No.

3-08-1025

IN THE ILLINOIS AI)PELLATE COURT THIRD DISTRICT

DEFENDANT - APPELLEE/CROSS - APPELLANT'S REPLY BRIEF AND ARGUMENT ON APPEAL

THE PEOPLE OF THE STATE OF' ILLINOIS) )

Plaintiff- Appellant/Cross- Appellee )

)

~ )

)

DREW PETERSON, )

)

Defendant - Appellee/ Cross- A ppe llant )

Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois

No. 08 CF 1169

The Honorable

Richard C. Schoenstedt, Lower Court Presiding Judge

ORAL ARGUMENT REQUESTED

SUBMITTED BY:

Andrew P. Abood (P43366) THE ABOOD LAW FIRM

246 East Saginaw Street! Suite One East Lansing, Michigan 4882J

SUBMITTED BY:

Joel Brodsky (40616) BRODSKY & ODEll

8 South Michigan Avenue, Suite J200 Chicago! Illinois 6060J

No. 3-08-1025

IN THE ILLINOIS APPELLATE COURT THIRD DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS) )

Plaintiff- A ppellant/Cross-Appellee )

)

v. ) )

DREW PETERSON, )

)

Defendant - Appellee/Cross- Appellant )

Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois

No. 08 CF 1169

The Honorable

Richard C. Schocnstcdt, Lower Court Presiding Judge

POINTS AND AUTHORITIES

I. THE TRIAL COURT'S ORDER OF DISMISSAL WITH PREJUDICE IS A FINAL ORDER BECAUSE IT CONCLUSIVELY ADJUDICATES THE RIGHTS OF THE PARTIES IN THIS CASE; THEREFORE, THE CROSS-APPEAL ISSUES ARE COGNIZABLE.

II. THE STANDARD FOR OBTAINING DISCOVERY FROM THE STATE INTO SELECTIVE PROSECUTION IS "COLORABLE CLAIM/, NOT THE U REASON ABLNESS" PLEADING STANDARD THE ST A TE ASSERTS.

Ill. THE TRIAL COURT SHOULD ITAVE DISMISSED THIS CASE BECAUSE, AS A QUALIFIED LAW ENFORCEMENT OFFICER AUTHORIZED TO CARRY, AND THEREFORE POSSESS, AN "ILLEGAL" FIREARM, DEFENDANTAPPELLEE/CROSS-APPELLANT IS UNDER LEOSA - REGARDLESS OF CONTRARY STATE LAW.

IV. THE TRIAL COURT SHOULD HAVE ORDERED A VENUE CHANGE UPON DEFEND ANT-APPELLEE/ CROSS- APPELLANT'S MOTION BECA USE REASONABLE GROUNDS TO BELIEVE PREJUDICE AND AN INABILITY TO OBTAIN A FAIR TRIAL EXIST UNDER STATE CONSTITUTINAL LAW.

II

TABLE OF AUTHORITIES

IlL Const. art. 6 sec. 6 1

18 U.S.C. 926B 9, 11, 12

720 ILCS 5/25-1 (a)(7) 6, 7, 9, 13

725 TLCS 5/114-1(a) 14, 15

725 ILCS 5/111-3(a) 15

Supreme Court Rule 604 1-3

Crosby v. Nat'l For. Trade Council, 530 U.S. 363;

120 S. ct. 2288 (2000) 13

Gibbons v. Ogden, 22 u.s. 1; 6 L. Ed. 23;

1824 U.S. LEXIS 370 (1824) 13

Hines v. Davidowitz, 312 us 52; 61 S. Ct. 399 (1941 ) 13

Wayte v. United States, 470 U.S. 598, 105 S. ct. 1524 (1985)

(Marshall, J., dissenting) .4, 5

United States v. Baker, 78 F.3d 1241 (7th Cir. 1996) 11

United States v. Benson, 941 F.2d 598 (7th Cir. 1991) 6, 7

United States v. Choiniere, 517 F.3d 967 (2008) 11

United States v. Crowell, 559 F.2d 1084 (7th CiI. 1976) 14

United States v. Falk, 479 F.2d 616 (7th CiI. 1973) 8

United States v. James, 464 F.3d 699 (2006) 11

United States v. Mitchell, 778 F.2d 1271 (7th CiI. 1985) 4

United States v. Kerley, 787 F.2d 1147 (7th Cir. 1986) 4

People ex reI. Scott v. Silverstein, 87 IlL2d 167;

