Yes. Absolutely, 100%, definitely without a shadow of a doubt. Hitting someone on the hand as he attempts to open the gate and leave your property is not terminating an attack on your dwelling. There is no way in hell that is what happened. It’s doing the exact opposite. Using force to stop someone leaving your property is prolonging it not terminating it
Cut and dried that you are wrong. Nothing stops a dangerous criminal from turning around and staying on the property. I suggest if you are in danger don’t be concerned about your shoes being untied.
Just up here you comment,
The feeling I get is that if the homeowner is able to incapacitate the invader, when the police show up he can say “here, have a burglar” rather than “there was a burglar.”
I like the way that the second cop doesn’t dissuade the homeowner from continuing in pursuit out in the street but merely follows along with him.
I think we can drop the “cut and dried” but when everyone disagree with it. Seems like a case of being too online, imo.
My point was to imagine being the resident, not knowing what you know having watched the whole video (and read the article), and in fact, imagine further possibilities than exactly what happened here. So, you chase the burglar out of the house and you stop at the threshold. The burglar runs around the corner of your home. Has he terminated the “attack” or is he climbing in the back window right now? Let’s say he did try to climb the fence and failed, but you don’t know that. When he comes back around to the front of the house, do you just stand there to wait and see if he’s giving up and leaving or continuing to try to get in?
I think you may be reading the law overly literally. I don’t know Illinois law, so I don’t know the details of how that law is construed. But my guess is that it doesn’t work the way you think it does.
I think that in most jurisdictions in the US, you can probably use non deadly force to drive a burglar all the way off of your curtilage, not just out of your house.
And before you bring up hitting the hand that’s trying to open the gate, I also think you have an unrealistic view of how a real-life fight works. Particularly for a civilian. I don’t think you necessarily have to parse an intruder’s movements that finely. Nor do you have to assume the best about their intentions. Is he opening the gate to run out, or to use the gate as a barrier? As his hand is moving in your general direction, do you have to wait to see whether it’s going towards you or the gate?
These are essentially rhetorical questions, because I think that your answers probably don’t line up with the reasonable person standard that applies.
Sure there is. He hasn’t left yet. Or he might come back. Using force both increases the chance he’s actually leaving and reduces the chance he’ll come back.
Prosecutorial Discretion. During my time on a Grand Jury, it was clear to me that the Sol Wachtler quote about indicting a ham sandwich is fairly accurate. I have little doubt that an interested prosecutor could spin this incident to show a GJ that the homeowner broke the letter of the law in attacking a “victim” who was running away from him.
So beyond the self-defense question, does a victim have a legal right to attempt capture and restraint of their assailant using non lethal force?
That sounds like a citizen’s arrest, which is legal in Illinois, though there are probably limitations on the capture-and-restraint part:
A private citizen may make an arrest under certain circumstances. The law permits a citizen to detain or place under arrest another person when that citizen has probable cause to believe that a criminal offense other than an ordinance violation is being committed. The law does not permit, however, a citizen to detain or arrest another person based on the mere suspicion that a crime is being committed; the citizen must have personal, firsthand knowledge of the commission of the offense. All the person making the arrest has to do is prevent the accused from leaving the area. For example, a person executing a citizen’s arrest may take the accused by the arm and say something like, “Stop. I’m holding you for the police.”
Based on my experience serving on a grand jury (in another state, so different laws, but even so) i believe a prosecutor could charge him with assault with a deadly weapon. That being said, i think it’s unlikely. Even if he did break Illinois law, he did so in the heat of the moment, after being threatened in his own home. I expect most juries would be sympathetic.
That was my thought to. Though that doesn’t mention using force only “restraining”, which implies some level of force is allowed but not necessarily hitting someone with a frying pan
Which might have been a defense if he’d hit him while he ran around the corner of the house towards the window, but he didn’t he hit him as he opened the gate to leave. So there is no way that he can claim it was preventing or terminating an attack on thier dwelling.
Not necessarily not either?
Given that few criminals attempting to flee from the crime will be restrained by holding their arm and a statement of “Stop. I’m holding you for the police.” then some reasonable force is clearly allowed commensurate with preventing the criminal from leaving the area. Hitting the head with a frying pan would be hard to argue as that reasonable force level, but on a hand attempting to leave the scene? I’d think that well within a not dangerous weapon use of force in service of restraining the criminal from escape while awaiting the police.
There are certain intricacies that are difficult to explain using my thumbs on my phone. Basically there are interlocking statutes that are usually charged together. There are separate weapons charges that are used in conjunction with the assault statutes. That is the case in most maybe all states. In my states there are two basic weapons charges. One is for possession of a prohibited weapon (like a machine gun or some other listed weapon). One is for possessing a weapon for unlawful purposes. That’s for anything that isn’t prohibited but you use it illegally. Could be a knife, a frying pan or a pointed stick.
“That” law is only one law and I’m sure it’s not the only law that would have to be taken into account. There are also decades of precedent and interpretations of that law and others that we don’t have easy access to.
It’s pretty frequent that we have discussions that pertain to a particular law somewhere. We then make assumptions and argue over the plain text statute we find online. In the real world I worked with our criminal code for 25 years. For a good percentage of that I would be the one typing up the criminal complaints. I can’t tell you how many times I would have to call the on call prosecutor to help interpret the law regarding the specific circumstances of the case. Often I got a, “I’ll have to get back to you” when there wasn’t an easy answer. This incident is one that I would have to make a call. It’s interesting to have these discussions but it’s important to understand we can’t know all aspects of the law unless one of us has experience as an Illinois prosecutor. Even then they are often specialized within their office.
Fully agree with @Loach here. Charge inquiries start with looking at the statute; except for the most common cases, it rarely ends there.
It’s also quite difficult to find the precedents and practices that cover the nuanced situations not clearly stated in the law. Local prosecutors, judges, and defense lawyers would have experience with these situations to say how much and what kind of force can be used in a case like this and what kind of intent the victim would need to prove he was not just defending himself.
There are also going to be matters like intent and whether a person has a reasonable fear of harm are going to be up to a jury to decide. Prosecutors may decline to prosecute not simply because they don’t think a jury will convict, but because they only have the possibility that a crime was committed and no direct evidence of the all the necessary elements of the crime. It would be seen differently in the example we are looking at if the homeowner had made statements that he wasn’t afraid of the intruder but just angry and he just wanted to kill him.
One of ours had the nickname “crocodile” – always pronounced crock-a-DEE-lay.