Articles Posted in Aggravated Battery

tertia-van-rensburg-37121-copy-300x224Assault and battery cases occur on a daily basis in Chicago. If you are ever charged in such a case, it is important for you to know what you face moving forward. For starters, you should never defend yourself in court when it comes to even minor or misdemeanor charges. There is no reason you should mess with your freedom or your rights. Let’ us take a look at assault and battery cases in today’s post so you know what to expect if you ever face these charges.

Definition of Assault

The most common definition of assault is when one person threatens to harm another or incites the fear of harm in another person. It could also include the intent to injure another person. For the most part, contact with the victim is not necessary for someone to be charged with assault. That is why you do not need battery to be present for assault be a charge, while on the other hand battery requires assault for both charges to be issued.

nicolas-barbier-garreau-256433-copy-300x240Aggravated battery of a police officer is a serious crime. Chicago judges and law enforcement are especially harsh on these cases. If you were recently charged with this crime, it is important to know your defense options. It is also crucial that you look at recent cases to understand how harsh the judge could be at your arraignment and potential trial.

Recent Cases

On July 4, 2018, Chicago police responded to a domestic dispute at a party. A woman told police that her boyfriend had physically assaulted her. She had left the event, but her child was still there. When the police attempted to arrest the boyfriend, he became violent and used the child as a shield against them. Two of the man’s relatives then assaulted the officers in an attempt to free him.

a-l-117960-copy-300x198Although crime has been on the decline in Chicago as of late, carjacking is still a common occurrence throughout the city. Due to the nature of a city/urban environment, many people live in close quarters who are using vehicles for their commute, leading to the prevalence of this particular crime. Car jacking crimes can take on many different forms. For example, carjacking is nearly always more of a serious offense than car theft due to the vehicle being taken by force or intimidation, or sometimes both. Certain actions leading up to the illegal obtainment of the vehicle may qualify as an aggravating factor to your offense.

Under Illinois law, an aggravated carjacking is sentenced as a class X felony, which is a mandatory six to 30 years in prison, while a plain carjacking offense is a class 1 with a four-to-15-year minimum sentence.

Armed and Dangerous

alex-holyoake-202959-copy-300x200A number of legal issues arise when an employee of a company commits assault on one of its customers. The lines of liability can be blurred, not least because the crime occurs on a business premises. Moreover, the employees are deemed to be working on behalf of their company during office hours. A distinction has to be made between the personal liability of the employee and the corporate liability of the employer. A good lawyer is the key to success in any case.

The first critical consideration is that the employee who has committed the assault is criminally liable for those ctions. When it comes to the civil cases, the employer may be asked to compensate the customer for any demonstrated injuries. Such was a case when a number of ex-bouncers admitted to assaulting customers in a club based within the Chelmsford area of Chicago.

Case Study of Employees Who Commit Assault During Business Hours

Hilulaohaio-225x300Chicago has sought to deal with the increasing problem of hate crime using legislative means. The provisions of the Illinois Hate Crime Act (IHCA), 720 ILCS 5/12-7.1, are the leading authority on the management of the criminal process. The act creates an imperative on the state to prosecute but does not explicitly remove the opportunity for private civil cases to take place. Many victims take the opportunity to sue for damages, even when the aggressor is a public authority or their representatives. The range of options for the court includes actual damages, punitive damages, and additional costs, including attorney fees. At other times, the court may offer injunctive relief in order to stop the offending behavior from happening.

The criteria for what constitutes a hate crime can be fluid and those who offend have often used the ambiguity of definitions in order to attempt a get-out-clause for their behavior. Typically, they will claim that this is a case of freedom of speech, which is constitutionally guaranteed. For those who actually go on to commit acts of violence, the case is much simpler since the prosecutor can go for the assault line of questioning and later prove that hate-inspired motives were at play. A crime becomes a hate crime when it is motivated by perceived creed, race, color, gender, ancestry, religion, sexual orientation, disability, nationality and even membership of a particular group. Bigotry is at the heart of this crime and will be part of the Mens Rea during the prosecution.

The Importance of the Motivating Factors

3scbuulajgg-matthew-hamilton-300x200It is a nightmare scenario when a defendant is accused of having injured a police officer in the line of duty. Both the courts and probation office are reluctant to give defendants any benefit of doubt or leeway in such circumstances. The message is clear: You mess with public officials and the public will mess with you by way of aggravated sentencing guidelines. Although such cases are a true test of defense skills, it can certainly help to solidify some of the key aspects of criminal defense. Many trainer attorneys might benefit from handling such a case. The key ingredients of the crime are summarized in the provisions of 720 ILCS 5/12-3.05.