429 N.E.3d 483 (1981) 2

People v. Sheehan, 168 Il1.2d 298 (1995) -] 5

People v. Creek, 94 m.2d 526; 447 N.E.3d 330 (1983) 2,4

11l

United States v. Heidecke, 900 F.2d 1155 (7th Cir. 1990) 41 5

Dept. of Pub. Aid ex reI. ChipeIli v. Viviano, 195 Ill. App. 3d;

553 N.E.2d 97 (5th Dist. 1990) 1

People v. Kail, 150 Ill.App.3d 75; 501 N.E.2d 979 (1986) 6-7

People v. Sparks, 221 Ill.App.3d 546 (1991) 15

Santana v. Zipperstein, 142 IlL App. 3d 386;

491 N.E.2d 1231 (1st Dist. 1986) 1

Schoen v. Catepi11ar Tractor Co., 77 Ill. App. 2d 315;

222 N.E.2d 332 (3fd Dist. 1996) 2

U ni ted Sta tes v. Berrigan, 482 F.ld 1 71 (3d Cir. 1973) 4

United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974) .4

United States v. Canunisano, 546 F.2d 238 (8th Cir. 1976) .4

Untied States v. Catlett, 584 F.2d 864 (8th Cir. 1978) 5

United States v. Hintzman, 806 F.2d 840 (8th Cir. 1986) 5

IV

United States v. Kahl, 583 F.2d 1351 (5th Cir. 1978) 4

United States v. Michel, 446 F.3d 1122 (lOth Cir. 2006) 14

United States v. Murdock, 548 F.2d 599 (5th Cir. 1977) 4

H.R. Rep. No. 108-560 (2003) 12

108th Congress, 2nd Session, House Report 108-560 12-13

I.

THE TRIAL COURT'S ORDER OF DISMISSAL WITH PREJUDICE IS A FINAL ORDER BECAUSE IT CONCLUSIVELY ADJUDICATES THE RIGHTS OF THE PARTIES IN THIS CASE; THEREFORE, THE CROSS-APPEAL ISSUES ARE COGNIZABLE.

At the outset as jurisdiction should always be discussed first, the Court

should be cognizant to the fact that this appeal follows a circuit court order to

dismiss a criminal case with prejudice. (c. 572) That is, as opposed to an interlocutory order, the order appealed from terminated the case. The State did

not appeal an interlocutory order under Rule 604(a). The State's own Notice of Appeal states that they are appealing the dismissal of the case, (R. C573-575) but upon the State's request for the case to be dismissed after Defendant brought a

1

Motion to Compel discovery. In other words, the order is a final order.

Final orders are appealable by right. Ill. Const, art. 6 sec. 6. Although the

jurisdiction of the Court of Appeals over interlocutory orders, and what

constitutes an appealable interlocutory order, are left to the Supreme Court's

rulemaking powers, jurisdiction over final orders, and what constitutes a

"final order," are matters of constitutional and case law. bL Sec also Santana v.

Zipperstein, 142 Ill. App. 3d 386; 491 N.E.2d 1231 (lSl Dist 1986). The courts have

defined a "final order" as "one which terminates and disposes of the parties'

rights regarding issues in a suit ... so that if affirmed the trial court has only to

proceed with execution of the judgment," Santa~ 142 Ill. App. 3d at 388, "a determination by the court on the issues presented by the pleadings which

ascertains and fixes absolutely the rights of the parties in the lawsuit,"

Department of Pub. Aid ex reI. Chipelli v. Viviano, 195 Ill. App. 3d; 553 N.E. 2d

97 (5th Dist. 1990), and "one which terminates the litigation between the parties

on the merits, so that if it is affirmed, the trial court has only to proceed with its

execution," Schoen v. Catepillar Tractor Co., 77 Ill. App. 2d 315; 222 N.E.2d 332

(3rd Dist. 1996). Moreover, interlocutory orders not reviewable upon interlocutory appeal are reviewable upon appeal of the case's final order.

