Important Definitions
Since they’re intrinsic to the self-defense defense, these terms deserve clarification …
The party who first offers violence or offense. He who begins a quarrel or dispute, either by threatening or striking another. – Black’s Law Dictionary, 2nd Ed.; acts in such a way as to provoke a reasonable person to use physical force for protection, unless the defendant in turn uses excessive force to repel the plaintiff. The aggressor doctrine is generally applied in cases where an injury results from an assault which is an intentional act. - definitions.uslegal.com
Reasonable belief: is defined under Illinois statute 720 ILCS 5/2-19 as “the person concerned, acting as a reasonable man, believes that the described facts exist.” Unfortunately, that’s very nebulous in conceptual as well as practical terms.
Necessity: The legal doctrine of necessity is recognized under state laws across this nation. Illinois statute 720 ILCS 5/7-13 defines it as: “Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.”
Imminent: "certain, immediate and impending” (West's Encyclopedia of American Law)
Subjective: "related to or based on beliefs, attitudes and opinions instead of verifiable evidence" (Black's Law Dictionary)
Objective: "Neutral: An unbiased attitude or opinion that is based on factual evidence" (Black's Law Dictionary)
Legal Elements of Self Defense
According to prevailing Illinois case law, People v. Jeffries 646 N.E.2d 587 (Illinois Supreme Court 1995), in order to instruct the jury on self defense, the defendant must establish some evidence of each of the following elements:
Unfortunately, circumstances could necessitate your use of force (perhaps lethal) to thwart an assailant. From myriad legal, moral and practical standpoints, potentially-deadly force should be the very last resort. Below is a model to more clearly ascertain the reasonableness and necessity warranting the use of deadly force. You might think of this as “rules of engagement” for civilians. Though not specified in Illinois law, three concurrent elements would more definitively justify such a grave response ...
Intent: The assailant’s actions and/or words clearly signal his/her intention to commit severe violence against another person. Obvious examples would be: someone deliberately pointing a gun, knife or other deadly weapon at you; threatening speech such as “I’m gonna kill”; an obviously-malicious intruder breaking down your bedroom door.
Capacity: The assailant possesses the power to kill, cripple or incapacitate, indicated by:
Necessity: The legal doctrine of necessity is recognized under state laws across this nation. Illinois statute 720 ILCS 5/7-13 defines it as: “Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.”
Imminent: "certain, immediate and impending” (West's Encyclopedia of American Law)
Subjective: "related to or based on beliefs, attitudes and opinions instead of verifiable evidence" (Black's Law Dictionary)
Objective: "Neutral: An unbiased attitude or opinion that is based on factual evidence" (Black's Law Dictionary)
Legal Elements of Self Defense
According to prevailing Illinois case law, People v. Jeffries 646 N.E.2d 587 (Illinois Supreme Court 1995), in order to instruct the jury on self defense, the defendant must establish some evidence of each of the following elements:
- the force is threatened against a person
- the person threatened is not the aggressor
- the danger of harm was imminent
- the threatened force was unlawful
- he actually and subjectively believed a danger existed which required the use of the force applied
- his beliefs were objectively reasonable
Unfortunately, circumstances could necessitate your use of force (perhaps lethal) to thwart an assailant. From myriad legal, moral and practical standpoints, potentially-deadly force should be the very last resort. Below is a model to more clearly ascertain the reasonableness and necessity warranting the use of deadly force. You might think of this as “rules of engagement” for civilians. Though not specified in Illinois law, three concurrent elements would more definitively justify such a grave response ...
Intent: The assailant’s actions and/or words clearly signal his/her intention to commit severe violence against another person. Obvious examples would be: someone deliberately pointing a gun, knife or other deadly weapon at you; threatening speech such as “I’m gonna kill”; an obviously-malicious intruder breaking down your bedroom door.
Capacity: The assailant possesses the power to kill, cripple or incapacitate, indicated by:
- Deadly or incapacitating weapon: his/her brandishing a gun, knife, club, hammer, vehicle, bottle, taser, pepper spray, etc.
- Disparity of force: his/her overwhelming size, strength, fighting skill; multiple attackers. People in greater inherent danger would include the elderly; physically handicapped; small women; children; someone with heart or respiratory problems, osteoporosis, etc.
- Tactical advantage: victim is physically unable to effectively or safely evade, escape or deter; victim has no viable defensive weapon immediately available.
- Proximity – based upon law enforcement research, an attacker within 21 feet can potentially be upon a victim within 1.5 seconds ("Tueller Rule/Drill" - consider it a guideline)
- No barriers or obstacles (e.g., door, wall) are available to prevent or slow the attack
- Terrain – the ground (e.g., snow, ice), landscape (e.g., hills, waterways) or other conditions (e.g. darkness) decidedly favor the aggressor.
Other Justifiable Grounds, and Caveat
Under Illinois law, the use of deadly force is also justified to prevent the commission of a forcible felony. 720 ILCS 5/2-8 defines forcible felony as: “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.”
