Articles Posted in Order of Protection

 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.

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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

Order of Protection – DISMISSED!

I am a criminal defense attorney, as you are most likely aware.  There is a subset of criminal law that melds into civil work – Petitions for an Order of Protection.  I used to shy away from these but over the past few years I’ve taken on many of these cases.

These cases are a different animal in many respects.  There are no State’s Attorneys, most of the Petitioners and Respondents are pro se, and the rules of evidence are loose and fast.  And the parties are almost always extremely emotional and demanding.

That having been said, I represented the Respondent last Monday in defense of a Petition.  The basic facts are that she dated the Petitioner for over a year, they planned to marry and for whatever reason, the wedding was cancelled by the Petitioner.  Then things fell apart disastrously.  Emails and texts were sent, police reports were filed, my client was arrested on more than one occasion as a result of the Petitioner’s false accusations.  She actually ended up with a misdemeanor criminal trespass to property!  That case went to trial and she was found not guilty.

I cannot tell you how much work went into this case.  My client was hysterical with how she was treated by the Petitioner and how much strife he caused in her life.  And truthfully, it was almost impossible for me to represent her as she was very demanding (understandably) with what she expected of my legal services.  I had to explain that it was a somewhat simple matter of defending the allegations in the Petition and that it wasn’t necessary to bring up other issues that weren’t related to those specific allegations.

We finally had the hearing last Monday.  And this is what I tell every client, criminal or civil: be calm in court, do not make any gestures, do not make any comments unless you are being questioned, and just stand there next to me and look at the judge.  People and some attorneys don’t understand that a judge is actually watching everything that goes on in her courtroom.  She notices how you dress, how you compose yourself and what you say.  I’ve lost trials based on how my client comports herself in court.

My client at her hearing did well.  She didn’t do anything to offend the court.  On the other hand, opposing counsel started yelling at her at one point when she didn’t answer a question the way he expected her to.  The judge lit into him like I’ve never seen.  At the end of the day, the judge found the Petitioner to be wholly unbelievable in his allegations and my client now has a clean record.  Justice prevailed.

The end all be all of this blog is that as an attorney, I not only have to be concerned with the facts of a case and my defense, but also how I prepare my client for a trial or a hearing.  You can’t just go over the case with someone and expect that they’ll understand how to comport themselves in court.  A simple shake of the head or sudden outburst, no matter how honest, can be devastating for the defense.  I always explain to them that they are going to hear things that are hurtful and often untrue.  Their response is to do nothing, just stand calmly at my side and let me do my job.  9 times out of 10, it works out in our favor. Continue reading