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Despite the Second Amendment's clear directive that "the right of the people to keep and bear Arms shall not be infringed", "Aggravated Unlawful Use of a Weapon" laws in Chicago and throughout Illinois prohibit citizens from carrying guns for self-defense. To make matters worse, Illinois lawmakers recently made some forms of Aggravated Unlawful Use of a Weapon, also known as "Agg. UUW", punishable by mandatory jail time even for first offenders. While there is much information here, some of it negative, the bottom line is that while gun crimes are a challenging and high stakes area of the law, there are strategies to defeat these charges and avoid jail time or a conviction.
Note: Many people are confused as to why the law is called unlawful "use" of a weapon when all they were doing was carrying a gun and not actually "using" it. In Illinois just carrying a gun falls under "Unlawful Use of a Weapon."
Illinois recently changed its gun laws to require mandatory jail time for persons found guilty of certain gun possession offenses. If:
- you are over 18,
- are charged with carrying a gun on you or in your car,
- the gun was "uncased, loaded and immediately accessible", and
- you do not have a valid Firearm Owner's Identification Card, then
the law requires a minimum of one year and maximum of three years in jail if you are found guilty even if you are a first time offender with no criminal background. 720 ILCS 5/24-1.6(d)(2). Of course, if you get the case dismissed using the strategies outlined below, then you serve no jail time and will not have a conviction on your record.
If the gun is unloaded but is also uncased with ammunition "immediately accessible", there is a possibility of 1-3 years in jail, although the sentence is not mandatory and you may qualify for probation.
If you are charged with Aggravated UUW, your goal should be to either beat the case totally or get it reduced to a misdemeanor through negotiations with prosecutors. If your case is in Chicago and its surrounding areas, know that the Cook County State's Attorney's policy is to usually seek jail time for gun possession crimes. There are, however, several ways to beat gun possession charges that may apply in your case:
- One way to get your gun possession charges dismissed is by proving that police had no probable cause to pull you over. For example, suppose that you are driving with your right turn signal on and a cop is following you from behind. You drive past three opportunities to turn and the cop pulls you over because he thinks that this is a traffic violation. He then claims to see a gun in plain view on the seat next to you at which point you are arrested and charged with Agg. UUW. In fact, the cop is mistaken and you have committed no violation of the traffic code. Because the initial traffic stop was unjustified, the arrest and any subsequent evidence recovered, including the gun, are thrown out and the case against you collapses. This is the case of Illinois v. Hawyood and it illustrates the power of motions in defeating gun possession charges. For more on the power of motions attacking probable cause, please see my section on "Motions to Quash Arrest and Suppress Evidence for no Probable Cause."
- New cases are constantly emerging that provide new defenses to Agg. UUW charges. For example, earlier we discussed that possessing a gun while not having an Illinois Firearm Owner's Identification card qualifies as a felony Agg. UUW. The Supreme Court in Illinois v. Holmes, however, held that a gun license from another state qualifies as a license in Illinois for purposes of Agg. UUW. To take another example of the common sense steps Illinois courts are taking to soften the unjust effects of harsh laws against gun possession, remember that a person is not guilty of Agg. UUW if the gun is unloaded and enclosed in a "case." The Illinois Supreme Court ruled in Illinois v. Diggins that the center console of a vehicle qualifies as a "case."
- Challenge "possession" at trial. A trial happens when negotiations and pretrial motions to dismiss are unsuccessful and you submit the question of your guilt or innocence to a judge or jury. Perhaps you were arrested because you were in a car with other people and the police found a gun near you, but not on you. Or, maybe you were the only one in the car, but someone else owns the car. These are just two examples of situations where you can effectively challenge the "possession" required to prove Aggravated Unlawful Use of a Weapon. Just being close to a firearm does not mean you possessed it or even had knowledge of its existence. In some cases, lack of a fingerprint analysis showing your prints on the gun can help prove that you never "possessed" it.
- Please visit my guns and weapons page for more strategies on how to beat a gun possession case.
The right to bear arms is important for several reasons. Perhaps most importantly, it allows people to effectively practice their right to self-defense. This is especially important for women and the elderly who are often taken advantage of because of their lesser physical strength. The benefit to society as a whole is immense; studies indicate that allowing citizens to carry concealed weapons deters violent crime. But perhaps the most important justification for the right to bear arms is that in a democracy, the government is the servant of the people; an armed populace preserves the people's right to alter and abolish a tyrannical government should our servants ever forget that fact.
