Opinion
No. 1-11-1179
06-30-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK BOURDEAU, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 11071
Honorable
Stanley J. Sacks,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Palmer and Taylor concurred in the judgment.
ORDER
¶ 1 Held: The aggravated unlawful use of a weapon statute violates the right-to-bear-arms clauses found in the U.S. constitution. ¶ 2 On May 15, 2010, defendant, Mark Bourdeau, attended a gang funeral. Police were conducting surveillance there, when they witnessed defendant handling a firearm and arrested him for aggravated unlawful use of a weapon (AUUW). 720 ILCS 5/24-1.6 (West 2010). On March 9, 2011, defendant pled guilty to one count of AUUW and was sentenced to 18 months probation. ¶ 3 On appeal, defendant claimed that the AUUW statute violated both: (1) the second amendment to the federal constitution (U.S. Const., amend. II), and (2) the Illinois Constitution. Ill. Const. 1970, art. I, § 22. Defendant raised both facial and as-applied challenges. We did not find defendant's arguments persuasive, and we affirmed his conviction. People v. Bourdeau 2012 IL App (1st) 111179-U. ¶ 4 The Illinois Supreme Court subsequently entered a supervisory order directing us to vacate our judgment and reconsider in light of People v. Aguilar, 2013 IL 112116, to determine whether a different result was warranted. People v. Bourdeau, No. 114631 (Ill. 2014). After considering our supreme court's decision in Aguilar, we find that the AUUW statute is unconstitutional under the federal constitution and we reverse defendant's conviction and sentence.
¶ 5 BACKGROUND
¶ 6 In sum, undercover officers were conducting surveillance at a gang-related funeral when they observed defendant handling a gun while conversing with three or four others in the funeral home's parking lot. After defendant entered his vehicle, police detained defendant, searched the vehicle, and recovered a handgun. Defendant was then arrested for AUUW.
¶ 7 I. Information
¶ 8 On June 18, 2010, the State filed an information charging four counts of AUUW. Specifically, it alleged that on May 15, 2010: (1) defendant knowingly carried a firearm not on his own land or in his own abode or fixed place of business, and the firearm possessed was uncased, loaded and immediately accessible; (2) defendant knowingly carried a firearm not on his own land or in his own abode or fixed place of business, and a valid firearm owner's identification card had not been issued; (3) defendant knowingly carried a firearm on a public street, and the firearm was uncased, loaded, and immediately accessible; and (4) defendant knowingly carried a firearm on a public street, and a valid firearm owner's identification card had not been issued.
¶ 9 II. Pretrial Proceedings
¶ 10 On August 4, 2010, defendant filed two pretrial motions: a motion to suppress evidence; and a motion to quash arrest. Defendant sought suppression of the firearm on the ground that the search was executed without a warrant or probable cause. Defendant moved to quash the arrest arguing that, if the fruits of the illegal search were suppressed, then the police also lacked probable cause to arrest. After a suppression hearing on October 25, 2010, the trial court held that the search was not unreasonable and thus the officers also had probable cause to arrest. ¶ 11 At the suppression hearing, two witnesses testified. The defendant testified on his own behalf. The State called Officer Emmit McClendon of the Chicago police department, the arresting officer. ¶ 12 Defendant testified that, on the evening of May 15, 2010, he had driven to a funeral home with two passengers in his vehicle: Mariah Campbell, the sister of the deceased, and a male named Steve. Defendant could not remember Steve's last name. Defendant parked in the funeral home's parking lot, and backed his two-door vehicle into a parking spot with the passenger's door facing Western Avenue and the driver's door facing an alley. Defendant testified that a black truck was parked next to his vehicle blocking the view of his passenger's door as seen from Western Avenue. ¶ 13 Defendant testified that, after the funeral service ended, the attendees exited and gathered in front of the funeral home and in the parking lot. Defendant estimated that between 50 and 80 people gathered in these areas. While people were mingling, he went to smoke a cigarette in his vehicle. He was sitting in the front passenger seat with the door all the way open. While smoking a cigarette, defendant witnessed individuals whom he believed to be undercover police officers, dressed in black vests, shirts, and visible side arms, searching people in the parking lot. ¶ 14 Defendant testified that the police then approached his vehicle with guns drawn. They asked him to exit the vehicle, and he complied. He was handcuffed and placed standing by the rear of his vehicle. The police then searched his vehicle. However, they never asked for defendant's permission. ¶ 15 Defendant testified that the police recovered a pistol after three to