IL case law question. [Archive] - Glock Talk

PDA

View Full Version : IL case law question.


Keeperofthedew
10-15-2011, 16:25
This basically has to do with the definition of "unloaded" under state law, and since I know there are a couple guys from IL here, I was hoping one of them could chime in.
Summary- A guy I work with claims that under IL law you can have a pistol (we'll say it's a G17 for this instance) with the magazine inserted so long as the chamber is empty and it's in a case. I.e. that having the chamber empty means the pistol is unloaded so far as the law is concerned.
I argue that under IL that's a loaded weapon and will land you in jail.

The definition isn't anywhere that I know of in the text of the law that I know of, so I was hoping someone had some case law that could clear it up.
Thanks.

sixgun2
10-15-2011, 16:43
I would side with previous case law an define your description of said firearm as been loaded.

Sharky7
10-15-2011, 20:29
Enjoy...

http://www.isp.state.il.us/docs/ptfire.pdf

Keeperofthedew
10-15-2011, 20:59
I would side with previous case law an define your description of said firearm as been loaded.

You wouldn't happen to have a specific case in mind would you?
Saying that some cops on the internet agree with me isn't going to hold much weight.

Enjoy...

http://www.isp.state.il.us/docs/ptfire.pdf

Yeah, I've seen that. But it doesn't address whether having a magazine in the pistol is loaded. Hence the issue.

Thanks.

Sharky7
10-15-2011, 21:21
You wouldn't happen to have a specific case in mind would you?
Saying that some cops on the internet agree with me isn't going to hold much weight.



Yeah, I've seen that. But it doesn't address whether having a magazine in the pistol is loaded. Hence the issue.

Thanks.

Just went through it all myself - sorry thought it would.

Yes, I would consider a gun with a loaded magazine inserted a "loaded weapon." I can't give you any case law on it, but can tell you I have arrested numerous people with illegal firearms carried on their persons that did not have a round in the chamber. My first gun arrest during FTO was a crappy little .25 on the passenger seat under a box without a round in the chamber and it was referred to as "a loaded weapon", but described in the report as not having a round in the chamber.

If I ran across a legitimate citizen on the way to the range who had the gun in a case in his trunk, it would be a teach-able moment. If it's a crap-weasel with the gun in his center console claiming it to be a "case" and has the magazine inserted, but no round in the chamber - he is definitely getting arrested.

Hope that helps...Sorry, don't have any specific case laws for you...maybe someone else will be around with some.

scottydl
10-16-2011, 11:41
Yeah, I've seen that. But it doesn't address whether having a magazine in the pistol is loaded. Hence the issue.

Gotta use some common sense there. Would a 6-shot revolver with only 5 rounds in it be considered unloaded, if the single empty chamber was the next one lined up to the pin? No.

I realize it's not exactly the same since revolvers and semi-autos obviously operate differently, and I think the average reasonable person would consider an inserted loaded magazine to equal a loaded gun.

WarCry
10-16-2011, 13:48
From the "Transport Your Firearm Legally (http://www.isp.state.il.us/docs/1-154.pdf)" pamphlet:

IS IT LEGAL TO HAVE AMMUNITION IN THE
CASE WITH THE FIREARM?
Yes, as long as the fi rearm is unloaded and properly
enclosed in a case.

Now, it MIGHT be considered a bit of conjecture, but it seems the State Police consider it to be a COMMON understanding that a magazine inserted into a firearm is considered loaded. Otherwise, a "frequently asked question" about putting it in the same case makes no sense.

They also have this blurb:

HOW CAN I LEGALLY TRANSPORT OR
POSSESS AMMUNITION?
Illinois law requires residents possessing ammunition
have a valid FOID card. The location of ammunition
being transported, including ammunition being
transported in loaded magazines, is not regulated if the
firearm is possessed or transported lawfully

Again, they're separating ammo in a magazine as being SEPARATE from the firearm itself.

