Tuesday, May 28, 2013

A Warrior's Guide to Self-Defense Law: 1 - Defending yourself from lethal force

Self-defense law can be a daunting block of text, but it is also the only thing that will separate your actions between "justified personal protection" and "manslaughter". In this post, I offer a comprehensive overview of Illinois self-defense laws as they pertain to a variety of scenarios, all from the perspective of a lifelong Chicagoan and semi-experienced martial artist.

Introduction: "Justifiable use of force" and martial arts 
Chapter 1: Defending yourself from death or great bodily harm
Chapter 2: Defending another from death or great bodily harm
Chapter 3: Defending yourself from nonlethal, unlawful use of force
Chapter 4: Defending another from nonlethal, unlawful use of force

All sections include both a "Simple Summary" of the relevant laws, a detailed discussion, and some illustrative examples. Note that these examples are NOT exhaustive and NOT prescriptive. There are always exceptions and complications to every situation presented. I give them as a good starting point to get you thinking, not as legal advice. Finally, as an all-important disclaimer, I am not a lawyer. This post does not constitute legal advice. For the final word on legal issues, talk to a police officer or a lawyer in your city.

~INTRODUCTION ~
Martial art classes often emphasize physical conditioning, technique, and stress drilling before all else. This is especially true of self-defense classes, in which we recognize the importance of repetition and high-stress simulations. Although all of these components are critical in any self-defense scenario, we often neglect an aspect that is arguably more important: The law. Most state and municipal laws have statutes that govern the use of force in defense of yourself, another, and/or your property. Illinois, a state with a history of street violence, is no exception. If you are a martial artist in Illinois or Chicago, or ever envision yourself defending against an attacker in this state, then you NEED to know those laws.

Unfortunately, most people have neither the resources, time, nor inclination to seek out formal legal counsel to work through the nuances of self-defense law. That is a dangerous decision, given that these statutes are the only protection you have in the eyes of the court between justified self-defense and a protracted stay behind bars (not to mention civil suits, bad press, and disruption of personal life). Sometimes a single word in a statute is all that separates personal protection from manslaughter, and most people are not going to visit an attorney to learn those details.

That puts a murky responsibility on martial art instructors like myself. We teachers must strike a balance between both a) introducing our students to self-defense statutes, and b) helping them understand that we are neither cops nor lawyers. In that spirit, I give the same disclaimer now that I gave earlier in this article and in a previous post on knife-carrying: I am not a lawyer. This post does not constitute legal advice. For the final word on legal issues, talk to a police officer or a lawyer in your city.

Although I do not belong to the Illinois Bar, I still know a few things about Illinois self-defense laws that every Illinois and Chicago martial artist needs to know. In this post, I give an overview of the relevant statutes, their meaning, and their implications for self-defense. It is not formal legal advice, but it does give us a good place to start in thinking about the complexities of legal self-defense in Chicago.

~"JUSTIFIABLE USE OF FORCE" LAW~
The brunt of Illinois  self-defense-related laws can be found in Article 7 of its Criminal Code. Article 7 itself is entitled "JUSTIFIABLE USE OF FORCE; EXONERATION", a familiar term to anyone that has even the remotest interest in self-defense. In short, the sections within Article 7 lay out the conditions under which use of force is legally "justified". If you stick within those qualifications, you will not be prosecuted, jailed, sued, or otherwise run afoul of the legal system.

The first section of Article 7 is undoubtedly the most relevant to most martial artists. It outlines the conditions under which you can use physical force to defend yourself against an attack. Although the statute has a low word count, it hides a number of important details and nuances that need to be highlighted. It also encompasses a few different martial scenarios that should be separated out. In the interest of clarity, I am reproducing the whole section here before going on to discuss individual parts.
  • Section 7-1: Use of force in defense of a 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.
    (b) 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. 
In many respects, this section reads like some of David Hume's writings (and those of other great philosophers): It is easy to read through while nodding your head, not fully realizing what you are agreeing to. This says nothing about the greatness or philosophical aptitude of the writers of the Illinois Criminal Code, but everything about the complexities of this section. To honor the delicacy of these issues, I will work through the terminology slowly and methodically as it pertains to four general scenarios.

~CHAPTER 1: DEFENDING YOURSELF FROM DEATH OR GREAT BODILY HARM~

SIMPLE SUMMARY
If someone puts you in immediate and imminent fear of death or serious bodily harm, and there are no other ways to avoid or escape, then you may use force that is likely to kill or severely injure your attacker IF such force is necessary to protect yourself. Once you are safe, you must stop using such force.

In the most fundamental self-defense scenario, an attacker puts you in fear of your life. Whether they have a weapon, have you in an extremely vulnerable and dangerous position, or have communicated their deadly intent, you find yourself in grave bodily jeopardy. In such cases, you might be legally allowed to employ deadly force to save yourself and stop your assailant. 

