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How much real or perceived injury is required for legal use of deadly force?


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#31 Frank

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Posted 05 August 2018 - 03:10 PM

 

There is no justification for force unless you are being threatened with deadly force.

There is something to be said about martial arts in terms of putting yourself in a better position to either use deadly force or retreat. But there is no reason a conceal carrier should ever employ "less then lethal force". Because if you kill someone you will have an even more difficult uphill battle in the courts.

Responding with anything less then deadly force or retreat is an escalation. It's very difficult to argue self defense in a situation where lethal self defense wasn't justified, whatever the weapon.

Plenty of cases where people have gotten into legal trouble for responding to a minor physical assault with a one punch grievous wounding.

A conceal carrier is not the police, they do not need to momentarily disable to apprehend. They need to de-escalate, remove themselves from the situation, or as a last resort stop the threat. Morally and legally speaking.

 

 

 

 

The law is very clear that you are justified in responding with force to defend yourself.

 

 

 

Sec. 7-1. Use of force in defense of person. 

    (a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force...

 

There is no mention of deadly force, lethal force, force likely to cause death or great bodily harm in the first part of the 7-1(a). It just says your force must be necessary to defend yourself. 

 

 

 

 

Sec. 7-1. Use of force in defense of person. (continued)

...However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

 

The second half of the paragraph specifies that you can only use deadly force to defend yourself from deadly force. 

 

Taken together, you are justified in using non-lethal force in defending yourself against an attacker using non-lethal force against you. You are ONLY justified in using deadly force to defend yourself if your are confronted with force likely to cause death or great bodily harm. 

 

If you use deadly force against an assailant who is only using ordinary force (non-lethal force) you will probably be convicted for murder, manslaughter or aggravated battery, depending on the circumstances. This is excessive force and not justified under the law.

 

You are absolutely justified in defending yourself from a non-lethal attack using ordinary, non-deadly force. 

 

This is the cornerstone of the use of force laws. Your defense cannot exceed the level of force (lethal vs non-lethal) of your assailant.

 

 

-- Frank


Edited by Frank, 05 August 2018 - 03:26 PM.

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#32 Dog1

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Posted 05 August 2018 - 03:42 PM

 

The second half of the paragraph specifies that you can only use deadly force to defend yourself from deadly force. 

 

Taken together, you are justified in using non-lethal force in defending yourself against at attacker using non-lethal force against you. You are only justified in using deadly force to defend yourself if your are confronted with force likely to cause death or great bodily harm. 

 

If you use deadly force against an assailant who is only using ordinary force (non-lethal force) you will probably be convicted for murder, manslaughter or aggravated battery, depending on the circumstances. This is excessive force and not justified under the law.

 

You are absolutely justified in defending yourself from a non-lethal attack using ordinary, non-deadly force. 

 

This is the cornerstone of the use of force laws. Your defense cannot exceed the level of force (lethal vs non-lethal) of your assailant.

 

 

 

This analysis omits the use of deadly force to prevent or stop the commission of a forcible felony. Aggravated Assault is a forcible felony. The standard as I understand it and as I teach it is: Would a reasonable person, based on the totality of circumstance, believe the the use of  deadly force is necessary to stop or prevent the Aggravated Assault (or other forcible felony). 

 

Also as I understand:

 

 

 

This is the cornerstone of the use of force laws.

 

 

The use of force cannot exceed what is necessary to stop the attack. The classic example is a battered wife. A woman is not required to engage in hand to hand combat before the use of a firearm is justified to stop the assault. Even if the assault is likely to "only" result in facial lacerations and bruising. 



#33 Frank

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Posted 05 August 2018 - 03:54 PM

 

This analysis omits the use of deadly force to prevent or stop the commission of a forcible felony. Aggravated Assault is a forcible felony. The standard as I understand it and as I teach it is: Would a reasonable person, based on the totality of circumstance, believe the the use of  deadly force is necessary to stop or prevent the Aggravated Assault (or other forcible felony). 

 

Also as I understand:

 

The use of force cannot exceed what is necessary to stop the attack. The classic example is a battered wife. A woman is not required to engage in hand to hand combat before the use of a firearm is justified to stop the assault. Even if the assault is likely to "only" result in facial lacerations and bruising. 

 

 

You are correct, I did not include the prevention of forcible felonies as justification for deadly force. However, aggravated assault is not a forcible felony. In many cases it is only an class A misdemeanor. The list of forcible felonies includes, "aggravated battery resulting in great bodily harm or permanent disability or disfigurement..." Battery is unlawful touching, assault is merely threatening to use force.


Edited by Frank, 05 August 2018 - 04:05 PM.