Understanding the Crime and its Ingredients

It helps to first understand the general crime of battery and then assess the aggravating features in as far as they relate to the current case. First of all, the defense team must take note of the important technicality that battery for these purposes excludes the discharge of a gun. That is an entirely separate crime with more serious consequences for the defendant if one of the victims was a police officer. In any case, there is a requirement that the defendant knowingly committed the constituent acts which include causing bodily harm or disfigurement. The harm clause also refers to permanent disability.

Two Chicago store clerks who were the victims of an armed robbery opened fire on the alleged assailants recently. Following the robbery, the manager of the 7-11 saw a vehicle parked in the alley; when he and the employee approached with guns, the alleged assailants opened fire. The clerks fired off eight shots before the alleged assailants fled.

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Self-Defense: By the Victims or the Armed Robbers?

This case raises an interesting question of whether the victims were justified in their use of force against the armed robbers, and whether they could face potential charges of aggravated battery or aggravated assault for firing upon the alleged assailants.

Illinois law allows an individual who used force against another to claim self-defense if “he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.” The law further states that a person can only use force intended to, or likely to cause, death or great bodily harm – such as firing a gun – “only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Illinois law does not allow a person to claim self-defense if force was used during an escape from commission of a forcible felony, or initially provided the use of force himself. It also cannot be claimed if the person asserting the defense initiated the contact, unless he indicates his desire to withdraw from his initial use of force.

So in a typical convenience store robbery, the alleged victims would have been justified in pulling their weapons and firing if they had done so during the commission of the crime. One assailant allegedly held a gun to the clerks’ head and threatened to blow his head off if he didn’t hand over the money. Under the self-defense law, the clerk and his boss would have been justified in pulling their weapons and firing because there was a reasonable belief that their lives were in imminent danger. They also would have been justified in using force, even if the assailant hadn’t made the threat, because armed robbery is a forcible felony.

But the circumstances surrounding this case are not so straightforward. The clerks pulled their guns after the armed robbery had been committed and the assailants fled the store. So there is a question of whether the clerks’ use of force was justified, or whether the assailants themselves could claim self-defense.

At the point where the clerks approached the assailants with their weapons, there was no longer a need to defend against another’s use of imminent force, there was no fear that either of them were in danger of suffering great bodily harm, and the forcible felony had been completed. This doesn’t appear like the typical “escape” scenario, because the clerks did not chase the assailants out, guns drawn. Instead, the assailants left with the money, and the clerks then saw a car in the alley on their security cameras. They then chose walk out and confront the assailants, not even sure if the people in the car were the assailants. Their actions could be considered retaliation or vigilante justice rather than self-defense.

You may be thinking, “But when the clerks approached, the assailants drew their weapons and opened fire, so the clerks were justified.” That may be true. It may also be true that the assailants (assuming they even were the assailants) were now in fear for their lives and opened fire to protect themselves from imminent bodily harm. Yes, the law says that a person who initiated force cannot then claim self-defense if force is used against them. However, the initial aggressor can claim self-defense if he indicated a desire to disengage. Here, the fact that the assailants fled the scene could show an indication on their part to disengage from their initial threat of force, so that the clerks’ approach with guns drawn was now an improper use of force.

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A 92-year-old woman was acquitted of aggravated assault against an off-duty Chicago police officer, but still faces two counts of misdemeanor battery in an incident that left her 86-year-old husband dead. The woman and the police officer’s wife were also shot.

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The two couples were neighbors who had a longstanding dispute over what relatives and neighbors of the two couples described as petty differences – snow being dumped on each other’s sidewalks and littering on the lawns. On the day in question, the officer allegedly heard his wife and the defendant arguing, and came out to see the defendant throwing dirt over the fence at his wife and hitting her with a broom.

At some point, the defendant’s husband went back inside the home and returned with a gun, firing at the officer’s wife and hitting her in the chest and arm. It was then that the police officer returned fire, killing the husband and hitting the defendant in the arm.

Aggravated Assault of Chicago Police Officer

As I have discussed previously on this blog, an assault is committed if the defendant “knowingly places another person in reasonable apprehension of receiving a battery”. However, assault against a police officer is automatically aggravated assault. In this case, the officer and his wife claimed that the defendant committed aggravated assault because she allegedly reached for her husband’s gun after he had been shot.

A judge acquitted the defendant of aggravated assault, ruling that the prosecutor hadn’t provided enough evidence to support the charge. This was the right call based both on circumstances and the law.

