More on Guns and Strict Liability

From Illinois Appellate Court Judge David Ellis’s concurring opinion two weeks ago in People v. Lee : I believe that the State is required to prove that the defendant [who is charged with possessing a firearm with a defaced serial number] knew that the firearm he possessed [had a defaced serial number]. The seminal case holding otherwise, People v. Stanley , 397 Ill. App. 3d 598 (2009), was wrong when it was decided and is even more obviously wrong today, in a world where the mere possession of a firearm, without more, cannot be constitutionally prohibited. We should say so. Section 24-5(b) of the Criminal Code provides that "A person who possesses any firearm upon which any … serial number has been changed, altered, removed, or obliterated commits a Class 3 felony." As written, the statute thus takes the form of a "strict" or "absolute" liability offense: It has no explicit mens rea requirement. The legislature can create absolute liability for a felony, but only if it "clearly indicates" its intent to do so. 720 ILCS 5/4-9. That intent will not be inferred from the "mere absence" of a mens rea requirement in the statute. People v. Gean , 143 Ill. 2d 281 (1991). As Stanley correctly noted, there is no clear statement of that intent in section 24-5(b). Thus, we must presume that the legislature did not intend to impose absolute liability for possessing a defaced firearm. To avoid absolute liability, a mens rea must be inferred into […]

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