See, e.g., People ex rd. Scott v. Silverstein, 87 Ill. 2d. 167; 429 N.E.3d 483 (1981).

It is axiomatic that an order dismissing a case with prejudice terminates

the litigation, fixes the rights between the parties, and serves as an adjudication

on the merits in the case. People v. Creek, 94 Ill. 2d 526; 447 N.E.3d 330 (1983).

That the case has not been submitted to the trier of fact is not dispositive. For example, in Creek, the Illinois Supreme Court held that a trial court's order

dismissing a criminal reckless homicide case "with prejudice" upon the State's

motion, having dismissed the information, barred the State from prosecuting the

same defendant for the same claim or set of facts later, that is because:

The term "with prejudice" has a well-recognized legal import; it is the converse of the term "without prejudice" and is as conclusive of the rights of the parties as if the suit had been prosecuted to a final prosecution adverse to the complainant.

2

Id. (citations omitted). That is, the order is a final order.

The State urges this Court to treat the order on appeal as an interlocutory

order under Rule 604(a), thereby limiting the Defendant's right to cross-appeal.

That is not what happened in this case. Like Creek, in this case the trial court

dismissed the case "with prejudice" upon the State's request. The only thing left

for the trial court to do if the State is unsuccessful on appeal is execute its order,

that is, not allow a subsequent prosecution on the same claim or set of facts.

The State requested the order from the bench on November 20, 2008, the

trial court ruled that the State should produce documents. The trial court

concluded there was a colorable claim for vindictive prosecution. (R. 229-31)

Following the bench ruling on the record! the parties proceeded into chambers to

argue other motions. In chambers, the State asserted that it would be "better off"

if the trial court dismissed the charges to allow the State to rightaway appeal the case. Not only did State Attorney John O'Connor refuse to comply, he confirmed

with his assistant attorneys, in open court, that the entire State's Attorney

department refused to comply (R. 270-72) The State reiterated its refusal, again in

open court:

THE COURT: .... Well, I have ordered you to disclose a very narrow and limited number of documents that I defined already on the record. I'll say it again. Any and all documents or reports used or relied upon by the State in determining that this charge will be brought against this defendant. The State must understand the risk that if I do what you are asking and dismiss these charges, that if the appellate agrees -these charges are dismissed.

MR. CONNOR: The State understands that! your IIonor.

THE COURT: .... This is an unusual circumstance. Mr. Connor has always presented himself to this Court in a respectful, honorable manner, with a great deal of integrity .... However, the State has given me little option here.

(R. 271-72) As the trial court aptly stated! the State left the trial court "with little

option here." (R. 272) To say, "Dismiss this case" and then do an about-face and

say the dismissal nnr/r prejudice is an interlocutory order, a Rule 604 order that the

Therefore! even if the issues on cross-appeal were not appealable on an

defense requested, is illogical and without merit. The State's citations to case law

concerning interlocutory orders on appeal are equally illogical and without

merit. This case concerns an appeal of a final order of dismissal with prejudice.

interlocutory review! they are reviewable in this appeal because this appeal 3

concerns a final order -- a dismissal with prejudice fI as conclusive of the rights of

the parties as if the suit had been prosecuted to a final prosecution adverse to the

complainant." Creek, 94 Ill. 2d at 531.

II.

THE STANDARD FOR OBTAINING DISCOVERY

FROM THE

STATE

INTO

SELECTIVE

PROSECUTION IS "COLORABLE CLAIM/I NOT THE JlREASONABLNESS" PLEADING STANDARD THE STATE ASSERTS.

It is the State's contention that the lower court's refusal to order discovery on Defendant's selective prosecution claim was proper because Defendant did not" allege facts sufficient to raise a reasonable doubt" upon the issue of selective prosecution to overcome a "weighty presumption of legality." (Resp. Br. at 1.4) Simply put, Defendant does not have to. In United States v. Heidecke, 900 F.2d 1155, 1158-59; 1990 U.S. App. LEX IS 6857, the Court articulated, "This court and other courts have firmly settled upon a rule that requires the defendant to shoto a colorable basis for the claim." Emphasis Added. See Wayte v. United States, 470 U.S. 598, 623-24, 84 L. Ed. 2d 547, 105 S. ct. 1524 (1.985) (Marshalt J., dissenting); United States v. Kerley, 787 1~.2d 1147, 1150 (7th Cir. 1986); United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir. 1985); United States v. KahIl 583 F.2d 1351.1 1355 (5th Cir. 1978); United States v. Murdock, 548 F.2d 599, 600 (5th Cir. 1977); United States v. Carnmisano, 546 F.2d 238, 24'1 (8th Cir. 1976); United States v. Berrios, 501. F.2d 1207, 1211-12 (2d Cir. 1.974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973).

