Articles Posted in Weapons Charges/UUW

UUWToday, the United States Supreme Court refused to hear the appeal of a case which upheld the banning of semiautomatic assault weapons in Highland Park, Illinois.  Two Justices, Alito and Thomas, disagreed with the decision to not review the case.  The case had been closely watched but gun rights activists and is of significant 2nd Amendment importance.

In 2013 the city of Highland Park Illinois enacted a local ordinance banning high capacity magazines with more than 10 bullets and also banned assault weapons.  The Highland Park ordinance was in response to a Federal Court of Appeals decision which ordered the State of Illinois to enact a conceal and carry mechanism.  The Illinois legislature gave municipalities 10 days to enact restrictions.  Highland Park was one of only 20 municipalities in Illinois, all around the Chicago area, to actually impose restrictions on guns.  A Highland Park resident, along with the Illinois State Rifle Association, filed suit alleging that the ban was unreasonable because it banned some of the most popular semi-automatic weapons as well as magazines with more than a 10 round capacity.  In a 2 to 1 decision the 7th Circuit Court of Appeals upheld the Highland Park ordinance by finding that the ban was allowed the 2nd Amendment.  Today, the United States Supreme Court refused to hear the appeal of the Court of Appeals decision upholding the ban.  By refusing to hear the case, the United States Supreme Court has upheld the banning of semi-automatic assault weapons.  Seven other states have enacted laws similar to Highland Park which ban assault weapons.

In 2008, in District of Columbia v. Heller, the Supreme Court issued a landmark ruling that established the right to own a firearm inside the home for self defense.  But since Heller, towns and states continue to impose restrictions upon that right.  Since Heller, the Supreme Court has refused to strike down any restriction that has been challenged before the Supreme Court.  So by refusing to take any case challenging any restriction, the Court seems to be saying that states and towns have great leeway in imposing restrictions on the right to own a gun.

IMG_3581-2Today I appeared before Judge Haberkorn in the Circuit Court of Cook County – 2nd Municipal District and vacated my clients Unlawful Use of A Weapon (UUW) conviction from August 22, 2006. My client, a family man and an electrical engineer by trade, was arrested for a DUI and the officer found a loaded gun on the passenger side of the car. My client plead guilty to the UUW and the DUI charge – he represented by another attorney when he plead guilty to the charges.

Over 10 years later, I was able to vacate my clients UUW conviction based on recent decisions from the US Supreme Court, the US Court of Appeals (7th Circuit) and the Illinois Supreme Court. My filed brief in support of vacating my client’s conviction was thorough and included a detailed analysis of all relevant case law. Our position was so strong, that the Cook County State’s Attorney conceded.   

I have been fighting for my clients for many years who has been prosecuted by the State of Illinois for violating gun laws which have now been found to be unconstitutional. After many battles with the State’s Attorney’s Office, it is encouraging to see that the United States Constitution is alive and well. Wining a case like this has special significance since today is 9/11.  Our freedoms are under attack at many levels and can’t be taken for granted. Without fighting the government and overzealous prosecutors, we are left with allowing them to define our freedoms. In Illinois, for those who have UUW convictions (Class 4 and Misdemeanors) and had a FOID card at the time of their conviction,  may  be eligible to have their convictions vacated and their records eventually expunged. Kudos to all the criminal defense attorneys who have been fighting for our rights to bear arms under the 2nd Amendment of the US Constitution.

Robbery ChargesThis week the United States Supreme Court issued a ruling in a case which expands the ability of the police to search a residence even though they had originally been denied consent. The case started when police arrived at the Los Angeles home of Walter Fernandez for a suspected Robbery.  When the police first arrived at Fernandez’s home, they asked for his consent to enter and search and he did not grant them consent to search.  The police then determined that he had committed a domestic battery on his girlfriend and arrested him.  An hour later, while Fernandez was under arrest at the police station, the police returned to his residence and obtained consent to search from his girlfriend.  When they searched his residence, they recovered weapons and other evidence which connected him to the Robbery.  He was eventually convicted of Robbery, gun and Domestic Battery charges and sentenced to 14 years in prison.  He appealed his conviction arguing that the police did not have the right to search his residence since he had denied them consent.

