People v. Tapia

2026 IL App (2d) 240721-U

• Court: Appellate Court of Illinois
• Decided: January 2, 2026
• Docket: 2-24-0721
• Status: Unpublished

Opinion

2026 IL App (2d) 240721-U No. 2-24-0721 Order filed January 2, 2026

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 22-CF-237 ) MARCO A. TAPIA, ) Honorable ) Jody Patton Gleason, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Mullen concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for unlawful possession of a weapon by a felon is affirmed where: (1) the trial court did not abuse its discretion in refusing to instruct the jury on the necessity defense; and (2) the unlawful possession of weapon by a felon statute is constitutional, both facially and as applied to defendant.

¶2 Following a jury trial in the circuit court of Kendall County, defendant, Marco A. Tapia,

was convicted of unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a)

(West 2022)) and sentenced to two years’ imprisonment to be followed by six months of

mandatory supervised release. Defendant appeals, arguing that (1) the court erred in refusing to

instruct the jury on the affirmative defense of necessity; and (2) section 24-1.1(a) of the Criminal 2026 IL App (2d) 240721-U

Code of 2012 (Criminal Code) (id.) is unconstitutional under the test articulated by the United

States Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 19 (2022),

both on its face and as applied to defendant. We affirm.

¶3 I. BACKGROUND

¶4 The following evidence was adduced at trial. Defendant, a 38-year-old journeyman from

San Antonio, Texas, worked as a traveling electrician. In mid-June 2022, he picked up a camper

trailer in Mission, Texas, attached it to his truck, and departed for Illinois for a job assignment.

Although he usually traveled with coworkers, this was the first time that his family accompanied

him. Traveling with him were his common-law wife, Halley Hernandez, his 15-year-old

stepdaughter, Katherine, and his 1-year-old son. The 28-hour trip included one break, when he

“lost a day” due to a tire blowout. At about 6 or 7 p.m. on June 15, 2022, they arrived at Hide-A-

Way Lakes, which is a campground in Yorkville, Illinois. Defendant set up the campsite and went

to sleep around 9 or 10 p.m., as he was scheduled to begin work the following morning.

¶5 At approximately 10:30 p.m., Deputy Stewart Blouin of the Kendall County Sheriff’s

Office received a phone call from Gabriela Reyes, a resident of Texas. Reyes requested a wellness

check on her younger sister, Katherine. She informed Deputy Blouin that defendant was a felon

who had previously abused Katherine. Reyes explained that she had not spoken with her sister for

some time and had received text messages from her that appeared unusual, leading her to worry

that someone other than Katherine was sending them. Reyes stated that her phone contained a

location-tracking application that showed Katherine’s phone near Hide-A-Way Lakes. She told

Blouin that Katherine might be with her mother and defendant, and she provided Blouin with

defendant’s phone number and a description of his vehicle.

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¶6 Deputy Blouin called defendant and inquired about Katherine. Defendant, who had been

asleep, was awakened by his wife and answered the call. Blouin testified that he identified himself

during the phone call, explained that he wished to check on Katherine, and requested to see her in

person to ensure her safety. According to Blouin, defendant confirmed that Katherine was with

him but refused to provide any other information. When asked for their location, defendant

declined to disclose it, and he did nothing to alleviate Blouin’s concerns, such as putting Katherine

on the phone. Blouin described defendant as “uncooperative,” noting that he would not reveal

their location or permit a welfare check. Blouin had no prior interactions with Reyes, Katherine,

or defendant, and he was not aware of any contact between them and the Kendall County Sheriff’s

Office. After the call ended, Blouin did not have sufficient information to confirm that Katherine

was safe.

¶7 Defendant’s recollection of the phone call differed. He testified that as soon as the caller

identified himself as law enforcement, he “knew where it was coming from,” believing the call

had been prompted by Reyes, with whom he had ongoing conflicts and against whom he had

previously obtained a restraining order. Defendant acknowledged that he did not give Deputy

Blouin an opportunity to explain the purpose of the call. Instead, he told Blouin that he had

received a restraining order against Reyes, that she had been harassing him, and he told the deputy

to “go F himself, and leave me the hell alone,” before hanging up. Defendant maintained that

Blouin identified himself only by name before the call ended, and that Blouin’s testimony

suggesting otherwise was untrue. Defendant further testified that Blouin “never got to say another

word” before defendant hung up. “That’s all [defendant] let him get out.” Defendant then went

back to sleep.

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¶8 Deputy Blouin contacted the Kendall County 911 dispatch center to “get a ping on

[defendant’s] phone.” Using defendant’s phone number, dispatch determined that the phone was

near Hide-A-Way Lakes, which matched the information provided by Reyes. Blouin gathered as

much information as he could but could not find any evidence of child abuse before leaving the

sheriff’s office to follow up on Reyes’ allegation. Even so, he testified that it would be a dereliction

of duty not to quickly follow up on the call. Additionally, the sheriff’s office had no information

to corroborate defendant’s claim that Reyes had been harassing him.

¶9 Deputy Blouin and Detective Michael Smith proceeded to Hide-A-Way Lakes in separate,

fully marked squad cars to conduct the wellness check. They arrived at 1:18 a.m. and located a

vehicle with Texas license plates matching the description provided by Reyes. Blouin ran the

license plate and confirmed that the vehicle was registered to defendant. It was dark outside, so

the officers used flashlights to illuminate the area. Both Blouin and Smith, dressed in full police

uniforms equipped with body-worn cameras (bodycams), approached the trailer nearest to the

vehicle. They did not know whether the trailer’s occupants were asleep. Blouin knocked on the

door six times in succession, then stepped back as both officers kept their flashlights trained on

the door. Blouin chose not to announce their police presence because, based on his earlier phone

call with defendant, he believed defendant would not answer the door if he identified himself as

law enforcement.

