Illinois State Police Statement on ‘Mask + Gun = Felony’ Issue Clarifies Nothing

Illinois gun owners have serious concerns about Governor J.B. Pritzker’s mandate to wear masks in public. The order conflicts with a law that makes wearing a mask while armed a felony. And now, after hearing increasing concerns from gun owners via media outlets over the past few days, the Illinois State Police (ISP) has leaped into action.

On Tuesday, the ISP released a statement and posted it at the ISP’s Firearm Services Bureau website:

DOES WEARING A FACE COVERING WHILE LEGALLY CARRYING A CONCEALED FIREARM PLACE ME IN DANGER OF VIOLATING ILLINOIS’ FIREARMS LAWS?

The Governor’s Executive Order regarding the wearing of masks or protective facial coverings in public settings during this serious global pandemic was not intended to negatively impact permit holders under the Illinois Concealed Carry Act while legally carrying firearms. The Executive Order does not require or suggest that law enforcement should arrest or criminally charge conceal carry license permit holders for wearing protective masks while in public as long as they are complying with the other provisions of the Illinois Concealed Carry Act and are not committing any other violations of Illinois law. ISP has confidence that law enforcement officers across the state will use appropriate judgment and that elected State’s Attorneys will likewise exercise sound prosecutorial discretion.

Let’s break that down.

The Executive Order does not require or suggest that law enforcement should arrest or criminally charge conceal carry license permit holders for wearing protective masks while in public.

That’s good to know.

At that point, no doubt plenty of Illinois gun owners breathed a sigh of relief. Common sense prevails at the Illinois State Police.

Then we kept reading.

“[A]nd are not committing any other violations of Illinois law.

So, if an Illinois license-holder inadvertently finds him- or herself in a “no guns” zone, does that change the penalty? And given the large number of prohibited locations, along with a handful of businesses that fail to conspicuously post their establishments as “no guns allowed” zones, it’s not uncommon for this to happen to otherwise well-meaning CCW holders.

Right now, for a first-time offense, carrying in a prohibited area stands as a $150 fine and they can’t take your gun or your carry license. On the other hand, under this new “not committing any other violations of Illinois law” provision, does that mean the penalty for inadvertently carrying in a prohibited location while wearing the mandated mask goes way up to a Class 4 felony where the state takes all of your guns and your carry license?  For life? And potentially your freedom for one to three years, too?

Illinois has a LOT of prohibited locations, and it’s not difficult to inadvertently run afoul of one of them from time to time. These include:

