Articles Posted in Weapons Charges

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There is no doubt about it, this year Chicago is experiencing a serious spike in shootings and murders. In fact, ABC7  reports that there were 65 fatal shootings in July alone. What is to blame for this spike in violence? While there are undoubtedly many contributing factors, the head of the Chicago Police Union claims that police paperwork is in large part to blame. In an interview with DNAinfo the union leader explained that the problem does not exclusively stem from paperwork issues, but that the implementation of two-page Investigative Stop Reports has led to fewer police stops and, therefore, more violent crimes being perpetrated on the streets.

Chicago’s New Two-Page Investigative Stop Reports

Starting on January 1, 2016, Chicago’s old checklist contact cards were replaced with two-page Investigative Stop Reports. Under the old contact card system, every time a police officer interacted with a civilian on the street the officer would document the encounter via a simple checklist on an index-sized contact card. However, police officers are now required to document each encounter by filling out a two-page questionnaire. This new requirement means that police officers in Chicago are spending much more time filling out paperwork and much less time interacting with people on the street. An article from DNAinfo notes that during the first 11 days under the new policy there was a 79% decrease in police stops. The article states that there were just 3,916 investigative reports filed during these 11 days, compared to the 16,698 reports that were filed during the same period last year under the old system. This difference is clearly astronomical.

79aaa5031c08291c62c195e3bbb734c1At first blush, the idea of predictive policing sounds a lot like something out of the movie Minority Report. In order to target their policing efforts, the Chicago Police Department uses a high-tech database of persons, which it refers to as the Strategic Subject List, who are most likely to be shot or to shoot someone. With murder rate on the rise, up 50% from last year, and an ever-increasing number of shooting victims, the department has ramped up its raids and is actively using this database to prevent violent crime. In the first half of 2016, there were 1934 shooting victims and 326 homicide victims in Chicago. From January 1 to December 31 of 2015, these figures were 2988 and 490, respectively. See Chicago Tribune articles for more. Chicago homicides; Chicago shootings.

The “list” contains a list of persons who are most likely to be shot soon or to shoot someone based on a computer algorithm that calculates a score based on arrests, shootings, affiliations with gang members and other variables. It ranks each person based on their score; the higher one’s score, the higher the probability he or she may be a victim or perpetrator of gun violence.  The algorithm does not use race, ethnicity, gender, or geography as a factor.

In the last two months, this list has helped the police crack down on deeply entrenched drug rings, particularly in Uptown and East Garfield Park. According to Chief Anthony Riccio, the head of the Department’s Organized Crime Division, the drug operations were run by local street gangs, and the proceeds from drug sales went to buying guns and funding other criminal acts by the gangs. In the last week of April, 70 people were arrested in East Garfield. Of the 70 people, 54 were charged with felony narcotics delivery or possession; nearly all of them – 49 out of 54 – were on the Department’s Strategic Subjects List. An additional 16 people were arrested in drug raids in Uptown during the same time period. Police targeted the drug rings that were selling heroin laced with fentanyl, which has been causing fatal overdoses in Chicago and its suburbs.   

POLICE OFFICER-SIDEARMThe city of Chicago has enacted some of the toughest gun laws in the United States in an attempt to control the city’s notoriously high rates of violent crime. Measures that they could not legislate to the satisfaction of the city council and Chicago police department without running afoul of the United States Constitution, politicians got around by making ownership restrictions so onerous that the average citizen could not, for practical purposes, legally own firearms anyway. Despite cautions from pro-gun groups and civil libertarians, Chicago’s city government had to learn for itself that strict gun control laws only prevent the law-abiding from possessing guns.

Legal Challenges

While the city leadership in Chicago seemed to think it would be acceptable to simply ignore Federal laws and the constitution of the United States, by practical effect or force of law, legal challenges have since worked their way through the system, and the United States Supreme Court has struck down a number of the significant illegal policies that the city has attempted to push on the citizens of Chicago. Gun stores are again conducting business within city limits, and concealed carry licenses are being issued. While this may seem initially to be a benefit for the residents of Chicago, it has caused some issues, as well.

