2023 IL App (1st) 221266-U
No. 1-22-1266
Second Division
December 12, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 22 CR 1403
v. )
)
DEVIN KUYKENDOLL, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: Statute criminalizing the public possession of a firearm without a Firearm Owners
Identification Card or Concealed Carry License is not facially unconstitutional.
Defendant’s conviction for the aggravated unlawful use of a firearm is affirmed.
¶2 Following a bench trial, defendant Devin Kuykendoll was convicted of the aggravated
unlawful use of a weapon (AUUW) and sentenced to one year in prison. The charges were based
on defendant’s possession of a firearm in public without having been issued a valid Firearm
No. 1-22-1266
Owners Identification (FOID) card or Concealed Carry License (CCL). Defendant now appeals,
arguing that the FOID card and CCL requirements are facially unconstitutional in light of the
United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142
S. Ct. 2111 (2022). We affirm for the following reasons.
¶3 I. BACKGROUND
¶4 On the night of February 6, 2022, Chicago police officers Ryan Corrigan and Christine
Golden were patrolling in their vehicle near Ashland Avenue in Chicago. Officer Golden was the
driver and Officer Corrigan was the passenger. Just before midnight, they observed defendant,
who was driving a sedan, commit a traffic violation. The officers activated their emergency
equipment, but defendant did not immediately pull over. The officers quickly forced him to stop
by overtaking his sedan along the driver’s side and pulling in front of it.
¶5 Officer Corrigan exited his vehicle and approached the sedan. Defendant was sitting in the
driver’s seat with an extended firearm magazine protruding from his left pocket. Officer Corrigan
reached into defendant’s sedan and grabbed the magazine, at which point he discovered that it was
attached to a handgun. Officer Corrigan placed the gun on the roof of defendant’s sedan, but at
some point it slid off the roof and onto the ground. Officer Corrigan then ordered defendant out of
the sedan and, after several minutes, defendant complied and was arrested.
¶6 Officer Golden testified that after curbing defendant’s sedan, she exited her vehicle and
walked around the front to reach where Officer Corrigan was already engaged with defendant. As
Officer Golden approached, she observed Officer Corrigan pull an “object” out of defendant’s
sedan and place it on the roof, but she was unable to see what the object was. However, Officer
Golden later saw a firearm on the ground “directly below” where Officer Corrigan had placed the
object on the roof. The firearm was recovered after defendant was taken into custody.
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¶7 The parties stipulated that defendant had not been issued a valid FOID card or CCL at the
time of the traffic stop.
¶8 Based on this evidence, the trial court found defendant guilty of AUUW. Defendant filed
a posttrial motion attacking the sufficiency of the evidence, which the court denied. The court later
sentenced defendant to one year in prison.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues that his conviction should be overturned because the portions
of the AUUW statute under which he was convicted are facially unconstitutional. He contends that
requiring an otherwise law-abiding citizen to first obtain a FOID card or CCL before possessing a
firearm in public impermissibly restricts one’s right to keep and bear arms under the second
amendment to the United States Constitution. More specifically, defendant maintains that the
AUUW statute fails the “new two-step test” announced in Bruen, where the United States Supreme
Court held that restrictions on the right to bear arms must be analyzed through the lens of our
nation’s historical regulation of firearms. Bruen, 142 S. Ct. at 2126.
¶ 12 A defendant may challenge the facial constitutionality of a statute at any time, even, as
here, for the first time on appeal. People v. Thompson, 2015 IL 118151, ¶ 32. A facially
unconstitutional statute is void ab initio, meaning that “the statute was constitutionally infirm from
the moment of its enactment and, therefore, unenforceable.” Id. However, a facial challenge is “the
most difficult challenge to mount” because a statute is facially unconstitutional only if there are
no possible circumstances in which the statute could be validly applied. People v. Davis, 2014 IL
115595, ¶ 25. Moreover, all statutes are strongly presumed to be constitutional, and the challenging
party bears the burden of rebutting that presumption by demonstrating a clear constitutional
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violation. People v. Woodrum, 223 Ill. 2d 286, 307-08 (2006). The constitutionality of a statute is
reviewed de novo. People v. Aguilar, 2013 IL 112116, ¶ 15.