4

In misstating the standard upon which a court is to issue an order

compelling discovery for a claim of selective prosecution, the State placed upon

the Defendant the burden required to obtain a hearing on the on the issue, which

IS a heightened burden. With regard to the colorable basis standard, the Heidecke Court noted lithe relatively low burden recognizes that 'most of the

relevant proof in selective prosecution cases will normally be in the

Government's hands." 900 F.2d at 1158 citing Wayte, 470 U.S. 598,624; 105 S. Ct. 1524 (1985) (Marshall Dissenting). In fact, the argument set forth by the State is

specifically declined in Hcidecke,

Some courts have suggested that defendants have to show more than a merely colorable claim before compelling discovery on a selective prosecution charge. See United States v. Hintzman, 806 F.2d 840, 846 (8th Cir. ~1986) (defendant must establish a prima facie case); United States v. Greenwood, 796 F.2d 49, 52 (41h Cir. 1986) (defendant's allegations must raise a legitimate issue of improper government conduct). These cases, however, appear to arise more from misapplication of precedent than from reasoned analysis. See, e.g., Hintzman, 806 F.2d at 846 (drawing upon language in United States o. Catlett, 584 F.2d 864 (8th Cir. 1978) to require the defendant to establish a prima facie case). Because these heightened standards fail to account for the government's control over the facts relevant to a claim of selective prosecution, we decline to adopt them.

5

Heideck, 900 F.2d at l1S8-59. Although the Heidecke Court's analysis focused

upon the standard required to compel discovery in a vindictive prosecution case,

as opposed to selective prosecution at issue here, the Court looked to the

established standard used in selective prosecution to extend that into the

province of vindictive prosecution for its ultimate conclusion. ld. The Court

stated, "The same considerations that support a 'colorable basis' standard for

discovery in a claim of selective prosecution also support use of this standard in

a claim of vindictive prosecution. Proof of vindictive prosecution, like proof of

selective prosecution, is likely to involve a deluge of paper, probing the prosecutors' motives." Id, Here the Court recognizes the importance of allowing

Defendant discovery at such an initial stage in the proceeding, and thus the

rationale for requiring only a colorable basis burden be met.

At this stage, Defendant has not yet requested a hearing on the issue, but

seeks discovery in order to determine the breadth of its selective prosecution

claim.

[D]efenses of selective prosecution ... require the defendant to probe the mental state of the prosecutors. Requiring the defendant to prove more than a colorable claim before compelling discovery might prematurely stifle a legitimate defense of vindictive prosecution for lack of evidence.

Id. Thus, it is clear that although the State would prefer Defendant be required to

allege facts sufficient to raise a reasonable doubt on the issue of selective

prosecution or Defendant be required to plead a prima facie case thereof, especially considering the State has all the discovery necessary to do so, the Court need not reach those issues because the Defendant simply does not have

to.

But what Defendant does have to do, and has done, is present a colorable

basis for a claim of selective prosecution. That is, Defendant must present "some

evidence tending to show the essential elements of the claim." People v. Benson,

941 F.2d 598, 611 (7th Cir. 1991). What is interesting, however, is the People's

attempt to undermine Defendant's position by stating that lithe only thing

defendant argues is that there is no conceivable set of facts to justify the State's

decision to enforce 720 lLCS 5/25-1(a)(7) only against Mr. Peterson." (Resp. Br. at

14) This is almost the exact same language the Court of Appeals used in People 6

v. Kail to find the police department's enforcement of a law only against suspected prostitutes "render[ed] the classification arbitrary or irrational." 150

Ill.App.3d 75, 78; 501 N.E.2d 979 (1986). In addition, the State argues that unlike

in Kail, other violators of section 5/24~1(a)(7) have been prosecuted. However, none of the cases cited by the State involve a police officer, which only further buttresses Defendant's argument. The State's argument is merely an inverted

analysis of that which the Court undertook in Kail. The Court in Kail held that

selectively enforcing law against only prostitutes rendered that classification

arbitrary or irrational. Id.

