UUW Tag Archives — Chicago Criminal Lawyer Blog

March 23, 2014

Illinois’ Concealed Carry Law & Domestic Violence

by Law Offices of David L. Freidberg, P.C.

Illinois’ concealed carry law, which passed the state legislature in July 2013, officially went into effect when the state police began sending out its first round of permits in late February. As of March 1, 2014, 5,000 license applications had been approved and were processed for mailing, and 46,000 applications had been received so far overall.

Illinois’ domestic violence laws prohibit an individual who is the subject of an order of protection (a restraining order) from possessing or acquiring a gun. The new concealed carry law prohibits those convicted of domestic violence – whether domestic battery, aggravated domestic battery or similar offense in another jurisdiction – from obtaining a concealed gun permit. But domestic violence advocates are worried that it doesn’t do enough to keep firearms out of the hands of perpetrators.

Section 15 of the concealed carry law allows police to object to the granting of a permit if the applicant has been arrested for any reason five or more times in the seven-year period preceding the application. An objection postpones the decision of whether to grant a permit for 90 days. During that time the police forward all prior arrest information to the Board, which will then decide whether or not to issue the permit.

Because those charged with domestic violence are often repeat offenders with a pattern of escalating abuse, advocates are concerned that the “five arrests in seven years” prohibition is insufficient to protect victims. Many domestic violence victims file for restraining orders but then drop them out of fear, or don’t take the next step of pressing criminal charges. In other cases, perpetrators are never prosecuted, even when an arrest is made because the victim ultimately refuses to cooperate out of fear. This “loophole,” then, would allow otherwise violent perpetrators to get their hands on a concealed carry permit.

Objections to the Applications

Since the law went into effect, sheriff’s departments in Cook and Lake Counties had opposed 237 out of 14,369 concealed carry permit applications because of domestic violence and orders of protection. The Chicago Police Department objected to 86 out of 3,186 applications. They did not say if all of the objections based on domestic violence and orders of protection exceeded the five times in seven years threshold. An objection does not guarantee that the concealed carry permit will be denied.

But proponents of concealed carry believe the law is fair, arguing that an arrest isn’t the same as a conviction. Prosecutors may choose not to press charges, and jurors may acquit a defendant, because they believe the claim of domestic violence was false. Punishing an individual because he was falsely accused would be unfair and a violation of his or her rights.

Individuals whose applications are denied have the right to appeal to the Board and, if the permit is still denied, then to the courts. Because some believe the law offers a loophole that will put firearms in the hands of those they believe are dangerous, the area is rife with the possibility of denials based on less than that threshold, in the hopes that the applicant will not file an appeal if the Board denies the application.

The appeal process will no doubt involve rehashing and dissecting those prior arrests, with the police arguing that your arrest history marks you as a violent repeat offender, and that allowing you a concealed carry permit would be dangerous to the public. Continue reading

January 23, 2014

Aggravated Unlawful Use of Weapon Conviction Vacated

by Law Offices of David L. Freidberg, P.C.

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

September 18, 2013

ILLINOIS GUN STATUTE DEEMED UNCONSTITUTIONAL!

by Law Offices of David L. Freidberg, P.C.

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

July 25, 2013

Chicago Gun News – New Illinois Concealed Carry Law Enacted by Legislature

by Law Offices of David L. Freidberg, P.C.

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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July 24, 2013

Chicago Gun UUW News – New Illinois Concealed Gun Law Sparks Federal Litigation

by Law Offices of David L. Freidberg, P.C.

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.

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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