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#34 Dog1

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Posted 05 August 2018 - 04:31 PM

 

You are correct, I did not include the prevention of forcible felonies as justification for deadly force. However, aggravated assault is not a forcible felony. In many cases it is only an class A misdemeanor. The list of forcible felonies includes, "aggravated battery resulting in great bodily harm or permanent disability or disfigurement..." Battery is unlawful touching, assault is merely threatening to use force.

 

Sorry was not paying close enough attention. I meant to say Aggravated Battery and not Aggravated Assault. Thanks for catching my error.

Worth pointing out that under Illinois statute the list of aggravating factors is so extensive that almost any battery may be charged as aggravated battery. With respect to the "resulting in great bodily harm...." in addition to this specific justification, the last phrase of the forcible felonies section "and other felonies involving the use of force" extends the justification for the use of deadly force to aggravated battery which does not result in "great bodily harm or disfigurement" 



#35 Frank

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Posted 05 August 2018 - 04:39 PM

 

 

You are correct, I did not include the prevention of forcible felonies as justification for deadly force. However, aggravated assault is not a forcible felony. In many cases it is only an class A misdemeanor. The list of forcible felonies includes, "aggravated battery resulting in great bodily harm or permanent disability or disfigurement..." Battery is unlawful touching, assault is merely threatening to use force.

 

Sorry was not paying close enough attention. I meant to say Aggravated Battery and not Aggravated Assault. Thanks for catching my error.

Worth pointing out that under Illinois statute the list of aggravating factors is so extensive that almost any battery may be charged as aggravated battery. With respect to the "resulting in great bodily harm...." in addition to this specific justification, the last phrase of the forcible felonies section "and other felonies involving the use of force" extends the justification for the use of deadly force to aggravated battery which does not result in "great bodily harm or disfigurement" 

 

 

For example, a simple battery  (hitting, spitting on, kicking, pushing, etc) becomes aggravated battery if the victim is a police officer. However this is not a forcible felony because the aggravated battery does not result in great bodily harm or permanent disability or disfigurement. 

 

The last part of this sentence is somewhat open-ended: "any other felony which involves the use or threat of physical force or violence against any individual." First of all, it must be a felony, not a misdemeanor involving the threat or use of force. I am pretty sure that a judge would have to make the ruling on a case-by-case basis if the offense meets the definition in the statute. I think because the first part of the sentence specifies only aggravated battery resulting in great bodily harm, etc, that aggravated battery not involving great bodily harm would be excluded. I wonder if there is any existing case law in Illinois on this.

 

 

-- Frank


Edited by Frank, 05 August 2018 - 04:42 PM.

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#36 cope

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Posted 05 August 2018 - 04:50 PM

As I mentioned earlier... most tend to take the most restrictive meaning and cite that as the law.... nothing wrong with covering your arse in that way.... but that doesnt mean thats the law.

 

Only reading the parts you want to read doesnt make those part the only acceptable law.

 

There are A LOT of grey areas in the laws in Illinois, especially surrounding firearms..... this is not one of those grey areas. The law is pretty clear on justification for use of force.

 

You can use deadly force to prevent a forcible felony..... the law is very clear on what constitutes a forcible felony.... aggravated battery is a forcible felony..... there are many factors which can make a simple battery become an aggravated battery..... touching my butt in a public street by definition can result in use of deadly force.

 

I dont think a jury would see it that way..... but the law IS clear on it.



#37 Frank

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Posted 05 August 2018 - 04:54 PM

As I mentioned earlier... most tend to take the most restrictive meaning and cite that as the law.... nothing wrong with covering your arse in that way.... but that doesnt mean thats the law.

 

Only reading the parts you want to read doesnt make those part the only acceptable law.

 

There are A LOT of grey areas in the laws in Illinois, especially surrounding firearms..... this is not one of those grey areas. The law is pretty clear on justification for use of force.

 

You can use deadly force to prevent a forcible felony..... the law is very clear on what constitutes a forcible felony.... aggravated battery is a forcible felony..... there are many factors which can make a simple battery become an aggravated battery..... touching my butt in a public street by definition can result in use of deadly force.

 

I dont think a jury would see it that way..... but the law IS clear on it.

 

Please let us know how that works out for you.


Edited by Frank, 05 August 2018 - 04:55 PM.

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#38 cope

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Posted 05 August 2018 - 05:01 PM

That wont happen..... its not something I would do

 

However that doesnt make it illegal because someone in a forum incorrectly informed me about the law

 

bottom line to the OP..... only you can determine when deadly force is necessary for you to use....... I highly doubt anyone from this forum will be there on your shoulder giving advice when the time comes to make that decision

 

the best thing you can do is understand the law and prepare yourself

 

god forbid I ever have to use my weapon.... but if time comes Im not going to lose my life because someone in a forum gave me bad advice


Edited by cope, 05 August 2018 - 05:03 PM.


#39 gangrel

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Posted 05 August 2018 - 05:05 PM

 

 

 

The law is very clear that you are justified in responding with force to defend yourself.

