2023 IL App (1st) 221264 SIXTH DIVISION
December 22, 2023
No. 1-22-1264
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 18 CR 16864 ) CARL MOBLEY, ) Honorable ) Michael R. Clancy, Defendant-Appellant. ) Judge, presiding.
JUSTICE C.A. WALKER delivered the judgment of the court, with opinion. Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant Carl Mobley was found guilty of unlawful use of weapon by a
felon (UUWF) (720 ILCS 5/24-1.1 (West 2016)) and sentenced to five years’ imprisonment. He
appeals, claiming that the statute is unconstitutional as applied to him. Specifically, Mobley claims No. 1-22-1264
the statute improperly infringes on his right to keep and bear arms by barring him from possessing
a firearm because he has a nonviolent felony conviction. We affirm.
¶2 I. BACKGROUND
¶3 The State charged Mobley by indictment with six counts, including count I for UUWF,
pursuant to an incident on November 3, 2018. Count I alleged that Mobley possessed a firearm
after being convicted of escape, a felony, in case No. 10-CR-10915. The State nol-prossed counts
II through VI before trial and proceeded on count I alone. In a motion in limine, Mobley indicated
he had 12 previous felony convictions, including the escape conviction.
¶4 A jury trial began on June 7, 2022. Lewis Sellers testified that on November 3, 2018, at
approximately 1:51 a.m., he was working as an escort near the intersection of Troy Street and 47th
Street in Chicago. At some point, a man approached, whom Sellers identified in court as Mobley.
Sellers had never interacted with Mobley before but had seen him in the area. Mobley said “vulgar”
things to Sellers, walked away, then returned carrying a firearm. He pointed the firearm at Sellers’
head and told him to leave or “there would be a problem.” A female “associate” of Mobley’s then
“intervened,” and she and Mobley exited. Sellers did not know the woman personally but had
witnessed her working as an escort in the same area previously.
¶5 Sellers called 911, and police officers arrived on scene shortly thereafter. The officers
interacted with Mobley in a nearby parking lot. Sellers also spoke to the officers and identified
Mobley as the man who threatened him with a firearm. The officers showed a firearm to Sellers,
and he identified it as the same Mobley used to threaten him.
¶6 Chicago police officer Madrigal 1 testified that he and his partner responded to the incident
on November 3, 2018. Madrigal wore a body camera that recorded the incident. The officers spoke
1 Officer Madrigal’s first name does not appear in the report of proceedings.
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with Sellers on the scene, then located Mobley in a nearby strip mall parking lot. Mobley, alone in
a red SUV, exited to interact with the officers. The officers eventually located a firearm in the
SUV’s backseat area, then arrested Mobley. Later, the officers learned the woman Mobley was
with, Charlene McCaa, owned the SUV. The State entered portions of the body camera recording
into evidence.
¶7 Chicago police sergeant Robert Franks testified that he served as an evidence technician in
Mobley’s case and unsuccessfully attempted to obtain fingerprint evidence from the recovered
firearm.
¶8 Chicago police detective Elliot Flagg testified that he interviewed Mobley in connection
with the incident. The interview was not recorded. During the interview, Mobley stated that he
was a pimp, McCaa was his girlfriend, and they had been losing money due to Sellers working on
the same corner as McCaa. Mobley denied having a firearm at any point during the incident with
Sellers, but admitted McCaa owned a firearm, and Mobley knew it was in the vehicle on the night
of the incident. On cross-examination, Flagg testified that McCaa claimed she owned the firearm.
¶9 The State entered a stipulation that Mobley had “a prior felony conviction which qualifies
him to be charged in this case with the charge of unlawful use of a weapon by a felon.”
¶ 10 The State rested, and Mobley called McCaa, who testified that she worked as a prostitute in
November 2018. On November 3, 2018, she was with Mobley on the scene and had her SUV with
her, with the firearm in the backseat. She and Sellers argued that night. During the argument,
Mobley exited the SUV and walked to an area across the street. McCaa did not observe anything
in Mobley’s hands at this time. She then left the area with a “John,” and when she returned, she
saw police officers near her SUV. One officer indicated he had recovered a firearm and asked if it
belonged to McCaa, who responded affirmatively.