According to ConcealedCarry.org (http://www.concealcarry.org/illinois-carry/), this is the actual case file you're looking for:

I thought the ammunition had to be stored separately from the handgun?
This is a common myth as is the myth that the handgun has to be in a locked container or in your trunk. The law merely specifies “cased” with no mention as to ammo (see above). Further, the Illinois courts have ruled on this point definitively. Ammunition may be in the magazine as long as the magazine is not in the hand gun. See McDade v. Illinois (http://www.concealcarry.org/mcdade-vs-illinois/).
(I didn't read the whole case, and I'm not a lawyer anyway, but concealedcarry.org presumably does have a few lawyers that watch this stuff...)



So, here's what I would tell your friend/co-worker: You do whatever you want, but if you're WRONG, and you're caught and charged, it will be a felony charge that, by FEDERAL law, will cost you your right to ever own a firearm again.

scottydl
10-17-2011, 04:00
:goodpost:

Firearms carry is not an area where your friend should be trying to look for the smallest possible loophole, and expect to be right later on.

P.S. What's with all the "friend" posts around here lately? Seems to be an awful lot of "my friend said this" or "this happened to my friend" ... :dunno:

Hoser423
10-17-2011, 07:20
If your friend has a big 2A group or well-connected lawyer going to bat for him... good luck. Otherwise, having case law with his name attached is not going to be a fun ride.

LC Deputy
10-18-2011, 18:07
I have always agreed with your guys thinking here and when I first started as a deputy I thought the same thing. But when I took my hunters saftey class, since in illinios if you were born after 1981 it is required to hunt, I was told by a DNR officer that you could have the magazine in the gun as long as there was not a round in the chamber. The gun had to be in a case and out of reach. Again I feel this is considered a loaded firearm but he said it is not. Not sure if he had case law or not, he never gave us any.

WarCry
10-18-2011, 18:21
I have always agreed with your guys thinking here and when I first started as a deputy I thought the same thing. But when I took my hunters saftey class, since in illinios if you were born after 1981 it is required to hunt, I was told by a DNR officer that you could have the magazine in the gun as long as there was not a round in the chamber. The gun had to be in a case and out of reach. Again I feel this is considered a loaded firearm but he said it is not. Not sure if he had case law or not, he never gave us any.

I'd be more inclined to take that advice if I knew it was going to be a DNR officer stopping me on the highway....

As a county deputy, if you stopped someone with a Glock, fully-loaded mag loaded but none in the chamber, would you make that charge? Would you department be ok if you let that go?

(I'm not being facetious, as a deputy I would trust your professional word)

LC Deputy
10-18-2011, 18:25
I'd be more inclined to take that advice if I knew it was going to be a DNR officer stopping me on the highway....

As a county deputy, if you stopped someone with a Glock, fully-loaded mag loaded but none in the chamber, would you make that charge? Would you department be ok if you let that go?

(I'm not being facetious, as a deputy I would trust your professional word)

I know I dont like it and I would have them out of the car at gun point until I knew the whole situation. YOU cant tell if that gun has one in the chamber or not until you look at it alittle closer and there has been too many cops killed lately over stupid things. We would have to call the SA and see what they say since I heard both ways but knowing them it wouldn't go far.

steveksux
10-18-2011, 18:31
The gun is locked in a case and inaccessible, right?

What's the advantage to having the magazine in at that point? Utterly useless.

IMO its really really stupid to take a risk like a felony over something utterly trivial and useless like the magazine in vs out of a locked, encased, inaccessible firearm.

Leave the magazine out of the gun, for God's sake...

Randy

WarCry
10-18-2011, 18:49
The gun is locked in a case and inaccessible, right?

What's the advantage to having the magazine in at that point? Utterly useless.

IMO its really really stupid to take a risk like a felony over something utterly trivial and useless like the magazine in vs out of a locked, encased, inaccessible firearm.

Leave the magazine out of the gun, for God's sake...

