The Arbitrary Divide: Understanding Simple vs. Aggravated Unlawful Possession of a Weapon
Written by Emily Drevdahl, Loyola School of Law, and Julian D. Cohen, Brown University.
Over the past several years, gun possession charges have surged to become one of the most common offenses in Illinois, prompting some scholars to argue that the War on Drugs has evolved into a “War on Guns.” Faced with the immediate threat of gun violence in many Chicago communities, individuals—especially young Black men and boys—often view firearm possession as a necessary form of protection. Between 2014 and 2019, rising arrests combined with mandatory prison terms for those unlawfully possessing loaded and accessible firearms led to a 27% increase in prison admissions for gun possession offenses. With 72% of firearm-related offenses in Illinois involving illegal possession rather than use, it is essential to understand the distinction between types of gun possession charges, as they carry vastly different consequences.
Unlawful Possession of a Weapon vs. Aggravated Unlawful Possession of a Weapon: The Statute
Unlawful Possession of a Weapon (UPW) and Aggravated Unlawful Possession of a Weapon (AUPW) overlap in key ways but diverge in AUPW’s focus on imminent danger based on the presence of aggravating factors.
UPW criminalizes knowingly carrying or possessing certain weapons in prohibited places or under prohibited conditions. Under Section 24-1 of Illinois’ criminal code, it is unlawful to carry or possess a firearm unless on private property with permission; the weapon is broken down, not immediately accessible, or unloaded and enclosed in a case; or the individual possesses the proper licensing to carry a concealed weapon in public.
AUPW is similar to UPW, focused on carrying a weapon that is readily usable, but is treated more seriously due to the existence of ostensibly dangerous conditions. The dangerous conditions are determined by the existence of one of the aggravating factors. These aggravating factors fall into three general categories: weapon condition and accessibility, ongoing or recent criminal activity, and lack of a valid Firearm Owner’s Identification (FOID) card.
The aggravating factors that focus on weapon condition and accessibility emphasize imminent use. Under Section 24-1.6(a)(3)(A), the weapon must be uncased, loaded, and immediately accessible,1 and if it’s a handgun, the person does not have a valid concealed carry license (CCL). Section 24-1.6(a)(3)(B) is similar, but rather than requiring the weapon to be loaded and immediately accessible, it requires that the ammunition be accessible. Unlike AUPW, UPW does not require all the conditions to occur at the same time. For example, the weapon does not need to be uncased, loaded, and immediately accessible, or uncased with ammunition immediately accessible, in order to be a violation.
Another category of aggravating factors is those focused on ongoing or recent criminal activity. There are 5 aggravating factors within Section 24-1.6(a)(3) that fall within this category: (D) applies when the defendant was previously adjudicated a delinquent minor for an act that would be a felony if committed by an adult, (E) applies when the defendant was committing a misdemeanor drug offense when the gun offense occurred, (G) applies when the defendant had an order of protection issued against them in the past 2 years, (H) applies when the defendant was committing a violent misdemeanor when the gun offense occurred, and (I) applies to defendants under 21 who had a handgun. Finally, Section 24-1.6(a)(3)(C) includes as an aggravating factor the lack of a valid FOID card.
UPW is typically charged as a Class A misdemeanor when it involves basic firearm possession violations. However, certain offenses such as possession of explosives, silencers, or repeat offenses can escalate UPW up to even Class X felonies depending on the type of weapon and circumstances. By contrast, AUPW starts at a Class 4 felony, often with mandatory prison time, but prior felony convictions or aggravating circumstances (like wearing body armor) can elevate the charge to a Class 2 or Class X felony (which is non-probational). Thus, while the distinction between UPW and AUPW may be nuanced, the consequences are significant, as AUPW carries the long-lasting repercussions of a guaranteed felony charge that can result in mandatory prison time depending on the circumstances.
Legitimacy of Aggravating Factors
While the difference between UPW and AUPW is premised on increased danger, the aggravating factors often fail to reflect any real heightened threat to public safety. For example, possessing a bomb—a weapon with clear and severe potential for harm—is charged under the UPW statute, not AUPW. Even when the bomb is brought into a school, it is still classified at most as a Class 3 felony. By contrast, someone accused of AUPW for a second time automatically faces a Class 2 felony. Clearly, threat to public safety is not what distinguishes between UPW and AUPW.
