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Can Police Arrest Person Carrying Gun Without First Checking If He's Licensed?

No, says the Illinois Appellate Court.

From Thursday's Illinois Appellate Court decision in State v. Penister (nonprecedential):

Penister [argues that his arrest violated the Fourth Amendment because] his possession of a gun did not give Whitlock reason to believe he had committed any offense, because Whitlock had no grounds for concluding that Penister did not have a valid FOID [Firearms Owners' Identification] card. The State contends that Whitlock had probable cause to arrest Penister because the circumstances showed a substantial possibility of criminal activity....

The State argues that the discovery of the gun gave Whitlock probable cause to arrest Penister, reasoning that "the police were not required to ... determine whether he had a valid FOID card or a Conceal Carry Permit prior to effectuating his arrest." According to the State's reasoning, an officer has probable cause to arrest anyone engaged in an activity that requires a license, and the officer can wait until after the arrest to determine whether the arrested person has the required license. So any officer can wait outside any courtroom, arrest all persons who acted as attorneys, and find out after the arrests whether the persons had the requisite licenses to practice law. See 705 ILCS 205/1 (West 2016) (unlicensed practice of law punishable as contempt); People v. Flinn, 47 Ill. App. 3d 357, 361 (1977) ("arrest and imprisonment may be imposed for civil contempt of court"). If any officer sees a person driving a car, the officer has probable cause to arrest the driver, and the officer can find out later whether the arrested person has a license to drive.

The police here operated on an outdated assumption—possession of a firearm in and of itself is a crime. Until recently, that was true in the City of Chicago. But the law has shifted dramatically during this decade. Since the legislature has legalized gun possession and concealed carry, many citizens may now possess firearms provided they have followed the regulations.

Our legislature has made a policy decision that has legal consequences for how law enforcement officers must deal with possession of firearms. No longer can police assume that a person seen with a firearm is involved in criminal activity. Law enforcement officers must adjust their procedures so that law-abiding citizens do not face the undue burden of arrest for licensed activity.

Once Officer Whitlock discovered the gun in the glove compartment, he could have attempted to find out whether Penister or Rockett had a license for the gun. If he found evidence that they had no such license, he would have had probable cause to arrest. But if police can lawfully arrest Penister here, without making any effort to determine whether he had a license for the gun, everyone found with a firearm would be subject to arrest, no questions asked.

Firearm owners who might wish to carry a concealed weapon should find that the facts of this case give them some cause for alarm. Even a person who could quickly prove the legality of gun possession would still face onerous arrest.

Arrests can have significant legal and reputational consequences. (Imagine, for example, a citizen legally carrying a concealed weapon who is arrested during her morning commute, who then must explain to her supervisor why she arrived hours late for work.) The approach the State advocates here—arrest first, sort it out later—would cause fundamental and manifest injustice.

We must not naively overlook the racially disparate impacts of this kind of police procedure. Consider the police homicide of Philando Castile. Castile, stopped for a traffic violation, told the officer that he was carrying a handgun. The officer pulled out his own gun and screamed, "Don't pull it out." Castile responded, "I'm not pulling it out." The officer fired seven shots, killing Castile. The entire encounter—from the officer approaching Castile's car to the shooting—took less than a minute.

What led police here to guess that Penister did not have an FOID card or a concealed carry license? The Second Amendment protects all citizens—not just those who appear to police likely to possess an FOID card. Police, prosecutors and judges need to stay alert to potential discriminatory treatment in the arrest of Blacks and other minorities for FOID card and concealed carry violations.

We hold that Penister's possession of a gun did not constitute probable cause to arrest him, as the gun possession did not support an inference that any offense had occurred. See People v. Aguilar, 2013 IL 112116, 20 (the second amendment right to bear arms extends beyond the home).

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  • Careless||

    How are my state's judges so much less, well, likely to be insane assholes than my state's legislators?

  • great Unknown||

    your state legislators are under the thumb of Chicago, which is under the thumb of the Democrats and the Mafia. The State's judges, not so much.

  • MatthewSlyfield||

    "which is under the thumb of the Democrats and the Mafia."

    I think you must have meant the Democrats and the CPD. I know, it's an easy mistake to make.

  • FlameCCT||

    In the words of that great philosopher, Forrest Gump:
    Progressive is as Progressive does!

