PDA

View Full Version : ILLINOIS has had civil immunity for self-defense for four years -- why can't we?


Davidwhitewolf
02-25-2009, 9:08 AM
Of all places, Illinois seems to have snuck this onto their books: if you're not criminally liable for a self-defense shooting, you can't be held civilly liable either.

This seems like something that somebody could get passed in Sacramento!

From this post by Don Gwinn, the Armed Schoolteacher: (http://thearmedschoolteacher.blogspot.com/2009/02/civil-immunity-for-self-defense-in.html)

CRIMINAL OFFENSES(720 ILCS 5/) Criminal Code of 1961..


(720 ILCS 5/Art. 7 heading)
ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION

(720 ILCS 5/7‑1) (from Ch. 38, par. 7‑1)
Sec. 7‑1. Use of force in defense of person.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he 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.
:thumbsup: In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑2) (from Ch. 38, par. 7‑2)
Sec. 7‑2. Use of force in defense of dwelling.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent,

riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or
(2) He reasonably believes that such force is

necessary to prevent the commission of a felony in the dwelling.
:thumbsup:In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑3) (from Ch. 38, par. 7‑3)
Sec. 7‑3. Use of force in defense of other property.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he 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 the commission of a forcible felony.
:thumbsup: In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

I'd also like to see something like that "use of force in defense of other property" statute go on the books here in Cali. Hey, I can dream, right?

bwiese
02-25-2009, 9:23 AM
In CA I think if you have a good shoot of a bad guy, the civil matters generally go away if criminal issues go away.

We do have a fairly decent 'castle doctrine' in 198.5.

Another good reason to have good quality homeowner's insurance/umbrella.

DDT
02-25-2009, 9:25 AM
In CA I think if you have a good shoot of a bad guy, the civil matters generally go away if criminal issues go away.

We do have a fairly decent 'castle doctrine' in 198.5.

Another good reason to have good quality homeowner's insurance/umbrella.

The problem is that "generally go away" is probably going to be a lot more expensive than "civil immunity."

Cypren
02-25-2009, 9:25 AM
5/7-3 actually seems like a pretty reasonable defense-of-property statute. I'm shocked it made it into law in Illinois, of all places.

Completely agreed that we need civil liability protection here. It's absolutely ludicrous that acting to save someone else's life (or your own) in a completely legal and careful manner will almost certainly bankrupt any normal citizen just with the cost of legal fees. I do note that the Illinois statute has no prohibition on being sued by bystanders for "emotional trauma" for discharging a firearm and other such lunacies, though. :(

Cypren
02-25-2009, 9:28 AM
The problem is that "generally go away" is probably going to be a lot more expensive than "civil immunity."

Exactly. Usually the problem isn't damages, it's the cost of mounting a defense; plaintiff's counsel is often working on contingency.

Davidwhitewolf
02-25-2009, 9:32 AM
In CA I think if you have a good shoot of a bad guy, the civil matters generally go away if criminal issues go away.

We do have a fairly decent 'castle doctrine' in 198.5.

Another good reason to have good quality homeowner's insurance/umbrella.

True, but if we ever get "shall issue" CCW in CA then 198.5 will need to be expanded because the presumption applies only in defense of the home.

The Illinois language "In no case shall any act involving the use of force justified under this Section give rise to any claim or liability" just gives me the warm & fuzzies. I'd like to see something similar here.

Whiskey_Sauer
02-25-2009, 9:40 AM
Of all places, Illinois seems to have snuck this onto their books: if you're not criminally liable for a self-defense shooting, you can't be held civilly liable either.


I'm not sure I agree with this interpretation of the statute.

Perhaps if you were tried, and actually acquitted, on the grounds of self-defense, then you might have an argument precluding civil liability as the statute is written. However, the jury in a criminal case generally does not make special findings of fact; only decides "guilty" or "not guilty," under the applicable standard. And if the prosecuting agency declines to file charges, or files charges and later dismisses them, I think the door is still open to a civil suit.

I don't think this statute in grants "immunity" the way it's being suggested.