four minutes of searching. Defendant stated that he had never observed the firearm before the day of the funeral. He was also uncertain where exactly the police found the weapon. Defendant testified that he later learned of the weapon's hiding place only after he retrieved his vehicle from the pound and searched the vehicle's interior. Defendant found his center console ripped up, and he assumed that was the compartment where the weapon was hidden. The defense then rested. ¶ 16 The State then called Officer Emmit McClendon on behalf of the State. The officer testified that he had been a police officer with the Chicago police department for 17 years. He explained that, on the evening of May 15, 2010, he was assigned to conduct surveillance at a gang funeral at 5024 South Western Avenue. Officer McClendon testified that, among his team of three other officers, he was the undercover officer. The team of officers were present at this location for fear of violence and retaliation between gangs. ¶ 17 The officer testified that he parked his vehicle on Western Avenue facing south, right by the entrance of the funeral home. Officer McClendon then testified that he observed a man, later identified as defendant, converse with three or four other men on the sidewalk. Officer McClendon observed the conversation from a distance of about 10 to 12 feet. During this conversation, the officer observed defendant retrieve and replace a shiny object from his back pocket. When defendant replaced the shiny object into his back pocket, Officer McClendon observed the object as a handgun. He immediately notified his team of defendant's description by radio transmission. Officer McClendon then observed defendant walk back to his vehicle and sit in the driver's seat with the door open. Defendant then moved towards the center console. At this point Officer J. Luna detained defendant and Officer M. A. Reno searched the vehicle and found the handgun. Officer McClendon did not recall how many people were in front of the funeral home or in the adjacent parking lot. In contrast to defendant's testimony, Officer McClendon testified that he was certain that a black truck was not parked next to defendant's vehicle. ¶ 18 During closing arguments, defense counsel stated that there was a credibility contest between defendant and Officer McClendon. Defense counsel argued that because defendant's testimony was not impeached, and was more detailed than the officer's, it should be viewed as more credible. Counsel argued that the discrepancies with respect to how defendant's vehicle was parked, whether there was an adjacent black truck, and how many people were standing around after the funeral should all be viewed in defendant's favor. However, the trial court found Officer McClendon's testimony to be more credible, denied the motion to suppress evidence, and thus found the subsequent arrest to be lawful. ¶ 19 The trial court found that the discrepancies in testimony were insignificant. The trial court observed that, even if defendant never retired to his vehicle, the officers would still have had probable cause to search defendant's person because Officer McClendon had observed the weapon before defendant approached his vehicle. The trial court concluded that the handgun would have been discovered regardless of when the search commenced. The trial court also explained that, given the circumstances of the funeral and the potential for gang violence and retaliation, approaching defendant with weapons drawn was a reasonable safety precaution.
The first names of both Officers Luna and Reno were not included in the record.
¶ 20 III. Conviction and Sentencing
¶ 21 On March 9, 2011, defendant's counsel requested a 402 conference. Ill. S. Ct. R. 402(d) (eff. Jul. 1, 1997). On the record, the trial court stated that, if defendant pled guilty to the first count of aggravated unlawful use of a weapon, the remaining three counts would be dismissed, and 18 months probation would be an appropriate sentence. The trial court reviewed defendant's prior criminal record of four midesmeanors. The parties stipulated that the testimony heard at the suppression hearing and Officer McClendon's police report were sufficient to establish a factual basis for the first count of aggravated unlawful use of a weapon. ¶ 22 Defendant pled guilty on March 9 to count I, for knowingly possessing a firearm not on his own land or in his own abode or business. 720 ILCS 5/24-1.6(a) (West 2010). He was sentenced to 18 months probation. Defendant did not file any posttrial motions. Defendant filed a notice of appeal on April 8, 2011, and this appeal followed.
Defendant's first charge, for possession of cannabis, was stricken from the docket with leave to reinstate. On defendant's second charge, also for cannabis possession, defendant was sentenced to six months of court supervision. On the third charge, for aggravated assault of a police officer or sheriff, defendant was sentenced to six months conditional discharge. His final charge, for failing to register for a firearm, resulted in a nonsuit.
