People v. Ramey

Opinion

NOTICE 2026 IL App (5th) 240605-U NOTICE Decision filed 07/30/26. The This order was filed under text of this decision may be NO. 5-24-0605 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Vermilion County. ) v. ) No. 22-CF-132 ) JEREMY RAMEY, ) Honorable ) Derek J. Girton, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE SHOLAR delivered the judgment of the court. Presiding Justice Cates and Justice Vaughan concurred in the judgment.

ORDER

¶1 Held: The evidence was sufficient to support defendant’s conviction for unlawful possession of a weapon by a felon. Defense counsel was not ineffective for stipulating to the admission of DNA evidence. Defendant’s challenge that section 24-1.1(a) of the Criminal Code of 2012 (720 ILCS 5/24-1.1(a)) is facially unconstitutional and unconstitutional as applied to him is without merit.

¶2 Following a Vermilion County jury trial, defendant, Jeremy Ramey, was convicted of

unlawful possession of weapon by a felon. On direct appeal, defendant claims (1) the State failed

to prove him guilty beyond a reasonable doubt, (2) his attorney was ineffective for stipulating to

DNA evidence, and (3) section 24-1.1(a) of the Criminal Code of 2012 (Criminal Code) (720 ILCS

5/24-1.1(a) (West 2022)) is facially unconstitutional and unconstitutional as applied. For the

following reasons, we affirm the judgment of the trial court.

1 ¶3 I. BACKGROUND

¶4 On March 21, 2022, an officer with the Danville Police Department, Henry Schroeder,

responded to a call of “shots fired” when he saw defendant standing near a street corner. Believing

that defendant shot a firearm in the direction of passing cars, Schroeder activated his emergency

lights, and defendant fled on foot. Following a short pursuit, defendant was taken into custody.

Schroeder found a firearm located at the base of a tree where he saw defendant place an object.

¶5 Defendant was charged with (1) count I, aggravated discharge of a firearm (id. § 24-

1.2(a)(2)); (2) count II, possession of a stolen firearm (id. § 24-3.8(a)); (3) count III, unlawful

possession of a weapon by a felon (UPWF) (id. § 24-1.1(a)); and (4) count IV, resisting or

obstructing a peace officer (id. § 31-1(a)). Prior to trial, the State dismissed counts II and IV.

¶6 The matter proceeded to a jury trial on January 17, 2024. The following evidence was

presented at trial. Schroeder testified that on March 21, 2022, he was a patrol officer with the

Danville Police Department. He was in the vicinity of a “shots fired” call and responded to the

area when he heard shots being fired. He saw two vehicles drive through the intersection in front

of him and notified dispatch that he had two vehicles shooting at each other. Schroeder testified

that he then saw a person, later identified as defendant, standing down the street, firing at those

vehicles. Schroeder activated his emergency lights, and defendant fled on foot. Schroeder pursued

defendant. Schroeder testified that, while being pursued, defendant tripped and fell, got back up,

and continued running. Schroeder told the jury that defendant “then continues to go behind a tree,

or partially behind a tree.” According to Schroeder, when defendant reached the tree, “he goes

down, gets back up and then” followed Schroeder’s commands to show his hands.

¶7 Schroeder’s squad car video was played for the jury. It showed that while running,

defendant tripped and fell near a tree. It also showed that defendant then stood up and started

2 running again, this time headed toward a tree with three trunks. Defendant also ran in the direction

of a white Dodge Durango that was parked nearby.

¶8 Schroeder stopped and exited his squad car. He drew his firearm and instructed defendant

to show his hands. Defendant complied. Officer John Casey, also of the Danville Police

Department, arrived on the scene and helped Schroeder take defendant into custody. Although

defendant initially refused to provide his name, eventually he did so.

¶9 According to testimony, the squad car video and Casey’s body cam video, which was also

admitted into evidence and played for the jury, Schroeder and Casey noticed the Durango had

bullet holes in it. With defendant secured in the back of a squad car, the two officers checked the

Durango to see whether there were any victims or anyone in need of medical attention. Finding

none, the two officers returned to their squad cars and checked the three-trunked tree where

defendant fell.

