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


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How much real or perceived injury is required for legal use of deadly force? If someone attacks you on the street with their fists by punching you in the face can you answer this physical attack with a gun shot? Is the justification based on how the person being attacked perceives the threat? What if the person being attacked is the same size or bigger than the assailant but doesn't want to physically fight back. Are we required to physically fight off a physical assault on the street before using deadly force? What would you do if someone physically attacked you on the street?

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It seems the key is whether or not a "reasonable" person would agree that the shooter felt that the attacker was a serious threat to their life or well being. Waiting until you suffer a serious injury would likely render you unable to use your legal firearm. As far as I know, no injury need to have occurred. If I am walking down the street and a thug charges at me, baseball bat in hand and yelling "I'm going to mess you up" I likely would draw and if that did not stop the attacker, would likely shoot despite the fact that I have not been injured at all. I refer to the recent case of the individual attacked outside the Art Institute. He was reportedly punched, then the attacker bit off part of his ear. In my opinion, as soon as the attacker showed through his movements that he planned on hitting the victim, the victim would have been justified in shooting his attacker.

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(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.

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(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.

 

This.

 

What it boils down to, absent force likely to cause death, you have to reasonably believe that you are in imminent danger of unlawful force likely to cause "great bodily harm."

 

What is "great bodily harm?" Great bodily harm is not defined in Illinois statutes. Read the article I linked to at the left for more info. One of the key lines is:

 

 

“Great bodily harm” is more serious or grave than lacerations, bruises, or abrasions that characterize “bodily harm.” See People v. Costello, 95 Ill. App. 3d 680 (1981).

 

Even in the definition of Forcible Felony in Illinois statues, it includes: "...aggravated battery resulting in great bodily harm or permanent disability or disfigurement ..."

 

With that we have several clues to give us an idea of what "great bodily harm" is. Ultimately it will be what a jury (or judge) believes is reasonable.

 

 

-- Frank

 

 

 

ETA: WooHoo! 2500 posts!

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Have you seen the video Massad made for the CLIC program (it was included in llinois Carrys version of the ICCL curriculum)?

 

That video explains this in common sense terms with little lawyer lingo. He explains it perfectly, we show that video in every CCL class we do. We had to purchase the curriculum package to get the video and the rights to use it.

 

Sent from my SM-G955U using Tapatalk

 

 

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It seems the key is whether or not a "reasonable" person would agree that the shooter felt that the attacker was a serious threat to their life or well being. Waiting until you suffer a serious injury would likely render you unable to use your legal firearm. As far as I know, no injury need to have occurred. If I am walking down the street and a thug charges at me, baseball bat in hand and yelling "I'm going to mess you up" I likely would draw and if that did not stop the attacker, would likely shoot despite the fact that I have not been injured at all. I refer to the recent case of the individual attacked outside the Art Institute. He was reportedly punched, then the attacker bit off part of his ear. In my opinion, as soon as the attacker showed through his movements that he planned on hitting the victim, the victim would have been justified in shooting his attacker.

 

This.

 

Let your morals guide you if you have the opportunity to safely retreat or de-escalate, let your self preservation instinct guide you if you need to stop the threat using deadly force.

 

All the stand your ground, duty to retreat, castle doctrine, or other laws on the books just make the legal battle shorter or longer. In a fair justice system they shouldn't impact the outcome. A good shoot is the same in Texas, Illinois, or Florida.

 

Miscarriages of justice can happen anywhere so one states laws can be trumped by one districts aggressive prosecutor.

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When can you use force?:

 

(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.

 

"or the commission of a forcible felony."

 

What is a forcible felony?:

 

(720 ILCS 5/2-8) (from Ch. 38, par. 2-8)
Sec. 2-8. "Forcible felony". "Forcible felony" means 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 kidnaping, kidnaping, 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.
(Source: P.A. 88-277; 89-428, eff. 12-13-95; 89-462, eff. 5-29-96.)

 

"and any other felony which involves the use or threat of physical force or violence against any individual."

 

Interpret that how you want.

 

Its a long rabbit hole, but doesnt the 2A community by and large tend to take the most restrictive definitions? For instance by law if you simpy slap my face on a public street couldnt I now legally shoot you?

 

When can you use deadly force: In reaction to a forcible felony

What is a forcible felony: Threat or use of physical violence

What makes battery a forcible felony: a lot of things but among those things simple battery becomes a forcible felony when committed in a public roadway

What is simple battery: anytime anyone without legal justification "makes physical contact of an insulting or provoking nature with an individual."

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<snip>

 

(720 ILCS 5/2-8) (from Ch. 38, par. 2-8)

Sec. 2-8. "Forcible felony". "Forcible felony" means 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 kidnaping, kidnaping, 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.

