THE RIGHT TO LIBERTY AND ARMS

8/12/2019 THE RIGHT TO LIBERTY AND ARMS

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APPLICATION FOR WRIT OF HABEAS CORPUS - 1

Case No.

ASSIGNED JUDGE

DESIGNATED

MAGISTRATE JUDGE:

WRIT OF HABEAS CORPUS

1

APPLICATION FOR WRIT OF H BE S CORPUS2Applicant hereby presents this written and verified3

application for a writ of habeas corpus alleging the facts4

concerning the Applicants commitment or detention, the name of5

the person who has custody over him and by virtue of what claim6

or authority, if known:7

1. JURISDICTION8

This Application for a writ of habeas corpus is brought9

pursuant to 28 U.S.C.A. 2241, 2242, and 2254. This Application10

for a writ of habeas corpus is in writing signed and verified by11

the Attorney acting on behalf of the Applicant. It alleges the12

facts concerning the applicant's commitment or detention, the13

name of the person who has custody over him and by virtue of14

what claim or authority, if known. 28 U.S.C.A. 2242 (West).15

The Application is an unexhausted claim for relief.16

Lavon Johnson

Applicant,v.

Cook County Sheriff Thomas Dart

RESPONDENT

Cook County States Attorney

Anita Alvarez

RESPONDENT

Illinois Attorney General

Lisa Madigan

RESPONDENT

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case: 1:14-cv-01409 Document #: 1 Filed: 02/27/14 Page 1 of 23 PageID #:1


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2. FACTUAL BASIS CONCERNING THE APPLICANTS DETENTION17

Applicant, Lavon Johnson resides in Little Rock Arkansas.18

Applicant was issued a concealed hand gun license by the State19

of Arkansas License Number 2085025. See Exhibit A. On or about20

Early February 2014, Applicant was outside a night club in21

Arkansas. Another individual discharged a firearm at Applicant22

and Persons near Applicant causing an assault and wounding of23

such persons with bullets. Applicant was not wounded but24

returned fire in self-defense and mortally wounded the25

Individual. No criminal charges were filed against the Applicant26

and the Little Rock Police have treated the matter as a27

justified taking of life. However, Applicants handguns and28

Concealed Carry Permit were seized and sent to the Arkansas29

State Police Department as part of a policy of review after such30

incident occurred. Subsequent to this incident, Applicants home31

was subject to gun fire in retaliation for the mortal wounding32

of the Individual and Applicants life was threatened by friends33

of the individual. Applicant spoke with the Local Police and34

requested permission to purchase two firearms due to the35

incident. Applicant was given permission and legally purchased36

two new firearms, subject to all required eligibility checks by37

the seller of the firearms and State Law. Applicant has a38

receipt for such firearms. Exhibit B. Applicant then purchased a39



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grey hound bus ticket and proceeded to Michigan in order to40

preserve his life from danger and be safe with family.41

Applicant arrived in Chicago and was switching to a42

Greyhound bus heading to Michigan. While switching busses43

Applicant was randomly searched by security in the Chicago44

Station. The Security discovered two firearms in Applicants45

carry on baggage. Such Firearms were encased and closed within46

firearm storage cases. There was allegedly one round of live47

ammunition in the chamber of each firearm, to which the48

applicant denies. The Chicago Police Department was called and49

the Applicant was arrested for UUW. Applicant was brought before50

the Circuit Court of Cook County for a probable cause hearing51

and to set bond on 2/18/14 under Case Number 14110668601.52

Probable cause to detain was found by Circuit Court Justice53

Bourgeois on 2/18/2014 and Applicant was provided a $150,000.0054

D bond by Justice Bourgeois.55

Applicant is now currently being held in the Custody of the56

Cook County Sheriff at 2600 S. South California Avenue, Chicago57

Illinois under Detainee #2014-0218220. On February 24th, 201458

Applicant had a Preliminary hearing in which probable cause to59

detain Applicant was found with regard to two counts of 720 ILCS60

5/24-1(A)(4)1by Circuit Court Justice Marvin Luckman.61

1Carries or possesses in any vehicle or concealed on or about his person except when on his landor in his own abode, legal dwelling, or fixed place of business, or on the land or in the legaldwelling of another person as an invitee with that person's permission, any pistol, revolver,stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or



