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Justifiable Use of Force - IL Statute


Molly B.

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While everyone is hung up on what this or that means let me just throw this out there. If something happens and you have to use force likely to cause death or great bodily harm know this; You better be able to articulate how you, or another, was in danger of death or great bodily harm.

I have spoken, even argued with, several people about this subject and no one has been able to convince me how an unarmed intruder is a threat likely to cause death or great bodily harm.

 

That's easy enough, as you're a man.

 

I'm a 5'5" woman. A 6' man could do me a great deal of harm, just from disparity of strength, with his hands.

 

This alone is reason enough why women should be armed.

 

What about the recent rape of a young woman in the Rogers Park neighborhood? Some news reports said the man told the victim he had a gun, and others don't mention it.

 

http://abclocal.go.c...news&id=9412830

 

You are missing my point. Just the fact of an unarmed intruder is not enough for justification. You have to be able to say why you are in fear. You are starting by saying he is bigger than me and I say "Go on". Was this person standing there trying to figure out how to get back out....was he advancing towards you...... so many things to consider in a few brief seconds.

 

Like I said in the rest of my post, which you did not quote, it actually has different meanings for different people. If you are able to tell why you are justified if the real time comes you will know you are in the right.

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The important thing to note here, Marie, is that our poster specified an "unarmed intruder," that is to say that a BG has entered your residence. Our poster left out the part where you are justified in use of force to prevent entry, given the manner of entry specified in the statute, and the use of force is justified in the commision of a felony once entry is made (note that once entry is made, the bar for use of force is lowered from forcible felony to just a plain old felony, which happens to cover almost any illegal activity from that point on).

 

I don't believe you'd have to do much explaining to do since most of the criteria for the justified use of force had been met in this scenario.

 

Here is my question..... Someone breaking into a residence by statute is criminal trespass and possibly/probably criminal damage to property. To get residential burglary you have to be able to prove there is intent to commit therein a theft. So until a person enters your residence and actually steals something where is the forcible felony? Better to err on the side of caution and be vigilant of the remainder of the statute with which I honestly believe the jury will more readily see as self defense.

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The important thing to note here, Marie, is that our poster specified an "unarmed intruder," that is to say that a BG has entered your residence. Our poster left out the part where you are justified in use of force to prevent entry, given the manner of entry specified in the statute, and the use of force is justified in the commision of a felony once entry is made (note that once entry is made, the bar for use of force is lowered from forcible felony to just a plain old felony, which happens to cover almost any illegal activity from that point on).

 

I don't believe you'd have to do much explaining to do since most of the criteria for the justified use of force had been met in this scenario.

 

Here is my question..... Someone breaking into a residence by statute is criminal trespass and possibly/probably criminal damage to property. To get residential burglary you have to be able to prove there is intent to commit therein a theft. So until a person enters your residence and actually steals something where is the forcible felony? Better to err on the side of caution and be vigilant of the remainder of the statute with which I honestly believe the jury will more readily see as self defense.

 

(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.)

 

Please read this carefully. One is justified in the use of force if 1) Entry is made OR 2) entry is attempted in a violent, riotous or tumultuous manner AND he reasonably believes such force is necessary to prevent an assault upon, or offer of personal violence to, him or another in the dwelling, OR 3) he reasonably believes that such force is necessary to prevent the commision of a felony in the dwelling.

 

The first and only criteria needed to be met to use force in a home invasion is "entry is made".

 

You are justified in the use of force to PREVENT entry if the attempt is made in the manner specified in the statute, and you reasonably believe such force is necessary to stop an assault against yourself or another. (Think someone yelling 'I'm gonna get you!' while kicking the door.)

 

You are justified in the use of force if you reasonably believe it's necessary to PREVENT the commission of a felony in the dwelling.

 

Notice a couple of things. If entry is made, you've nothing to prove except that the "aggressor" did not belong there.

 

The words "reasonable" and "prevent" are consistent throughout. So my question is, what reasonable person would believe that the "aggressor" had intentions other than those specified by the statute, and what means of prevention are even available once the threshold for justifiable use of force has been met, practically speaking?

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The first and only criteria needed to be met to use force in a home invasion is "entry is made".