In fact, Defendant presented more than that argument in this case. Here, there is a group, police officers, who have been uniformly excluded, as evidenced

by the absence of case law, from prosecution under section 5/24~1(a)(7). To

demonstrate, as the State did in their Response, that non police officers have been

so charged makes clear that as a group police officers have been excluded. Thus,

to bring this charge against Defendant, only after choosing to exercise his

constitutional rights clearly establishes "some evidence tending to show the

essential elements of the claim." Benson, 94'1 F.2d at 611. Defendant has also

presented to this Court the timelinc of events leading up to Defendant being

charged, a tirneline so crucial to the to the issue of selective prosecution that it be

di vulged again in detail,

• 11/30/07: Defendant files Motion for return of property

• 12/11/07: State files Response objecting to return of property.

• 12/12/07: First Court appearance on Motion for return of property.

• 12/17/07: Second Court appearance on Motion; State allowed to give judge ex parte evidence; Court entered Order returning Defendant's two Ipods and 23 CDs.

7

• 12/25/08: Third Court appearance on Motion.

• 2/1/08: Fourth Court appearance on Motion.

• 2/27/08: Fifth Court appearance on Motion. Judge rules and orders return of Defendant's property, specifically his weapons. Defendant's FOlD card is revoked that same day.

• 3/17/08: Sixth Court appearance. Defendant orally requests that the weapons be turned over to Stephen Peterson.

• 3/25/08: Government files Motion for Leave to present additional ex parte evidence to the Court.

• 4/17/08: Seventh Court appearance, Stephen Peterson appears in Court, Court requires formal Motion regarding Defendant's weapons.

• 5/13/08: Eighth Court appearance, Defendant files formal Motion for eight guns to be turned over to Stephen Peterson (Colt AR-15 not among them). Judge strongly indicates favorable ruling, but continues case to 5/22/08 for formal ruling on the Motion.

• 5/21/08: The day before the formal ruling set on 5/13/08, the Defendant is arrested on gun charge. Chuck Pelkie of Will County State's Attorney's Office states that "We've known it was an illegal weapon shortly after the gun was taken into possession by the Illinois State Police. Initially, the determination was made not to file a charge in that case ... but now we're faced with the potential that an illegal weapon may be put back onto the streets and we can't allow that to happen."

In United States v. Falk, 479 F.2d 616 (7th Cir. 1973) a similar tirncline was set

forth. In essence, the Court was concerned with the timing of bringing the

indictment, which was only after the defendant exercised his First Amendment

rights. Id. at 622. In Falk, the Government waited three years from the time it

received notice of the defendant's violation to bring the indictment. Id. In this

case, the Government had notice of the Defendant's alleged violation at least

since September of 2001, because Defendant, as a member of the REACT team,

8

has documented use and qualification on the AR-15 as part of the Bolingbrook

Police Department. (c. 452-58) It was only after Defendant asserted his 4th Amendment rights that this charge was brought. As the Court found in Falk, in

remanding the case for an evidentiary hearing, such curious timing "adds

forceful weight to defendant's contention that the prosecution in this case was

for the purpose of punishing Falk for his exercise of First Amendment rights." rd. What is most important for the Court to note about Falk, however, is that the

correct standard was reasonable doubt about the prosecutor's purpose because it

was procedurally after the discovery phase.

Thus, Defendant need only meet the lower colorable basis burden, which based on the aforementioned law and argument, Defendant has clearly done.

III.

THE TRIAL COURT SHOULD HAVE DISMISSED THIS CASE BECAUSE, AS A QUALIFIED LAW ENFORCEMENT OFFICER AUTHORIZED TO CARRY, AND THEREFORE POSSESS, AN

"ILLEGAL" FIREARM, DEFENDANT-

APPELLEF/CROSS-APPELLANT IS UNDER

LEOSA - REGARDLESS OF CONTRARY STATE LAW.