430 ILCS 66/65Sec. 65. Prohibited areas.
(a) A licensee under this Act shall not knowingly carry a firearm on or into:
(1) Any building, real property, and parking area  under the control of a public or private elementary or secondary school.
(2) Any building, real property, and parking area under the control of a pre-school or child care facility, including any room or portion of a building under the control of a pre-school or child care facility. Nothing in this paragraph shall prevent the operator of a child care facility in a family home from owning or possessing a firearm in the home or license under this Act, if no child under child care at the home is present in the home or the firearm in the home is stored in a locked container when a child under child care at the home is present in the home.
(3) Any building, parking area, or portion of a building under the control of an officer of the executive or legislative branch of government, provided that nothing in this paragraph shall prohibit a licensee from carrying a concealed firearm onto the real property, bikeway, or trail in a park regulated by the Department of Natural Resources or any other designated public hunting area or building where firearm possession is permitted as established by the Department of Natural Resources under Section 1.8 of the Wildlife Code.
(4) Any building designated for matters before a circuit court, appellate court, or the Supreme Court, or any building or portion of a building under the control of the Supreme Court.
(5) Any building or portion of a building under the control of a unit of local government.
(6) Any building, real property, and parking area under the control of an adult or juvenile detention or correctional institution, prison, or jail.
(7) Any building, real property, and parking area under the control of a public or private hospital or hospital affiliate, mental health facility, or nursing home.
(8) Any bus, train, or form of transportation paid for in whole or in part with public funds, and any building, real property, and parking area under the control of a public transportation facility paid for in whole or in part with public funds.
(9) Any building, real property, and parking area under the control of an establishment that serves alcohol on its premises, if more than 50% of the establishment’s gross receipts within the prior 3 months is from the sale of alcohol. The owner of an establishment who knowingly fails to prohibit concealed firearms on its premises as provided in this paragraph or who knowingly makes a false statement or record to avoid the prohibition on concealed firearms under this paragraph is subject to the penalty under subsection (c-5) of Section 10-1 of the Liquor Control Act of 1934.
(10) Any public gathering or special event conducted on property open to the public that requires the issuance of a permit from the unit of local government, provided this prohibition shall not apply to a licensee who must walk through a public gathering in order to access his or her residence, place of business, or vehicle.
(11) Any building or real property that has been issued a Special Event Retailer’s license as defined in Section 1-3.17.1 of the Liquor Control Act during the time designated for the sale of alcohol by the Special Event Retailer’s license, or a Special use permit license as defined in subsection (q) of Section 5-1 of the Liquor Control Act during the time designated for the sale of alcohol by the Special use permit license.
(12) Any public playground.
(13) Any public park, athletic area, or athletic facility under the control of a municipality or park district, provided nothing in this Section shall prohibit a licensee from carrying a concealed firearm while on a trail or bikeway if only a portion of the trail or bikeway includes a public park.
(14) Any real property under the control of the Cook County Forest Preserve District.
(15) Any building, classroom, laboratory, medical clinic, hospital, artistic venue, athletic venue, entertainment venue, officially recognized university-related organization property, whether owned or leased, and any real property, including parking areas, sidewalks, and common areas under the control of a public or private community college, college, or university.
(16) Any building, real property, or parking area under the control of a gaming facility licensed under the Riverboat Gambling Act or the Illinois Horse Racing Act of 1975, including an inter-track wagering location licensee.
(17) Any stadium, arena, or the real property or parking area under the control of a stadium, arena, or any collegiate or professional sporting event.
(18) Any building, real property, or parking area under the control of a public library.
(19) Any building, real property, or parking area under the control of an airport.
(20) Any building, real property, or parking area under the control of an amusement park.
(21) Any building, real property, or parking area under the control of a zoo or museum.
(22) Any street, driveway, parking area, property, building, or facility, owned, leased, controlled, or used by a nuclear energy, storage, weapons, or development site or facility regulated by the federal Nuclear Regulatory Commission. The licensee shall not under any circumstance store a firearm or ammunition in his or her vehicle or in a compartment or container within a vehicle located anywhere in or on the street, driveway, parking area, property, building, or facility described in this paragraph.
(23) Any area where firearms are prohibited under federal law.
(a-5) Nothing in this Act shall prohibit a public or private community college, college, or university from:
(1) prohibiting persons from carrying a firearm within a vehicle owned, leased, or controlled by the college or university;
(2) developing resolutions, regulations, or policies regarding student, employee, or visitor misconduct and discipline, including suspension and expulsion;
(3) developing resolutions, regulations, or policies regarding the storage or maintenance of firearms, which must include designated areas where persons can park vehicles that carry firearms; and
(4) permitting the carrying or use of firearms for the purpose of instruction and curriculum of officially recognized programs, including but not limited to military science and law enforcement training programs, or in any designated area used for hunting purposes or target shooting.
(a-10) The owner of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control. The owner must post a sign in accordance with subsection (d) of this Section indicating that firearms are prohibited on the property, unless the property is a private residence.
(b) Notwithstanding subsections (a), (a-5), and (a-10) of this Section except under paragraph (22) or (23) of subsection (a), any licensee prohibited from carrying a concealed firearm into the parking area of a prohibited location specified in subsection (a), (a-5), or (a-10) of this Section shall be permitted to carry a concealed firearm on or about his or her person within a vehicle into the parking area and may store a firearm or ammunition concealed in a case within a locked vehicle or locked container out of plain view within the vehicle in the parking area. A licensee may carry a concealed firearm in the immediate area surrounding his or her vehicle within a prohibited parking lot area only for the limited purpose of storing or retrieving a firearm within the vehicle’s trunk, provided the licensee ensures the concealed firearm is unloaded prior to exiting the vehicle. For purposes of this subsection, “case” includes a glove compartment or console that completely encloses the concealed firearm or ammunition, the trunk of the vehicle, or a firearm carrying box, shipping box, or other container.
(c) A licensee shall not be in violation of this Section while he or she is traveling along a public right of way that touches or crosses any of the premises under subsection (a), (a-5), or (a-10) of this Section if the concealed firearm is carried on his or her person in accordance with the provisions of this Act or is being transported in a vehicle by the licensee in accordance with all other applicable provisions of law.
(d) Signs stating that the carrying of firearms is prohibited shall be clearly and conspicuously posted at the entrance of a building, premises, or real property specified in this Section as a prohibited area, unless the building or premises is a private residence. Signs shall be of a uniform design as established by the Department and shall be 4 inches by 6 inches in size. The Department shall adopt rules for standardized signs to be used under this subsection.
(Source: P.A. 98-63, eff. 7-9-13.)

For those who have carried, you have probably had your shirt hang up on your firearm at least once, leaving it partially exposed. In Illinois, that might pose a violation of Illinois’ CCW law. So if someone sees the butt of your gun accidentally holding up your shirt while you’re wearing your mask, does that become a Class 4 felony?

And then there’s another scenario brought to me by a retired police officer, with five gun battles in his 30 years as a cop. “What if you get pulled over for speeding or are cited following an accident? Does that allow a felony firearms arrest if masked?” he asked. “It is another violation under a strict reading of their statement.”

Here’s another one: Retired law enforcement in Illinois have an annual qualification requirement to carry under the national HR-218 law. If a retired cop’s qualification has lapsed because departments aren’t running qualifications in the name of social distancing, will the retired officer face a felony arrest for wearing a mandated mask while carrying?

The ISP continued with their non-clarifying guidance.

ISP has confidence that law enforcement officers across the state will use appropriate judgment and that elected State’s Attorneys will likewise exercise sound prosecutorial discretion.

While the ISP might have confidence that Illinois officers and prosecutors will use sound discretion in not charging police officers wearing a mask while on duty, plenty of us do not share that confidence when it comes to concealed carry license-holders. Especially in jurisdictions that take a dim view of gun owners, armed self-defense and the right-to-carry.

Remember Hale Demar? Demar lived in the affluent Cook County suburb of Wilmette.  When a burglar returned for a second helping of his valuables, Mr. Demar shot him with a handgun.

At the time of the shooting, Wilmette had a handgun ban on the books. Did the city’s police department use sound discretion in not arresting the victim of a burglary and then a home invasion for defending his life with a handgun?

No. Hardly. Not only did Wilmette police arrest Mr. Demar for an ordinance violation for the handgun, they also charged him with a felony for an expired FOID card.

But the ISP says they trust prosecutors to use sound discretion.

Do they mean the kind of “sound discretion” used by the Cook County State’s Attorney in dropping sixteen charges against Jussie Smollett? The county that leads the nation in wrongful convictions?

Let’s face it, Prairie State gun owners have plenty of reasons to express serious concerns about politically-motivated government agents using “sound discretion” to not pursue felony charges for lawful gun owners wearing a mask while packing heat with their carry license.

Relying on officer and prosecutorial discretion to avoid losing one’s gun rights for life surely seems like poor public policy.