Articles Posted in Weapons Charges

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Unlawful-Use-of-a-Firearm-300x200Can you have a Medical Cannabis Card and a FOID card at the same time? Can you have a Medical Cannabis Card and a Conceal and Carry Permit at the same time? You would think that these questions are easy to answer. However, these questions have caused great confusion and misunderstanding in Illinois. The State Legislature has done a terrible job of clearing up the law and making this an easy issue to solve. Instead, you have to search for answers to these questions for yourself. If you ask an employee at a gun shop if you can have both, you will get a different answer depending on the day of the week. Let me try to explain the situation and what I believe the law is. Stay tuned for a way around it. Something you will not find anywhere else!

Illinois has decriminalized the possession and use of small amounts of Cannabis. Illinois instituted a Medical Marijuana program several years ago. However, the possession and use of Marijuana remains a crime under federal law. In our system, federal law supersedes state law. In spite of that, the cannabis industry has thrived in Illinois. Legal dispensaries have sprung up throughout the cities and suburbs of Illinois and municipalities and taxing authorities are reaping the resulting tax revenues. The legalization of Recreational Marijuana in Illinois, and the introduction of Medical Cannabis in Illinois, has created a conflict for legal gun owners in Illinois.

In order to possess a firearm in Illinois, you must have a Firearm Owners Identification Card (FOID). To obtain a FOID, you must apply to the Illinois State Police, and pass a thorough background search. Under Federal Law, it is unlawful for Marijuana users to own firearms. 430 ILCS 65/8 sets forth the grounds for the Illinois State Police to deny a FOID application. Section (n) of the statute states that “a person is prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State Statute or by federal law.” In response, the Illinois State Police has stated that they will not revoke anyone’s FOID card solely because they are using marijuana. However, the Illinois State Police stated that “the ISP (Illinois State Police) will revoke FOID cards where it is demonstrated that an individual is addicted to or a habitual user of Marijuana.”

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DUI ArrestToday, I met with 2 new clients to talk about representing them for their criminal cases at the Rolling Meadows Courthouse. Both cases have different facts, and both clients responded differently when they were confronted by the police. I want to talk about these 2 cases because they illustrate how what clients do when they interact with the police, can often be the difference between winning and losing a criminal case, going to jail, or walking away from criminal charges without a conviction.

The first client I met today is charged with a DUI. I represented the client’s wife for a DUI in Rolling Meadows about 3 years ago. When I met with the client’s wife, the current client was with her and heard everything I said to her. I told his wife what she should do if she is ever stopped again for a DUI charge. The client was paying attention to what I told his wife because he followed my suggestions almost perfectly. After the client was stopped by the police officer, the officer asked him if he had been drinking. The client refused to answer the question. The officer asked the client where he was coming from and where he was going, and he refused to answer the officer’s question. When the officer asked the client to exit the car, he complied, but when the officer asked him to perform the Standardized Field Sobriety Tests (SFST) on the side of the road, the client refused. When the officer asked the client to blow into a Portable Breath Device (PBD), the client refused. When the client was asked to submit to a Breathalyzer Test at the police station, he refused. The client told me that he knew he was legally intoxicated so he remembered what I told his wife and followed my advice.

The other client I met today is charged with Unlawful Use of a Weapon by a Felon (UUW by a Felon). This client was a front seat passenger in his friends vehicle. The driver was pulled over for a minor traffic violation. The officer claimed that he smelled burnt cannabis and asked the driver and the passenger to exit the vehicle. The officers found a loaded firearm in the backseat area of the vehicle. When the police asked my client and the driver who the gun belonged to, my client admitted that the gun was his. He told me that he admitted to the gun being his to protect his friend. The problem with the admission is that my client is a convicted felon. Because he has a prior felony conviction, he is being charged with UUW by a Felon which carries a mandatory prison sentence. Probation is not an option for a charge of UUW by a Felon.

