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Crime & Law Enforcement Issues & Death Penalty/If someone breaks into your house are you within your legal right to shoot them or even kill them?

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Expert: - 5/2/2007


Question
Me and my cousin have a legal debate and we can't come to a conclusion. In the state of Illinois, if someone breaks into your house, are you within your legal rights to shoot them. My cousin says that you can't, but I think they can if they break into your house. I always thought that you can shoot them in your house, but the moment they leave your property, you can't because then it would be manslaughter or murder. If you felt that ether you or your family member was in danger, then you should have the right to use deadly force as a form of self defense. I also have another question. I asked this question on yahoo answers and I got a mix of responses. One person said if you or someone else is in danger, but if they run downstairs to retreat that you can't do nothing, What about if they broke in and were stealing stuff in your house. I would like a full clear cut answer to this question. If I am correct can you show me a link that would prove that I am right, so that I can show my cousin. Thank you in advance.

Answer
Russell,

I am not familiar with the Illinois criminal statutes, however as a broad generalization know that no one enjoys the legal defense to use firearms to counter trespassing on their property.  In other words you cannot shoot to kill just because someone entered onto your property or even into your house.  

With that said, you are correct that you can invoke what is known as an affirmative defense to your actions to shoot if you are threatened by an intruder.  The affirmative defense would be "self-defense" or "protection of others."  If you truly feel that the intruder was going to injure or kill you or other family members then most likely your actions can be justified.  

Understand that in Illinois you may be required to retreat and stand down with your lethal actions if the intruder starts to leave your property and is no longer a threat.  You may also be required to retreat from your own home in the face of a threat if you have access to doors and ways of egress to safely leave in the threat of danger before using lethal force.  

In other words again, you can't always simply shoot to kill because someone is on your property or even in your house stealing things.  Why you ask? Well the prevailing theories are that the intruders may not be armed or intend any harm to you or your family and may actually have a reason to be there.  For example they might be invoking what is known as "necessity" to enter your property because they needed shelter, etc.  Even though that necessity is used to counter or be a defense to the civil tort or trespass to property, it can be used as a defense against statutory criminal trespass as well.  What is my point?  Things are not always what they appear to be at first glance.   

Back to your question then. If the intruder then leaves your house after entering (from your hypothetical) you cannot shoot them as they are retreating (see above) if they are no longer presenting a threat to you or others.

Now with all that said I am going to throw mud into the clear waters of my explanation and tell you that some lawmakers in several states are passing what are collectively known as the "Castle Doctrine" laws.

These laws are constructed to reflect a homeowners right to defend themselves with deadly force upon mere proof of entry into their residence or house and exclude the duty to retreat from hostile threats.  This doctrine actually harkens back to Old English Common Law.

To answer your question fully you need to do some searching locally to find out what your criminal statutes state about the use of firearms and what self-defense protections civilians enjoy in the face of crime.  My advice would be to start at your county or regional law library.   

Sorry, I can't provide you with a hotlink to one source to prove your side of the debate in one fell swoop.  I think to answer your question directly and with the clarity you need consider telephoning your local district attorney's office.  They are used to fielding questions like this and would probably be happy to advise their constituents how to act beforehand or before an incident rather than having to prosecute them at a later time.  Just food for thought.

I hope this helps.  Have a great day!  

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Licensed Private Detective with expansive clientele base encompassing hundreds of cases. Donates resources and time to the Children's Rescue Network in Orlando, FL. Adjunct professor of Criminal Justice, Political Science, & Paralegal Studies teaching on the courses of: "Criminal Law;" "Constitutional Law;" "Bankruptcy Law for Paralegals;" "Real Estate Law for Paralegals;" "Psychological Profiling;" "Introduction to the Criminal Justice System," White Collar Crime;" "Crime Prevention;" "Risk Management;" "International Policing;" "Eight Skills of the Effective Criminal Justice Student;" "Deviance and Violence;" Criminal Justice Bachelor's Degree Capstone;" among others. Decorated retired 15 year veteran police sergeant, twice promoted through the civil service commission. Served in the capacities of patrol officer, training officer, SWAT officer, first line patrol supervisor and administrative supervisor. Graduate of several criminal investigation schools and currently a licensed private detective. Holding over 50 certifications related to police training and instructing in disciplines such as "defensive tactics," "firearms," and "professional development." 12 year veteran of the United States Army. Rank of Staff-Sergeant (E-6). Held positions of Platoon Sergeant, Asst. Platoon Sergeant, Squad Leader, Fire Team Leader, Supply Sergeant, and Liaison NCO at staff officer level. Military Occupational Specialty (MOS) 11BPF7, Airborne Infantry NCO Soldier & Pathfinder. Cross trained into the field of supply (76Y) and administration (71L). Completed PLDC, BNCOC, ANCOC, and Chemical Branch Officer Basic leadership courses. Current subject matter expert and CBRN (Chemical, Biological, Radiological, & Nuclear) Commissioned Chemical Branch Officer serving in the U.S. Army.

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Published Full length novel, “Ports And Happy Havens,” Co-authored with L.A. Broskey, Copyright. ISBN: 1-4208-1261-0. Full length novel, “The Awful Grace Of God,” Co-authored with L.A. Broskey, Copyright (publishing in progress). Review & Discussion of the case of: Burley v. Pennsylvania Department of Public Welfare. Published in the PA Administrative Law Journal. Spring 2003. Review & Discussion of the case of: LTV Steel Company, Inc. v. Workers' Compensation Appeal Board. Published in the PA Administrative Law Journal. Spring 2003. Review & Discussion of the case of: Rydzewski v. Workers’ Compensation Appeal Board. Published in the PA Administrative Law Journal. Summer 2002. “Handcuffing Techniques Manual For Loss Prevention Officers.” 2002. Copyright. “Model Emergency Response Team Policy and Member’s Manual.” 1999. Copyright. “Women’s Fundamental Self-Defense Manual.” 1998. Copyright.

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