Self Defense

The Use of Self-Defense

Although you normally consider yourself to be a nice and non-violent person, you now find yourself faced with a situation in which your instincts tell you that a forceful and violent response is the right thing to do. How should you handle this? Will you get in trouble if you do fight? Generally, it is against the law to cause bodily harm to another, to cause permanent disability or disfiguring injuries, or to cause the death of someone absent lawful justification. Illinois law does allow for the proper use of force and the proper level of use of force, but it all depends upon the circumstances at hand.

Self Defense

Requires Lack of Lawful Authority

Police and prosecutors have the power to fully investigate alleged crimes and to bring charges that they think are appropriate based upon the circumstances. However, it is often the case that a person will be charged with a crime following a violent incident without any thorough police investigation. This is true even though that person may be entitled to claim a defense. After all, police are not charged with the responsibility to determine one’s factual and legal guilt beyond any reasonable doubt when making an arrest, they are only required to determine that there are reasonable grounds to believe a given person committed a given crime. In most misdemeanor offenses, the accused is released from custody on bail pursuant to set Supreme Court Rules with no immediate legal or judicial oversite.

In Illinois, In order to charge someone with a felony offense, police must notify the prosecutor’s office, and an Assistant States Attorney comes to the police station to review the investigation and often times to interview the suspect in order to obtain solid admissions, statements or confessions to be used in the prosecution. Sometimes, the police and prosecutor disregard exculpatory statements from an accused, which are statements asserting one’s innocence of a crime or a defense to the charges. Sometimes, they actively work to disprove the exculpatory statements, rather than objectively determine if they are factual. As such, it will later be left up to a Judge or a Jury to decide the guilt or innocence of the defendant at a trial on the merits. This is truly being in Jeopardy and the reason why one cannot be tried twice for the same offense (what we call Double Jeopardy) is because once is bad enough, but twice is a brutal extension of the power of the State, when you consider the costs to the individuals who must now defend themselves against a system that has the deepest of pockets.

The laws against committing a Battery, Aggravated Battery, or even Murder all hinge on one common factor – they must be committed without lawful authority. In other words, the mere fact that you may have injured or even killed another person does not necessarily mean that you should be found guilty by a court of law. Commonly, this raises an applicable Affirmative Defense.

What is an Affirmative Defense?

An Affirmative Defense is defined in Section 3-2 of the Illinois Criminal Code as a defense to a charge that, unless raised by evidence presented by the State in its Case, requires the Defendant to present some evidence in order to raise the issue before the Judge or Jury. With the exception of insanity as a defense, the State must prove a Defendant guilty beyond a reasonable doubt as to that issue, together with all of the elements of the charged offense(s). When it comes to the use of force, the Affirmative Defenses are "In Defense of Person", "In Defense of Dwelling", "In Defense of Other Property", as well as a Private Person's Use of Force in Making an Arrest.

Section 7-1 provides that a person may use force to defend himself or another when he reasonably believes such force is necessary to defend against another's imminent use of unlawful force. Lethal force, or force that may cause great bodily harm, may only be used if one reasonably believes that such force is necessary to prevent great bodily harm or death to himself or another, or in response to the commission of a "forcible felony." "Reasonable belief" is the idea that a person of ordinary intelligence and development would, in the same circumstance, believe that the use of force against him was "imminent", meaning happening in the moment or just about to happen in that moment.

Self Defense

What constitutes force likely to cause Death or Great Bodily Harm? Exactly what that sounds like. It is the infliction of injuries, whether by brute strength or by wielding a deadly weapon or object that could be used to inflict serious injury or death. As with the other theories of defensive use of force, the force used cannot exceed what is reasonable under the facts of the individual case. Be careful: once the use of force is no longer needed, to continue its use may turn the tables on you, which will then make you guilty of a crime.

For example, if you are involved in what we call a “road rage” situation, where another motorist is coming at you to fight, you do not have to retreat, you can let the fight come to you. You arguably have the right to the “first swing” if your aggressor is clearly coming to attack. If you are successful in rendering your opponent unable to carry the fight further, it is time to walk away. If you linger, and throw a few more punches, slaps, kicks, spit on, or whatever to the other party, the roles reverse and you are now the aggressor with whatever act you perform constituting a criminal offense.

If your aggressor is unarmed, you may only use lethal force in your defense is that either you, or another, is in reasonable danger of receiving death or great bodily harm. Let us say you have had multiple spinal surgeries, and any solid punch to the head could cause you death or paralysis. You could use lethal force in your own defense under those circumstances, but beware: this is the sort of circumstance missed by police and prosecutors in the investigation of the incident and you will likely have to resort to raising the affirmative defense at an expensive and lengthy trial.

