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“Stand your ground” and concealed carry

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Illinois

* The Tribune has a very good story about Illinois’ century-old history of “stand your ground” court precedents. The article is also about how those precendents could prompt changes to the new concealed carry. The consensus is that nobody really knows yet what’s going to happen. Anyway, have a look…

Under Florida’s self-defense law, a person who is attacked “where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force.” That includes “deadly force” if the person “reasonably” believes it is necessary to prevent death or great bodily harm to himself or another, or to prevent an imminent felony crime from being committed.

Illinois’ self-defense statute is more generic, saying that a person who is attacked is justified in using deadly force “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.” Similar language is used to allow self-defense in protecting a home or personal property. […]

A person unlawfully assaulted while somewhere they have a right to be who is put in real or reasonably apparent danger of losing his or her life or suffering severe harm “may stand his ground and repel force with force, even to the taking of the life of his assailant,” Justice Carroll Boggs wrote. […]

Case law has defined four elements to self-defense in Illinois: that unlawful force was threatened, that the person being threatened was not the initial aggressor, that the danger of harm is imminent and that the use of force was necessary.

All four of those conditions must be met for a self-defense strategy to succeed…

In self-defense murder cases, for example, a jury can convict someone of second-degree murder, accepting that the person believed deadly force was justified but finding that the circumstances surrounding the killing showed the action was unreasonable.

Discuss.

posted by Rich Miller
Thursday, Aug 22, 13 @ 10:30 am

Comments

I believe that second element, “that the person being threatened was not the initial aggressor” is extremely important, especially in light of what happened in Florida. This is probably something that should be looked at in other states.

Comment by Ahoy! Thursday, Aug 22, 13 @ 10:42 am
I agree with Ahoy! that the Part excluding an Aggressor from Claiming Self Defense is a great addition. I wonder if there are any stats as to how often a Jury has decided to use the 2nd Degree murder because they determined the actions were unreasonable. Curious how often a Jury is second guessing a heated moment.

Question to anyone who knows. Does a Prosecutor have to charge if there is a “valid” self Defense claim? I guess what i am saying is can the prosecutor choose not to bring charges in the 1st place. I ask because that would seem to mean that only the questionable claims are ever tried.

Comment by Mason born Thursday, Aug 22, 13 @ 10:58 am
So, I tell a young punk to “get the f*^@# off my car” and he tries to assualt me with a weapon and I kill him first, who is the initial aggressor?

Comment by Anon2 Thursday, Aug 22, 13 @ 11:04 am
Anon2 - I just love the idea of folks like you carrying guns around. Sheesh.

Comment by Small Town Liberal Thursday, Aug 22, 13 @ 11:09 am
–In self-defense murder cases, for example, a jury can convict someone of second-degree murder, accepting that the person believed deadly force was justified but finding that the circumstances surrounding the killing showed the action was unreasonable.–

This happens all the time. Juries are usually pretty good at determining when a response to force is “unreasonable.”

Comment by Lobo Y Olla Thursday, Aug 22, 13 @ 11:09 am
__I guess what i am saying is can the prosecutor choose not to bring charges in the 1st place__

Prosecutorial discretion is absolute.

Comment by Lobo Y Olla Thursday, Aug 22, 13 @ 11:10 am
Lobo

Thanks i was curious whether there was some sort of requirement for fatalities not caused by natural causes.

Comment by Mason born Thursday, Aug 22, 13 @ 11:13 am
-requirement for fatalities not caused by natural causes._

All of those types of deaths are automatically given a post-mortem.

Comment by Lobo Y Olla Thursday, Aug 22, 13 @ 11:14 am
I agree with AHOY that “that the person being threatened was not the initial aggressor” is essential for any sensible self-defense statute. Now if only some of the other states employed that element in their self-defense statutes that would go a long way to keep those IQ challenged Zimmerman types at bay OR at least be able to properly deal with them after they do something stupid.

Comment by Anonymous Thursday, Aug 22, 13 @ 11:15 am
STL

Just curious is it Anon2’s choice of language that bothers you or him telling someone to get off his car?

To me except for the language being a bit rude asking someone to get off you car seems a legitimate request.

Comment by Mason born Thursday, Aug 22, 13 @ 11:15 am
Thanks again Lobo

I knew the Post Mortem was required practically anytime someone passes not in the presence of medical attention. I didn’t know what kind of LE investigation was required appreciate it.

