Articles Posted in Weapons Charges

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A Chicago man was charged with aggravated battery with a firearm, reckless discharge of a firearm and vehicular invasion following a shooting at a Cook County Preserve soccer field on Labor Day that injured one other man. The alleged shooter then tried to flee the scene by stealing a vehicle.

Chicago Defense to AggraOLYMPUS DIGITAL CAMERAvated Discharge of a Firearm

A person commits the Illinois crime of aggravated discharge of a firearm if he “discharges a firearm in the direction of another person.” In this case, we would first challenge the validity of the defendant’s identification as the shooter, looking first at whether gunpowder residue was found on the defendant’s hands or clothes, or whether his fingerprints were found on the weapon.

We would also challenge any eyewitness descriptions of the shooter. There were approximately 2,000 people present at the soccer game, given the chaos that ensued after the shots were fired, eyewitnesses would have difficulty accurately describing the shooter, let alone determining who fired the weapon. Another important point concerns whether the eyewitness descriptions of the shooter match the defendant. If the witness descriptions do not match, it would indicate a different person was responsible for the gun’s discharge.

Assuming eyewitnesses could positively identify the defendant as the individual who discharged the firearm, or if gunpowder residue shows the defendant fired the gun, a successful defense would require a thorough examination of the weapon to determine whether discharge was due to a malfunction. If the weapon discharged due to malfunction, the defendant cannot be charged or convicted of reckless discharge. David L. Freidberg’s team of forensic experts would examine all of the evidence surrounding discharge of the weapon to determine whether another explanation exists for its discharging.

Chicago Defense to Aggravated Battery

A person commits the Illinois charge of aggravated battery based on use of a firearm if he discharges that firearm and causes injury to another person. In this case, we would employ many of the same defenses as in the aggravated discharge of a firearm: challenge the identification of the shooter, as well as any evidence indicating he was actually the shooter. Forensic experts would thoroughly examine the defendant for evidence of gunpowder residue on his hands or clothes (or review police reports on these findings) to determine if the prosecution can prove, beyond a reasonable doubt, the defendant fired the weapon.

If the evidence proves the defendant did in fact fire the weapon, we would again examine whether there is another reason the weapon discharged, other than through the defendant’s intent. A charge of aggravated battery based on use of a firearm requires the defendant “knowingly” discharge the weapon. If the weapon malfunctioned, he did not knowingly discharge the weapon.  Continue reading

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The Illinois Supreme Court recently upheld a Chicago man’s conviction on a charge of aggravated discharge of a firearm toward a police officer, despite the fact that the defendant did not fire the weapon and claims he was unaware the shooter was armed.

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Illinois Common Criminal Design Rule

In People v. Fernandez, Fernandez was convicted of a single charge of aggravated discharge of a firearm toward a police officer (he was initially charged with one count of burglary and two counts of aggravated discharge, but the trial court merged the three charges into a single charge). Fernandez and his friend drove to a church under the Dan Ryan Expressway, where the friend attempted to burglarize a vehicle. Fernandez’ friend was approached by a police officer and opened fire as Fernandez drove away.

Fernandez claimed he had no idea that his friend had a gun.

A Chicago resident commits the crime of aggravated discharge of a firearm toward a police officer if he “knowingly or intentionally” discharges a firearm in the direction of a police officer. If Fernandez did not fire the weapon, how, then, could his conviction have been upheld?

In a previous post I discussed the felony murder rule, which allows a defendant who commits a forcible felony to be charged with murder if the victim dies during the commission of the felony, even though the defendant did not cause the victim’s death. The theory behind the felony murder rule is that forcible felonies are inherently dangerous crimes, so the defendant should know there is high likelihood that the victim will be injured or killed.

The common design rule is the felony murder equivalent to non-forcible felonies. Under the common design rule, if two or more people are involved in a common design agreement, any acts committed by one party in furtherance of that common design “are considered to be the acts of all parties . . .and all are equally responsible for the consequences of those further acts.”