¶ 10 The officers recovered a loaded 9-millimeter semiautomatic handgun at the base of the

tree. When fully loaded, the handgun was capable of holding 18 rounds of ammunition. When the

officers recovered the gun, it was loaded with 16 rounds. The handgun was secured into evidence.

Defendant denied any knowledge of a gun, telling the officers that the people in the vehicles were

shooting at him. A subsequent search of defendant revealed that he had a key fob to the Durango.

Defendant was eventually taken to the police department where another officer administered a

gunshot residue (GSR) test.

¶ 11 On cross-examination, Schroeder acknowledged that he told dispatch that, “I’ve got two

vehicles shooting at each other.” Schroeder explained, “That is initially what I thought ***.”

Schroeder also acknowledged that he told dispatch that he had a subject running but never told

dispatch that he saw the subject shooting.

3 ¶ 12 The State also presented evidence that, after securing defendant, a canine unit was called

in to assist with locating evidence. Schroeder joined the canine officer in canvassing the area,

where the shooting was reported to have occurred. Other officers participated as well. The police

collected a total of 18 spent 9-millimeter cartridge casings. Twelve of the casings were found at

various locations on the street and six were collected from the passenger compartment of the

Durango. Subsequent testing of the casings revealed that 12 of the casings were fired from a gun

other than the one recovered. The testing of the six casings seized from the Durango was

inconclusive when compared to the recovered firearm, meaning that the recovered firearm could

not be either identified or excluded as having fired those cartridges. Although the results of the

testing were inconclusive, the jury viewed photographs demonstrating similarities between some

of the casings recovered from the Durango and a casing that had been fired out of the recovered

firearm by a forensic scientist with the Illinois State Police.

¶ 13 A GSR expert testified for the State. He testified that there can be three results from a GSR

test: (1) a positive test, (2) a negative test, or (3) an inconclusive test. The expert stated that

although defendant’s left hand tested positive for the presence of GSR, the test results from

defendant’s right hand were inconclusive. A positive test means that the subject either discharged

a firearm, was in close proximity to a firearm that was discharged, or came in contact with a GSR-

related item. The expert further explained that an inconclusive test means that the subject may

have discharged a firearm, may have been in close proximity to a firearm that was discharged, may

have had contact with a GSR-related item, or may have come in contact with the tested elements

from an environmental source. The State’s GSR expert also testified that, because defendant’s left

hand tested positive for GSR, he did not test the gloves defendant was wearing at the time of his

arrest.

4 ¶ 14 The parties stipulated that the State’s DNA witness was an expert in DNA/STR 1 mix

identification analysis and that she conducted DNA analysis of swabs taken from the recovered

firearm and from defendant. Regarding the swab taken from the handle of the firearm, the

stipulation read:

“a. The DNA profile is approximately 34,000 times more likely if it originated from

[defendant] and three unknown individuals, than if it originated from four unknown

individuals; and

b. This analysis provides strong support for the proposition that [defendant] is a

contributor to the DNA Profile[.]”

With regard to the UPWF charge, the parties also stipulated that defendant was previously

convicted of a qualifying felony offense.

¶ 15 The State rested and the defense did not present any evidence. Following closing arguments

and jury instructions, the jury convicted defendant of UPWF and acquitted him of aggravated

discharge of a firearm. No posttrial motions were filed.

¶ 16 The matter proceeded to sentencing on April 1, 2024. At sentencing, the parties agreed to

a sentence that resolved another, unrelated case. In the instant matter, defendant was sentenced to

two years in the Illinois Department of Corrections. Defendant timely filed a notice of appeal.

¶ 17 II. ANALYSIS

¶ 18 As noted above, defendant raises three issues on appeal. First, he contends that the evidence

was insufficient to prove him guilty beyond a reasonable doubt. Second, he argues that defense

counsel provided ineffective assistance by stipulating to the DNA evidence. Finally, defendant

maintains that section 24-1.1(a) of the Code (720 ILCS 5/24-1.1(a) (West 2022)) is facially

1 “DNA/STR” is an abbreviation for deoxyribonucleic acid/short tandem repeats. 5 unconstitutional and unconstitutional as applied. For the reasons that follow, we affirm defendant’s

conviction.

