It’s tough being a gun owner in Illinois. Heck, it’s tough to even possess a gun in the state for any reason unless you’re a law enforcement officer. The fact is that even if you try to comply with the state’s gun laws, simply having a gun on you in the wrong place at the wrong time can result in an arrest and conviction. And the recent case People v. Tolbert, which went before the Illinois Supreme Court on appeal highlighted yet again the difficulty in arguing against these laws in the state.
Minors and Guns in the State of Illinois
In Tolbert, Chicago police detained the 17-year-old defendant in the front of a South Seely Avenue home after receiving a call about a “person with a gun.” However, no other criminal conduct was reported. Police officers indeed found a loaded .9 mm pistol on the porch of the home and arrested the defendant. He was charged under 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) with possession of a handgun while under the age of 21. A second firearm possession charge was dismissed after prosecutors conceded it was unconstitutional, but the charge of possessing a firearm by someone under the age of 21 stuck, and went before the Illinois Supreme Court. The defendant was not accused of using the gun in a threatening manner or for any other criminal purpose.
How the Illinois Supreme Court Put More of a Burden on Defendants in Gun Appeals
The issue the court consider in Tolbert was the construction of the statute, which plainly makes it illegal for someone under 21 to possess a firearm except when “on the land or in the legal dwelling of another person as an invitee with that person's permission.” The Court of Appeals held that whether a person under 21 was an invitee of someone was an element of the crime, and thus prosecutors must prove that someone is not an invitee in order to convict them under the statute. The defendant’s conviction was reversed.
However, the Illinois Supreme Court was not persuaded by this line of reasoning. The Court held that whether or not a defendant is an invitee is not an element of the crime, but an exemption, or defense to the crime of possessing a firearm while under the age of 21. The Supreme Court thus did not vacate the defendant’s conviction, but they didn’t affirm it either. Rather, the case was remanded back to the appellate court. Now, if any defendant is charged with the same crime, the burden will be on them at trial to prove that they were in fact an invitee while under the age of 21 possessing a firearm.
Contact a Chicago Appellate Attorney
There are a lot of gun laws on the books in Illinois, but many of those laws haven’t yet been tested in the courts. However, an experienced Chicago appellate attorney can chip away at these statutes and argue how these statutes should be interpreted by the courts, which can result in convictions being vacated or overturned. For more information, contact Barney & Hourihane today for a consultation.