Fernandez argued that because he did not know that his friend was armed, he cannot be held responsible for aggravated discharge of a weapon toward a police officer, and because he did not know his companion planned to commit that crime. The court rejected this argument, stating that because Fernandez admitted that he intended to help his friend burglarize the vehicle (by knowingly driving him around town looking for vehicles to burglarize), he is equally responsible for his friend’s conduct. “Conduct”, the court stated, “encompasses any criminal act done in furtherance of the planned and intended act.” In this case, Fernandez’ companion discharged his weapon toward the police officer in furtherance of the burglary, i.e., in an attempt to evade arrest.

Therefore, under the common design rule, just as in the felony murder rule, intent is irrelevant. What is relevant is whether the defendant intended to commit the underlying crime. If the prosecution can prove that, then all parties to the crime are responsible for the actions of the others.

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The Illinois State Police issued emergency rules last week dealing with the Concealed Carry License Review Board’s (CCLRB) denial of concealed carry permits. The new rules were created after dozens of lawsuits and more than 200 petitions for review were filed by Illinois residents whose concealed carry permits were denied with no explanation.

Unfettered discretion over denials of concealed carry permits and a lack of transparency resulted in roughly 1,150 permits being denied. In Cook County alone, police have objected to 1,545 applications since January 2014, when the law went into effect.

Illinois Concealed Carry Law

Illinois became the last state to authorize concealed carry permits after a 2012 decision by the United States Court of Appeals for the 7th Circuit ruled that the state’s ban against carrying concealed weapons was unconstitutional. The concealed carry law, which went into effect January 1 2014, allows law enforcement agencies to object to a permit application if the agency has “reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety.”

Law enforcement may also object to the granting of a permit if an applicant has:

  • 5 or more arrests, for any offense, within the 7 years prior to the date of application for a permit; or
  • 3 or more arrests, for any combination of gang-related offenses, within the 7 years prior to the date of the permit application

Once an objection is filed, law enforcement must provide the CCLRB with information that supports its objection. Under the law, this information, as well as all records of the CCLRB’s proceedings, are kept confidential and may only be released under a court order – thus the reason for the lawsuits.

Under the new rules, if the CCLRB feels that an objection should be granted, it must send the applicant a notice of the objection, the agency that made the objection and the reasons for the objection, within 10 days of its preliminary decision. The applicant then has 10 days to provide the CCLRB any information he wants the board to consider in regard to law enforcement’s objection. The CCLRB may choose to hold a hearing on the objection following receipt of the additional information.

It is heartening to see the State Police respond so quickly and forcefully to the concerns raised by those who have been denied a permit and to amend the rules to require the CCLRB to notify applicants of the basis for law enforcement’s objection. The right to bear arms is guaranteed by the Second Amendment to the United States Constitution. If the CCLRB is going to have blanket discretion to deny applications – especially where objections may be made based on the number of arrests, not just convictions – applicants must know the reasons for the objection so that they can file a proper appeal.

It is difficult for applicants to successfully appeal a denial if they have no idea why the application was objected to in the first place, and requiring them to obtain a court order to release the CCLRB’s records is a commitment of time and financial resources many applicants may not be able to make. These new rules are a step in the right direction for safeguarding the rights of Chicago residents and Illinois citizens to own a firearm.  Continue reading

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Illinois law enforcement began issuing permits earlier this year under the state’s new concealed carry law, and already it appears that law enforcement is singling out Cook County residents with any type of domestic violence history.

Police Objection to Illinois Concealed Carry Permit

The Illinois concealed carry law grants law enforcement the right to object to the issuance of a concealed carry permit if they have a “reasonable suspicion” that the applicant is a danger to himself or others, or is a threat to public safety.

When the application review process began on January 5 of this year, the Cook County Sheriff’s Department opposed 217, or 1%, of those submitted because the applicants had a history of domestic violence or were the subject of protection order; that number has since risen to 581, or 2.5% of all applications received to date. Gun crimes were the next highest reason for objections, with 378.  An objection does not guarantee that the concealed carry permit will be denied; instead, it grants the police up to 90 days to submit information to the Concealed Carry Licensing Review board supporting their objection.

