N.D.Ill.: Despite McDonald under the 2A, apparent possession of a weapon after hearing shots fired can be considered as RS

Defendant asserted that he had a Second Amendment right to possess a handgun, and that the court could not consider that in assessing reasonable suspicion. The court disagrees because here the officers were responding to hearing shots fired and saw defendant possessing something that reasonably could be concluded was a firearm moments after the shots were fired. United States v. Crockett, 2019 U.S. Dist. LEXIS 26193 (N.D. Ill. Feb. 20, 2019):

The defense also argues that the Court cannot consider the fact that the officers saw what looked like a firearm in Crockett’s pants, when assessing reasonable suspicion or probable cause. Counsel points out that the law has changed in recent years with respect to the ability to carry guns on public streets in Illinois and in Chicago. See, e.g., McDonald v. City of Chi., 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (striking down Chicago’s handgun ban as unconstitutional); Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012) (striking down Illinois’s prohibition on carrying a concealed firearm as unconstitutional). It is no longer per se illegal to carry a concealed gun in Illinois, they argue, and so the mere presence of the “large object” or “L-shaped object” in Crockett’s waistband cannot support reasonable suspicion or probable cause to stop him. See also United States v. Watson, 900 F.3d 892, 895-96 (7th Cir. 2018) (holding that an anonymous tip about the “presence of guns” did not create reasonable suspicion because “carrying a firearm in public is permitted with a license in Indiana”); see also People v. Horton, 2017 IL App (1st) 142019, 413 Ill. Dec. 497, 78 N.E.3d 489, 498 (Ill. 2017) (“[T]he possible observation of a handgun is not in itself, without any other evidence of a crime, sufficient to provide an officer with probable cause for arrest.”), vacated on other grounds, 419 Ill. Dec. 648, 93 N.E.3d 1065 (Ill. 2017).

But there was more here than just the presence of a possible gun. Here, the officers had heard shots fired nearby, and the person they saw with the gun-like object immediately jumped a fence to get away from them. This case is therefore nothing like Watson, where the officers were following an anonymous tip to find “men … seated inside [a] car with no guns in sight.” Watson, 900 F.3d at 896. Whereas in Watson there was merely a speculative “possibility of unlawful use of a gun,” see id., here there was the likelihood of an ongoing emergency. Nor is this case like Horton, in which an officer merely “had a hunch” that the defendant was carrying a firearm and saw a chrome metal object. 78 N.E.3d at 500. The additional facts known here to the officers supported, at first, reasonable suspicion to attempt to detain Crockett.

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