¶ 10 Defendant testified that he did not hear the knocking but was awakened by his wife, who

told him that “they’re banging.” Defendant testified that his wife “was scared,” and he could see

“it in her face.” She presented her purse to defendant and “was halfway with the pistol in her

hand.” Defendant knew his wife had a gun, but he did not know where she kept it. Defendant

testified that he “did what anybody else would have done” in his position—he retrieved the gun

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from the purse and answered the door. He “didn’t even have time to process anything,” as he was

“so tired” and “just reacted off of her [scared] face.” Defendant further testified that it never

occurred to him that law enforcement might be outside. He believed that no one knew he was in

Illinois and thought that the earlier caller had been a police officer in San Antonio rather than local

law enforcement. Defendant testified that he was concerned for his family’s safety and acted

solely to protect them because he knew they were “real close to Chicago,” which he described as

“one of the toughest cities [with] a lot of crime going on.” He acknowledged, however, that the

campground was not located in Chicago, he could not see the city skyline from their campsite, and

that no one at the campground had threatened his family. Defendant also acknowledged that he

did not call out to determine who was at his door or ask his wife any questions about what was

happening. He testified that the lock on the trailer door was broken and that he could not see who

was outside because the window was covered, although he could see flashlights moving outside.

¶ 11 Approximately 20 seconds elapsed between Deputy Blouin’s knocking and the moment

defendant opened it. Defendant appeared in the doorway, leaning slightly out of the trailer, holding

the pistol in his right hand pointed toward the ground. Defendant testified that he then “saw it was

the cops.” Blouin said, “Marco?” and defendant replied, “Yeah?” Blouin then noticed the gun

and immediately shouted, “put that gun up, first off.” Defendant stepped back, and the door briefly

swung closed. Blouin testified that he then heard a sound consistent with the racking of a handgun

slide, which he testified is associated with “clear[ing] a round out of the chamber.” Detective

Smith testified that he saw defendant pull back the top of the pistol and observe a round eject from

the weapon. During the roughly ten seconds that defendant remained inside the camper, Blouin

drew his service weapon and pointed it toward the door because he did not have a clear view of

defendant once it closed. Defendant testified that he “undid the gun” and placed it on top of a

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microwave near the doorway inside the camper and then exited the trailer. Upon seeing that

defendant’s hands were empty, Blouin re-holstered his firearm.

¶ 12 The bodycam footage, which was admitted into evidence without objection, shows that

defendant then immediately approached Deputy Blouin and began arguing with him. He

questioned why the deputy had spoken to him “like that.” Blouin responded, “Hey, first off, back

the fuck up. I don’t know who you talking to.” Defendant replied, “Man, shut the fuck up.”

Blouin then stated, “Now, first off, I talked to you on the phone,” to which defendant answered, “I

know. And I told you we picked up harassment charges against her daughter.” Blouin responded,

“I understand that, but you could have been forthcoming with me when I was on the phone with

you.” They continued to argue.

¶ 13 Defendant testified that he was upset during the encounter because Reyes had previously

made numerous unfounded requests for wellness checks and had also called child protective

services regarding his family, though no case was ever opened. He further testified that, at the

suggestion of law enforcement officers in Texas, he obtained a restraining order against Reyes,

but she nevertheless continued to harass him through unfounded wellness checks. He believed he

had “already taken care of this shit.”

¶ 14 Deputy Blouin responded that the restraining order was irrelevant to the wellness check

and reiterated that he needed to see Katherine. When asked where she was, defendant replied that

she was asleep inside the trailer and emphasized that it was 1:30 in the morning. Both deputies

reiterated that they were there for a wellness check and that they needed to see Katherine.

Defendant responded that he did not “give a fuck what you need to do,” and continued to complain

that the deputies had disturbed his family in the middle of the night, and he directed profanity

toward Blouin.

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¶ 15 Eventually, Hernandez and Katherine came to the door, and the police confirmed that

Katherine was safe, observing no signs of neglect or physical or emotional abuse. Defendant

continued to argue with the officers and ultimately disregarded Blouin’s instruction to remain

outside so they could speak with him, reentering the trailer for the night and closing the door

behind him.

¶ 16 Deputy Blouin and Detective Smith then returned to their vehicles and repositioned them

just outside the entrance to the campground to maintain surveillance. Because Reyes had informed

Blouin that defendant was a felon, Blouin contacted his supervisor to verify defendant’s

background, as he was aware that felons are prohibited from possessing firearms in Illinois. The

deputies also began the process of securing a search warrant.

¶ 17 At approximately 8:00 a.m., investigators executed a search warrant on defendant’s trailer

and pickup truck. Inside the trailer, they found a firearm inside of a purse. Although no live round

was chambered, ammunition was present in the magazine. Investigators recorded the firearm’s

serial number, and subsequent testing confirmed that it was a functional weapon.

¶ 18 Certified copies of defendant’s prior felony convictions for unlawful possession of a

controlled substance and unlawful possession of cocaine were admitted into evidence outside the

presence of the jury. Before the jury, the parties stipulated that defendant had previously been

convicted of possession of a controlled substance and possession of marijuana, both felony

offenses, in Texas.