The report notes that there is crossover amongst the objection categories, as some applicants had arrests for more than one crime, prompting the objection. Thus it is unclear whether any of the 581 objected applicants had convictions or charges for other crimes, such as drug crimes or assaults, which would have bolstered law enforcement’s objection. But with domestic violence being the highest objectionable category, it appears that individuals with these histories are being targeted. This is especially troubling when the basis of the objection was an order of protection.

Illinois Orders of Protection Not Evidence of Crime

Orders of protection can be obtained in criminal court in conjunction with a criminal charge of domestic violence. But they are most often obtained in civil court. A petition for an order of protection can be filed even if there is no arrest for domestic violence. While domestic violence is a serious issue, the protection order process is unfortunately abused, sometimes for personal gain, and other times for retaliation.

If your partner or ex-partner tries to get an order of protection against you, you may decide against fighting it, instead choosing to distance yourself from the situation. But given the potential rights that can be taken away if the order is issued, this is the wrong mindset.

If an order of protection is issued against you, it could negatively impact your ability to get custody of your children. You may have to list it on future job and housing applications. You will also need to include it on the application for a concealed carry permit, and in just the short time the licenses have been available, law enforcement has been trying to keep guns out of the hands of anybody who has any type of domestic violence in their past, even a non-criminal order of protection. Continue reading

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My client was charged with Aggravated Unlawful Use of a Weapon under 720 ILCS 5/24-1.6(a)(1) back in 2004 and was found guilty at trial in 2006.  Subsequently, in 2012, the Illinois Supreme Court, in People of the State of Illinois v. Aguilar, held that the Aggravated Unlawful Use of Weapons statute is unconstitutional.

In November of last year I filed a Motion to Vacate his 2006 conviction based on the Supreme Court’s decision arguing that since the statute has been declared unconstitutional it is void ab initio, meaning it is void at its inception and any conviction, regardless of when it was entered, should be vacated.

The State’s Attorney’s Office filed their response arguing that (a) the court has no jurisdiction to hear the matter as the motion was filed more than 30 days since the Court’s judgment and (b) that this is the incorrect venue for such a proceeding.  Argument was heard today and based on the correct motion having been filed by my office and the fact that the statute was declared unconstitutional, not only does the court have jurisdiction and venue is in fact proper, that my client’s conviction must be vacated.

Since my client has no other convictions on his record, his criminal background can now be expunged and is no longer a convicted felon!

But this is fast becoming a contested issue.  The general holding of the Aguilar decision is that the statute is unconstitutional.  Period.  The State’s Attorney’s office is now attempting to argue that the decision does NOT make the statute unconstitutional retroactively.  This makes no legal sense though.  The fact of the matter is, a law is either unconstitutional or it’s not.  It does not become unconstitutional at some point.  We have another motion pending in front of a different judge that is coming up in a few weeks.  I am expecting the State to make the argument regarding retroactivity, but am hoping it doesn’t come to that since I believe the judge may be leaning towards the State’s argument.

I would continue to advise those with prior convictions for Aggravated Unlawful Use of Weapons charges, assuming they had a valid FOID card at the time of the arrest, to contact us to file a Motion to Vacate the Conviction.  It certainly cannot hurt to try and if it is granted, it could clear your record and allow further employment advancement among other benefits. Continue reading

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The Illinois Supreme Court has ruled in People v. Aguilar, 2013 IL 112116 that Illinois’ gun statute (UUW) 720 ILCS 5/24-1.6(A)(1) is unconstitutional in that it violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution.  As a result, the Cook County States Attorney’s Office is dismissing a number of these cases!  There is still the issue as to whether a FOID (firearm owners identification) card is a requirement for these dismissals. At the moment, the State is only dismissing cases where the defendant was in possession of a valid FOID card.  We are starting to argue that a FOID card is not necessary.  Waiting to see how that plays out.

Additionally, my office is actively combing through our old files to locate those who have been previously convicted of Aggravated UUW under this specific statute provision.  Once located, we will be filing motions to vacate these convictions as well.  The statute doesn’t “become” unconstitutional as a result of this new ruling.  The ruling states that the statue is unconstitutional on its face, meaning it was always unconstitutional from its inception. Continue reading

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Many of my clients have faced Chicago aggravated robbery charges.  Don’t be fooled into thinking that the element of aggravated or armed robbery consists solely of the use of a functioning firearm.