¶ 19 A. Sufficiency of the Evidence

¶ 20 First, defendant contends that the evidence was insufficient to sustain his conviction. In

support of his argument, defendant specifically argues that the GSR test and the DNA test were

inconclusive, there was conflicting testimony regarding the timing of when the firearm was

recovered, the firearm was not found on defendant’s person, there was no direct evidence linking

defendant to the firearm that was recovered or the firearm to the fired shell casings, and that

defendant repeatedly told officers that it was not his gun. The State argues that the cumulative

weight of the evidence was sufficient for a rational trier of fact to find defendant guilty beyond a

reasonable doubt. We agree with the State.

¶ 21 The standard employed when faced with a challenge to the sufficiency of the evidence is

well established. When considering such a challenge, a reviewing court must determine

“ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”

(Emphasis in original.) People v. Bush, 2023 IL 128747, ¶ 33 (quoting People v. Collins, 106 Ill.

2d 237, 261 (1985)). The standard of reasonable doubt “does not require the court to ‘ “ask itself

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” ’ ”

(Emphasis in original.) People v. Campbell, 146 Ill. 2d 363, 374 (1992) (quoting Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979), quoting Woodby v. Immigration & Naturalization Service,

385 U.S. 276, 282 (1966)). Rather, a reviewing court must determine “ ‘whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Bush,

6 2023 IL 128747, ¶ 33 (quoting Collins, 106 Ill. 2d at 261). “Under this standard, a reviewing court

must allow all reasonable inferences from the record in favor of the prosecution.” People v. Givens,

237 Ill. 2d 311, 334 (2010) (citing People v. Cunningham, 212 Ill. 2d 274, 280 (2004)). “When

presented with a challenge to the sufficiency of the evidence, it is not the function of this court to

retry the defendant.” Id. (citing People v. Schmalz, 194 Ill. 2d 75, 80 (2000)).

¶ 22 This standard of review “is applicable in all criminal cases, regardless of whether the

evidence is direct or circumstantial.” Campbell, 146 Ill. 2d at 374 (citing People v. Pintos, 133 Ill.

2d 286, 291 (1989)). Circumstantial evidence is sufficient to support “a conviction if it satisfies

proof beyond a reasonable doubt of the elements of the crime charged.” Id. at 379. This “standard

gives ‘full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Id.

at 375 (quoting Jackson, 443 U.S. at 319). For this reason, a reviewing court “will not substitute

its judgment for that of the fact finder on questions involving the weight of the evidence or the

credibility of the witnesses.” Id. (citing People v. Young, 128 Ill. 2d 1, 51 (1989)). We “will not

reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so

unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” Id. (citing Collins, 106 Ill.

2d at 261).

¶ 23 In order to sustain a conviction for UPWF, the State must prove that defendant

(1) knowingly possessed a firearm and (2) had previously been convicted of a felony. 720 ILCS

5/24-1.1(a) (West 2022). Given that the defendant stipulated to having been previously convicted

of a felony offense, the defendant does not challenge the sufficiency of the evidence to prove the

second element. Therefore, we restrict our analysis to whether the defendant knowingly possessed

a firearm.

7 ¶ 24 The thrust of defendant’s argument regarding the sufficiency of the evidence is that none

of the evidence is conclusive as to defendant’s guilt. For example, defendant points to

inconsistencies in Schroeder’s testimony, and maintains that, by acquitting defendant of the

aggravated discharge of a firearm, the jury “discount[ed] significant portions of Schroeder’s

account” of the events that night. Defendant points to discrepancies between Schroeder’s

testimony and the videos shown to the jury regarding when Schroeder reported the presence of the

firearm to dispatch. Regarding the videos, defendant notes that the videos do not support

Schroeder’s claim that he saw defendant place something on the ground.

¶ 25 Defendant also contends, notwithstanding the fact that defendant’s left hand tested positive

for GSR, that the GSR evidence in this matter was “not conclusive” since the test for defendant’s

right hand was “inconclusive.” Defendant also asserts that the DNA/STR analysis evidence is of

little value because the evidence, as stipulated, was “represented in the particularly unreliable form

of a likelihood ratio upon which it was inaccurate to draw the conclusion that [defendant’s] DNA

was present” on the recovered weapon. According to defendant, “[t]he State’s evidence appears to

rely not on the strength of any particular piece of evidence, but on the sheer number of weak and

circumstantial elements it has presented.” We disagree.

