It’s tough being a gun owner in Illinois. Heck, it’s tough to even possess a gun in the state for any reason unless you’re a law enforcement officer. The fact is that even if you try to comply with the state’s gun laws, simply having a gun on you in the wrong place at the wrong time can result in an arrest and conviction. And the recent case People v. Tolbert, which went before the Illinois Supreme Court on appeal highlighted yet again the difficulty in arguing against these laws in the state.
Minors and Guns in the State of Illinois
In Tolbert, Chicago police detained the 17-year-old defendant in the front of a South Seely Avenue home after receiving a call about a “person with a gun.” However, no other criminal conduct was reported. Police officers indeed found a loaded .9 mm pistol on the porch of the home and arrested the defendant. He was charged under 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) with possession of a handgun while under the age of 21. A second firearm possession charge was dismissed after prosecutors conceded it was unconstitutional, but the charge of possessing a firearm by someone under the age of 21 stuck, and went before the Illinois Supreme Court. The defendant was not accused of using the gun in a threatening manner or for any other criminal purpose.
How the Illinois Supreme Court Put More of a Burden on Defendants in Gun Appeals
The issue the court consider in Tolbert was the construction of the statute, which plainly makes it illegal for someone under 21 to possess a firearm except when “on the land or in the legal dwelling of another person as an invitee with that person's permission.” The Court of Appeals held that whether a person under 21 was an invitee of someone was an element of the crime, and thus prosecutors must prove that someone is not an invitee in order to convict them under the statute. The defendant’s conviction was reversed.
However, the Illinois Supreme Court was not persuaded by this line of reasoning. The Court held that whether or not a defendant is an invitee is not an element of the crime, but an exemption, or defense to the crime of possessing a firearm while under the age of 21. The Supreme Court thus did not vacate the defendant’s conviction, but they didn’t affirm it either. Rather, the case was remanded back to the appellate court. Now, if any defendant is charged with the same crime, the burden will be on them at trial to prove that they were in fact an invitee while under the age of 21 possessing a firearm.
Contact a Chicago Appellate Attorney
There are a lot of gun laws on the books in Illinois, but many of those laws haven’t yet been tested in the courts. However, an experienced Chicago appellate attorney can chip away at these statutes and argue how these statutes should be interpreted by the courts, which can result in convictions being vacated or overturned. For more information, contact Barney & Hourihane today for a consultation.
A recent Illinois Supreme Court has made it easier for defendants to challenge the constitutionality of search warrants. People v. Chambers, which was decided by the Court in January, also held that the appearance of a confidential informant at a warrant hearing does not by itself mean that the defendant may not later be entitled to cross-examine the confidential defendant to determine whether the search warrant was legally obtained.
The Case of People v. Chambers
In Chambers, the defendant was arrested at his home in Markham with a large amount of illegal drugs, weapons and cash. The defendant did not contest the fact that he was in possession of this contraband, but took issue with how the police obtained the information that led to his arrest. A review of the record found numerous inconsistencies in the police officer’s story about how he obtained the information that led him to the arrest. The officer claimed that he learned of the defendant’s drug operation as a result of a months long operation, however, he was only employed by the Markham Police Department for a few days at the time of the defendant’s arrest. The police officer also claimed that he originally contacted the confidential informant in the course of a traffic stop at an address in Markham that doesn’t exist.
Defendant filed a motion for a Franks hearing to establish whether the police officer lied about certain information to obtain the warrant. This initial motion was denied by the trial court, as the defendant’s motion largely relied on affidavits from relatives. However, a later motion was supported by an affidavit from a man claiming to the be confidential informant who stated that he only provided information to the police officer who sought the warrant because he was threatened with a long prison sentence if he didn’t assist with the investigation.
The Illinois Supreme Court Holds That Confidential Informants Can Be Cross-Examined
Prosecutors argued against granting a Franks hearing on the basis that they would neither confirm nor deny the identity of the man claiming to be the confidential informant, as well as prior case law holding that a Franks hearing will not be granted when a confidential informant testifies at a warrant hearing. The Chambers court refused to accept this argument, as a “catch 22” that would prevent a court from considering valid evidence from a confidential informant about the legality of a warrant. And given the many other peculiarities about the warrant in this case, the Supreme Court ruled that the defendant is indeed entitled to a Franks hearing.
Need Legal Help?
Even if you’ve been charged with a crime, you still have constitutional rights. Police must obtain any evidence that prosecutors plan to use against you in court in a legal fashion. If you believe law enforcement violated you right to be free from unlawful search and seizure, you may have a case that can be appealed to the highest court in the state of Illinois. For more information, contact Barney & Hourihane today for a consultation.
