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Bang / Guns
See other Bang / Guns Articles

Title: Can Police Arrest Person Carrying Gun Without First Checking If He's Licensed? |
Source: [None]
URL Source: [None]
Published: Jun 19, 2018
Author: Eugene Volokh|
Post Date: 2018-06-19 12:45:23 by tpaine
Keywords: None
Views: 443
Comments: 10

Can Police Arrest Person Carrying Gun Without First Checking If He's Licensed? No, says the Illinois Appellate Court.

Eugene Volokh|Jun. 17, 2018 8:58 pm

Guns Fourth Amendment From Thursday's Illinois Appellate Court decision in State v. Penister (nonprecedential):

Penister [argues that his arrest violated the Fourth Amendment because] his possession of a gun did not give Whitlock reason to believe he had committed any offense, because Whitlock had no grounds for concluding that Penister did not have a valid FOID [Firearms Owners' Identification] card. The State contends that Whitlock had probable cause to arrest Penister because the circumstances showed a substantial possibility of criminal activity....

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.

The police here operated on an outdated assumption—possession of a firearm in and of itself is a crime.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.

Once Officer Whitlock discovered the gun in the glove compartment, he could have attempted to find out whether Penister or Rockett had a license for the gun. If he found evidence that they had no such license, he would have had probable cause to arrest. But if police can lawfully arrest Penister here, without making any effort to determine whether he had a license for the gun, everyone found with a firearm would be subject to arrest, no questions asked.

Firearm owners who might wish to carry a concealed weapon should find that the facts of this case give them some cause for alarm. Even a person who could quickly prove the legality of gun possession would still face onerous arrest.

Arrests can have significant legal and reputational consequences. (Imagine, for example, a citizen legally carrying a concealed weapon who is arrested during her morning commute, who then must explain to her supervisor why she arrived hours late for work.) The approach the State advocates here—arrest first, sort it out later—would cause fundamental and manifest injustice.

We must not naively overlook the racially disparate impacts of this kind of police procedure. Consider the police homicide of Philando Castile. Castile, stopped for a traffic violation, told the officer that he was carrying a handgun. The officer pulled out his own gun and screamed, "Don't pull it out." Castile responded, "I'm not pulling it out." The officer fired seven shots, killing Castile. The entire encounter—from the officer approaching Castile's car to the shooting—took less than a minute.

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.

We hold that Penister's possession of a gun did not constitute probable cause to arrest him, as the gun possession did not support an inference that any offense had occurred. See People v. Aguilar, 2013 IL 112116, 20 (the second amendment right to bear arms extends beyond the home).

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#1. To: tpaine (#0)

Consider the police homicide of Philando Castile. Castile, stopped for a traffic violation, told the officer that he was carrying a handgun. The officer pulled out his own gun and screamed, "Don't pull it out." Castile responded, "I'm not pulling it out." The officer fired seven shots, killing Castile. The entire encounter—from the officer approaching Castile's car to the shooting—took less than a minute.

In police state Amerika - cops can pretty much do what they please without any repercussions.

“Truth is treason in the empire of lies.” - Ron Paul

Trump: My People Should ‘Sit Up in Attention’ Like Kim Jong-un’s Staff.

Deckard  posted on  2018-06-19   13:16:14 ET  Reply   Trace   Private Reply  


#2. To: Deckard (#1)

Consider the police homicide of Philando Castile.

The officer was acquitted of all charges.

misterwhite  posted on  2018-06-19   13:31:42 ET  Reply   Trace   Private Reply  


#3. To: Deckard (#1)

State of Illinois 430 ILCS 66/10(g) -- A licensee shall possess a license at all times the licensee carries a concealed firearm ...

misterwhite  posted on  2018-06-19   13:37:59 ET  Reply   Trace   Private Reply  


#4. To: misterwhite (#2)

The officer was acquitted of all charges.

Thanks for making my point boot-licker.

“Truth is treason in the empire of lies.” - Ron Paul

Trump: My People Should ‘Sit Up in Attention’ Like Kim Jong-un’s Staff.

Deckard  posted on  2018-06-19   13:38:28 ET  Reply   Trace   Private Reply  


#5. To: Deckard (#4)

Thanks for making my point boot-licker.

So your conclusion is that if a person is acquitted of a crime by a jury of their peers that means "they got away with it"?

How about, "If the driver was white the officer never would have been charged to begin with"? How about, "The city caved to pressure of the black community despite the video and audio evidence which clearly showed the officer acting defensively? How about, "The officer had his career ended because spineless politicians surrendered to the SJW and BLM crowd"? How about, "The driver would be alive today if he wasn't high on marijuana and had simply obeyed the officer?"

misterwhite  posted on  2018-06-19   14:27:26 ET  Reply   Trace   Private Reply  


#6. To: tpaine, Deckard, misterwhite (#0)

We hold that Penister's possession of a gun did not constitute probable cause to arrest him, as the gun possession did not support an inference that any offense had occurred. See People v. Aguilar, 2013 IL 112116, 20 (the second amendment right to bear arms extends beyond the home).

