According to a lawyer monitoring such cases, local judges are unlikely to stop enforcing the ban until this summer, the state's deadline for enacting a law that passes Second Amendment muster.
In December, a federal appeals court in Chicago declared an Illinois ban on the concealed carrying of firearms outside the home to be unconstitutional.
Two months later, state court trial judges have not yet acquitted any defendants charged with simple possession under the law and, according to an Illinois criminal-defense attorney who is closely monitoring these kinds of prosecutions, local judges are unlikely to stop enforcing the unconstitutional law until this summer.
"People are still being charged with felonies for simple possession of a weapon - not using the weapon to commit a crime, but just possessing it outside of their home," said Chicago-based defense attorney Robert Pervan. "Judges are just continuing matters until June, by when the legislature should have enacted legislation that won't interfere with or conflict with the Constitution or cases like Moore and Sheppard. It's in limbo right now."
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However, according to Pervan, who is currently defending non-violent clients charged with possession of firearms under article 24, Illinois circuit court judges have yet to enter declarations of unconstitutionality in the cases he is handling. Pervan is also keeping track of other similar cases throughout the state, and he believes that no Illinois judge has yet enforced the seventh circuit's ruling in Moore and Shepard.
Posner entered a 180-day stay of the court's mandate in those cases "to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public."
Although the 180-day stay does not expire until June, Pervan said the detail of Posner's historical analysis and the logic in the court's ruling make it appropriate for Illinois trial judges to dismiss article 24 charges now, despite the stay, against defendants who have committed no crime other than the peaceful possession of firearms in public.
"Everyone will agree that using a weapon or gun to rob someone is a crime, but we're going beyond that by prosecuting for simple possession," Pervan said. "The common denominator is you can't confine someone's right to possession of a gun to only inside the home. You have to let them have it outside the home as well."
In the cases he is handling in defense of article 24 prosecutions, Pervan said he has filed motions to dismiss based on the seventh circuit's recent ruling. He has spoken with several other lawyers who have taken similar procedural steps, but so far, he said, not a single motion has been granted and not a single defendant has been acquitted.
"It's difficult as an attorney to represent your client. You tell them this new case came down and you could be in a good position here, but then the judge denies the motion," Pervan said. "Even worse, they're denying it without really any explanation. There are some judges who are simply not even waiting to hear the motion. They just enter and continue the motion until June, or they deny the motion and continue the matter until June."
Pervan said he hopes Illinois trial judges will start applying the new case law to the facts of pending cases and dismiss article 24 charges against defendants who lawfully own their guns and have committed no crimes other than peaceful possession in public. However, given Chicago's skyrocketing homicide rates and national tragedies like the recent shootings at Sandy Hook Elementary School in Connecticut, he also recognizes the current pressure on judges to be tough on defendants charged with gun crimes.
"The courts have come to the conclusion that a flat-out prohibition of people carrying firearms in public…is unconstitutional," Pervan said. "But sitting judges, particularly in Chicago, are facing enormous political pressure. Every day we open newspapers and we see kids getting shot, kids getting killed, and then you factor in national shootings like Sandy Hook and it gets tough for these judges to start dismissing gun cases because they don't want to be seen as being soft on crime."
HB 154, a concealed carry bill entitled the Family and Personal Protection Act, was filed in the Illinois House on January 15 by Rep. David Reis (R-Olney).
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