No Duty to Retreat in Illinois

Under Illinois Pattern Jury Instruction 24-25.09X, a person who has not initially provoked the use of force against themselves has no duty to attempt to escape the danger before using force against the aggressor. The instruction does not limit this rule to encounters inside the home or exclude encounters in a public place.^[1]

Statutory Silence on Retreat

The self-defense statutes at 720 ILCS 5/7-1 (defense of person) and 720 ILCS 5/7-2 (defense of dwelling) do not include any language requiring a person to retreat before using force.^[2] Section 7-1 authorizes force when and to the extent a person reasonably believes it necessary to defend against another's imminent use of unlawful force. Section 7-2 authorizes force when and to the extent a person reasonably believes it necessary to prevent or terminate another's unlawful entry into or attack upon a dwelling. The statutory text does not condition the right to use force on having first attempted to retreat or having no available avenue of retreat. The no-duty-to-escape rule for a person who has not initially provoked the force appears in Illinois Pattern Jury Instruction 24-25.09X.

Case Law Foundation

The committee note to Illinois Pattern Jury Instruction 24-25.09X cites Illinois appellate decisions for the rule. The instruction states that a person who has not initially provoked the use of force against themselves has no duty to attempt to escape the danger before using force against the aggressor. For a person who has not initially provoked the force, the instruction imposes no duty to attempt to escape the danger.^[1]

The instruction and committee note state the following rules.

• A defendant who has not initially provoked the force has no duty to attempt to escape the danger before using force against the aggressor
• The no-duty-to-escape instruction applies to a person who has not initially provoked the use of force against themselves
• The committee note directs that instruction 24-25.06, 24-25.07 or 24-25.08 be given with the no-duty-to-escape instruction

Inside the Home: Castle Doctrine

Within the home, Section 7-2 authorizes force to prevent or terminate unlawful entry into or an attack upon a dwelling. A person who has not initially provoked the use of force against themselves has no duty to attempt to escape the danger before using force against the aggressor, but may use force in defense of a dwelling only when and to the extent reasonably believed necessary to prevent or terminate unlawful entry or an attack on the dwelling. Deadly force requires the additional statutory conditions.^[3]

Outside the Home: No Retreat Required

Instruction 24-25.09X does not limit its no-duty-to-escape rule to the home. A person who is lawfully present on a public street, in a parking lot, at a place of business, or in another location where they have a right to be has no duty to attempt to escape the danger before using force against the aggressor if they have not initially provoked the use of force against themselves. The instruction states the initial-provocation condition without restricting the rule to a dwelling.^[1]

Distinction from Formal "Stand Your Ground" States

Illinois differs from formal Stand Your Ground states in several respects. States with explicit Stand Your Ground statutes, such as Florida and Texas, state in statute that a person who meets their conditions has no duty to retreat. Florida adds that the person may stand his or her ground. Some of these states provide a statutory presumption of reasonable fear of imminent peril of death or great bodily harm in specified circumstances involving a home intruder, subject to statutory exceptions, or grant civil immunity from lawsuits arising from justified use of force.^[4]

Illinois does provide one of these protections by statute. Under 720 ILCS 5/7-1(b), 7-2(b), and 7-3(b), a person who is justified in using force is immune from civil liability in an action brought by the aggressor against whom the force was used, unless the force involves willful or wanton misconduct. Section 7-2 does not create a statutory presumption of reasonableness for home defense shootings. The immunity in Sections 7-1(b), 7-2(b) and 7-3(b) covers claims brought by or on behalf of an aggressor, or the aggressor's estate, spouse or other family member, unless the use of force involves willful or wanton misconduct. Claims by injured third parties who are not among those listed fall outside that immunity.

Practical Effect

Under instruction 24-25.09X, a person who has not initially provoked the use of force against themselves has no duty to attempt to escape the danger before using force against the aggressor. Section 7-1 requires a reasonable belief that force is necessary to defend against imminent unlawful force, while instruction 24-25.09X states the no-duty-to-escape rule for a person who has not initially provoked the force. For a person who has not initially provoked the use of force, the jury instruction states that there is no duty to attempt to escape the danger before using force against the aggressor.^[2]