172 replies to this topic

[Molly B.]

(720 ILCS 5/Art. 7 heading)
ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION

(720 ILCS 5/7 1) (from Ch. 38, par. 7 1)
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. 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.
(b - In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7 4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93 832, eff. 7 28 04.)

(720 ILCS 5/7 2) (from Ch. 38, par. 7 2)
Sec. 7 2. Use of force in defense of dwelling.
(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 prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent,
riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or

(2) He reasonably believes that such force is
necessary to prevent the commission of a felony in the dwelling.

( b - In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7 4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93 832, eff. 7 28 04.)

(720 ILCS 5/7 3) (from Ch. 38, par. 7 3)
Sec. 7 3. Use of force in defense of other property.
(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 prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. 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 the commission of a forcible felony.
(b - In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7 4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93 832, eff. 7 28 04.)

[TyGuy]

Could you possibly get the IL law the defines a, "forcible felony?"

[kurt555gs]

I guess we need how "force able Felony" is defined in the statute. One would guess that it means a crimes that is a felony and intends to do harm by violence, rather than your common garden variety non violent felony.

I can't see shooting some one because they didn't destroy the tax stamp on a pack of cigarettes after opening it, or transported a live lobster in their car, or called some one in Michigan, Florida, Arizona, Colorado, Kentucky, or Texas while blocking their caller ID.

All of those acts ARE felonies, but none are violent, or forceble.

[RacerDave6]

It's been discussed many times before on the forum. A quick search got this

A forcible felony is defined in the Criminal Code of 1961:
"treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnapping, kidnapping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement[,] and any other felony which involves the use or threat of physical force or violence against any individual."

Dave

[moparcardave]

It's been discussed many times before on the forum. A quick search got this

A forcible felony is defined in the Criminal Code of 1961:
"treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnapping, kidnapping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement[,] and any other felony which involves the use or threat of physical force or violence against any individual."

Dave

Copy that

Thankfully that lady in Ok was found within her rights to shoot the guy after he tossed the patio table and chair through the patio. The 57 year old woman spent 30 mins on 911 waiting for help, praying that she didn't have to kill him but would if he continued his assualt.

[FST_Kent]

A forcible felony is defined in the Criminal Code

In the home it does not need to be a forcible felony, just a felony.

(2) He reasonably believes that such force is
necessary to prevent the commission of a felony in the dwelling.

[Smallbore]

My suspicion is that the courts have interpreted the word "felony" in the statue to be be "forcible felony". Wouldn't this make sense?
I have been told that every word in these statutes have been tested in court.

[Tvandermyde]

"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 forcible part only comes in over property. Note that it only requires the force necessary to prevent death or great bodily harm as the first part fo the test.

1. was it defense of a person? if not;
2. was the person committing a forcible felony i,e armed robbery/burglary?

you can't shoot someone for tresspassing. And this is for being out in public. that is why we don't need a castle doctrine as we have a good use of force law as we are a no retreat state already.

[junglebob]

"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 forcible part only comes in over property. Note that it only requires the force necessary to prevent death or great bodily harm as the first part fo the test.

1. was it defense of a person? if not;
2. was the person committing a forcible felony i,e armed robbery/burglary?

you can't shoot someone for tresspassing. And this is for being out in public. that is why we don't need a castle doctrine as we have a good use of force law as we are a no retreat state already.

At least we won't have "duty to retreat" when right to carry passes if the law stays at it is. Glad you clarified were the forcible felony part comes in.

[Davey]

(720 ILCS 5/7 2) (from Ch. 38, par. 7 2)
Sec. 7 2. Use of force in defense of dwelling.
(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 prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent,
riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling,

or

(2) He reasonably believes that such force is
necessary to prevent the commission of a felony in the dwelling.

Can someone please let me know if I'm understanding this correctly?

Let's say someone kicks in my door, or smashed a window and climbs in. He has satisfied the first requirement listed in (1). Now if he so much as threatens me with violence, even if he's unarmed, I can shoot? It simply says "assault". It doesn't specify assault that can cause grave bodily harm or death.

Also what exactly does "prevent an assault upon, or offer of personal violence to" mean? Specifically the "offer" part?

dave

[lockman]

If part 1 & 2 are satisfied there is no dispute. Parts 1 & 2 is either/or. The section cited applied specifically to the defense of a dwelling. If the entry was made in a " violent, riotous, or tumultuous manner", use of deadly force is defense-able. The fear for your life and safety under those circumstances is obvious to me, but make sure you make that clear to police and/or prosecutors. Remember, if ever forced into this situation limit your statements to the police to that you feared for your life and invoke your right to remain silent. Anything that needs to be said can be cleared by your attorney. Many good shoots can go to trial because of innocent statements made to police in moments of excitement or hours of questioning. IANAL but have read reams of stories where someone should have used one much sooner.

