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Dismiss Motion

Dismiss Motion

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Published by crimefile
Drew Peterson
Drew Peterson

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Published by: crimefile on May 30, 2008
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07/10/2013

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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUITWILL COUNTY, ILLINOIS
)People Of The State Of Illinois))Petitioner))vs.)No. 08 CF 1169)Drew Peterson))Respondent))
MOTION TO DISMISS
Now comes the Defendant
Drew Peterson
, by and through his attorneys
Joel A.Brodsky and Reem Odeh of the law firm of Brodsky & Odeh
and
Andrew Abood of theAbood Law Firm
and pursuant to 725 ILCS 5/114-1, and the inherent authority granted under 
People v. Newberry 
, 166 Ill. 2d 310 (1995) moves this Court to enter an order dismissing theabove referenced charge. In support of this motion the Defendant states:1. Defendant is charged with Unlawful Use Of A Weapon under 720 ILCS/24(a)(7)(ii), towit: having possession of a rifle, a Colt Sporter Lightweight AR-15 .223 Caliber Serial#SL025365, with a barrel length less than 16 inches in length on November 1, 2007.2. On November 1, 2008, there was in full force and effect a law enacted by theCongress of the United States of America which states at
18 USCS 926B
: (Exhibit “A”)“§ 926B. Carrying of concealed firearms by qualified law enforcement officers (a)
Notwithstanding any other provision of the law of any State or any political subdivision thereof 
, an
individual who is a qualified law enforcemenofficer 
and who is carrying the identification required by subsection (d) may carrya concealed firearm that has been shipped or transported in interstate or foreigncommerce, subject to subsection (b).(b) This section shall not be construed tosupersede or limit the laws of any State that--(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on theiproperty; or(2) prohibit or restrict the possession of firearms on any State or localgovernment property, installation, building, base, or park.(c) As used in thissection, the term "qualified law enforcement officer" means an employee of agovernmental agency who--(1) is authorized by law to engage in or supervise theprevention, detection, investigation, or prosecution of, or the incarceration of any
 
person for, any violation of law, and has statutory powers of arrest;(2) isauthorized by the agency to carry a firearm;(3) is not the subject of anydisciplinary action by the agency;(4) meets standards, if any, established by theagency which require the employee to regularly qualify in the use of a firearm;(5)is not under the influence of alcohol or another intoxicating or hallucinatory drugor substance; and(6) is not prohibited by Federal law from receiving a firearm.(d)The identification required by this subsection is the photographic identificationissued by the governmental agency for which the individual is employed as a lawenforcement officer.(e) As used in this section, the term "firearm" does notinclude--(1) any machinegun (as defined in section 5845 of the National FirearmsAct [26 USCS § 5845]);(2) any firearm silencer (as defined in section 921 of thistitle [18 USCS § 921]); and(3) any destructive device (as defined in section 921 of this title [18 USCS §921]).”3. This statute, known as the Law Enforcement Officers Safety Act of 2004, exemptsqualified law enforcement officers from the application of state laws regarding the carrying of concealed firearms.4. Defendant Drew Peterson was a “qualified law enforcement officer” within themeaning of 18 USC 926B on November 1, 2007. (Exhibit “B”)5. On November 1, 2007, Defendant Drew Peterson had the photographic identificationissued by the Village Of Bolingbrook Police Department required by 18 USC 926B.6. The firearm identified in the complaint filed in the above referenced case is not anytype excluded by 18 USC 926B(e). It is not a machinegun, does not have a silencer, and is not adestructive device as defined by 18 USC 921.7. The firearm identified in the complaint filed in the above referenced case has beenshipped or transported in interstate commerce since its manufacture at Colt’s factory in Hartford,Connecticut and its seizure by the Illinois State Police in Will County, Illinois on November 2,2007.8. The firearm identified in the complaint filed in the above referenced case has iscapable of being carried in a concealed manner.9. That since the enactment of this statute on July 22, 2004, the United States Congresshas preempted the laws of the individual states and their political subdivisions, on the issue of law enforcement officers accountability to state and local firearms laws.
 
10. The United States Congress has made it legal for qualified law enforcement officersto conceal and carry
any 
weapon, (other than a machine gun, a silencer equipped gun, or destructive devise), despite any state or local law to the contrary, preempting and supercedingall such state and local laws.11. As a direct and necessary corollary of the right of qualified law enforcement officersto carry in a concealed manner any such weapon is the necessary right of the said officers toreveal, possess, transport, and store the said firearms while they are not carrying them.(Obviously Congress did not intend that the qualified law enforcement officer sleep, bath,conceal, and carry his weapons 24 hours a day 7 days a week, nor that he would be limited inownership to only the number of firearms he or she could carry at one time.)12. Therefore, Defendant Drew Peterson was entitled by Federal law to carry, possess,transport and store the subject Colt Sporter Lightweight AR-15 .223 Caliber Serial# SL025365,with a barrel length less than 16 inches, on November 1, 2007, despite any law of the State of Illinois to the contrary.13. Because of this exemption granted by the United States Congress Drew Peterson isimmune from prosecution for Unlawful Use Of A Weapon under 720 ILCS/24(a)(7)(ii) under thelaws of the State of Illinois on November 1, 2007, this Court does not have the jurisdiction toprosecute Drew Peterson for the state offence of Unlawful Use Of A Weapon under 720ILCS/24(a)(7)(ii) under the laws of the State of Illinois, nor does the complaint against him statean offence for which he can be charged and convicted.WHEREFORE, Defendant Drew Peterson prays that this Court enter an ordedismissing the above entitled case and charge against him with prejudice and discharge hisbond without further delay. _____________________________ Joel A. Brodsky

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