The Volokh Conspiracy

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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From Thursday's Illinois Appellate Court decision in State v. Penister (nonprecedential):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The police here operated on an outdated assumption—possession of a firearm in and of itself is a crime.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).