Penister was found GUILTY as charged. The Court found an assertion that Penister had a prior felony conviction was wrong, that it was a misdemeanor conviction. This could have wrongfully affected the length of sentence. The conviction was affirmed, the sentence was vacated, and the case was remanded to the trial court for resentencing.

Illinois v Penister, 2018 IL Ap (1st) 151552-U (14 Jun 2018)

JUSTICE NEVILLE delivered the judgment of the court. Justices Pucinski and Hyman concurred in the judgment.

ORDER

¶ 1 Held: Defendant's stipulation at trial that he did not have a FOID card justified the court's inference that he did not have a concealed carry license. Because police conducting a valid Terry stop saw evidence that the defendant possessed a gun, motions to quash arrest and suppress evidence would not have produced a better result for the defendant. But the defendant sufficiently showed ineffective assistance of counsel by showing that counsel failed to present available evidence that the defendant had a prior conviction for a misdemeanor, not a felony.

¶ 2 The trial court found Brenon Penister guilty of possessing a loaded gun in a car without a concealed carry license and sentenced him to 3 years in prison. Penister argues that the evidence does not prove that he lacked a concealed carry license for the gun, and that he received ineffective assistance of counsel because counsel failed to file motions to quash arrest and suppress evidence, and because counsel failed to present available evidence at sentencing.

¶ 3 We find that the evidence that Penister lacked an FOID card justifies the court's inference that he also lacked a concealed carry license. Motions to quash arrest and suppress evidence would not have prevented the prosecution from presenting evidence that Penister had a gun, and therefore defense counsel's failure to file those motions does not show ineffective assistance of counsel. But Penister showed that he received ineffective assistance at sentencing when counsel failed to present available evidence that Penister had a prior conviction only for a misdemeanor, not a felony. Accordingly, we affirm the conviction but vacate the sentence and remand for resentencing.

- - - - - - - - - -

¶ 47 CONCLUSION

¶ 48 Because Penister needed to have a valid FOID card to obtain a concealed carry license, the trier of fact could infer from his lack of an FOID card that he had no concealed carry license. Counsel's failure to file motions to quash arrest and suppress evidence does not show ineffective assistance of counsel, because such motions should not have led the court to bar evidence that police found the gun in a valid search incident to a Terry stop. However, Penister showed that he received ineffective assistance of counsel when his attorney failed to present to the trial court the sentencing order from his prior conviction, as that order casts doubt on the State's contention that the applicable sentencing statute for the current conviction required a sentence of at least 3 years in prison.

¶ 49 Conviction affirmed; sentence vacated and cause remanded.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

https://www.scribd.com/document/382119684/Illinois-v-Penister-2018-IL-AP-1st-151552-U-14-Jun-2018

nolu chan  posted on  2018-06-19   15:17:49 ET  Reply   Trace   Private Reply  


#7. To: nolu chan (#6)

Spam......

tpaine  posted on  2018-06-19   18:28:52 ET  Reply   Trace   Private Reply  


#8. To: tpaine (#7)

Spam......

The thread article forgot to mention that the defendant's conviction was AFFIRMED. The only thing he won was a resentencing.

The cop did not have probable cause to arrest just because the defendant had a gun. Instead, the cop executed a lawful Terry stop and he had lawful authority to search the car. When he lawfully found the loaded and unlicensed gun for which no concealed carry permit existed, arrest, trial and conviction were appropriate.

Defendant stipulated at trial that he did not have a Firearms Owner Identification Card (FOID). The court found this justified its inference that the defendant did not have a concealed carry license.

The arrest was lawful for reasons other than just being in possession of a gun.

It was a righteous bust and the defendant's conviction was affirmed.

That ain't spam.

nolu chan  posted on  2018-06-20   10:59:48 ET  Reply   Trace   Private Reply  


#9. To: nolu chan (#8)

Volokh --- We hold that Penister's possession of a gun did not constitute probable cause to arrest him, as the gun possession did not support an inference that any offense had occurred. See People v. Aguilar, 2013 IL 112116, 20 (the second amendment right to bear arms extends beyond the home)

Nolu spam --- The cop did not have probable cause to arrest just because the defendant had a gun. Instead, the cop executed a lawful Terry stop and he had lawful authority to search the car. When he lawfully found the loaded and unlicensed gun for which no concealed carry permit existed, arrest, trial and conviction were appropriate.

I'll take a real lawyers opinion over yours..

Sorry bout that..

tpaine  posted on  2018-06-20   20:20:37 ET  Reply   Trace   Private Reply  


#10. To: tpaine (#9)

I'll take a real lawyers opinion over yours..

Sorry bout that..

I'll take the actual court opinion over your opinion.

Not sorry about that.

nolu chan  posted on  2018-06-21   9:26:24 ET  Reply   Trace   Private Reply  


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