¶ 13 As relevant here, the AUUW statute provides that:
“(a) A person commits the offense of aggravated unlawful use of a weapon when he or she
knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her
person except when on his or her land or in his or her abode, legal dwelling, or fixed place
of business, or on the land or in the legal dwelling of another person as an invitee with that
person’s permission, any pistol, revolver, stun gun or taser or other firearm; ***
*** and
(3) One of the following factors is present:
***
(A-5) the pistol, revolver, or handgun possessed was uncased, loaded, and immediately
accessible at the time of the offense and the person possessing the pistol, revolver, or
handgun has not been issued a currently valid license under the Firearm Concealed Carry
Act; or
***
(C) the person possessing the firearm has not been issued a currently valid Firearm Owner’s
Identification Card[.]” 720 ILCS 5/24-1.6(a)(1) (West 2020).
¶ 14 The process for obtaining a FOID card is laid out in the FOID Card Act, which the General
Assembly enacted “to provide a system of identifying persons who are not qualified to acquire or
possess firearms, firearm ammunition, stun guns, and tasers within the State of Illinois[.]” 430
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ILCS 65/1 (West 2020). To apply for a FOID card, a person must: (1) be at least 21 years of age,
(2) not be addicted to narcotics, (3) not have been convicted of a felony, and (4) not have been a
patient in a mental health facility within the past 5 years. Id. § 4(a)(2). Applicants must also submit
a photograph and pay a fee of $10 plus a minimal electronic payment processing surcharge. Id. §§
4(a)(2)(a-20), 5(a). Finally, upon request, an applicant must also consent to the Illinois State Police
obtaining “limited mental health institution admission information” from jurisdictions outside
Illinois “for the sole purpose of determining whether the applicant is or was a patient in a mental
health institution[.]” Id. § 4(a)(3). Importantly, an applicant who meets these requirements and
pays the fee “shall be entitled to a [FOID] Card” and the Illinois State Police shall issue the card
within 30 days of receiving the application. (Emphasis added.). Id. § 5(a).
¶ 15 Similarly, the Firearm Concealed Carry Act details the requirements for obtaining a CCL.
To qualify for a CCL, individuals must possess a valid FOID card and pay a fee of $150. 430 ILCS
66/1 (West 2020). An applicant must also (1) be at least 21 years of age, (2) not have been
convicted of a misdemeanor involving the use of force or threat of force within 5 years of the
application date, (3) not have two or more violations for driving under the influence of drugs or
alcohol within 5 years of the application date, (4) not be the subject of a pending arrest warrant or
prosecution that could result in the forfeiture of their right to possess a firearm, and (5) not have
been in residential or court-ordered treatment for drugs or alcohol within 5 years of the application
date. Id. § 25(1-5) (West 2020). Additionally, an applicant must complete a 16-hour firearms
training course covering topics such as firearms safety, basic marksmanship, and applicable
firearms laws, including how to interact with law enforcement while carrying a concealed firearm.
Id. §§ 25(6), 75. As with FOID cards, the Illinois State Police “shall issue” a CCL to any applicant
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who meets the requirements and pays the fee. Id. § 10. The Illinois State Police must either approve
or deny a license within 90 days of receiving an application. Id.
¶ 16 As previously stated, defendant’s sole contention on appeal is that the FOID card and CCL
requirements fail the test recently articulated in Bruen because this nation’s history does not reveal
any reasonably analogous restrictions on the right to bear arms.
