Articles Posted in Weapons Charges/UUW

revolverIn a recent Illinois appellate case, the defendant appealed after being convicted of armed robbery, which is a Class X felony.  He was sentenced to 21 years in prison, which is the six-year minimum plus a 15-year enhancement for using firearms.  He was indicted based on a theory of accountability.  Prosecutors claimed he knowingly took money from the victim’s person by threatening the use of force while carrying a firearm.

The defendant was separately charged with attempted armed robbery, and he pled guilty to that charge. He was admonished of his right to a jury trial, and he agreed to waive his right. The case at hand was set for a jury trial, but a few months before the trial, the defense attorney told the court that sentencing in the attempted armed robbery case was supposed to occur on the same day. The defendant’s attorney also said at that point that the current case would be a bench trial, and they’d waived a jury trial. There was no written jury waiver.

Subsequently, the State filed a notice of intent to ask for a 15-year sentencing enhancement upon conviction under section 111-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c)).

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UUWA decision this week out of the Court of Appeals of the Sixth Circuit has added fuel to a new front to the 2nd Amendment debate.  Under federal law, certain groups, or classes of people, are barred from owning a firearm. Those groups include convicted felons, fugitives and people with a prior history of domestic batteries.  The case decided this week in the Sixth Circuit deals with a provision in the law which bars people who have been committed to a mental institution from owning a firearm.  The law allows an individual to appeal for relief from the prohibitions imposed by this law to the Attorney General of the United States. The Attorney General has delegated the authority to investigate such petitions to the Director of the Bureau of Alcohol Tobacco and Firearms.   This appeal process is called the “relief from disabilities program.”  The law is pretty detailed about what an individual is required to provide in such a petition to the director of the ATF.  The law requires that the petitioner provide copies of the court order mandating commitment to a mental institution, and all other medical records having anything to do with the person’s mental condition along with letters of recommendation from at least three people along with a written consent allowing the Attorney General to obtain any medical records. The law then sets out in detail what the Director of the ATF is supposed to do when it comes to making a decision as to whether to grant relief from this law.  However, in 1992 Congress defunded the relief from disabilities program.  The defunding of this program has continued since then.  In 1998 Congress authorized federal grants to help states pay for determining which individuals may own a gun and to help states pay to provide this information to the federal government.  However, in order for a state to qualify for these federal funds, each state has to show the federal government that they have an appeal process similar to the relief from disabilities program which gives people who are barred from owning a gun the right to an appeal which allows their case to be considered for relief from the state’s prohibition.  About half of the states have established such relief processes.  Michigan is one of the states that has not.  This is where this case comes from.

Seventy three year old Clifford Charles Tyler had been involuntarily confined to a mental institution by a Michigan Court in 1986 because he was suicidal.  Tyler had been served with divorce papers by his wife who had been cheating on him.  The opinion details in great length the seriousness of the mental issues that Tyler was dealing with and the extensive steps that were taken to treat him.  In 1999 Tyler remarried and in 2012 his psychologist reported that he has fully recovered from his mental condition and that he can no longer detect any mental illness.

In 2011 Tyler attempted to purchase a gun but was denied the right to do so because his name showed up on an FBI data base as someone who had previously been committed to a mental institution.  He appealed this determination by the FBI but his appeal was denied.  Tyler was informed that because Michigan has not established a relief process, there’s nothing that the federal government can do for him.

unnamedIn April of this year, the United States Supreme Court handed down a decision in Rodriguez v. United States which places serious limitations on traffic stops conducted by the police. In Rodriguez the Supreme Court ruled that the police cannot extend the duration of a traffic stop, even for a “de-minimis” amount of time, without reasonable suspicion for reasons unrelated to vehicle and driver safety.  A police officer stopped Rodriguez for driving on the shoulder in Nebraska.  After the officer did everything related to the stop, including checking his license, insurance and issuing a warning, he asked Rodriguez if he would give him permission to walk his dog around his vehicle to check for the presence of drugs.  When Rodriguez refused, the officer told him to wait until a second squad car arrived with the dog.  After the second officer arrived, the officer walked the dog around Rodriguez’s vehicle and notified the officer that it had detected drugs.  The officer searched the vehicle and discovered methamphetamine.  Rodriguez was arrested and charged with various federal drug offenses.  Rodriguez filed a Motion to Suppress claiming that the officer unreasonable delayed the stop to investigate other crimes without reasonable suspicion.  The Federal Magistrate, who conducted the hearing on the motion, agreed that there was no suspicion to support detaining Rodriguez but that since the detention only took 7 to 8 minutes, it was “de minimis” and did not infringe on his personal liberty.  The Magistrate recommended denial of the motion and the Federal Judge agreed and denied Rodriguez’s motion.  Rodriguez entered a conditional guilty plea and was sentenced to 5 years in Federal Prison.  The Circuit Court of Appeals agreed with the District Court and Rodriguez appealed to the United States Supreme Court.  The Supreme Court held “absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.  The police authority for a traffic stop seizure ends as soon as soon as the tasks necessary for the traffic stop are completed, or should reasonably have been completed.  So once the officer checks the license, insurance, checks for warrants and issues the ticket, the police officer’s authority to detain someone ends.  The case was sent back to the District Court to address the issue of whether the officer had any reasonable suspicion to call for the dog because this issue was never explored by the trial court.

