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What at one time appeared to be a tragic case of a police officer in Fox Lake being killed in the line of duty has in recent months revealed itself to be a tangled web of alleged illegal conduct on the part of a slain officer who staged his death. And now two men who were initially implicated in the police officer’s death are pursuing a lawsuit against the Fox Lake Police Department for violating their civil rights.
A Fallen Police Officer and a Fallen Reputation By now, many in the Chicago area are familiar with the details of the Fox Lake police officer’s death, recounted in this Chicago Tribune article. On September 1, 2015, the officer radioed dispatch that he was pursuing three suspects on foot. A short time later, he was found dead in a remote area, shot by his own service weapon. Law enforcement officers swarmed Fox Lake looking for three suspects described by the police officer. The only problem is that the three suspects never existed. Investigators now say that the police officer committed suicide and made it look like he was killed in the line of duty as he feared that an embezzlement scheme he had been working for several years was about to be uncovered. In their lawsuit, the two men allege numerous violations of their civil rights. They state that police detained them for hours soon after the officer’s death and would not allow them to leave though they were cooperative and never charged with any crime. Even after the men were released, the next day police allegedly raided their homes with a SWAT helicopter. After that, police continued to return, yet reportedly never showed the men warrants. The men also claim that in the days following the officer’s death, other police officers cornered them and demanded that they provide DNA. Worst of all, the men claim that all of this happened despite the fact that the police had reasonable suspicion that the death of the officer was in fact a suicide. These men have only recently filed their lawsuit, so it’s unknown which of their claims will be substantiated, but their allegations illustrate several classic civil rights violations on the part of law enforcement. While the police have authority to investigate alleged crimes, there are still procedures they must follow. Police officers cannot detain individuals for hours on end without probable cause, and almost always need a warrant to search a home. And police cannot demand DNA from innocent people under threat of further harassment. Any activity like this on the part of law enforcement is grounds for a civil rights lawsuit. Chicago Civil Rights Lawyer Police have the responsibility to enforce the law. They are not above it and cannot violate the rights of others in the course of an investigation, but if you believe that the police in Illinois have violated your civil rights, you may be entitled to compensation. For more information, contact Barney & Hourihane today for a consultation. The Fourth Amendment of the U.S. Constitution states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The founding fathers were so concerned with the right to privacy and preventing law enforcement from barging into private residences for any reason that they clearly enshrined it in the Constitution. While the Fourth Amendment still guides how police officers in the 21st century obtain warrants, courts have interpreted the amendment to allow for several exceptions over the years, so it’s important to understand when the actions of police and have or have not violated constitutional protections.
How Police Obtain Warrants As outlined in the Fourth Amendment, police officers today still obtain search warrants by providing information to a neutral and detached magistrate that either through their own observations or from information provided by witnesses or a confidential informant, they have probable cause to believe criminal activity is occurring at a specific place. If these requirements aren’t met, the warrant is not valid. Once issued, police can only search the place described in the warrant. If the warrant is only for a backyard of a home and not the home itself, police are restricted to only search the backyard. When It’s Not Necessary for Police to Obtain a Warrant While police in Illinois need a warrant to conduct most types of searches, courts have recognized the following exceptions to the warrant requirement: · Consent- If police ask you if they can take a look around your home, you are consenting to a search without a warrant. You may limit the area of the home that police search, but courts have some discretion in determining just how far that limitation goes. You may also refuse to consent to a search. Refusing to consent to search alone does not give police probable cause to search a home. · Plain View- If you open your door to speak with police and illegal contraband is in plain view of the officer when the door is opened, police do not need permission to enter your residence to confiscate the contraband. · In Connection with an Arrest- Police may search the immediate area of an arrest, or conduct a sweep of a residence if they believe an accomplice may be hiding therein. However, the purpose of this sweep must be to protect others, not to search for evidence. · Emergency- If police reasonably believe a person is in danger or evidence related to a lawful arrest may be destroyed if they take the time to properly obtain a warrant, they may enter a residence without a warrant for the purpose of public safety. Contact a Chicago Defense Lawyer The right to be free of a warrantless search in America is sacrosanct. If you believe that police officers in Illinois have violated your right to illegally obtain evidence against you, an experienced attorney can petition a court to have this evidence suppressed. For more information, contact the Chicago offices of Barney & Hourihane today for a consultation. 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. If a trial court has refused to allow an eyewitness expert to testify at your criminal trial, it may be grounds to appeal for a new trial according to a decision that came down earlier this year from the Illinois Supreme Court. While eyewitness experts have long been considered important witnesses who are regularly allowed to testify in other states and federal court, it wasn’t until this recent decision that the highest court in the state recognized that judges also need to allow these experts into Illinois courtrooms