¶ 19 During the jury instruction conference, defendant sought instructions on several

affirmative defenses, including the defense of necessity. Defendant argued that he made a prima

facie showing that there was at least some evidence supporting his claim that committing UPWF

was necessary to prevent possible harm to himself, his wife, and his children. The State responded

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that defendant presented no evidence that he was in any danger when someone knocked on his

door, that he failed to assess the situation or determine what was occurring before taking possession

of the weapon, and that he, himself, created the circumstances leading to the heightened police

encounter.

¶ 20 The trial court agreed with the State, finding that defendant was neither blameless nor

reasonably believed that possessing the weapon was necessary to prevent injury, stating that he

had other viable options to address the situation. The court noted that defendant could have refused

to answer the door or called 911 to report the banging. It further found there was no actual threat,

“other than the fact that somebody had knocked on the door and his wife was handing him a gun.”

¶ 21 Following deliberations, the jury found defendant guilty.

¶ 22 Defendant moved for a new trial, arguing that the UPWF statute was unconstitutional both

on its face and as applied to him. He further contended that the trial court erred in denying his

proposed jury instructions, including the affirmative defense of necessity. The trial court denied

the motion, finding that the case law did not support his constitutional challenge and that he had

failed to meet his burden of establishing entitlement to the proposed affirmative defense jury

instructions.

¶ 23 Following a sentencing hearing, the trial court sentenced defendant to two years’

imprisonment and six months of mandatory supervised release.

¶ 24 Defendant timely filed a notice of appeal.

¶ 25 II. ANALYSIS

¶ 26 Defendant raises two issues on appeal. First, he contends that the trial court erred in

refusing to instruct the jury as to the affirmative defense of necessity because at least some

evidence supported giving the instruction. Second, he argues that the UPWF statute violates the

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second amendment to the United States Constitution, both on its face and as applied to him. We

address these issues in turn.

¶ 27 A. Necessity Instruction

¶ 28 A defendant’s constitutional rights to due process and trial by jury include the right to have

the jury fully and properly instructed as to the law, including the legal principles applicable to the

defendant’s theory of the case. People v. Taylor, 2023 IL App (4th) 220381, ¶ 56. The purpose

of jury instructions is to provide the jurors with the legal principles applicable to the evidence

presented at trial, so that the jury may reach a correct verdict according to both the law and

evidence. People v. Bannister, 232 Ill. 2d 52, 81 (2008).

¶ 29 “A defendant is entitled to instructions on his theory of the case when there is some

foundation in the evidence for the instructions.” (Emphasis added.) People v. Wicks, 355 Ill. App.

3d 760, 763 (2005). “Only a slight amount of evidence is required to justify giving an instruction.”

Id. To be entitled to an instruction on an affirmative defense, the defendant bears the burden to

present some evidence, however slight, to support the affirmative defense. People v. Washington,

2012 IL 110283, ¶ 43; People v. Macias, 2025 IL App (1st) 230678, ¶ 17. Because jury

instructions convey the governing law applicable to the evidence presented at trial and guide the

jury toward a proper verdict, the record must contain at least some evidence to justify the

instruction.

¶ 30 At the outset, we note that the parties disagree on the appropriate standard of review.

Defendant contends that we should review de novo the trial court’s refusal to instruct the jury on

the affirmative defense of necessity. The State, however, maintains that the decision should be

reviewed for an abuse of discretion. We agree with the State. The supreme court has held that,

“when the trial court, after reviewing all the evidence, determines that there is insufficient evidence

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to justify the giving of a jury instruction, the proper standard of review of that decision is abuse of

discretion.” People v. McDonald, 2016 IL 118882, ¶ 42. In reaching this holding, the court

clarified language in Washington, on which defendant relies, which had suggested de novo review

was appropriate. See McDonald, 2016 IL 118882, ¶¶ 26-42 (resolving parties’ dispute concerning

the standard of review applicable to the question of whether the trial court erred in finding

insufficient evidence to justify the giving of a jury instruction). See also Taylor, 2023 IL App

(4th) 220381, ¶ 57 (recognizing that under McDonald, “when a trial court has determined there is

insufficient evidence to support giving a certain jury instruction, that decision is reviewed for an

abuse of discretion”); People v. Boston, 2016 IL App (1st) 133497, ¶ 36 (reviewing for an abuse

of discretion the question of whether the trial court erred in failing to provide a necessity defense

instruction to the jury). Thus, we will reverse the trial court’s determination that there was

insufficient evidence to warrant giving the necessity instruction only where the court’s decision is

arbitrary, fanciful, or unreasonable such that no reasonable person would adopt the same view.

Macias, 2025 IL App (1st) 230678, ¶ 17.

¶ 31 Section 7-13 of the Criminal Code (720 ILCS 5/7-13 (West 2022)) governs the affirmative

defense of necessity. It provides:

“Necessity. Conduct which would otherwise be an offense is justifiable by reason

of necessity if the accused was without blame in occasioning or developing the situation

and reasonably believed such conduct was necessary to avoid a public or private injury

greater than the injury which might reasonably result from his own conduct.”

