to support finding that the proposed conditions would not be effective is that defendant possessed firearms despite previously being prohibited from doing so. But the facts establish that defendant possessed firearms for the current offense because his father lawfully possessed them in the home where defendant lived, where the State failed to proffer any other explanation. There are no facts of record to support finding that defendant's father will repeat that behavior.
¶ 39 We agree with defendant that there are conditions of pretrial release that will mitigate any threat defendant poses to any person(s) or the community. That is, the court may place defendant on home confinement and electronic monitoring with an order that defendant may not reside in a home where any firearms are present. These conditions will mitigate any threat from the fact the "offenses occurred in a home with access to weapons and defendant poses a threat to himself and others in the home by carelessly handling them."
¶ 40 We find that the trial court arbitrarily concluded that defendant's prior offenses created a threat either in his home or when taking photos. We find based on the specific articulable facts of the case that there are conditions of release the court can impose to mitigate the threat defendant poses to himself or others, therefore we find the trial court abused its discretion when it determined no such conditions of release existed.
¶ 41 Therefore, the trial court's judgment is an abuse of discretion. Saucedo, 2024 IL App (1st) 232020, ¶ 36 ("An abuse of discretion occurs when the circuit court's decision is arbitrary *** or unreasonable."). The trial court's order requiring defendant's pretrial detention is reversed, and the case is remanded for further proceedings in a manner consistent with this order.
¶ 42 CONCLUSION
¶ 43 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the case remanded.
¶ 44 Reversed and remanded.
¶ 45 JUSTICE McBRIDE, dissenting:
¶ 46 I respectfully dissent from the maj ority's decision to reverse the trial court's order denying defendant's petition to release him from detention. I would affirm the trial court's judgment, because I believe the proffered evidence supports the trial court's conclusion that continued detention is necessary to avoid a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case.
¶ 47 Initially, I would note that defendant appeals, not from an initial order denying pretrial release, but from an order for his continued detention. The record shows that defendant was detained pursuant to the State's initial petition on December 16, 2023. Thereafter, on February 29, 2024, defendant filed a "motion to reconsider detention," which the court denied after a hearing on March 1, 2024. When the trial court considers a defendant's continued detention, it need not conduct the same kind of comprehensive hearing, or make the same findings, as required in an initial hearing. See People v. Hongo, 2024 IL App (1st) 232482, ¶ 21. Instead, the statute provides that, at subsequent appearances, the court must find "that continued detention is necessary to avoid a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case, or to prevent the defendant's willful flight from prosecution." 725 ILCS 5/110-6.1(i-5) (West 2022).
¶ 48 Here, the proffered facts established that defendant had a prior conviction for reckless discharge of a firearm in 2014, and a conviction for unlawful use of a weapon by a felon in 2021. Despite defendant's status as a convicted felon, multiple photographs and videos of defendant brandishing several firearms were recovered from a juvenile's cell phone, which appeared to be taken in the home defendant shared with the juvenile. Some of the firearms depicted in the photos were recovered from defendant's home and determined to be registered to defendant's father, while two other of the firearms defendant brandished were not recovered.
¶ 49 Although the majority comments that defendant does not have "a violent criminal history," defendant has a 2014 conviction for reckless discharge of a firearm, which can hardly be characterized as nonviolent. See 720 ILCS 5/24-1.5(a) (West 2012) ("A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual."). Defendant also has a 2018 conviction for unlawful use of a weapon by a felon, and our legislature and courts have consistently recognized the danger inherent in the possession of firearms by those who are prohibited from doing so. The legislature has specifically pronounced that "in order to promote and protect the health, safety and welfare of the public, it is necessary and in the public interest to provide a system of identifying persons who are not qualified to acquire or possess firearms." 430 ILCS 65/1 (West 2022). Defendant, as a convicted felon, is explicitly prohibited from possessing any firearms. People v. Davis, 2023 IL App (1st) 231856, ¶ 28, citing 720 ILCS 5/24-1.1 (West 2022) ("[c]onvicted felons may not possess firearms."). Accordingly, defendant's possession of firearms, both in his 2018 conviction, and under the proffered facts here, "goes directly against the legislature's stated purpose of promoting and protecting the safety of the public from the unlawful possession of firearms by certain individuals." Davis, 2023 IL App (1st) 231856, ¶ 28, citing 430 ILCS 65/1 (West 2022).
¶ 50 I also disagree with the majority's conclusion that home confinement would mitigate the threat defendant poses because "the guns have been removed and no facts of record suggest that defendant's father would bring more firearms into the home." The proffered facts indicate that defendant has access to firearms other than the ones registered to his father. In particular, the photographs show defendant brandishing two firearms which have never been recovered. Defendant evidently was able to access those firearms at the time the photographs were taken, and it is unknown where he obtained those firearms or where they went after the photographs were taken. In these circumstances, I do not agree that removal of some of the firearms defendant had access to and brandished in the photographs, suggests that defendant would no longer have access to any firearms.
¶ 51 Finally, I find the majority's conclusion that the trial court could mitigate any safety threat by placing "defendant on home confinement and electronic monitoring with an order that defendant may not reside in a home where any firearms are present," unconvincing. The proffered facts here establish that defendant has repeatedly failed to abide by restrictions on his ability to possess firearms. Despite his status as a convicted felon, defendant has, at least twice, possessed firearms when he was prohibited from doing so, including in circumstances for which he received a 2018 conviction for unlawful use of a weapon by a felon. The trial court was not required to close its eyes to defendant's demonstrated history of failing to abide by similar conditions, to conclude, as the majority does here, that the court could simply order him "not to reside in a home where firearms are present." The trial court's conclusion that such a condition would not mitigate the safety threat defendant poses, was certainly not "arbitrary, fanciful or unreasonable," as required to constitute an abuse of discretion. Saucedo, 2024 IL App (1st) 232020, ¶ 36.
¶ 52 For the foregoing reasons, I respectfully dissent.
¶ 53 Ellis, J., specially concurring.
¶ 54 For the reasons I have given previously, I disagree with the standard of review employed by the authoring justice. See People v. Whitaker, 2024 IL App (1st) 232009, ¶ 80 (Ellis, J., specially concurring); People v. Saucedo, 2024 IL App (1st) 232020, ¶ 67 (Ellis, J., specially concurring). But I concur in the judgment in all other respects.