  • ||

    Do the police have the authority to arrest any driver anywhere, at any time? Because that's what the court is implying. If the cops don't have to check to see if a person carrying a firearm has a CCW permit, then the cops don't have to check to see if a driver has a driver's license. Operation of a motor vehicle is de-facto authorization to arrest somebody for driving without a license. The unlucky driver who has aroused the cop's royal wrath can get things straightened out tomorrow (or the next working day) when he's finally allowed to show his driver's license.

    It's Illinois, of course, a state which is COMPLETELY and totally corrupt. Please note that the average governor of Illinois does two terms; one in office, and one in the pen.

  • California Right To Carry||

    The answer to your question is "No!" See Delaware v. Prouse, 440 U.S. 648 (1979) and its progeny.

  • David Nieporent||

    Do the police have the authority to arrest any driver anywhere, at any time? Because that's what the court is implying.

    How can the court be implying that when it is expressly stating the opposite?

  • nonzenze||

    KM, please read the fact pattern. The police saw the driver run a red light (undisputed) and seized the vehicle for that traffic violation.

    FWIW, I agree with the ruling. The police should not have arrested him at that point, rather they should have done a proper check for licensure.

  • BillyG||

    I'd like to have more analysis on the probable cause for the cop searching the glovebox.

    And yes, I read the opinion.

  • nonzenze||

    You have your standards wrong, the police can perform a protective sweep for weapons under reasonable suspicion, not probable cause.

    During a traffic stop, in order "to allow the officer to pursue his investigation without fear of violence," Adams v. Williams, 407 U.S. 143, 146 (1972), the officer may order the driver out of his car and may search the passenger compartment of the car for weapons if the officer develops a reasonable suspicion that the driver is "dangerous and may gain immediate control of weapons" inside the car. Michigan v. Long, 463 U.S. 1032, 1049 (1983) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)) (footnote omitted); see Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6 (1977) (per curiam). Courts assess "the totality of the circumstances ․ to see whether the detaining officer ha[d] a particularized and objective basis" for suspecting the driver was armed and dangerous, acknowledging that the "likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 273-74 (2002).

    Of course, you can claim that this caravan of precedent ought to be overturned, but that doesn't change the law at the time.

  • nonzenze||

    And since it appears that RS to search the glove wasn't litigated, we can only speculate on the facts/analysis from the opinion.

    The claim that the officer saw a large object placed in the glove and that the explanation (a pack of cigarettes) was implausible seems to me "particularized and objective" within the fairly low standard of reasonable suspicion.

  • TheAmazingEmu||

    Just to be clear, the search under Michigan v. Long is analogous to a Terry frisk, meaning the police need Reasonable Articulable Suspicion to believe a suspect is armed and dangerous before they search.

    This is different from the Search Incident to Arrest in Arizona v. Gant, which allows a search absent additional suspicion within a suspect's grab area or a search with Reasonable Suspicion to believe there is evidence of the crime for which the suspect is being arrested for inside the vehicle.

  • nonzenze||

    Yup. And this search was under the former, the officer claiming* that he had it.

    * Since it wasn't litigated, those claims are all we have.

  • California Right To Carry||

    The State of California says Fourth Amendment does not apply to legally carried firearms.

    YouTube video link -> https://youtu.be/o4oEwBahVoU

    California Right To Carry - http://CaliforniaRightToCarry.org
    California Penal Code section 25850(b) says if you assert your Fourth Amendment right then that constitutes "probable cause" for your arrest.

    The State of California relies solely on a lone 1970 California court of appeals decision which has long been discredited. That decision held that police do not need probable cause regardless of whether or not one refuses to give his consent.

    A separate 1970 California appellate decision held that the mere sight of a firearm does not constitute probable cause for an arrest. The California Supreme Court would later cite that latter decision as an example of an unlawful arrest.

    In its answering brief on appeal, the State of California argued that the mere sight of a gun case constitutes probable cause for an arrest.

    This law, PC25850(b), was originally enacted in 1967 as part of California's Loaded Open Carry ban. The National Rifle Association helped write that ban and has spent the better part of a decade in Federal court fighting to uphold that 1967 ban it helped write as well as fighting to uphold California's Unloaded Open Carry bans enacted in 2012 and 2013.