Accordingly, to raise the defense of necessity, a defendant must present some evidence that he or

she (1) was without blame in occasioning or developing the situation; and (2) reasonably believed

that his conduct was necessary to avoid a public or private injury greater than the injury that might

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reasonably have resulted from his own conduct. Taylor, 2023 IL App (4th) 220381, ¶ 65. The

defense is viewed as involving a “choice between two admitted evils where other optional courses

of action are unavailable [citations], and the conduct chosen must promote some higher value than

the value of literal compliance with the law [citation].” People v. Janik, 127 Ill. 2d 390, 399

(1989). Necessity requires “a balancing of two evils.” Id. at 400. It “ ‘applies when the threat of

harm was immediate and defendant’s conduct was the sole option to avoid injury.’ ” Id. (quoting

People v. Guja, 2016 IL App (1st) 140046, ¶ 47). Moreover, the threat of harm must be “ ‘specific

and immediate.’ ” Taylor, 2023 IL App (4th) 220381, ¶ 65 (quoting People v. Kite, 153 Ill. 2d 40,

45 (1992)); see Guja, 2016 IL App (1st) 140046, ¶ 47 (“[t]he defense of necessity applies when

the threat of harm was immediate, and defendant’s conduct was the sole option to avoid injury”).

Indeed, such “[p]roof of a ‘specific and immediate’ threat of harm is a threshold requirement for

the defense of necessity.” Macias, 2025 IL App (1st) 230678, ¶ 20 (quoting Kite, 153 Ill. 2d at

45); People v. Brown, 2023 IL App (3d) 210460, ¶ 57. “A specific and immediate threat ***

constitutes the very nature of a necessity defense; thus, proof of that factor is a threshold

requirement for its establishment.” Kite, 153 Ill. 2d at 45. Where no evidence is presented

supporting a specific and immediate threat of harm, a necessity jury instruction should be refused.

Macias, 2025 IL App (1st) 230678, ¶ 20.

¶ 32 We conclude that the trial court did not abuse its discretion by refusing to instruct the jury

on the affirmative defense of necessity. Foremost, the record lacks any evidence that defendant

faced a specific and immediate threat of harm. Defendant testified that he was awakened by his

wife, who told him that “they’re banging” on the door. Defendant could tell by his wife’s

expression that she was frightened, and she presented her purse to him and “was halfway with the

pistol in her hand.” Defendant was “so tired” from traveling all day and “didn’t even have time to

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process anything.” He “reacted off of her face” and “did what any man would have done”— he

grabbed the gun and opened the door. Defendant further testified that, when he armed himself, he

feared for his family’s safety because they were “real close to Chicago,” which he described as

“one of the toughest cities [with] a lot of crime going on.”

¶ 33 While an unexpected knock at the door in the middle of the night may have been startling

to the trailer’s occupants, standing alone, it did not present a “ ‘specific and immediate’ ” threat

of harm,” which is a threshold requirement for asserting the defense of necessity. See Macias,

2025 IL App (1st) 230678, ¶ 20 (quoting Kite, 153 Ill. 2d at 45). Nothing about the circumstances

suggested that defendant or his family were in danger. No evidence was presented that the

individuals outside made any verbal threats, displayed any signs of aggression, or attempted to

open the door or otherwise force entry into the trailer. Deputy Blouin’s bodycam footage, which

was viewed by the jury, showed that he knocked on the door six times and then stepped back to

wait; the knocking was brief and not aggressive. Deputy Smith’s bodycam, which was also viewed

by the jury, did not capture the knocking loudly on its audio track, and defendant was not awakened

by the sound of the knocking but by his wife. Having someone knock on the door, even at a late

hour, is an ordinary means of seeking attention or requesting contact, and its occurrence in the

middle of the night did not, by itself, imply a danger so immediate as to compel defendant to

unlawfully arm himself. Moreover, defendant testified that no one had threatened him at the

campground at any point, and, in fact, he did not speak with anyone else staying there.

¶ 34 The danger defendant perceived was a generalized fear of the unknown rather than a

specific threat of harm. Although defendant testified that he feared “tough[] cities” like Chicago,

with “a lot of crime going on,” it is well settled that such generalized apprehension is neither

specific nor imminent. See Kite, 153 Ill. 2d at 47 (“defendant’s vague, uncorroborated testimony”

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failed to establish a specific and immediate threat); Macias, 2025 IL App (1st) 230678, ¶¶ 20-22

(defendant not entitled to necessity instruction where civil unrest following George Floyd’s murder

presented only a potential threat to people and businesses in defendant’s neighborhood, which was

too general and remote to constitute a specific and immediate threat); Taylor, 2023 IL App (4th)

220381, ¶ 66 (“The mere possibility that [the shooting victim] could have had friends who may

have wanted to retaliate [against the defendant] is not evidence of a specific or immediate threat”);

People v. Cord, 258 Ill. App. 3d 188, 193-94 (1994) (defendant not entitled to necessity instruction

where there was “no evidence of a compelling and imminent danger,” and his subjective concern

about potential danger did not equate to a specific and immediate threat). Accordingly, defendant’s

generalized fears, which were rooted in unfamiliar surroundings and broad concerns about crime,

do not suffice for the threshold requirement of presenting at least slight evidence of a specific and

immediate threat. As the trial court aptly observed in denying the jury instruction, “[t]here is no

threat, other than the fact that somebody had knocked on the door and [defendant’s] wife was

handing him a gun,” which is a conclusion fully supported by the record.