As a duly authorized law enforcement officer, complying with the requirements under the Federal exemption, 18 USc. 9268, Defendant was

authorized to carry, and therefore possess, his AR-15, and is thus immune from

prosecution under 720 ILCS 5/24-] (a)(7)(ii). What is interesting about the State's

argument, beside that it wholly bypassed Defendant's reasoned argument based

on law, legislative intent and rules of statutory construction with a simple

"defendant never really explains." (Resp. Br. at 16) is its' argument that "[t]he

9

exemption in the federal statute is narrowly tailored to embody very specific conduct, concealment." (Resp. Br. at 16) This is without a doubt what the immunity exemption permits. But what the State fails to realize, or perhaps does not want to admit, is that even a single word, describing one type of conduct, can encompass a variety of actions, thereby giving it wider parameters and a broad application, as for example, in this case, the ability to carry a concealed weapon necessarily includes the ability to possess it.

Clearly, since Congress granted qualified law enforcement officers the right and immunity to carry privately owned and otherwise illegal (by state law) firearms in a concealed manner, it must, as a logical and necessary corollary to this right, have intended that the officer have the right to store and possess the same types of weapons in their homes, transport the weapon':;, and carry the weapons in the open when necessary. To say otherwise is to say that the officer enjoys the immunity while he carries the otherwise illegal firearm in a concealed fashion, but as soon as removes the weapon to go to sleep he loses his immunity and is subject to arrest. This would be an absurd result which could not have been intended by Congress.

The People argue "that a law enforcement officer can carry a concealed weapon does not mean that the law enforcement officer is given carte blanche to carry or possess what is an illegal weapon as defined under state law." (Resp. Br. at 17) However, the People provide no legal analysis in support of its argument. The People proffer only to support its position by stating that it would be unlikely that the legislature would authorize police to violate the laws they are sworn to uphold. Common sense disposes of this argument because this happens all the time. Exceptions are often made, as contemplated by LE(1SA, for a law

10

enforcement officer in the performance of his official duties. Officers routinely speed when responding to emergencies or apprehending suspects; officers are permitted to break in and enter people's homes; officers are permitted to engage

in undercover operations whereby they possess narcotics, engage in conspiracy,

accomplice liability, and aid and abet criminal activity. The federal exemption in

this case is no different, but in fact, deemed so important that Congress

11

promulgated the immunity provision to state

Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b). 18 U.s.c. 926B.

What is particularly important for the Court to keep in mind IS that the

government can point to no facts wherein Defendant possessed the weapon

outside of the performance of his official duties as a Bolingbrook Police officer and a member of the REACT team for the department, which is important because under the charged statute, the exemption is specifically for law

enforcement officers.

But even if it could, the statute clearly permits and Congress clearly has

the authority to grant such carte blanch legalization of concealed carry. The

Seventh Circuit offers support for the argument that the People's position is

simply without merit. In United Slates 'U. Baker,78 F.3d 124-1 (7th Cir. 1996), United

States o. James, 464 F.3d 699 (7th Cir. 2006), and United States '(7. Choiniere, 517 F.3d

967 (7th Cir. 2008), the Seventh Circuit concluded that as long as a firearm is

within a Defendant's immediate reach in a motor vehicle, it would be sufficient

to satisfy the element of "carrying."

Black's Law Dictionary, at 288 (6th ed), defines the term" conceal" as "hide,

secrete, or to withhold from the knowledge of others," as well as "[t]o cover or keep from sight." Using these definitions, Defendant Drew Peterson could

"carry" and "conceal" the Colt AR-15 firearm by placing it under a blanket in a

passenger seat of his vehicle and it would satisfy the "carrying concealed" contention that the People raise; Defendant could put it in a delivery box; in a

guitar case, or under a fur coat, and he would be "carry[ing] a concealed

firearm," within the meaning of LEOSA.

Although the Federal exemption nowhere provides, the People would

have this Court, pursuant to Illinois State law, distinguish between firearms that

are legal and firearms that are illegal in application of the exemption. However,

one of the purposes for which LHOSA was promulgated was to create a national

standard, to do away with the complexities of dealing with the laws of 50

different states. I--I.R. Rep. No. 108-560 at 3-4 (2003). Further, any doubt that

12

Congress intended the statute in question, LEOSA, 18 USC 926T3, to apply to

exactly the type of weapon Drew Peterson is charged with illegally possessing is clear from the legislative history of LEOSA. Defendant Drew Peterson is charged

with illegally possessing an AR-15 assault weapon with a barrel less than 16

inches in length, in violation of Illinois law. Congress specifically intended LEOSA to cover military style assault weapons, and grant police officers

immunity from state law when they carried such weapons.