Comment by Mason born Thursday, Aug 22, 13 @ 11:18 am
I am as big 2nd Amendment proponent as anyone, but deadly force should only be used by civilians if it is necessary to protect yourself or another person.

Talk to a police officer or a veteran who took the life of another human under “legal” circumstances and ask them how they feel. Taking of a human life is something that should never be done for a piece of property.

I don’t want to get carjacked, but if the dude needs the car that bad, he needs it worse then me, and I am not going to live the rest of my life knowing I took someone else’s life for something that silly.

CCW should be like a good military. I have a way to defend myself, so lets just leave each other alone. Not shoot first and try to justify it later.

Comment by the Patriot Thursday, Aug 22, 13 @ 11:19 am
STL and Mason - My point is “initial aggressor” language can be a sticky wicket. In the real world, people can be rude in their manner. Does that mean they lose the right to claim self-defense. Who was the initial aggressor should be a factor to be considered in the overall defense, but not an automatic disqualifier of the claim of self defense. Things can escalate in all sorts of ways. “Initial Aggressor” is too vague a concept to be used to bar the defense.

Comment by Anon2 Thursday, Aug 22, 13 @ 11:23 am
==CCW should be like a good military. I have a way to defend myself, so lets just leave each other alone. Not shoot first and try to justify it later. ==

Wise words.

==asking someone to get off you car seems a legitimate request==

Blowing their head off because they won’t doesn’t seem appropriate though.

Comment by Demoralized Thursday, Aug 22, 13 @ 11:25 am
==was the initial aggressor should be a factor to be considered in the overall defense, but not an automatic disqualifier of the claim of self defense. ==

Why not? If you are the one that started something you’ve created the situation. Sure it might escalate but it would never have escalated if you had not started the incident in the first place. You shouldn’t be able to initiate an incident and then say you are justified in killing somebody later when it gets out of hand.

Comment by Demoralized Thursday, Aug 22, 13 @ 11:26 am
Demoralized - If you cut me off with your car and I honk at you and flip you the bird and the argument escalates - who was the initial aggressor? Or in your words “”who started something” or “created the situation”?

Comment by Anon2 Thursday, Aug 22, 13 @ 11:37 am
“Taking of a human life is something that should never be done for a piece of property.”

I agree - but. That sounds all well and fine until the person stealing your property realizes you can identify them and send them to prison.

You may have only a split second to determine that your life may now be in danger. With CCW, criminals might want to reconsider the ramifications of stealing your property; the crime does not always stop with the stealing.

Comment by Jechislo Thursday, Aug 22, 13 @ 11:40 am
===Blowing their head off because they won’t doesn’t seem appropriate though.===

Agreed. But if they refuse, and then threaten you with bodily injury besides? That is what Anon2 postulated.

At that point it moves from defense of property to defense of life, and the other guy is the aggressor.

Comment by Ken_in_Aurora Thursday, Aug 22, 13 @ 11:41 am
Demo

If you look at the scenario proposed he wasn’t saying blow their head off because they didn’t get off your car. The question was if you rudely tell someone to get off your car and then that person attempts to assault you then you shoot them. My question was why STL thought the question was unreasonable. If you shoot someone for sitting on your car you need to go to Prison for a very long time since a needle is not an option.

However the “Initial Aggressor” could have some wrinkles. If we bump into each other on the street and argue which one of us is the aggressor if there is an escalation?

Comment by Mason born Thursday, Aug 22, 13 @ 11:42 am
Good point, Anon2. What would be considered to be the proximate cause? The verbal aggression or the responding physical aggression?

I physical aggression in the face of purely verbal aggression would be considered to be an inappropriate escalation of force, but I ain’t a lawyer and I didn’t sleep at Holiday Inn last night. I’m just looking at it through the lens of an underwriter.

Comment by Ken_in_Aurora Thursday, Aug 22, 13 @ 11:44 am
Patriot

–I don’t want to get carjacked, but if the dude needs the car that bad, he needs it worse then me, and I am not going to live the rest of my life knowing I took someone else’s life for something that silly. –

The problem with your comment i see is you don’t know if all that person wants is the car. Witness what happened in Oklahoma. If the car Jacker points a gun at you then they are threatening your life. If you defend yourself you are protecting you life not your car. Now if the guy is stealing your car in front of your house i completely agree let him take it and call the police.

Comment by Mason born Thursday, Aug 22, 13 @ 11:46 am
@Anon2:

If you have road rage to the degree that you are going to start something over it then you shouldn’t be able to own a gun in the first place. I think that’s a poor example of what you are trying to say.