 

You are justified in the use of force to PREVENT entry if the attempt is made in the manner specified in the statute, and you reasonably believe such force is necessary to stop an assault against yourself or another. (Think someone yelling 'I'm gonna get you!' while kicking the door.)

 

You are justified in the use of force if you reasonably believe it's necessary to PREVENT the commission of a felony in the dwelling.

 

Notice a couple of things. If entry is made, you've nothing to prove except that the "aggressor" did not belong there.

 

The words "reasonable" and "prevent" are consistent throughout. So my question is, what reasonable person would believe that the "aggressor" had intentions other than those specified by the statute, and what means of prevention are even available once the threshold for justifiable use of force has been met, practically speaking?

 

Home Invasion is way different than someone entering your home to steal change to get their next fix. With Home Invasion you have a bunch of other criteria which needs met. I would argue within the home invasion statute you are justified because you should be able to describe how the perpetrator is threatening you and was armed without proving the person knew someone was home and intended to do them harm. Again getting back to if you can describe how you are fearful beyond just their mere presence one should be good to go. Home Invasion statute 720 ILCS 5/19-6 you have to also be able to tell the person is not a law enforcement officer on official duties which means you have to identify the perpitrator.

 

Another question getting back to a person entering, if they raise an unsecured window or break a glass and reach in to unlock a door, do you think that meets the requirements set forth in 720 ILCS 5/7-2(1) as being "a violent, riotous, or tumultuous manner" and better yet do you think a group of 12 peers would find that reasonable?

 

I would argue with someone breaking into your home the first option would be a citizens arrest and hold the person until police arrive (could this be at gunpoint, sure) within that you have the same authority as a peace officer in as far as use of force which may be deadly. Within the statute for police officers use of force in making an arrest, one has to believe someone is in imminent danger but the force must be just enough to stop the threat. IE a police officer can not shoot someone who is slapping another just to stop the threat of being slapped. In the context of making a citizens arrest one may be fearful but I would argue you would have to explain in detail what your fear was and their mere presence is not enough to justify deadly force. Further more when you are within one statute's requirements are you within all of them. If you can articulate why you are fearful of great bodily harm, which in itself is vague and at the court's discretion, or death then one would surpass the requirements of all the statutes mentioned so far.

 

Furthermore, one would be better off just like a police officer, if they can show an forward transition in use of force. If someone is breaking into my house and I can articulate I shouted at them to "Go away" or maybe "Stop or I will shoot" (verbal) and they disregarded the warning and continued into my home does that not give a "reasonable" person more affirmation that the homeowner is in danger beyond just the presence of the intruder? Would this also be more of a responsible gun owner in identifying the threat to verify it is not a family member or police officer on official duty? The home owner should be at an advantage and know where cover is to confront the intruder. Confronting the intruder does not put the home owner into an "Aggressor" role but if confronted does it not affirm the "Aggressor" is the intruder if they continue despite your verbal command.

 

Lets reverse this and look at it from a different view. Say I an a police officer and during the course of my duty I respond to a rural residence for a 911 hang up. Upon arriving at the residence in the middle of the night, I a uniformed police officer driving a marked patrol car, knock on several doors and attempt to see in different windows (within my duties right). Finally the person believed to be the home owner finally answers the door with a firearm in their hand pointed at me the officer. Would I be justified in shooting the individual, by statute sure. Does being within justification by statute make it right?

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Violent, riotous, or tumultuous are descriptors of an ATTEMPT. "Entry is made" is separated by "or", therefore it is a standalone qualifier for the justifiable use of force. There is no other action attached to this phrase in the statute. Someone in your home who is not authorized, invited, etc., has met the legal requirements for having a justifiable use of force initiated against himself. He does not need to initiate another forcible felony or felony for the defense of dwelling statute to apply.
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I think we've got an example of "unarmed intruder" (although there were two the homeowner encountered) straight from the Trib. It's about the homeowner who shot and killed one of two burglars in his home yesterday morning.

 

http://www.chicagotr...0,3394153.story

 

There are some interesting details. 18yo daughter hears something in the apartment behind them. Wakes up her father. She locks the door between the two residences. Her father unlocks and opens the door, doesn't see anything, so gets both his crutches and goes to bedroom to get his handgun. Two intruders rush towards the father, who then shoots. The intruders do not appear to be armed. One collapses at the scene and dies. Two are seen running away - so it appears there were three burglars.

