June 27, 2024 Update
The right to defend oneself and others is a fundamental United States legal principle, derived from English Common Law. In fact, the precept dates to The Roman Empire. Under Illinois law its basis is statute 720 ILCS 5/7-1, Use of force in defense of person. It states that a person “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.” It's especially important to understand and remember that the statute specifically uses the conditions “reasonably believes” and "necessary to prevent" the offense!
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.
A reasonable doubt [is] one based on reason which arises from the evidence or lack of evidence. Jackson v. Virginia, 443 U.S. 307, U.S. Supreme Court 1979
Unfortunately, conceptually and literally, reasonable belief and reasonable doubt are nebulous.
Unfortunately, conceptually and literally, reasonable belief and reasonable doubt are nebulous.
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:
Certain of these forcible felonies (i.e., treason, burglary, residential burglary) may not necessarily or likely pose imminent death or great bodily harm. For example, you discover a burglar exiting your home with your personal property items. You might feel justified in using deadly force to prevent or stop the theft. But absent any reasonable danger of serious bodily harm to you, shooting the offender would likely be deemed unlawful. At the very least it would be immoral and unwise. A prosecutor would probably file criminal charges, claiming your extreme force wasn’t reasonable or necessary and instead constituted “willful and wanton misconduct.” You could also face other substantial legal and practical detriments including criminal defense and civil litigation costs, hassle, and time; forfeiture of gun rights; job/career jeopardy; public ridicule; family dissension; emotional problems; etc.
“There is no requirement that a person retreat before employing force in his defense.” - People v. Williams, 311 N.E.2d 681, Illinois Supreme Court 1974
Although a defendant has no duty to retreat when attacked with deadly force, a prosecutor may properly argue a defendant’s failure to easily extricate himself from a dangerous situation as a comment on the credibility of the defendant’s testimony that he was afraid and that the use of deadly force was necessary.” - People v. McGee, 679 N.E.2d 796 (IL Ct. App. 1997)
The “no duty to retreat” defense is not absolute. The prosecution might still argue that you (defendant) could have safely retreated and therefore the use of force was not really necessary or reasonable.
Other Relevant Case Law
The Best Response
Despite there being no duty to retreat, given the moral ambiguity, along with the legal, financial, emotional and other consequences, I strongly recommend that deadly force not be used except for circumstances in which imminent death or great bodily harm to you or other persons is clearly probable. Deadly force should not be employed to protect mere property (vehicle, pet, or even unoccupied home).
It’s always best to maintain good situational awareness and try to avoid or escape any attack. Stay safe. Understand the law. Use your head before you pull the trigger.
Further information and enhanced guidance available to clients.
Originally published March 3, 2015; Rev. 8/27/24
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 or likely pose imminent death or great bodily harm. For example, you discover a burglar exiting your home with your personal property items. You might feel justified in using deadly force to prevent or stop the theft. But absent any reasonable danger of serious bodily harm to you, shooting the offender would likely be deemed unlawful. At the very least it would be immoral and unwise. A prosecutor would probably file criminal charges, claiming your extreme force wasn’t reasonable or necessary and instead constituted “willful and wanton misconduct.” You could also face other substantial legal and practical detriments including criminal defense 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
It’s important to understand two critical and complex legal standards. Under Illinois statute 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 presumption of innocence is embedded in American jurisprudence.
But under Illinois statute when a person employs deadly or non-deadly force (even in self-defense), that action in and of itself can constitute a crime (e.g., battery). Accordingly, under 720 ILCS 5/3-2 Affirmative Defense, the burden of proof shifts to the defendant (ironically, the original victim) to prove innocence. He/she would stipulate that such force was necessary, and justified under 720 ILCS 5/7-1 (Use of force in defense of person); supporting evidence would need to be offered. Once self-defense is raised as a legal justification, “the State then has the burden of proving the Defendant’s guilt beyond a reasonable doubt as to that issue, together with all the other elements of the offense. -People v. Woods, 410 N.E.2d 866 (IL Supreme Court 1980)
No Duty to Retreat
"... 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." - Illinois Pattern Jury Instructions - Criminal 24-25.09X
“There is no requirement that a person retreat before employing force in his defense.” - People v. Williams, 311 N.E.2d 681, Illinois Supreme Court 1974
Although a defendant has no duty to retreat when attacked with deadly force, a prosecutor may properly argue a defendant’s failure to easily extricate himself from a dangerous situation as a comment on the credibility of the defendant’s testimony that he was afraid and that the use of deadly force was necessary.” - People v. McGee, 679 N.E.2d 796 (IL Ct. App. 1997)
The “no duty to retreat” defense is not absolute. The prosecution might still argue that you (defendant) could have safely retreated and therefore the use of force was not really necessary or reasonable.
"Self defense may not be used by an aggressor.” - People v. Young, 807 N.E.2d 1124 (Illinois Court of Appeals 2004)
“Where it is clear that the aggressor is capable of inflicting serious bodily harm on the defendant without the use of a deadly weapon, and it appears he intends to do so, then it is not necessary that the aggressor be armed for the defendant to employ deadly force in self defense.” - People v. Evans, 631 N.E.2d 281 (Illinois Court of Appeals 1994)
“If the belief that danger was present was a product of the defendant’s mind and not based on a reasonable belief, the use of force was not justified.” - People v. Lee, 821 N.E.2d 307 (Illinois Supreme Court 2004)
“The law does not charge an individual, when he has reasonable grounds to believe himself in apparent danger of losing his life or suffering great bodily injury, to use infallible judgment. It would be unreasonable to require such an exercise of careful judgment in the space of a few seconds while one [is] under great stress and excitement.” - People v. Motuzas, 352 Ill. 340, 346, 185 N.E. 614, 617.
“the concept of self-defense does not permit the use of force, much less deadly force, against an antagonist after the antagonist has been subdued or is lying helpless on the ground. -Balfour, 148 Ill. App.3d 215, 498 N.E.2d 547.
“When it has been found that a defendant was initially firing in self-defense, courts have been reluctant to find that a span of only a few seconds was a sufficient time for the defendant to realize that further shooting was unnecessary.” - People v. Bailey, 326 N.E.2d 550 (Illinois Court of Appeals 1975)
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.
Despite there being no duty to retreat, given the moral ambiguity, along with the legal, financial, emotional and other consequences, I strongly recommend that deadly force not be used except for circumstances in which imminent death or great bodily harm to you or other persons is clearly probable. Deadly force should not be employed to protect mere property (vehicle, pet, or even unoccupied home).
It’s always best to maintain good situational awareness and try to avoid or escape any attack. Stay safe. Understand the law. Use your head before you pull the trigger.
Further information and enhanced guidance available to clients.
Legal Disclaimer/Hold Harmless: Substantial 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. He shall not be responsible for any injury, liability, loss, or damage of whatever nature (direct, indirect, consequential) which may result from its use.
Originally published March 3, 2015; Rev. 8/27/24
Copyright 2015-2025 Bruce Edenson. All rights reserved.