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UUW-300x221Earlier this week, I met with a client who was pulled over by the State Police for driving 38 miles an hour over the speed limit on the Tollway. The client did not realize that driving 38 miles an hour over the posted speed limit in Illinois is a crime. He did not realize that he could be charged with a Class A Misdemeanor for driving at such an excessive speed. He did not know that he was facing the possibility of being sentenced to one-year in County Jail and fined up to $2,500.

When the State Trooper spoke to my client, he smelled an odor of burnt cannabis and observed a bowl, which the client had used to smoke marijuana, in the center console of my client’s vehicle. The State Trooper pulled the client out of the vehicle and placed him under arrest. When the State Trooper asked my client if there was anything in the vehicle that he wanted the Trooper to be aware of, the client told him that he had a pair of brass knuckles in the center armrest of his vehicle. The State Trooper found the brass knuckles and charged my client with Unlawful Use of a Weapon (720 ILCS 5/24-1) because of the brass knuckles. My client told me that he’s had the brass knuckles since he was a teenager and had no idea that he could be charged with Unlawful Use of a Weapon by simply possessing a pair of brass knuckles.

When it comes to the possession of brass knuckles, Illinois has very strict laws and rules that make the mere possession of brass, or metal knuckles, a crime. Not only is it against the law to possess brass knuckles in Illinois, it is against the law to possess jewelry, or items that look similar to brass knuckles. Brass knuckles are considered a deadly weapon in Illinois, just like a knife or a gun. If you are caught with brass knuckles, you will be charged with Unlawful Use of a Weapon, a Class A Misdemeanor. If you are caught with a pair of brass knuckles, you could be facing up to a year in county jail and a fine up to $2,500. Illinois Law places brass knuckles in the same category as a gun or a knife. From experience, even though the criminal charges for the possession of brass knuckles is the same as the possession of a firearm, criminal defendants charged with possessing brass knuckles are generally not treated as harshly in Court as criminal defendants who are charged with a possession of a firearm. You are more likely to get Probation or Court Supervision for the possession of brass knuckles as opposed to the possession of a firearm. Of course, every case is different so you should consult with an experienced Unlawful Use of Weapon criminal defense attorney about your specific case.

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UUW-300x226Every New Year brings us new laws and new regulations that impact the criminal law and the way we live. On January 1, 2019, several changes to the Illinois gun laws went into effect which make it a little more difficult for people to buy a gun and makes it easier for law enforcement personnel to take guns away from people that may be deemed dangerous. The final change is an attempt to stem the rising tide of mass shootings. The changes to the Illinois gun laws are set forth below.

The first amendment to the Illinois gun laws increases the waiting period for the purchase of a rifle. Prior to January 1, 2019, if you wanted to purchase a rifle, you had to wait 24-hours between the time you purchased the gun and when you could physically possess the rifle. This waiting period of time between the purchase and the actual possession of a gun is called the “cooling-off” period. The idea behind a “cooling-off” period is to give people a period of time to cool down and lower their emotions in the event that they are purchasing a gun because they are angry at someone. An example would be if someone is fired from their job and are upset and decide to buy a gun so they can go back to their place of employment and start shooting. Another example would be if someone is angry at their spouse and is buying a gun in response to their anger. The idea behind the “cooling-off” period Is that the law wants to give the purchaser an opportunity to cool off and lower their emotions so that a shooting does not occur. Under the new amendments, the “cooling-off” period for the purchase of a rifle has been increased from 24-hours to 72-hours. This amendment matches the “cooling-off” period that has always been in place for the purchase of a handgun. The “cooling-off” period for the purchase of a taser or a stun gun has not been changed. The “cooling-off” period for a taser and a stun gun is 24-hours.