 

 

 

 

Sec. 7-1. Use of force in defense of person. 

    (a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force...

 

There is no mention of deadly force, lethal force, force likely to cause death or great bodily harm in the first part of the 7-1(a). It just says your force must be necessary to defend yourself. 

 

 

 

 

Sec. 7-1. Use of force in defense of person. (continued)

...However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

 

The second half of the paragraph specifies that you can only use deadly force to defend yourself from deadly force. 

 

Taken together, you are justified in using non-lethal force in defending yourself against an attacker using non-lethal force against you. You are ONLY justified in using deadly force to defend yourself if your are confronted with force likely to cause death or great bodily harm. 

 

If you use deadly force against an assailant who is only using ordinary force (non-lethal force) you will probably be convicted for murder, manslaughter or aggravated battery, depending on the circumstances. This is excessive force and not justified under the law.

 

You are absolutely justified in defending yourself from a non-lethal attack using ordinary, non-deadly force. 

 

This is the cornerstone of the use of force laws. Your defense cannot exceed the level of force (lethal vs non-lethal) of your assailant.

 

 

-- Frank

 

Frank -

 

I spent 15 years teaching martial arts (and no, not Tae Kwon Fu, the real stuff).  Regardless of what the law says about what level of force I can and can't use, I will never willfully engage in a physical altercation while carrying.  if I somehow find myself in a jam before I realize it's happening, sure, I will punch and elbow and knee my way out of it.  But engaging and remaining engaged while carrying presents the risk that your attacker/opponent will stumble upon your sidearm and use it against you.  If I can't deescalate by talking my way out of it, fleeing, or quickly stunning and retreating, then the attacker is going to find out about my sidearm on my terms, not on his.

 

Also, it wasn't mentioned here, but the rise of MMA/UFC has greatly increased the popularity of ground fighting.  While this is a tremendously valuable skill to learn and add to the tool box, it has one serious fatal flaw:  the second attacker.  All the great ground fighting we see in octagon and hexagon cages takes place between two fighters.  When you go to the ground, the second your attacker's buddy shows up, you are getting your teeth kicked in and your head stomped flat.  Once again, see my comments above about the attacker discovering your sidearm.


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#40 Dog1

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Posted 05 August 2018 - 05:11 PM

So if there has to be death, severe bodily harm or  disfigurement, a thug accosts a 62 year old paraplegic in a wheel chair. Dumps her over and begins kicking her. At what point can she draw her weapon and at which point can she shoot?

 

My answer is when she is the victim of an aggravated battery (by being a over 60, and/or handicapped) she is justified in drawing her weapon. She is justified in firing if she feels the attack will continue. No need to qualify further by  attempting to determine if she would be killed, severely injured or permanently disfigured.



#41 gangrel

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Posted 05 August 2018 - 05:20 PM

So if there has to be death, severe bodily harm or  disfigurement, a thug accosts a 62 year old paraplegic in a wheel chair. Dumps her over and begins kicking her. At what point can she draw her weapon and at which point can she shoot?

 

My answer is when she is the victim of an aggravated battery (by being a over 60, and/or handicapped) she is justified in drawing her weapon. She is justified in firing if she feels the attack will continue. No need to qualify further by  attempting to determine if she would be killed, severely injured or permanently disfigured.

If she waits until the aggravated battery is already in progress, it is too late.  The law says "only if he reasonably believes that such force is necessary to PREVENT imminent death or great bodily harm."  If you wait until the assault is already happening, you're not preventing death or great bodily harm, you are trying to prevent it from getting worse.  Yes, you are justified in using force once the attack has already started, but that is not the threshold.


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#42 Frank

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Posted 05 August 2018 - 05:22 PM

 

Frank -

 

I spent 15 years teaching martial arts (and no, not Tae Kwon Fu, the real stuff).  Regardless of what the law says about what level of force I can and can't use, I will never willfully engage in a physical altercation while carrying.  if I somehow find myself in a jam before I realize it's happening, sure, I will punch and elbow and knee my way out of it.  But engaging and remaining engaged while carrying presents the risk that your attacker/opponent will stumble upon your sidearm and use it against you.  If I can't deescalate by talking my way out of it, fleeing, or quickly stunning and retreating, then the attacker is going to find out about my sidearm on my terms, not on his.

 

Also, it wasn't mentioned here, but the rise of MMA/UFC has greatly increased the popularity of ground fighting.  While this is a tremendously valuable skill to learn and add to the tool box, it has one serious fatal flaw:  the second attacker.  All the great ground fighting we see in octagon and hexagon cages takes place between two fighters.  When you go to the ground, the second your attacker's buddy shows up, you are getting your teeth kicked in and your head stomped flat.  Once again, see my comments above about the attacker discovering your sidearm.

