A Gun Alone

As state courts have proven extremely reluctant to give any slack to the right to keep and bear arms under the Second Amendment, exercising the right without being arrested first has often been honored primarily in the breach. Possess a gun, get arrested and, only afterward, get cut loose provided the person possesses the requisite permits.

But an Illinois appellate court’s analysis in an opinion by Justice P. Scott Neville, Jr. challenges the “outdated” assumption.

The State argues that the discovery of the gun gave Whitlock probable cause to arrest Penister, reasoning that “the police were not required to *** determine whether he had a valid FOID card or a Conceal Carry Permit prior to effectuating his arrest.” According to the State’s reasoning, an officer has probable cause to arrest anyone engaged in an activity that requires a license, and the officer can wait until after the arrest to determine whether the arrested person has the required license. So any officer can wait outside any courtroom, arrest all persons who acted as attorneys, and find out after the arrests whether the persons had the requisite licenses to practice law. See 705 ILCS 205/1 (West 2016) (unlicensed practice of law punishable as contempt); People v. Flinn, 47 Ill. App. 3d 357, 361 (1977) (“arrest and imprisonment may be imposed for civil contempt of court”). If any officer sees a person driving a car, the officer has probable cause to arrest the driver, and the officer can find out later whether the arrested person has a license to drive.

It may be true that a gun license, a law license and a driver’s license aren’t quite the same. After all, a gun can kill. Then again, incompetent lawyers can do grievous harm, as can a speeding 2000 pound missile. But it is true that a gun is different. There is no constitutional right to be a lawyer. There is no constitutional right to drive a car. There is a constitutional right to possess a gun.

The police here operated on an outdated assumption – possession of a firearm in and of itself is a crime. Until recently, that was true in the City of Chicago. But the law has shifted dramatically during this decade. Since the legislature has legalized gun possession and concealed carry, many citizens may now possess firearms provided they have followed the regulations. Our legislature has made a policy decision that has legal consequences for how law enforcement officers must deal with possession of firearms. No longer can police assume that a person seen with a firearm is involved in criminal activity. Law enforcement officers must adjust their procedures so that law-abiding citizens do not face the undue burden of arrest for licensed activity.

This, alone, reflects a paradigm shift, when there mere possession of a gun was presumptively criminal rather than presumptively the exercise of a constitutional right. As Justice Neville notes, in a city like Chicago, the police had little concern about the niceties of constitutional gun possession, largely because they were more concerned about their own safety than some perp’s constitutional rights.

The approach the State advocates here – arrest first, sort it out later – would cause fundamental and manifest injustice.

But surely they can’t mean that black kids with guns in Chicago should enjoy the assumption that they aren’t gangbangers and just citizens exercising a constitutional right. On the contrary:

We must not naively overlook the racially disparate impacts of this kind of police procedure. Consider the police homicide of Philando Castile.

Castile announced he had a gun, that he had a carry permit, and was killed for it anyway.

What led police here to guess that Penister did not have an FOID card or a concealed
carry license? The Second Amendment protects all citizens – not just those who appear to
police likely to possess an FOID card. Police, prosecutors and judges need to stay alert to
potential discriminatory treatment in the arrest of Blacks and other minorities for FOID card
and concealed carry violations.

That a white person with a gun, perhaps wearing a suit and tie, wingtips and a Rolex, might put officers at sufficient ease not to arrest first, or kill for that matter, isn’t good enough to satisfy the Second Amendment. The right doesn’t just belong to people cops perceive as non-threatening, but to all. Even black guys with droopy dungarees.

Unfortunately, this analysis failed to save the defendant in the case.

However, we find that Penister has not shown a reasonable probability that he would have achieved a better result from the trial if his attorney had filed a motion to quash the arrest. Under the reasoning of Colyar, testimony concerning the gun would remain admissible as  testimony about a search incident to a valid Terry stop, even though Whitlock did not have probable cause to arrest Penister.

In this case, Penister failed to announce he had a gun, and when questioned, denied it. The loaded gun was found in the glove compartment of a car which was searched under the “officer safety” rubric. The parties conceded that he did not possess a FOID license, although he argues on appeal that this, alone, didn’t prove he didn’t have a valid concealed carry permit.

The court dismissed this apparent gap in evidence as insufficient to create a reasonable doubt.

The trier of fact is “not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.” People v. Russell, 17 Ill. 2d 328, 331 (1959). “The State is not required to exclude every reasonable hypothesis of  innocence.”

This seems quite peculiar, given that proof that the defendant didn’t have a permit isn’t a “space alien” argument, but a core element of the crime. Even worse, he was expressly charged with possession of the gun without a permit, Proof of an element on an offense hardly seems like some outlandish burden of excluding “every reasonable hypothesis of innocence.”

The subtext here seems to be that this case was tried lazy, both by prosecution and defense, neither of whom did much heavy lifting, failing to garner the evidence necessary to prove the crime or mount much of a challenge. Or, as the case was remanded for resentence, even bother to read all the papers since the defendant was sentenced as having a prior felony conviction when his conviction was only for a misdemeanor.

Maybe the cops should have waited outside the courtroom to arrest the trial attorneys? There was nothing about the way this case was tried to suggest they were licensed to practice law.

H/T Keith Kaplan

2 thoughts on “A Gun Alone

  1. B. McLeod

    The police were probably just striking against the Patriarchy. They knew he must be sinister, because his name was “Penister.” Presumably, his tell-all autobiography will be entitled, “I, Penister.”

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