@Ken:

I think we are getting way too deep into what if’s. In any event, I still think it’s more than appropriate to say that if you are the aggressor then you can’t claim self defense. If I were on a jury and were using my ability to reason I would likely say that the person jumping around on your car was probably the initial “aggressor” but I’m also assuming with this crazy car example that something else must have gone horribly wrong to escalate into killing somebody and that would likely impact my decision as a juror. I guess I just need a better scenario because in this one I’m not convinced there is justification.

Comment by Demoralized Thursday, Aug 22, 13 @ 11:49 am
I guess I should put my thoughts this way. I’m assuming people aren’t going to go around killing people willy nilly. I’m not in the least bit concerned that is an issue simply because of CC. But I also believe that there better be darn good justification if somebody ends up dead. That’s all I’m getting at.

Comment by Demoralized Thursday, Aug 22, 13 @ 11:52 am
===I think we are getting way too deep into what if’s.===

I agree. Move along.

Comment by Rich Miller Thursday, Aug 22, 13 @ 11:58 am
Demo- I never attempted to identify who engaged in the road rage, you seem to have come to a conclusion. Therein lies my point. At some point someone may take things too far but that is not necessarily the person who “started something” or “initiated the situation”. I would trust a jury to determine when the line was crossed and not just focus on who started it. Your stated ability to reason as a juror is the point I was making all along against the “and not the initial aggressor” standard. Thank you for seeing it my way.

Comment by Anon2 Thursday, Aug 22, 13 @ 12:22 pm
Demo

I agree with you as to common sense on the part of the jury. I would hope that in most cases a Legit Self-Defense case doesn’t go to a jury and is dealt with by the prosecutor not pressing charges.

Comment by Mason born Thursday, Aug 22, 13 @ 12:43 pm
@Anon2:

I still disagree with you. I think it’s entirely reasonable that if you started it you deal with the consequences without being able to claim self defense. But I’ll move along as Rich has instructed.

Comment by Demoralized Thursday, Aug 22, 13 @ 1:10 pm
One of the major themes in CCW and personal defense classes is the consequences of shooting someone. It isn’t casual blog-banter, but a thorough explanation of the legal and monetary results of any shooting, no matter how justified. Lawyers are expensive and civil trials will follow no matter the verdict in a criminal proceeding.

Walk away if you can. If you can’t, expect your life to be changed, for the worse, forever.

Comment by Weltschmerz Thursday, Aug 22, 13 @ 1:53 pm
A good firearm training class will include an in-depth discussion of the judicious use of deadly force… including when deadly force is justified against a so-called “unarmed” attacker.

It’s quite an understatement to say it’s not something you can do justice to in a few paragraphs.

It is something you must know well if you don’t want to find yourself getting prosecuted following a deadly force incident.

“Act to the standard by which you will be judged,” we tell our students.

If *you* would like to get information on a class to learn the judicious use of deadly force, shoot me an email.

John

Comment by John Boch Thursday, Aug 22, 13 @ 1:59 pm
The concept of Stand your ground is that you do not have to retreat, that is different than defending your life, or the life of another.

These are often split second decisions and if you believe in that second, the trigger is the only option, then it is to protect yourself.

The concept of Stand your ground is that I don’t have to back off, even given the chance. I see the concept of stopping crime, and not letting the criminal win, but in the end, IF you have the option not to take a life, take that option and let the police and insurance companies do their jobs.

Always a good idea to leave a copy of the Bible in the back seat, if a guy takes the car, maybe he gets something he can actually use.

Comment by the Patriot Thursday, Aug 22, 13 @ 2:34 pm
Lots of good advice here on this question. Reasonable people need to realize if/when they use their legal firearm in their defense they will be judged by police, States Attorneys, Judges/Juries if prosecuted. Therefore, it would be very wise to know the laws, your circumstance before pulling the trigger.
One other thought, ‘road rage’ is almost always over a traffic law infraction of one kind or another.(misdemeanors) That fact will be used by those judging your actions should you ‘pop a cap’.

Comment by Rufus D Doofus Thursday, Aug 22, 13 @ 2:43 pm
===I think we are getting way too deep into what if’s.===

–I agree. Move along.–

Was just thinking the conversation was getting pretty silly. It’s amazing how some people are incapable of having an intelligent conversation about an issue without bring up weird hypothetical scenario’s that are not really part of the discussion.