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Applicants counsel was not finished with his hearing on62

the matter and was cut short by Justice Luckman. Applicants63

counsel attempted to present these issues to the court however64

at 3:00 P.M. the court decided it had no more time to provide a65

meaningful hearing to a man and his counsel regarding liberty66

and due process rights. Applicants next court hearing is March67

17th, 2013 for assignment to a circuit court judge.68

2. THE NAME OF THE PERSON WHO HAS CUSTODY OVER HIM AND BY VIRTUE69

OF WHAT CLAIM OR AUTHORITY70

Thomas Dart, Sheriff of Cook County has custody over the71

Defendant at this time. Such custody is by virtue of 55 ILCS72

5/3-6017 which provides that He or she shall have the custody73

and care of the courthouse and jail of his or her county, except74

as is otherwise provided and 730 ILCS 125/2 which provides The75

Sheriff of each county in this State shall be the warden of the76

jail of the county, and have the custody of all prisoners in the77

jail, except when otherwise provided in the County Department78

of Corrections Act.79

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affect transportation of weapons that meet one of the following conditions:(i) are broken down ina non-functioning state; or(ii) are not immediately accessible; or(iii) are unloaded and enclosedin a case, firearm carrying box, shipping box, or other container by a person who has been issueda currently valid Firearm Owner's Identification Card; 720 ILCS 5/24-1



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3. GROUNDS OF CUSTODY IN VIOLATION OF THE CONSTITUTION OR LAWS83

OR TREATIES OF THE UNITED STATES84

A. VIOLATION OF THE SECOND AMENDMENT, 4thAMENDMENT, AND85

DUE PROCESS86

Applicant is being held in custody for exercising his87

second amendment right in that he was carrying a weapon in88

public. The Second Amendment protects the right of law-89

abiding, responsible citizens to use arms in defense of hearth90

and home. Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012).91

The Second Amendment states in its entirety that a well92

regulated Militia, being necessary to the security of a free93

State, the right of the people to keep and bearArms, shall not94

be infringed (emphasis added). The right to bear as distinct95

from the right to keep arms is unlikely to refer to the home.96

To speak of bearing arms within one's home would at all times97

have been an awkward usage. A right to bear arms thus implies a98

right to carry a loaded gun outside the home. Moore v. Madigan,99

702 F.3d 933, 936 (7th Cir. 2012). Accordingly, The Illinois100

Unlawful Use of Weapons (UUW) statute ( 720 ILCS 5/24-1(A)(4)101

under which Applicant is being held and the Illinois Aggravated102

Unlawful Use of a Weapon (AUUW) statute, which generally103

prohibit the carrying of guns in public, violate the Second104

Amendment right to bear arms for self-defense outside the home.105

See Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012).106



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Furthermore, the General Assembly of Illinois failed to107

amend the UUW statute with regard to the Courts mandate in108

Moore. Accordingly, the Applicant is being held based on the109

violation of an unconstitutional statute as a matter of law.110

Additionally, Applicant is endowed with certain inalienable111

rights and privileges, not only from G-D, but from the founding112

fathers of this nation. These rights of Applicant follow him113

through out all fifty states of this United Republic. More114

Importantly, Applicant is a freeman governed by a constitution115

and while traveling through individual states he does not shed116

his constitutional rights, nor can he be forced to by State117

Legislation and unlawful detention and prosecution to due so.118

The Second amendment is applicable to all Citizens2of all119

states and cannot be disregard or treated as piecemeal by the120

State Legislatures. Each State must accommodate and seek to121

protect these constitutional rights for persons passing through122

their States. In Illinois Nonresidents who are currently123

licensed or registered to possess a firearm in their resident124

state; are exempted from the FOID requirements. See 430 ILCS125

65/2. Applicant is registered or otherwise licensed to posses a126

firearm in the State of Arkansas, his resident State. While his127

concealed carry license status may be in limbo or at issue due128

2subject to legal disqualifications such as felonies or mentallyill individuals



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to the State Police having custody of it, he is still authorized129

to possess a firearm as a matter of law in that his130

constitutional right has not been taken from him by due process131

of law at this time or by legal disqualification.132

Additionally, the State of Illinois has a blanket133

prohibition for non-residents or residents walking or otherwise134

traveling through the State without a vehicle or Within a135

vehicle to bear arms in public by carrying a loaded weapon in a136

case (NOT UNCASED and/or Unloaded). Please Carefully Compare 720137

ILCS 5/24-1(A)(4) and 720 ILCS 5/24-1.6 to notice the138

difference.139

Accordingly, Applicant is being held in custody for140

exercising his constitutional right to bear arms outside the141

home, is being held in custody on a statute which was held to be142

unconstitutional and has not been corrected, and is being held143

without probable cause and based on no violation of the law.144

B. VIOLATION OF 8thAMENDMENT AND DUE PROCESS145

The Applicant has been subjected to excessive bail in146

violation of the 8thamendment and has been denied his147

presumption of innocence as a consequence thereof based on his148

socio-economic status. The Framers of the Constitution provided149

for the constitutional right to liberty before trial within the150

Eight Amendment.151



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Applicant asserts that This provision of the Bill of152

