A Self Defense Gun Case from my Law Practice

As I’ve mentioned, I am an attorney who practices in the Quad Cities area of Illinois and Iowa, with a large percentage of my practice comprising criminal defense cases.  That practice has prevented me from updating this website for some time, however I remain committed to gun rights in both my personal and professional life.  I recently had the honor of representing a woman named Judy, who used her gun to defend herself, her sister, and her sister-in-law after they were violently attacked in a parking lot.  Much to her surprise, Judy was charged in Case Number 2010CF1076 in Rock Island County, Illinois, after telling the police about the attack she suffered. After a variety of motion hearings, we proceeded to a jury trial on February 7, 2012.  The result of that trial was a verdict of Not Guilty, at which point the court ordered that Judy’s gun be returned to her right on the spot.  Judy was then able to walk out of the courthouse with her pistol, return home, and accept an even better employment offer that had been on hold as she awaited trial. With Judy’s permission, I am sharing her story here.Judy is a hard working and gainfully employed woman who lives in Detroit, MI.  Although she grew up in the Rock Island, IL area, she has not lived in Rock Island since going to college and then moving to Michigan for work.  Judy also has a Michigan concealed carry permit, and is proficient with her 9mm pistol. Although she has been licensed to carry a gun for self defense for years, she had never before needed to use a gun in self defense.  As I write this article, I have worked with Judy for about a year, and have spent quite a bit of time with her on the phone, in my office, and in court, and can say that she is a genuinely nice person who does not strike me as the type to instigate trouble.

For Thanksgiving of 2010, Judy came to Rock Island to visit with family.  As she was in Illinois, which does not allow concealed carry, Judy lawfully stored her pistol in her vehicle, with the magazine ejected and placed in one trunk compartment, and the unloaded pistol stored in another trunk compartment.  Judy’s sister, who was also in town, lives in North Carolina and has children with a man who lives in the Quad Cities area of Illinois.  Without going into too many details, it is sufficient to say that court testimony revealed that the children lived with Judy’s sister for their entire lives, with minimal involvement from their father, with Judy’s sister trying her best to encourage more involvement between the children and their father – until the father took the children and refused to return them.  Judy’s sister-in-law, and Judy were helped by the police and a local school to find the suspected address at which the children were being kept, and that attempts were made by Judy and her relatives to politely persuade the woman who was the dating Judy’s sister’s children’s father to help them find the children.  As the jury heard, the situation deteriorated rapidly due to no fault of Judy, her sister, or her sister-in-law – at which point multiple individuals (including a male who was much larger and stronger than Judy) began to attack with fists and pepper spray.  At her trial, Judy testified that she was hit by the pepper spray, but not as badly as her sister, and managed to break away and run to her vehicle, at which point she grabbed her pistol and made it ready to fire, before firing a couple of shots upwards, which caused the assailants to cease their attack upon Judy and her relatives.

Upon calling the police, meeting the police at a nearby gas station and then voluntarily discussing the attack that they suffered, Judy was charged with two felonies.  The first charge was Aggravated unlawful use of a weapon, where the prosecution essentially accused Judy of improperly having a loaded gun.  The second charge, reckless discharge, rested on the prosecution’s theory that Judy improperly endangered life and safety with her gun.

Judy contacted my office, and retained my services as her attorney. We discussed the facts of the case, and her options. One of my first steps in this case, as in almost every case, was to get a feel for the evidence and the prosecutor’s position on the case.  The prosecutor in Judy’s case is a woman who does not own a gun and who believes that handguns should not be owned by private citizens.  I offered to give the prosecutor the same concealed carry class that I have given (for free) to half a dozen people over the last year, and to take her shooting in the hope that it might change her perspective on guns.  My offers were rejected.  In terms of a plea offer, the prosecutor would not budge from wanting a felony conviction, which would ruin Judy’s career and cause her to lose her right to keep and bear arms.  Judy wisely had no interest in accepting that plea offer, and as her attorney I advised her to proceed to a jury trial.