 

Guy was charged with misdemeanor of possessing firearm with expired FOID card.

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Probably missing the point here, but DaBren something I do understand. I also believe it is why everything I have read says after use of force say nothing until you have talked

to your lawyer. Because what you need to do is;

to articulate
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The statute defines when you can use "use of force".....

and when you can use "use of force which is intended or likely to cause death or great bodily harm"...

 

They are very different - I think of one as subdue an simple intruder who crawled through a window, and the other is shoot or beat the heck out of a violent or armed intruder who forced his/her way in.

 

Either way you'll have some 'splainin' to do.

 

My 2 cents,

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I have zero interest in subduing someone who breaks into my house whether they do it quietly or whether they do so in a violent manner. My only interest is acquiring a good sight picture from a position of cover and concealment. What happens next depends on the actions of the intruder. If I felt that it was safe to call out a warning "I have a gun", I might do that. If I come onto an armed intruder, he gets nothing but 00 buck center mass.

 

 

Don't go breaking into my house and expect to get served tea and biscuits.

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I have zero interest in subduing someone who breaks into my house whether they do it quietly or whether they do so in a violent manner. My only interest is acquiring a good sight picture from a position of cover and concealment. What happens next depends on the actions of the intruder. If I felt that it was safe to call out a warning "I have a gun", I might do that. If I come onto an armed intruder, he gets nothing but 00 buck center mass.

 

 

Don't go breaking into my house and expect to get served tea and biscuits.

 

suggestion?

 

The Internet is forever.

 

Let's say (and may God forbid) that the scenario you just described happens someday and you react just like that.

 

It may be totally lawful but you just presented a State's Attorney a gift of proof of aforethought(premeditation) concerning motive.

 

Respectfully, go back and do a serious edit of your post

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In the situation I have described, the armed intruder has created a situation in which you must deal with someone with both the capability but also the intent to use deadly force against you. It is not only lawful to use lethal force to end this threat it is also desireable to be the one to initiate it from a tactical point of view. If you hesitate in a encounter with an armed individual who has broke into your house, you will likely be the one the coroners slab.

 

If he is unarmed, as I explained above, you have more options. But his being armed limits your options severely.

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Probably missing the point here, but DaBren something I do understand. I also believe it is why everything I have read says after use of force say nothing until you have talked

to your lawyer. Because what you need to do is;

to articulate

 

Yes, not knocking talking to an attorney first, as it could be a very good recommendation. Just think for a minute about this. If you understand just exactly what to articulate, even to your attorney, then you will be better off than just letting an attorney answer for you. With the attorney not being there, he/she is limited by what you can describe to him/her. Not all attorneys are not going to go about getting this information the same way. He/she will be asking questions but will they be able to ask all the right questions of you, the client. Another consideration is actually making contact with an attorney during the wee hours of the night in some rural location.

 

Another thing is practice. We go out and shoot to keep in practice, thinking of different situations an then describing the details is also practice, mental practice.

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  • 2 weeks later...
US Supreme Court Case Tennessee vs Garner, 1985. Short version is that you can not shoot a felon who is posing no danger to you for a property crime. Why Illinois has not adjusted it's use of force definition based upon this ruling is still baffling. As someone said previously, Federal will trump State.

 

The IL statute is not in conflict, just know the limits of its protection.

 

Didn't Garner dealt with police shooting unarmed fleeing suspects?

 

I wonder if that would apply within the home where your rights are most acute?

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Many people have died from a simple concussion. Any blow to the head, even a punch, is capable of causing crippling injury or death.

Less focus on forcible felony, since that is clearly defined in many places.

 

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."

 

Willful and Wanton Conduct

"Willful and wanton conduct means “acting consciously in disregard of or acting with a reckless indifference to

the consequences, when the Defendant is aware of her conduct and is also aware, from her knowledge of

existing circumstances and conditions, that her conduct would probably result in injury.” [Duncan v. Duncan (In

re Duncan), 448 F.3d 725, 729 (4th Cir. Va. 2006)]

“A course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an

utter indifference to or conscious disregard of a person's own safety and the safety of others."[siemer v.