Moreover, a large portion of AUPW charges start with an investigatory stop by police, usually pretextual vehicle stops for minor traffic violations like a broken taillight or failure to signal. These stops don’t involve any threatening or dangerous behavior, underscoring that AUPW charges often don’t reflect heightened risk or harm. Investigatory stops allow police to briefly detain and question individuals based on reasonable suspicion of criminal activity. In Chicago, police discretion in stops and searches has led to a disproportionate impact on Black and Brown communities. Officers often claim to smell marijuana or point to non-moving violations as a basis for the search. As one community organizer stated, “People get pulled over for no reason whatsoever. Getting their car searched, and [the cops] eventually find [a gun]. A lot of times, it’s, ‘we smelled marijuana,’ and I’m like, ‘these cops have amazing noses because you smelled marijuana from a car that was 50 feet away.’” Thus, many gun possession charges stem from non-violent encounters with police, raising an initial question about how AUPW addresses public safety when the individuals charged were not engaging in dangerous behavior at the time the weapon was found.
The concerns don’t end there. Factor (D), which applies to individuals previously adjudicated delinquent, raises serious fairness issues. Our juvenile justice system exists because we recognize that children lack full cognitive development and should not be held to the same standards as adults. Treating a juvenile adjudication as an aggravating factor ignores that principle and unfairly burdens individuals for mistakes made in adolescence. Similarly, factor (I) enhances punishment based solely on the defendant’s age, regardless of any link to dangerous behavior.
Likewise, factor (E) imposes harsher penalties on those committing low-level, non-violent drug misdemeanors, which often involve nothing more than possessing small amounts of controlled substances. Factor (G) elevates charges based on the existence of an order of protection within the past two years, without requiring that the order stem from violence or any specific threat. The only aggravating factor that directly relates to actual violence is (H), which applies when the defendant is committing a violent misdemeanor. But even here, the conduct is by definition low-level and non-lethal (like simple assault or domestic battery), making it a weak basis for significantly enhanced punishment.
Additionally, in practice, the aggravating factors based on weapon condition and accessibility are almost always met when someone carries a gun for protection, making AUPW the default charge in most cases. Consider that a weapon isn’t useful for protection unless it’s ready for imminent use. So, when a police officer finds a person carrying a weapon, they are likely ready for imminent use, whether it be under section 24-1.6(a)(3)(A) or (B), and are charged under the more serious AUPW. Thus, in practice, almost all defendants carrying a weapon for protection will be charged under AUPW rather than the less serious UPW. Indeed, an analysis of the Cook County State’s Attorney’s Office’s Felony Dashboard found that 85% of felony gun possession cases included at least one AUPW charge.
Application
Charging an individual with AUPW instead of UPW carries three major implications. First, AUPW charges begin at a Class 4 felony rather than a misdemeanor. This heightening dramatically increases the stakes, leading to a risk of greater prison time and putting immense pressure on defendants to accept a plea deal, even if they might otherwise want to challenge the charges at trial. Beyond that, a felony conviction results in a permanent record that carries far-reaching collateral consequences, limiting opportunities for employment, housing, and access to public benefits after release.
Second, it criminalizes poverty and those unable to navigate bureaucratic systems. One of the aggravating factors for AUPW is failing to have a valid FOID card. Instead of simply charging individuals who lack FOID cards with UPW, elevating this to an AUPW charge results in needlessly harsher penalties. While it’s reasonable to require background checks for firearm ownership, lacking a FOID card does not, on its own, indicate a person is inherently dangerous. There are numerous reasons why someone may be unable to obtain a FOID card, including factors like lacking a government-issued ID or a stable address, having recently failed a drug test, or possessing a juvenile record. The 21-year-old age requirement also excludes young people who, as mentioned earlier, may feel a strong need to carry a gun for self-protection. These requirements effectively transform administrative noncompliance into grounds for harsher criminal penalties.