 

 

You make a great point here. I agree that deescalating and escaping will probably have a better outcome than engaging in a prolonged hand-to-hand scenario. That should always be our goal. The point I was trying to make is that it's a good idea to have those tools in your toolbox instead of grabbing that "hammer" every time you are confronted.  

 

As far as MMA/UFC, I think some of those techniques used could result in great bodily harm, permanent disability or disfigurement if used incorrectly or against an opponent who isn't in perfect physical health. Ground position, second attacker are all factors to consider in the disparity of force. 


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#43 chicagoresident

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Posted 05 August 2018 - 06:56 PM

You make a great point here. I agree that deescalating and escaping will probably have a better outcome than engaging in a prolonged hand-to-hand scenario. That should always be our goal. The point I was trying to make is that it's a good idea to have those tools in your toolbox instead of grabbing that "hammer" every time you are confronted.  
 
As far as MMA/UFC, I think some of those techniques used could result in great bodily harm, permanent disability or disfigurement if used incorrectly or against an opponent who isn't in perfect physical health. Ground position, second attacker are all factors to consider in the disparity of force.

I get if you don't have a gun you have to use what you have, or using martial arts to escape. But can you name a scenario where either a gun or a run are not the right tools for the job? Outside of law enforcement or security (even that's a stretch) is there a situation where a blackjack, your fists, pepper spray, tasor, etc is the legally proper tool for the job where a gun isn't?

Edited by chicagoresident, 05 August 2018 - 07:00 PM.


#44 Dog1

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Posted 05 August 2018 - 07:18 PM

 

If she waits until the aggravated battery is already in progress, it is too late.  The law says "only if he reasonably believes that such force is necessary to PREVENT imminent death or great bodily harm."  If you wait until the assault is already happening, you're not preventing death or great bodily harm, you are trying to prevent it from getting worse.  Yes, you are justified in using force once the attack has already started, but that is not the threshold.

 

I don't think we are in disagreement. In the scenario I described I was not describing a threshold but suggesting that the initial attack justified drawing the weapon, and if the victim felt the attack was to continue then the use of deadly force was justified. If the victim drew the weapon and the attacker retreated and no longer posses a threat then firing the weapon would not be justified. 



#45 chicagoresident

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Posted 05 August 2018 - 11:59 PM

You can use deadly force to prevent a forcible felony..... the law is very clear on what constitutes a forcible felony.... aggravated battery is a forcible felony..... there are many factors which can make a simple battery become an aggravated battery..... touching my butt in a public street by definition can result in use of deadly force.
 
I dont think a jury would see it that way..... but the law IS clear on it.

This is another good point. The law is not saying when you can or can't shoot, it's stating where the burden of proof lies.

Burden of proof

The burden of proof in the United States is the imperative on a party in a trial to produce the evidence that will shift the conclusion away from the default position to one's own position.

Criminal with a history of violence pushes open a window into your house and you shoot him, no need to produce further evidence that it was justified.

Daughters boyfriend sneaks in by pushing open a window and you shoot him. Here's where the burden of proof can be presented, shifted, and by a reasonable person (jury of your peers) you can still go to jail.

These threads ignore basic trial law. Not a lawyer, but my understanding is as follows:

You have natural law at the foundation (the constitution). Our system is then built up on common law, or past legal rulings. These rulings are often codified in statutes. With a burden of proof you can find a statute unconstitutional or demonstrate that past common law rulings or a statute didn't apply to this situation. A trial by jury or trial by judge are what you'd call "a reasonable person".

How much real or perceived injury is required for legal use of deadly force?

If you need to run through case laws and statutes before deciding to shoot or run carrying a gun might not be for you.

These threads should not serve as guidance on shoot or don't shoot, but more on the legal battle you may face if involved in a shooting. Knowing that may make everyone here more cautious.

Edited by chicagoresident, 06 August 2018 - 12:31 AM.


#46 BigJim

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Posted 06 August 2018 - 08:58 AM

I'm 75 and with moderate coronary artery disease. I have only one kidney and I'm missing part of a lung, plus I have two prosthetic knees. I will not get into a fistfight with anyone, nor will I even think of relying upon "unarmed defense tactics" or having to fight at knife length distance. I would attempt to retreat if I can without having to turn my back and be even more vulnerable to an attack. And no way I can hope to outrun an attacker. If I can back away and defuse a situation of course that is the course of action I would follow. But if I truly feel that at that moment I cannot avoid a physical, potentially life threatening encounter, I will use my concealed firearm for the purpose with which it is intended to be used. 

Similarly I'm 61, need a walker to standup, can walk about 50 feet before my bad leg starts to buckle and can not get up from the ground without help.  As I see it, my only real option in the event of an attack is to draw on my attacker.  I would offer the attacker the chance to walk away, but I am not going to submit to a beating to determine if the attacker is going to stop after the first punch or beat me to death before I shoot.


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