Rights which is fundamental and essential to a fair trial is153

made obligatory upon the States by the Fourteenth Amendment.154

See Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 795,155

9 L. Ed. 2d 799 (1963)156

In fact, The United States Supreme Court found that This157

traditional right to freedom before conviction permits the158

unhampered preparation of a defense, and serves to prevent the159

infliction of punishment prior to conviction. Unless this right160

to liberty before trial is preserved, the presumption of161

innocence, secured only after centuries of struggle, would lose162

its meaning. Stack v. Boyle, 342 U.S. 1, 4, 72 S. Ct. 1, 3, 96163

L. Ed. 3. Accordingly, It is a fundamental right which is164

essential to a fair trial and prevention of punishment without165

due process of law.166

Historically, the preservation of this right to liberty167

before trial usually requires that the Defendant post monetary168

bail or otherwise pay for its preservation. However, in todays169

era Electronic Monitors and GPS tracking devices have become a170

reasonable means to balance the Defendants right to liberty171

before trial and to secure the safety of the public and ensure172

the appearance of the accused, without otherwise requiring173

monetary deposits.174



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Placing a monetary requirement on the exercise of a175

Constitutional right violates our fundamental sense of ordered176

liberty and justice. It creates a class distinction amongst177

those whose socioeconomic status can allow them to purchase178

their constitutional right to liberty before trial and those179

whom cannot. It is not akin to our fundamental sense of ordered180

liberty and justice that an insolvent Defendant, whom will never181

be able to afford to post a monetary bail, sheds his182

constitutional right to liberty before trial. Yet, this is183

exactly what has happened to Applicant. Applicant does not have184

the financial ability to post $15,000.00 and will never receive185

his constitutional right to liberty before trial, not because he186

is a danger, or because bail has been denied after a hearing, or187

because it was revoked, but because he could not afford his188

Constitutional right. Accordingly, one who is unable to obtain189

his right to liberty before trial due to his financial190

circumstances, must be furnished by the State or the Court with191

an alternative reasonable means to exercise his right to liberty192

before trial in balance with the Publics right to safety and193

having the accused appear at trial.194

Furthermore, the imposition of monetary bail when there are195

other reasonable alternative means available to satisfy the196

rights of the public and defendants is per se an excessive bail197

and violative of the eighth amendment. It is per se excessive198



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because other reasonable alternative means exist to secure the199

appearance of the accused at court and the safety of the public,200

aside from money. In fact, giving a high bond to a wealthy man201

is akin to giving a parking ticket to Warren Buffet, it does not202

secure the appearance of the accused or make the community203

safer. However, placing a GPS tracking device on the accused or204

an electronic home monitor on the accused secures the appearance205

of the accused and makes the community safer, without the need206

for any monetary deposits of bail. If the main purpose of the 8th207

amendment was to prevent the government from denying a person208

bail arbitrarily and excessively, then any monetary bail a209

person cannot afford is excessive and arbitrary when there are210

other reasonable alternative means available such as Electronic211

home monitoring, GPS, reporting to an agency weekly, etc..212

Additionally, given Applicants lack of criminal history a213

$150,000.00(D) bond given the facts of this case is not214

warranted and more than what is necessary to secure the215

appearance of the accused and in relation to the charge is216

excessive.217

Also important to this claim is the fact that the right to218

liberty before trial has a symbiotic relationship with the right219

to be presumed innocent, one cannot exist without the other.220

Accordingly, Applicant is being denied his fundamental right to221

be presumed innocent.222



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It is also important to note that In less than the time it223