In early August, two Chicago men attempted to hold up a West Rogers Park restaurant using a black toy water pistol. The “weapon”—a fairly convincing replica of an MAC-10 machine pistol—was partially concealed in one of the men’s t-shirts as he demanded that the restaurant owner give them food, stating “I will kill you, I have a gun.”  The owner reportedly told the men to come back in an hour and he would have a meal for them as he was too busy at the time. The men obligingly left, returning as asked, an hour later. Of course by that time the restaurant owner had called the police and ushered other patrons out of the restaurant for their safety. Both men were arrested and charged with attempted aggravated robbery. The man with the water pistol was additionally charged with possession of a replica firearm.  Both men were slated to appear in court on August 19th.

On a more national level, many will remember that O.J. Simpson was convicted of aggravated robbery and kidnapping thirteen years after he was acquitted of the crime of killing his former wife. Apparently Simpson was the leader in a group of men who used threats and force to take photos, footballs and other sports memorabilia from Bruce Fromong and Al Beardsley in a Las Vegas motel room in 2007. Simpson’s lawyer claimed his client was a target from the beginning and that Simpson was merely tryheavy-machinegun-1329270-ming to reclaim property which had been stolen from him. Simpson also claimed he had no idea the men helping him recover his property were armed at the time. Simpson was eventually sentenced to 33 years in prison although recently he was granted parole on some of the charges; he will likely remain in prison for several additional years unless his request for a new trial is granted.

In light of the above, it is important to consider the following:  robbery consists of taking another person’s property whereas aggravated robbery involves a number of additional dispositive factors. Chicago aggravated robbery charges can vary dramatically from case to case; issues which will determine the extent of the charges generally include the use of force or verbal threats during the act, robbing an elderly person, an injury on the part of the victim, suggesting a weapon is present (even if it was not) or invading the home of another during the robbery act. Aggravated robbery convictions charged as a Class 1 felony are very serious so the crime—even when a water gun is used and nothing is actually taken—can garner the offender 4-15 years in the state prison. The longer sentencing is reserved for robberies which take place in a church or school or when the victim is elderly or handicapped.

The charges of aggravated robbery could have a variety of defenses depending on the circumstances. Your attorney could claim mistaken identity or could defeat the robbery charges by proving nothing was taken.  Consideration will also be given to whether there were injuries involved, if you have ever been involved in gang activity or if you have a prior criminal conviction.  It is especially important that you not talk to anyone prior to retaining an attorney. Although we’ve all see television shows where the police officers advise suspects of their Miranda rights, few people actually follow this practice in real life. Many people attempt to talk their way out of the charges—a practice which almost always ends up making the situation worse. Continue reading

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By now almost everyone has heard about the Chicago unlawful use of weapon statute revisions.   These are also referred to as Chicago gun charges.

After a protracted legal battle, Illinois has adopted legislation to permit individuals to carry a concealed gun, but the permits likely will not be issued until 2014.  Illinois takes its place as the final state in the nation to approve a law to allow citizens to carry a concealed gun, but it has not been a smooth process and it may not be over yet.

The current process began in December of 2012, when the United States Court of Appeals for the 7th Circuit ruled that Illinois’ ban on concealed carry was unconstitutional in response to a challenge to the State’s unlawful use of a weapon statute by gun rights advocate Mary Shepard.  Pursuant to the holding of the 7th Circuit, the Illinois Legislature had until June 9, 2013 to enact legislation that permitted people to carry concealed guns.  The Legislature was granted a one month extension and the Senate and House drafted and approved legislation, which subsequently was significantly modified by Governor Pat Quinn’s amendatory veto.  However, with a Senate vote of 41-17 and a House vote of 77-31, the Legislature attained the three-fifths majority necessary to override the veto and enact the law.

