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Effective November 14, 2006, a Cook County gun ban
Ordinance criminalizes the otherwise lawful possession of many common
firearms and large capacity magazines. The law provides for imprisonment
up to 6 months, fines, and confiscation and destruction of the enumerated
weapons. Owners of such firearms or large capacity magazines have until
February 12, 2007 to either remove the affected guns and remove any large
capacity magazines from Cook County or surrender them to the police for
destruction.
What firearms and magazines are affected by this county wide ban? Over 60
firearms are specifically listed as being illegal, including the deer
rifle popular in many Midwest states, the SKS with a detachable magazine.
Popular self defense weapons like the Mossberg 500 pump, and popular
target shooting semiautomatic AR-15 are also illegal. In addition, all
magazines that can hold more than 10 shells are banned.
The Ordinance specifically bans any semiautomatic shotgun that has a fixed
magazine with a capacity in excess of five rounds. Since shotgun shell
rounds can be obtained in sizes as short as 2 inches, the ordinance can be
construed to ban all common semiautomatic shotguns.
In addition to banning over 60 enumerated firearms, the Ordinance defines
certain banned firearms with catch-all definitions. One such carefully
worded definition bans any semiautomatic rifle that need not have, but has
the ability to accept a large capacity magazine and has,
"A shroud attached to the barrel, or
that partially or completely encircles the barrel, allowing the bearer to
hold the firearm with the non-trigger hand without being burned, but
excluding a slide that encloses the barrel,"
A standard dictionary definition of the word shroud is,
“something that covers, screens, or guards.” The ordinance defines this
“shroud” as something that allows the holding of the rifle in the off hand
that would keep the shooter’s off hand from being burned. The Ordinance
only excludes from this categorization a “slide,” a term usually applying
to the top piece of a semiautomatic handgun. Missing from the exclusion is
any verbiage about “the forearm assembly,” “fore-end,” or “stock”. An
arguable interpretation of the word “shroud” as used in the Cook County
Ordinance would include the standard forearm or stock that allows normal
two handed shooting.
In determining the likelihood of Ordinance being interpreted to cover all
standard semiautomatic rifles, we can look to the past history in Cook
County. The current and prior States Attorneys of Cook County have
previously interpreted criminal statutes in an unreasonable manner to
justify charging otherwise law abiding citizens with gun possession
crimes. These prior anti-gun interpretations have defied common sense and
contradicted prior case law. Because the interpretations have been
publicly stated to be the official interpretation, all Cook County
Assistant States Attorneys are required to use them in determining what
charges would be filed. One of the recent examples of the way Cook County
prosecutors interpret the law unreasonably has been their failure to
acknowledge that current state law allows the carrying of an unloaded gun
in specially designed fanny packs. One would expect the Cook County States
Attorney’s Office to continue their tradition of interpreting gun laws in
a manner to include as many gun owners as possible, and therefore to start
charging under the new Ordinance owners of semiautomatic firearms that
could be held by two hands, which is for all practical purposes, all
semiautomatic rifles.
For a listing of the enumerated firearms that are banned, and the exact
wording of the ordinance, see the third Ordinance listed:
www.cookctyclerk.com/html/111406orddoc.htm
What can gun owners do? This ordinance primarly affects Cook county
residents. For firearm owners living outside Cook County, the ordinance
exempts from the statute the “transportation of assault weapons or large
capacity magazine if such weapons are broken down and in a non-functioning
state and are not immediately accessible to any person.” Such weapons may
be transported while unloaded, broken down and cased in your trunk or
otherwise not immediately accessible to the occupants of the vehicle. A
locked case would make the weapons not immediately accessible for the
owners of station wagons and SUVs.
For Cook County residents who possess the specifically listed firearms,
until there is a successful court challenge to this ordinance with a
published Appellate opinion, the only prudent legal option would be to
relocate the banned firearms outside the geographical boundaries of Cook
County. The ordinance criminalizes possession of the banned firearms
inside of Cook County, not the mere ownership of the banned weapons
possessed outside of Cook County.
Cook County residents who own semi-automatic shotguns and rifles that
could arguably meet the generic ordinance definition of a banned assault
weapon face a dilemma of uncertainty. Until there is a test case taken up
on appeal, those residents may be subject to arrest, conviction and have
their weapons confiscated and destroyed. A full criminal defense would
cost $10,000 on up with no guarantee of winning the case on appeal. Until
the Cook County States Attorney publicly states that under no
circumstances will the new ordinance be enforced against owners of
ordinary shotguns which could be loaded by more than 5 two-inch long
shells, or against owners of long guns with ordinary forearms and stock,
those firearm owners would be prudent to also relocate those possibly
banned firearms.
There are undoubtedly some Cook County residents who, because of their
honestly held beliefs, are willing to knowingly incur the risks of
convictions, incarceration, and confiscation of their firearms for
violating the Cook County gun ban. Those residents should refrain from
engaging in activities that would bring those firearms to the knowledge of
their local law enforcement officials. On some isolated occasions the
Chicago police proactively sought out otherwise law abiding owners of
handguns for the simple purposes of confiscation. However, the vast
majority of the over 10,000 firearms that are seized by the police each
year in Cook county, are seized by chance . Police seize many firearms as
a result of searches of cars stopped for traffic violations, searches of
homes and business as a result of responding to calls of crimes, domestic
arguments, search warrants for drugs, and other ordinary police caretaking
functions.
Often, police routinely ask for consent to search to satisfy their
investigations. Owners of the affected firearms should be aware that they
have a Constitutional right to decline to consent to a search of either
their cars, homes or businesses. Owners of the affected firearms should
likewise absolutely refrain from activities that would bring them into
contact with the police. The mere absence of more interactions between the
police and citizens have historically resulted in the majority of
potential gun violations not ending up as confiscations or arrests. For
instance, to date, not a single test case has been made in Cook County
concerning the fanny pack exception to the state law that allows the
transportation of unloaded firearms with detached loaded magazines in a
case designed to transport a firearm.
The new Cook County gun ban can affect tens of thousands of otherwise law
abiding citizens. This imprudent law has forced gun owners to make tough
decisions that the Courts will take years to ponder. Gun owners should
individually read the ordinance, and contact the 17 Cook County
Commissioners. But unless and until the ordinance is repealed or struck
down, owners of the affected firearms should follow the law as best they
can.
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