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gun, Kane County criminal defense lawyersOver the last several years, there has been no shortage of tragedies involving gun violence. Mass shootings in Connecticut, Colorado, Florida, and Nevada have raised the public consciousness regarding the availability of firearms and the associated rights promised by the Second Amendment to the U.S. Constitution.

In the wake of these terrible events, many states have passed so-called "red flag" laws that allow authorities to temporarily seize guns from individuals whom the courts have determined pose a threat to themselves or others. Earlier this month, Illinois became the 13th state to pass such a measure as Governor Bruce Rauner signed House Bill 2353 into law.

Firearms Restraining Order Act

The new law is called the Firearms Restraining Order Act, and it created a new type of specific restraining order for preventing a person from possessing, purchasing, or handling a firearm. The law also established a process for those who fear that a loved one may present a danger to themselves or others to take action.

Under the new law, a family member of the individual in question may file a petition to confiscate weapons the person due to a perceived danger. A police officer can also file the petition. A circuit court judge must hold a hearing to review the evidence and decide whether to issue a firearms restraining order. If the situation is severe enough, the hearing may be considered an emergency and be held on the day of the filing without notice to the subject. The subject has the right to a hearing within two weeks if the order was issued on an emergency basis.

If an order is issued, the subject will be not be permitted to own, possess, receive, buy, or control a firearm for a period of six months. Their Firearms Owner Identification (FOID) card will be suspended as well. The subject of a firearms restraining order can request one hearing to terminate the order, and he or she must prove that he or she no longer poses a threat. As the end date approaches, the person who filed the original petition may request a renewal and must show that the subject still presents a danger.

Concerns of Possible Abuse

While the new law is intended to promote public safety, there are many in the community who are skeptical about how it will be applied. Some believe that these orders could be used to damage a person’s reputation unfairly and to simply take their guns away without sufficient justification. Others have expressed concern over the availability of orders without notice to the subject. To address such concerns, the new law includes provisions that allow petitioners who make false statements to be prosecuted for perjury.

We Can Help

If you have questions about how the new law could affect your rights to legally own a firearm, contact an experienced Elgin criminal defense attorney. Call 847-488-0889 for a free consultation at The The Law Office of Brian J. Mirandola today.

Sources:

http://www.chicagotribune.com/news/local/breaking/ct-met-illinois-gun-violence-laws-orders-of-protection-20180713-story.html#

http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=91&GA=100&DocTypeId=HB&DocNum=2354&GAID=14&LegID=102977&SpecSess=&Session=

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gun sentencing guidelines, Kane County criminal lawyerCriminal sentencing is one of the most debated topics in criminal law. At its heart, the idea is to calibrate a sentence to the crime's severity. This is why murder has a more severe punishment than theft. In the past, judges had a large amount of freedom in determining the sentences for a crime, but people began to grow concerned that this was unfair to offenders. Different people were getting different sentences for similar crimes. Consequently, the legislatures began prescribing more and more specific sentences for crimes.

Unfortunately, these more specific sentences have led to their own problems, and now more people are calling for sentencing reform. To that end, the Illinois General Assembly created the Joint Criminal Justice Reform Committee to review current sentencing laws and make recommendations to places that they ought to be changed. Soon, the Committee is expected to announce a set of recommendations for reforming sentences for gun crimes.

The Reason for Reform

The reason these reforms are needed comes down to the unexpected effects of mandatory minimum sentencing rules. These are rules that require judges to hand down a minimum sentence if the defendant is found guilty. Originally, these were hailed as protecting both the public and defendants. The public could be sure that overly lenient judges were not letting dangerous offenders off easy, and defendants could be sure that their sentence was the result of careful thought rather than the whim and values of whichever judge happened to hear their case.

These rules had the unintended consequence of shifting a lot of power towards the prosecutors in a case. Now that sentences are more closely tied to a specific charge, prosecutors can use the threat of more serious charges in negotiations to get defendants to plead guilty. The fear of risking a more serious sentence if the case goes against them makes defendants plead guilty to less serious charges. This can result in defendants losing procedural protections that they would be entitled to at trial, as well as innocent defendants pleading guilty out of fear.

The Expected Recommendations

In order to remedy this situation, the Committee is expected to announce reforms to the current mandatory minimum structure, at least for gun crimes. Although nothing has yet been finalized, one plan that they have been considering is to increase mandatory minimums for more severe offenses, while providing judges with a safety valve. That safety valve would allow judges to hand down a sentence below the mandatory minimum, if they were willing to go on the record in court and explain why they felt that the offender deserved a less serious sentence. This plan would provide judges with extra discretion, and may help to level the playing field in plea bargaining.

Criminal laws in Illinois are constantly changing. If you are facing criminal charges, it is important to seek the help of a dedicated Elgin criminal defense attorney who understands the legal landscape. Call The Law Office of Brian J. Mirandola at 847-488-0889.

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