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¶ 11 The defense rested, and the State called Flagg in rebuttal. Flagg testified that he interviewed
McCaa and Mobley about the incident. Mobley stated that Sellers would know what the firearm
looked like because McCaa showed it to Sellers previously. McCaa, conversely, told Flagg she did
not show the firearm to Sellers. The defense called McCaa in surrebuttal, who stated she did show
Sellers the firearm at some point before November 3, 2018.
¶ 12 The jury found Mobley guilty of UUWF. Mobley’s presentencing investigation report listed
numerous felony convictions, including those listed by the defense in its motion in limine, along
with additional convictions for robbery and two counts of aggravated battery.
¶ 13 Mobley filed a motion for a new trial, which he later supplemented. He did not claim that
the UUWF statute was unconstitutional as applied to him in the motion. At a proceeding on August
11, 2022, the circuit court denied the motion for a new trial. The matter moved to sentencing,
where the State emphasized that Mobley had 14 felony convictions. Defense counsel argued that
his prior felony convictions for retail theft and escape were “nonviolent.” The court sentenced
Mobley to five years’ imprisonment and denied his motion to reconsider sentence. This appeal
followed.
¶ 14 II. JURISDICTION
¶ 15 This court has jurisdiction pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. Sept. 18, 2023) because the circuit court sentenced Mobley on August 11, 2022,
and he filed his notice of appeal that same day.
¶ 16 III. ANALYSIS
¶ 17 Mobley’s lone claim on appeal is that there is no historical tradition in America of the
government barring an individual from possessing a firearm on the basis that the person has a
nonviolent felony conviction and that UUWF as applied to him in this case is unconstitutional
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under the test announced by the United States Supreme Court in New York State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022).
¶ 18 We must first determine whether Mobley forfeited this claim because, as he acknowledges,
he did not properly preserve the issue through a timely objection at trial and inclusion in a posttrial
motion. See People v. Galarza, 2023 IL 127678, ¶ 45. Before resolving this issue, we briefly note
that there are two types of constitutional challenges—facial and as-applied—with Mobley’s claim
here an as-applied challenge. See People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL
121636, ¶¶ 11-12. A facial challenge requires the claimant to demonstrate that the statute is
unconstitutional under any set of facts. To establish an as-applied challenge, the claimant only
“has the burden of showing that a constitutional violation arises from the application of the statute
to a specific set of facts and circumstances.” Id.
¶ 19 Mobley argues that we may consider his claim because an as-applied constitutional
challenge can be raised for the first time on appeal, so long as the record is sufficient to permit the
reviewing court to fully analyze the issue. See People v. Martin, 2018 IL App (1st) 152249, ¶¶ 12-
13. The State responds that this rule of forfeiture avoidance only applies to as-applied
constitutional challenges arising under Miller v. Alabama, 567 U.S. 460 (2012) (mandatory life
sentences without the possibility of parole for juveniles are unconstitutional). The State further
contends that even if the rule can apply beyond Miller generally, it does not excuse Mobley’s
forfeiture because the record is insufficient to consider his claim. In support of this argument, the
State claims that had it known Mobley intended to raise a constitutional challenge earlier in the
proceedings, it could have potentially uncovered, and introduced at trial or sentencing, information
regarding any history of violence in Mobley’s past. The State does not identify any such
information in its briefing.