This case is important because this stuff happens all the time.  The police will pull over a vehicle and once the ticket is issued start asking questions and delay the driver to come up with more evidence. What started as a simple traffic stop quickly evolves into a gun case or a drug case.

In case you think that this doesn’t happen often, there is a similar allegation in a drug case currently pending in Kane County.  On August 13, 2005, a Utah woman was pulled over on I-90 near Hampshire by a Kane County Sheriff’s Deputy.  According to her attorney, after she was issued a warning, the Deputy started asking the woman questions that had nothing to do with the traffic stop. The Deputy repeatedly asked for consent to search her vehicle and was repeatedly denied permission. The Deputy called for a drug sniffing dog. The vehicle was eventually searched and heroin was found.  The driver claims that the dog never signaled the presence of drugs but her vehicle was searched anyway.  This case has focused attention on the Kane County Sheriff’s Office.  Judges have ruled against the Kane County Sheriff’s Office on 3 cases in the past year.  One case involved the strip search of a Minnesota man who was illegally strip searched, a traffic stop of a retired Oregon deputy that was improperly prolonged in 2014, and the stop of 3 Minnesota residents that was improperly prolonged. The Minnesota man who was improperly strip searched and the retired Oregon deputy have filed Federal lawsuits against Kane County and the Sheriff.   The case involving the 3 Minnesota residents has been appealed by prosecutors.

UUWThe gun violence in Chicago has been the 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.  So far in 2016, there have been about 311 homicides and at least 1810 people shot on the streets of Chicago.  These statistics, coupled with the strict Illinois gun laws, has 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.

The significance of these figures is that unless national standards are imposed, there’s no law or amount of regulation in Illinois that is going to stop guns from making their way into Chicago and being used in shootings and murders.  Instead of gun rights activists pointing to Illinois strict gun laws to argue that they don’t work, they should point to states that have lax gun laws as an example of why such laws are needed to stop, or at least slow down, the rising numbers of shootings and murders in Chicago.

unnamedYesterday the United States Supreme Court refused to hear an appeal from the 2nd Circuit Court of Appeals which upheld gun laws in New York and Connecticut which bans military assault style weapons, like the ones used in Sandy Hook in 2012, Santa Barbara a few months ago, and Orlando last week.  The gun laws in question were enacted by New York and Connecticut in 2012 after the school shooting in Sandy Hook Connecticut which took the lives of 20 young children and 6 teachers.  Gun rights advocates filed suit alleging that the prohibitions violated the 2nd Amendment and prior Supreme Court precedent which upheld the right of the public to own firearms for self protection.

The 2nd Circuit Court of Appeals, which covers New York and Connecticut, found in favor of the states and upheld the laws which enacted gun prohibitions.  The gun rights activists appealed to the United States Supreme Court.  Yesterday, the Supreme Court refused to hear the appeal, without comment, which has the effect of upholding the ban on assault weapons.  The decision keeps the prohibitions in New York and Connecticut, thought to be the most strict in the country, in place.  This decision sends many signals about the Supreme Court’s attitude towards guns.  First, the Court seems to be unwilling to get too involved in the public debate over guns.  Second, it appears as if the Supreme Court will allow for the banning of assault-style weapons.

The Court seems to see the laws enacted by states as more of a political decision and does not want to get involved in decisions made by legislatures and politicians.  Finally, it seems as if the Supreme Court has made it pretty clear that the right to own a firearm is not absolute and will uphold reasonable restrictions.  And when it comes to what is reasonable seems to be something that the Court is likely to leave to the individual states to decide. This decision is not surprising.  Last December the Supreme Court did the same thing involving a similar ordinance in Highland Park, Illinois, which banned assault weapons.  They refused to hear the appeal of a 7th Circuit Court of Appeals decision which upheld the ordinance.  In 2008, in District of Columbia v. Heller, the Supreme Court upheld the right to own firearms inside one’s home for self defense.  But the decision only applied to federal regulations.  In 2012, in McDonald v. City of Chicago, the Supreme Court held that Heller applied to the states.  Since then the Supreme Court has refused to overturn any statute which established restrictions on the right to own a firearm.  The closest they have come to doing this was in March of this year when they overturned a Massachusetts decision which held that stun guns were not protected by the 2nd Amendment and returned the matter to the lower courts for further proceedings.


