Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Gun Charges

Given the incidents of mass shootings and attacks on schools, there has been a rising demand for tougher legislation on gun control across the U.S. Illinois has had its own history with gang warfare and gun related violence. This is why the state already has some of the toughest legislation in the country when it comes to weapons and firearms.

When it comes to the question of gun possession, opinions are strongly divided on two sides. The anti-gun movement is strictly against selling weapons or possession of firearms by anyone. The pro-gun lobby is equally passionate about the public’s right to keep guns.

We won’t get into the politics of gun legislation in the U.S. The right to bear arms is protected by the second amendment. Still, there are certain types of people for whom gun possession is a crime. Convicted criminals for instance lose their right to bear arms. Even the most ardent supporters of gun possession agree on background checks before allowing gun sales.

State Legislation

Unlawful gun possession charges are covered under 720 ILCS 24-1. The law states that a person commits unlawful possession of firearms when he or she is in possession of a firearm and;

  • Is under 18 years old.
  • Is under 21 years old and has been convicted of a misdemeanor other than a traffic violation.
  • Is a narcotics addict.
  • Has been a patient in a mental institution in the last 5 years.
  • Has been diagnosed as someone with an intellectual disability.
  • Is in possession of any explosive bullet.
  • Has been convicted of a felony.

Unlawful possession of a firearm or ammunition is a moderately serious crime as the person in possession of such weapon may harm another innocent person. Illegal possession of a handgun, pistol, stun gun or other similar firearm can be charged as Class A misdemeanor. Subsequent offense is charged as a Class 3 felony, which is punishable by 2 – 5 years in prison.

Possession of a firearm within 1000 feet of a school, public housing project, park or courthouse is a Class 3 felony.

Possession of a firearm while masked, hooded or robed or inside an establishment that sells alcohol is a class 4 felony.

Possession of a machine gun is a Class 2 felony. If the gun is loaded it becomes a Class X felony.

Possession of a bomb, grenade, rifle or shotgun is a Class 3 felony.


Possession of a firearm is not a crime on its own. It becomes a problem when combined with other offenses. For example, robbery is a lower class of felony. However, armed robbery is taken more seriously. It can be elevated to home invasion in depending on the circumstances which carries a higher penalty for the accused.

Most gun charges are brought together with related charges such as possession of controlled substances, aggravated discharge or habitual criminal charges.

Examples and Court Cases

In many instances, the prosecution adds charges of gun possession to make their case stronger against the accused. A good defense team can get the charges thrown out by carefully analyzing the case. Once the gun-related charges are dismissed, the court may significantly reduce the sentencing for other related crimes. In some instances, the court may even set the defendant free.

This happened in the case of Tarek Abbed from Urbana. The man was accused of being an armed habitual criminal by the prosecution while he was awaiting a court decision on previous charges.

Abbed had previously been charged with possession of illegal substances and pleaded guilty. While on parole, he was staying at a relative’s property. One of his parole officers found a gun on his camper and arrested the man.

Abbed maintained that he was not aware of the gun’s presence when he moved into the camper. The gun was sent to the forensic lab, but no fingerprints were found. DNA retrieved from the gun showed that it came from a female.

After due consideration the charges were dismissed. Armed habitual criminal is a Class X felony and could have landed the defendant in prison for a very long time. Abbed is still waiting for the court’s decision on his previous drug possession charges.

In another case, the charges of gun possession and aggravated discharge were dropped against Johnny Weatherall after a strong defense from his lawyers.

Weatherall was charged with allegedly firing shots at a home in Illinois. The house was hit by bullets that were later found by the police. No one was injured.

The man was arrested next day by the police on the basis of witness identification. He had a previous conviction from 2015 for aggravated battery to his ex-gf and mother of his children.

The defense called the witness testimony into question. There was no camera footage of the incident or any other evidence of Weatherall’s presence near the house with the bullet marks. The defendant had denied the allegations from the start. The witness identification was the most crucial piece of evidence.

However, the prosecution was unable to bring the witness to the court. They informed the judge that the witness had moved out of the state and was no longer willing to come forward. Without the key testimony, the judge had no other option but to dismiss the case.

Possible Legal Defenses

The right defense strategy for gun charges depends on the case circumstances. For instance, if a defendant is caught with a loaded firearm in the vicinity of a school, they could argue that they were not aware of the school’s location. They would also need to show the court that their presence near the school was in passing.

Defendants with previous convictions are especially at risk. Even if they haven’t done anything wrong, they can still get arrested and charged with habitual criminal offense for mere possession of a firearm. The best, and perhaps the only, defense available to them is to deny awareness of the firearm’s presence.

Charges of aggravated discharge are much tougher to defend in the presence of witness testimonies. The defendant could argue that such weapon discharge was involuntary and due to a malfunction of the firearm. A discharge that results in battery or permanent injury of another person is taken very seriously and can be tried under Class X felony.

An accused may argue from the point of self-defense. The burden of proof would lie on the defendant to show the court that he or she was threatened with physical harm and discharged the weapon in self-defense. It is a difficult strategy to execute in court, but a good defense team may be able to pull it off, depending on the situation.