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¶ 20 We find that we may consider Mobley’s as-applied constitutional claim, despite his failure
to properly preserve it. First, the State’s contention that a reviewing court may only consider as-
applied Miller claims raised for the first time on appeal is inaccurate; courts in Illinois have
considered constitutional claims in other contexts outside of Miller based on this theory of
forfeiture avoidance. See People v. Brooks, 2023 IL App (1st) 200435, ¶ 58. Additionally, and
most importantly, the record here is sufficient for review of Mobley’s claim. The only fact at issue
is what conviction the State used as the predicate for UUWF, which is apparent from both the
stipulation in the record and the report of proceedings. The claim is that UUWF is unconstitutional
as applied to Mobley because the State used his conviction for escape, a nonviolent felony, to bar
him from future firearm possession. 2 Whatever additional convictions the State might have used
as a predicate, violent or nonviolent, are not at issue, nor is Mobley’s history of violent behavior
aside from his convictions, if such a history exists.
¶ 21 The second amendment reads, “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. A brief history of the recent United States Supreme Court jurisprudence regarding the
second amendment is necessary to establish the parameters of our task here.
¶ 22 In 2008, the United States Supreme Court fundamentally altered second amendment
jurisprudence in District of Columbia v. Heller, 554 U.S. 570 (2008). There, in a Justice Scalia-
penned majority opinion, the Court declared for the first time that the right to keep and bear arms
is an individual right, not a collective right. Id. at 595. Though Heller did not specifically establish
2 The State does not contend that escape is a violent felony, and as such, we will consider it a nonviolent felony for purposes of our review here. We note, however, that the details of the escape charge were not introduced below and are not before us here, and it does not appear so facially obvious to this court that “escape” is an inherently nonviolent offense.
6 No. 1-22-1264
a mode of analysis for courts to use in reviewing whether a firearm regulation infringed upon the
new individual right, the opinion did state that the familiar framework of means-end scrutiny,
which permits a reviewing court to balance interests, was of suspect value in this context because
the second amendment was already “the very product of an interest balancing by the people.”
(Emphasis omitted.) Id. at 635. The Heller majority justified its decision not to provide a mode of
analysis by stating, “there will be time enough to expound upon the historical justifications for the
exceptions [(i.e., felons and the mentally ill)] we have mentioned if and when those exceptions
come before us,” and continuing, “whatever else [the second amendment] leaves to future
evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens
to use arms in defense of hearth and home.” Id. Speculating as to what these potential future
challenges might be, the Heller Court noted, “nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. at
626.
¶ 23 Two years later, in McDonald v. City of Chicago, 561 U.S. 742, 791 (2010), the Court held
that the fourteenth amendment incorporated the second amendment, and thus claims for
infringement on the right to keep and bear arms could be raised by an individual against state
governments. The Court again declined to establish a test for evaluating second amendment
claims.
¶ 24 After Heller and McDonald, it was clear that the second amendment protected an individual
right to keep and bear arms, which could be vindicated against infringement from both the federal
and state governments. But how were courts to decide whether a regulation infringed? The Court
answered this question in Bruen: not through the widely applied and understood means-ends
analysis process, but through a historical tradition test. Bruen, 597 U.S. at ___, 142 S. Ct. at 2127-
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30. Justice Thomas, writing for the majority, stated the post-Heller consensus approach—a hybrid
intermediate/strict scrutiny approach—had “one step too many.” Id. at ___, 142 S. Ct. at 2126-27.
Bruen set out a new test, where the analysis of a firearm regulation consists only of two
considerations:
(1) Is an individual’s conduct covered by the plain text of the second amendment; and
(2) If so, the conduct is presumptively protected, and “[t]he government must then justify
its regulation by demonstrating that it is consistent with the [n]ation’s historical tradition
of firearm regulation.” Id. at ___, 142 S. Ct. at 2129-30.
¶ 25 Under this regime, the government’s goal for a particular regulation is irrelevant, as is the
narrowness or broadness of the means employed in pursuit of that goal. Instead, so long as the
regulated conduct is covered by the second amendment’s plain text, the only consideration is if the
government can demonstrate the regulation is consistent with the nation’s historical tradition. Id.
at ___, 142 S. Ct. at 2129-30. Bruen does not explicitly provide a relevant time period to
determining historical tradition but emphasizes that the understanding at the time of ratification
takes precedence, quoting Heller: “ ‘Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them.’ ” (Emphasis in original.) Id. at ___, 142 S. Ct.
at 2136 (quoting Heller, 554 U.S. at 634-35).
