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Criminal Nuggets


Sep 4, 2018

What’s so wrong about about a little firearm discharging during the holidays? That’s why we have guns. Am I right? Am I right?

Well, this case begins with a little holiday celebrating. See People v. Moreno, 2015 IL App (3d) 130119 (03/25/2015).

Facts

It is News Year’s Eve! Defendant is at home doing a little celebrating with family and friends.

Defendant owns a gun. However, he is a responsible gun owner. He keeps his gun locked up in a box and only takes it out when it is appropriate to do so.

- Like after he has been drinking, is a little drunk, and has guests with their children over for a party.

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But any how…

Defendant walks out of his house and onto his porch and fires his gun. It was a little .22. And I know it was a little gun from mob movies.

Now, this is important. Defendant shoots the gun into ground; into a grassy dirt area. The gun was not fired while aimed in the air nor in anyone's direction.

Police just happened to be in the area because they were reporting to shots fired. Not Defendant’s shots but other shots. Maybe they were shooting guns earlier maybe not. Who knows?

Defendant is quickly arrested and his guns confiscated. Shell cases are recovered in the dirt right where Defendant had fired his gun.

Defendant was convicted of Reckless Discharge of a Firearm.

Easy Case

Now this in every respect to me seemed like an easy case. Caught, literally with a smoking gun in his hand by the police.

Lets move on to sentencing.

Issue

But Defendant in his appeal was saying: “Hey, not so fast.”

“Hey Man, (sounds like something he would say)

  • I was on my own property
  • I used my little gun
  • The kids stayed inside
  • Everyone was behind me
  • I fired away from people
  • I fired into the ground

There was nothing reckless about this shooting.”

The prosecution was, on the other hand was arguing that this shooting occurred in a residential area.

There is more than enough case law around saying that shots fired in a residential area is per se reckless. Defendant is not denying that he did this. His house was in a residential area.

Even though he fired into the ground it was still reckless because there is a chance of

  • Ricochet off the ground
  • Gravel is often found in the ground
  • Metal pipes are in the ground

Can we move on to sentencing?

What is a Reckless Discharge of a Firearm?

So, what did the appellate court decide?

Essentially, we are asking the question: What is a Reckless Discharge of a Firearm?

The Illinois Criminal Code says that a …

“person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual.” 720 ILCS 5/24-1.5(a).

Recklessness is further described as when a person …

“...consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow... and that disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation...” 720 ILCS 5/4-6.

The “Residential” Case Law

The prosecution is correct in pointing out that there is a plethora of cases out there saying that shots fired in a residential area is reckless.

But that is not exactly the rule. Its not a per se rule unless the courts say it is.

What the Illinois Supreme Court has actually said about the charge of Reckless Discharge comes down to things:

(1) The discharging of a firearm; and

(2) Endangering the bodily safety of an individual

See People v. Collins, 214 Ill. 2d 206 (2005).

Furthermore, the argument that shooting a gun into the air in a residential area is dangerous because we all know that bullets shot into the air must come down. The bullets coming down can hurt someone.

There are indeeds recorded cases in the books of individuals being killed by a bullets fired into the air miles away in a residential area.

Arguement

The reviewing court said that firing into a dirt patch is not the same as firing into the air.

“[Defendant's shots into the ground were not per se reckless.”  ¶ 43. Even the cop testified that “a dirt pile is utilized at the Illinois State Police headquarters to absorb bullets fired at the range and that defendant fired his gun into a grassy dirt area.” ¶  43.

The court went on to hold that nobody was ever in any real or demonstrated danger here.

There was evidence that -

  • Defendant shot blanks and life rounds
  • Shots aimed at the ground
  • The partygoers were behind Defendant

Thus, the risk of danger by potential ricochet was virtually zero. See ¶  44.

Holding

Conviction for reckless discharge is overturned. Conviction for possession of controlled substance the cops found in Defendant's room stands.

There was a dissenting opinion.

The dissent pointed out the police are guns experts and they testified that this was reckless. This should be good enough for a conviction, argued the dissent.