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Illinois Supremes: Barring Firearms Within 1,000 Feet of Parks Facially Unconstitutional

by Richard Resch

In April 2013, Julio Chairez pleaded guilty in connection with a plea agreement to possessing a firearm within 1,000 feet of a park in violation of Section 24-1(a)(4), (c)(1.5) of the Unlawful Use of a Weapon (“UUW”) statute (720 ILCS 5/24-1(a)(4), (c)(1.5), which prohibits carrying or possessing a firearm within 1,000 feet of a public park, school, courthouse, public transportation facility, or residential public housing facility. He received a sentence of two years of probation.

In November 2015, he filed a post-conviction petition to vacate his conviction because the statute is unconstitutional under the Second Amendment to the U.S. Constitution. Chairez argued that the statute essentially constitutes a blanket prohibition on carrying a firearm in public rather than a ban limited to specific sensitive locations. The circuit court agreed with him, stating that the statute “is a near comprehensive ban” with the practical effect of making it virtually impossible for a person to go in public with a legal firearm without “accidentally and unknowingly entering within a thousand feet” of a listed location. The circuit court declared the statute unconstitutional and vacated Chairez’s conviction. The State appealed.

On appeal, the Illinois Supreme Court began its discussion by chiding the lower court for issuing a ruling that is “conclusory and unsupported by a clear legal analysis or explanation” despite being required to do so by Ill. Sup. Ct., Rule 18 (Findings of Unconstitutionality). For example, the Supreme Court could not readily determine whether the circuit court concluded the statute was unconstitutional facially (with respect to everyone under any condition) or as applied (specifically to Chairez’s situation). By analyzing the lower court’s comments together with the parties’ briefs, the Supreme Court deduced that the court ruled the statute was facially unconstitutional.

The Court then explained that the lower court rendered an overbroad decision in ruling the entire statute unconstitutional. The lower court touched upon legal questions not before it, viz., locations listed in the statute other than public parks. The Court stated that Chairez was not charged in connection with those other locations and thus lacked standing to challenge the constitutionality of the statute with respect to them. Thus, the Supreme Court limited its discussion and ruling to the possession of a firearm within 1,000 feet of a public park, i.e., the specific offense with which Chairez was charged.

The Court then turned to the question of whether the offense of possessing a firearm within 1,000 feet of a public park “impermissibly encroaches on conduct at the core of the second amendment.” It observed that the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), determined that an individual’s Second Amendment right to bear arms is “not unlimited.” The Heller Court, in dicta, reiterated that “laws forbidding the carrying of firearms in sensitive places such as schools and government building” remain constitutionally permissible. The Court determined that it did not have to address whether the specific restriction in the case falls outside of Second Amendment protections because “some level of scrutiny must apply to Heller’s ‘presumptively lawful’ regulations [of sensitive places].”

The Illinois Supreme Court noted that the Heller Court did not expressly designate a level of scrutiny in analyzing Second Amendment restrictions other than rejecting the rational basis test (lowest level of scrutiny). In Second Amendment cases, the Illinois Supreme Court follows the U.S. Court of Appeals for the Seventh Circuit. Under the Seventh Circuit’s approach, “the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction … and the public-benefits ends it seeks to achieve.” A severe burden on core Second Amendment rights requires an extremely strong public-interest justification as well as a “close fit between the government’s means and its end.”

The Court determined that the statute in question places a severe restriction on the core Second Amendment right to carry a weapon in public for self-defense. Although it is not a statewide ban, it does completely ban possession of a firearm in a “vast number of public areas across the state….” Additionally, the ban is categorical in that it applies to the entire law-abiding population of the state.

The State’s public-interest justification for the statute was based upon its claim of a compelling interest in public safety being served by reducing firearm possession within 1,000 feet of public parks. In support of its position, it proffered evidence related to gun-free school zones and attempted to equate schools with public parks due to the large number of children who frequent parks.

The Court rejected the State’s argument, stating that the State “cannot simply invoke these interests [preventing crime and protecting children] in a general manner and expect to satisfy its burden.” It pointed out that the State failed to provide “any useful statistics or empirically supported conclusions.” The Court concluded that the State did not provide any “evidentiary support for its claims that prohibiting firearms within 1,000 feet of a public park would reduce the risks it identifies.” The State failed to establish the required means-end fit between the statute and its purported justifications.

Accordingly, the Illinois Supreme Court held that “possessing a firearm within 1,000 feet of a public park in violation section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional.” The Court then determined that the park provision was severable from the other listed public locations contained in the UUW statute because enforcement of those prohibitions is possible without the stricken provision regarding public parks.

The Court affirmed the circuit court’s judgment vacating Chairez’s conviction but vacated the circuit court’s judgment to the extent it declared constitutional the other portions of the UUW statute that were not at issue in this case. See: People v. Chairez, 2018 IL 121417 (2018). 

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