¶ 26 In performing the historical analysis, courts must use analogical reasoning to determine if
regulations from the nation’s history are “relevantly similar” to the modern regulation at issue. Id.
at ___, 142 S. Ct. at 2132. Justice Thomas explained that “analogical reasoning under the [s]econd
[a]mendment is neither a regulatory straightjacket nor a regulatory blank check,” and the test
“requires only that the government identify a well-established and representative historical
analogue, not a historical twin.” He summarized this point by stating, “even if a modern-day
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regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass
constitutional muster.” (Emphases in original.) Id. at ___, 142 S. Ct. at 2133. The Bruen majority
further acknowledged “that there is an ongoing scholarly debate on whether courts should
primarily rely on the prevailing understanding of an individual right when the Fourteenth
Amendment was ratified in 1868,” but declined to resolve the dispute because, with respect to the
New York public carry law at issue in Bruen, “the public understanding of the right to keep and
bear arms in both 1791 and 1868” was the same “for all relevant purposes.” Id. at ___, 142 S. Ct.
at 2138. The majority also warned, however, that post-Civil War discussions may not provide
significant insight into the historical tradition of firearm regulation. Id. at ___, 142 S. Ct. at 2137.
¶ 27 The same panel as in this case (with Presiding Justice Oden Johnson writing the unanimous
opinion) recently addressed a nearly identical claim in People v. Baker, 2023 IL App (1st) 220328,
¶¶ 2, 16-17, where the defendant claimed that the UUWF was unconstitutional as applied to him.
This court held Baker could not invoke Bruen because the test only applies to “laws that attempt[ ]
to regulate the gun possession of ‘law-abiding citizens,’ ” a category to which Baker did not belong
because he had a felony conviction. (Internal quotation omitted.) Id. ¶ 37. This conception is
consistent with the statement in Heller that felon bans are “presumptively lawful,” which, though
debatably dicta, suggests the Court did not believe felons maintained second amendment rights
post-conviction. Heller, 554 U.S. at 627 n.26.
¶ 28 We maintain this position here. For the reasons stated in Baker, we hold that Mobley cannot
appeal to the Bruen test to argue that the UUWF statute is unconstitutional as applied to him, and
we reiterate that Bruen strongly suggests the test only applies when a regulation impacts a law-
abiding citizen’s ability to keep and bear arms. Baker, 2023 IL App (1st) 220328, ¶ 37; see Bruen,
597 U.S. at ___, 142 S. Ct. at 2132-33 (“While we do not now provide an exhaustive survey of the
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features that render regulations relevantly similar under the Second Amendment, we do [believe]
that Heller and McDonald point toward at least two metrics: how and why the regulations burden
a law-abiding citizen’s right to armed self-defense.” (Emphasis added.)).
¶ 29 That Mobley is not a “law-abiding citizen” cannot be contested, though that term is not
specifically defined in Heller or Bruen. The record shows Mobley has at least 14 felony
convictions, including convictions for violent crimes—robbery and aggravated battery. This
record is even more serious than the one we found disqualifying in Baker, and it denies Mobley
the ability to contest his conviction under Bruen.
¶ 30 In so holding, however, we wish to clarify that our determination in Baker does not
completely foreclose any defendant from arguing that Bruen applies to them simply because they
have a felony conviction of any nature. Baker stands for the proposition that Bruen applies “only
to laws that attempt[ ] to regulate the gun possession of ‘law-abiding citizens,’ ” which excluded
“felons like defendant.” Baker, 2023 IL App (1st) 220328, ¶ 37. Mobley’s voluminous record,
including convictions for violent crimes, excises him from the law-abiding citizen category,
despite his protestation that he is a nonviolent offender. But we neither here, nor in Baker,
endeavored to define comprehensively who is or is not “law-abiding.” Whether a defendant who
is not a violent offender can demonstrate that he or she is a law-abiding citizen, and thus not a
felon like Baker or Mobley, is an issue for another case. See, e.g., Range v. Attorney General, 69
F.4th 96 (3d Cir. 2023) (en banc).