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Violence is on our streets, in our communities, and in our schools. Chicago weekend street violence has become a constant, so much so that no one seems to be surprised at the total number of people who are murdered on any given weekend. Whenever we have a school shooting or any other violent act in which a gun is used, the subject of gun control will inevitably be introduced soon thereafter.

Gun control, as we know it, is a regulation of the manufacture, sale, transfer, possession, modification, and use of firearms. Proponents of gun control argue that it is needed in order to control crime and to reduce violence. While opponents insist that there is a Constitutional right in this country to bear arms (own a gun) established by our founding fathers, and that right cannot be infringed upon or abridged by any laws enacted by the individual states. It should be noted that United States has some of the most liberal “gun laws” in the world. By comparison, such countries like the United Kingdom have very strict limitations on gun possession.

Illinois Gun Control

A man was fatally shot by a customer as he tried to rob a business in Gage Park this past weekend. The man who was shot entered a currency exchange store, withdrew a gun, and demanded money. A customer then withdrew his own firearm and shot the alleged robber multiple times, and the man died. The alleged perpetrator had a long history of criminal charges for robbery, and the person who shot him did have a concealed carry permit and an FOID card.  Because the man who shot was legally carrying a firearm, the Chicago police have indicated he will not likely be charged with a crime. Obviously, understanding what you need to do to legally carry a concealed weapon in Illinois can make the difference in a real life situation as to whether you will later face criminal charges, so it is critical to know the law.

Firearm Concealed Carry Act

On July 9, 2013, Illinois adopted the Firearm Concealed Carry Act, which allows those with a valid license to carry a concealed weapon in public. This law was passed in large part in response to the high crime rate in Chicago and the surrounding area, as people began demanding the right to protect themselves in public. The crime rate is indeed lower since the Firearm Concealed Carry Act was passed. Illinois is a “shall issue” state, which means that the Department of State Police are required to issue a concealed handgun license as long as the applicant:

the gun black and whiteIf you own a television, you know that a scourge of gun violence plagues the nation on a daily basis, and perhaps nowhere more frequently than in Chicago. The spike in murders and other shootings in Chicago in the past year has thrust the city into the national spotlight, and it has recently been made known that the police in Chicago are seizing more guns than anywhere else in the nation.

In 2014, the police confiscated around 7,000 illegal guns. In the first nine months of 2015, the Chicago Police Department says it has already seized over 5,500 illegal guns. The numbers keep climbing, and according to both prosecutors and defense attorneys, this causes jurors to wonder where and how the police are getting all of these illegal firearms.

If you face gun charges in Chicago, you are overwhelmingly likely to be convicted. The Cook County prosecutors win seven out of every ten gun cases, although obtaining convictions is becoming more difficult. There is a growing skepticism toward the Chicago Police Force and the credibility of the officers, which is reflected in several recent high profile arrests that were either dismissed by the judge for lack of probable cause, or the accused was acquitted because the jury did not believe the story told by the police. The events of the past several years and the killing of many unarmed black men by police officers throughout the country have contributed to this climate.

One of the recent headlines in the Chicago Sun Times read, “Cook County prosecutors steer clear of judges in gun cases.” Gun charges can wreak havoc on your life and in the lives of your loved ones, and as reported in this article, prosecutors purposely avoid judges and instead go to grand juries to ensure they will get indictments for gun charges.

The State’s Attorney Anita Alvarez has actually ordered those prosecuting felony gun possession cases to present them to grand juries rather than go before a judge in a preliminary hearing.  In Illinois, grand juries and judges can both decide if there is probable cause for a trial, but grand juries are notorious for agreeing with the prosecutor and issuing an indictment. Judges can be less predictable, so the state’s attorney has decided to bypass them altogether.

How Does a Grand Jury Operate?