¶ 26 Defendant’s arguments are an invitation for this court to reweigh the evidence, but that is

not this court’s role. Campbell, 146 Ill. 2d at 375. Regarding Schroeder, specifically, the jury heard

his testimony and was able to observe his demeanor. Moreover, Schroeder was thoroughly cross-

examined by defense counsel. During closing argument, defense counsel pointed to inconsistencies

between Schroeder’s testimony and the videos, and argued that Schroeder was not credible.

Whether minor inconsistencies in testimony irreparably undermined the credibility of the State’s

8 witnesses is a matter for the trier of fact to decide. People v. Howard, 376 Ill. App. 3d 322, 329

(2007).

¶ 27 Regarding the placement of the recovered firearm, the squad car video shows that

defendant fell near a tree with a single trunk before he continued to flee in the direction of a tree

with three trunks. Defendant’s placement of the firearm near this second tree is not shown on the

squad car video due to the angle of the squad car in relation to the tree. However, the recovery of

the firearm is shown on the bodycam video from Officer Casey. Schroeder’s testimony was not

inconsistent with the videos shown to the jury.

¶ 28 With regard to the time discrepancy between when Schroeder discovered the gun and the

time that he reported it to dispatch, Schroeder explained that the scene was secure, so he and Casey

decided to check for victims in the bullet-damaged Durango. Defendant’s statement that

Schoeder’s actions are implausible does not make it so. The jury heard the testimony of the

officers, and examined the evidence, and there is nothing inherently implausible about Schroeder’s

testimony, especially when viewed in the light most favorable to the State. Indeed, we find that

Schroeder’s testimony, coupled with the video evidence, to be overwhelming evidence of

defendant’s guilt.

¶ 29 Contrary to defendant’s argument, we also find that the GSR evidence provided further

support for the conclusion that the evidence in this matter was sufficient enough to convict. While

the GSR test from defendant’s right hand was inconclusive, the test of defendant’s left hand was

positive, meaning that defendant had either discharged a firearm, was in close proximity to a

firearm that was discharged, or came in contact with a GSR-related item. With regard to the DNA

evidence, defendant argues, on appeal, that this evidence was presented as two competing

hypotheticals that allowed “the jury to infer guilt based upon statistical modeling” as opposed to

9 the conclusive identification of defendant’s DNA, and this does not establish that defendant

handled the firearm. We note that defendant does not challenge the admissibility of this evidence.

Notwithstanding the fact that the DNA/STR evidence does not conclusively prove that defendant

possessed the firearm, we find that the evidence is still probative, relevant, and supports the jury’s

finding of guilt.

¶ 30 In summary, the State presented evidence that a police officer believed that he saw

defendant fire a gun. When the officer activated his emergency lights, defendant fled. While

pursuing defendant, the officer saw defendant place an item at the base of a tree. After defendant

was taken into custody, a firearm was recovered at the base of the tree. A search of defendant’s

person led to the discovery of a key fob to a nearby, bullet-ridden vehicle. Fired casings were

recovered from inside that vehicle, and although forensics could not definitively match those

casings to the recovered firearm, the firearm could not be eliminated as being the gun that fired

those casings. Indeed, the jury was shown photographs demonstrating similarities between the

casings recovered from the Durango and a casing known to have been fired from the recovered

firearm. GSR testing demonstrated that defendant discharged a firearm, was in close proximity to

a firearm that was discharged, or came in contact with a GSR-related item.

¶ 31 In summary, defendant’s argument that the evidence was insufficient to prove his guilt is

based upon various pieces of evidence which defendant views in isolation. This request, however,

goes against our standard of review. This court must not reweigh the evidence. Campbell, 146 Ill.

2d at 375. Rather, we must view the evidence as a whole in the light most favorable to the State.

Bush, 2023 IL 128747, ¶ 33. When viewed in the light most favorable to the State, the evidence of

defendant’s guilt is overwhelming.