¶ 31 The scenario in Range is helpful on this point. There, the United States Court of Appeals
for the Third Circuit ruled that 18 U.S.C. 922(g)(1) (2018) was unconstitutional as applied to
Range because his underlying conviction was for a nonviolent offense of “making a false statement
to obtain food stamps,” and it was inconsistent with America’s historical tradition to disarm
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someone based on such a conviction. Range, 69 F.4th at 98, 106. The Range court found that the
government’s historical analogues regarding the disarming of categories of dangerous people did
not apply to Range, stating the fact that “[f]ounding-era governments disarmed groups they
distrusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to prove
that Range is part of a similar group today.” Id. at 104-05. Additionally, the Range court found no
guidance in the fact that nonviolent crimes could be punished by death at the time of ratification,
contending that, “The greater does not necessarily include the lesser: founding-era governments’
execution of some individuals convicted of certain offenses does not mean the State, then or now,
could constitutionally strip a felon of his right to possess arms if he was not executed.” Id. at 105.
The Range court also suggested the government had failed to demonstrate that the specific
punishment of lifetime disarmament was consistent with the nation’s historical tradition for those
in Range’s position. Id.
¶ 32 The Range court, of course, used a different mode of analysis than the one this court
believes represents the proper interpretation of Bruen. Despite this difference, we believe that it is
valuable to note the case here, and particularly its result, as an example of an individual with a
conviction who nonetheless was a law-abiding citizen, and thus could successfully vindicate his
or her second amendment rights even under the Bruen test. We emphasize, however, the
importance of legislative specificity in fashioning firearm regulations post-Bruen. While Mobley
is not a litigant that presents a problematic case, in Bruen’s wake, it is incumbent on legislatures
to carefully draft firearm regulations like UUWF to not sweep too broadly (as a regulation that
impacts law-abiding citizens might) because the courts are now seriously hindered by Bruen’s
historical tradition test from correcting overbroad law. A means-end scrutiny test, of course,
controls for this issue. Consider the current issue through that prism. The goal of UUWF—the
11 No. 1-22-1264
“end”—of protecting Illinoisans from firearm violence is undoubtedly a worthy one. However, is
the “means” of barring all felons, including the most non-threatening amongst them, sufficiently
narrowly tailored to further this end? Perhaps not. But that is no longer a framework courts can
use when reviewing a firearm regulation.
¶ 33 Finally, we also cannot help but note the deluge of cases interpreting Bruen, many of which,
utilizing a divergent framework than the one this court established in Baker, have analyzed the
substance of felon bans, using the Bruen test, and upheld those bans, even as applied to nonviolent
offenders, by analogizing to the nation’s historical tradition of regulating a person’s firearm
possession based on that person belonging to a group the government deemed dangerous. This
historical tradition is firmly rooted in racism, racial prejudice, bias, and discrimination, and this
court finds it incredibly unfortunate that the Bruen majority believed it was appropriate to revive
it. See, e.g., United States v. Rowson, 652 F. Supp. 3d 436, 466 (S.D.N.Y. 2023) (“It goes without
saying that, in our modern era, a law that would disarm a group based on race, nationality, or
political point of view—or on the assumption that these characteristics bespoke heightened
dangerousness—would be anathema, and clearly unconstitutional. [Citation.] But the Second
Amendment’s inquiry into historical analogues is not a normative one. Viewing these laws in
combination, the above historical laws bespeak a ‘public understanding of the [second amendment]
right’ in the period leading up to 1791 as permitting the denial of access to firearms to categories
of persons based on their perceived dangerousness.”); see also United States v. Jackson, 69 F.4th
495, 504 (8th Cir. 2023) (acknowledging that the historical record suggested that, “Legislatures
historically prohibited possession by categories of persons based on a conclusion that the category