The second change to the Illinois gun laws has to do with the way FOID card renewals are processed by the State of Illinois. In Illinois, you cannot own a gun without having been issued a Firearm Owner’s Identification Card (FOID). In order to obtain an FOID card in Illinois, you must fill out an application, pay a small processing fee, and wait until your application is processed. An FOID card is only good for a certain period of time. Once it expires, you must have your FOID card renewed. A major complaint of gun owners in Illinois who have an FOID card is that it can take a very long period of time to have their FOID card renewed. I have had cases involving clients who have been charged with Aggravated Unlawful Use of a Firearm where their FOID card had expired and they were arrested with a firearm while they were waiting to receive their new FOID card in the mail.

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UUW-300x240In response to the dramatic rise in the number of mass shootings around the country, earlier this year the Illinois Legislature began working on legislation aimed at trying to stop mass shootings from happening in Illinois. As a result, on July 16h, 2018, Illinois governor Bruce Rauner signed into law the Firearms Restraining Order Act which allows for petitions to be filed in court to have a no contact order issued against someone deemed to be a threat to themselves or to others. The new law is commonly called the “Red Flag” bill. It would allow family members, police and others to seek an Order Protection in Court to take away the guns from someone found to pose “an immediate and present danger” to themselves or to others.

At the same time, Governor Rauner signed into law a bill that expands the 72-hour waiting period to the purchase of all guns. Prior to this measure being enacted, the 72-hour waiting period only applied to handguns. Now, the 72-hour waiting period applies to the purchase of all guns, including assault-style weapons.

The “Red Flag” bill is an attempt to take tools that are used in Domestic Battery and Domestic Violence cases and apply them to situations that might help prevent mass shootings from occurring. The new law allows for a representative of a school, a business, or a church, to petition the court for an order prohibiting that person from entering that building if they can show the court that that person has exhibited threatening behavior.

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UUWThe gun violence in Chicago has been a great source of concern among the citizens and politicians in Illinois for a long time.  Every day we are inundated with news of shootings and homicides throughout the City. When the weather heats up we know that the number of shootings will go up.  On Monday morning we open the paper to find out how many people were shot and how many were killed over the weekend.  In the effort to come up with a way to stop all the shootings, we need to understand how illegal guns are making their way to the streets of Chicago.  Illinois has some of the most restrictive gun laws in the United States.  To own a gun in your home, Illinois requires that you get a Firearm Owners Identification (FOID) Card which requires that a thorough background search be conducted by the Illinois State Police.  FOID cards can be revoked for good cause by the Illinois State Police.  Citizens are generally not allowed to carry a gun outside their home unless they have an FOID Card and are legally transporting it, or they obtain a Conceal and Carry Permit.  To obtain a Conceal and Carry Permit you have to apply to the Illinois State Police, submit to a thorough background search and supply your fingerprints, and attend and complete gun training classes. Illinois was the last state to allow conceal and carry, and that was only after the Federal Courts ordered Illinois to do this.

In spite of some of the nation’s strictest gun laws, Chicago has established a reputation as America’s deadliest city.  Chicago Police report that in 2015, over 2,900 people were shot and 470 people were murdered.  In 2016, there were 762 homicides, 3,550 shooting incidents and 4,331 shooting victims. 2016 was the deadliest year in Chicago in 20 years.  Chicago recently saw it’s 500th murder of 2017.  These statistics, coupled with the strict Illinois gun laws, have become an example cited by gun rights activists to argue that gun control legislation doesn’t work.  But a closer look at some of the evidence concerning where these guns are coming from tells us a different story.

