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Thursday, Aug. 21, 2014 12:01 am

Only in America

Lawyers, guns and tequila

 There were neither gun-control advocates nor concealed-carry proponents nor anyone from Ferguson last Thursday in the courtroom of Sangamon County Circuit Court Judge John Schmidt. Just an out-of-town lawyer, a couple of prosecutors and Hamoud Hizam, the cousin of Ahmed Altayeb, a tried and convicted felon.

Altayeb wasn’t able to make it. He was locked up in a jail in southern Illinois and en route to Yemen, if the feds had their way.

It began nearly a year ago, when Altayeb was working as a clerk at the Handy Pantry on West Cook Street, not far from the Capitol. A man entered the store. He’d been in before, Hizam says, and stolen before and otherwise caused trouble on the premises.

“He’s a bad person,” says Hizam, who has worked at the store himself and says that he knows the man’s name. “He’ll tell you straight to your face: ‘What are you going to do, call the police?’ Every time we get into arguments. He’ll say ‘I’ll see you when you leave the store.’ Everyone was kind of afraid of him.”

On this day last September, the man offered a credit card in payment for several bottles of tequila. While Altayeb was trying to run the card through a reader, the man grabbed the bottles and ran for the door.

Altayeb grabbed a gun from beneath the counter and made a big mistake.

After following the thief out of the store, Altayeb fired the gun at him. He missed but shots came close to at least one innocent bystander, prosecutors say. Surveillance video from the Handy Pantry and another nearby store captured the whole thing, from the theft to the short-lived chase outside that ended when the man drove off in a red pickup truck, with Altayeb firing down an alley at the vehicle.

So it was that Altayeb found himself charged with reckless discharge of a firearm and aggravated unlawful use of a weapon, both felonies. If Altayeb were found guilty of either charge, he faced revocation of his green card and deportation. He has lived in the United States since 1997. He has a wife and children and, before this, zero criminal history.

Prosecutors dismissed the reckless discharge charge. Altayeb stipulated to facts on the remaining offense and requested a bench trial – tantamount to a guilty plea, as Schmidt noted during last week’s hearing. Sure enough, Altayeb was found guilty by Schmidt last February and sentenced to probation. Immigration authorities picked him up a few weeks later. He’s been in jail since March.

Now, he may be getting out.

The unlawful use of weapons statute was declared unconstitutional on Second Amendment grounds by the Illinois Supreme Court five months before Altayeb stood trial in a case he had no chance of winning. And a law that is unconstitutional cannot be enforced.

Looking through case notes last week, first assistant state’s attorney Karen Tharp told the judge that the decision to proceed on the unconstitutional law appeared to be a considered one made by a prosecutor who no longer works for the state’s attorney, and Altayeb’s lawyer had apparently known that the law had been declared invalid by the state’s highest court.

“He made a conscious decision to allow himself to be convicted of an unlawful statute?” asked Judge Schmidt, sounding incredulous.

Brendan Bukalski, a Bloomington attorney who represents Altayeb but did not represent him at trial, called it an error by both sides. A big one.

“I cannot fathom that a member of the bar would agree to such a thing,” Bukalski told the judge. “And I cannot fathom that an assistant state’s attorney would agree to such a thing.”

Allowing the conviction to stand would be “abhorrent to the justice system as a whole,” Bukalski told Schmidt.

“I agree,” the judge said at the conclusion of Bukalski’s argument. “The Supreme Court says that the statute is unconstitutional. I took an oath to uphold the law. … I will abide by what they say.”

And so the conviction was reversed, and Ahmed walked free on Tuesday, again an innocent man. He is not entirely out of the woods with the feds, who have discretion to deport people even if they aren’t felons.

“Because I think this was an aberration of his character, I hope they wash their hands of it,” Bukalski said. “We’re happy with the result. I think, constitutionally speaking, everyone else should be.”

Bukalski says that his client, while perhaps overzealous in defending his place of business, isn’t dangerous. Hizam says that his cousin has learned his lesson. After 17 years in America and six months in jail, he says that Altayeb should be allowed to stay in the United States.

“He knows what he did is wrong,” Hizam said. “He’s sorry for doing it.”

And what of the liquor thief, the one who was captured on videotape, the one whom Hizam says that he knows on sight? No charges have been filed. He, too, is an innocent man.

Contact Bruce Rushton at brushton@illinoistimes.com.

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