Assault

March 16, 2016

The First Amendment and the Right to Assemble

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

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There is a safeguard under our First Amendment for political protests. However, that safeguard does not extend to protests that lead to assault and battery (or worse) of other protesters, passersby, police officers, or news reporters.

Most recently, during a political rally in Chicago, for one of the Republican candidates, Donald Trump, a protest erupted. Thousands of protesters and the candidate’s supporters faced off in what started as a mere disagreement in campaign policies and slogans and ended in a “free for all.” In the aftermath of the protests, four people were arrested. One of the protesters faces one count of felony aggravated battery against a police officer and five misdemeanor counts of resisting arrest. If his main purpose for attending the rally was to go to jail, then he succeeded.

March 11, 2016

Fast-Food Fights are Criminal Assaults and Battery

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

On the rise, and all across the nation, patrons of fast-food eateries are waging war against these establishments in the form of criminal activity; actually they are engaging in fast-food fights with the establishments’ workers over errors in food orders, etc., and sometimes just because they want to fight an easy target. The mistake in the order just may be the excuse.

These occurrences have become equivalent to “off” road rage as patrons, looking for their favorite fast-food burger, chicken nuggets, or breakfast meal deal have taken to attacking and assaulting fast-food workers over disputes about their abilities to “have it their way.” What is the psychology behind this? Is this a natural phenomenon amongst people who frequent fast-food restaurants and if so, what is causing it?

Is it the Food or Something Else?

June 5, 2015

Citizens Forcibly Detain Alleged Chicago Robber

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

Three Chicago men chased down and forcibly detained a man after he allegedly committed robbery of a woman in the vestibule of a building. The three men tackled the alleged assailant and held him until police arrived. Although there is no indication that police plan to do so, under certain circumstances the three men’s actions could be considered crimes themselves.

Chicago Vigilante Justice

People who prevent crimes are generally regarded as heroes. But there is a price to vigilante justice – just like the criminal justice system, sometimes innocent people are wrongly accused of crimes. That is why the law discourages citizens going out and “righting wrongs” and arrests them for their crimes – think fathers who murder their daughter’s abuser, or a brother murdering the people who killed his sister. Bringing assailants to justice is best left in the hands of the criminal justice system, where all of the evidence is brought before a jury to examine and make a decision on the defendant’s guilt or innocence.

In this case, it is unlikely that the prosecutor would file charges against the three men because their actions followed immediately upon the heels of the alleged crime. Most cases brought against vigilantes are done when their acts were done at some time following the crime, making them more deliberate, as opposed to a heat of the moment case.

That being said, what are some possible charges that could be brought against the three men who detained the alleged assailant, and what are the possible defenses?

Assault

Assault occurs when a person, without lawful authority, puts another in fear of bodily injury. The alleged assailant in this case no doubt feared for his safety as he was being chased by these three men. It’s not like they were chasing him to say hi, or return something he’d just dropped on the street. The minute they yelled and started chasing him, the assault was complete.

Battery

Battery occurs when a person, without legal justification, causes bodily harm to another, or makes physical contact of an insulting or provoking nature. When the three men grabbed the defendant, that contact was sufficient to constitute a battery.

Unlawful Restraint

A person commits the crime of unlawful restraint if he “knowingly without legal authority detains another” person. In this case, the three men clearly detained the alleged assailant, holding him until police arrived. Their action was performed knowingly – that is, intentional – because they chased after him in order to catch and detain him.

Defense

The only defense to each of these charges would be if the men had “lawful authority” to chase and detain the defendant. Illinois law permits a “citizen’s arrest” if the person has “reasonable grounds to believe that an offense . . . is being committed.” In this situation, whether the men had legal authority would hinge on when their chase of the alleged assailant occurred. If it began before the crime was completed – for example, if they heard the woman yell while her purse was being stolen and began the chase – then they would have the legal authority required to make a citizen’s arrest. But if they gave chase after the defendant had already ran away, they would not, because a citizen is only authorized to make an arrest if the crime is being committed, meaning it has not been completed yet.

January 30, 2015

Chicago Man Arrested for Robbery, Assault of Landlady

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

A Chicago man was recently charged for the alleged assault and robbery of his mother’s elderly landlady. The robbery occurred shortly after the defendant’s mother paid rent for the month.

Question of Identification in Robbery

In this particular case the victim was allegedly robbed by two men, the defendant and an as yet to be determined co-offender. The defendant allegedly grabbed the victim around the neck and covered her mouth, presumably to prevent her from crying out for help. The robbery occurred outside the apartment building.