In preparation for trial, I filed a variety of Motions, in which I asked the court to dismiss the case on the basis that charging Judy violated her federal, state, and common law rights to keep and bear arms and to defend herself and her relatives against a violent attack.  The court denied those Motions, which was not too surprising given the current caselaw in Illinois and the reluctance of most trial courts to find a law unconstitutional.  However, that Motion practice was time well spent, as it would have given Judy a basis for an appeal, had she not prevailed at trial.

Next, there were multiple Motions filed and heard concerning whether we would be allowed to present expert testimony with respect to a variety of issues including the mechanics of operating a gun, ballistics, self defense technique, and related matters.  After much legal wrangling and several hearings in which the court initially ruled it would bar our firearms expert, the court allowed our expert to testify to essentially everything at issue except what Judy was thinking at the time (since the expert wouldn’t know that).  With those rulings made, a firm trial date was finally set.

During the trial, the state presented witnesses who claimed that Judy that fired her gun at them, and that she did so without cause.  The state also called the police officers who dealt with Judy after she was attacked.  After the state rested, I called Judy and then her sister to the witness stand, and they testified as how they did not initiate a physical altercation, and how Judy fired her gun upwards into the air after they were attacked by multiple assailants (including a male and a female armed with pepper spray).  Judy and her sister also both testified that Judy’s sister was in very close proximity to her attackers when Judy fired upwards into the air, meaning that if the prosecution’s version of the facts were to be believed, then Judy would have been shooting at her own sister as well!  The physical evidence supported Judy’s version of the facts.  In particular, the police officer who searched the nearby 3 story apartment buildings and vehicles found no bullet holes, despite the fact that one would expect to see such bullet holes had Judy fired the direct that the state’s witnesses claimed.  Our firearms expert, Verne Trester, was able to testify that the live round found on the ground was consistent with Judy’s gun jamming as she held it at her side, pointed straight up, and fired it in an improperly supported position (leading to a failure to properly cycle, which Judy then had to clear to make the gun operational again).  Although it was not a large part of the trial or directly relevant to the case, the jury also heard how Judy’s sister finally got her children back though legal action in North Carolina, with the court awarding her fully custody and at one point issuing a warrant for the arrest of the children’s father.

At the close of evidence, I made a Motion for a Directed Verdict on the aggravated unlawful use of a weapon charge (Count 1).  The court, after hearing argument, granted that motion, ruling that the state had failed to produce evidence sufficient to allow any reasonable jury to convict Judy of that charge.  With Judy found Not Guilty of Count 1 by the judge, the Jury then was left to deliberate on Count 2, which was reckless discharge.  During closing arguments, the prosecution argued that Judy came with her gun looking for a fight, and that her actions were not self defense.  I argued that Judy acted in self defense, showing great restraint.

After about three hours of deliberation, the jury found Judy Not Guilty.  I then made a Motion to have Judy’s pistol, magazine, and ammunition returned to her right away, as it would be quite a burden for her to have to drive back to Rock Island, IL from Detroit, MI to pick it up after the evidence custodian processed it out in the normal course of business.  The court granted that Motion, and after getting a little attitude from a not-so-friendly member of law enforcement, Judy walked out of the courthouse with her self defense gun.

While I was very happy with the outcome, it was initially slightly bittersweet because I knew that right before Judy was charged, she was scheduled to have begun an even better paying job, but that that job never materialized due to the charges.  Then, a few days after the trial, Judy called my office to let us know that she had been able to get the job after being found Not Guilty.  All in all, this has been one of my favorite trials of the last year, and I was happy to see such a positive outcome for such a deserving person.

The online docket for Judy’s case can be seen by clicking here, entering “2010CF1076” in the Case search box, pressing search, then clicking on “History.”

Note that this article provides a summary, rather than every single detail, as the Motions I filed alone would take up 10 times as many words as this article, and presenting all the evidence to the Jury required two and a half days.  Indeed, as I wrote this article, the hardest part was figuring out what to include. In the event that you have any questions or think that I left something out, please do let me know in the comment section below.