Since 2005, 28 states have passed some version of a Stand Your Ground law. Stand Your Ground laws essentially revoke the “duty to retreat” and make it lawful for a person to use force in self-defense. Another 8 states, including Illinois, have adopted some form of Stand Your Ground practice.
Illinois has not explicitly implemented a Stand Your Ground provision. However, courts have essentially established the right through several court decisions. The state’s self-defense laws have also established an affirmative defense to the use of force in certain situations.
Affirmative Defense for Justifiable Force
An affirmative defense is asserted when you admit to engaging in unlawful behavior, but offer evidence to mitigate or defeat criminal sanctions. In 2004, Illinois amended its self-defense laws to insert an affirmative defense. This affirmative defense may be used if you use force to protect yourself, another person, or your property from harm. There is no duty to retreat before using force.
Illinois justifiable force provisions can be found in 720 ILCS 5/7. In Illinois, you may use justifiable force:
- To defend yourself or another person;
- To protect your dwelling; or
- To protect your property.
How is this affirmative defense used? Let’s say that someone is breaking into your home and you become fearful for your safety. You then strike the intruder with a baseball bat. You have committed a battery.
However, Illinois law specifically states that you may use justifiable force to protect yourself. You may assert this affirmative defense. When you do so, you would first admit to the battery. Your Chicago criminal lawyer would then explain that you only committed the battery because you were protecting yourself from harm. If the court believed that you were justified in the use of force, you would likely not be charged with the crime of battery.
What is Justifiable Force?
How do you know if the force you use is justifiable? Each situation will be different and will depend on the facts specific to the incident. However, there are generally three things to keep in mind when determining if force is justifiable. First, there must be an unlawful imminent threat of danger or harm to you, someone else, or your property. Second, you must reasonably believe that force is required to combat the threat or danger. Third, the force you use must be equal to the threat or danger you face.
Again, justifiable force is that which is equal to the threat or danger posed by another person. In other words, force must be proportionate to the threat. You may not use force that exceeds the threat. For example, it may be reasonable to hit an intruder with a baseball bat to stop them from harming you or trespassing on your property. It would probably not be reasonable to shoot them with the intent to kill to stop them from vandalizing your property.
If it is determined that your use of force is excessive, or if you are the initial aggressor, your actions may not be protected by the Illinois affirmative defense.
Regular Force and Deadly Force
Justifiable force can be broken down even further into two distinct levels: regular and deadly. Regular force is that which is not intended to kill or cause great bodily harm, but rather stop another person from being able to continue the perceived threat. In Illinois, you may use regular force in just about any self-defense situation.
Deadly force is that which is intended to kill or cause great bodily harm. Deadly force is not always excusable. You may use deadly force to protect yourself or another person if you believe it is necessary to prevent death or great bodily harm. You may not use deadly force to protect property unless you are doing so to prevent a forcible felony. Forcible felonies are defined in 720 ILCS 5/2-8 and include murder, sexual assault, robbery, burglary, arson, kidnapping, aggravated battery, and “any other felony which involves the use or threat of physical force or violence against an individual.”
Justifiable Force Will Shield Civil Liability
In 2004, Illinois amended its self-defense laws to insert a provision that protects individuals whose use of force was “justified” under the law from facing civil repercussions for their actions. This means that if your use of force is considered to be justified, the person you injure in your defense cannot sue you for damages in a civil suit. If, however, it is determined that your use of force was excessive – or if you were the aggressor – you are not protected from civil action.
Kostpoulos Law Group