There is an immediate question of whether the victim properly identified the defendant as her assailant. The victim was grabbed from behind, and with the hand over her mouth was unlikely able to turn her head to see who had grabbed her. Following the robbery she was pushed to the ground. Reports indicate that the fall caused nerve pain and made her unable to move her legs, so it is also unlikely she was able to turn to get a good look at her assailants as they fled.

Thus, it is quite possible that, injured and most likely extremely shaken-up over the assault, she described the defendant to the police and later identified him in a lineup as the assailant not because he actually committed the crime, but she had seen him shortly before the assault and was therefore the most recognizable.

Careful attention then would need to be paid to the circumstances surrounding the police lineup and whether they influenced the victim in any way. Factors that would tend to show that the police unduly influenced the victim’s description of the perpetrator, and thus would invalidate her identification, include:

Whether law enforcement asked leading questions when obtaining a description of the assailants, such as specific questions about his physical characteristics;
Whether the non-suspects included in the lineup of similar coloring, height and build as the defendant;
Whether law enforcement asked the victim to specifically take a look at the defendant, or to check him out again if she did not immediately select him;
Whether law enforcement took any other action or made any other statements that drew more attention to the defendant than the other people in the lineup.

Examination of Injuries Sustained in Assault

The victim allegedly suffered a bulging disc, nerve pain and an inability to move her legs following the assault and robbery. Although the degree of the injuries suffered does not increase the charge, it could have a huge impact on the jury. The victim is 68 years old, which will likely make her extremely sympathetic in the eyes of the jury. The more injuries she suffered during the assault, the more likely the jury is to view the defendant in an unfavorable light for assaulting who they perceive as a poor, defenseless little old lady.

It is therefore important to have a medical forensic expert review the victim’s medical records to determine if the injuries she suffered were consistent with the actions taken in the assault. It is also important to review her prior medical records to determine if she has a pre-existing condition that could have caused the nerve pain and bulging disc flare up as a result of the assault, as opposed to being the cause of the injuries. Continue reading

January 14, 2015

Chicago Store Clerks Defend Against Alleged Armed Robbers

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

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.

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.

November 19, 2014

Chicago Man Arrested for Shooting Girlfriend, Off-Duty Cop

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

A Chicago man was arrested last week after shooting his ex-girlfriend in the thigh; he also shot the girlfriend’s mother, who is a Chicago police officer, numerous times, and kidnapped his son. Charges are pending, but it is likely the man faces at minimum charges of attempted murder, aggravated assault with a weapon and kidnapping. When arrested, the defendant allegedly admitted to the shootings, asking police, “Did I kill her?” and saying, “I didn’t want this to happen, I didn’t want it to go this far.”

Defense when Defendant Admits to Crime

In all criminal defense cases, the defense attorney’s goal is to get the best possible result for his client. The ultimate goal is an outright acquittal, where the defendant is found not guilty and walks out of the courthouse a free man. Yet in some cases, all the available evidence points to the defendant’s guilt, so an acquittal is not a viable defense strategy. This does not mean, however, that the defendant has no options – and it is these cases where an experienced criminal defense attorney can make all the difference.

We will assume, for this discussion, that the defendant’s statements to the police upon his arrest were in fact made, and that they are a true admission of his guilt. That confession, coupled with both shooting victims likely being able to identify him as the shooter, the defendant and girlfriend’s son being found in his custody, and the gun and spent casings being found in his car – assume again they are a match for the weapon used – all point to his guilt, and would make it difficult to argue a case of mistaken identity, accidental misfiring or self-defense.

The goal of the criminal defense attorney in this case, then, would be to work to get all or some of the charges reduced or dropped. The kidnapping charge has the potential to be reduced to child endangerment or dropped entirely. Technically the defendant’s actions meet the definition of aggravated kidnapping – he transported his son (because he did not have visitation with his son at the time, he is considered to have kidnapped him) while armed with a firearm and while discharging a firearm that caused great bodily harm to another person.

However, a case could be made that at the moment of the kidnapping, the defendant was actually acting in the child’s best interest. The child’s mother and grandmother had just been shot – leaving him alone and frightened in the middle of a crime scene was potentially more dangerous than the defendant removing him from the scene. The fact that the boy was soon found unharmed at the home of another family member adds additional support to reducing or dropping that charge.

The defendant is also allegedly a Gangster Disciple, a notorious Chicago-area gang. The prosecution may be willing to enter into a plea agreement for a reduced sentence in the defendant were willing to testify against any other current gang members. The defendant may also qualify as a participant in Chicago’s Gang Intervention Probation or Gang Violence Reduction Strategy programs.

September 24, 2014

Sexual Assault: It Happens to Men, Too

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

A Chicago woman was arrested for her role in the alleged sexual assault of a Chicago man at gunpoint. The defendant and her friend picked up the man in their car as he walked down a Chicago street and proceeded to assault him.

