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What Are Some Potential Defenses Used In These Cases?


There is no way you could ever tell. There are millions of defenses in a battery type situation, say it’s an aggravated battery with a gun, with or without the justifiable use of force. Let’s say somebody’s coming at you with an axe and they’re screaming they’re going to split your head open and kill you and you happen to have a gun in your waistband because you got a concealed carry and you pull out your gun and you shoot and kill the person. That could very well still be a justifiable use of force. You have a right to defend yourself and you can use deadly force when the person that you’re in fear is you have a reasonable fear that you’re in imminent danger of great bodily harm or death. If somebody’s coming at you with three cotton candies on the end of a piece of cardboard and says, “I’m going to kill you”, you can’t pull out your gun and blow their head off.

It has to be objectively reasonable, under those circumstances, that you had a reasonable belief that you’re about to receive imminent death or great bodily harm before you can be justified in using deadly force to protect yourself. The same thing with someone’s coming at you with a knife, you don’t have to wait for them to start slicing you up. If they’re coming at you and they’re getting closer and they’re about to slice you, you’ve got a right to defend yourself with an equal amount of force. So, what’s usually looked at is if it’s done on an equal basis. Let’s say you’re coming up and you’re going to punch me and you’re getting close, you don’t have to sit there and take that first shot and turn the other cheek, you’re allowed to use the same force that they’re using on you.

Just because you come up to me and take the swing and miss, and I decide to punch you, that doesn’t mean once I knock you down, I can hit you 30 times because you threw the first punch. That doesn’t open the floodgates, it has to be reasonable. So, you can’t overdo it just to retaliate. You can use the reasonable amount and that’s determined by the judge or a jury what’s reasonable in defending yourself. You are also allowed to defend somebody else. So, let’s say I see some really big 250-pound girl is mad at you and she’s about to clock you pretty hard with the fist as she’s been screaming that’s what she’s going to do to you, I don’t have to wait for her to punch you if it looks reasonable to everybody else that she’s just winding up to give you the knockout blow. I can step in-between and I can hit her before she hits you, but you have to be very careful with this but you can hit somebody else can stick in your place and use the same amount of force that you could have used.

But you better make sure that a judge or a jury is going to agree, “Yes, you had a reasonable amount to do that” because you can’t just say, “Oh, someone’s coming over and I decided to punch the crap out of because it looked like they had a lot of hatred in their eyes”. It’s not like that. There has to be something reasonable that you can see that you’re responding in kind and you can step forward for your friend who may not be able to defend themselves. I had a client who was getting me a lot of fun at Drinking October Fest and he was one of the cooks there and two guys were really drunk and really starting to pick on him. One of them just real back like he’s going to give him a knockout blow and my friend who was sober stood in and took one shot, hit the other guy, hit him right in the face, he broke his eye socket and it was an aggravated battery.

They have a jury trial but the judge found that was reasonable because everybody said these other guys were hammered drunk, they had absolutely or were saying they’re going to commit aggravated battery on this guy or took substantial steps towards doing it and he stepped in right at the last second. But it was still a very scary thing. If he would have lost that case, he would have lost his pension and everything else. So, we had a lot riding on it. There is a lot of pressure on the attorney too.

Do Most Of These Cases Go All The Way To Trial?

No. If you’ve got a slam dunk case and you think at the trial, the judge is going to kill you on the sentencing, so most cases don’t go to trial. In any kind of criminal case, you’d be surprised that 10% of them went to trial because once you exchange discovery, then, you pretty much see the cards the other team’s holding. If they’re holding four aces, you’re not going to jump into a fight with someone with four aces when you got a 2, 3, 7, 8, 9 or different color, you got nothing. So, why would you do that? So, you negotiate the case and you do the best job you can for your client and both sides hopefully come into some type of an agreement because who wants to waste their time on a case that’s completely obvious to everybody is one way or the other.

The judge will get mad at you, they get mad at the prosecutor, they get mad at the defendant like why didn’t you work this case out, there’s no reason to have a full jury trial, it takes days. You are entitled to have jury trials on damn near anything. So, most cases do not go to trial, most cases are worked out.

How Long Do These Cases Typically Take To Get Resolved?

That depends on which state, which county, how busy they are. I work here in Wisconsin and in Illinois and in Wisconsin or just between counties. Like in the Lake County, a case might take three months and in McHenry County, it might take a year. They don’t have anywhere near as many cases, they don’t mind dragging them on. My county and Lake County has always been very uppity about getting the cases moved fast because the Supreme Court judges judge them on how many cases they move how fast, not how well they did, which doesn’t always wind up with having the most equitable result but that’s just sometimes the way it happens. So, every jurisdiction is different, I’d say a normal felony case down here with gun charge, anything, it’s going to take you 3 to 6 months.

Misdemeanor charge is going to probably take you 2 to 4 months and that depends on how fast each side wants to do it from a defense side, “Look, if I am not paid, I am not going to finish my case until I’m taken care of”. You don’t jump on the bus and say, “I’ll pay for my ticket next year”. I want to be paid when I’m doing the job like anybody else. So, that can delay things. There are many, many things that can delay or speed things up, it could be the judges are on vacation, it could be the Christmas or holidays, there’s not much court schedule, there are a lot of things that can delay cases but I’d say that from start to end, you’re rarely going to get a case of any misdemeanor that’s going to be less than 3 months, very, very rare. So, I’d say 3 to 6 months is typical.

Depending on the range of the crime like in the felony range, it can be extended to even more of that depending on how complex the discovery issues are and has everybody really seen what each side’s holding and everything else.

For more information on Potential Defenses In Weapons’ Cases, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

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