In a 7 to 4 decision, an en banc panel of the 9th Circuit Court of Appeals ruled that there is no 2nd Amendment right to carry a concealed firearm, meaning that the states can prohibit or restrict the public from carrying concealed firearms.  The case is Peruta v. County of San Diego. The case involved a requirement in San Diego County that in order to obtain a license to carry a firearm citizens had to prove “good cause” to carry a firearm. The Plaintiffs challenged the requirement by arguing that the county did not consider the general right to self defense as enough to obtain a license to carry a concealed firearm.  The case was decided by the entire panel of 9th Circuit Judges.  The majority found that there is no right to carry a conceal firearm in the 2nd Amendment.  In the majority opinion, the cases of District of Columbia v. Heller and  McDonald v. City of Chicago to support the argument that the 2nd Amendment does not protect the right to carry a concealed firearm.  Justice Scalia, the author of the Heller decision did state that the right to keep a gun was no absolute and did state that reasonable restrictions were appropriate.  One example in Heller cited by Scalia was restrictions on concealed firearms.

In the coming days, we are sure to hear lots of debate surrounding the significance of this decision.  There is no doubt that this decision is a blow to gun rights activists.  But let’s keep this decision in perspective.  It seems like the ruling in this case is pretty narrow.  The Court did not say that concealed weapons are unconstitutional and did not make any decision about the right of the public to carry a weapon in public.  While the Heller and McDonald decisions are considered major 2nd Amendment cases, neither of these cases granted an absolute right to own a firearm.  These decisions did provide for reasonable restrictions.  And this is only a 9th Circuit decision so it’s impact is limited to the 9th Circuit.  What the case does is create an interesting Supreme Court question.  The question is if the 2nd Amendment guarantees the right to carry a gun in public, and if so, what kind of restrictions can states put in place?  I doubt that the Supreme Court will be eager to take on this issue. I don’t think that this case really changed anything that the Supreme Court would do.  The decisions in Heller and McDonald tell us that the Court is not willing to give the public the absolute right to carry concealed firearms.  Last year the Supreme Court refused to hear the appeal of a New York case which upheld a similar “good cause” requirement to obtain a license to carry a concealed firearm in New York.  In addition, Justice Scalia’s passing has been the really major blow to gun rights activists.  Scalia was the main proponent of 2nd Amendment rights and his unfilled Supreme Court position creates uncertainty about the future direction of the Supreme Court.  But even before Scalia’s passing, The Court did indicate that it was willing to err on the side of allowing for reasonable restrictions when it came to gun rights.

James Dimeas is an award winning Chicago criminal defense attorney and author with more than 23 years of experience aggressively representing his clients in UUW cases.  If you have a UUW 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.