Male Rape Victims

Sexual assault of a man can – and does – happen. Rape is traditionally an underreported crime, even more so for men than women. But the most recent statistics indicate that 38 percent of sexual assaults occur against men by women. Other studies estimate that 1 in 10 adult males will be the victim of a sexual assault.

The word “rape” typically elicits an image of a man forcing a woman to engage in unwanted sexual intercourse. But Illinois sexual assault laws are gender neutral. Criminal sexual assault requires penetration by any object. If the woman causes the male to penetrate her, whether forcibly or through threat of force (for example, at gunpoint, which was alleged in this case), or if she uses any object to penetrate his anus (including fingers), that constitutes penetration under the law.

Criminal sexual abuse requires an act of sexual conduct by force or threat of force (again, at gunpoint would qualify). “Sexual conduct” includes touching of sexual parts. In this case, forcing the alleged victim to fondle the woman’s breasts constitutes an act of sexual conduct that could result in a charge of sexual abuse.

Defense Against Sexual Assault

Defending a charge of sexual assault against a male is no different than defending a charge of sexual assault against a female. In the above case, as in the majority of sexual assault cases, there were no eyewitnesses other than the three parties involved. Therefore, the case comes down to “he said-she said.”

Some sexual assault claims are fabricated in an attempt to retaliate against the alleged offender for some perceived transgression, or else stem from a sense of regret that the sexual conduct occurred. This is especially true in cases that begin consensually. In such cases, a careful review of the circumstances leading up to the alleged crime is necessary to determine whether the crime was fabricated as an attempt to save face, or to retaliate against the alleged perpetrator.

In the case mentioned above, where the victim willingly entered the defendant’s vehicle, it is possible the man originally intended to purchase sex. An investigation into his criminal background could reveal prior arrests and/or charges of solicitation or attempted solicitation. This, in turn, could support a defense that, after the parties engaged in consensual sex, the defendant committed an attempted robbery, and the man retaliated by filing the sexual assault claim. Continue reading

March 31, 2014

Chicago Assault and Battery Crimes – What’s the Difference?

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

You often hear of a person having committed “assault and battery”. But while they are closely related, in Illinois assault and battery are two separate crimes, each with different penalties. Assault and battery are also classified as simple or aggravated, with aggravated crimes carrying much stiffer penalties. If you have been charged in the city of Chicago, or in Cook, Lake, DuPage, Will, Kane or McHenry counties with assault or battery, contact an experienced criminal defense attorney immediately to begin mounting your defense.

Assault Crimes in Chicago

In Illinois, under section 720 ILCS 5/12-1, a person commits simple assault when he or she knowingly engages in conduct that “places another person in reasonable apprehension of receiving a battery.” Assault is a Class C misdemeanor punishable by less than 30 days in jail and a maximum fine of $1,500. If no jail time is imposed, then the court must order between 30 and 120 hours of community service.

Simple assault does not involve any physical harm to the alleged victim, nor does it require any physical contact. Instead, assault is putting someone in fear that they are about to be injured or struck in any way. However, the law requires that the threat be reasonable.

In examining this reasonableness, at attorney will consider whether:

You were close enough to the other person when you made the supposed threat that you actually could have touched them;

It was a threat you could have followed through on, or a comical threat that could never happen;

The threat was a single statement or action, or whether it was part of a longer interaction that left no reasonable interpretation that you intended harm – for example, you argued with a stranger over his having stolen your parking space and, between yelling about the general lack of courtesy in today’s world and why you were entitled to the spot, you yelled, “I’m so mad I could hit you!”

The presence of any of these scenarios could lead to a dismissal of the assault charges.

Battery Crimes in Chicago

Where assault is the threat of bodily harm, under Illinois statute 720 ILCS 5/12-3, battery is when the person follows through on the threat. A person commits the crime of battery in Illinois when he knowingly:

causes bodily harm to another person, or
makes physical contact of an insulting or provoking nature to another person

Battery is a Class A misdemeanor punishable by less than one year in jail and a maximum fine of $2,500.

Notice that a charge of battery does not require that the alleged victim was injured – there only needs to be unwanted contact. If you pushed someone during an argument, or if you poked the person while yelling racial slurs, this may be enough for the police to arrest and charge you with battery.

Likewise, you can be charged with battery even if you did not physically cause the injury. For example, you could be charged with battery if you punched someone in the face. You could also be charged with battery if you swing a baseball bat into a window, and a piece of shattered glass becomes embedded in the arm of a person standing next to the window. Even if you did not intend the harm, it could still be considered battery because you set in motion the chain of events that caused the injury. Continue reading