If your aggressor is armed with a deadly weapon and you defend yourself with lethal force, you still may not be out of the woods. You would had to have a reasonable apprehension that your aggressor meant to use lethal force imminently in the moment. If he is “open carrying” a gun and it is holstered, even if he is coming at you aggressively, it is likely not justifiable to attack with a lethal weapon of your own. Several years ago, here in Chicago, a young man was shot by a police officer 17 times as he was walking with a kitchen knife clutched at his side. Although the young man was clearly acting erratically and he may have posed a future risk of harm to someone, there was no immediate threat to the officer or other officers when the shots rang out. So, the officer was convicted in that shooting. Now, had the man lunged at officers as was claimed, the shooting would have been justifiable.

Use of Force in Defense of Property in Chicago

Section 7-2 provides for the Defense of one's Dwelling or home. One may use whatever force is necessary to prevent or terminate an unlawful entry into or an attack upon, one's dwelling where they are lawfully staying. Force likely to cause death or great bodily harm may be used, if entry is being made or attempted in a "violent, riotous or tumultuous manner," meaning a forcible entry, or extremely loud, threatening or chaotic, and there is a reasonable belief that such lethal force is needed to prevent assault or personal violence to him or another lawfully there; OR the person has the reasonable belief such force is needed to prevent the commission of a felony in the dwelling. Notice how lethal force may be brought even if there is no belief that lethal force will be brought against another in the dwelling, as long as the offender enters violently, etc., and it is reasonable to believe he is about to assault another or commit a felony whether violent or not.

While the law allows for a person to use greater force when defending a dwelling, such is not the case when it comes to other property, such as a business establishment, a garage, a shed, a car, or whatever. Section 7-3 allows the use of force to the extent there is a reasonable belief it is necessary to prevent or end a trespass, tortious or criminal interference with real property (not a dwelling) or personal property belonging to him or his family, or to which he has a legal duty to protect (such as a bouncer or security guard).

The use of deadly force, or that which may cause great bodily harm, may only be used to prevent the commission of a forcible felony. Forcible felonies are covered by the most serious of offenses, such as Treason, First or Second Degree Murder, Predatory Criminal Sexual Abuse of a Child, Criminal Sexual Assault, Arson, Kidnapping (and the more serious "aggravated" versions of those offenses), Robbery, Burglary/Residential Burglary, Aggravated Battery involving great bodily harm or permanent disfigurement or disability, and any other felony involving the use or threat of physical force or violence vs. another. One cannot set up death traps designed to severely injure or kill someone to prevent them from breaking into a non-dwelling, because a mere trespass to land, without more, is not a forcible felony. On the other hand, you can likely kill the guy that tries to rob your family's convenience store.

Citizen's Arrest in Chicago

Although none of us are ever obliged to step in and stop a crime in progress, or take action to apprehend a criminal, such things do sometimes happen. We enjoy the same right to use force to effect a lawful arrest enjoyed by law enforcement, except that we can only use lethal force if we reasonably believe in the moment that such force is necessary to prevent death or great bodily harm to one's self or another.

What about when the police or a private citizen being directed by police are arresting you and you know you are right, they are not, and the arrest is illegal or just plain wrong? Can you use force to defeat the arrest? NO! Section 7-7 specifically takes away the right of a private citizen to in any way forcefully resist an arrest, even if the arrest is unlawful. If you so much as pull away from the officer or tense up against the cuffing procedure, you will be charged with the criminal offense of Resisting or Obstructing a Peace Officer, a Class A Misdemeanor, that among other things can result in a permanent record of conviction that can neither be expunged nor sealed if found guilty. Of course, officers must exercise restraint when they effect an arrest. If an officer uses excessive force that may result in great bodily harm or death to an individual, one may fight back or step in on behalf of the person being abused. Again, know that in such a circumstance, you will likely be defending yourself in court for charges of aggravated battery on an officer, resisting or obstructing a peace officer, or worse.

Speak Now to Our Knowledgeable Chicago Criminal Attorneys

Crimes involving violence such as battery, aggravated battery, and the like, are serious offenses that carry severe criminal penalties, as well as the exposure to potential civil liability including punitive damages against you. If you have been arrested and charged with a criminal offense of any kind, you need the assistance of effective, aggressive legal representation. The Chicago criminal defense lawyers at Mitchell S. Sexner & Associates LLC have a wealth of combined experience and can provide you with top quality services. Call us at (800) 996-4824 and schedule your free initial consultation, today!

Written by Mitchell S. Sexner Last Updated : April 22, 2023