Monday, January 25, 2010

Armed Violence

There is a rarely used crime in the Illinois Criminal Code called Armed Violence, 720 ILCS 5/33A-2. The elements of the crime are simple: being armed with a dangerous weapon while committing a felony. This is sort of like felony murder.

This law takes two separate felonies and criminalizes them sharply if committed together. Being armed with a deadly weapon is usually illegal. Add most any other felony and you have armed violence. But instead of 2+2 equaling 4, it adds up to 10.   

Being armed is pretty easy to understand. The statute breaks weapons down into 3 classes. Class I weapons are handguns, saw-offed shotguns, machine guns, and any other firearm small enough to be concealed. Class II weapons are regular shot guns, rifles, tasers, other firearms (?), knives with blades that exceed 3 inches, axes, and hatchets. Class III weapons are blackjacks, brass knuckles, and other bludgeons.

Not sure where hand grenades fit in. How about Claymore mines? Anti-aircraft missiles? Anthrax? Poison Ivy? Bad breath? I am not meaning to make fun of this law because it has a lot of teeth and they are razor sharp.

The underlying felony, or the crime being committed while armed can be confusing. Murder, attempt murder, manslaughter, aggravated battery of a child, and home invasion are among crimes that cannot be used as the underlying felony (or that which one is doing while armed). Weapons crimes where possession or use of that weapon is a separate charge cannot be used either. In other words, you can't be charged with aggravated battery with a firearm and armed violence.

The law is further broken down into 3 categories based on the offense itself. Being simply armed is the least serious, discharging a class I or II weapon is in the middle, and actually causing great bodily harm with a class I or II weapon is the most serious. 

The purpose of the legislation was (I think) to address the threat of armed drug dealers. That's two layers of evil. Deal drugs=evil. Carry weapon=evil. Deal drugs while carrying a weapon=very evil.

People v. Lucas, 372 Ill.App.3d 279 (3rd Dist. 2007)  was upheld on appeal where the defendant was charged and convicted of armed violence. In Lucas the defendant was arrested for a DUI while carrying a switchblade.

DUI's are normally misdemeanors in Illinois. But in this case, the defendant's license was revoked and therefore a class 4 (least serious) felony. Drive Drunk=Evil. Carry a switchblade=slightly evil. Drive Drunk with a switchblade=????

What makes this law so nasty are the sentences it carries. In the above case, the defendant got 30 years. Count 'em. 30. There were some other facts to the case, but 30 years is pretty harsh.

Violations of the armed violence statute are sentenced like this:

Be in possession of a handgun while committing another felony: 10 years minimum, up to 30.
Shoot a handgun while committing another felony: 20 years minimum, up to 30.
Shoot and hit someone while committing another felony: 25 to 40 years.

As a comparison, the sentence for first degree murder is 20-60 years. Note: an extra 25 years can be added if a handgun was used to commit the murder.

Compare the armed violence sentences with those of regular felonies. Example: defendant arrested for a pistol and some drugs. Carrying a pistol on your person is normally a class 4 felony, or 1 to 3 years. Possession of 1 gram of cocaine is also a class 4 felony. If committed at the same time, normally the defendant would only plead guilty to one charge and probably the gun.

If the defendant in the above example case is convicted on both counts, the sentences would likely run concurrent or at the same time. In other words, the most the defendant would do is 3 years.

Charge this case under the armed violence statute and it's 10-30 years. Quite a difference. And it clearly meets the definition of armed violence.

I have a case that the state has brought armed violence charges against my client. A weapon was fired and it hit two people. This all happened inside of a home. I have a great self-defense and/or defense of property case. But some crack-cocaine was found in the home.

This split my case in two and raised the difficulty level immensely. A self-defense case, in theory, is easy. Put the defendant on and have him tell the jury what he was thinking when the incident happened. He was scared. He feared for his life. He lives in a violent neighborhood. He thought he was about to be killed. And so forth.

Assuming all of that comes in, a proper jury instruction is given and self-defense or defense of property is considered by the jury. And in my case, I have some great facts.

Add the armed violence charge and now I have to prevent the state from proving my client knew about the drugs or it's 25-40 years.



  1. How much would it cost to retain your services if my fiance was charged with attempt murder and armed robbery.....he went to court and now he say they indicted him on armed violence?


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