Question about a local ordinance in my town

[Sam1911]

I know we've discussed it over and over, so it shouldn't be hard to find. Do an Advanced Search and see if there isn't a post or two where Kleanbore has cited specific cases involving that law.

Even in TX, that had better be one amazingly valuable/irreplaceable piece of property, not only to end someone elses' life over, but to risk your freedom (not to mention court costs and all the other negative aspects of being a subject of a criminal case) on your ability to sustain that particular affirmative defense.

And, like I said, outside of Texas ... "we don't care how they do it in Texas!"

 

[mgkdrgn]

The others have counseled you well that your necessity of acting to preserve your life offers a justification for why you broke that law -- just as it offers a potential justification for why you shot/assaulted/maybe killed another human being (which, as you're probably aware, is also against the law).


That's a tricky concept that many folks who DO live in "castle doctrine" states don't often understand. Trespassing is not a crime that gives you carte blanche to assault or kill someone in any place. The necessity of your actions in preserving your life, the life of a loved one, (or a few other very serious felonies) is still the standard by which those actions may be excused under the law. The mere presence of someone on your property -- and often even in your home -- is not enough to justify shooting and/or killing them.

"Castle Doctrine" and "stand-your-ground" laws often offer certain presumptions in favor of the defender which lower the burden of proof of necessity, but they don't eliminate it.

If you don't have a reasonable belief that you MUST act with violence, immediately, or you or a loved one will be killed or grievously injured, then such action is not justifiable.

Neither being "scared" nor finding someone where they should not be are adequate reasons to act violently against them.

Sounds like you have the right idea.

You are right .... "Treaspassing" is not ...

.... "Breaking and Entering", while you are at home, IS. Even if doors are unlocked ... OPENING a closed door or window to enter a dwelling is breaking and entering.

In South Carolina, someone "Breaking and entering" your home, while you are there, is presumed to be there to do you grievous bodily harm. The legal occupant of the home is under no obligation, of any kind, to prove the intruders intent. As long as they are in the home they are considered to be a threat.

In addition, the occupant is protected from any and all civil suits that the intruder, or their family/heirs might bring as a result of their actions under the castle doctrine.

Does that mean you can summarily execute intruders? No. Once they are no longer a threat (shot and down, surrendered, ran out of the house, yadda yadda yadda) they are no longer valid targets.

 

[langenc]

That is why I pass right thru and dont stop for ANY reason-no gas, food, restroom and sure as hexx no lodging.

I successfully passed thru IL 2x last spring-once east to west and then on the way back from west to east.

 

[Sam1911]

Mgkdrgn,

Actually, South Carolina's law (HERE) uses the term "unlawfully and forcefully/forcibly," not "breaking and entering."

SECTION 16-11-440. Presumption of reasonable fear of imminent peril when using deadly force against another unlawfully entering residence, occupied vehicle or place of business.

(A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:

(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and

(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.

So opening an unlocked door and walking in probably actually DOESN'T qualify at all. There's no force involved, so you're going to need to prove the usual aspects of necessity.

If someone IS breaking or HAS broken down your door and entered your dwelling, then the Castle Doctrine may be invoked as part of your affirmative defense.

If someone walks in through an unlocked door (or crawls in through an unlocked window) and your defense will have to proceed without the assistance of the Castle Doctrine presumptions.

 

[mgkdrgn]

Mgkdrgn,

Actually, South Carolina's law (HERE) uses the term "unlawfully and forcefully/forcibly," not "breaking and entering."



So opening an unlocked door and walking in probably actually DOESN'T qualify at all. There's no force involved, so you're going to need to prove the usual aspects of necessity.

If someone IS breaking or HAS broken down your door and entered your dwelling, then the Castle Doctrine may be invoked as part of your affirmative defense.

If someone walks in through an unlocked door (or crawls in through an unlocked window) and your defense will have to proceed without the assistance of the Castle Doctrine presumptions.

Actually we went over this at length in my CCW class (taught by a SC constable and a former SLED officer/FBI Agent). If you have to physically move -anything- to enter the dwelling, you have forcibly entered. Door or window does not have to be locked ... not even completely closed. There was a barrier to your free entry, and you applied a force to remove that barrier. There is no requirement for it to be any particular amount of force. No need for them to kick the door in.

 

[Sam1911]

Interesting. Did he cite a SC law definition of forcible entry? Or did this come from case law precident?

 

[MEHavey]

"Breaking" (as in breaking & entering) occurs when the intruder moves anything (however slight) that impedes his entry.
"Breaking" by definition fullfills the specification of "forcible" in this context.


.

 

[mgkdrgn]

"Breaking" (as in breaking & entering) occurs when the intruder moves anything (however slight) that impedes his entry. "Breaking" by definition fullfills the specification of "forcible" in this context.

What he said.

You are "breaking the seal" that bars you from the dwelling. By definition, you must apply a force of some sort to do that, hence forced entry, as the intruder is not authorized to be there.

 

[fehhkk]

Some guy from Texas didn't know that IL doesn't honor anyone's CCW, got stopped by cops on DUI suspicion, and thrown in the slammer. Oh, and his gun got confiscated as well...

 

[Art Eatman]

Re the OP's question: Why not call the mayor's office and ask? At the very least you get the satisfaction of confusing the whatzit out of the city council as they try to figure it out.

But the mayor is supposed to know this stuff. (Or the city attorney.)

 

[fehhkk]

I thought the worst person to ask a question like this are the cops...

 

[Loosedhorse]

Does this mean, in a home invasion scenario, firing to an invader, would result in this person getting arrested?

Yes, you could be arrested. Around here, depend on it--but of course IL is probably a lot more gun friendly!

You will of course have an opportunity to get bail, etc....in the fullness of time! And eventually you may see any charges dropped, or you may be acquitted at trial. But (around here) it is unlikely that an officer will look at a dead body, your freshly smoking gun, and say, "Good job! I'll just get the body out of the way as quick as I can, and then I'll let you get back to what you were doing."

Besides arrest and questioning, deciding what to do with you is likely "above his pay grade," no offense meant. Self-defense is a justification at trial, not a "you can't arrest me" card. But the good news is that the arresting charge is unlikely to be improper discharge of a firearm; more likely an aggravated assault or manslaughter charge...with leave to upgrade later!

 

[JTHunter]

With respect to Illinois gun laws, more often than not, it is the local prosecutor that makes the final determination. In some counties, they tend to be a bit "zealous".
Also, certain "Unlawful Use of a Weapon" laws have exemptions to them. The problem is that the defendent is required to prove they are eligible to USE the exemptions before they can use them!
I don't know the exact ordinace numbers anymore since they changed from the old "chapter" system and went to this ILCS "decimal" system, but I have lived through it.