Mere possession of firearm not probable cause for arrest--even in Illinois

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KLB
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Mere possession of firearm not probable cause for arrest--even in Illinois

#1

Post by KLB » Sun Jun 17, 2018 9:28 pm

Mr. Penister was arrested for possession of a firearm even though he had the appropriate license. The state argued the cops need not inquire about a license before arrest. The Illinois Appellate Court was not persuaded and ruled for Mr. Penister.

http://reason.com/volokh/2018/06/17/can ... ing-gun-wi


srothstein
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Re: Mere possession of firearm not probable cause for arrest--even in Illinois

#2

Post by srothstein » Sun Jun 17, 2018 10:58 pm

Two minor corrections. Mr. Penister did not have a license and his conviction was upheld, just not his sentencing. Also, the order is written as non-precedential, so no one can use the logic or cite the case. There is a link to the actual order in the Reason article and reading it makes it clear Reason took the part they quoted out of context somewhat.

But the logic is correct and is a warning to Illinois police to change their behavior patterns or they will start losing cases. It gives defense attorneys a road map on how to throw cases out for lack of probable cause.

And, of course, it is good news for our side for future court cases.
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Re: Mere possession of firearm not probable cause for arrest--even in Illinois

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Post by C-dub » Mon Jun 18, 2018 7:45 am

srothstein wrote:
Sun Jun 17, 2018 10:58 pm
Also, the order is written as non-precedential, so no one can use the logic or cite the case.

And, of course, it is good news for our side for future court cases.
These two things seem to contradict each other. Can you explain how a courts decision can be non-precedential? That doesn't make any sense to me. It's like the court is saying that this is a one time decision and given the same circumstances they may or may not find the same way next time.
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srothstein
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Re: Mere possession of firearm not probable cause for arrest--even in Illinois

#4

Post by srothstein » Mon Jun 18, 2018 9:56 pm

C-dub wrote:
Mon Jun 18, 2018 7:45 am
srothstein wrote:
Sun Jun 17, 2018 10:58 pm
Also, the order is written as non-precedential, so no one can use the logic or cite the case.

And, of course, it is good news for our side for future court cases.
These two things seem to contradict each other. Can you explain how a courts decision can be non-precedential? That doesn't make any sense to me. It's like the court is saying that this is a one time decision and given the same circumstances they may or may not find the same way next time.
I had to look up the Illinois Supreme Court rule on it to find out myself. Basically, their rule says that there are three ways an appellate court can handle a case. They can issue a summary judgment, which means there are no real facts in dispute. It also does not allow those cases to be cited as precedent. The appellate court can issue an order on how to handle the case. An order may apply existing law to the case but does not clarify or make any law. The order must explain itself but may not be cited for precedent, based on the rule. The court can also issue an opinion. An opinion explains or clarifies law and is able to be cited as precedent.

I don't know if Texas or SCOTUS have similar rules on how lower courts handle cases. I had always thought, based on my Texas training, that any appellate court established precedent for their state and rule for their district. I guess I was wrong on that, but Illinois is even weirder than Austin.

But I saw it as good news for us because it laid out a road map for how to handle future cases like this. It shows exactly which arguments the court will accept in some other case. So it is not binding precedent but it tells us what the court is looking for from now on for some future case.
Steve Rothstein


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Re: Mere possession of firearm not probable cause for arrest--even in Illinois

#5

Post by chasfm11 » Tue Jun 19, 2018 6:42 am

But will the roadmap matter? I ask in the context of many Texas governmental entities pushing the boundaries of not being able to post 30.06 signs. Those who are opposed to guns don't seem to be governed by the laws like the rest of us. Illinois itself defied the Federal government several times in court before it was forced to turn into a "shall issue" State.
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