Monday, April 5, 2010

Self Defense

I recently took a case for a young man that was arrested for carrying a pistol. His cousin was shot and killed. Thinking he might be next, he armed himself.

I started wondering what would happen if he ever had to use that gun in self-defense. Not that I would carry a gun, but if I did it would be for protection. And naturally a gun carried for protection will likely be used for protection, if at all. If someone shoots and me while I am armed, I am shooting back. If not, why carry the gun in the first place?

What if while in the act of protecting myself against someone shooting at me, I fire and kill the aggressor? In Illinois this could get really ugly. I mean really ugly.

Lets assume this happened on a street corner or maybe in a car. Even though the killing happened in self-defense, I am not sure the State's attorney's office or the police are going to give this one a pass. No way. Murder charges will be brought. I am sure of it.

Most likely it will be characterized as gang violence, so who cares? Neither party should have had a gun in the first place. One is already dead and now the other one should go to prison. I understand this mentality.

The logical extension of this is that at least in the city of Chicago, one can only act in self-defense with lawful items and at a time when it's lawful to carry it. Shotguns are legal. Walking around the street with one is not legal. Carrying a loaded one inside the passenger compartment of a car is also not legal.

The choices are pretty narrow. If someone pulls a drive by on me and I can't shoot a firearm at them...well I guess that leaves a bow and arrow. Is this right? This is a fact that feeds the argument that since the criminals are armed anyway, law abiding citizens should be allowed to arm as well, like in Texas. This is giving me a headache.

However, just being charged with murder doesn't mean a conviction will follow. After all, the defendant will get his day in court.

Self-defense is tricky. The defendant is going to likely have to testify. The jury needs to hear from the defendant why he believed using deadly force was necessary. And pretty much anything that goes to the defendant's state of mind at the time is relevant.

If the judge feels enough evidence was offered, a self-defense jury instruction is given. Jury instructions aid the jury during deliberations. In Illinois we use pattern instructions, or ones that are already written. They can be altered, however.

There are common instructions that are used in every case, such as: the State has the burden of proof, opening and closing statements are not evidence (yeah, right), etc. Then each charge has a specific instruction.

For instance, possession with intent to deliver a controlled substance has a 2 part instruction. Part 1, did the defendant possess the drugs, and Part 2, did he intend to deliver (sell) it.

In order to find the defendant guilty of that charge, the jury would have to unanimously decide the State proved both parts beyond a reasonable doubt. Easy. Of course, we have other instructions that define words like possession or knowingly for example. Even a simple case can use over 10 jury instructions.

Here is the text of the Illinois Pattern Instruction on Self-Defense:

24-25.06 Use Of Force In Defense Of A Person

A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend [ (himself) (another) ]against the imminent use of unlawful force.

[However, 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) (another) ]) (the commission of ________ )].]
Now you should understand why self-defense is tricky. The instruction is wordy, right? The word that really sticks out in this instruction is reasonable. What is reasonable? I have no idea.

Is shooting someone coming at you with a wet noodle reasonable? Probably not. But how about a baseball bat? A pipe? A broken whiskey bottle? A-ha. It's case by case and that one word, reasonable, is argued heavily in criminal court rooms. The jury decides what's reasonable.

There is also defense of property, and this usually has more teeth. I don't have statistics, but I suspect it's much easier to be relieved of criminal liability while using deadly force in defense of your home compared to defense of your person. Well, if you're using a shotgun or rifle at least.

Perhaps it's naturally implied that if you're defending your home, you're defending yourself, and perhaps others, as a matter of consequence.

Defense of another is also used at times. I don't think I have ever read a case that used this is a defense. But in principle it's pretty simple. Defendant uses force to stop the aggressor from robbing/killing/stabbing/punching/[insert violent act here]. I have a matter going to trial in May where I am using this as a defense. It's not a good case.  

As a juror this has to be confusing. On the one hand the State will argue the defendant shouldn't have had the gun. Possessing the weapon was illegal. Discharging the weapon was even more illegal.

Now the defense attorney has to remind the jury that the self-defense analysis does not hinge on whether or not the weapon used was legal. It doesn't. No where in that instruction is reference to such an idea mentioned. But that issue isn't going to be completely skipped.

In addition to the first degree murder charge, the defendant will also likely face several weapons charges. Therefore, even if the jury finds the use of deadly force in self-defense was justified, the defendant could still go to prison for having or using the pistol.

Now my headache is worse.


No comments:

Post a Comment

Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.