The Legislature was under intense pressure to come up with some type of acceptable law before the deadline had past due to the uncertainty of what would happen with no regulation in place.  Concealed carry supporters claimed that they would be able to carry concealed any type of gun anywhere without any restrictions.  Gun control advocates claimed it would be up to local governments to craft and implement restrictions, which could be very strict.  The Legislature attempted to reach a compromise with the legislation that was passed, allowing a very permissive process for gun owners to be able to obtain a permit to carry a concealed gun while enacting prohibitions about where these guns could be taken.  Locations where concealed carry is not allowed include schools, parks, libraries, and buses and trains that are part of the mass transit system.While the Legislature was wrangling with language and restrictions on a person’s right to carry a concealed gun, Illinois Attorney General Lisa Madigan filed a request with the U.S. 7th Circuit Court of Appeals for a rehearing en banc, specifically asking that the entire 7th Circuit reconsider the decision.  The 7th Circuit rejected Attorney General Madigan’s request and Ms. Madigan did not appeal the decision to the United States Supreme Court.

Under the law passed by the Legislature, the Illinois State Police have 180 days to organize a program to process applications for concealed carry permits and an additional 90 days in which to get all application forms processed.  In order to obtain a permit, an applicant must:

  • Possess a Firearm Owner’s Identification card;
  • Have passed a background check;
  • Have undergone a gun-safety training program of at least sixteen (16) hours; and
  • Paid a fee of $150.00.

Although the State of Illinois now has enacted legislation that dictates the provisions for being permitted to carry a concealed gun and this law is far less restrictive than similar laws in other states, including New York where law enforcement personnel have the discretion to deny permits, gun rights advocates are not happy yet.  These advocates believe that the nine (9) months that it will take for the first applicants to obtain their carry permits is a continuation of the unconstitutional ban on carrying concealed guns.  Therefore, Mary Shepard, whose lawsuit was the impetus behind the Illinois concealed carry law, has gone back to federal court to force an immediate issuance of the permits.  Some local governments are in agreement with this position and have announced that they will not prosecute those local citizens who are discovered with a concealed gun.  Attorney General Lisa Madigan has filed a motion to dismiss Ms. Shepard’s case as moot because the requisite legislation has been enacted.  Now, it is a matter of waiting to see whether the courts will give Illinois law enforcement a little time to get an effective system in place.  This will greatly affect those facing Chicago gun charges.
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Despite Illinois’ recent enactment of its concealed-carry gun law, some gun rights advocates are still not happy – and, they are taking their dissatisfaction to federal court.  In a motion filed earlier this month by Mary Shepard, and backed by the Illinois State Rifle Association, she asserts that having to wait several months for the permit process to be outlined is an unjustified abridgment of her Second Amendment rights.  Shepard, a gun owner from Cobden, Illinois, was 69 at the time she was brutally attacked (along with her 83-year old coworker) and left for dead by Willis Bates, a paroled felon, as he burglarized the First Baptist Church where she worked.  As a result, she argues that had she been able to carry a gun at the time of the incident (back in 2009), she would have been able to thwart the attack and protect herself.

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By way of background, the new law was passed on July 9, despite Governor Pat Quinn’s rather vehement objections, barely meeting the deadline set by the 7th Circuit Court of Appeals to create the legislation.  Pursuant to its terms, Illinois State Police are charged with the responsibility of setting up a permit program before concealed-carry applications can be submitted. Specifically, the police have 180 days with which to complete this process, and an additional 90 days to process the application forms that they receive.  As a result, Shepard and several other gun rights advocates feel that the aforementioned timeframe is way too long and perpetuates Illinois’ long-standing gun ban until the permit process is up and running.  In her court filing, Shepard provides that “the delay proposed by the state constitutes an unacceptable perpetuation of the defendants’ infringement of the Second Amendment rights of Ms. Shepard and the other law-abiding citizens of the state of Illinois”, and further insists that “no Wild West anarchy would ensue” if the U.S. District judge, the Honorable William Stiehl, ruled in her favor.

In response to Shepard’s arguments, the State of Illinois has fired back, stating that her case is completely moot and therefore, should be dismissed.  According to the State, it asserts that the law provides Shepard with what she wanted all along – the right to conceal and carry a gun.  Moreover, it further argues that the timeframe allotted to the Illinois State Police to develop the permit program should be allowed to run its course.   Notwithstanding both the State and Ms. Shepard’s respective positions, no hearing date has been set by Judge Stiehl to rule on the matter.
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