[Mrs. Federal Farmer]

I don't understand Sec. 7 3. Use of force in defense of other property. Not a bit of it, in fact. Anyone care to put it into common-ese?

[abolt243]

I don't understand Sec. 7 3. Use of force in defense of other property. Not a bit of it, in fact. Anyone care to put it into common-ese?

Mrs. FF,

The statute describes it as "real property (other than a dwelling) or personal property, lawfully in your possession or the possession of your family or someone you're responsible for. I understand that to be your lawn, or other real property (land) that you own. i.e., if your property is being trespassed on, you can use force, but only in the case of the threat of a forcible felony would deadly force be justified. I understand personal property to include your vehicle, your purse, computer case, etc. that is in your possession. Again, force intended or likely to cause death or great bodily injury is justified only to prevent a forcible felony.

That's my take. I'll stand corrected if someone has a better translation.

Personally, I probably wouldn't shoot someone over a vehicle, unless it still had my wife or grandkids in it! Same with my wife's purse, depending on it's contents. Can't think of an instance of trespassing on my property that would justify me shooting, Gran Torino not withstanding. Perhaps, drug dealing in the corner of my yard in spite of repeated warnings might warrant some force of some kind, but not deadly.

Hope that helps.

AB

[Tvandermyde]

here is a link to a story about a guy who fired in defense of hos property, and I would say life, and is being charged. This is Canada, which explains some things, but I thin this is the tyoe of situtation that Illinois law was describing.

would one of the IT magicians drop the video into another post please

http://news.national...sked-attackers/

[mstrat]

Edit: Here's the video from the article Todd linked:

[lockman]

[url="http://www.youtube.com/watch?v=dyiqCkgGDCQ"]http://www.youtube.c...h?v=dyiqCkgGDCQ[/url]

Oooo! Oooo! What's up with that?

[Tvandermyde]

So would it be wrong, that if you grabbed your AR (scar for kenny) and so lets say you don't shoot the SOB, instead you shoot the bottle in his hand........??????

[abolt243]

So would it be wrong, that if you grabbed your AR (scar for kenny) and so lets say you don't shoot the SOB, instead you shoot the bottle in his hand........??????

But......officer, I didn't know it was gas in that bottle. I thought he was throwing paint on my house and was using that burning cotton rag to see by!!!

[Tvandermyde]

Officer i was aiming center of mass... Sorry i pulled it high and lleft, i must have jerked the triggerin all the stress

[templar223]

Let's say someone kicks in my door, or smashed a window and climbs in. He has satisfied the first requirement listed in (1). Now if he so much as threatens me with violence, even if he's unarmed, I can shoot? It simply says "assault". It doesn't specify assault that can cause grave bodily harm or death.

dave

You're starting to split hairs, but it goes back to the reasonable person doctrine and the basic rule of the lawful use of deadly force.

Okay, BG has smashed window or kicked the door in and climbs/walks in. He's bought and paid for.

Now, having said that, you have to ask yourself if deadly force is the best course of action. It's legal, but is it the best course of action?

Me, I'd have to evaluate whether this person knows I and my family are home, what they are doing and, from behind cover, issue a challenge if I could do so with relative safety and the ability to shoot to decisively stop the intrusion.

Okay, it's escalated and now BG has threatened you with force. Nothing has changed... only your relative safety. In almost every state, Illinois included, if someone makes entry on your abode uninvited, and with criminal intent (and a forcible entry would certainly be a criminal intent), deadly force is justified to repel that "invasion" to your abode.

Also what exactly does "prevent an assault upon, or offer of personal violence to" mean? Specifically the "offer" part?

This means taking action to prevent death or great bodily injury to an innocent. The offer part means to threaten.

Lastly, I should say that you should take advice you glean from the Internet with a grain of salt and seek relevant training from a reputable source as to the judicious use of deadly force.

Sitting at home before a class, I'd recommend "In the Gravest Extreme" by Mas Ayoob.

John

[Mrs. Federal Farmer]

Thanks, Abolt. I figured that property meant "stuff that you own" (and I agree with your and Templar's caution to think twice before killing somebody over "stuff"). It's the real property that still confuses me. I don't want to be barricaded into my home whilst miscreants cavort on my lawn, but if they're neither climbing in the windows nor throwing flaming bottles through 'em ... I figure I can sit armed and wait for the folks in blue to disperse them. Killing someone is serious business, and I guess I'm thinking that prowess with a firearm carries the responsibility of deciding when to use it and when not to.

Perhaps real property refers more relevantly to a shed, outbuilding, etc., that may have a living person inside that the homeowner must protect. I seriously can't see justifiable force to protect things; just lives. I could see myself rethinking if I ever live in a circumstance where I'm surrounded by a mob who is helping themselves to everything I own, and where no law enforcement exists to help prevent that ... but we don't live there yet, thank goodness!

[Mrs. Federal Farmer]

Sitting at home before a class, I'd recommend "In the Gravest Extreme" by Mas Ayoob.

