Updated: 01-07-16
Firearm Laws
Search & Seizure

People v. Price. Ill. App. 1st District. ____N.E. 2d ____, 2007 WL 2163997

NOTE: This opinion has not been released for publication in the permanent law reports, and until released it is subject to revision or withdrawal.
A question often asked by clients is whether or not the “right to bear arms” as guaranteed by our 2nd Amendment, and our State Constitution (Article I, Section 22) gives one the right to carry a loaded firearm outside of the abode—that is, on the “home” property, be it the yard or even in the garage in urban areas; so long as it is on one’s land the latter encompassing “farmland” in rural areas.
The answer to that inquiry is not as simple as many citizens believe, and, depending on the factual scenario, our state statutes regarding self-defense, defense of dwelling, defense of other property, use of force in making arrest, and private, person’s use of force in making arrest, may come into play when an issue of “right to carry” arises as part of an affirmative defense to a charge of “aggravated unlawful use of a weapon.” 720 ILCS 5/24-1.6.
While the average citizen/client is inclined to shout “my 2nd amendment rights,” or “my individual rights guaranteed by Illinois’ Section 22,” our Constitutional rights are normally not plead beyond window dressing to a “motion to suppress” or reserved for pleading on appeal. In the lower court litigation arena the correct interpretation of various Illinois statutory provisions should be determinative of a just outcome. However, there are some pro-gun activists who feel there is “a striking and serious contradiction regarding law and policy in the State of Illinois.”
The present case I am reporting does not anwser the "outside of abode" question, but addresses an interesting issue regarding the definition of “abode” upon which the Ist District Appellate Court focused. The defendant relied on a prior statute and case, People v. Taylor, 28 Ill. App. 3d 186 (1975), alleging the Taylor Court held “abode” included “overnight living quarters.” Because the Court in this case distinguishes “home” from “abode” as the former term was used in an earlier Act, its conclusion of the meaning attributable to “abode” containing the word “home,” leaves the door open to criticism of the Court’s analysis of the legislature’s intentions during the debates surrounding passage of the “unlawful use of weapons” provisions. An interesting point. Of the two major cases discussed and distinguished in this case by the First District Court (5th Division), People v.Taylor is a 4th Division case, and People v. McClure is a 3rd Division case, all three cases decided by different Justices in the same District.
FACTS: Chicago police officers, while executing a warrant for defendant’s nephew at his home observed defendant, who had been sleeping in a living room adjacent to the entryway, attempt to conceal a handgun he retrieved from an armchair cushion. The officers then confiscated the gun (a fully loaded and uncased Ruger pistol). At a bench trial the defendant was convicted of aggravated unlawful use of a weapon, given 30 months probation and ordered to pay $729 in fine, fees and costs.
STATUTE: The statutory provision re: “aggravated unlawful use of a weapon” provides, in relevant part:
   “(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
   (1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her on land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearms, and . . .
   (3) One of the following factors is present:
   (A) The firearm was uncased, loaded and immediately accessible at the time of the offense [emphasis added.] 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002).
APPELLATE COURT DECISION: Following are highlights of the opinion, with some omissions not noted in the quoted text, Justice Gallagher delivering the opinion, with O’Brien, P.J., and O’Mara Frossard, J., concurring.
The Court began its inquiry with the ordinary meaning of “abode” and after referring to Webster’s and Black’s Law Dictionaries stated:
“A person . . .may have more than one residence at a time, but only one Domicile.” [Citations omitted.] (“the word ’“abode,” in its usual and ordinary meaning, connotes the place where one resides”). In short, this authority suggests that the ordinary meaning of ‘abode’ is a place with which one has significant and persistent contacts, i.e., a place that a person considers his home and where he or she intends to live on a more than transient basis. See also United Bank of Love Park v. Dohm, , 115 Ill. App. 3d 286, 291, 450 N.E. 2d 974, 978 (1983), (holding that a person’s usual place of “abode” as used in 2-203 of the Code of Civil, Procedure is a residence with which an individual maintains intimate, unbroken and substantial ties).