  • TwelveInchPianist||

    "California Penal Code section 25850(b) says if you assert your Fourth Amendment right then that constitutes "probable cause" for your arrest."

    That's pretty bad, but of course the California legislature can say whatever it wants. Has a court ever allowed such an arrest?

  • BigHands||

    "California Penal Code section 25850(b) says if you assert your Fourth Amendment right then that constitutes "probable cause" for your arrest."

    "That's pretty bad, ..."

    It might be pretty bad if that was what 25850(b) actually said but, of course, it doesn't say that. PC 25850 makes it generally illegal to carry a loaded firearm in public (but there are numerous exceptions) and what 25850(b), in particular, says is that the police can examine a firearm to see if it's loaded and refusal to allow them to do so constitutes probably cause for an arrest.

    From leginfo.legislature.ca.gov:

    25850(b)
    "In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on the person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section."

  • California Right To Carry||

    BigHands says "It might be pretty bad if that was what 25850(b) actually said but, of course, it doesn't say that."

    And then he quotes the subsection which says exactly what he says it doesn't say.

    And, of course, neither I nor the state's attorney disagrees in what PC 25850(b) actually says. We disagree on whether or not the law violates the Fourth Amendment.

    Which should be obvious from the video excerpt of the oral argument alone even if one were too lazy to actually read our briefs.

  • TwelveInchPianist||

    "It might be pretty bad if that was what 25850(b) actually said but, of course, it doesn't say that."

    Based on your quotes, it sure sounds like it does.

  • California Right To Carry||

    Part 1 - TwelveInchPianist - There have been arrests but unfortunately, the records I got from the state several years back, while my case was still in the district court, just noted the arrests, not the dispositions. Very few convictions make it to the court of appeals which is not surprising given the cost of a private attorney. Moreso given that the policy of the Los Angeles County Public Defender's Office is that the Second Amendment is not an individual right and therefore will not file any appeals, interlocutory or otherwise.

    That section did come up in a Federal case in which the court asked during oral argument whether it was a crime in and of itself. The Federal prosecutor said she interpreted it as an authorizing statute, but wasn't sure. As the case did not turn on that question, we still don't know.

    I do know that when I was prosecuted by the wife of the NRA Peruta v. San Diego attorney Chuck Michel (she is now running for judge) the judge asked her what he should do with the concession by the attorneys for the City of Redondo Beach in my civil trial that its local ordinance is preempted by state law? She said that it would be unfair to dismiss the criminal case against me for violating the City's local ordinance because it was too late to arraign me for violating PC25850(b).

  • Michael Ejercito||

    Moreso given that the policy of the Los Angeles County Public Defender's Office is that the Second Amendment is not an individual right and therefore will not file any appeals, interlocutory or otherwise.


    So they disagree with the Supreme Court.

  • ||

    These people are disgusting.

  • California Right To Carry||

    Part 2 - TwelveInchPianist - In any event, I limited my challenge to 25850(b) to a Fourth Amendment challenge and disclaimed a vagueness challenge to that subsection for reasons obvious to those who have studied Fourth Amendment case law.

    One way or another, we will have an answer to the question of whether or not PC 25850(b) violates the Fourth Amendment. Given that I have SCOTUS, 9th Circuit, sister circuits and contemporaneous California appellate court decisions on my side and all the state has is what you saw in oral argument, I'm confident I will win my Fourth Amendment claim.

    If not then I have a SCOTUS Rule 10 question lined up for my cert petition.

  • apedad||

    "Can Police Arrest Person Carrying Gun Without First Checking If He's Licensed?
    No, says the Illinois Appellate Court."

    The says the Illinois Appellate Court DID NOT say No to that question.

    They actually upheld the conviction and only overturned the sentencing because his lawyer didn't bring up that his previous conviction was for a misdemeanor and not a felony.

    "However, Penister showed that he received ineffective assistance of counsel when his attorney failed to present to the trial court the sentencing order from his prior conviction, as that order casts doubt on the State's contention that the applicable sentencing statute for the current conviction required a sentence of at least 3 years in prison.

    Conviction affirmed; sentence vacated and cause remanded."

  • David Nieporent||

    The says the Illinois Appellate Court DID NOT say No to that question.

    Uh, yeah, they did. Explicitly.

    "We hold that Penister's possession of a gun did not constitute probable cause to arrest him, as the gun possession did not support an inference that any offense had occurred."