When LEOSA was being debated before the House Judiciary Committee

- .

in June 2004, (108111 Congress, 21ld Session, House Report 108-560) Congressman Scott

offered an amendment to the bill to add" any semiautomatic assault weapon" to the categories of weapons excluded from LEOSA, (i.e. machine guns, silencer equipped guns, and explosives). (House Report 108-560, pgs 63-67). In offering the amendment Congressman Scott stated, "we just want to make sure that this bill does not allow them to carry military assault weapons concealed in violation of local laws and regulations." (ld. at 64). This amendment was defeated with 13 ayes and 19 noes. Commenting on the defeat of his proposed amendment, Congressman Scott stated "Mr. Chairman, insofar as we have just, by the defeat of the last amendment allowed these people who may not even be able to carry firearms on duty to be able to carry military assault weapolL.., concealed, I would hope that we would have national standards since this bill has national implications." (ld. at 70).

Congressman Scott, one of the Congressmen involved in the drafting of LEOSA, acknowledged that it grants law enforcement officers immunity from state law in regard to military style assault rifles, such as the AR-15 at issue here. How, therefore, can there be any argument that LEOSA does not apply to the instant case? There simply cannot be any such argument.

It was clearly Congress's intention to preempt State law, as it expressly so provided, which as applied to this case, preempts 720 ILCS 5/24-1(a)(7)(ii). "A fundamental principle of the Constitution is that Congress has the power to preempt state law." Gibbons v. Ogden, 22 U.S. 1, 9 (1824). In Crosby v. Nat'} Foreign Trade Council, 530 U.s. 363,373 (2000), the United States Supreme Court stated that preemption will be found where "under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

13

(citing) Hines v. Davidowitz, 312 u.s. 52, 66-67 (1941). Any argument set forth by the People that Congress would not intend to make legal conduct that would otherwise be illegal under Illinois State law is nonsensical because that is exactly what Congress's power of preemption does.

This Court simply is not in a position to second guess the discretion of Congress in protecting public safety and public officers. Although the risks of police officers have always been significant, those risks increased significantly after September 11, 2001. When Congress passed LEOSA, in 2004, it intended that all Police officers, in uniform, out of uniform, working, not working, and retired, be the first line of defense against organized crime and terrorists attacks. Police officers face the risk of individuals that have little regard for human life, and deranged people who have a disdain and distrust for police officers. For this reason, Congress does and should have the authority to grant carte blanche immunity to officers who wish to carry any firearm that the officer feels is necessary to combat these risks.

The People's argument in reference to United States v. Michel, 446 F.3d 1122 (10th Cir. 2006) and United States v. Crowell, 559 F.2d 1084 (7th Cit. 1976) is confusing at best. These two cases consolidated stand only for the proposition that non police officers have been convicted of carrying a similar weapon to that which is at issue in this case. This is not something that Defendant disputes. The only way to reconcile the State's argument with regard to these two cases to the present case is to pretend the Federal exemption simply does not exist. The State's continual reference to inapplicable case law demonstrates only that there is no support for an argument that Defendant does not fall within the Federal exemption.

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The State's argument that Defendant's Motion to dismiss was procedurally defective is without merit. The State purports to assume, apparently without reading Defendant's Motion to Dismiss, that the motion was based upon the People's failure to state an offense pursuant to 725 ILCS 5/114- 1(a)(8). This is incorrect as nowhere in his motion docs Defendant state that his motion is based on Section 5/114-1(a)(8). Defendant's motion to dismiss is based on his claim of immunity under 725 TLCS 5/114(a)(3). Defendant's motion clearly set forth analysis demonstrating that Defendant was immune from prosecution under the Federal exemption pursuant to 5/114-1 (a)(3).