The question facing the Supreme Court was whether the police had to obtain a warrant to search his residence in light of his denial of a consent to search?  In a 6-3 decision the Supreme Court ruled that a warrant was not required and upheld the search of the home and the subsequent conviction of Fernandez.  In 2006, in Georgia v. Randolph, the Supreme Court ruled that the objection of a consent to search of one occupant was valid to bar a search without a warrant even if one occupant consented so long as the occupant denying consent remained at the location.  The Court held that since Fernandez was not present when the police returned, his denial was no longer in effect and when his girlfriend consented, that was all the police needed.  A notable development in this case is that Justice Steven Breyer, a noted liberal on the Court, joined the majority conservative Justices in limiting the 4th Amendment’s prohibition against unreasonable searches and seizures.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients against robbery, and weapons charges.  If you have a robbery or weapons case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

UUWYesterday, the Illinois Supreme Court issued one of the most important decisions to come down from this court in a long time.  The Illinois Supreme Court ruled that the main part of the Illinois gun law, also known as the Aggravated Unlawful Use of a Weapon statute, is unconstitutional and can no longer be enforced by judges, prosecutors and police officers.  Yet this news has gone largely unreported by the media.  This is a major story.  The implications are truly significant.  For one thing, for defendants currently facing criminal charges for Aggravated UUW, who had a valid FOID card, this means that their cases will be dismissed. This decision opens the door to litigation in which arguments will be made by criminal defendants that their cases should be dismissed even if they did not have an FOID card.  My reading of this case makes me think that if you have a valid FOID card you can legally conceal and carry a firearm in public.  If my reading of the case is correct, as of yesterday, FOID card holders gained the right to conceal and carry in Illinois.  This may change once the State of Illinois sets up the procedures for obtaining the right to conceal and carry from the Illinois State Police, but it seems to me that conceal and carry is now a reality for Illlinois FOID holders. Yesterday’s case was entitled People of the State of Illinois v. Alberto Aguilar, 2013 IL 112116.  In the Aguilar case a Chicago police officer observed Aguilar standing with a group of young men. The officer observed Aguilar holding the right side of his waist area as if he had a weapon in his waist. Eventually the police officer arrested Aguilar and claimed that before he apprehended him, Aguilar dropped a loaded gun. Aguilar was eventually charged with Aggravated Unlawful Use of a Weapon because he had a loaded weapon on his person, except when he was on his place of abode and it was uncased, loaded and immediately accessible.  Aguilar was also charged with Unlawful Possession of a Firearm by a Minor because he was only 17 years old.  Aguilar was eventually convicted and sentenced to 24 months of felony probation.  On appeal Aguilar launched a direct attack on the constitutionality of the Illinois Aggravated UUW statute by claiming that this statute violated the Second Amendment to the United States Constitution.  In a stunning decision, the Illinois Supreme Court agreed and struck down the Aggravated Unlawful Use of Weapon statute.  In doing so the Court relied on the United States Supreme Court decisions in District of Columbia v. Heller and McDonald v. City of Chicago.  In doing so the court found the basic right to own and possess a firearm for protection in the home and how the Supreme Court has extended this to outside the home as well.  The Court then cited last year’s 7th Circuit Court of Appeals case of Moore v. Madigan to strike a fatal blow to the Illinois Agg UUW statute.  The Illinois Supreme Court basically adopted the holding in Moore v. Madigan. Having said that, the Supreme Court ruled that states are free to impose reasonable restrictions on the right to bear arms but Illinois’ UUW statute is unconstitutional because it imposes a blanket prohibition on the right to carry firearms without any restrictions or exceptions.

Yesterday’s decision is a major vindication for criminal defense attorneys who have been filing Motions to Dismiss Aggravated UUW cases in trial courts throughout the area since the Madigan v. Moore decision only to be treated with scorn and disrespect by prosecutors and judges who have been treating these motions as an annoyance.  Now that the Illinois Supreme Court has ruled, they should acknowledge the error of their ways and pay attention in the future to decisions from higher courts.

It is also important that the public be informed of the change in the law.  When the Illinois legislature enacted the Conceal and Carry law over the summer, a procedure that will not take place until sometime in 2015 because the State of Illinois is intentionally dragging its feet, the story was front page news on all the media outlets.  Yesterday, the Illinois Supreme Court probably opened the door to conceal and carry but the media has ignored this.  I cannot understand why this is not all over the news.  It’s as if there’s a conspiracy of silence.

In the case of Moore v. Madigan, a three judge panel of the Seventh Circuit Court of Appeals ruled unconstitutional the Illinois gun law which prohibits ordinary citizens from carrying firearms in public. The panel reasoned that the Second Amendment of the United States Constitution allows citizens to carry a firearm in public for self defense, and thus, enjoined the State of Illinois from enforcing the current Illinois gun law. Although the panel made its decision on December 11, 2012, it delayed enforcement until June 9, 2013 for the Illinois State Legislature to draft a new gun law that allows for reasonable restrictions.  The right to carry a firearm in public is not absolute – the State of Illinois and other municipalities can pass laws that place reasonable restrictions on who can own a firearm and at what places firearms are allowed.