¶ 17 Before addressing the merits of defendant’s position, however, we briefly acknowledge
that in its brief on appeal, the State argued that defendant lacked standing to bring his challenge
because there is no evidence that he attempted to procure either a FOID card or CCL. However, at
oral argument, the State conceded that defendant had standing. We agree with the State’s
concession, as a party generally has standing to challenge the constitutionality of a statute where
“he has sustained or is in immediate danger of sustaining some direct injury as a result of the
statute.” Aguilar, 2013 IL 112116, ¶ 12. Here, defendant was convicted and punished under the
AUUW statute, which as explained, incorporates the requirements of the FOID Card and
Concealed Carry Act by criminalizing noncompliance. Thus, he has standing to challenge the
statute’s constitutionality. See People v. Fulton, 2016 IL App (1st) 141765, ¶ 19 (defendant had
standing to challenge his conviction for being an armed habitual criminal despite never applying
for a FOID card); see also People v. Gunn, 2023 IL App (1st) 221032, ¶ 25, n. 1 (rejecting State’s
argument that defendant convicted of AUUW lacked standing to challenge the Conceal Carry Act).
¶ 18 We now turn to the merits of defendant’s claim. The heart of his argument is that the
AUUW statute violates the protections of the second amendment, which are made applicable to
the states through the fourteenth amendment. Bruen, 142 S. Ct. at 2137.
¶ 19 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
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amend. II. The United States Supreme Court most recently interpreted the scope of second
amendment protections in Bruen. At issue there was a New York firearm licensing regime which
required applicants to establish that “proper cause” existed to issue them a license. Bruen, 142 S.
Ct. at 2123. Under the New York law, “proper cause” generally required an applicant to
“ ‘demonstrate a special need for self-protection distinguishable from that of the general
community.’ ” Id. (quoting In re Klenosky, 75 App. Div.2d 793, 428 N.Y.S.2d 256, 257 (1980)).
For instance, applicants were often tasked with producing evidence of “ ‘particular threats, attacks
or other extraordinary danger to personal safety.’ ” Id. (quoting In re Martinek, 294 App.Div.2d
221, 222, 743 N.Y.S.3d 80, 81 (2002)).
¶ 20 After reviewing its second amendment jurisprudence, the Court articulated a two-part test
for evaluating the constitutionality of firearm regulations. Id. at 2126. At the first step, an
individual’s conduct is presumptively protected by the constitution if the conduct is covered by
the second amendment’s plain text. Id. Second, if the individual’s conduct is covered by the second
amendment, then “the government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” Id.
¶ 21 The Court ultimately held that New York’s regime was unconstitutional, reasoning that the
“proper cause” requirement gave the government too much discretion to deny a license to an
applicant seeking to possess a firearm out of a generalized desire for self-protection. Id. at 2156.
¶ 22 In so ruling, however, the Court made special note to contrast discretionary “may-issue”
regimes like New York’s with the so-called “shall-issue” laws used by vast majority of states. 1
Under these “shall-issue” regimes, licensing authorities were required to grant a license to any
1
By the Bruen Court’s count, “shall-issue” laws were in effect in 43 states, including Illinois.
Bruen, 142 S. Ct. at 2123-24.
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applicant who satisfied certain well-defined, objective criteria. Id. at 2138 n. 9. Specifically, the
Court stated:
“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality
of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-
defense is sufficient to obtain a [permit].’ Drake v. Filko, 724 F.3d 426, 442 (CA3 2013)
(Hardiman, J., dissenting). Because these licensing regimes do not require applicants to
show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding,
responsible citizens’ from exercising their Second Amendment right to public carry.
District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008).
Rather, it appears that these shall-issue regimes, which often require applicants to undergo
a background check or pass a firearms safety course, are designed to ensure only that those
bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ Ibid. And
they likewise appear to contain only ‘narrow, objective, and definite standards’ guiding
licensing officials, Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S. Ct. 935, 22
L.Ed.2d 162 (1969), rather than requiring the ‘appraisal of facts, the exercise of judgment,
and the formation of an opinion,’ Cantwell v. Connecticut, 310 U.S. 296, 305, 60 S. Ct.
900, 84 L.Ed. 1213 (1940)—features that typify proper-cause standards like New York’s.
That said, because any permitting scheme can be put toward abusive ends, we do not rule
out constitutional challenges to shall-issue regimes where, for example, lengthy wait times
in processing license applications or exorbitant fees deny ordinary citizens their right to
public carry.” Id.