Third, this issue, like almost all in the criminal legal system, is significantly racialized. Although white men own guns at about twice the rate of nonwhite men, Black men in Chicago face nearly 30 times as many arrests for illegal gun possession and are prosecuted for Class 2 felonies or higher at far greater rates. In fact, according to Injustice Watch, “Between 2000 and 2018, the number of weapons cases filed increased by 39% for Black defendants but decreased by 49% for white defendants.” What’s more, despite lower levels of criminal behavior among minority youth, Black and Latine children face a higher likelihood of being adjudicated delinquent, permanently denying them access to a FOID card and subjecting them to elevated charges for gun possession. The widespread charging of these cases as AUPW rather than UPW thus further entrenches cycles of incarceration that disproportionately impact people of color.
Policy Recommendations
Given the high costs to vulnerable communities and virtually no public safety benefits, the current approach to gun possession should not continue. Instead, jurisdictions—particularly Cook County—must commit to reducing reliance on punitive practices, building off-ramps from the criminal legal system, and investing in long-term community safety strategies.
If the goal of AUPW is to reduce danger from gun violence in the city, then it is failing. Numerous studies, including data from the Cook County State’s Attorney’s Office, show that increasing arrests and convictions for gun possession fail to reduce illegal gun possession or shooting incidents. Put differently, “tough on crime” policies are ineffective at lowering crime rates or protecting public safety, instead only bolstering systems of racialized oppression.
Abolition of the AUPW classification altogether would be entirely appropriate. As established, it has not decreased gun violence or danger in the city at all; thus, its intended purpose has failed. While there are technically differences between UPW and AUPW, in practice, the vast majority of cases are swept into the aggravated category by default, defeating the purpose of having two categories. Simply put, AUPW is a tool for stoking fear, increasing punishment, and prolonging incarceration beyond what evidence supports.
Instead, Illinois should abolish the AUPW charge entirely and amend the UPW to include aggregating factors focusing entirely on violence. UPW already has factors that aggregate the offense up to a Class X felony; there is no reason why “danger/violence factors” could not be added to the existing UPW statute. Importantly, though, this would exclude most of the AUPW factors because they have nothing to do with danger or violence.
At minimum, Illinois should amend the AUPW aggravating factors and the circumstances under which a gun possession charge can be initiated to better reflect actual threats to public safety. Specifically, Factors (C) (lack of a FOID card) and (I) (underage persons) should be eliminated entirely, as neither of these factors meaningfully relate to public danger. Factors (D) (adjudicated delinquent) and (G) (subject to an order of protection) should be revised to include an element of past violence in the underlying offense or court order. While this would require a fact-specific inquiry and may introduce more subjectivity, it would at least tie these factors to a legitimate safety concern. Lastly, for the same reason, Factor (E) (drug misdemeanor) should be amended to require the ingestion of drugs rather than mere possession.
Additionally, AUPW charges stemming from routine traffic stops should be prohibited altogether. In most cases, the weapons involved are stowed and not actively being used, meaning there is no imminent threat to the public. Eliminating AUPW charges in these situations would significantly reduce the number of people prosecuted under factors (A), (A-5), (B), and (B-5) (“imminent use” factors). If a weapon is simply stored in a vehicle (even if immediately accessible), there is no danger to the public, and it should not be enough to justify a felony gun possession charge.
Finally, the Illinois General Assembly should repeal the 2011 mandatory prison requirements for those found with “loaded and accessible” firearms, and state’s attorneys should offer the First Time Weapon Offender Program to more individuals, allowing them to eventually have their charges dismissed. While probation is not an ideal long-term solution, it avoids the lasting harms of incarceration and a permanent criminal record.
It is time to embrace non-punitive alternatives for individuals facing gun-related charges. Transformative and restorative justice models offer constructive solutions that more effectively promote healing and accountability, divert individuals from the criminal legal system, and strengthen—rather than destabilize—communities.
1 Courts have construed “immediate accessibility” to mean that the weapon is within “easy reach” of the defendant; courts look at both proximity and the ability to physically reach the item. People v. Martinez, 285 Ill. App. 3d 881, 675 N.E.2d 944 (1996). For example, under the driver’s seat is generally considered immediately accessible, People v. Cook, 46 Ill. App. 3d 511, 361 N.E.2d 81 (1977), but under the hood of a car is not, People v. McKnight, 39 Ill. 2d 577, 237 N.E.2d 488 (1968).