People v. Lerma Overturns Longstanding Illinois Precedent People v. Lerma was an appeal from a first-degree murder conviction from the city of Chicago. The victim was shot and killed outside of his home. Before dying, the victim, as well as a friend who was with him identified the defendant as the shooter by a nickname. While testifying before a grand jury, the friend stated that she recognized the defendant because she had seen him across the street about ten times, but at the jury trial she admitted that in fact she had only seen him a couple times in the past. Other than her witness identification, there was no evidence to link the defendant to the murder. The defendant sought to have two experts in eyewitness identification testify at trial, but the Cook County court refused to allow the experts to testify on the grounds that the witness had previously known the defendant. This was somewhat in line with a prior case, People v Enis, in which the Illinois Supreme Court urged lower courts to use caution before allowing eyewitness experts to testify at trial. But in Lerma, the Illinois Supreme Court noted that the Enis decision came down 25 years ago when eyewitness expert testimony was a fledgling field and its reliability was unclear. In the more than two decades since that time, use of eyewitness experts has become widely accepted in courts around the country, resulting in numerous acquittals. While trial courts have a large amount of discretion in allowing any type of expert to testify at a trial, the Supreme Court found that it was a clear abuse of discretion in Lerma not to allow an eyewitness expert to testify, particularly one who was also familiar with the issue of misidentification of persons previously known to a witness. Lerma is an important case in allowing defendants to introduce additional evidence that may cast light on their guilt, but it also opens the door for defendants who were previously convicted after eyewitness experts were barred from testifying to appeal their convictions. Need Legal Help? Once you’ve been convicted of a serious crime, that doesn’t have to be the end of the road for your case. Prosecutors or the trial judge may have committed an error, such as not letting an eyewitness expert testimony, that is grounds for appeal and reversal of your conviction. For more information, contact Barney & Hourihane today for a consultation. Police officers are given positions of tremendous trust in our society, so it can be especially disconcerting to have that trust violated by an incident of police misconduct. Police misconduct can take several forms, including excessive force, unlawful arrest, or disregard of constitutional rights such as probable cause and due process. No matter exactly how police misconduct comes about though, it’s important to hold police officers accountable for their actions and the high standards of conduct that come along with wearing a law enforcement uniform.
What to Do if You Suspect Police Misconduct The first step in pursuing a complaint for police misconduct is to document everything that is occurring. It’s important to remember that there is no Illinois or federal law that prevents you from recording the police in public, so you may use a cell phone to document any police contact, regardless of what an officer tells you. If you do not have access to a camera for some reason, then it is important to write down everything that occurred during your encounter with the police as soon as possible after it happened. You can refer back to this document while pursuing your complaint or a lawsuit. Every police department has its own procedures for investigating police misconduct. You will have to contact the department to determine their own process. Unfortunately, because this is a completely internal process run by police themselves who often have their own motivations for not hurting the image of the department, it can be very difficult to have a complaint validated this way. For example, one study found that between 2002 and 2004, of 10,149 complaints of excessive force, illegal searches, false arrest and racial prejudice against Chicago police, only 1.2 percent of internal complaints were sustained, and only 19 total cases resulted in any disciplinary action taken against an officer. Filing a Police Misconduct Lawsuit If the police do not act on an internal complaint, you still have other options to pursue compensation for a police misconduct complaint. The state’s attorney’s office may file criminal charges, but again, this is often a dead end. However, retaining a private attorney in a civil case can often hold police accountable. Civil cases require a lower standard of evidentiary proof, and so it can be easier to show a jury that injuries or other civil rights violations were caused by police misconduct. Officers involved in an accident will be required to testify at depositions and at trial. In addition, a civil lawsuit is the only way to receive any sort of financial compensation from a municipality for the devastating results of police misconduct. Need Legal Help? No one should have to worry about their rights being violated when they interact with police in Chicago, or any other part of the state. But if you believe that law enforcement officers have violated your civil rights, there are ways to use the legal system to ensure you are fairly compensated for police misconduct. For more information, contact Barney & Hourihane today for a consultation. The police have a tough job. Often suspects get violent, or officers are put in dangerous situations where the lives of innocent people are at risk. In those situations, police are legally justified to act with a certain level of force to protect the public from harm. However, there are certain legal restrictions on how much force police can use when dealing with any type of situation, and unfortunately sometimes officers exceed that appropriate amount of force for a given situation. Defining excessive force exactly is a difficult proposition, but there are some guidelines for understanding when excessive force is being used by police in Chicago and the rest of the state of Illinois.