Illinois has long required that gun owners maintain a Firearm Owner's Identification card to possess firearms or ammunition within the State of Illinois.In 2013, the Illinois legislature made a new addition to the State’s often harsh gun laws by creating the Concealed Carry License.
Anyone wishing to conceal carry a firearm must have a FOID card. In addition, to obtain a Concealed Carry License from the State, you must:
While Illinois does not require nonresidents passing through the State to obtain a FOID card while in possession of firearms, nonresidents must also apply for a license to conceal carry in the State, and the requirements are even more stringent than for residents.
2015 Changes to Illinois Conceal Carry Laws
As of 2015, even if you have a valid Concealed Carry License, police officers may secure your weapon if they stop you while you are in a car if they believe it is necessary to protect any person in the area. If the police determine that you are not a danger to anyone and are capable of possessing a firearm both physically and mentally, they may return it to you at any time. If you are taken into custody for any reason, police will inventory your firearm and issue you a receipt so that you may retrieve your firearm at a later time.
The revisions to the law also affect concealed possession of a firearm while entering places that prohibit the concealed carry of weapons, such as courthouses or certain private businesses. The law previously required that the owner make sure his weapon is unloaded while parked in his vehicle before placing the firearm in the trunk for safekeeping. The 2015 changes to the law no longer require ensuring that it is unloaded before exiting your vehicle.
Finally, the law adopts a new standard for developmental disability, which is a disqualification for a Concealed Carry License in Illinois. Under the new definition, someone is considered to be developmentally disabled if he or she is over the age of 14 and has significant limitations with at least three of the following: self-care, receptive and expressive language, mobility, learning, or self-direction.
Obtaining a Concealed Carry License
Illinois has tough gun laws, and it can be all too easy to run afoul of them no matter how careful you are. But remember, you have a constitutional right to carry a firearm. If you are interested in exercising that right in Illinois, you must first obtain a concealed carry license. If you have been denied a concealed carry license or would like more information on obtaining one, contact Barney & Hourihane.
As the city of Chicago has long been plagued by gun violence, the state of Illinois is known for some of the strictest gun control laws in the country. Any person in the state of Illinois who wants to legally possess firearms or ammunition must apply for a Firearm Owners Identification Card with the Illinois State Police. Filling out a simple form online is the first step to obtaining a FOID card, but the police conduct a lengthy background check to determine whether or not they will issue a FOID card to an applicant. By statute, this process is only supposed to last 30 days, but often it takes 60 days or longer for the state police to issue a FOID card.
Who May Receive a FOID Card?
Under 430 ILCS 65/41, anyone over the age of 21 is eligible for a FOID card. Those under the age of 21 wishing to obtain a FOID card through the Illinois State Police may do so with the written consent of a parent or guardian who is also eligible for a FOID card, so long as the minor has not been convicted of any misdemeanor more serious than a traffic violation. FOID cards remain valid for 10 years after being issued by the state police. Any Illinois resident in possession of firearms without a valid FOID card may be arrested and subject to misdemeanor or felony charges. However, non-residents who enter the state of Illinois with firearms or ammunition are not required to obtain a FOID card.
Who May Be Denied a FOID Card?
While the qualifications for obtaining a FOID card sound relatively simple, there are several circumstances under which an application can be denied, which is the reason why it can take the state police so long to investigate whether or not someone meets the qualifications for eligibility. Common issues that can cause a FOID card application to be rejected include:
· A prior felony conviction
· An addiction to narcotics that can independently verified
· A stay within a mental institution within the past five years before applying for a FOID card
· An order of protection is in force against the applicant
· A prior misdemeanor conviction for domestic battery
This list is by no means exhaustive, so consulting with an attorney is important to determine if you have been wrongfully denied a FOID card. In many circumstances, a FOID card can also be revoked. In that case, the FOID card and any firearms in the possession of the FOID card holder must be turned over to a local law enforcement agency immediately. However, as long the card holder is not expressly barred by the statute from obtaining a FOID card, in many cases they can successfully re-apply for a FOID card and petition a court for the return of any confiscated firearms.
Chicago Gun Crimes Lawyer
If you are having trouble obtaining a FOID card or believe you have had firearms wrongfully confiscated by the police, then an experienced Chicago criminal defense attorney can help you navigate the complicated web of Illinois gun laws. For more information, contact Barney & Hourihane for a consultation.