Back to what I thought the discussion was supposed to be, is Illinois’s should self-defense be a little more defined, such as Illinois’s four criteria or should it be more loose and undefined like Florida? or should other states adopt more defined criteria? Let’s get back to the discussion.

Comment by Ahoy! Thursday, Aug 22, 13 @ 2:43 pm
–The concept of Stand your ground is that you do not have to retreat, that is different than defending your life, or the life of another.–

I think you are making a Distinction without a Difference. Looking at the definition in the article Rich has posted I’m not sure i see the difference. If a criminal has a gun, knife, or Baseball Bat and he is attempting to rob a liquor store he is threatening death or great bodily harm. Unless you have special glasses that tell you when the perp will simply take the cash and leave then it would seem to meet the following. Excluding the very valid exclusion of the Aggressor.

–that unlawful force was threatened, that the person being threatened was not the initial aggressor, that the danger of harm is imminent and that the use of force was necessary.–

Comment by Mason born Thursday, Aug 22, 13 @ 2:54 pm
As for whether IL should change the law it seems to me the answer is to place into a Bill the 4 items spelled out by the case law above. As for other states that is for their citizens to work out.

To be honest i am glad that article was written as it seems IL has very reasonable precedents if not in a law then in practice.

Comment by Mason born Thursday, Aug 22, 13 @ 2:58 pm
Does it really matter which language, IL or FL, is used? As I understand it, it is still the option of the local DA to decide to pursue a case if they do not believe the self defense claim.

Not attempting to re-try the Zimmerman case but just want point out a couple of things. I’m going on memory here but I believe in the case of FL and Zimmerman specifically, the local State’s Attorney initially took a pass on any prosecution, based on what that they believed to be justified self defense under FL law. It was only after what, for lack of a less inflamatory term, politics intervened and a Special Prosecutor was appointed that a case was pursued.

So if politics can override the local DA, what real difference does more specific language have? Either way, you’re most likely going to be up a creek without a paddle and your life changed forever.

I hope I’m never involved in a self defense shooting, but if I am I will remember a good friend and retired LE officer’s advice: “In that situation, the police are not your friends. Say you were in fear for your life, ask to call your lawyer, and shut up.”

Comment by RNUG Thursday, Aug 22, 13 @ 3:36 pm
Rnug

Probably the best advice written.–“In that situation, the police are not your friends. Say you were in fear for your life, ask to call your lawyer, and shut up.” –

Comment by Mason born Thursday, Aug 22, 13 @ 3:39 pm
You know, a the butt end of pistol makes a pretty effective weapon. And far less often, someone dies.

Comment by Skeptic Thursday, Aug 22, 13 @ 3:56 pm
@RNUG-That’s darn good advice, no matter how strong your self defense facts are.

Comment by Rufus D Doofus Thursday, Aug 22, 13 @ 3:59 pm
@Skeptic

Assuming the person your trying to hit is facing you that is also a real good way to get shot with your own weapon. The last thing you want to do is place YOUR Firearm where your assailant can take it from you.

Comment by Mason born Thursday, Aug 22, 13 @ 4:22 pm
We don’t need to create a what if situation, we just had the Zimmerman case. It was clearly established that asking or questioning another person does not constitute being an aggressor or even verbally threatening another person. But physically assaulting that questioner because you believe you are being profiled does constitute a threat.

As I have posted before in Brown v. United States 256 U.S. 335 (1921), the United States Supreme Court held that if a person is attacked, and that person reasonably believes that he/she is in immediate danger of death or grievous bodily injury, he/she has no duty to retreat and may stand his/her ground and, if he kills his attacker, he/she has not exceeded the bounds of lawful self-defense. So regardless of state stand your ground laws or case law in Illinois, the concept exists as a legal standard on the federal level. Gun control advocates are trying to demonize what is in Florida law and the that is that law and others are consistent with a long standing decision of the US Supreme Court.

Comment by Rod Thursday, Aug 22, 13 @ 5:34 pm
Instead of guns, Why not isuse tasers to everybody who’s trained for them -the phobia would be reduced,the good guys could accept tasering as an alternative to shooting somebody and peace is restored

Comment by leonard Thursday, Aug 22, 13 @ 9:08 pm
*** You know, a the butt end of pistol makes a pretty effective weapon. And far less often, someone dies. ***

*** Assuming the person your trying to hit is facing you that is also a real good way to get shot with your own weapon. The last thing you want to do is place YOUR Firearm where your assailant can take it from you. ***

Not only that, but you could mar the finish on a perfectly good revolver…

Comment by Anonymous Friday, Aug 23, 13 @ 8:57 am
If you have any questions regarding the CWP class or training contact www.e2c.us or 1-866-371-6111 and the Instructors at Equip 2 Conceal will be happy to help you.