Everyone has probably heard the term "deadly force", and has some vague conception of its legal meaning. Unfortunately, those terms "vague conception" and "legal meaning" should never be in the same sentence as one another, so is important to convert vagueness into clarity. Moreover, that term "deadly force" doesn't actually show up in the Illinois statutes, so we need to know exactly what we are talking about. Turning to Section 7-1, it is clear that the whole section governs the use of force in defense against "unlawful force". But there is a clear distinction between force that is just unlawful, and force that is both unlawful and deadly. For now, I will focus on the latter.
  • Section 7-1: Use of force in defense of a person
    a) ...
    ...
    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.
This is the most important statute governing use of deadly, or highly damaging, force. Breaking it down, a few critical terms need to be defined.
  1. "reasonably believes"
    Here is a good legal test for reasonable belief: Consider your own situation through the eyes of a disinterested third party. If the average Chicagoan (e.g. the sort of person on a jury of your peers) was in your exact same situation, would they too believe that they were in grave danger? More importantly, if they had the same skillset and experience as you, would they still believe that they were in harm's way?
    If you are a 6'4" male weighing in at 250 pounds of benchpressed muscle, and you are getting punched by a 5'4" female at half your weight, are you really in danger? Probably not. But if you switch those physical dimensions and gender, now the defender might be in serious peril.
  2. "necessary to prevent"
    The American legal system places a high premium on human life (thankfully). Taking a life, or jeopardizing one, must be a last resort. This phrase "necessary to prevent" underscores the last resort mentality. You can only use deadly force if it is the last available option to you. If you have other options, then you must exercise them first. If you do not, your use of force was not "necessary".
    For example, if you are on the sidewalk and a man starts lurching towards you from 25 feet away with a knife, it is not "necessary" to engage your attacker with your killer commando neck breaker to prevent harm. You can instead use the oldest defense in human history: Running. You can also shout for help. Or call 911. Or enter a building. In this case, deadly force is not necessary because it is not a last resort.
    On the other hand, if you are pinned to the floor and your attacker draws a knife, you are now out of options. Anything short of deadly force might not be enough to save you from death, so such use of force would likely be "necessary".
    As another critical note, once the danger and harm have been "prevented", it is no longer "necessary" to continue applying force. If you break the arm of an attacker with a handgun before taking the weapon, you need to back up and stop fighting. You can't stomp his head into the pavement. You can't break his other arm for good measure. And you definitely can't shoot him just "to be on the safe side". You MUST STOP once the threat has been prevented.
    A final and important point: "necessary" force also suggests "the minimum necessary" force. You can only use as much force as is needed to protect yourself and not a single punch more. In the case of the robber with a gun, once you disarm the attacker he will probably give up, run away, lie on the ground, etc. You have already applied the minimum amount of force and so must stop. But what if he charges you? Depending on the circumstances, pulling the trigger might now become the minimum necessary force to save yourself.
  3. "imminent"
    The threat of harm must also be immediate in the present moment. That is to say, if you fail to act right away, you will instantly be harmed or killed. This sense of urgency is a critical prerequisite to self-defense because the legal system differentiates between idiots who spout stupid threats, and those with actual deadly intent. If you are at the bar with your friends and a guy says he is going to come and get you tomorrow night, you can't leap across the counter and preemptively neutralize him in the next 5 seconds.
  4. preventing "great bodily harm"
    A student once asked me if she could use deadly force against a potential rapist who might not be likely to kill her (for example, a family member, a drunk boyfriend, a fellow student, etc.). Such an attacker could certainly kill, but from a statistical standpoint, it is less likely. Sexual assault might not always be lethal, but it is the perfect example of "great bodily harm". It is a vicious, devastating, disgusting, damaging, and indiscriminately violent act, and that is why Section 7-1 gives you license to use deadly force if it will prevent the crime.
    Other examples include brain damage from being strangled (or the ensuing damage an attacker could cause once you blackout), trauma from hitting one's head on a wall/the sidewalk, getting shot or stabbed anywhere, and a variety of other grisly scenarios. Size, strength, experience, gender, context, and a host of factors are all at play here. Smaller defenders will have a greater fear of bodily harm against larger attackers. Similarly, larger defenders will "reasonably" be in less fear of serious harm from a smaller attacker. If you fear such bodily harm, you are allowed to use high levels of force to prevent it.
  5. "intended or likely to cause"
    This is a term that I am defining out of order (it appears in the first sentence before the other three terms above). Why? Now that we have laid out some of the rules under which deadly force can be used, it helps to know what deadly force actually is. Force that is "intended" to cause death is pretty obvious. If you shot or stabbed your attacker, this is quite clearly intended to kill. If you fire your Ancient Black Lotus Style Heartstopper Punch, that is also clearly intended to kill. The term that is much less clear is the "likely to cause" qualification.
    We will use a lot of techniques that are "likely to cause" death or bodily harm without realize their danger. Any chokehold from wrestling, jujitsu, judo, aikido, etc. can cause brain damage and death even if they are part of "safe" grappling arts. Any throw or sweep or takedown can slam an attacker's head into the ground, cracking a skull, causing internal bleeding, damaging the spine, or bruising the brain.
    This term summons martial artists to closely examine their techniques. Those techniques that are "likely to cause" death or serious bodily harm are only justified in a case where you yourself fear death or serious bodily harm. 
The final term that merits discussion is this phrase "forcible felony". Unlike the above terms, this one actually has a legal definition within the Criminal Code itself. That definition is reproduced below. 
  • Sec. 2-8. "Forcible felony".
    "Forcible felony" means 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.
If you are ever the victim of any of those crimes, it appears that you may be justified in using lethal force. In some cases, you would likely not need a lawyer to tell you how to act (i.e. kidnapping, sexual assault, attempted murder, etc.). But others are a lot more hazy. Robbery, for example, rarely ends with any injury to the intended victim. Even armed robbers very rarely shoot their target, at least from a statistical standpoint. But under Illinois law, Armed Robbery is considered a violent crime that can result in serious injury or death to the victim. So if you are the victim of robbery, you would need to determine the extent of your danger and act accordingly. It's a judgement call (hence, "reasonably believe"), but it is also some tricky legal territory.