Randy

Actually, it doesn't have to be locked. I don't BELIEVE inaccessible is a rule, either, because the glove box, and (I think) the center console are considered "cases"

steveksux
10-18-2011, 18:56
Actually, it doesn't have to be locked. I don't BELIEVE inaccessible is a rule, either, because the glove box, and (I think) the center console are considered "cases"Even in Michigan, if you don't have CPL, unloaded, inaccessible, locked in a case is mandatory, I admit I didn't look at the pamplet that closely, just assumed IL would be at least as restrictive on transport without carry permit.... My bad..

Randy

WarCry
10-18-2011, 18:58
From the ISP site:


[...I]t is recommended that, in
order to be in compliance with all statutes, all
firearms be transported:
1. Unloaded and,
2. Enclosed in a case, and
3. By persons who have a valid FOID card.
Unless specifically exempted from UUW, a
person commits a Class 4 Felony if he or she
carries or possesses a firearm contrary to the
aggravated UUW law of the Criminal Code (i.e.,
unlawfully carries on their person or illegally
transports a firearm in a vehicle) AND one or
more of the following aggravating factors apply:
(1) The firearm possessed was uncased,
loaded, and immediately accessible at the
time of the offense;
(2) The firearm possessed was uncased,
unloaded, and the ammunition for the
weapon was immediately accessible at the
time of the offense;
(3) Does not have a valid FOID card;
(4) Was previously adjudicated of a Felony as a
juvenile;
(5) Was engaged in a Misdemeanor violation of
the Cannabis Control Act or the Controlled
Substances Act;
(6) Is a member of a street gang;
(7) Has had an order of protection against them
in the last two years;
(8) Was engaged in the commission or
attempted commission of a Misdemeanor
involving the use of violence against another
person or the property of another; or
(9) Is under 21 years of age and in possession
of a handgun, unless the person is engaged
in hunting activities under the Wildlife Code.


What all of this goes to say that the biggest issues are unloaded, in a container, and by a FOID holder. Nothing about locked or accessible.

That said, when I go to the range (40 minute drive), my Glock is usually locked in my rifle case or, in some situations (like when I had to pack up fast due to a sudden rain shower) it goes in my range bag, either of which ride in the trunk.

Much as I'd like to push the limits and see what I could get away with, I'm not chancing it..

volsbear
10-18-2011, 19:34
In light of the McDade decision, our prosecutor's position is to charge a UUW if the firearm has a round loaded into the chamber. Semi-automatics can have a loaded magazine inserted into the pistol as long as there is no round chambered. The SA has been less than clear, though, on revolvers. Presumably, under the same logic, if a six-shot revolver was loaded with four rounds and the immediate and next ports in the cylinder were the empties, you'd be ok. But again he's been less than clear on revolvers. Probably because he just flat doesn't know and doesn't want to define it yet. It seems as though the simple definition is that if you can pull the trigger and make it go boom, it's loaded.

But again - you still may be in violation of the wild life code in certain situations.

I've heard that a few local guys in my area have noted pistols to be present in glove compartments and center consoles (some with a loaded mag in the pistol and some not) and not charged it. I suspect, however, that the motorist was detained for quite a while during the time they worked it all out.

I tell my friends and family to store it in the console if they absolutely feel it's necessary but I suggest that they pocket the mag or stick it in the cup holder. I have a few other friends who have permits from Utah, Penn, or both and when they travel they stick the pistol in a case and stash it under the seat with the mags in the case but not in the pistol and then as soon as they hit the state line (other than Wisconsin) they put said pistol into a holster on their hip.

It seems silly to risk getting shot over a process that only adds a few seconds to your ability to respond to a crisis, but I'm sure there are people out there who would criticize that opinion.

In other news - one of the illinois carry organizations is also pushing a concept called "six seconds to safety" where they are 'suggesting' people carry pistols in a fanny pack (a closed case per Illinois law) with a loaded mag in the pistol without a round in the chamber. The idea is that if the crap hits the fan, the fanny-pack wearer can open the closed case, draw the pistol, chamber a round, and defend themselves within 6 seconds. They're basically trying to get people arrested in order to create a basis to further test the IL UUW laws.

You know - but whatever. Do what you want as long as you're prepared to deal with it. These definitions are not as a problematic for me to deal with since all my probationers are felons.