Nangle (In re Nangle), 274 F.3d 481, 483 (8th Cir. Mo. 2001)]"

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I hope everyone reads the piece in the ISRA newspaper that came out a week or so ago. It has an excellent article about the law regarding use of force in defense of dwelling and property, and how federal cases will trump IL statutes, especially with Eric Holder in charge.

and

US Supreme Court Case Tennessee vs Garner, 1985. Short version is that you can not shoot a felon who is posing no danger to you for a property crime. Why Illinois has not adjusted it's use of force definition based upon this ruling is still baffling. As someone said previously, Federal will trump State.

 

I've been meaning to mention that Edward Ronkowski article as well. He suggests that Tennessee vs. Garner may place limitations on Illinois' laws allowing deadly force to prevent certain forcible felonies such as Residential Burglary and Arson.

 

What confuses me is that Garner is about police procedure during an arrest. A police officer used deadly force to stop a fleeing burglary suspect. The court ruled that this was an unjust seizure - a violation of the suspect's Fourth Amendment rights.

 

IANAL and I'd like to hear comments from another attorney on Ronkowski's thesis. I'm not suggesting it's a good idea for a private citizen to use deadly force to prevent a property crime. However, I'm also not convinced that Garner makes it unconstitutional. The court case was entirely about the actions of a police officer acting in his official capacity. There was no mention of defense by private citizens in the ruling at all. Is it even possible for a private citizen to violate someone's Fourth Amendment rights?

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  • 2 months later...

 

I hope everyone reads the piece in the ISRA newspaper that came out a week or so ago. It has an excellent article about the law regarding use of force in defense of dwelling and property, and how federal cases will trump IL statutes, especially with Eric Holder in charge.

and

US Supreme Court Case Tennessee vs Garner, 1985. Short version is that you can not shoot a felon who is posing no danger to you for a property crime. Why Illinois has not adjusted it's use of force definition based upon this ruling is still baffling. As someone said previously, Federal will trump State.

I've been meaning to mention that Edward Ronkowski article as well. He suggests that Tennessee vs. Garner may place limitations on Illinois' laws allowing deadly force to prevent certain forcible felonies such as Residential Burglary and Arson.

 

What confuses me is that Garner is about police procedure during an arrest. A police officer used deadly force to stop a fleeing burglary suspect. The court ruled that this was an unjust seizure - a violation of the suspect's Fourth Amendment rights.

 

IANAL and I'd like to hear comments from another attorney on Ronkowski's thesis. I'm not suggesting it's a good idea for a private citizen to use deadly force to prevent a property crime. However, I'm also not convinced that Garner makes it unconstitutional. The court case was entirely about the actions of a police officer acting in his official capacity. There was no mention of defense by private citizens in the ruling at all. Is it even possible for a private citizen to violate someone's Fourth Amendment rights?

 

 

 

I'll say this much: As long as someone broke into your home, and you shot them in self defense, no DA on the planet will prosecute you. That trial will not get past Grand Jury, let alone get anywhere in trial.

 

People are reading too far into this imo, at home you are good.

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Garner deals with an agent of the state. Not a civilian. And they are held to a higher standard in the performance of their jobs.

 

As an example, the 4th amend provides protections from search and seizure. States are free to put more protections on that. Just as illinois can have a different use of force continuam for civilans and self defense and not run afoul of Garner

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  • 2 weeks later...

A police officer has more latitude to use force, but is held to a higher standard when apprehending a perpetrator.

 

Garner is about a fleeing thief, not a B and E into your own home to steal your possessions. It has been around a long time and as far as I am aware, not been used to strike down a self-defense case, but I will research it.

 

That said, I am not suggesting you may or should shoot someone who is running out of your house with your TV, and posing NO threat. Self-defense is the operative concept here, correct?

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So if your behind the counter at work and someone pulls a gun or knife out as they are walking towards you wanting the money in the drawer, you have no where to go is that "letal force" authorized? "you feel your life is in danger"....

 

Armed robbery is a forcible felony as I understand it. That would also not be a disparity of force in my opinion. I'm not a lawyer, but I think you would likely be justified.

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