¶ 23 ANALYSIS
¶ 24 On this direct appeal, defendant raises both facial and as-applied constitutional challenges to the AUUW statute. Defendant claims that the AUUW statute is unconstitutional because it infringes on an individual's right to bear arms for self-defense. Defendant argues (1) that, the second amendment of the federal constitution protects the right to bear arms outside of the home, (U.S. Const., amend. II), and (2) that the Illinois Constitution separately and independently protects the right to keep and bear arms. Ill. Const. 1970, art. I, § 22. Pursuant to People v. Aguilar, 2013 IL 112116, we find that the AUUW statute violates the federal constitution and we reverse defendant's conviction and sentence. Aguilar, 2013 IL 112116, ¶ 22.
¶ 25 I. Standard of Review
¶ 26 A defendant "may challenge the constitutionality of a statute at any time." People v. Wagener, 196 Ill. 2d 269, 279 (2001). The question of a statute's constitutionality is reviewed de novo. People ex rel Birkett v. Konetski, 233 Ill. 2d 185, 200 (2009); People v. Jones, 223 Ill. 2d 569, 596 (2006); People v. Cornelius, 213 Ill. 2d 178, 188 (2004). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). ¶ 27 Statutes are presumed to be constitutional. Chicago Allis Manufacturing Corp. v. Metropolitan Sanitary District of Greater Chicago, 52 Ill. 2d 320, 327 (1972); Van Harken v. City of Chicago, 305 Ill. App. 3d 972, 976 (1999) (citing City of Chicago Heights v. Public Service Co. of Northern Illinois, 408 Ill. 604, 609 (1951)); and the challenging party has the burden of establishing a clear constitutional violation. See People v. One 1998 GMC, 2011 IL 110236, ¶ 20; People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 290 (2003). A court will affirm the constitutionality of a statute if it is "reasonably capable of such a determination" and "will resolve any doubt as to the statute's construction in favor of its validity." One 1998 GMC, 2011 IL 110236, ¶ 20 (citing People v. Johnson, 225 Ill. 2d 573, 584 (2007), and People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010)). See also People v. Dinelli, 217 Ill. 2d 387, 397 (2005).
¶ 28 II. Facial Constitutional Challenges
¶ 29 In this appeal, defendant raises both facial and as-applied challenges. However, since we find that the statute is unconstitutional under the facial challenge, we need not consider the as-applied challenge. Aguilar, 2013 IL 112116, ¶ 22. ¶ 30 In a facial challenge, a court examines whether the statute at issue contains "an inescapable flaw that renders the *** statute unconstitutional under every circumstance." (Emphasis added.) People v. One 1998 GMC, 2011 IL 110236, ¶ 58. "[A] challenge to the facial validity of a statute is the most difficult challenge to mount successfully because an enactment is invalid on its face only if no set of circumstances exists under which it would be valid." One 1998 GMC, 2011 IL 110236, ¶ 20 (citing Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 30506 (2008)); see also In re M.T., 221 Ill. 2d 517, 537 (2006) ("Successfully making a facial challenge to a statute's constitutionality is extremely difficult, requiring a showing that the statute would be invalid under any imaginable set of circumstances." (Emphasis in original.)). Since a successful facial challenge will void the statute for all parties in all contexts, " '[f]acial invalidation "is, manifestly, strong medicine" that "has been employed by the court sparingly and only as a last resort." ' " Poo-bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009) (quoting National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998), quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). ¶ 31 "The invalidity of the statute in one particular set of circumstances is insufficient to prove its facial invalidity." In re M.T., 221 Ill. 2d at 536-37. " ' "[S]o long as there exists a situation in which a statute could be validly applied, a facial challenge must fail." ' " In re M.T., 221 Ill. 2d at 537 (quoting People v. Huddleston, 212 Ill. 2d 107, 145 (2004), quoting Hill v. Cowan, 202 Ill. 2d 151, 157 (2002)). Where the challenging party has chosen to mount only a facial challenge, the facts of his particular case do not affect our review. "[I]f a plaintiff prevails in an as-applied claim, he may enjoin the objectionable enforcement of a statute only against himself, while a successful facial challenge voids enactment in its entirety and in all applications." Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 498 (2008) (citing Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008)).