¶ 35 Even if defendant had presented some evidence of a specific and immediate threat, the trial

court would have still been well within its discretion in denying his request for a necessity jury

instruction. Regarding the first prong of the necessity defense, there was no evidence, not even

“slight,” that defendant was without blame in occasioning or developing the situation. On the

contrary, the evidence demonstrated that defendant’s own conduct escalated a routine welfare

inquiry into a heightened late-night encounter with law enforcement. The evidence at trial

demonstrated that defendant’s initial interaction with law enforcement was not only

confrontational but obstructionist. Deputy Blouin testified that when he called defendant, he

identified himself and explained that he needed to check on Katherine’s welfare. According to

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Blouin, defendant confirmed that Katherine was with him, but he refused to provide any other

information, including Katherine’s location. Blouin described defendant as “uncooperative.”

Defendant’s own testimony confirmed that he was openly hostile with Deputy Blouin during the

phone call. He testified that as soon as Blouin identified himself as law enforcement, he assumed

the call had been prompted by Reyes and interrupted that he had received a restraining order

against Reyes for harassment related to unfounded welfare checks. According to defendant,

“[t]hats all [he] let him get out,” and Blouin “never got to say another word.” Defendant then told

Deputy Blouin to leave him “the hell alone” and to “go F himself” before hanging up.

¶ 36 On appeal, defendant argues that, while he “may have been unpleasant over the phone,”

there was nevertheless at least slight evidence that he was blameless, because he “did nothing

illegal” in telling off Deputy Blouin and ending the call. He asserts “there is no law requiring a

person to speak to someone who calls, even the police.” Defendant’s argument misses the point.

The relevant question is not whether defendant’s conduct was legal, but rather, whether he was

“without blame in occasioning or developing the situation.” (Emphasis added.) 720 ILCS 5/7-13

(West 2022); Janik, 127 Ill. 2d at 399. See Guja, 2016 IL App (1st) 140046, ¶ 48 (defendant not

blameless in occasioning the situation, a physical altercation, where his own testimony showed

that he provoked the victim by cursing at her and calling her derogatory names, which caused her

to go into a rage); People v. Sullivan, 2020 IL App (2d) 180438-U, ¶ 34 (defendant not blameless

where, after missing several doses of medication and knowing he would experience side effects if

he failed to take it, he was arrested and released with conditions barring him from returning home,

yet failed to notify police of his need for medication or seek assistance, choosing instead to reenter

the home to retrieve his medication and a change of clothes). While it is true that defendant was

not required to remain on the line, his hostile and uncooperative behavior impeded Deputy

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Blouin’s ability to complete the wellness check by less intrusive means. After the call ended,

Blouin was no closer to confirming Katherine’s safety than he had been before he placed the call

and, if anything, defendant’s hostility would have only heightened the concern that something

might be wrong. By abruptly hanging up after using profanity, telling the officer to “leave [him]

the hell alone,” and not providing any assurance of Katherine’s safety, defendant created the very

situation that necessitated the officers’ late-night, in-person welfare check. Additionally, because

defendant was hostile during the phone call, Deputy Blouin reasonably chose to knock on the door

without verbally announcing his police presence, believing that defendant would refuse to open

the door if he identified himself as law enforcement.

¶ 37 Although defendant testified that he believed the deputy’s call originated from Texas and

therefore did not anticipate that law enforcement might appear at his campsite in Illinois, that belief

was patently unreasonable. Earlier that night, defendant had engaged in a heated phone call with

law enforcement concerning his stepdaughter’s welfare. Regardless of whether Deputy Blouin

was able to fully explain the purpose of the call before defendant told him off and hung up,

defendant’s statements to the officers captured on bodycam make clear that he understood the call

concerned a welfare check. At the scene, defendant repeatedly complained that Reyes had

previously made unfounded requests for welfare checks and that, because of Reyes’ conduct, he

had “picked up harassment charges” against her. He also emphasized that he had already provided

this information to Blouin over the phone. Thus, regardless of any confusion about the deputy’s

physical location, defendant knew he was speaking with law enforcement, knew the call involved

a child’s safety, and knew that he had abruptly ended the call after refusing to cooperate. In short,

it defies common sense to believe that a person could swear and hang up on law enforcement

conducting a welfare check on a child and reasonably expect the matter to end there. Even if

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defendant erroneously believed the call originated in Texas, that misunderstanding was not

objectively reasonable and cannot absolve him of blame for creating the situation that necessitated

the officers’ late-night, unannounced knock at his door. The evidence at trial established that

defendant was not an innocent bystander, but rather, that his own confrontational and obstructionist

conduct directly precipitated the situation.

¶ 38 Likewise, the trial court did not abuse its discretion in concluding that there was no

evidence that defendant’s decision to unlawfully possess the firearm was necessary to avoid a

private injury greater than the injury which might reasonably result from that conduct. Again, the

affirmative defense of necessity involves “the choice between two admitted evils where other

optional courses of action are unavailable.” Janik, 127 Ill. 2d at 399. “Necessity requires that

there be an alternative to an evil course and that alternative be evil as well. Where there is yet

another alternative besides the two evil choices and such alternative, if carried out, will cause less

harm, then a person is not justified in breaking the law.” People v. White, 78 Ill. App. 3d 979, 981

(1979). “Conduct that would otherwise be illegal is justified by necessity only if the conduct was

the sole reasonable alternative available to the defendant under the circumstances.” People v.

Kratovil, 351 Ill. App. 3d 1023, 1034 (2004).