takes to make an ATM withdrawal, Cook County Bond Court judges224

make decisions affecting individual liberty and the public225

safety. This way of transacting justice exacts a dear226

convenience fee -- defendants' liberty, the community's safety,227

public funds -- all contrary to long-standing legislation.228

According to the Chicago List, Cook County Board President229

Toni Preckwinkle and Sheriff Tom Dart are once again calling230

attention to what they believe is the inefficiency of Cook231

Countys criminal court system and the money it costs taxpayers.232

Dart and Preckwinkle estimate delays in bringing cases to court233

and keeping prisoners they feel should be released pending trial234

costs Cook County taxpayers $80 million annually, most of that235

going toward keeping these folks behind bars. Dart has spoken236

out on the inefficiency of the County court system before, most237

recently in Marchwhen he expressed concern Cook County Jail238

would be at maximum capacity by summertime. Preckwinkle, who has239

been trying to reform the court system, centered her criticisms240

on the bond court and the average time an inmate spends in front241

of a judge there. That average time? Twenty seconds, according242

to Dart. How in Gods name can you have a thoughtful discussion243

in 20 seconds? Other than finding guilt or innocence, what more244

significant part of the judicial process is there than a bond245

hearing, deciding whether someone will be in this delightful246



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place or at home with family? What can be more significant? And247

you give it 20 seconds. Thats just not right. Some of you may248

have read that and said, Well, theres a backlog of cases in the249

court system because of continuances and other rulings.Dart250

says that isnt so. Thats not true, Dart said. It isnt like251

some poor judge earning $185,000 a year is in there for 12252

hours. The bond hearing calls only last a few hours. Thats253

where my frustration is so great. Were not asking judges to254

work eight, 10 hours. They go for two hours.Cook County Circuit255

Court Chief Judge Timothy Evans took exception to that and said256

the problem is funding the courts. One of the major problems257

here is some would put a price tag on justice. Thats a huge258

mistake. Tell that to Cook County States Attorney Anita259

Alvarez. Dart and Preckwinkle say her office requests260

inordinately high bonds for defendants. Rebecca Janowitz,261

special assistant for legal affairs for the Cook County Justice262

Advisory Council, told the Sun-Times, "We see young people with263

no priors arrested at 17 and given a bond of $75,000. She did264

allow, however, those bonds tend to decrease in subsequent265

appearances. They arent able to get a decent bond when they266

first go up, but they follow the case, and a week later they267

file a motion to reconsider the bond, and weve been getting268

some very good success there. Other factors that contribute to269

the morass, according to Dart and Preckwinkle, include an270



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overtaxed public defender system that handles an average of 50271

cases per day, per attorney, and differing opinions between272

Preckwinkle and Alvarezs office on what constitutes a non-273

violent offender. Ultimately, all this results in longer stays274

for inmates in Cook County Jail and more money being spent to275

house them. Cook County Justice Advisory Council executive276

director Juliana Stratton said the average prisoner stay at 26th277

and California has increased from 49 days in 2007 to 57 days.278

Preckwinkle lays the blame at the feet of the court system. You279

can look at how long it takes to dispose of a drug case. Theres280

no case management in the circuit court. No case management at281

all, Preckwinkle said. You dont know how long it takes282

individual judges. Theres no way to hold anybody accountable.283

http://chicagoist.com/2013/07/31/preckwinkle_dart_bond_court_del284

ays.php285

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However, the general procedure in Cook County bond court

is for the State to ask for a high bond, and the judge to give

high bonds, which doesnt require lengthy bail denial hearings

with actual standards of proof and burdens. It creates a

condition that bail is ultimately denied but without due

process of law. It also prevents the accused from committing

any other crimes while on bail thereby, assuring no public or

media embarrassment to the Prosecutor or the Justices, even

though justices must not consider public outcry or clamorin294



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their cannons. However, it also requires the County to pay for295