¶ 32 III. Second Amendment to the United States Constitution
¶ 33 Defendant argues that the AUUW statute violates the second amendment. Defendant pled guilty to the portion of the AUUW statute, which provides:
"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:¶ 34 Defendant argues that the second amendment protects his right to keep a firearm on his person either in or out of his home for the purpose of self-defense. The second amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." U.S. Const., amend. II. In the last few years, the United States Supreme Court has issued two significant decisions concerning the second amendment: (1) District of Columbia v. Heller, 554 U.S. 570 (2008); and (2) McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010). Defendant cites both cases as support for his claims. He argues that Heller and McDonald protect his right to carry a firearm outside the home and that their holdings render the AUUW statute unconstitutional. ¶ 35 Defendant further argues that the Illinois constitution article I, section 22 protects his right to carry a firearm outside of the home. He asks us, in light of Heller and McDonald, to depart from our state's supreme court decision in Kalodimos v. Morton Grove, 103 Ill. 2d 483, 498 (1984), which held that a reasonable prohibition of handguns is constitutional. For the reasons discussed below, we find defendant's arguments persuasive.
(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, legal dwelling, 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." 720 ILCS 5/24-1.6(a)(1), (3) (West 2010).
¶ 36 IV. Facial Challenge
¶ 37 As noted above, defendant relies primarily on two recent United States Supreme Court cases: Heller and McDonald. The United States Supreme Court found in Heller that the second amendment permitted an individual to keep a handgun in his or her home for the purpose of self-defense, and it struck down the District of Columbia law that had banned this. Aguilar, 408 Ill. App. 3d at 137 (citing Heller, 554 U.S. 570). Two years later, in McDonald, the Court held that its holding in Heller was not limited to the federal District of Columbia but also applied with equal force to the States. Aguilar, 408 Ill. App. 3d at 137 (citing Heller, 554 U.S. 570). ¶ 38 Specifically, in Heller, a District of Columbia police officer, who was authorized to carry a handgun while on duty, applied to register a handgun to keep in his home in the District, and the District refused his application. Heller, 554 U.S. at 575-76. The police officer then filed suit in federal court seeking to overturn the District's ban against the registration of handguns, but only in so far as it prohibited him from keeping a handgun in his home. Heller, 554 U.S. at 575-76. Before the United States Supreme Court, the District argued that the second amendment protected only the right to keep a firearm in connection with militia service. Heller, 554 U.S. at 577. In contrast, the police officer argued that the second amendment also protected the right of an individual, such as himself, to keep a firearm in his home for the purpose of self-defense. Heller, 554 U.S. at 577. ¶ 39 In a close 5 to 4 decision, the United States Supreme Court agreed with the officer and protected his right to keep a firearm in his home. Heller, 554 U.S. at 636. The Heller court held that the second amendment protects only the "rights of law abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 635. ¶ 40 Two years later in McDonald, defendants City of Chicago and the village of Oak Park, which had laws similar to the District law struck down in Heller, tried to distinguish their case by arguing that, although the second amendment applied in the federal District, it had no application to the states. McDonald, 130 S. Ct. at 3026. The United States Supreme Court rejected this argument and held in McDonald that the holding in Heller was fully applicable to the states. McDonald, 130 S. Ct. at 3050. The Court ended with: "We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." McDonald, 130 S. Ct. at 3050. ¶ 41 In the case at bar, defendant relies on these recent United States Supreme Court cases to argue that a ban on loaded handguns outside of one's home violates the second amendment. The Illinois Appellate Court has rejected this argument several times before in published opinions. Montyce, 2011 IL App (1st) 101788; People v. Mimes, 2011 IL App (1st) 082747; Ross, 407 Ill. App. 3d 931 (2011); Aguilar, 408 Ill. App. 3d 136 (2011); Dawson, 403 Ill. App. 3d 499 (2010). We initially followed these cases. However, our Illinois Supreme Court reversed Aguilar, 2013 IL 112116 and entered a supervisory order for us to decide this case in light of Aguilar and we vacated our judgment in the case at bar and withdraw our previous decision. ¶ 42 Our supreme court now instructs us that, in "stark contrast" to the previous appellate court cases on this subject matter
