People v. Kelley

2024 IL App (1st) 230569, 258 N.E.3d 848

Opinion

2024 IL App (1st) 230569 THIRD DIVISION June 12, 2024 No. 1-23-0569 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 20 CR 12886 ) JEREMAINE KELLEY, ) Honorable ) Michael R. Clancy, Defendant-Appellant. ) Judge, presiding.

JUSTICE VAN TINE delivered the judgment of the court, with opinion. Justice D.B. Walker concurred in the judgment and opinion. Presiding Justice Reyes specially concurred, with opinion.

OPINION

¶1 BACKGROUND

¶2 Following a bench trial, defendant Jeremaine Kelley was convicted of being an armed

habitual criminal (AHC) (720 ILCS 5/24-1.7 (West 2020)). On appeal, Kelley argues that we must

reverse his AHC conviction because the AHC statute is unconstitutional under the second

amendment to the United States Constitution (U.S. Const., amend. II) and article I, section 22, of

the Illinois Constitution (Ill. Const. 1970, art. I, § 22). For the following reasons, we affirm. 1-23-0569

¶3 FACTS

¶4 At trial, the State adduced the following evidence through its sole witness, Chicago police

officer Zachary Kuta. In the early morning hours of August 29, 2020, Kuta and his partner Matt

Krzeptowski were on patrol near 2107 West Randolph Street in Chicago, Illinois. Kuta testified

that he had patrolled this area before and knew that it was “a well-known narcotic and gang

loitering area for the Black Disciples street gang.” Shortly after 2 a.m., Kuta observed a group of

people drinking in a nearby park and alley. Kuta and Krzeptowski approached the group in their

police vehicle. Kuta observed an individual, later identified as Kelley, turn toward the police

vehicle and make eye contact with him. Kuta noticed Kelley grab his waistband area and then walk

north toward Randolph Street. Kuta exited the police vehicle and began following Kelley, keeping

about 15 to 20 feet distance. Kuta testified that there were no obstructions that prevented him from

seeing Kelley under the artificial lights. Kuta then observed Kelley turn his head and body toward

him, which allowed Kuta to see Kelley’s waistband. Kelley removed a dark L-shaped firearm from

his waistband and placed it behind the front passenger tire of a vehicle. Kuta then jogged toward

Kelley, passing the vehicle. Upon reaching Kelley, Kuta waited for his partner to arrive and placed

Kelley in handcuffs. Kuta then recovered the firearm, which he believed to be loaded, from beneath

the vehicle. Later, Kuta learned through a Law Enforcement Agencies Data System (LEADS)

check that Kelley (1) did not possess a firearm owner’s identification (FOID) card, (2) was a

convicted felon, and (3) was on parole. 1

LEADS is a “statewide, computerized telecommunications system designed to provide services, 1

information, and capabilities to the law enforcement and criminal justice community in *** Illinois.” 20 Ill. Adm. Code 1240.10 (1999).

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¶5 At the time of the arrest, Kelley was on parole for a 2019 conviction for manufacture and

delivery of a controlled substance. He had never been issued a FOID card or a concealed carry

license. Prior to the AHC conviction at issue here, Kelley had been convicted of numerous felonies,

most of them within the past two decades. In 2017, he was convicted of a Class 4 felony under

section 6-303 of the Illinois Vehicle Code (625 ILCS 5/6-303 (West 2016)) and received a one-

year sentence in the Illinois Department of Corrections. 2 In 2013, he was convicted of retail theft

and received probation. In 2012, he was convicted of three felonies: (1) aggravated battery (great

bodily harm), (2) resisting a peace officer, and (3) cannabis possession. He was sentenced to two

years’ imprisonment. In 2002, he was convicted of possessing a stolen motor vehicle and sentenced

to three years’ imprisonment. Additionally, Kelley has seven misdemeanor convictions, including

two DUIs and two domestic batteries.

¶6 In this case, the State charged Kelley with unlawful use or possession of a weapon by a

felon (720 ILCS 5/24-1.1(a) (West 2020)), aggravated unlawful use of a weapon (id. § 24-

1.6(a)(2)), and being an armed habitual criminal (id. § 24-1.7). On March 16, 2022, the circuit

court held a bench trial in which it found Kelley guilty on all counts, but the court merged them

into a single AHC conviction. On November 4, 2022, Kelley petitioned the court for relief from

judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2022)),

arguing his conviction must be voided as it was premised on three unconstitutional statutes. The

court denied this petition, holding that the challenged statutes are not facially unconstitutional.

