The Volokh Conspiracy

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More on Guns and Strict Liability

An interesting opinion from an Illinois appellate judge, arguing against the Illinois rule under which it's a crime to possess a gun with a defaced serial number even if one has no reason to know that it's defaced.


From Illinois Appellate Court Judge David Ellis's concurring opinion two weeks ago in People v. Lee:

I believe that the State is required to prove that the defendant [who is charged with possessing a firearm with a defaced serial number] knew that the firearm he possessed [had a defaced serial number]. The seminal case holding otherwise, People v. Stanley, 397 Ill. App. 3d 598 (2009), was wrong when it was decided and is even more obviously wrong today, in a world where the mere possession of a firearm, without more, cannot be constitutionally prohibited. We should say so.

Section 24-5(b) of the Criminal Code provides that "A person who possesses any firearm upon which any … serial number has been changed, altered, removed, or obliterated commits a Class 3 felony." As written, the statute thus takes the form of a "strict" or "absolute" liability offense: It has no explicit mens rea requirement.

The legislature can create absolute liability for a felony, but only if it "clearly indicates" its intent to do so. 720 ILCS 5/4-9. That intent will not be inferred from the "mere absence" of a mens rea requirement in the statute. People v. Gean, 143 Ill. 2d 281 (1991). As Stanley correctly noted, there is no clear statement of that intent in section 24-5(b). Thus, we must presume that the legislature did not intend to impose absolute liability for possessing a defaced firearm.

To avoid absolute liability, a mens rea must be inferred into the statute. For a possessory offense, we must infer at least a mental state of knowledge. 720 ILCS 5/4-2 (possession must be knowing to qualify as voluntary act, as required for criminal liability); see also Gean, 143 Ill. 2d at 288 ("knowledge is the appropriate mental element" to infer into possessory offense). The question is which element(s) of the statute the knowledge requirement must govern. I would hold that the offense requires proof that defendant knew the firearm in his possession was defaced….

Stanley was wrongly decided for at least two reasons. First, its reasoning was indefensible. It held that knowledge of the defacement is not required because defacement "is not an element of the offense" in the first place. So if defacement is not an element, there is only one place to infer the knowledge requirement: with respect to the mere act of possessing a firearm.

But of course, the defacement is an element of the offense. In the parlance of the Criminal Code, it is an "attendant circumstance" of an individual's conduct. If the defacement were not an element, the State wouldn't have to prove it at all. It could prove possession of a defaced firearm simply by proving possession of any firearm, defaced or not. That would be absurd. And we cannot avoid that absurdity by purporting to distinguish, as Stanley did, between an element and a fact that "unmistakably bears upon the commission of the offense." It "unmistakably bears upon" the crime, but it's not an element—it's not something the State has to prove? It's just an interesting detail? That phrase is just a muddled, evasive way to refer to an element of the offense, which, in plainer terms, is simply a fact for which the statute requires proof beyond a reasonable doubt.

Second, as Stanley construed the defacement statute, it still imposes absolute liability, even though that is precisely the result that Stanley (correctly) set out to avoid.

As written, the defacement statute has two elements: possession and defacement of a firearm. Possession of a firearm, by itself, is not a crime. Nor is knowing possession of a firearm. Indeed, any statute that criminalized the knowing possession of a firearm—full stop, without more—would clearly violate the Second Amendment, as interpreted in McDonald v. City of Chicago and District of Columbia v. Heller.

To define a constitutionally permissible offense, another element is necessary—some fact about the firearm or the circumstances of its possession that the Second Amendment does not protect. Defacement is one example of such an additional fact. Thus, in the statute we are considering, the defacement is more than just an element, on par with any other; it is the element that allows the legislature to enact this offense in the first place without being blatantly unconstitutional. The additional fact of defacement is the only thing in this statute that validly makes the firearm possession a crime.

Which means that, to avoid imposing absolute liability, the statute must be construed to require proof that the defendant knew the firearm was defaced. If the statute did not require knowledge of the defacement, the defendant's otherwise innocent conduct (knowingly possessing a firearm) would be transformed into a felony by a circumstance (the defacement) of which he was unaware. And if a person can be made to wander into felony liability unwittingly, just by engaging in otherwise innocent conduct, then the felony liability imposed by the statute is "absolute" or "strict," indeed.