John

That is an ***excellent*** book to recommend, Templar. Even though it's around 30 years old, I don't know think I know of a better one on the subject that has been written since. Good call.

[lockman]

(720 ILCS 5/7 2) (from Ch. 38, par. 7 2)

Sec. 7 2. Use of force in defense of dwelling.
(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 prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent,
riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or

(2) He reasonably believes that such force is
necessary to prevent the commission of a felony in the dwelling.

( b - In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7 4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93 832, eff. 7 28 04.)

Part (1) need not be met if part (2) is.
Part (2) is about the least restrictive "castle doctrine" in the nation. After someone has illegally entered occupied dwelling, even a simple theft has become a felony! The statute is clear but will a jury afford you the clear plain meaning of the statute?

Example: Man breaks in door (or victim answers door and crook pushes past victim), confronted by victim, tells victim "I am taking that wide screen TV!" Victim - bang! bang! Bang! Criminal dead, commission of a felony has been prevented.

Is this situation covered under the conditions in section 7-2? Under 7-2(1) No, unless you are in fear for life or grave bodily harm. Under 7-2(2)? Yes, regardless of your fears.

There is danger of accepting the statute on its face without the benefit of real decisions involving similar circumstances to show how juries and courts interpret that same statute.

[Federal Farmer]

(720 ILCS 5/7 2) (from Ch. 38, par. 7 2)

Sec. 7 2. Use of force in defense of dwelling.
(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 prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent,
riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or

(2) He reasonably believes that such force is
necessary to prevent the commission of a felony in the dwelling.

( b - In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7 4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93 832, eff. 7 28 04.)

Part (1) need not be met if part (2) is.
Part (2) is about the least restrictive "castle doctrine" in the nation. After someone has illegally entered occupied dwelling, even a simple theft has become a felony! The statute is clear but will a jury afford you the clear plain meaning of the statute?

Example: Man breaks in door (or victim answers door and crook pushes past victim), confronted by victim, tells victim "I am taking that wide screen TV!" Victim - bang! bang! Bang! Criminal dead, commission of a felony has been prevented.

Is this situation covered under the conditions in section 7-2? Under 7-2(1) No, unless you are in fear for life or grave bodily harm. Under 7-2(2)? Yes, regardless of your fears.

There is danger of accepting the statute on its face without the benefit of real decisions involving similar circumstances to show how juries and courts interpret that same statute.

Judges and Justices in IL seem to define 'and' and 'or' variably as political winds blow...

[highspeed]

Of course you are in fear of your life! That`s why you need to make sure you shoot to end the threat!! Dead men tell no lies.

[Getzapped]

This may be the wrong place for this question. If so, i apologize.
I can legally carry on my property, and I can legally possess a firearm in my dwelling.

By definition a dwelling is:
(720 ILCS 5/2‑6) (from Ch. 38, par. 2‑6)
Sec. 2‑6. "Dwelling". (a) Except as otherwise provided in subsection ( of this Section, "dwelling" means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.

If I am camping a "Tent" is my dwelling but what about the area around the tent? Is that considered my "temporary property" and can I possess a firearm if I am in my campsite?

I do all the time, I am just not sure if it is legal!

[Uncle Harley]

I am not a lawyer, but if you camp someplace that charges a nightly fee, then IMO you are no different than someone who rents an apartment. You have a one nite rental agreement on one campsite lot. Do you not?

[Getzapped]

excellent point! I guess the same would apply to a campground that I pay a yearly fee to also.

[blackhalo]

I wish it were that easy, but I doubt the appellate division would read it that way. People v. Price, 375 Ill. App.3d 684 (2007) held that a AUUW defendant was not in his "abode" when spending the night at his sister's house, because it would force landowners/homeowners to "unwittingly" let people carry guns on their property. See also People v. Aguilar 944 NE2d 816, 820 (Ill. App. 2011) Quoting Price, they said: "Equating 'abode' with 'overnight living quarters' "could result in 'homeowners unwillingly and unwittingly providing safe harbor to any overnight guest who, unbeknownst to them, brings a weapon into their home."

[05FLHT]

I wish it were that easy, but I doubt the appellate division would read it that way. People v. Price, 375 Ill. App.3d 684 (2007) held that a AUUW defendant was not in his "abode" when spending the night at his sister's house, because it would force landowners/homeowners to "unwittingly" let people carry guns on their property. See also People v. Aguilar 944 NE2d 816, 820 (Ill. App. 2011) Quoting Price, they said: "Equating 'abode' with 'overnight living quarters' "could result in 'homeowners unwillingly and unwittingly providing safe harbor to any overnight guest who, unbeknownst to them, brings a weapon into their home."

The statute was amended to include -

4) Carries or possesses in any vehicle or concealed
on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm,...

As long as you have 'permission,' you may carry on the land or inside the legal dwelling of another person.