(Source: P.A. 88-277; 89-428, eff. 12-13-95; 89-462, eff. 5-29-96.)

 

"and any other felony which involves the use or threat of physical force or violence against any individual."

 

Interpret that how you want.

 

Its a long rabbit hole, but doesnt the 2A community by and large tend to take the most restrictive definitions? For instance by law if you simpy slap my face on a public street couldnt I now legally shoot you?

 

When can you use deadly force: In reaction to a forcible felony

What is a forcible felony: Threat or use of physical violence

What makes battery a forcible felony: a lot of things but among those things simple battery becomes a forcible felony when committed in a public roadway

What is simple battery: anytime anyone without legal justification "makes physical contact of an insulting or provoking nature with an individual."

 

A forcible felony is not the just a threat or use of physical violence. It is a "FELONY involving the threat or use of physical force or violence."

Aggravated battery is not necessarily a forcible felony. Only "aggravated battery resulting in great bodily harm or permanent disability or disfigurement" is a forcible felony. Other aggravating factors that turn simple battery into aggravated battery do not make it a forcible felony and would not justify the use of deadly force.

The entire point here is that simple battery is not likely to cause death or great bodily harm and would not justify the use of deadly force to defend yourself or another.

 

Please take some time to reread the statutes you just quoted.

 

 

-- Frank

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...

What is "great bodily harm?" Great bodily harm is not defined in Illinois statutes.

...

Great bodily harm varies from state to state and is not defined by any statutes anywhere. It's defined by case law, i.e., a court has ruled case by case whether specific injuries are considered great bodily harm. Different courts in different jurisdictions have ruled differently. Given the above linked article, TIL that Illinois considers a broken nose felony battery and thus a good candidate for "great bodily harm." I don't recommend relying on that if you shoot someone for punching you in the nose, however.

 

Massad Ayoob's lay definition is crippling or disfiguring injury (or the threat thereof).

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...What is "great bodily harm?" Great bodily harm is not defined in Illinois statutes....

Great bodily harm varies from state to state and is not defined by any statutes anywhere. It's defined by case law, i.e., a court has ruled case by case whether specific injuries are considered great bodily harm. Different courts in different jurisdictions have ruled differently. Given the above linked article, TIL that Illinois considers a broken nose felony battery and thus a good candidate for "great bodily harm." I don't recommend relying on that if you shoot someone for punching you in the nose, however.Massad Ayoob's lay definition is crippling or disfiguring injury (or the threat thereof).
I would disagree that it varies state to state. It's the same definition, but state to state case law has established precedents that don't need to be argued.

 

For instance a castle doctrine state defines the act of breaking into a house as intending to cause grievous bodily harm.

 

You can still shoot someone that breaks and enters your house in a non castle doctrine state, but the burden of proof is on you to prove grievous bodily harm.

 

Likewise, someone that gets shot breaking and entering in a castle doctrine state can also prove no reasonable person would believe they were there to cause grievous bodily harm.

 

While certain states make a CCW defendents case easier due to pre established accepted case law, it doesn't make one state better then another for killing someone in. That's the big media myth about castle doctrine and stand your ground.

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A post by Frank Ettin on use of force at the High Road Forum:

 

https://www.thehighroad.org/index.php?threads/an-overview-of-basic-use-of-force-law.721597/

 

It is not Illinois specific.

 

 

The question of when one may legally use force in self defense comes up regularly. Perhaps this general and high level overview can serve as a baseline for such discussions.
But first the usual caveats: (1) I'm a lawyer, but I'm not your lawyer; (2) This is not legal advice, but rather it's general information on a legal topic; and (3) this is intended as a general overview without reference to the laws of any particular State, and as such it doesn't consider specific state laws that might allow justification of a use of force in some circumstance not mentioned here.
Now let's look at the basic legal reality of the use of force in self defense.
Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.
However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.
Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.
Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.
The amount of force an actor may justifiably use in self defense will depend on the level of the threat.
Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --
Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;
Opportunity, i. e., the assailant was capable of immediately deploying such force; and put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.
"Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."
"Opportunity" could be established by showing proximity, lack of barriers or the like.
"Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.
And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.
If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.
Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.
If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.
Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.
Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?
In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.
It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.
It could also be another matter if you left the safety of your house to confront someone on your property.
Good, general overviews of the topic can be found at UseofForce.us (http://www.useofforce.us/) and in this booklet (http://www.armedcitizensnetwork.org/images/stories/Hayes-SDLaw.pdf) by Marty Hayes at the Armed Citizens' Legal Defense Network.
Sometimes a defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --
This couple (http://www.stltoday.com/news/local/crime-and-courts/article_e5733da4-9156-11e0-bec5-0019bb30f31a.html), arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.
Larry Hickey (http://www.armedcitizensnetwork.org/images/stories/Hickey%20Booklet.pdf), in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.
Mark Abshire (http://thefiringline.com/forums/showthread.php?t=391091) in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.
Harold Fish (http://www.haroldfishdefense.org/), also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.
Gerald Ung (http://www.thehighroad.org/showpost.php?p=7359920&postcount=34): He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted (http://abclocal.go.com/wpvi/story?section=news/crime&id=7960513).
Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.
And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.
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You do not have to wait until an aggressor's simple battery turns into crushing your skull against the curb to use deadly force.