as a whole presented an unacceptable risk of danger if armed,” which encompassed historical
firearm bans for Native Americans and Catholics, and which had analogical value in applying
12 No. 1-22-1264
Bruen’s second prong). Upholding modern regulations because they are rooted in this tradition is
not a tenable form of jurisprudence, but Bruen has been interpreted to require it, and this
unacceptable regime is likely to persist until the Supreme Court rectifies the current state of the
law. We echo the sentiments of Judge Sharon Coleman of the Northern District of Illinois on this
subject:
“The Court is dismayed by the government’s continuous reliance on admittedly
bigoted and racist laws in these cases. [Citations.] Indeed, the Court would be remiss in
failing to point out that the government’s characterization of [the defendant], a Black man,
as an ‘untrustworthy adherent to the law’ would have been the same characterization the
founders had about the enslaved Africans. The government essentially expands on Bruen’s
test to argue that the denial of all constitutional rights at the founding can justify the denial
of some constitutional rights today. The government should be careful in ‘pick[ing] [its]
friends out of history’s crowd.’ [Citation.]
The government demonstrates ignorance and insensitivity toward this nation’s
history of slavery and the peculiar institution’s modern impact on Black Americans. This
level of disregard becomes all the more concerning when the realities of how Section
922(g)(1) is enforced against primarily Black Americans is considered. [Citations.]
Unsurprisingly, this Court rejects the government’s reliance on slavery and
discrimination toward Native Americans as historical analogues to Section 922(g)(1) given
the regulations impermissible premise cannot impose a ‘comparably justified’ burden on
the right of armed self-defense. Accordingly, the Court finds that Section 922(g)(1) is not
analogous to discriminatory regulations regarding slavery and Native Americans.” United
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States v. Washington, No. 23-cr-00274, 2023 WL 8258654, at *5-6 (N.D. Ill. Nov. 29,
2023).
See also United States v. Mitchell, No. 1:23-cr-00198 (ALC), 2023 WL 8006344 (S.D.N.Y., Nov.
17, 2023). 3
¶ 34 IV. CONCLUSION
¶ 35 Mobley cannot raise a claim under Bruen because he is not a law-abiding citizen, and
accordingly, we affirm his conviction for UUWF.
¶ 36 Affirmed.
3 In discussing this issue, the Mitchell court, despite Bruen, declined to analogize to historical firearm bans based on membership in now-protected classes, such as racial and religious firearm bans, explaining:
“The Court rejects the abhorrent and morally corrupt historical regulations barring individuals from possessing forearms or ammunition on the basis of race, religious affiliation, and suspected disloyalty. These laws undoubtedly would not pass constitutional muster today. Despite this, several courts have found these laws relevant in determining the constitutionality of the felon-in- possession statute.” Mitchell, 2023 WL 8006344, at *6.
The Mitchell Court continued,
“This Court does not need to uphold the constitutionality of [section] 922(g)(1) on these repulsive historical regulations. Bruen of course requires a robust historical analysis. But it cannot stand for the proposition that the government *** should rely on questionable ill-reasoned regulations to justify burdening an individual’s constitutional right to bear arms in the present day. There is undoubtedly a plethora of irrational and unjustified regulations in English and this country’s histories founded at their core on discrimination. The government may not satisfy Bruen by relying on these laws, particularly when better suited historical analogues are available. Setting aside the morally corrupt reasoning justifying these historical regulations, this Court fails to see how race or religious-based restrictions are at all analogous to the disarming of felons. Casting such a broad net of legislation would render Bruen’s analogous requirement meaningless.” Id.
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People v. Mobley, 2023 IL App (1st) 221264
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-16864; the Hon. Michael R. Clancy, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Tomas G. Gonzalez, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Jessica R. Ball, and Caitlin Chenus, Assistant State’s Appellee: Attorneys, of counsel), for the People.