If you are in possession of a firearm and do not first obtain an FOID card (Firearm Owner Identification Card), and you are caught with it on your person, in your car, or even in some circumstances in your own home or place of business, you may be charged with Aggravated Unlawful Use of a Weapon, 720 ILCS 5/24-1.6 (“AUUW”).  If you are facing AUUW charges in Cook County or DuPage County because you were arrested for having a firearm and not having an FOID card, you need an experienced criminal defense attorney to defend you and protect your rights.  9549649481_302c7c57ef

Illinois requires that all residents who want to own a firearm first obtain an FOID.  You can fill the application for an FOID out online, or you can print it out and mail it, fax it, or scan it.  If you have an FOID card, you may transport a gun in your vehicle, as long as it is unloaded and in a case or other container.  If you are carrying a firearm that is loaded or not in a case, or is in the glove compartment of your car, and you get pulled over, you will be charged with unlawful use of a weapon.

What if you are Charged with AUUW?

It is far more serious, however, if you are caught with a weapon in your vehicle and you do not have an FOID card.  Even if you are an out of state person who has come to Illinois to hunt, you may be charged with AUUW if you are pulled over and have an unloaded firearm in your car.  The name of the offense is misleading, as you do not have to actually “use” the weapon to be charged with the crime – if you do not have an FOID card and you have a loaded or unloaded weapon in your car or on your person, you can be charged with this crime.  This is a Class 4 Felony under Illinois law, and you need top level legal representation if you are charged.

If you are convicted of AUUW for possession of a firearm without an FOID card, it is punishable by a minimum of one year in prison and up to (but not more than) three years, if it is a first offense.  There is also the possibility of a $25,000 fine.  If it is not your first offense and you are charged with AUUW, you could be facing seven years in prison.

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A Chicago man out on bond was arrested last week and charged with unlawful possession of a weapon by a felon, cocaine possession and marijuana possession. The defendant was arrested after Sheriff’s Office personnel noticed crack cocaine on a plate on the defendant’s dining room floor; a subsequent search uncovered a fully loaded AK-47 and a .357 revolver and marijuana.

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Search Incident to Electronic Monitoring Violation

Sheriff’s Office personnel came to the defendant’s home after his electronic monitoring device indicated that he was out past curfew. Upon arriving, Sheriff’s Office personnel determined that the defendant had had a legitimate reason for having left the residence. They then entered his home.

At this point you may be thinking, “Wait, don’t the police need a search warrant to enter a person’s home?” Under normal circumstances, you would be correct. Except in certain instances – such as when an officer has probable cause to suspect illegal activity – a police officer may not search a person or his home without first obtaining a search warrant from the court.

But in this case, the defendant was on electronic monitoring as part of his bond requirements for an unrelated drug possession charge. And in order to participate in electronic home monitoring, defendants must consent to allow Sheriff’s Office personnel entry into their home at any time. So when officers showed up at the defendant’s door, he had no choice but to let them in, or else risk being in violation of the terms of his release.

Now this does not mean that officers had the right to search his home. And in fact had they completed a search of his home, after determining that the defendant was authorized to have left the home, the drugs and gun paraphernalia they uncovered would likely be inadmissible in court. Unfortunately for the defendant, the crack cocaine was sitting right there, in plain view on the defendant’s dining room floor – and police officers do not need a warrant of any kind to make an arrest for illegal activity being conducted in plain view.

Once the defendant was arrested for possession of crack cocaine, the police were authorized to search the remainder of his home as a search incident to arrest. This doctrine permits law enforcement to conduct a search to make sure there are no weapons in the defendant’s immediate control that could be used to harm officers and to uncover additional evidence of illegal activity related to that already uncovered.

Chicago Conditions of Release

This case helps illustrate how an experienced defense attorney can skillfully negotiate anything from conditions of release to a plea deal with probation, but in the end that time and effort can be quickly undone if the defendant does not use common sense and stays out of trouble. This is particularly true when the defendant is release on electronic monitoring, where part of the conditions of release include consent for law enforcement officers to enter the defendant’s home at any time.

For this particular defendant, and many more like him, it is going to be that much harder for his criminal defense attorney to successfully negotiate a similar bond release, and bolsters the prosecution’s case for the initial drug charge. The criminal defense attorney and the defendant are a team working to achieve the best possible result, whether that is an outright dismissal of all charges, an acquittal, or a reduction in charges or reduced sentencing. But in order for the criminal defense attorney to be successful, the defendant must not do anything to jeopardize his defense.

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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