10 ¶ 32 B. Ineffective Assistance of Counsel

¶ 33 Defendant’s next argument is that trial counsel provided ineffective assistance of counsel

by stipulating to the “confusing and inaccurate DNA evidence linking Jeremy to the recovered

weapon.” According to defendant, the stipulated evidence “relied on assumptions and inferences

that lacked a firm evidentiary support” and “served to obscure the limitations of this kind of

evidence.” Defendant argues that by stipulating to the DNA evidence, defense counsel’s

performance fell below an objective standard of reasonableness, and that defendant was prejudiced

as a result. The State responds that stipulating to the evidence “was a reasonable strategic choice

that fell well within the range of professionally competent assistance” and that defendant suffered

no prejudice in light of the overwhelming evidence of defendant’s guilt. We agree with the State.

¶ 34 Our review of ineffective assistance of counsel claims is guided by the standards set forth

in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our supreme court in People

v. Albanese, 104 Ill. 2d 504, 526 (1984). To succeed on a claim of ineffective assistance of counsel

under the Strickland standard, one must show both that (1) counsel’s representation fell below an

objective standard of reasonableness (deficient performance prong) and (2) a

reasonable probability exists that, but for the error, the result would have been different

(prejudice prong). People v. Manning, 241 Ill. 2d 319, 326-27 (2011). A defendant must satisfy

both prongs of the Strickland test to succeed on a claim of ineffective assistance of counsel. People

v. Evans, 209 Ill. 2d 194, 220 (2004). Thus, defendant’s failure to establish either deficient

performance or prejudice will be fatal to the claim. People v. Richardson, 189 Ill. 2d 401, 411

(2000). A reviewing court does not need to determine whether counsel’s performance was

deficient before considering the prejudice prong of the Strickland test: “ ‘If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will

11 often be so, that course should be followed.’ ” Albanese, 104 Ill. 2d at 527 (quoting Strickland,

466 U.S. at 697).

¶ 35 To establish prejudice, “defendant must show that counsel’s deficient performance

rendered the result of the trial unreliable or the proceeding fundamentally unfair.” Richardson, 189

Ill. 2d at 411. If defendant’s claim can be disposed of on the basis that he suffered no prejudice,

then a court should not decide whether counsel’s performance was deficient. People v. Villanueva,

382 Ill. App. 3d 301, 308 (2008).

¶ 36 We find that defendant cannot demonstrate a reasonable probability exists that the result

would have been different had defense counsel not stipulated to the DNA evidence. Defendant

does not contend that an effective cross-examination of the State’s DNA expert would have

changed the expert’s conclusions, but instead would have tested the strength of the evidence and

exposed the limitations of the evidence, demonstrating that the expert’s conclusions were not

infallible. Even assuming, arguendo, this is accurate, defendant’s only argument that he was

prejudiced by the stipulation is that the evidence in this matter was “weak.” As noted above,

however, we find that the evidence is overwhelming, even in the absence of the DNA evidence.

Since defendant cannot satisfy the prejudice prong of Strickland, his argument that defense counsel

was ineffective is without merit.

¶ 37 C. Constitutionality of Section 24-1.1(a)

¶ 38 Defendant next argues, for the first time on appeal, that the UPWF statute violates his

second amendment right under the United States Constitution, both facially and as applied to him.

Generally, issues raised for the first time on appeal are forfeited. See People v. Brooks, 2023 IL

App (1st) 200435, ¶¶ 56-57; People v. McCarty, 223 Ill. 2d 109, 122 (2006). However, a facial

challenge to the constitutionality of a statute may be raised at any time, including for the first time

12 on appeal. People v. Baker, 2023 IL App (1st) 220328, ¶ 35. In addition, an as-applied challenge

may be raised for the first time on appeal, as long as the record is sufficiently developed to permit

the reviewing court to fully analyze the claim. Brooks, 2023 IL App (1st) 200435, ¶ 57.

¶ 39 The second amendment 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. “The United States Supreme Court has ‘recognized that the Second and Fourteenth

Amendments [(U.S. Const., amends. II, XIV)] protect the right of an ordinary, law-abiding citizen

to possess and handgun’ inside and outside the home ‘for self-defense.’ ” People v. Burns, 2024

IL App (4th) 230428, ¶ 14 (quoting New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 8-9

(2022), and citing District of Columbia v. Heller, 554 U.S. 570, 595 (2008), and McDonald v. City

of Chicago, 561 U.S. 742, 791 (2010)).