Comment by jack Friday, Aug 23, 13 @ 9:30 am
To Rod, I am a firm believer in the 2nd Amendment and the rest of the Constitution and I believe in the right of self defense. Law enforcement officers are trained in how to approach suspects and use methods to avoid escalating tensions and emotions.
In the Zimmerman case, he was not a trained law enforcement officer. When his neighborhood had the initial neighborhood watch meeting the police officer who was the NW Coordinator explained, among other things that when observing someone who looks suspicious, do so at a distance and do not let them know you are watching them. Minutes before he killed Martin, Zimmerman called 911 and when he told the dispatcher that he was following Martin, the dispatcher told him to stay where he was and that police would handle it from there. There is a reason that police on two occasions told Zimmerman not to approach a suspicious individual. When an untrained civilian approaches someone on the street asking questions, there is always a chance that emotions will escalate to the point that a physical confrontation ensues.
George Zimmerman was not standing his ground, he was following Martin and initiated contact with him, despite the fact that law enforcement, on at least 2 occasions had instructed him not to do so. The end result was that Zimmerman, an adult, killed a minor who was doing nothing wrong that night, merely walking home. According to the jury, given the instructions they were given by the judge, they couldn’t find Zimmerman guilty.
Again, I believe in the right of the law abiding to own firearms, and individuals with proper training, carrying a concealed handgun. What I don’t want is Illinois having laws similar to Florida in which a negligent individual, who by refusing to follow simple instruction from law enforcement on not one but on two occasions, results in an innocent individual losing his life, is ruled to be not responsible in any way for this young man losing his life.

Comment by Anonymous Friday, Aug 23, 13 @ 9:49 am
=Not only that, but you could mar the finish on a perfectly good revolver… =

You know, being flippant about stuff like this, is going to raise eyebrows from those on both sides of the issue.

Comment by Anonymous Friday, Aug 23, 13 @ 10:14 am
In my crim law class (no I never had a case like this), a former Oregon prosecutor told us finding the appropriate aggression threshold was all about proportional force. If an exchange was started verbally, then escalates to lethal, it is entirely irrelevant (in criminal law) who started the verbal exchange, or even if, as some have alleged in the Zimmerman case, the contact was initiated negligently. It doesn’t matter. What matters is who was the first person to take the threat level to “lethal,” or “severe bodily harm.” That person is the aggressor with respect to disqualifying a self-defense claim.

For example, Zimmerman (Z) may (or may not) have engaged Trayvon Martin ™ unnecessarily. But Z merely looking for TM was entirely non-lethal, though admittedly TM may have legitimately wondered what Z’s intentions were. But no weapon had been brandished, there was no imminent appearance of force, and so no disqualifying aggression by Z.

To the contrary, the first evidence we have of potentially lethal aggression comes from TM, who, as I understand it, first evades and then pounces on Z with a blow to the face. So it is TM that opens up the first tangible possibility of real physical harm (to Z). But only a possibility. A fist fight is a gray area. Maybe it’s lethal and maybe it’s just roughhousing.

However, if Z had at that moment pulled his weapon and shot TM, there would have been much less ambiguity. The prosecution argument would have been that Z was the one who escalated the exchange from a mere fist fight to an intentional killing, and that would probably have eliminated Z’s self-defense claim.

As it was, Z did *not* immediately use his weapon, even after a serious physical assault had occurred. It was only at the point where he feared losing consciousness by having his head repeatedly beat against the sidewalk that he managed to deploy his gun. Under this rule of escalation, it is much easier to see TM as the initiator of lethal force, meaning Z could not be disqualified to use self-defense on that basis.

One more thing. Stand Your Ground is inapplicable where there is no reasonably safe escape route. Most of the political hoohaa about SYG is misguided, because an actual, fully qualified SYG scenario is fairly rare. Think about it. You are on a public sidewalk, and suddenly from the back alley you are approached by three individuals. One is brandishing a bottle of Jack Daniels, one is brandishing a stiletto, and one is brandishing an AR 15. The bottle may or may not be a threat. The knife is a threat but you could escape it if you are far enough away and have a safe place to go. But how do you outrun the AR 15? There would be, under that scenario, no safe exit, therefore no application of SYG.

Comment by Springfield Reformer Friday, Aug 23, 13 @ 11:17 am