Regardless, the People's argument regarding the standard applied to a pre trial motion to dismiss is not even supported by the case law it cites, as neither People v. Sheehan, "168 111.2d 298 (1995) nor People v. Sparks, 22"1 Ill.App.3d 546 (1991) deal with a Motion to Dismiss under any subsection of 5/"1"14-"1(a), but instead a Motion to Dismiss pursuant to 5/111-3(a), which deals solely with form, not substance, of the charging instrument. Thus, the argument is inapplicable, and merely an attempt to provide a smoke and mirror analysis of the actual issues at hand. The requirements, as set forth pursuant to 5/114-1, have been fully complied with by the Defendant, thus Defendant's Motion to Dismiss was procedurally proper.

Thus, based on the law and argument set forth above the trial court should have dismissed this case because, as a qualified law enforcement officer authorized to carry, and therefore possess, an 'illegal' firearm, Defendant is immune from prosecution under L,EC)5A, regardless of contrary state law.

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IV.

THE TRIAL COURT SHOULD HAVE ORDERED A VENUE CHANGE UPON DEFENDANTAPPELLEFjCROSS-APPELLANT'S MOTION BECAUSE REASONABLE GROUNDS TO BELIEVE PREJUDICE AND AN INABILITY TO OBTAIN A FAIR TRIAL EXIST UNDER STATE CONSTITUTINAL LAW.

Defendant filed a Motion for Pre-Trial Questionnaires, In Chamber Voir

Dire, and Additional Peremptory Challenges dated August 22, 2008. In

Defendant's Motion, Defendant sets forth the standard for when a change of

venue is appropriate. Paragraph six provides" A Motion for a Change in Venue

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is governed in Illinois by 725 lLCS 5/114-6, which provides "[a] defendant may

move the court for a change of place of trial on the ground that there exists in the

county in which the charge is pending such prejudice against him on the part of

the inhabitants that he cannot receive a fair trial in such county."

The Motion continues with regard to pre-trial questionnaires, in chamber

voir dire, and additional peremptory challenges "It is well established that each

of these tools should be exhausted before a court should change venue to another

county; however, when these tools have been exhausted and it still appears that a

defendant is unable to receive a fair trial, a change of venue is appropriate." In

reading the Motion as a whole, it is clear that, substantively, the Motion argues

for a change of venue in the event that Defendant exhausts the administrative

remedies and those remedies are insufficient to guarantee Defendant's right to a fair trial.

Given that the States only objection to the issue is premised on whether the Defendant filed the Motion, one could and should assume that State actually agrees with the merits of the Defendant's position. Since the State is actually attempting to hold the Defendant to a standard for failing to object, the State should be held to the same standard. As here, since the State has raised no other objection than whether the Motion was filed, it would be appropriate for the Court to conclude that the State has no other objections.

CONCLUSION

For the reasons set forth above, the Court should affirm the trial court's November 22, 2008 order dismissing this case because the State refused to comply with the trial court's discovery order. To the extent this Court will reverse the trial court, the Court should also reverse the trial court's pretria 1 decisions not to compel discovery from the State to support a selective prosecution hearing, not to dismiss the case under LEl1SA, and not to order a change venue. The Court should not award the State any expenses for oral argument, as requested, because the State initiated this appeal.

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Respectfully submitted,

BRODSKY & ODEH

A ttomeus for Defendant

Dated: October J£ 2009

A. Brodsky /' ,/

Brodsky & Od~h (~,,//"

8 S. Michigan Ave., Suite 3200 Chicago II. 60603

(312) 701-3000

Respectfully submitted,

Dated: October ~ 2009

FIRM

ndrew P. Abood (P43366)

246 East Saginaw Street, Suite 1 East Lansing, Michigan 48823 (517) 332-5900 / (517) 332-0070

CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the cover, statement of points and authorities, the certificate of compliance, and any matters to be

submitted herewith, is 17 pages.

Andrew P. Abood (P43366) date

TilE ABOOD LAW FIRM

246 East Saginaw Street Suite One East Lansing, Michigan 48823

For:

Joel Brodsky BRODSKY & ODEH

8 South Michigan Avenue, Suite 3200 Chicago, lllinois 60603

Andrew P. Abood (P43366) TIlE ABOOD LAW FIRM

246 East Saginaw Street, Suite One East Lansing, Michigan 48823

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