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ANALYSIS OF COOK COUNTY
ASSAULT WEAPONS BAN


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.
 


Also read ISRA Executive Director Richard Pearson's Report on the Cook County AWB.