¶ 39 Here, defendant had several lawful options available to him other than illegally possessing

the firearm. As the trial court observed, defendant could have called 911 to report that someone

was knocking on his door in the middle of the night. He also could have simply remained inside

the camper and verbally inquired who was outside before taking any further action. Although

defendant testified that the lock on the door did not function properly, there was no evidence that

the individuals outside tried to open the door or otherwise gain entry to the trailer, as noted above.

Additionally, defendant’s wife, the owner of the firearm, was present and could have addressed

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the situation without violating the law. Because reasonable and lawful alternatives existed to

defendant illegally arming himself, there was no evidence that violating the law was the sole

reasonable option available to him. Accordingly, the court did not abuse its discretion in denying

defendant’s request for a necessity jury instruction.

¶ 40 B. Constitutionality of the UPWF Statute

¶ 41 Defendant next argues that, under the United States Supreme Court’s decision in New York

State Rifle & Pistol Ass’n. v. Bruen, 597 U.S. 1 (2022), the UPWF statute under which he was

convicted, section 24-1.1(a) of the Criminal Code, violates the second amendment to the United

States Constitution on its face and as applied to him. Specifically, he contends that “Illinois’

overreaching, permanent ban on firearm possession” by individuals with non-violent felony

convictions is inconsistent with our country’s historical tradition of firearm regulation.

¶ 42 Section 24-1.1(a) of the Criminal Code provides in relevant part:

“(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 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 2024).

¶ 43 In analyzing the constitutionality of the UPWF statute, we are guided by several well-

settled principles. Statutes enjoy a strong presumption of constitutionality. Rowe v. Raoul, 2023

IL 129248, ¶ 20. This is because the legislature is principally tasked with establishing the public

policy of our state. Id. The party challenging a statute bears the burden of clearly establishing its

invalidity. People v. McKown, 2022 IL 127683, ¶ 29. “ ‘Constitutional challenges carry the heavy

burden of successfully rebutting the strong judicial presumption that statutes are constitutional.’ ”

People v. Rizzo, 2016 IL 118599, ¶ 23 (quoting People v. Patterson, 2014 IL 115102, ¶ 90).

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¶ 44 The constitutionality of a statute may be challenged either facially or as applied in a

particular case. People v. Hilliard, 2023 IL 128186, ¶ 21. A statute is facially unconstitutional

only if there is no circumstance in which it could be validly applied. Indeed, “[a] party raising a

facial challenge to a statute faces a particularly heavy burden.” People v. Bochenek, 2021 IL

125889, ¶ 10. Because a statute is facially unconstitutional only if it is unconstitutional in every

instance, a facial challenge is “the most difficult challenge to mount successfully.” Napleton v.

Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). Under such a challenge, the specific facts and

circumstances of the challenging party are irrelevant. People v. Thompson, 2015 IL 118151, ¶ 36.

¶ 45 Conversely, an as-applied challenge requires a showing that the statute violates the

constitution as it applies to the particular facts and circumstances of the challenger. Hilliard, 2023

IL 128186, ¶ 21. The distinction between the two “ ‘goes to the breadth of the remedy employed

by the court.’ ” People v. Travis, 2024 IL App (3d) 230113, ¶ 35 (quoting Citizens United v.

Federal Election Comm’n, 558 U.S. 310, 331 (2010)). “If a [challenger] prevails in an as-applied

claim, he may enjoin the objectionable enforcement of the enactment only against himself, while

a successful facial attack voids the enactment in its entirety and in all applications.” Napleton, 229

Ill. 2d at 306.

¶ 46 If reasonably possible, a court must construe a statute to uphold its constitutionality.

People v. Relerford, 2017 IL 121094, ¶ 30. The issue of whether a statute is constitutional is a

question of law, which we review de novo. People v. Davis, 2014 IL 115595, ¶ 26.

¶ 47 In Bruen, the United States Supreme Court recognized that the second and fourteenth

amendments protect the right of an ordinary, law-abiding citizen to possess a handgun both inside

and outside the home for self-defense (Bruen, 597 U.S. at 8-10), and it announced a two-part test

for assessing the constitutionality of firearm regulations. First, courts must determine whether the

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“plain text” of the second amendment covers a person’s conduct and, if so, “the Constitution

presumptively protects that conduct.” Id. at 24. The State then “must demonstrate that the

regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. “Only

then may a court conclude that the individual’s conduct falls outside the Second Amendment’s

‘unqualified command.’ ” Id. (quoting Konigsberg v. State Bar of California, 366 U.S. 35, 50, n.

10 (1961)). In other words, Bruen requires a threshold textual inquiry that asks whether the plain

language of the second amendment covers the challenger’s conduct. Bruen, 597 U.S. at 24. If so,

the burden shifts to the State to demonstrate that the challenged statute or regulation is consistent

with our nation’s historical tradition of firearm regulation. Id. “In performing the historical

analysis required by the second step of the Bruen test, courts are required to use analogical

reasoning to determine whether regulations from the nation’s founding are ‘relevantly similar’ to

the current regulation on review.” People v. Daniels, 2025 IL App (1st) 230823, ¶ 41 (quoting

Bruen, 597 U.S. at 28-29).

¶ 48 Pursuant to Bruen, then, we first consider whether the “plain text” of the second

amendment covers defendant’s conduct. The second amendment states: “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. Here, defendant contends that the conduct proscribed

by the UPWF statute, possession of a firearm by a convicted felon, is covered by the plain text of

the second amendment and is therefore presumptively protected by the constitution.