 

No, but you must be able to explain why a reasonable person would believe the bad guy was about to pound your head against the pavement. The law says that you can defend yourself from IMMINENT death or great bodily harm. IMMINENT means that it is about to happen. Not that it might happen, or it could possibly happen. If you reasonably believe that it is going to happen unless you prevent it, that satisfies the requirements of the law.

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It seems the key is whether or not a "reasonable" person would agree that the shooter felt that the attacker was a serious threat to their life or well being. Waiting until you suffer a serious injury would likely render you unable to use your legal firearm. As far as I know, no injury need to have occurred. If I am walking down the street and a thug charges at me, baseball bat in hand and yelling "I'm going to mess you up" I likely would draw and if that did not stop the attacker, would likely shoot despite the fact that I have not been injured at all. I refer to the recent case of the individual attacked outside the Art Institute. He was reportedly punched, then the attacker bit off part of his ear. In my opinion, as soon as the attacker showed through his movements that he planned on hitting the victim, the victim would have been justified in shooting his attacker.

+1

 

The attacker display an intent

The attacker has the means

 

That should be enough to pull a gun and if the attacker does not back off, stop or turn around, defend your life.

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I will not engage in a fist fight while carrying... one well-landed punch can take you out of commission, and who knows if the other guy will stop while you're down.

 

One of my classmates in high school got into a fight with another... one punch put him into a coma.

 

Just a few years ago in my area, a guy was punched, fell to the ground, hit his head and died.

 

Make your own decisions.

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I will not engage in a fist fight while carrying... one well-landed punch can take you out of commission, and who knows if the other guy will stop while you're down. One of my classmates in high school got into a fight with another... one punch put him into a coma. Just a few years ago in my area, a guy was punched, fell to the ground, hit his head and died. Make your own decisions.

 

I've said this before and I'll repeat it again here:

 

Sometimes, when the only tool you have is a hammer, every problem looks like a nail.

 

You are more likely to encounter a NON-LETHAL physical threat than you are a threat of deadly force. You should be prepared to deal with that and respond with an appropriate level of force. The idea of disengaging and retreating safely is preferable. But if that is not an option, what are you going to do? There are plenty of non-lethal force options available. Pepper spray, small impact weapons like a kubaton or yawara, or simple unarmed defense tactics. There are plenty or martial arts and self-defense classes available out there.

 

How much time, effort and money do we put into the use of deadly force? Compare that with your preparations for non-lethal force.

 

Just food for thought.

 

 

-- Frank

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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.

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It literally only takes one punch to kill you. There's plenty of stories you can pull up of people getting sucker punched and falling and hitting their head. The injures resulting in lifelong physical/mental disabilities or death.

One I can recall off the top of my head is the story about the soccer ref a few year back. An angry father didn't agree with the refs call against his son and punched him once in the side of the head. Seemed "innocent" enough by violent standards, but that was all it took. He died later in the hospital from the trauma and internal bleeding.

 

But as other people have said, the legal system and persecutors have other ideas of what's acceptable. Lots of times based on all kinds of reasons that have very little to do with any actual concern for your well being or even what actually happened. Especially in anti gun and anti self defense minded states. (Yes, we live in one of those states, protest that label as much as you want. Its still the truth)

 

At the end of the day, you alone are the only one who can make that call in the moment. Its your life. Value it however you want.

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I will not engage in a fist fight while carrying... one well-landed punch can take you out of commission, and who knows if the other guy will stop while you're down. One of my classmates in high school got into a fight with another... one punch put him into a coma. Just a few years ago in my area, a guy was punched, fell to the ground, hit his head and died. Make your own decisions.

 

I've said this before and I'll repeat it again here:

 

Sometimes, when the only tool you have is a hammer, every problem looks like a nail.

 

You are more likely to encounter a NON-LETHAL physical threat than you are a threat of deadly force. You should be prepared to deal with that and respond with an appropriate level of force. The idea of disengaging and retreating safely is preferable. But if that is not an option, what are you going to do? There are plenty of non-lethal force options available. Pepper spray, small impact weapons like a kubaton or yawara, or simple unarmed defense tactics. There are plenty or martial arts and self-defense classes available out there.

 

How much time, effort and money do we put into the use of deadly force? Compare that with your preparations for non-lethal force.

 

Just food for thought.

 

 

-- Frank

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.

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