Kelley appeals.

¶7 ANALYSIS

2 It is unclear from the record precisely for which felony under section 6-303 Kelley received his conviction.

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¶8 On appeal, Kelley does not dispute that his conduct satisfied the elements of the AHC

statute; rather, he argues that we should reverse his AHC conviction because the AHC statute is

facially unconstitutional under the second amendment to the United States Constitution, and both

facially and as-applied unconstitutional under article I, section 22, of the Illinois Constitution. 3

¶9 The AHC statute provides:

“(a) A person commits the offense of being an armed habitual criminal if he or

she receives, sells, possesses, or transfers any firearm after having been convicted a

total of 2 or more times of any combination of the following offenses:

(1) a forcible felony as defined in Section 2-8 of this Code;

(2) unlawful use of a weapon by a felon; aggravated unlawful use of a

weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated

vehicular hijacking; aggravated battery of a child as described in Section 12-4.3

or subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;

gunrunning; home invasion; or aggravated battery with a firearm as described in

Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or

(3) any violation of the Illinois Controlled Substances Act or the Cannabis

Control Act that is punishable as a Class 3 felony or higher.

(b) Sentence. Being an armed habitual criminal is a Class X felony.” 720 ILCS

5/24-1.7 (West 2020).

Kelley has omitted article I, section 22, of the Illinois Constitution under the “statutes and rules 3

involved” portion of his brief. It should have been included pursuant to Illinois Supreme Court Rule 341(h)(5) (eff. Oct. 1, 2020), which requires appellants to include the relevant “constitutional provision *** with a citation of the place where it may be found.”

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¶ 10 The second amendment to the United States Constitution provides: “A well regulated

Militia, being necessary to the security of a free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const., amend. II.

¶ 11 Article I, section 22, of the Illinois Constitution provides: “Subject only to the police

power, the right of the individual citizen to keep and bear arms shall not be infringed.” Ill. Const.

1970, art. I, § 22.

¶ 12 Here, we are tasked with determining whether the AHC statute conflicts with the federal

and state constitutions. We presume that a statute is constitutional, and “we have the duty to

construe statutes so as to uphold their constitutionality if there is any reasonable way to do so.”

People v. Jones, 223 Ill. 2d 569, 595-96 (2006) (citing Arangold Corp. v. Zehnder, 187 Ill. 2d 341,

351 (1999), and People v. Inghram, 118 Ill. 2d 140, 146 (1987)). A facial challenge requires a

showing that the statute in question is unconstitutional under any set of facts. People v. Thompson,

2015 IL 118151, ¶ 36. The burden on the challenger is “particularly heavy when *** a facial

constitutional challenge is presented.” Bartlow v. Costigan, 2014 IL 115152, ¶ 18. “[A]n as-

applied challenge requires a showing that the statute is unconstitutional as it applies to the specific

facts and circumstances of the challenging party.” People v. Harris, 2018 IL 121932, ¶ 38 (citing

People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 12). A constitutional

challenge to a statute presents a question of law, which we review de novo. People v. Madrigal,

241 Ill. 2d 463, 466 (2011). De novo review means we engage in the same analysis as the trial

court. Xuedong Pan v. King, 2022 IL App (1st) 211482, ¶ 16. We begin with our consideration of

the AHC statute’s constitutionality under the second amendment to the United States Constitution.

¶ 13 The United States Constitution

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¶ 14 Kelley relies primarily on New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022),

to support his argument that the AHC statute is unconstitutional under the second amendment to

the United States Constitution. The United States Supreme Court has expounded the second

amendment on numerous occasions, most recently in its landmark decision in Bruen. Bruen

involved a challenge to a New York licensing regime that regulated firearm possession. Id. at 8-

11. Persons wishing to possess a firearm at home were required to convince a licensing officer that

they were of good moral character and did not have a history of crime or mental disease and that

no good cause for denial existed. Id. at 12. However, persons wishing to carry a firearm outside of

their home had to show “proper cause” to be issued a license. (Internal quotation marks omitted.)

Id. This generally meant that people had to “ ‘demonstrate a special need for self-protection

distinguishable from that of the general community.’ ” Id. (quoting In re Klenosky, 428 N.Y.S.2d

256, 257 (App. Div. 1980)). The Supreme Court held that the proper cause requirement violated

the constitutional right to keep and bear arms. Id. at 70-71. In reaching that conclusion, the

Supreme Court engaged in a historical analysis to determine whether the licensing regime passed

constitutional muster and clarified that the relevant test “requires courts to assess whether modern

firearms regulations are consistent with the Second Amendment’s text and historical

understanding.” Id. at 26.