Paladin
02-25-2009, 9:51 AM
The below map from: http://www.nraila.org/Issues/FactSheets/Read.aspx?id=204

It shows IL as not having passed their Model Castle Doctrine law, which has 3 main objective: http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=188

IIRC, CA has objectives 1 and 2, but only in re. to one's residence (not sure re place of business). I agree that CA needs all 3 objectives of the NRA's Model Castle Doctrine law for "Shall Issue" to be truly what we want it to be.

The OP makes it seem like the 3rd objective is the law in IL. Does IL have objectives 1 and 2 in law as well?

http://www.nraila.org/images/cd.jpg

Davidwhitewolf
02-25-2009, 9:51 AM
I don't think you'd have to actually be acquitted first in order for the statute's protections to apply to you. I'm not a litigator, so I could be wrong, but my understanding is that whether or not your use of force was justified, and therefore precluded civil liability, would be an issue of fact to be determined by the civil trial jury. So yes, a frakkin' plaintiff's attorney could still file a suit even if your use of force was clearly justified -- but why would they do so when it's pretty clear they'd lose?

Whiskey_Sauer
02-25-2009, 10:02 AM
I don't think you'd have to actually be acquitted first in order for the statute's protections to apply to you. I'm not a litigator, so I could be wrong, but my understanding is that whether or not your use of force was justified, and therefore precluded civil liability, would be an issue of fact to be determined by the civil trial jury. So yes, a frakkin' plaintiff's attorney could still file a suit even if your use of force was clearly justified -- but why would they do so when it's pretty clear they'd lose?

Well, generally speaking, this is nothing new. "A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force." This is a concept that generally applies in all 50 states, and under the common law. But this defense hinges on whether the use of force is reasonable, and the issue of reasonableness is still an issue that needs to be decided by the trier of fact (a judge or jury.) So yes, if you were unreasonable in your use of force, you would (and should) still be held liable. And no, it is not always clear that they would lose. In other words, there is no "immunity" in the sense that's being suggested.

Davidwhitewolf
02-25-2009, 10:11 AM
The OP makes it seem like the 3rd objective is the law in IL. Does IL have objectives 1 and 2 in law as well?


I don't know. Very interesting if they do not. I've not kept up on Castle Doctrine's progress in Illinois.

Davidwhitewolf
02-25-2009, 10:22 AM
In other words, there is no "immunity" in the sense that's being suggested.

Okay, to be clearer then, what I think this statute does at minimum is make the standard for liability the same in civil and criminal actions. Currently in California one could be justified in use of deadly force but still be found civilly liable for damages. Under the statute, that's no longer possible.

Whiskey_Sauer
02-25-2009, 10:29 AM
Currently in California one could be justified in use of deadly force but still be found civilly liable for damages. Under the statute, that's no longer possible.

No, in California, self-defense is a complete affirmative defense to liability for assault, battery or wrongful death. Calif. Civil Code 50 states "Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest." If a civil jury finds that your use of force was justified, you are not liable for damages. (See also, CACI 1304.)

Cypren
02-25-2009, 10:57 AM
No, in California, self-defense is a complete affirmative defense to liability for assault, battery or wrongful death. Calif. Civil Code 50 states "Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest." If a civil jury finds that your use of force was justified, you are not liable for damages. (See also, CACI 1304.)

Interesting. So defense of property is a legitimate use of lethal force for civil purposes, even though it is not for criminal ones?

Davidwhitewolf
02-25-2009, 10:58 AM
Let me put it another way. A criminal prosecutor could examine your case and not prosecute, because he believed that your use of force was justified. A civil jury, on the other hand, could look at the same situation and conceivably disagree and find you civilly liable. The Illinois statute I think makes it much harder for a plaintiff's attorney to reach that result.

DDT
02-25-2009, 1:08 PM
I think everyone knows that in California currently you can be found not guilty of murder and still be civilly liable. Anyone who doesn't should look up People v. Simpson

Whiskey_Sauer
02-25-2009, 1:25 PM
Interesting. So defense of property is a legitimate use of lethal force for civil purposes, even though it is not for criminal ones?

Not lethal force. The only amount of force justified is that reasonably necessary to protect it. So if some kid is trying to pickpocket your gummy bears, perhaps a slap on the hand would be justified. If someone is breaking into your car, using a choke hold until the police arrive may be justified. But, of course, you couldn't use lethal force in either case.

(Note: these are hypothetical examples only.)