First, circumstances. While the officer and his wife allege that the defendant reached for her husband’s gun after he’d been shot, the chaos that no doubt surrounded the shooting would have made their recollection of the incident suspect. While it is possible the defendant did reach for her husband’s gun – whether to retaliate or to protect herself from further gunshots – the more logical scenario is that she was reaching toward her husband to help him. And since he’d been holding the gun when he was shot, it was likely either in his hands or close to his body, which could have caused the officer and his wife to misconstrue her action. Because of these conflicting scenarios, it casts reasonable doubt on the defendant’s motives, thus necessitating her acquittal.

Now the law. Aggravated assault of a police officer occurs if the assault took place:

  • While the officer was performing official duties;
  • To prevent performance of official duties; or
  • In retaliation for performing official duties

In this case, the officer was not performing his official duties – he was off-duty. So even if the defendant had been reaching for her husband’s gun, the most she could have been charged with was simple assault, as the officer was not acting in any official capacity.

Chicago Battery Charge

The defendant was charged with battery for allegedly throwing dirt at her neighbor and hitting her with a broom. This may seem laughable – potential jail time for throwing dirt on somebody? A battery charge for hitting her neighbor with a broom? How hard could a 92-year-old woman actually hit somebody? Unfortunately for the defendant, the law makes no distinction for the extent of the injury. The slightest touch qualifies as a battery, even if it does not cause any physical damage.

But the prosecution must prove that the defendant did in fact strike the neighbor. If the dirt was thrown in the wife’s direction, but never hit her, or if the defendant simply waved the broom in the air, again not hitting her, the battery charge would have to be dismissed. Or if the wife committed a battery against the defendant first, there could be a claim of self-defense. Or the police officer and his wife could be exaggerating, or even fabricating, the battery claims, in an attempt to make themselves appear less blameworthy. These avenues would all have to be explored pre-trial in an attempt to get the charges reduced or dismissed entirely.  Continue reading

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

A Chicago man was charged last week with aggravated discharge of a firearm after firing shots at another vehicle on the Dan Ryan Expressway. The victim’s car sideswiped a second vehicle, causing it to crash into a center divider. Additional charges are expected to be filed.

Chicago Aggravated Discharge of Firearm  

A person commits the crime of aggravated discharge of a firearm in Illinois if the firearm is discharged “in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.” Aggravated discharge of a firearm is a Class 1 felony, and carries with it the possibility of 4-15 years in prison.   car-accident-2-774605-m

There is no need to prove intent to harm in order to be convicted of aggravated discharge of a firearm. Just having fired the weapon in the direction of a vehicle is enough.

The police indicate that additional charges may be filed. One potential charge may be for aggravated battery. This crime occurs when a person discharges a firearm and causes injury to another person. In this case, the alleged shooter could potentially face two counts of aggravated battery – one against the person the shots were fired at, and a second for injuring the driver of the second vehicle.

The alleged shooter can be charged with aggravated battery in this case – even though he did not directly cause the injury to the second driver – because his action of discharging the firearm set in motion the chain of events that caused the second driver to be injured.

Defenses to Illinois Charge of Aggravated Discharge of Firearm

In this case, as the firearm was discharged toward a moving vehicle, it would seem there is little room to make the argument that the defendant did not reasonably know the vehicle fired at was occupied. However, that does not mean there are no available defenses.

In any criminal case, the first line of defense would be to determine whether the eyewitnesses identified the correct individual. In this case, the shooting happened while the vehicles were driving on the expressway at high speeds. It also occurred at night. Both these facts tend to make it more difficult for the eyewitnesses to identify the shooter, so a careful review of their testimony is necessary to ensure the police arrested the right man.

Close examination of the forensic evidence in this case is necessary to ensure that the prosecution charges the correct person. In this situation, the vehicle from which the shots were fired was occupied by the alleged shooter and a passenger. A team of experts would examine the forensic evidence to make sure there are no other possible explanations regarding the shooter’s identity.

Evidence that may be present to cast doubt on the shooter’s identity could include:

  • Gunpowder residue found on the passenger’s hands, which could indicate that she was the shooter;
  • Lack of gunpowder residue found on the alleged shooter’s hands, which could disprove that he was the shooter;
  • The passenger’s fingerprints being found on the weapon, and;
  • Lack of the alleged shooter’s fingerprints on the weapon.

While acquittal is always the goal, if it seems unlikely from a review of the evidence that acquittal is possible, an attorney would seek to reduce the charges to reckless discharge of a firearm. This would require review of the weapon to determine if the evidence can support a conclusion that the discharge was unintentional and due to a defect or other mechanical problem with the weapon. Forensic experts would assist in examining the weapon to determine whether the discharge was due to a weapon malfunction. Continue reading