Certain of these forcible felonies (i.e., treason, burglary, residential burglary) may not necessarily pose imminent death or great bodily harm. For example, upon returning home you discover a burglar exiting with property items. You might feel justified in using deadly force to prevent or stop the offense. But absent any reasonable danger of serious bodily harm (or worse) to you, shooting the offender would likely be deemed unlawful. At the very least it would be immoral and unwise. A prosecutor might well file criminal charges against you, claiming your extreme force wasn’t necessary and constituted “willful and wanton misconduct.” You could also face other substantial legal and practical detriments including criminal and civil litigation costs, hassle and time; forfeiture of gun rights; job/career jeopardy; public ridicule; family dissension; emotional problems; etc.
Presumption of Innocence and Affirmative Defense
You should also understand a technical, but critical, legal consequence. Under Illinois law, 720 ILCS 5/3-1, “Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt.” The general presumption of innocence is embedded in American jurisprudence.
However, in situations involving use of force in defense of self or others, the burden of proof normally shifts to the original prospective victim. He/she would almost certainly invoke the “Affirmative Defense,” 720 ILCS 5/3-2, stipulating that he/she did exert such force but that it was necessitated and justified by the circumstances. Thus, ironically, the originally-innocent party becomes the defendant at trial. He/she must present evidence supporting the defense. However the State bears the obligation to prove the defendant guilty (of all elements of the offense) beyond a reasonable doubt.
No Duty to Retreat
Under Illinois law "a person who has not initially provoked the use of force against himself has no duty to attempt to escape the danger before using force against the aggressor." (per Illinois Supreme Court Pattern Jury Instructions, Criminal 24-25.09X)
Certain of these forcible felonies (i.e., treason, burglary, residential burglary) may not necessarily pose imminent death or great bodily harm. For example, upon returning home you discover a burglar exiting with property items. You might feel justified in using deadly force to prevent or stop the offense. But absent any reasonable danger of serious bodily harm (or worse) to you, shooting the offender would likely be deemed unlawful. At the very least it would be immoral and unwise. A prosecutor might well file criminal charges against you, claiming your extreme force wasn’t necessary and constituted “willful and wanton misconduct.” You could also face other substantial legal and practical detriments including criminal and civil litigation costs, hassle and time; forfeiture of gun rights; job/career jeopardy; public ridicule; family dissension; emotional problems; etc.
Presumption of Innocence and Affirmative Defense
You should also understand a technical, but critical, legal consequence. Under Illinois law, 720 ILCS 5/3-1, “Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt.” The general presumption of innocence is embedded in American jurisprudence.
However, in situations involving use of force in defense of self or others, the burden of proof normally shifts to the original prospective victim. He/she would almost certainly invoke the “Affirmative Defense,” 720 ILCS 5/3-2, stipulating that he/she did exert such force but that it was necessitated and justified by the circumstances. Thus, ironically, the originally-innocent party becomes the defendant at trial. He/she must present evidence supporting the defense. However the State bears the obligation to prove the defendant guilty (of all elements of the offense) beyond a reasonable doubt.
No Duty to Retreat
Under Illinois law "a person who has not initially provoked the use of force against himself has no duty to attempt to escape the danger before using force against the aggressor." (per Illinois Supreme Court Pattern Jury Instructions, Criminal 24-25.09X)
Deadly Force Alternatives
Apart from statute and case
law, it’s likely the judge and jury will consider options that might have been available
to the defendant instead of shooting, e.g., less lethal weapon, retreat, take
cover, or await police. Illinois courts recognize that violent encounters often
occur quickly. As such, the defendant’s decisions aren’t expected to be perfect,
but they are expected to be reasonable. Each juror may wonder what they would
have done in the same situation. The defendant ought to have a plausible
explanation as to why nonlethal alternatives weren’t or couldn’t be used.
The Best Response
Despite there being no duty to retreat, given the morality issue and likely legal, financial and other consequences, I strongly recommend that potentially deadly force not be used except for instances in which imminent death or great bodily harm to you or other persons is clearly probable. It’s always best to maintain good situational awareness, and try to avoid or escape any attack. Stay safe. Understand the law. Use your brain before you pull the trigger.
Further information and enhanced guidance available to clients.
Originally published March 3, 2015; Rev. 3/20/22
Despite there being no duty to retreat, given the morality issue and likely legal, financial and other consequences, I strongly recommend that potentially deadly force not be used except for instances in which imminent death or great bodily harm to you or other persons is clearly probable. It’s always best to maintain good situational awareness, and try to avoid or escape any attack. Stay safe. Understand the law. Use your brain before you pull the trigger.
Further information and enhanced guidance available to clients.
Legal Disclaimer/Hold Harmless: Every reasonable effort has been made to ensure the accuracy and reliability of the treatise's contents. However, the information and recommendations are provided "as is," and without warranty of any kind. The author disavows any responsibility or liability for accuracy, timeliness, completeness, legality or reliability and shall not be responsible for any injury, liability, loss, or damage of whatever nature (direct, indirect, consequential) which may result from its use or non-use.
Originally published March 3, 2015; Rev. 3/20/22
Copyright 2015-2024 Bruce Edenson. All rights reserved.
