One thing that gives many who are new to the world of concealed carry pause is how one should deal with encounters with law enforcement officers while armed. Maybe that’s because, as As GOA chief Larry Pratt suggested, existing federal law and precedent seems to allow police responding to a “man with a gun” call to “treat every law-abiding gun owner like a criminal . . . grabbing him, twisting his arm behind his back, slamming him down on the ground, and handcuffing him.”
In at least one state, however, that simply won’t do, and an Appellate Court has held that, due to the extra protections afforded under the state constitution (as opposed to the federal one), police don’t get to assume someone’s up to no good simply because they might be carrying a concealed gun.
The state in question is Illinois, and the court’s jurisdiction is Cook County and the City of Chicago.
If you’re surprised…well, you probably should be. It wasn’t so long ago that the Land of Lincoln barred the mere possession of a gun by its citizens in public, law enforcement and active military notwithstanding. State and City leaders still to this day do everything they can to resist the notion that the People possess an individual right to keep and bear arms.
But the Appellate Court that heard the matter of People v. Horton, 2017 IL App (1st) 142019, dispassionately fulfilled their duty, stating: “We cannot sidestep or disregard instruction from both the United States and Illinois Supreme Courts to achieve a specific outcome…. [W]e must follow, not rewrite, the established law and the facts in evidence.”
Those facts are straightforward. Two of Chicago’s finest were cruising past a house on East End Avenue when they saw Markell Horton standing on the front porch. One of the officers, Roderick Hummons, thought he saw a “metallic object” and a “bulge” in Horton’s waistband.
When Five-O stopped the cruiser, Hummons “made eye contact” with Horton, who subsequently turned and “rushed inside the house”, locking the door behind him. Proving that it is far bette rto be lucky than good, Hummons “found” a set of house keys on the porch, and–after backup arrived–unlocked the door and walked on in, eventually locating Horton “in one of the bedrooms crouched next to a bed.”
A shiny chrome semiautomatic handgun was discovered underneath the mattress, and subsequently Horton was convicted of one count of being an Armed Habitual Criminal–which in Illinois means he knowingly possessed a firearm after being convicted of two qualifying felonies. (In Horton’s case, two separate convictions in 1998 and 2003 for possession of a controlled substance with intent to deliver.)
In his appeal, Horton’s attorneys argued that there were many problems with the search. As legal writer Mark Joseph Stern put it:
Two officers stopped in front of a house, at which point its apparent residents went inside. Because one resident might have been armed, the officers barged into the house and detained its occupant while searching for the weapon. Yes, it turned out to be possessed unlawfully. But what if Horton had a concealed carry permit? At the time of the search, the officers only knew that a man with a gun was inside of a house. Did that give them reasonable suspicion to enter the house and search it?
Two of the three judges on the Appellate Court said no, it sure doesn’t.
[T]he possible observation of a handgun is not in itself, without any other evidence of a crime, sufficient to provide an officer with probable cause for arrest…. [T]he evidence established no basis for probable cause other than a hunch that the metallic object might be a handgun, nor does the State provide a different basis for probable cause.
The Court went further, invoking a hypothetical involving probable cause to check driver’s licenses that was eerily similar to one proffered by TTAG reader Omer Baker in an earlier comment:
It is also illegal to drive a car without a valid license. If an officer makes eye contact with another motorist, and that motorist then turns onto another street, can the officer execute a traffic stop to verify that the motorist has a valid driver’s license? In that situation, we would say the police officer needed to have reasonable suspicion, based on articulable facts, that this particular motorist did not have a valid license. Officer Hummons had no articulable facts to believe that Horton was carrying a firearm [legally].
The right to keep and bear arms is not necessarily at its strongest in Illinois, but there’s no doubt that this was a win for gun owners. Contrary to expectations, though, it didn’t involve the Second Amendment or even the Fourth Amendment. Instead, it hinged on the fact that the Illinois Supreme Court had held that the Illinois Constitution provided protections for the right to be free of unreasonable searches and seizures above and beyond that of the Federal Constitution.
Yes, sports fans, elections at the state level are often more important for your rights than the ones at the federal level. Never forget that.
The story could end there, but there’s one more thing that needs to be mentioned. This matter came to my attention due to the article written by Mark Joseph Stern, who works for Slate, covering “the law and LGBTQ issues.” He is not particularly fond of an expansive right to keep and bear arms, if we can judge from previous articles, and in November, said he was afraid for his life because…Donald Trump had been elected.
Yet, Stern had naught but praise for the decision. He spent most of his article running through the litany of federal cases in which federal judges have gleefully tried to cut some of the muscle out of the Second Amendment, even if it also meant cutting back a little on that annoying Fourth Amendment prohibition against unreasonable searches and seizures, too. He concludes:
It might be tempting for liberals to view these cases through the lens of gun control and favor the state or for conservatives to see them as a question of law and order and support the officers. Both sides should resist the temptation. A rule that allows cops to search or seize individuals for carrying a gun can only lead to more brutality against young black men like Philando Castile. It also permits officers to trample upon our rights to property and self-defense. These are constitutional values, not partisan ones. And advocates across the ideological spectrum should urge the courts to follow the [Illinois Appellate Court’s] lead and reject the disastrous illogic now developing in the federal circuits.
The title of his article is telling: “Why Liberals Should Be Alarmed that Courts are Eroding the Second Amendment“.
Is this just a one-off? A reconsideration of the benefits of federalism and limited government after seeing someone he truly fears elected to office? One never knows. It is surprising to see the themes we’ve been hammering for years finally echoed in such a liberal establishment publication as Slate. But no more so than watching the gun rights renaissance that has gone on in Illinois, I suppose.
 At the time of conviction, Illinois’ ban on firearms carry — open or concealed — for all non military / non law enforcement personnel was still in effect. And even though an ex-felon like Horton would have been prohibited from possessing a firearm regardless, the Appellate Court held that an unconstitutional statute does not ‘become constitutional’ just because it is applied to a particular of persons who could have been regulated had the legislature seen fit to do so.