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Criminal Nuggets

Jan 16, 2015


The Impossibility Defense is an affirmative defenses that must be raised in the first instance by the accused. The burden shifts to the State when the issue is first raised. [powerpress] Subscribe: iTunes | Stitcher | RSS

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See People v. Costello, 2014 IL App (3d) 121001 (10/23/2014).


Defendant has an order of protection issued against him saying that -  

"[The defendant] is ordered to turn over any and all firearms, including the following: 9 millimeter [sic], 30 odd [sic] six, several shotguns and other guns typically kept in [the defendant's] gun safe [sic] in his home."  ¶ 3.

The police go his house with a warrant to pick up his guns and specifically the gun identified in the warrant. Defendant lets the police and sounds like he opens the safe for the police.

The police find no guns in the safe and Defendant doesn’t appear to be in any possession of the guns.


He then is subsequently charged with and convicted of violating  the Illinois Criminal Code violation of order of protections, a class A misdemeanor under 720 ILCS 5/720 ILCS 5/12-3.4(a)(1)(i).

Here is the exact section of the criminal code. The Illinois Criminal Code Section 12-3.4(a) provides that a person commits violation of an order of protection if:

"(1) He or she knowingly commits an act which was prohibited by a court or fails to commit an act which was ordered by a court in violation of:  (i) a remedy in a valid order of protection ***, [and] * * *

(2) Such violation occurs after the offender has been served notice of the contents of the order *** or otherwise acquired actual knowledge of the contents of the order."

720 ILCS 5/12-3.4(a)(1)(i), (a)(2).

"[T]he statute incorporates by reference a trial court's order as an element of the offense [of violating an order of protection]." People v. Davit, 366 Ill. App. 3d 522, 527 (2006).

The charges stated that specifically that - 

"having been served with or having acquired actual knowledge of the contents of an Order of Protection *** [the defendant] did intentionally commit an act which was prohibited by the  Order of Protection, in that said defendant failed to surrender firearms and ammunition to local law enforcement." ¶ 3.

Thus, the State was required to prove that a valid order of protection directed the defendant to turn over any and all firearms, including the firearms specified in the order, and that the defendant failed to do so after having been served with notice of the contents of the order.


Well, the defense thought the issue was whether the state established beyond a reasonable doubt that Defendant was guilty? 

The appellate court saw the issue a little bit differently. 


The reviewing court indeed believed that the state had met its burden. They said the state did not have to prove that Defendant was in possession of a gun just that he did not surrender a gun to the police when he was required.

Defendant was arguing that the state did not prove that he had the ability to surrender the gun and to find him guilty on these facts means switching the burden of proof of proof requiring him to prove he could not surrender the gun.

Affirmative Defense of Impossibility (The Impossibility Defense)

Defendant never formally raised the impossibility defense.

Probably, because he did not know it was considered an affirmative defense which requires that the “affirmative defense rules” be followed.

Let’s backtrack a bit.

A voluntary act is a material element of every offense, “which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.” 720 ILCS 5/4-1.

Also, “One cannot be held criminally liable for a failure to perform an act that he or she had a legal duty to perform if it would be impossible to do so.” ¶ 13.

With crimes of omission, where one fails to perform an act that he has a legal duty to perform, a defendant may raise an affirmative defense of impossibility if it was impossible for the person to perform the legal duty. See United States v. Spingola, 464 F.2d 909, 911 (7th Cir. 1972).

It is kind of hard to have expected defense counsel to know this because “Illinois law is largely silent on the common law defense of impossibility.” ¶ 15.

This appellate court discovered that -

“impossibility is best treated as an affirmative defense to a crime of omission to be raised by a defendant when applicable rather than an element for the State to prove in every criminal omission case.” ¶ 15.

To be fair to the court, it also identified that  the “Illinois Supreme Court has recognized involuntary conduct as a defense rather than treating it as an element of every crime for the State to prove in every case.” See People v. Grant, 71 Ill. 2d 551 (1978).

So, this defendant was obligated to follow the rules of an affirmative defense.

Rules of Affirmative Defense

“Affirmative defense” means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.” 720 ILCS 5/3-2(a).

Once a defendant raises an affirmative defense -

“the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.” 720 ILCS 5/3-2(b).

This is called raising the issue and shifting the burden to the State to disprove the affirmative defense. In this case, Defendant never formally raised his impossibility defense so the State did not have to disprove it.

Specifically, “the defendant did not present any evidence that he did not actually own or possess the firearms listed in the order of protection such that he would be incapable of turning them over to law enforcement.” ¶ 17.

What the Court is Worried About

The objectives met by this rule are -

  • Prevent Defendant From Playing Games
  • Enforce Orders of Protection
  • Create Burden to Raise An Issue on Party With The Facts

The court explained their rationale this way:

“A criminal defendant may not circumvent the provisions of an order of protection by failing to turn over items specified in an order of protection without offering any sort of explanation for his failure to produce the items. Had the defendant offered some evidence that it was not possible for him to comply with the order, he would have raised an impossibility defense and the State would have had to prove beyond a reasonable doubt that it was possible for the defendant to comply with the order. The defendant having failed to do so, we must affirm the conviction.  ¶ 17.