the detainees. If the State Attorney actually conducts bail296

denial hearings the cost of those whom are detained under a297

proper bail denial are paid for by the State of Illinois, not298

the Tax Payers of Cook County.3Accordingly, the whole bail299

proceeding in this matter was a sham proceeding. $150,000.00300

bail to a freeman traveling with two handguns in a case through301

interstate traffic, whom is not disqualified from owning302

firearms, poses no danger to persons, and whom is held on a303

Statute that this court held to be violative of the Second304

Amendment and unconstitutional. This is not akin to our305

traditional sense of ordered liberty and justice, nor to our306

second amendment right to bear arms, THIS IS TYRANNY.307

4. UNEXHAUSTED STATE REMEDIES308

In the County of Cook, the Prosecuting Authority Anita309

Alvarez and the majority of the Justices refused to honor and310

continue to refuse to honor the ruling of Madigan v. Moore and311

deferred to the Illinois Appellate Court Decisions saying that312

the Federal Courts ruling is not binding on the State Court.313

3The sheriff of each county shall certify to the treasurer of each county the number of daysthat persons had been detained in the custody of the sheriff without a bond being set as a resultof an order entered pursuant to Section 110-6.1 of this Code. The county treasurer shall, nolater than January 1, annually certify to the Supreme Court the number of days that persons hadbeen detained without bond during the twelve-month period ending November 30. The Supreme Courtshall reimburse, from funds appropriated to it by the General Assembly for such purposes, thetreasurer of each county an amount of money for deposit in the county general revenue fund at arate of $50 per day for each day that persons were detained in custody without bail as a resultof an order entered pursuant to Section 110-6.1 of this Code.725 ILCS 5/110-18



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However, the Illinois Supreme Court later stated that,314

Accordingly, as the Seventh Circuit did in Moore,we here hold315

that, on its face, the Class 4 form of section 241.6(a)(1),316

(a)(3)(A), (d) violates the right to keep and bear arms, as317

guaranteed by the second amendment to the United States318

Constitution.3 People v. Aguilar, 2013 IL 112116.319

Despite Madigan v. Moore, numerous persons were prosecuted320

under the unconstitutional statutes and are continuing to be321

prosecuted under both the former and current UUW and AGG UUW322

statutes. Additionally, the UUW statute (24-1) is still enforced323

in its old form by Anita Alvarez and honored by the Circuit324

Court Justices even though the Federal Court found it325

unconstitutional per se and violative of the United States326

Constitution.327

For these reasons above it is futile for the Applicant to328

exhaust his remedies in State Court since there are no remedies329

that will provided the immediate relief needed, there is an330

absence of available State Corrective Process, the State is331

ignoring the mandate of the Federal Court; there are332

circumstances that exist that render such process ineffective to333

protect the rights of the applicant, and more importantly, and334

lastly there are unusual or exceptional circumstances presented335

by the Applicant preventing the dismissal of the unexhausted336



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claim, therefore, waiving the requirement to exhaust all state337

remedies.338

Why must Applicant ask a state court to hold339

unconstitutional what a federal court already has held to be340

unconstitutional.341

This is the only Court than can Protect Applicant.342

WHEREFORE, THE APPLICANT PREYS THIS HONORABLE COURT PROVIDE THE343

FOLLOWING RELIEF:344

1.ISSUE SUCH WRIT3452.A NON-MONETARY BAIL OR RELEASE PENDING HABEAS CORPUS346

REVIEW AND/OR3473.IMMEDIATE RELEASE OF THE DEFENDANT AND/OR3484.PLACING THE DEFENDANT APPLICANT BACK IN THE POSITION HE349

WOULD HAVE BEEN HAD THE CONSTITUTIONAL VIOLATIONS NEVER350

OCCURRED AND/OR351

5.STOPPING THE PROSECUTION OF DEFENDANT UNDER AN352UNCONSTITUTIONAL STATUTE AND/OR353

6.ANY RELIEF THAT THE COURTS BELIEVES JUSTICE, FAIRNESS,354AND EQUITY REQUIRES355

7.Costs, Attorneys Fees and any monetary damages the court356may see fit.357

358

I, Ilia Usharovich DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING359

IS TRUE AND CORRECT. I ALSO DECLARE THAT I HAVE READ THE FOREGOING360

LEGAL DOCUMENT AND BELIEVE THE CONTENTS THEREOF TO BE TRUE BASED ON MY361

OWN PERSONAL INVESTIGATION OF THE FACTS WHICH CONSISTED OF SPEAKING362

WITH POLICE OFFICERS, THE APPLICANT, HIS FAMILY, AND CONDUCTING A363

PRELIMINARY HEARING, EXCEPT FOR THOSE MATTERS THEREIN STATED UPON364

INFORMATION AND BELIEF AND AS TO THOSE MATTERS, WHICH I BELIEVE THEM365

TO BE TRUE.366

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DATE Executed: February 27th, 2014.371

//S// ILIA USHAROVICH372

Ilia Usharovich373Attorney For Applicant374

Ilia Usharovich375

224 s. Milwaukee Ave Suite G376

wheeling, Illinois 60090377

telephone: 847-264-0435378

Facsimile: 224-223-8079379Attorney Number: 6302193380

EMAIL: [email protected]

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