    They actually upheld the conviction

    His lawyer did not make a motion to quash the arrest for lack of p.c.

  • Absaroka||

    "So any officer can wait outside any courtroom, arrest all persons who acted as attorneys, and find out after the arrests whether the persons had the requisite licenses to practice law."

    But wait, there's more! Impersonating a police officer is a crime, so any officer could arrest all persons acting as police officers, pending finding out whether they are actual officers. It's arrests all the way down!

  • Michael Ejercito||

    Anyone think that these laws will be enforced in an even-handed manner?

  • less lean eel son||

    What laws Michael? This case is about probable cause, and resulted in a ruling saying that the police cannot assume probable cause for being unlicensed without first checking licenses. It seems like you think the hypotheticals from the post are laws.

  • loveconstitution1789||

    Actually, the first legal question is why are police even bothering someone for carrying a gun?

    2nd Amendment: 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.

  • Longtobefree||

    That old myth? Welcome to the revolution.
    You get only what firearms usage we allow, buddy. And we allow you to think about what firing a single shot, small caliber, pistol would be like. That's it. Any thing more and you go to jail.

  • loveconstitution1789||

    I know that is the trend. I just cite the Constitution because people give these tyrant judges leeway by even discussing the court's opinion as if they have any authority to water down the protected gun rights of the 2nd Amendment.

  • apedad||

    Actually, the first overall question is did you even read the decision?

    If you did, you would realize your question has nothing to do with the case.

  • loveconstitution1789||

    I don't need a court decision to know that my right as a freeman to have a firearm cannot be infringed by the government. Ever. For any reason.

  • regexp||

    I don't need a court decision to know that you are completely and absolutely wrong.

  • nonzenze||

    They bothered him because he ran a red light. When pulling him over they saw him hide the gun in the glove box.

    Sheesh do any of you actually read just the 'factual background' part of the opinion? Those are important pieces of context!

    [ FWIW, I said before, I agree with the decision and the point that carrying a gun is not (without more) a crime. In fact, I agree with it even knowing that the facts are less favorable to the perp than you imagine! ]

  • loveconstitution1789||

    The stop is irrelevant to the arrest for a weapon.

    His vehicle was stopped for a legal reason.

    He was bothered for having a constitutionally protected weapon.

  • nonzenze||

    Well, so far no court has held the FOID requirement to be unconstitutional. So indeed he had a protected weapon but was violating a permissible licensing regulation (something something Scalia Heller longstanding question blah blah).

    I agreed (numerous times) that the possession of the weapon was not PC for arrest without evidence that he lacked the requisite license (or alternatively, the 7CA can strike down the entire FOID program). Which he in fact did lack.

  • loveconstitution1789||

    The gun control unconstitutional arguments are quickly dismissed and never decided on because the language of the 2nd Amendment is clear. The government literally has no position that does not violate the 2nd Amendment. Thomas raised this point recently that the SCOTUS ignores 2nd Amendment cases so as to not shore up the absolute right to keep and bear Arms.

  • nonzenze||

    Thomas' minority comment does not undo Scalia's majority comment that Heller does not immediately invalidate the bulk of longstanding regulation of guns.

    If you want to argue specifically that the IL FOID requirements are unconstitutional, I might even be sympathetic. But it hasn't been brought up (to my mind) and certainly has not be so found at the time of this arrest.

  • TxJack 112||

    This case proves that mandatory licensing and registration gives police way too much power because they assume a person has neither and just arrest them. If the case had been in Texas, the man would not have been arrested because your car is considered an extension of your home and it is perfectly legal to carry a firearm in your glove compartment. You are only required to have a license to carry is you carry the firearm on your person outside your home and car. In addition, Texas is a shall issue rather than a may issue state which simply means if you apply and have no glaring issues such as a felony conviction, the state is required to grant you the license when you pass the training course and qualification

  • phattyboombatty||

    You don't need a concealed carry license in Illinois to keep a gun in your glove compartment, but every citizen of Illinois needs a firearms owner identification card (FOID) to possess a firearm no matter where they are located, including inside their own home.