unnamedLast week the Illinois Court of Appeals held that in order to enter a residence without a warrant, the police need consent or demonstrate that an exception exists.  The case is People v. Swanson, 2016 IllApp (2d) 150340.  On the evening of January 7, 2015, Scott Swanson met a friend at a bar in Hinckley, Illinois. Swanson drank about 3 beers at the bar and left in his vehicle to go home.  It was icy outside with snow patches.  When he was roughly 2 miles from his home his car slid into a ditch, hit a stop sign, the airbags deployed and he cut his finger.  His vehicle could not start so he tried to call home but was unsuccessful.  It was below zero outside so he locked his vehicle and set out on foot to go home.  About a mile from the incident, he came upon the home of the Thompson family and knocked on the door.  The occupants answered the door but would not let him in. At some point a resident in the home pulled a gun and Swanson set out on foot to go home.  About a half a mile down the road Swanson encountered another home, but nobody answered the door so he set out to get to his house.  A DeKalb County Sheriff’s Deputy was dispatched to the Thompson home for a report of a disoriented person.  On his way to the Thompson home the deputy encountered Swanson’s disabled vehicle.  He noticed the damage to the vehicle, the deployed airbag and an open beer can on the passenger side floor.  He did not notice any blood in the vehicle.  Once it was determined that the vehicle belonged to the Swansons’ another officer went to the Swanson home and spoke to Swanson’s wife.  The officer informed Swanson’s wife that her husband had been involved in an accident and could not be found and left his card with her and requested that she call him if he came home. Shortly after the officer left the Swanson home, Scott Swanson arrived at the house.  His wife noticed that he was freezing cold, covered in snow, and his finger was bleeding. Swanson’s wife went upstairs and drew a warm bath.  When she went upstairs she noticed a glass of vodka and orange juice.  Swanson told her that he had poured the glass to warm up.  While Swanson’s wife dressed the wound he drank the glass of vodka.  After she drew the bath, Swanson’s wife called the officer and let the dispatcher who answered the call know that he was safe, he did not need any medical attention and that she would arrange to have the vehicle removed from the ditch.  According to Swanson’s wife, an officer broke in on the phone conversation and told her that the police had to see Swanson to make sure he was ok.  She insisted that he was fine  and that the police did not have to come to the house and if they did she would not let them in. Shortly after that phone call the police arrived at the Swanson home.  There was conflicting testimony at the hearing about exactly what happened.  Swanson’s wife insisted that she did not allow the police to enter the home while the police officers testified that she had given some form of consent to enter the home.  But at some point the police entered the home and placed Scott Swanson under arrest.  He was charged with Driving Under the Influence of Alcohol (DUI), Leaving the Scene of a Property Damage Accident, Illegal Transportation of Alcohol, Failure to Reduce Speed to Avoid an Accident and Improper Lane Usage.  Swanson filed a Motion to Suppress Evidence and a Petition to Rescind Statutory Summary Suspension.  After hearing the evidence, the Court granted the Petition to Rescind the Statutory Summary Suspension by finding that there was no probable cause to believe that the defendant was under the influence of alcohol at the time of the accident and granted the Motion to Suppress by finding that Swanson’s wife was credible and that his wife did not invite the police into her home and that there were no exigent circumstances present to justify the police entering the home and suppressed everything that happened after the police entered the home.

On Appeal the State argued that the trial court erred in granting the motion because there was consent to enter the home  and the need for emergency medical attention.  The State argued that the trial court erred in granting the Petition to Rescind because there was probable cause to believe that Swanson had been under the influence of alcohol at the time of the accident.

With regards to the issue of consent, the Court refused to overturn the trial court’s determination that Swanson’s wife was more credible than the officers.  The Court held that they will not disturb the trial courts findings of fact absent a finding that it was against the manifest weight of the evidence.

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.

RecentVictoryOn Thursday I obtained a Not Guilty verdict at 26th and California after a bench trial for a client Charged with Aggravated Unlawful Use of a Weapon By a Felon.  UUW By a Felon is a Class 2 felony in Illinois which carries a mandatory prison sentence between 3 to 7 years.  Probation is not available for a defendant convicted of UUW by a Felon.  Therefore, the consequences of a conviction would have been tragic for my client.  He would have had to serve a minimum of 3 years in prison if he had been convicted.

At the trial the police officer testified that he had received a call over the radio of a suspicious vehicle in a high crime neighborhood in Chicago.  Within a couple of minutes the officer and his partner arrived at the location and observed a vehicle matching the description of the vehicle parked on the street.  They noticed that inside the vehicle there was the driver, front seat passenger and rear seat passenger.  After a couple of minutes they saw the vehicle pull away.  They started following the vehicle and pulled it over.  The officer testified that when he approached the vehicle he noticed that the front seat passenger was making movements and when he looked at the back seat he saw my client sitting on a long box that looked like it contained a long rifle with the words “Cabela’s” written on it.   He ordered the occupants out of the vehicle and he and his partner began searching the vehicle.  They opened the box that my client was sitting on and found a loaded rifle with a scope.  On the rear floor of the vehicle they recovered a loaded semi-automatic firearm.  The officer testified that the gun on the rear floorboard was “two feet” from where my client had been sitting.  They also recovered a loaded revolver in the glove compartment in front of the front seat passenger.  They checked the identities of the occupants of the vehicle and discovered that my client had a prior felony conviction, for which he had served prison time.  They then charged my client with Aggravated Unlawful Use of a Weapon by a Felon.

On cross examination I was able to get the officer to admit that the female driver had informed him that she was the owner of the weapons.  He determined that she had a valid Firearm Owners Identification Card and when they ran a trace with the FBI for the firearms, they discovered that the rifle was registered to the driver but that the handguns were not registered to anyone.  The officer admitted that the driver of the car had told her that she had not told my client that there were guns in her car and did not know that he was a convicted felon.  I also had the officer admit that my client did not make any statement to him admitting that he knew that the guns were in the car or that he had seen my client physically handle any of the firearms that were found inside the vehicle.