"stands the Seventh Circuit Court of Appeals' recent decision in Moore v. Madigan, 702 F.3d 933 (7th Cir.2012). In Moore, the court held that the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) is effectively 'a flat ban on carrying ready-to-use guns outside the home' (id. at 940) and that, as such, it violates the second amendment right to keep and bear arms, as construed in Heller and McDonald (id. at 942). In reaching this result, Moore relied not on the specific holding of Heller—i.e., that the second amendment protects the right to possess a handgun in the home for the purpose of self-defense—but rather on the broad principles that informed that holding. According to Moore, the clear implication of Heller's extensive historical analysis is that 'the constitutional right of armed self-defense is broader than the right to have a gun in one's home.' Id. at 935. Moore notes, for example, that '[t]he first sentence of the McDonald opinion states that "two years ago, in District of Columbia v. Heller, we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense." ' Id. at 935 (quoting McDonald, 561 U.S. at —, 130 S.Ct. at 3026). Moreover, Moore explains that, although both Heller and McDonald state that the need for self-defense is 'most acute' in the home, that 'doesn't mean it is¶ 43 As a result, our supreme court has concluded that the United States Supreme Court "has decided that the [second] amendment confers a right to bear arms for self-defense, which is as important outside the home as inside." Moore, 702 F.3d at 942. As a result, Illinois' "flat ban on carrying ready-to-use guns outside the home" as embodied in the class 4 form of section 24- 1.6(a)(1), (a)(3)(A), d, is unconstitutional on its face. Moore, 702 F.3d at 940. ¶ 44 The next issue we must decide is whether we must remand this case back to the trial court to give the defendant an opportunity to file a motion to withdraw his guilty plea. However, when a statute is held to be facially unconstitutional, it is void ab initio, meaning that it is as if the law never existed. See People v. McFadden, 2014 IL App (1st) 102939 ¶ 43; People v. Fields, 2014 IL App (1st) 110311 ¶ 38; People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). Courts have an independent duty to vacate void orders. People v. Thompson, 209 Ill. 2d 19, 27 (2004). Although defendant plead guilty to violating the AUUW statute, "a guilty plea does not preclude a defendant from arguing on appeal that he was sentenced under a statute that was facially unconstitutional and void ab intitio." People v. Guevara, 216 Ill. 2d 533, 542-43 (2005) (defendant permitted to raise claim that his sentence was unconstitutional and void ab initio without moving to withdraw his guilty plea). Since that portion of the statute that defendant plead guilty to is found to be unconstitutional, defendant's conviction is void. Aguilar, 2013 IL 112116, ¶ 22. As a result, we reverse defendant's conviction and sentence.
not acute outside the home.' Id. (quoting McDonald, 561 U.S. at —, 130 S.Ct. at 3036, and Heller, 554 U.S. at 628, 128 S.Ct. 2783). On the contrary:
'Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one's home, as when it says that the amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." [Citation.] Confrontations are not limited to the home.' Id. at 935-36 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783).Finally, Moore notes that the second amendment guarantees not only the right to 'keep' arms, but also the right to 'bear' arms, and that these rights are not the same:
'The right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home. To speak of 'bearing' arms within one's home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.' Id. at 936." Aguilar, 2013 IL 112116 at ¶ 19.
The State of Illinois did not appeal from the decision in Moore.
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¶ 45 V. Article I, section 22 of the Illinois Constitution
¶ 46 Finally, defendant claims that the AUUW statute also violates the section of the Illinois Constitution which, like the second amendment of the federal constitution, protects the right to bear arms. The Illinois Constitution provides: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be in-fringed." Ill. Const. 1970, art. I, § 22. It is important to note that this "section does not mirror the second amendment to the federal constitution (U.S. Const., amend. II); rather it adds the words '[s]ubject only to the police power,' omits prefatory language concerning the importance of a militia, and substitutes 'the individual citizen' for 'the people.' " Kalodimos, 103 Ill. 2d at 491. ¶ 47 Since we have already decided that the AUUW statute is unconstitutional under the federal constitution, we need not decide its constitutionality under the Illinois Constitution.
¶ 48 CONCLUSION
¶ 49 For the reasons already stated in this order, we reverse defendant's conviction and sentence. ¶ 50 Reversed.