¶ 15 Relying on the test announced in Bruen, Kelley argues that because the State “cannot show,

under what is now its burden, any historical analogue for such a categorical and permanent ban

that carries sever [sic] criminal penalties,” we should find that the AHC statute violates the second

amendment on its face.

¶ 16 In this case, we need not conduct an historical analysis, as the Supreme Court has stated

that only “ordinary, law-abiding citizens have a *** right to carry handguns publicly for their self-

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defense.” Id. at 9-10. In Justice Clarence Thomas’s majority opinion, the phrase “law-abiding”

appears no fewer than 13 times. Notwithstanding the Court’s repeated use of this phrase, Kelley

claims it is unimportant and irrelevant, as it merely describes the petitioners in that case, who

happened to be law-abiding. This argument is unpersuasive. At the outset of Bruen, the Court

noted that “[i]n District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago,

561 U.S. 742 (2010), [it] recognized that the Second and Fourteenth Amendments protect the right

of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” Id. at 8-9.

This recognition is obviously not limited to the petitioners in Bruen who happened to be law-

abiding; rather, it reiterates the holding of its two prior second amendment decisions that limited

the right to bear arms to law-abiding citizens. It does not indicate any intent to expand the

protection to citizens who are not law-abiding. Moreover, the explicit holding of Bruen is that

“New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-

abiding citizens with ordinary self-defense needs from exercising their right to keep and bear

arms.” Id. at 71. By its plain language, the holding applies to law-abiding citizens. We presume

that the Supreme Court’s inclusion of “law-abiding” in the holding is not superfluous or irrelevant,

especially given the Court’s repeated use of the phrase throughout the Bruen opinion, as well as

its prior decisions.

¶ 17 Though the Bruen Court did not define “law-abiding citizen,” previous Supreme Court

precedent identifies categories of people who have long been lawfully prevented from bearing

arms. In District of Columbia v. Heller, the Supreme Court cautioned that

“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons and the mentally ill, or laws forbidding the carrying of

firearms in sensitive places such as schools and government buildings, or laws imposing

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conditions and qualifications on the commercial sale of arms.” District of Columbia v.

Heller, 554 U.S. 570, 626-27 (2008).

There is little to expound here: by its plain language, the Supreme Court explicitly sanctioned the

prohibition on the possession of firearms by felons. However, Kelley argues that this constitutes

dictum and should therefore be given little or no weight. While the court’s clarification in Heller

may be considered dictum, we decline to disregard it.

¶ 18 The term “dictum” is an abbreviation of obiter dictum, which refers to remarks or opinions

“uttered by the way.” Cates v. Cates, 156 Ill. 2d 76, 80 (1993). Generally, dictum is not binding as

authority or precedent. Id. (citing Board of Trustees of the Police Pension Fund of Urbana v.

Illinois Human Rights Comm’n, 141 Ill. App. 3d 447, 456 (1986)). However, “an expression of

opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though

not essential to the disposition of the cause, if dictum, is a judicial dictum.” Id. A judicial dictum

is “entitled to much weight, and should be followed unless found to be erroneous.” Id. “Even

obiter dictum of a court of last resort can be tantamount to a decision and therefore binding in the

absence of a contrary decision of that court.” Id. The Supreme Court is obviously the court of last

resort, and Kelley has not cited a single decision stating anything contrary to what the Court stated

in Heller. Kelley has not pointed to a single decision suggesting that prohibitions on firearm

possession by felons are impermissible, so there is no reason to discount the weight of the Supreme

Court’s dictum from the Heller decision.

¶ 19 Additionally, the issue of whether felons could be lawfully prevented from possessing

firearms was simply not before the Heller court. It is inappropriate for a court to consider an issue

not before it. See, e.g., TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021) (“[F]ederal courts

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do not issue advisory opinions.”). What is not improper is for a court to indicate it would likely

continue to adhere to longstanding precedent prohibiting felons’ possession of arms, as it did here.

¶ 20 Moreover, even though we find it unnecessary to engage in a fulsome historical analysis,

we recognize that the State has cited ample authority from around the country demonstrating a

longstanding tradition of prohibiting felons from possessing firearms. See, e.g., United States v.