Not All Force is Excessive Generally, the appropriate use of force by a police officer is measured against the amount of force a reasonable police officer would use in a similar circumstance. This is an extremely difficult way to determine what is excessive. Few people would argue that an officer’s use of force is excessive to take down and pin a suspect who attempts to strike the officer during a lawful arrest. However, use of a firearm would certainly be excessive in this situation. If the police officer used a Taser to detain such a suspect, and that resulted in serious injuries, whether the use of force was excessive would be something of a gray area that would likely be determined by a court. However, Some Types of Force are Always Excessive Excessive force by police officers has justifiably received a large amount of media attention in recent months, particularly the use of chokeholds to detain suspects. Chokeholds are extremely dangerous maneuvers to use on anyone in any circumstances as these maneuvers reduce oxygen and blood flow to the brain. As documented in many media reports, a chokehold by police can result in serious permanent injury, or even death. As a result, in 2015 the governor of Illinois signed into law a bill that bans the use of chokeholds by law enforcement officials in Illinois. Chokeholds of course are just one type of excessive force. Any use of force out of proportion with the circumstances of an arrest is excessive. For example, police officers should never fire their weapons at a suspect unless there is a legitimate threat of serious bodily injury or death to another human being. To determine whether you have a valid complaint that police used excessive force, you should consult with an attorney about the circumstances of your encounter with police. Need Legal Help? The effects of excessive force can be devastating from both a physical and mental perspective. There are of course high medical bills to deal with for injuries that never should have been inflicted, but there is also the emotional toll from having the trust of law enforcement violated by police misconduct. Both types of injuries are entitled to compensation under the law For more information, contact Barney & Hourihane today for a consultation. Cameras have become a ubiquitous part of life thanks to smartphones. It’s now easier than ever to record an event as it happens, and that extends to police conduct in public as well. Such recordings of arrests have been instrumental in determining whether police acted within the law when suspects have later pursued lawsuits for police misconduct.
Unfortunately, this means that some police officers have become wary of average citizens exercising their rights to record them, and will sometimes threaten or otherwise attempt to dissuade the public from recording them. It’s important to note that there is absolutely no law or ordinance in the city of Chicago, the state of Illinois or at the federal level that bars recording police in public, but there are things to keep in mind if you notice the police doing something in public that you believe warrants recording it. Tips for Recording Police in Public First, it remains illegal to record private conversations in the state of Illinois. There is no legal authority to record police when they are off-duty without their permission, or if two officers are speaking to each other in a restaurant. However, you are perfectly within your rights to record police if you see them conducting an arrest. Keeping this in mind, there’s no reason to attempt to hide what are you doing. An officer may object to the recording and tell you that you are breaking a law. You are within your rights to tell him clearly and respectfully that you are not breaking any state or federal law and continue recording. However, you may not interfere with a police officer’s official duties. If a police officer needs to get past you to complete an arrest or obtain a piece of evidence, you have no authority to get in his way while recording. You still must listen to police orders to stay out of the way for the safety of you and other members of the public, and obey these orders. Under Illinois law, you also must identify yourself if a police officer requests this information. The worst case scenario is that even though you are acting within the law, the police officer finds some reason to arrest you. It is extremely important to understand that even though this arrest is without any legal grounds, you are not entitled to resist arrest and must allow yourself to be taken into custody. You may then request an attorney who will seek to have any charges brought against you dismissed and ensure that the recording of the police encounter is preserved. Need Legal Help? It’s important to remember that police officers enforce the law, they are not above it. If you believe you have been the victim of police misconduct, it’s important to hold officers accountable for their violations of the law and ensure you are fairly compensated for any injuries you sustained. For more information, contact Barney & Hourihane today for a consultation. The U.S. Constitution prohibits law enforcement officers from conducting unlawful searches and seizures, and a violation of your constitutional rights means that any evidence retrieved during that violation could be inadmissible at trial. This is called the exclusionary rule. Criminal defense attorneys can filed a motion to suppress evidence to ensure that unlawfully obtained evidence cannot be used against you at trial. In Illinois, if a defendant can show he or she was doing nothing to justify a warrantless search and seizure, a court should grant the motion to suppress evidence.