  • BigChiefWahoo||

    That FOID card is proof that you passed a background check. A background check which may have been conducted up to five years ago, and which probably took the Illinois Department of State Police six weeks(or more) to accomplish. Since the advent of the national instant check system, the Illinois FOID card system is completely obsolete and mostly useless. Yet some people in the state legislature(and elsewhere) insist that the FOID card system must be maintained so that "we" can keep track of who is legally eligible to own a firearm and who isn't, despite the fact that a list of those NOT eligible to own guns would be much shorter and easier to maintain Well, they say, "we" have to know who owns the guns because, well, just because, and of course, we would NEVER use the FOID card system to confiscate guns. Right? Right?

  • apedad||

    What happens if a person doesn't pass the training and qualification?

  • ragebot||

    The training and qualification are not all that hard. Anyone not able to pass the course should not be issued a CCL IMHO. A lot of the test is common sense with questions like 'is it a good idea to stick beans up your nose?' or more to the point should you secure guns with children in your house. The qualification is basically firing a weapon, you don't really have to exhibit any accuracy other than hitting the broad side of a barn.

  • Stephen Lathrop||

    With or without a CCL, possession of a gun may or may not be evidence of probable cause—depending on what other facts are part of the pattern. Pro-gun advocates should not put themselves in the peculiar posture of arguing that gun carrying with a CCL is exculpatory evidence. That's both illogical, and also suggests a demand for special legal exemptions for CCL holders. Innocent gun carrying ought to be judged on the basis of entirely innocent conduct by the licensee. Getting the CCL is part of that, not all of it. The rest of it is steering clear of patterns of conduct which suggest probable cause. CCL holders who fail at that should expect possession of the gun to be part of the evidence against them.

  • a tandem||

    Your comments are all the most absurd tautologies.

    Possession of a baseball bat may or may not be evidence of probable cause—depending on what other facts are part of the pattern.

  • Stephen Lathrop||

    With or without a CCL, possession of a gun may or may not be evidence of probable cause—depending on what other facts are part of the pattern. Pro-gun advocates should not put themselves in the peculiar posture of arguing that gun carrying with a CCL is exculpatory evidence. That's illogical, and also suggests a demand for special legal exemptions for CCL holders. Innocent gun carrying ought to be judged on the basis of entirely innocent conduct by the licensee. Getting the CCL is part of that, not all of it. The rest of it is steering clear of patterns of conduct which suggest probable cause. CCL holders who fail at that should expect possession of the gun to be part of the evidence against them.

  • Harvey Mosley||

    I disagree. Every study or statistic available indicates that CCW holders are the least likely group of people to commit a crime. And at least here in California CCW holders have to go to great lengths to demonstrate that we are not criminals and that we understand the consequences of the use of deadly force. It also requires a not unsubstantial investment of time and money. So yes. I do expect a little bit more of a presumption of innocence when I'm interacting with a LEO who knows I have a CCW.

  • Stephen Lathrop||

    I understand that you can demonstrate that you have not been a criminal in the past. How do you demonstrate you will not become a criminal tomorrow, or later today? You seem to be suggesting policy and law enforcement ought to divide the populace into two types, law-abiding types like you, and criminal types like some other people—and then adjust law enforcement and legal policy based on the distinctions. How could a system like that ever deliver due process or equal protection?

  • Absaroka||

    We make predictions based on past events all the time. Thinking you're more likely to need a snowblower next winter in Minneapolis than in Phoenix is a pretty common, and valid, method of prediction.

    You seem to be advocating a world where we either don't suspend licenses after DUI convictions, or we don't let anyone drive at all. That's just silly.

    And the due process you're looking for - that happens at the DUI trial. After you get convicted and are penalized - with jail time or a license revocation - complaining that the revocation didn't involve any due process is a little disingenuous.

  • a tandem||

    90% of Us murder is committed by prior criminals, above 80% by persons with ten or more arrests.

    And law enforcement does derived people into two types, criminals and non criminals. CCL holders are insanely safe which why police generally feel safest around CCL holders (PoliceOne survey 2013) than any other class of non law enforcement. they are less likely to commit murder people who own no firearm

    It is not about guns, or knives, or bats, but who has a criminal record, since virtually all criminal violence is repeat crime, multiple repetitions.

  • ||

    Slowly the progressive left are turning up the heat on We The People to see how far they can go in taking away our rights before we either push back or they succeed. We need to wake up before we are boiled alive by tyranny loving fools.

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