Emerson, 270 F.3d 203, 226 n.21 (5th Cir. 2001) (listing scholarly literature on historical firearm

regulation indicating a longstanding tradition of prohibiting felons from possessing arms); United

States v. Dixon, No. 22 CR 140, 2023 WL 2664076, at *4-5 (N.D. Ill. Mar. 28, 2023) (discussing

historical precedent for prohibiting felons from possessing firearms); United States v. Rowson, 652

F. Supp. 3d 436, 460-62 (S.D.N.Y. 2023) (noting that post-Bruen federal court decisions have

uniformly upheld the constitutionality of the federal statute that bans felons from possessing

firearms “based on the statute’s historical antecedents”).

¶ 21 Kelley takes issue with all these cases, and attempts to distinguish them. However, we are

not persuaded by his analysis. For instance, Kelley argues that the State’s reliance on Emerson is

unpersuasive because that case provided only a cursory overview of firearm regulation, and did so

only in a footnote. We do not believe that the placement of scholarly literature on firearm

regulation in a footnote somehow lessens its value or findings. The various law review articles

cited in the Emerson footnote demonstrate that the founders did not consider felons within the

common law right to bear arms, nor did the founders intend to confer such a right upon them.

Kelley also challenges the State’s reliance on Dixon, arguing that its holding applies only to violent

felons. That is, only violent felons’ arms rights can be abrogated. Even if Dixon applies only to

violent felons, Kelley falls squarely within that description: he was convicted of a felony of

aggravated battery involving great bodily harm. From what we can discern from the report of

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proceedings, that conviction is based on Kelley stabbing another person with a knife. His prior

domestic battery misdemeanor convictions are further testament to his violent nature.

¶ 22 In sum, Bruen is clear that second amendment rights apply to law-abiding citizens for self-

defense. Accordingly, Illinois is at liberty to restrict felons’ rights to bear arms.

¶ 23 The Illinois Constitution

¶ 24 Kelley argues that even if we hold that the AHC statute comports with the federal

constitution, we must hold it unconstitutional on its face and as applied to Kelley under the Illinois

Constitution. Kelley asserts that the “substantive analysis under both constitutional provisions is

the same.” Kelley then contends that the Illinois Constitution’s arms provision protects a broader

set of people (to include felons) than the federal constitution because it uses the phrase “individual

citizen” instead of “the people.” This argument is meritless.

¶ 25 In Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 491 (1984), our supreme court

recognized that “[section 22] does not mirror the second amendment to the Federal Constitution

(U.S. Const., amend. II); rather it adds the words ‘[s]ubject only to the police power,’ omits

prefatory language concerning the importance of a militia, and substitutes ‘the individual citizen’

for ‘the people.’ ” The Bill of Rights Committee’s majority report (Committee Report) clarifies

that “the latter two changes were intended to broaden the scope of the right to arms from a

collective one applicable only to weapons traditionally used by a regulated militia *** to an

individual right covering a wider variety of arms.” Id. (citing 6 Record of Proceedings, Sixth

Illinois Constitutional Convention 87 (report of Bill of Rights Committee) (hereinafter

Proceedings)). Nothing in the Committee Report, however, suggests that these changes were

intended to protect a convicted felon’s right to bear arms. To the contrary, “ ‘[b]ecause arms pose

an extraordinary threat to the safety and good order of society, the possession and use of arms is

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subject to an extraordinary degree of control under the police power.’ ” Id. at 491-92 (quoting

Proceedings 88). The extraordinary degree of control has long included “prohibitions on the

possession of firearms by felons.” (Internal quotation marks omitted.) See, e.g., McDonald v. City

of Chicago, 561 U.S. 742, 786 (2010); Heller, 554 U.S. at 626-27.

¶ 26 In Kalodimos, our supreme court held that the right to bear arms was not a fundamental

right and therefore applied a rational basis test to determine whether a municipality’s ordinance

banning operable handguns passed constitutional muster. Kalodimos, 103 Ill. 2d at 508-09. Since

then, the United States Supreme Court has held that the right to bear arms for self-defense is a

fundamental right applicable to the states through the fourteenth amendment to the United States

Constitution. McDonald, 561 U.S. at 791. Though McDonald overruled the Kalodimos court’s

holding that the right to bear arms is not fundamental without explicitly saying so, nothing in that

case nor in the Supreme Court’s subsequent second amendment jurisprudence suggests that the

right is unlimited or absolute: “ ‘[L]ike most rights, the right secured by the Second Amendment

is not unlimited.’ ” Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S. at 626). 4 Moreover, nothing

in Illinois’s post-McDonald jurisprudence suggests any departure from the long-established

principle that the state’s police power includes the ability to control who may bear arms. To the

contrary, less than three years ago, our supreme court unanimously reaffirmed that the right to bear

arms extends to law-abiding citizens for self-defense purposes. Guns Save Life, Inc. v. Ali, 2021

IL 126014, ¶ 28. Accordingly, Kelley’s facial challenge fails.