According to the FBI, roughly 60% of guns used in crimes in Illinois were from out of state.  The overwhelming number of those guns flow into Illinois from states that have much less restrictive gun laws.  Most of those out of state guns came from Indiana, which is next to Illinois.  Second place goes to Mississippi and third place goes to Wisconsin.  The FBI data suggests that there’s lots of trafficking of guns within Illinois but point out that it’s very difficult to trace those guns once they get into the state because Illinois does not require registration of guns, does not license or regulate gun dealers, doesn’t limit how many guns can be sold at one time and does not require background searches on gun sales that are not conducted at a gun show.  Indiana has really lax gun laws.  Gun dealers are required to perform a very basic background search while a vendor can sell their “private collection” to anyone at a gun show without any background search whatsoever.  So someone can buy an assault rifle at a Crown Point Indiana gun show without any background search, and drive an hour into Chicago, where assault rifles are banned.  A 2015 study by the University of Chicago suggested that only 11% of guns involved in crimes in Chicago were purchased through federally licensed gun dealers, which require background searches.  In 2014 the Chicago Police reported that roughly 60% of guns used and recovered from crime scenes between 2009 and 2013 were purchased outside of Illinois.  Exact figures are hard to pin down but it is clear that the vast majority of guns making their way to the streets of Chicago are coming from outside of Illinois.

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UUW-Unlawful-Use-of-a-WeaponYesterday, Illinois governor Bruce Rauner, signed a bill into law which increases the minimum sentence for defendants convicted of a second or subsequent violation of Aggravated Unlawful Use of a Weapon by a Felon. Under current law, a defendants convicted of a second or subsequent violation of the Aggravated Unlawful Use of a Weapon by a Felon statute would be convicted of a Class 2 felony which carries a mandatory prison sentence of between 3 to 14 years. The new law, which was signed yesterday, increases the mandatory prison sentence to 7 to 14 years.

This new law enjoyed broad bipartisan support in Springfield, something that has been very rare in Springfield in recent years.  This new law was strongly supported by Chicago Mayor Rahm Emanuel and Chicago Police Department Superintendent Eddie Johnson.  Chicago officials are desperately trying to do something to deal with the out-of-control gun violence in Chicago.  It’s possible that this new law will do little, or nothing, to stop the gun violence in Chicago, but the politicians want to be seen as trying to do something.  In spite of the strong bipartisan support, our elected officials could not help but let this new law get caught up in the partisan bickering which has handicapped Springfield and endangered the health of the State of Illinois. Governor Rauner and Mayor Emanuel have been bickering over many issues concerning the funding needs of the City of Chicago.  Most recently, Governor Rauner has indicated that he would like to sell the Thompson Center in downtown Chicago.  According to Rauner, the possible sale of the Thompson Center could fetch the State of Illinois as much as $300 million.  Mayor Emanuel has been placing obstacles in front of Governor Rauner to stop any sale of the Thompson Center.  Most recently, Mayor Emanuel threatened to hold up zoning laws as an obstacle to allowing Rauner to sell the Thompson Center.  Governor Rauner wanted Mayor Emanuel to come to Springfield for the signing ceremony to show the voters that progress was being made in bipartisan efforts to do business and work past differences in Springfield.  Mayor Emanuel indicated he would not attend a signing ceremony in Springfield with Rauner and accused the Governor of threatening to veto a 911 bill for Chicago that would raise phone bills but provide more money for Chicago’s 911 system.

At the end of the day, the bickering politicians but aside their petty partisan fight and Chicago Police Department Superintendent Eddie Johnson attended a quickly arranged signing ceremony in Springfield. However, Mayor Emanuel did not attend.  In order to get support for this legislation, the new law also makes other changes to the law.  This new law gives greater power to the Illinois Department of Corrections to give sentencing credits to inmates who have been sentenced to prison.  This may allow some inmates to be released earlier from state prison.  This new law also appears to give more options for first time offenders to address the causes of their crime.  We have to see, what, if any options will be available for first-time offenders to avoid jail and a possible criminal conviction.  These changes appear to be trying to take steps towards lowering the prison population and the costs associated with the criminal justice system.  This effort seems to be a concession towards those legislators concerned with the cost to taxpayers for housing inmates in state prison.  I saw a recent survey that it costs the State of Illinois about $25,000 a year to house an inmate in State Prison for one year.  Another change to this law creates a task force within the Illinois State Police to help combat gun crimes.