That is the lesson of Gean. There, the supreme court construed a "chop shop" statute aimed at prohibiting the receipt of stolen vehicles. In technical terms, at issue were two different Class 4 felony provisions: (1) prohibiting the possession "without authority" of certain vehicle items (such as certificates of title or salvage certificates) and (2) prohibiting the possession of these same items "without complete assignment."

Like the defacement statute, the provisions at issue in Gean did not include any explicit mens rea requirement. Because the legislature did not clearly express an intent to create absolute liability for this felony possession offense, a mens rea of knowledge had to be inferred. The question was which elements required such knowledge—did the defendant merely have to know he was possessing the vehicle title or similar item, or did the state have to prove that the defendant knew that his possession of the item was "without authority" (in the one subsection) or that the items he possessed were "without complete assignment" (in the other subsection)?

The supreme court inferred a knowledge requirement into the latter elements of each subsection; the state had to prove that the defendant knew that his possession of the certificate was "without authority" as for the first subsection, and that the defendant knew that the certificates he possessed were "without complete assignment" in the second.

Why? Because, as the supreme court explained, "[k]knowledge generally refers to an awareness of the existence of facts which make an individual's conduct unlawful." (Emphasis added.) Id. Possessing a car title, alone, is not unlawful; if it were, every car owner in Illinois would be a criminal. It was the knowledge that the car was stolen—that the defendant knew his possession of the certificate or other item was "without authority," or that he knew the item had not been validly "assigned"—that differentiated innocent conduct from criminal conduct.

The same holds true here. We have perfectly innocent conduct (possession of a firearm, without more) combined with an attendant circumstance that transforms that conduct from legal to illegal—the fact that the firearm is defaced. If we don't infer a knowledge requirement into the part of the statute that renders the actor a criminal, we are imposing absolute liability for a Class 3 felony, without the requisite clear indication that the legislature attempted to do so.

To put this point in its proper context, contrast the defacement statute with the aggravated vehicular hijacking statute, cited here by the State. A person commits vehicular hijacking if he knowingly takes a motor vehicle by force or threat of force. A person commits aggravated vehicular hijacking if he commits vehicular hijacking under section 18-3(a) and an aggravating factor is present—for example, a victim is under 16 years old, over 60, or physically disabled.

The statute does not require knowledge that an aggravating factor is present; there is no explicit mens rea requirement with respect to the circumstances that aggravate the offense. And we have refused to infer one.

But that's different. The aggravated vehicular hijacking statute does not transform legal conduct into illegal conduct without the actor's knowledge. The actor has already committed vehicular hijacking—that is, he has already knowingly taken a car by force or threat. The aggravated vehicular hijacking statute just aggravates the offense based on the character of the victim. The legislature could rationally decide that a carjacker takes his victims as he finds them, regardless of whether he knew they were minors, elders, or disabled. No absolute liability there, however, because the knowledge requirement applies to the action that makes it criminal—the theft of the car in the first place.

Taking your carjacking victims as you find them is very different than taking your firearms as you find them. The law made the vehicular hijacker take his chances with his victims, but only because he knowingly committed a criminal act in the first place. The law did not make him wander inadvertently into a felony—due to circumstances beyond his knowledge—while he was doing something that was otherwise legal. But that is exactly what the law does to those who possess firearms, at least as Stanleyconstrued the defacement statute. And Gean tells us that result is wrong.

To be fair, Stanley was decided before McDonald incorporated the rule of Heller against the states. So perhaps it was not so easy to say, at the time Stanley was decided, that knowingly possessing a firearm, full stop, is not and cannot be a crime under Illinois law. But that is no reason for us to continue to follow Stanley. At a minimum, it cannot be good law in a post-Heller world. If Gean wasn't the controlling precedent on this question before Heller and McDonald, it most certainly is now.

We should apply the principles of Gean to the defacement statute and hold, for the reasons explained by our supreme court, that it requires proof that the defendant knew the firearm in his possession was defaced. We should stop following Stanley, no matter how many other courts have adhered to it.

Sounds right to me, though I generally oppose strict liability in criminal statutes. For the U.S. Supreme Court's (complicated) approach to the matter, see Staples v. U.S. (1994); that case read the federal law banning unlicensed possession of guns capable of automatic fire as requiring proof that the defendant knew the gun was so capable, but other Supreme Court weapons cases have reached other results, as the Staples opinion notes.