Can ‘Stand Your Ground’ be invoked in Illinois?
While the vast majority of states across the country have adopted some version of Stand Your Ground (SYG) law, there are three regions of the United States that have not so far seen SYG. The holdout areas are the northeastern United States (Maine, New York, New Jersey and Pennsylvania), the northwestern United States (Washington, Oregon, Montana, Idaho and Wyoming), and Illinois.
Apart from a 1972 ruling by an Illinois appellate court holding the unconstitutionality of a law requiring a duty to retreat, Illinois has no SYG. The Illinois deadly force statute only allows the use of deadly force to protect yourself or a third party if you have a "reasonable belief that such conduct is necessary to prevent imminent death or great bodily harm to [you or a third party]." At the same time, the law creates an affirmative duty to retreat to avoid death or great body harm — a requirement not found in any other state’s SYG law. Illinois has made clear that SYG does not exist. Under Illinois law, the use of deadly force is treated as defensive until it is determined that the force was not justified.
Only self-defense and third-party defense law has been held to be self-defense in Illinois. Although state law generally does not define SYG as such, various laws refer to "self-defense," which has been defined in Illinois throughout the years. As previously mentioned, the Illinois right of self-defense (also known as "the right of complete self-defense") allows the use of force legally possessed, including deadly force, to protect oneself or another from the imminent use of unlawful force and where all of the elements of self-defense are present.
During the 2005 session, the Illinois State Legislature introduced an SYG bill which would have enacted a law similar to those in other states . Specifically, it stated, in relevant part, "A person who is unlawfully and forcibly entering, or has unlawfully and forcibly entered, an occupied residence or occupied motor vehicle and who uses deadly force can be presumed to have reasonably believed the use of force was necessary to prevent the commission of a forcible felony. Reasonable belief does not require the person to retreat if he or she knows that he or she can avoid the necessity of using deadly force with complete safety."
The bill countered a recent Illinois Supreme Court case, In re J.S., where a father and mother who were divorced lived across the street from each other. During visitation, the father, after consuming several alcoholic drinks, came into the mother’s house early one morning to take their three-year-old child. The father locked himself into the bathroom with the child, and the mother struggled with him unsuccessfully to get her daughter back. The father eventually left the bathroom with the child, also locking the bedroom door. While the father was threatening the mother with her gun, she reached for the weapon, and the father shot and killed her. The high court stated that the only way the mother could prevail on her claim of immunity was if her conduct fell within the applicable Illinois self-defense or stand your ground law. Because her conduct did not fall under either law, including the lack of a duty to retreat, the court held that the mother was not entitled to total immunity.
Although the J.S. case tried to show the need to enact an SYG law so that people in Illinois would be protected from having the government prosecute them after a justified use of deadly force in self-defense, a version of the SYG law failed. The bill did not become law.
In general, Illinois does not have an SYG law like those in many other states. The Illinois State Legislature has not passed an SYG bill, and the Illinois courts have not broadly held SYG as a judicially recognized doctrine.
Duty to Retreat Rule in Illinois Jurisdiction
According to Illinois case law, the law has long recognized the concept of duty to retreat. The duty to retreat means that a person must avoid or minimize physical conflict whenever possible before resorting to the use of force in self-defense or in defense of another. The common-law duty to retreat in Illinois was analyzed in the seminal Super Gilt, Inc. v. Hooters of Wisconsin, Inc., 2004 IL 103046, 210 Ill. 2d 167. In Super Gilt, the Supreme Court of Illinois stated that the "no duty to retreat" rules have long been the law in Illinois. To put it another way, a person acting in self-defense under Ill. Rev. Stat. Ch. 38 §7-4(g) has no duty to first use every possible means of retreat when the person is attacked by another party in a place where he or she has a right to be. With respect to Illinois gun owners, Illinois is a Castle doctrine only State and there is also a stand your ground rule for guns.
Illinois has recognized three major considerations when discussing the no duty to retreat doctrine. First, the person has the right to defend themselves where they have a right to be; for example, a homeowner can defend themselves without first retreating if they are in their home. The second consideration is that there should be no duty to retreat in the face of a forcible felony, i.e., a person can defend themselves in the face of a forcible felony without first retreating. Third, it allows those who are not threat to the public to freely navigate and conduct their business without being hindered by the threat or possibility of a forced attack.
Illinois Law on Self-defense
Under current Illinois law, individuals have the right to use force, up to and including deadly force, in self-defense when they reasonably believe such force is necessary to prevent unlawful entry or to prevent another person from committing a violent act against themselves or a family member. However, Illinois does not have a "Stand Your Ground" statute that allows individuals to use deadly force in self-defense without a duty to retreat. Instead, Illinois law requires individuals to attempt to retreat from a dangerous situation if it is safe to do so or use force to defend themselves if an aggressor is approaching them with unlawful force. These laws vary between states; Illinois is no exception.