¶ 49 Defendant’s argument fails because the plain text of the second amendment does not

encompass felons, who are not included within “the people” referenced in that amendment. In

Bruen, consistent with its earlier opinions in District of Columbia v. Heller, 554 U.S. 570 (2008)

and McDonald v. City of Chicago, 561 U.S. 742 (2010), the United States Supreme Court

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recognized that the second and fourteenth amendments protect the rights of ordinary, law-abiding

citizens to possess handguns for self-defense. (Emphasis added.) Bruen, 597 U.S. at 8-9. See

Heller, 554 U.S. at 626 (recognizing that the second amendment protects “the right of law-abiding,

responsible citizens to use arms in defense of hearth and home,” while cautioning that the right “is

not unlimited” and that nothing in the Court’s opinion “should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons and the mentally ill”);

McDonald, 561 U.S. at 786 (plurality opinion) (reiterating that Heller “did not cast doubt on such

longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the

mentally ill’ ” (quoting Heller, 554 U.S. at 626)). Indeed, Bruen repeatedly described the second

amendment as applying to law-abiding citizens. See People v. Brooks, 2023 IL App (1st)

200435, ¶ 99 (observing that Bruen “characterized the holders of second amendment rights as

‘law-abiding citizens’ no fewer than fourteen times”); People v. Baker, 2023 IL App (1st) 220328,

¶ 37 (noting that Bruen “could not have been more clear that its newly announced test applied only

to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and not felons like

defendant,” and observing that, “[j]ust in case a reader missed the first time that the court said it,

the court repeated it 18 times”).

¶ 50 In the wake of Bruen, the Illinois Appellate Court has routinely rejected facial

constitutional challenges to statutes prohibiting felons from possessing firearms on the ground that

felons are not within the class of individuals protected by the second amendment. See, e.g., People

v. Rich, 2025 IL App (1st) 230818, ¶ 63 (rejecting challenge to the UPWF statute at the first step

of the Bruen analysis because “possessing a firearm while having a felony conviction falls

[outside] the scope of the second amendment”); People v. Welch, 2025 IL App (1st) 231116, ¶ 57

(“Because the second amendment only protects the rights of law-abiding citizens to bear arms, the

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Bruen analytical framework does not apply to the [offense of] UPWF”); People v. Boss, 2025 IL

App (1st) 221855, ¶ 33 (“the second amendment does not apply to a felon’s firearm possession”);

People v. Cadengo, 2025 IL App (4th) 240568, ¶¶ 72 (“Because of defendant’s felony conviction,

she is not a ‘law-abiding citizen,’ so the second amendment’s guarantees to [sic] do not apply to

her”); People v. Kelly, 2024 IL App (1st) 230569, ¶ 22 (rejecting the defendant’s facial challenge

to the armed habitual criminal (AHC) statute, stating “Bruen is clear that second amendment rights

apply to law-abiding citizens for self-defense,” and concluding that “Illinois is at liberty to restrict

felons’ rights to bear arms”); People v. Burns, 2024 IL App (4th) 230428, ¶ 21 (holding that the

defendant, as a felon, was not a law-abiding citizen, and he therefore could “not show that [the

UPWF statute] violates the second amendment on its face under the Bruen framework”); People

v. Hatcher, 2024 IL App (1st) 220455, ¶ 54 (observing that Bruen “limits the second amendment’s

scope to (1) citizens who are (2) law-abiding and (3) responsible, and (4) who use firearms for

self-defense”); People v. Mobley, 2023 IL App (1st) 221264, ¶ 28 (rejecting the defendant’s ability

to utilize the Bruen framework to challenge the constitutionality of the UPWF statute as applied

to him because “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 (holding

Bruen does not apply to “felons like defendant” and that, “[b]ased on the plain, clear, and repeated

language of the justices in the majority, [the] defendant is simply outside the box drawn by

Bruen”); People v. Boyce, 2023 IL App (4th) 221113-U, ¶ 16 (upholding UPWF statute and

observing that Bruen “does not apply to felons”).

¶ 51 Indeed, this court has consistently rejected arguments like those that defendant raises here.

See People v. Miller, 2024 IL App (2d) 230545-U, ¶ 15 (rejecting facial constitutional challenge

to the AHC statute, as the protections afforded by the second amendment “do not extend to

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felons”); People v. Echols, 2024 IL App (2d) 220281-U, ¶ 153 (upholding UPWF statute,

observing, “As defendant does not dispute that he is a convicted felon for purposes of the unlawful-

possession-of-a-weapon-by-a-felon statute, he is not a ‘law-abiding’ citizen afforded the same

second amendment protections enjoyed by ‘the people’ referenced in the second amendment”);

People v. Gross, 2024 IL App (2d) 230017-U, ¶ 24, 29 (upholding UPWF statute, holding that “

‘the people’ referenced in the second amendment are law-abiding citizens,” and further concluding

that, as a felon, the defendant was not a member of the class of individuals protected by that

amendment); People v. Smith, 2023 IL App (2d) 220340-U, ¶ 57, pet. for leave to appeal pending,

No. 130343 (filed Jan. 24, 2024) (rejecting a second-amendment challenge under Bruen to the

AHC statute and stating that the defendant was “not a ‘law-abiding’ citizen afforded the same

second amendment protections enjoyed by ‘the people’ reference[d] in the second amendment”).