¶ 40 As noted above, defendant challenges the validity of section 24-1.1(a) of the Criminal

Code, which provides, provides, in relevant part, as follows:

“(a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2022).

¶ 41 All statutes carry a strong presumption of constitutionality, and the party challenging the

constitutionality of a statute carries the burden of proving the statute is unconstitutional. People v.

Mosley, 2015 IL 115872, ¶ 22. This court has a duty to construe the challenged statute in a manner

that upholds its validity and constitutionality whenever reasonably possible. People v. Kelley, 2024

IL App (1st) 230569, ¶ 12. A statute’s constitutionality is a question of law that we review de novo.

People v. Smith, 2025 IL App (5th) 230656, ¶ 12.

13 ¶ 42 “A constitutional challenge to a statute may be either facial or as applied.” Burns, 2024 IL

App (4th) 230428, ¶ 11. In order to succeed on a claim that a statute is facially unconstitutional,

the defendant must show that the statute is unconstitutional under any set of facts. Kelley, 2024 IL

App (1st) 230569, ¶ 12. A defendant’s particular circumstances are irrelevant. Baker, 2023 IL App

(1st) 220328, ¶ 34. In contrast, an as-applied challenge requires a showing that the statute violates

the constitution as it applies to the facts and circumstances of the challenging party. Brooks, 2023

IL App (1st) 200435, ¶ 57.

¶ 43 We first consider defendant’s facial challenge. Defendant contends that under the United

States Supreme Court’s decision in United States v. Rahimi, 602 U.S. 680 (2024), the text of the

second amendment “covers the conduct of possessing a firearm regardless of whether someone is

‘law-biding.’ ” We note that the Rahimi Court “did not address whether felons could be prohibited

from possessing firearms based on their status as felons.” People v. Huff, 2025 IL App (4th)

240762, ¶ 17. Instead, the Rahimi Court addressed only the issue of whether the defendant “could

be temporarily prohibited from possessing firearms based on a domestic violence restraining order,

which found he posed ‘a credible threat to the physical safety of [an] intimate partner.’ (Internal

quotation marks omitted.)” Id. (citing Rahimi, 602 U.S. at 684-86). As noted by the Huff court,

“the only mention of felons in the [Rahimi] majority’s opinion is when the Court reiterated its prior

statement from [Heller] regarding the presumptive lawfulness of prohibitions against felons

possessing firearms.” Id. (citing Rahimi, 602 U.S. at 682). For these reasons, we find defendant’s

reliance on Rahimi is misplaced.

¶ 44 In Bruen, the United States Supreme Court announced a two-part analysis for review of

laws affecting the right to bear arms, and the standard for applying the second amendment is as

follows:

14 “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ” Bruen, 597 U.S. at 24.

Illinois courts have concluded that “the two-part process requires us to determine (1) whether

defendant’s conduct falls within the plain text of the second amendment and, if so, (2) whether

there is a justification for the regulation rooted in history and tradition.” People v. Travis, 2024 IL

App (3d) 230113, ¶ 24.

¶ 45 We considered the Bruen analysis in People v. Smith, 2025 IL App (5th) 230656, ¶ 25,

which agreed with the reasoning in federal and appellate court decisions which concluded that

“felons are not protected under the plain text of the second amendment.” Smith found that “a

defendant who is in the process of committing a felony while possessing an operational firearm

does not fall into the category of ‘the people’ protected by the second amendment.” Id.

Furthermore, numerous other Illinois decisions have addressed whether felons are protected by the

second amendment. See People v. Spears, 2026 IL App (5th) 240625, ¶ 64; People v. Lomax, 2026

IL App (5th) 240889-U, ¶ 43; People v. Arrington, 2025 IL App (5th) 230344-U, ¶ 43; People v.