So what are reasonable restrictions? The panel noted that obvious restrictions, such as not allowing the mentally ill and felons to carry guns, would be reasonable. Generally, if the restrictions further an important government interest by means that are substantially related to that interest, they will be held constitutional.  Lawyers call this standard of judicial review as “intermediate scrutiny.”  In practical terms,  if the Illinois State Legislature or municipality is able to demonstrate a legitimate reason for the given restriction, it will likely be upheld by the Courts. 

The Illinois Attorney General, Lisa Madigan, was unsatisfied with the decision of the three judge panel so her office requested that the full 7th Circuit Court of Appeals to hear the case.  Lisa Madigan basically appealed the decision of the three judge panel.  On February 22. 2013, the request was denied.  The majority of the judges of the 7th Circuit Court of Appeals were comfortable with the constitutionality of the three judge panel decision. The Attorney General can now appeal the decision to the United States Supreme Court, or in the alternative, start working with the State legislature to craft a new gun law with reasonable restrictions.  The Attorney General has no other options. The Seventh Circuit has jurisdiction over Wisconsin, Indiana and Illinois. 

The Chicago Police Department now posts online the picture and the approximate address of the people who were arrested in Chicago for prostitution related charges – the pictures are removed 30 days after the arrest. See: www.chicagopolice.org/ps/list.aspx. In the last 30 days, 53 people have been arrested for paying or being paid for “love.” The ancient Greeks gave the definition of love four meanings to capture the different “love” relationships we have among us. They are: 1) Agápe; 2) Phillia; 3) Storge and 4) Eros.

Agape refers to true love, such as the love a husband has for his wife. Phillia refers to the love one has for a friend. Storge refers to the love of affections. And last but not least, Eros means erotic or sensual love after the Greek God Eros of love – thus the term, erotic.

Almost all of the folks posted online were looking for the God Eros and could only find him if they paid for it – an unfortunate situation. To think of it, not something you would put past a Greek God. The remainder of those arrested were the few prostitutes who were willing to go along with the journey. In essence, almost all of these guys were trying to fulfill an undeniable basic human need. Unfortunately, as a society, we have decided to criminalize their behavior and threaten them with prison time. Further, upon arrest, the police will impound the given person’s car if it was used in the process and the City will return it only if fees in excess of $1,000.00 are paid. If the fees are not paid to the City, it will junk it. If there are lien holder(s) on the car, they may or may not get proper notice. The public humiliation is the icing on the cake.

On April 21, 2009, we published an article about the Supreme Court’s decision in Arizona v. Gant.  In this case, The Supreme Court severely limited police officers power to search vehicles after an arrest. In Arizona v. Gant, the defendant had been pulled over for a traffic violation.  The police officer determined that he did not have a valid license and placed him under arrest.  The defendant was handcuffed and placed in the back of the police vehicle. The officer then searched the vehicle and discovered a gun and drugs. The Supreme Court ruled that the search of the vehicle was unreasonable and ruled that the evidence seized in the search had to be suppressed. The court held that in order for the police to search the vehicle the defendant had to be close enough to the vehicle as to pose a risk that he could grab a weapon out of the car or that the police had a reasonable belief that they would find evidence related to the reason that the defendant had been arrested.

Today I used this case to win a motion to suppress on an Aggravated Unlawful Use of a Weapon By a Felon charge at 26th and California. The facts of my client’s case were very similar to the facts in Gant. The defendant was pulled over because his license plate light was not working. The officer asked my client for his license but he could not produce one because it had been revoked for a prior DUI. The officer testified that he placed handcuffs on my client and put him in the back seat of his squad car. There was a passenger in the front seat. A check of the passenger’s name revealed an outstanding traffic warrant and he was handcuffed and placed in the back seat of the squad car as well. The officer then proceeded to search my client’s vehicle finding a loaded handgun in the back seat area of his vehicle. The state argued that this search was actually an inventory search and that the officer was following Chicago Police procedure. However, the officer admitted that he did not produce an inventory report and could only state that “miscellaneous” items were retrieved from the vehicle in the inventory search.

The court found that an inventory search would be an exception but that what the officer testified to could not be deemed to be an inventory search. The officer did not produce an inventory report and could only remember that “miscellaneous” other items were found. Since the defendant and his passenger were in handcuffs in the back seat of the squad car, and the only reason for the arrest of the defendant was that he had no driver’s license, the police needed a warrant to search the vehicle.  My Motion to Suppress was granted and all the evidence seized by the police as a result of the illegal search of his vehicle will not be admitted at trial.  This effectively destroys the state’s case.  Without the gun, they have no case.  The case has been continued but the state will be forced to dismiss the case.