Self-defense in Illinois is codified in 720 ILCS 5/7-1, 5/7-2, and 5/7-5. Here is a brief explanation: In Illinois, a person is justified in the use of force as long as it is necessary to defend himself or herself from unlawful force. ILCS 5/7-1. When the use of force is combined with the use of deadly force, specific requirements must be met for self-defense to be considered lawful. Deadly force is defined as "force that is likely to cause death or great bodily harm." ILCS 5/7-5(b). In Illinois, a person is justified in using deadly force against another when he is not the initial aggressor and there is an imminent threat of unlawful force against him or another individual that cannot be safely avoided. The use of deadly force is also justified if necessary to prevent the commission of a forcible felony. Forcible felonies are defined as treason, first-degree murder, second-degree murder, aggravated criminal sexual assault, aggravated kidnapping, aggravated battery with a firearm, and aggravated battery of a child when the battery is committed on his or her family member or an individual legally dependent upon him or her for necessities of life, subject to limited exceptions. ILCS 5/7-5(a). Stand Your Ground laws would compel the courts to issue rulings in favor of defendants who used deadly force when an attacker posed a non-life-threatening danger to the defendant or another person.
Comparative Law to Stand Your Ground Jurisdictions
The comparison between Illinois law and the laws of a Stand Your Ground State like Florida is very interesting. It will boil down to the facts of each case, but in general Illinois has been a place that has left the right to self-defense to the jury to decide. Below are some common scenarios and comparisons.
In Illinois, you cannot use deadly force to protect your property or just to make a citizen’s arrest against a fleeing suspect. A shooting of this nature would be considered murder. In Florida, you can meet force with force in any circumstance with Castle Law rules. This could result in a more likely chance of a person getting charged with murder in Illinois as opposed to a Stand Your Ground State .
In Illinois, there is a presumption that a person is presumed to have acted reasonably if they kill someone who is illegally entering their home and makes them fear for their safety. In Florida (since the Grove laws have taken effect) a person has a right to protect themselves from serious harm from someone on the street. This makes it more likely that a person will be charged with murder in Illinois even though they are just protecting their own safety.
In Illinois, a person can use defensive force against an attacker to save themselves in a situation with no possibility of retreat if they believe the attacker may seriously harm them at the time of the attack. In the Florida, you have a right to the same thing. The different laws, leave the door open for murder charges to be brought in Illinois under circumstances that likely would not allow for charges to be brought in Florida.
Case Examples and Analysis in Illinois Law
While anti-self-defense advocates in Illinois have long looked to the writings of two late 19th Century Illinois Supreme Court justices who wrote scathing dissenting opinions against the prevalence of self-defense in late 19th Century Illinois and the dangers that such a prevalence would create, they ignore much more recent developments in Illinois courts which have largely upheld the right to self-defense against aggressors.
One 2013 case decided by the Illinois Appellate Court for the 2nd District, in People v. Lee, 2013 Ill. App. (2d) 120220, involved a home invasion and a resulting shooting. The jury acquitted defendant Lee of the charges against him, but the State appealed the trial court decision granting a certificate of innocence to Lee after the acquittal. The Appellate Court affirmed the lower court’s grant of a certificate of innocence to Lee, holding that he had committed an act of violence, but he had a justified belief that the use of force was necessary to prevent death or great bodily harm to another.
And in 2007, in People v. Manuel, 219 Ill. 2d 130, the Illinois Supreme Court held that there is no common law duty to retreat first before using deadly force.
Illinois law is clear in favor of a citizen’s right to assert a claim of self-defense under the law, even when the aggressor is not actually killed.
Public Opinion and Legislative Support
Despite their significant role in recent high-profile self-defense cases, Stand Your Ground laws are still not widely known or understood by the general public. Stand Your Ground laws offer a much wider right to the use of deadly force in situations involving self-defense than previous versions of self-defense law. Added to this confusion is the strong racial overtone to some of the cases involving the application of Stand Your Ground laws.
As a result of this confusion, recent years have shown several attempts by legislators to clarify and strengthen Stand Your Ground laws in Illinois, and as strong a backlash by those who believe that Stand Your Ground laws will have a negative impact on crime reduction, especially in the State of Illinois.
Not surprisingly, Stand Your Ground laws have been encouraged by more conservative legislators and have met resistance from more liberal legislators. The Governor has been consistent in his opposition. This is Illinois, after all. In the Illinois House of Representatives, the proposed bills died in committee before ever seeing the floor. Things looked easier in the Illinois Senate, where limited success was had.
In 2014, 57.6% of the public supported Stand Your Ground laws (the majority of support coming from those over 35 years of age) while 28% opposed Stand Your Ground laws . One year later, public support for Stand Your Ground was 56% while those who oppose it came in at 21%. To some, it is important to note that a majority of those polled believe Stand Your Ground laws are a valuable addition to self-defense laws, but that may simply be a reflection of the manner of questioning by pollsters. For example, a poll might ask the amount of force that someone believes a person should be allowed to use in self-defense. Right off the bat, the pollster has created a confounding factor that many may fail to identify.
Even though Stand Your Ground laws may have a more significant impact on the small communities of Illinois, they have not stirred the same level of outrage as in other states. A more accurate view may be that the outrage has occurred behind closed doors, with pro-stand your ground lobbyists meeting with opposing lawmakers behind closed doors, never revealing their desire to support Stand Your Ground laws until after the lobbyists believe they have made progress behind the scenes.
Overall, Stand Your Ground is certainly not an issue that Illinoisans discuss over dinner. For Illinois lawmakers, Stand Your Ground laws are a distraction from the more important issues: budgeting, education and the high cost of living. A strong political push for Stand Your Ground laws will have to be initiated and maintained by well-organized advocacy groups.