Common Grounds For Seeking a Motion to Suppress Evidence The most common reason for suppressing evidence is that police searched an individual or vehicle without a warrant or probable cause. In Illinois and across the United States, police must have probable cause in order to search a person without a warrant. Probable cause is based on an objective standard - the question is whether, under the totality of the circumstances, there is probable cause to believe that an individual has committed a crime or is otherwise in possession of contraband or other evidence? Absent an exception to the probable cause requirement, a court should grant the motion to suppress evidence. When a court grants a motion to suppress evidence, that evidence cannot be used as evidence at trial by the State. Without that oftentimes critical evidence, the prosecution will fail. Another reason an attorney might seek to suppress evidence is because the police fail to advise a suspect of his or her Miranda rights. Anyone who watches TV is probably familiar with Miranda rights. Once the police place you into custody - for example, when you are arrested - they must inform you of the following rights: that you have a right to remain silent; that anything you say can be used against you in court; that you have the right to have an attorney present during any questioning; and that if you cannot afford an attorney, one will be provided for you. Police sometimes fail to tell suspects about these rights at the appropriate time. If a suspect is not made aware of his rights prior to being questioned by the police, any confessions or other statements made should not admissible in court. In instances where police have little other evidence to go on besides a confession, a violation of the Miranda rule can result in a case being dismissed. Another reason why evidence might be suppressed is because there is an error in the chain of custody. If police confiscate a firearm or drugs from you, they are required to show that they have maintained proper care and control of it before trial to avoid any inference that the evidence was tampered with. This means that if you are charged with a drug crime, and the evidence seized by police gets lost or mislabeled while at a lab for testing, a court will almost certainly suppress the evidence because the chain of custody has been broken. Your Right to a Lawyer If you’re facing drug or weapons charges in Illinois, your freedom is at risk. You need an experienced criminal defense attorney on your side who can recognize the important legal issues in your case, such as whether there is a viable motion to suppress evidence that was obtained as a result of an illegal search or seizure. You have the right to the lawyer of your choosing. For more information, contact Barney & Hourihane for a consultation. Protecting the public from drunk drivers is a matter of public safety. No one thinks that intoxicated motorists should be allowed to roam freely on Illinois roads. But the fact is that many drivers are convicted of driving under the influence because they have serious alcohol abuse problems for which they need help.
Sometimes these substance abuse problems can lead to a stunning number of charges and Illinois DUI convictions in a very short period of time. Even after finding sobriety, these individuals can face long-lasting consequences from their past problems that prevent them ever getting back on the road. For many years, the State of Illinois refused to allow its citizens any driving privileges after their fourth DUI conviction regardless of their rehabilitation efforts. A new law has finally changed that. Illinois Restricted Driving Permits for Habitual DUI Offenders To be sure, the new law that went into effect in 2016 does not go easy on those who have four or more DUI convictions. Obtaining renewed driving privileges is not as simple as going to the DMV and taking a test. And, technically, what the law provides for is not actually a full license, but rather is a restricted driving permit or "RDP." To obtain a restricted driving permit, an individual who has previously been convicted of four or more DUIs will face an investigation by the State, must obtain affidavits establishing that he or she has been sober for at least three consecutive years, and must have completed state-approved rehabilitation. The application process can only begin five years after the last license revocation or date of release from incarceration. Furthermore, the permit only provides for driving during certain times and for certain purposes, such as going to and from work. The law also requires that an interlock ignition device is installed in the vehicle of the petitioner. The State estimates that the new law will make 5,000 people in the state of Illinois again eligible to drive if they meet the program’s requirements. In many ways, the provisions are similar to the driving privileges defendants may receive while a DUI case is pending. And the new law also makes it easy to again lose driving privileges if the RDP conditions are not scrupulously followed. Any new DUI conviction will result in the permit being immediately revoked, and the individual will then be permanently barred for applying for a new permit. It’s a welcome change to the law to see Illinois allow those who have turned their lives around one final opportunity to get back their driving privileges, but getting a restricted driving permit is not an easy process. The new law still puts quite a few obstacles in your path if you are looking to get back your driving privileges. If you need a restricted driving permit, you should speak with an experienced criminal law attorney who can guide you through the process. For more information, contact Barney & Hourihane today for a consultation about how you can obtain a restricted driving permit. |
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