As a general rule, if one of those felonies is being committed and you are ALSO in great personal danger, you are more than justified in using a higher level of force, so long as that force is necessary to protect yourself. Again, that brings us back to kidnapping, sexual assault, attempted murder, and others. But if you are not in such bodily danger, then you must downgrade your use of force appropriately. Burglary and robbery are often in this latter category.

As should be clear now, the law places severe restrictions on when you can use lethal and crippling force to defend yourself. Of course, attacks themselves are often messy and chaotic, and do not always neatly fit the legal definitions above. To err on the safe side, always only use the minimum amount of force necessary to stop the attack. In some cases, this will be lethal force. In many others, however, it will not be.

Defending yourself from death or great bodily harm: Simple Summary
  • If someone puts you in immediate and imminent fear of death or serious bodily harm, and there are no other ways to avoid or escape, then you may use force that is likely to kill or severely injure your attacker IF such force is necessary to protect yourself. Once you are safe, you must stop using such force.
Techniques that are "likely to cause" death or severe injury
  • Chokeholds, e.g. rear naked, guillotine, triangle, etc.
    (Cuts off oxygen to brain, causing death or lasting brain damage)
  • Throws, e.g. reaps, shoulder throws, hip throws, etc.
    (Untrained opponent can fall on head causing death, brain damage, hemorrhaging, etc. Fall can damage spine causing paralysis and nerve damage)
  • Joint locks, e.g. arm bar, kimura, knee bar, etc.
    (Potential for permanent damage to bones, tendons, and ligaments around affected joint)
  • Stomps, knees, elbows, or kicks to the head of a downed opponent
    (Impact into hard surfaces can cause serious head and/or spinal trauma)
  • Slamming opponent's head into the ground or a wall
    (See above)
  • Stabbing or slashing an attacker anywhere, whether with your own knife or one you disarmed. 
  • Shooting an attacker anywhere, whether you intended to kill or just "shoot him in the leg"
Scenarios in which use of deadly force MIGHT be justified
  • You are being sexually assaulted.
  • A knife-wielding attacker is actively swinging/stabbing at you. 
  • An attacker tries to draw gun.
  • An attacker reaches into his jacket and says "you are dead" or something similar.
  • You are being choked on the ground and can't wriggle out.
  • A group takes you to the ground and kicks/stomps at your head. 
  • An attacker lifts you and tries to put you in a car or drag you to an alley.
  • An attacker, or attackers, says they are going to kill you, "fuck you up bad", or any other threat that would reasonably cause you to fear for your life. 
  • An armed robber demands your money. (This one is tricky) 
 Scenarios in which use of deadly force is PROBABLY NOT justified
  • A fraternity party brawl. (Walk away)
  • A drunk friend places you in a headlock. (Wrestle out, talk him down)
  • An attacker reaches into his jacket but you cannot see a weapon and he has not said he has a weapon. (Jam the draw, restrain opponent)
  • Three young men point at you menacingly from across the street and walk towards you (RUN!).
  • An angry patron accuses you of cutting the line and slaps you. (Tell security)
  • A smaller, in height and/or weight, attacker tries to tackle and punch you. (Use your less-lethal unarmed defenses)
  • An armed robber demands your money (Again, this one is tricky).  
These examples are certainly not exhaustive, and all of them probably have some exceptions. But insofar as they can used as general guidelines, they are valuable for us martial artists.

Join me next time for part 2 where I talk about defending another person from lethal force. 

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