Articles Posted in Reckless Discharge

Under the law, police officers face the same consequences for committing crimes that the general public does. The issue that comes into play is the fact that police officers have more ability to manipulate the law to their advantage than the general public does. When they commit crimes, they understand how an investigation will unfold, they can cover their tracks, and they have the support of their brothers in blue to back them up.

Recently, an off-duty Chicago police officer was charged with discharging her weapon at Sam’s Club when a team of thieves attempted to swipe her SUV. She was in the parking lot with her husband when the theft occurred. The officer opened fire on the thieves and has since been charged with a crime: Reckless discharge of a weapon. Did she really commit a crime?

Analyzing the Charges

A Herald report indicated that Luke Bertolini, a Manhattan, IL resident, is facing several charges in relation to a shootout near Channahon, including aggravated unlawful use of a weapon, reckless discharge, and criminal damage to property.  According to the report, Bertolini was in a restaurant in Wilmington when he ran out and started shooting a gun.  He apparently asked the bartender, “Can you fight?,” then went outside and fired two or three shots in the marina.  After the shots were reported, county and state police arrived to assist. Bertolini had left the restaurant before they arrived in a yellow vehicle driven by a blond female. Witnesses in the restaurant seemed to indicate the Bertolini seemed to be under the influence of drugs at the time.7529627670_b5dfd87cf6

The police later located Bertolini’s vehicle driving north on I-55, and the police officer who spotted the vehicle activated his emergency lights to stop it. After stopping, Bertolini exited from the passenger side of the vehicle with two handguns. He then exchanged gunfire with the police, but was apprehended without anyone being struck. Police also arrested the female driver of the vehicle.

Firearm Crimes in Illinois

In Illinois, a person is guilty of aggravated unlawful use of a weapon when he or she knowingly carries or has a vehicle or concealed somewhere in his body any pistol, revolver, stun gun or taser or other firearm while present on any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town. Additionally, the firearm must be uncased, loaded and immediately accessible at the time of the offense or the firearm possessed uncased, unloaded and the ammunition for the weapon was immediately accessible.

A related charge is reckless discharge of a firearm. A person is guilty of this offense if he or she discharges a firearm in a reckless manner which endangers the bodily safety of another. Additionally, if this crime was committed by a passenger of a moving motor vehicle with the knowledge and consent of the driver, the driver is also accountable for the conduct and may be similarly charged. To determine whether the discharge was reckless, the prosecution would have to prove the the suspect consciously disregarded a substantial risk that discharging his or her weapon would pose a danger to the safety of another in a way that does not reflect what a reasonable person would do in a similar situation.

Reckless discharge can be elevated into an aggravated crime if the suspect fired the weapon in the direction of another person or group of people, into a vehicle or structure from outside, or if the suspect used a silencer.

Penalties for Conviction of a Weapons Charge

Aggravated unlawful use of a weapon is considered a Class 4 felony that can result in a sentence of one to three years in prison and a fine of up to $25,000. Courts are permitted to sentence defendants to probation. A second offense is considered a Class 2 felony with a mandatory prison sentence from 3 to 7 years, which is non-probationable.

WIth regard to aggravated reckless discharge of a firearm, this is considered a Class 1 felony. It is punishable with a 4 to 15 year term in prison, and a maximum fine of up to $25,000.

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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

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

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