¶ 52 Relying on Brooks, defendant argues that the first step of the Bruen analysis requires courts

to review a defendant’s conduct rather than his status as a felon. In other words, he contends that

a defendant’s status as a felon is irrelevant to whether he is entitled to second amendment

protections, and therefore his possession of a firearm was presumptively protected.

¶ 53 Numerous courts, including this appellate district, have already rejected that precise

reading of Bruen and declined to follow Brooks. Instead, they have adopted the reasoning in

Baker, in which the First District rejected the defendant’s as-applied constitutional challenge to

the UPWF statute because Bruen simply did “not apply” to defendant, who was a felon. See

Miller, 2024 IL App (2d) 230545-U, ¶¶ 17-18 (rejecting Brooks’ interpretation of the first step of

the Bruen framework as “too narrow” and instead following Baker); People v. Martinez, 2024 IL

App (2d) 230305-U, ¶¶ 28-35, pet. for leave to appeal pending, (filed Oct. 16, 2024) (declining to

follow Brook’s reasoning as to the first step of the Bruen framework and instead joining the “great

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weight of authority in Illinois and agree[ing] that the second amendment does not apply to a felon’s

firearm possession,” consistent with Baker); Whitehead, 2024 IL App (1st) 231008-U, ¶¶ 81-82,

85 (rejecting Brooks, following Baker, and holding that a defendant’s felony status is relevant at

the first step of the Bruen framework because the conduct regulated by the AHC statute is not

firearm possession in the abstract, but possession of a firearm by a felon); People v. Wright, 2024

IL App (1st) 230428-U, ¶ 20 (declining to follow Brooks and instead following Baker); People v.

Carldwell, 2024 IL App (1st) 230968-U, ¶¶ 21-22 (same); and Mobley, 2023 IL App (1st) 221264,

¶¶ 27-28 (same). We reject defendant’s contention that his status as a felon is irrelevant under

Bruen and, consistent with the growing consensus in the Illinois Appellate Court, we likewise

conclude that a felon’s possession of a firearm is not presumptively protected under the second

amendment. Because felons are not included within “the people” referenced in the second

amendment, defendant’s challenge to the UPWF statute therefore fails at the first step of the Bruen

framework.

¶ 54 Defendant additionally argues that the UPWF statute is unconstitutional as applied to him

because there is no “relevantly similar historical practice that prohibited firearm possession based

on decades-old nonviolent offenses—much less for an individual who had never committed a

violent offense.” Although he concedes two felony convictions from Texas in 2009, defendant

emphasizes that the offenses involved nonviolent drug possession and that he has since

rehabilitated himself by attending church, participating in Alcoholics Anonymous, and getting

“clean.” In defendant’s view, the UPWF statute casts “too wide of a net” to be analogous to

historical firearm restrictions because it permanently bars him from possessing a firearm even

though his predicate offenses were committed “while suffering from addictions early in adulthood”

and did not involve violence. In contrast to facial challenges, an as-applied challenge requires the

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challenging party to show that the statute violates the constitution as it applies to his particular

facts and circumstances. Hilliard, 2023 IL 128186, ¶ 21. We review that question de novo. Davis,

2014 IL 115595, ¶ 26.

¶ 55 Defendant’s as-applied challenge fails because Illinois courts have repeatedly rejected the

argument that the prohibition on firearm possession by felons under the UPWF statute, as applied

to nonviolent felons, violates the second amendment. Welch, 2025 IL App (1st) 231116, ¶ 60

(holding that the violent or nonviolent nature of prior convictions is irrelevant because felony

status alone places the defendant outside the scope of the second amendment under Bruen); Travis,

2024 IL App (3d) 230113, ¶¶ 36-37 (rejecting the argument that nonviolent felonies warrant

different second amendment treatment because the UPWF statute prohibits firearm possession by

all felons, “irrespective of the violent or nonviolent nature of his convictions”). Indeed, our

appellate district has consistently adhered to this reasoning. Echols, 2024 IL App (2d) 220281-U,

¶ 156 (“[w]hether defendant’s qualifying convictions were ‘nonviolent’ is irrelevant, as the

Supreme Court placed no qualifiers on the word ‘felons’ in either Heller or McDonald”); Gross,

2024 IL App (2d) 230017-U, ¶ 27 (“[n]either Heller nor Bruen qualified the term ‘felon’ or

otherwise limited it to violent felons”). Numerous unpublished orders are in accord. See, e.g.

People v. Hicks, 2025 IL App (1st) 241783-U, ¶¶ 28-29; People v. Smith, 2025 IL App (1st)

231605-U, ¶¶ 35-37; People v. Johnson, 2025 IL App (3d) 240185-U, ¶ 12; and People v.

Crockrum, 2025 IL App (1st) 241373-U, ¶¶ 28-29. See also Medina v. Whitaker, 913 F.3d 152,

159 (D.C. Cir. 2019) (noting that “[f]elonies encompass a wide variety of non-violent offenses,

and we see no reason to think that the [Supreme] Court meant ‘dangerous individuals’ when it

used the word felon”). Because defendant’s nonviolent predicate offenses do not alter his status

as a felon under Bruen, his as-applied challenge to the UPWF statute necessarily fails.

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¶ 56 III. CONCLUSION

¶ 57 For the above reasons, we affirm the judgment of the circuit court of Kendall County.

¶ 58 Affirmed.

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