Honorable, 2025 IL App (5th) 220743-U, ¶ 30; People v. Hudson, 2025 IL App (5th) 231140-U,

¶ 19; People v. Lopez, 2025 IL App (1st) 232120, ¶ 22; People v. McTizic, 2025 IL App (1st)

240467-U, ¶¶ 8-13; People v. Gray, 2025 IL App (1st) 191086-B, ¶ 20; People v. Whitehead, 2024

IL App (1st) 231008-U, ¶¶ 85, 89; People v. Thomas, 2024 IL App (4th) 240315-U, ¶¶ 23-24; and

Kelley, 2024 IL App (1st) 230569, ¶¶ 16-22.

¶ 46 The Fifth District case, People v. Stephens, 2024 IL App (5th) 220828, followed the

reasoning in a federal court decision in United States v. Ware, 673 F. Supp. 3d 947, 956 (S.D. Ill.

2023), and concluded that the defendant fell “into the category of ‘the people’ protected by the

15 second amendment,” regardless of his status as a felon. Stephens, 2024 IL App (5th) 220828, ¶ 33.

Stephens nevertheless found section 24-1.1(a) to be facially constitutional under the second

amendment where “the State has met its burden of showing that section 24-1.1(a) is consistent

with this nation’s historical tradition of firearm regulation.” Id. ¶ 39. We respectfully disagree with

Stephens’s approach and follow the reasoning addressed in the Smith decision. See id. ¶ 33; Smith,

2025 IL App (5th) 230656, ¶ 25.

¶ 47 As such, we find that because of the defendant’s criminal history, he is not included as part

of “the people” protected under the second amendment. Because defendant cannot claim the

protection of the second amendment, defendant’s facial challenge to the UPWF statute fails under

the first part of Bruen’s test. We need not address the second step of the analysis in Bruen.

¶ 48 We next consider defendant’s argument that section 24-1.1(a) is unconstitutional as applied

to him. As noted above, an as-applied challenge requires a showing that the statute violates the

constitution as it applies to the facts and circumstances of the challenging party. Brooks, 2023 IL

App (1st) 200435, ¶ 57. Defendant argues that the statute is unconstitutional as applied to him,

because his prior felony conviction is for a nonviolent offense. Although defendant did not raise

an as-applied challenge in the trial court, we find the record is sufficient enough that this court can

review his claim. The State seemingly concedes this point, as it does not argue that the record is

insufficient. Thus, we will consider the defendant’s claim.

¶ 49 In Baker, 2023 IL App (1st) 220328, our colleagues in the First District considered the

same statute at issue in this case. There, the court considered the defendant’s as-applied

constitutional challenge to the unlawful use of a weapon by a felon statute, the same statute at issue

in this case. Id. In that case, the court found that Bruen did not apply to a defendant who had been

previously convicted of a felony because the Bruen Court could not have been “more clear that its

16 newly announced test applied only to laws that attempted to regulate the gun possession of ‘law-

abiding citizens,’ and not felons like defendant.” Id. ¶ 37. Thus, the court found that defendant was

“outside the box drawn by Bruen” (id.), and that the statute was not unconstitutional as applied to

him. Id. ¶ 41.

¶ 50 Moreover, challenges seeking to create a distinction between being a violent felon and a

nonviolent felon for the purposes of Bruen and the second amendment have been rejected. See

Lopez, 2025 IL App (1st) 232120, ¶ 26. For example, in Travis, 2024 IL App (3d) 230113, ¶ 37,

the court found that the armed habitual criminal and unlawful use of a weapon by a felon statutes

were constitutional as applied to defendant, irrespective of the violent or nonviolent nature of his

convictions. Also, in Brooks, 2023 IL App (1st) 200435, ¶ 100, the armed habitual criminal statute

was upheld as constitutional, as applied to a defendant with prior nonviolent felonies, because the

defendant was “not a law-abiding citizen.”

¶ 51 Thus, we likewise find that the UPWF statute is constitutional, as applied to the defendant,

irrespective of the violent or nonviolent nature of his convictions as well as the age of those prior

felony convictions. Accordingly, we find that the defendant’s challenges fail both facially and as

applied to him.

¶ 52 III. CONCLUSION

¶ 53 For the foregoing reasons, we affirm the judgment of the circuit court of Vermilion County.

¶ 54 Affirmed.