¶ 27 Kelley’s as-applied challenge is equally meritless. The crux of Kelley’s argument on this

point is that there is no historical precedent for a permanent status-based revocation of gun rights.

4 The McDonald Court cited the Kalodimos case but did not explicitly overrule it. McDonald, 561 U.S. at 786.

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He takes issue with the idea that past crimes may be used to determine whether an individual

continues to enjoy the right to bear arms. But in Kelley’s case, it was not only his felon status but

also his conduct that resulted in the revocation of his gun rights. What Kelley ignores is the fact

that he was still serving the sentence from his 2019 conviction for manufacture and delivery of a

controlled substance. That is, he was still on parole at the time he was arrested in this case. It can

hardly be said that his right to bear arms was abrogated based on something he did in the distant

past: he was still serving his sentence. Moreover, by definition, he was not abiding by the law at

the time of this arrest, as Illinois law mandates possession of a valid FOID card and concealed

carry license, neither of which Kelley ever had, let alone at the time of the arrest. Finally, as

detailed above, he has a long criminal history of violent and nonviolent felony and misdemeanor

offenses.

¶ 28 Based on the foregoing, it is impossible to say that Kelley is a law-abiding citizen under

any conceivable definition of the phrase. Accordingly, the Illinois legislature is well within its

power to restrict his access to firearms.

¶ 29 CONCLUSION

¶ 30 Contrary to Kelley’s assertions, nothing in the Bruen decision nor its analysis suggests that

second amendment rights must extend to felons. Rather, Bruen explicitly recognized—

repeatedly—that the right to bear arms applies only to law-abiding citizens and only for self-

defense. We find nothing in the Bruen decision to support a holding that Illinois’s AHC statute,

which prohibits felons from bearing arms, fails to pass constitutional muster. Similarly, nothing in

article I, section 22, of the Illinois Constitution suggests that the right to bear arms is unlimited

and bars the State from prohibiting felons from bearing arms. Accordingly, we hold that the AHC

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statute is constitutional under both the second amendment to the United States Constitution and

article I, section 22, of the Illinois Constitution.

¶ 31 Because the AHC statute is constitutional, we affirm Kelley’s AHC conviction.

¶ 32 Affirmed.

¶ 33 PRESIDING JUSTICE REYES, specially concurring:

¶ 34 I write separately as I am growing concerned regarding our court’s practice of employing

a “law-abiding citizen” threshold inquiry. See supra ¶ 16. Such approach—which bypasses the

text-and-history test (see supra ¶ 14)—may not have been contemplated by the United States

Supreme Court majority decision in Bruen. See People v. Brooks, 2023 IL App (1st) 200435,

¶¶ 88-89 (concluding that the State’s contention that a convicted felon is not a “law-abiding

citizen”—and he thus “falls outside the scope of ‘the people’ that have the right ‘to keep and bear

arms,’ ” as provided in the second amendment—“incorrectly conflates Bruen’s first step with its

second”); see also United States v. Duarte, 101 F.4th 657, 670 (9th Cir. 2024) (stating that “we do

not think that the Supreme Court, without any textual or historical analysis of the Second

Amendment, intended to decide the constitutional fate of so large a population in so few words

and with such little guidance”). Even assuming that such approach is consistent with Bruen, the

precise meaning and scope of the term “law-abiding” is unclear. E.g., People v. Mobley, 2023 IL

App (1st) 221264, ¶ 30 (employing the “law-abiding citizen” approach but noting that “[w]hether

a defendant who is not a violent offender can demonstrate that he or she is a law-abiding citizen

*** is an issue for another case”).

¶ 35 Notwithstanding the foregoing, I agree with the majority that the State has demonstrated

that the AHC statute is consistent with the nation’s historical tradition of firearm regulation (see

supra ¶ 20) and thus defendant’s conviction should be affirmed.

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People v. Kelley, 2024 IL App (1st) 230569

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-CR-12886; the Hon. Michael R. Clancy, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and S. Amanda Ingram, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Brian Levitsky, and Sara McGann, Assistant State’s Appellee: Attorneys, of counsel), for the People.