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Today, the Chicago Tribune re-published a story that indicates that law enforcement authorities in Chicago may be losing the fight against gun crimes. Everyone is aware of the ridiculous number of gun related crimes in the city of Chicago. It is the subject of national news stories and was the subject of a recent movie by Spike Lee which places the spotlight on the out of control gun violence in the City of Chicago. The gun violence in Chicago entered the discussion in last year’s Presidential campaign.  Recently, President Trump has threatened to send in the National Guard to deal with the gun violence in Chicago.  Law enforcement authorities and the politicians in Chicago have made fighting the out-of-control gun violence the focus of their collective efforts.  However, the Chicago Tribune today re-published a story which should cause the citizens of Chicago to be seriously concerned about whether the authorities are fighting an effective fight against gun violence.

The Tribune reports that since 2012 the average bond set for a felony gun crime has doubled. In 2012, the average bond for a felony gun case was $25,000. In 2016 the average bond for a felony gun case was $50,000. The Tribune reports that this has done nothing to keep gang members off the streets.  The number of defendants posting bond has more than doubled from four years ago.  Therefore, in spite of the bonds for felony gun crimes doubling, four times as many defendants are getting out of jail on bond than they did four years ago.  In 2012, the average number of days that a defendant charged with a felony gun crime spent in jail before posting bond was 42 days.  In 2016 that number had dropped to 18 days.  Fewer and fewer guns are being recovered by the Chicago Police.  From 2012 until the end of last year, 9% fewer guns have been recovered.

Recently, Cook County authorities have been looking closely at reforming the Bond system in the Circuit Court of Cook County.  Too many Defendants charged with minor non-violent crimes our spending too much time in Cook County Jail simply because they are unable to afford to post the bond. This is adding strain to the Cook County budget which is already in facing increasing economic pressure.  Cook County authorities are trying to come up with a way to reserve precious jail resources for criminal defendants who are identified as posing a danger to the community.

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UUWThis question cannot be answered with a simple yes or no answer. Unfortunately, the Illinois Unlawful Use of a Weapon (UUW) statute is a little complicated and requires an explanation. Another question I frequently get asked is:  How do I legally transport a handgun in Illinois?  Here it goes.

To be able to legally own a firearm in Illinois, you must obtain a Firearm Owner’s Identification Card, which is referred to as an FOID card.  To obtain an FOID card, you must fill out an application with the Illinois State Police, pay a small application fee, provide a current color picture of yourself and wait for the Illinois State Police to conduct a very thorough background search.  If they approve your application, they will mail you a card which has an expiration date on it.  The FOID card allows you to legally own a firearm in your residence in Illinois.  Until 2013, it was illegal to carry a loaded gun in public anywhere in Illinois.  In 2012, the Federal Court of Appeals ruled that Illinois was violating the Second Amendment to the Constitution by not providing a mechanism by which citizens of the state would be allowed to carry a concealed firearm in public.  Later in the same year, the Illinois Supreme Court agreed with the Federal Court of Appeals and ruled that the Illinois Unlawful Use of a Weapon Statute was unconstitutional because it did not provide a way for citizens of Illinois to lawfully carry a loaded gun in public.  The following year, the Illinois Legislature enacted a Conceal and Carry statute which provided for a way for citizens of Illinois to lawfully carry a loaded concealed firearm in public.  Illinois became the last state in the country to provide for conceal and carry.

To obtain a Conceal and Carry permit in Illinois, an application has to be submitted to the Illinois State Police.  You are required to take gun safety classes and undergo a very thorough background search. The Conceal and Carry permit is only good for 5 years.  So, since 2013, if you have a valid Conceal and Carry permit you can carry a loaded firearm in public as long as the location that you are at does not specifically prohibit the carrying of loaded firearms.  If you only have an FOID card, you cannot legally carry a loaded firearm in public.

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