Aggravated Unlawful Use of a Weapon
A hot legal topic around the United States of America and especially in Chicago, IL revolves around possession of weapons, mainly, Guns. The Second Amendment of the United States Constitution uses language that creates a right to own a weapon. There has been plenty of discussion to what the limits of this right are or what the rights should be but one thing is not disputed, guns are legal. This issue is specifically sensitive in Chicago. Over the last few years Chicago has made national news as a violent city with lots of gun violence. Needless to say residents of Chicago are sick of gun violence and sick of being embarrassed by our violent reputation. Therefore, the Cook County State’s Attorney’s Office takes gun cases very serious. In Chicago, there are a lot of restriction with regard to owning a gun. If you do not know your rights you can easily find yourself in major legal trouble because you possessed a weapon.
One of the types of case that I have been incredibly successful with is when my clients are arrested possessing a weapon. I have had a lot of success with the charge Unlawful Use of a Weapon and Aggravated Unlawful Use of a Weapon. Despite the weird name of the statute you do not have to “Use” the weapon to be convicted of the charge. If the State’s Attorney’s Office is going to convict you of Unlawful Use of a Weapon or Aggravated Unlawful Use of a Weapon they need to prove that you possessed the weapon at a time you were not allowed to or that the weapon you possessed is not legal in the first place. Sometimes, they do not even need to prove that you personally possessed the weapon, just that you “constructively possessed” the gun. This means, that the gun is not in your pocket but in your bedroom or car.
For the State’s Attorney’s Office to prosecute for a weapons charge they will generally rely on eyewitness testimony. In one case I handled, the State’s Attorney was alleging that my client was guilty of Aggravated Unlawful Use of a Weapon. In this case, it was alleged that my client threw a gun from a vehicle that was being chased by police. They alleged that during the chase my client stuck his hand out of the moon roof and tossed a handgun to the side of the road. The State’s Attorney used the testimony of two officers to prove their case. This first officer testified that she observed the car with the defendant in it blow a stop sign so she decided to pull the car over. She explained, that the car took off, she pursued it, she observed the five passengers in the vehicle and that she saw the front seat passenger put his hand through the moonroof and throw a handgun. She was confident in her identification of my client because she could see the tattoo’s on his hand and arm. Next, the second officer testified that he saw the car pull up to a house and that 3 individuals ran from the car. He also said the one who fled from the front passenger seat was my client.
When I got my shot to cross examine the first officer, I attacked every single one of her observations. I forced her to admit that she could not describe any of the 3 individuals sitting in the back seat. Thus, could not say if they resembled the defendant or not. I got her to admit that she lost sight of the handgun and the car with the perpetrator. I got her to admit that she was never closer than fifty feet from the front seat passenger and that she was never on the passenger side of the suspect car. I was also able to have her to describe the vehicle to the judge. In this case, the vehicle was a two door Pontiac with five passengers. That’s a pretty cramped car where 10 possible arms could have thrown a gun out of a moon roof.
When I crossed examined the second officer, I got him to state that the person he is identifying as my client came out of the passenger side door but that he could not say for certain which seat he had his.
When I made my closing argument I implored the judge to find my client not guilty. I argued, the identity of the person who threw the gun was flawed and not reliable. I argued the moonroof is the only window in this two-door car which can be easily reached by all five passengers in the car. The Judge agreed with my argument found this defendant not guilty.