¶ 23 Justice Kavanaugh, joined by Chief Justice Roberts, also wrote a concurring opinion to
emphasize that the Court’s decision “does not affect” shall-issue regimes like the one used in
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Illinois. Id. at 2161 (Kavanaugh, J., concurring, joined by Roberts, C.J.). Rather, Justice
Kavanaugh wrote that, “the 43 States that employ objective shall-issue licensing regimes for
carrying handguns for self-defense may continue to do so.” Id. at 2162. Further, “[t]hose shall-
issue regimes may require a license applicant to undergo fingerprinting, a background check, a
mental health records check, and training in firearms handling and in laws regarding the use of
force, among other possible requirements.” Id. Like the majority, though, the concurring Justices
also recognized that even shall-issue regimes could be subject to as-applied constitutional
challenges if such regimes operated in practice to require something more than basic requirements
and a generalized desire for self-defense. Id.
¶ 24 Here, defendant spends much of his brief on appeal arguing that the FOID card and CCL
requirements are not rooted in our nation’s historical tradition of firearm regulation. This is exactly
the same argument we rejected in People v. Gunn, 2023 IL App (1st) 221032, ¶¶ 19, 28, a case we
find instructive. In Gunn, we explained that there was “no need to engage in a historical analysis
of firearm regulation when the Supreme Court has already done so and explicitly sanctioned” the
licensing requirements in the FOID Card and Conceal Carry Acts. Id. ¶ 20.
¶ 25 We will follow Gunn here because, as the previous discussion shows, nothing in Bruen
supports defendant’s position that the AUUW statue is unconstitutional. To the contrary, it is clear
that Illinois employs the kind of shall-issue regime endorsed by the Bruen Court. Indeed, both the
FOID Card Act and the Conceal Carry Act provide that the Illinois State Police “shall issue” a
license to any applicant who meets the well-defined, objective criteria contained therein. 430 ILCS
65/5 (West 2020); 430 ILCS 66/10 (West 2020). Thus, it is no surprise that the Bruen Court
counted Illinois among the 43 states that have enacted “shall-issue regimes.” Bruen, 142 S. Ct. at
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2123-24; see also Gunn, 2023 IL App (1st) 221032, ¶ 32 (“Illinois is a shall-issue state with clearly
defined, objective criteria regarding firearm possession and carry.”) (Emphasis in original.).
¶ 26 We acknowledge defendant’s contention that Illinois is not a shall-issue state with regard
to CCLs, but this argument can be easily dismissed. Specifically, defendant points out that an
applicant will not be deemed to have completed the required firearms training course if he “does
not follow the orders of the certified firearms instructor.” 730 ILCS 66/75(e)(1) (West 2020).
According to defendant, this provision grants the State too much discretion because it does not
define exactly what “orders” the instructor may give. However, requiring a firearms training
course—a practice specifically approved by the Bruen Court—would obviously serve no purpose
if applicants were free to disregard the instruction. Gunn, 2023 IL App (1st) 221032, ¶ 27.
Defendant’s argument is therefore unpersuasive.
¶ 27 Finally, we also note that Bruen recognized the possibility of shall-issue regimes violating
the constitution if, in practice, they denied average citizens their second amendment rights through
things like “lengthy wait times” or “exorbitant fees.” Bruen, 142 S. Ct. at 2138 n. 9. However, we
cannot say that is the case here, where a FOID card must be issued within 30 days, with a $10 fee,
and a CCL must be issued within 90 days, with a $150 fee. Defendant does not make any serious
argument to the contrary. 2 Thus, Bruen provides no basis to declare the AUUW statute
unconstitutional.
III. CONCLUSION
¶ 28 For the reasons stated, we affirm the judgment of the circuit court.
2
In his brief on appeal, defendant cites a law review article asserting that the average wait time
for a FOID card was actually 51 days amid record-high demand in the summer of 2020. Even accepting
this information as true for the sake of argument, we still cannot say it rises to the level of a constitutional
violation.
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No. 1-22-1266
¶ 29 Affirmed.
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People v. Kuykendoll
Court: Appellate Court of Illinois
Date filed: 2023-12-12
Citations: 2023 IL App (1st) 221266-U
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