“Accordingly, while the ordinary meaning of ‘abode’ stands alone— without a modifier such as ‘permanent’ or ‘temporary’ preceding it—always encompasses one’s domicile or places of legal or permanent residence, the term also includes those places with which a person has established significant contacts through continued or extended habitation.
“Under this definition, a person who merely spends the occasional night someplace, even if he does so regularly, cannot be said to have established such substantial and uninterrupted ties with that location as to make it his abode.”
[ The defendant’s position that he was an overnight guest, and thus his sister’s house was his “abode” rested entirely on the Taylor decision, and the State countered with People v. McClure, 43 Ill. App. 3d 1059, where the Court held that a defendant found with a shotgun in his possession while in his briefs in his girl friend’s apartment (located on the same floor as his apartment) was not in his “abode.” McClure held that ”unlike in Taylor, no evidence suggested the defendant kept any of his possessions at his girlfriend’s apartment.” McClure at 1063. This Court held that “the McClure court distinguished Taylor without addressing how defining ‘abode’ as ‘overnight living quarters’ might affect the outcome of the case.” Also, this Court has previously held that ‘abode’ as addressed in Taylor was merely dicta.]
“Despite our agreement with defendant that “abode” has the same meaning in both weapons offenses [ Unlawful use of weapons (720 ILCS 5/24-1 & Aggravated unlawful use of weapons (720 ILCS 5/24.6)] because equating “abode” with the “overnight living quarters” is inconsistent with the law’s purpose and legislative intent, we disagree that “abode” means any overnight living quarters. Instead, we must ascribe “abode” its ordinary meaning, namely a place of residence with which an individual has established substantial and uninterrupted ties and which he treats as a home.” [Underscoring added.]
“ . . . Further, legislative history from subsequent amendments to the unlawful use offenses supports attributing to “abode” its ordinary meaning. In response to a number of municipal ordinances that made it unlawful to keep a firearm in one’s home—thereby abrogating the ”abode” element—the legislature passed section 24-10 of the Criminal Code, creating an affirmative defense against such ordinances. Specifically, the statute provides:
It is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another *** when on his or her land or in his or her abode or fixed place of business.’ (Empahsis added.) 720 ILCS 5/24-10 (West 2004).”
“. . . Our conclusion is supported by the fact that equating ‘abode’ with ‘overnight living quarters’ significantly erodes the purpose of the law and also leads to potentially absurd results. Indeed, accepting defendants interpretation of “abode” would exclude from prosecution any individual who could plausibly show that he had either spent the night or intended to spend the night at the place of arrest.’
[Defendant also argued that because, under Section 2-6 of the Criminal Code, the legislature defined “dwelling” to be ‘a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence,’ it is synonymous with residence ( relying on Talylor), but not with abode; thus, “abode” must mean “overnight living quarters.”] The Court rejected this argument, as well, stating:
“ We disagree, . The legislature’s definition of dwelling is not synonymous with residence or abode. To the contrary, the legislative definition of “delling” in the Criminal Code sweeps so broadly as to include any possible location fit for human habitation. See 720 ILCS 5/2-6 (West 2002).”
“. . . We find no merit in distinguishing between terms used in statutes that are not in para materia. We therefore decline to follow Taylor’s definition of “abode” as “overnight living quarters.
“. . . In sum, we hold that the ordinary meaning of “abode” is a place of residence where an individual maintains substantial and long-lasting contacts—i.e., his home—and that the legislature intended this definition when it used the word ’abode” in the unlawful-use offenses. Although under this definition an individual may have more than one abode, it does not follow that any place a defendant spends a night as a guest qualifies as his abode.”
“. . . Affirmed in part and vacated in part.
NOTE: In addition to affirming the defendant’s conviction for the Aggravated UUW charge, the Appellate Court considered several other non-firearm issues, not addressed in this report and commentary, re: whether defendant’s sentence was excessive (No); whether sentence was erroneous as a matter of law (No); whether the lower court abused its discretion when sentencing (No); whether the trial court improperly imposed various fines and fees (Yes).

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