Self Defense and "Willful or Wanton Misconduct"

[Trent]

In Illinois, we have this clause on our statutes. I've been trying to rack my brain on how a normal, law abiding citizen going about their daily business could run afoul of the "wanton or willful misconduct" part of (B), and haven't been able to think of anything. I've done some digging and also can't find any case law where a person was justified in self-defense but lost the subsequent civil suit.

Just trying to figure out how "strong" the indemnity language is in Illinois.

(720 ILCS 5/7 1) (from Ch. 38, par. 7 1)
Sec. 7 1. Use of force in defense of person.

(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he 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 or another, or the commission of a forcible felony.

(b) - In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7 4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.

(Source: P.A. 93 832, eff. 7 28 04.)

EDIT: moved "background" info to the OP for clarification.

The question was brought up tonight in a (somewhat heated) debate with another firearms instructor pushing "Self defense insurance".

I argued that in Illinois if the shoot is justified, civil action is barred. Why bother with "self defense insurance"?

He countered citing the wanton or willful misconduct phrasing. Stating you could be sued anyway in civil court.

To which I replied, under IL case law, if you are found in violation of willful or wanton misconduct, you can't be protected by insurance from punitive damages anyway (95 Ill. App. 3d 1122; 420 N.E.2d 1058; 1981 Ill. App.)

So either way, insurance wouldn't protect you.

Dunno.

Probably a stupid thing to argue about, but now I'm curious to get some other opinions.

 

[browningguy]

Well I'm qualified to answer since I stayed at a Holiday Inn this year.

My guess would be something like you have shot the perp, then when he is down you put a couple more into him just for good measure.

 

[Art Eatman]

Purely guessing: Assume a bad guy has been shot and seriously wounded, is down and is no further danger. Then more shots are fired into him, changing it to "fatal".

Generally in self-defense, the primary intent is supposed to be that of stopping the threat, not killing.

 

[Frank Ettin]

I find it a puzzle. In general, a use of force to be justified self defense must be reasonable. Being reasonable excludes the possibility of acting in a willful or wanton manner.

We may need to see some court decisions to see what a court will do with this.

 

[Trent]

(this post moved to OP for clarification)

 

[Trent]

Frank; I couldn't find ANY case law citing willful or wanton misconduct, in a self defense case, in Illinois. Period. Not one. The *closest* thing I found which would apply was a 7th circuit decision in Commercial Union Ins. v. Ramada Hotel Operating Co. (852 F. 2d 298 - Court of Appeals, 7th Circuit 1988)

Maybe you have better resources available than I do to search?

 

[Trent]

(And, as a very odd anecdote, we can thank President Obama for the part (B) - while in the IL legislature, Obama is the one that sponsored the indemnity part of the self defense laws in IL!)

 

[Frank Ettin]

...I argued that in Illinois if the shoot is justified, civil action is barred. Why bother with "self defense insurance"?...

First, I have to disagree with you here. We've discussed various issues with civil immunity laws in this thread.

The bottom line is that every civil immunity law has various conditions which need to be satisfied for the immunity to attach. Under appropriate circumstances a plaintiff can disagree that one of more conditions had been satisfied, and when that happens you will be sued. Then whether immunity applies will be decided by litigation.

A major benefit of insurance is that it pays costs of defense. If you wind up having to litigate whether immunity applies you could wind up spending between $10,000 and $50,000 even if the resolution is in your favor.

Civil immunity laws can't guarantee that you won't wind up in court.

 

[mljdeckard]

Frank, do you think they were trying to say 'negligence' and they just over-thought the wording?

 

[Frank Ettin]

Frank, do you think they were trying to say 'negligence' and they just over-thought the wording?

I'd find that hard to believe.

Although we tend to disparage the intelligence of legislators, they couldn't have found their way into the legislature in the first place if they were that dumb, and there should be enough lawyers in any legislature to recognize the difference between "negligence" and "willful and wanton." It's not rocket science, nor does one have to be Harvard Law Review to get it. Even graduates of Dandruff School of Law and Cosmetology should manage to get it right almost all the time.

...I couldn't find ANY case law citing willful or wanton misconduct, in a self defense case, in Illinois. Period. ...

Maybe you have better resources available than I do to search?

I doubt that my resources are better. I suspect that there are no Illinois cases on this statute. This kind of thing doesn't come up much.

But the statute is still pretty bizarre.

 

[Trent]

First, I have to disagree with you here. We've discussed various issues with civil immunity laws in this thread.

The bottom line is that every civil immunity law has various conditions which need to be satisfied for the immunity to attach. Under appropriate circumstances a plaintiff can disagree that one of more conditions had been satisfied, and when that happens you will be sued. Then whether immunity applies will be decided by litigation.

A major benefit of insurance is that it pays costs of defense. If you wind up having to litigate whether immunity applies you could wind up spending between $10,000 and $50,000 even if the resolution is in your favor.

Civil immunity laws can't guarantee that you won't wind up in court.

True, a suit can still go to trial if they argue wanton misconduct. But then they have to prove that, right, before the trial proceeds for damages? Assuming there is no wanton or willful misconduct, it goes no further.

The big concern most people would have is those multi-million dollar personal damage awards.

To be fair, many people would have trouble absorbing a $40-100k trial to defend themselves; but that's a lot easier to digest than a $7,000,000 personal damage award in civil court.

 

[Trent]

I doubt that my resources are better. I suspect that there are no Illinois cases on this statute. This kind of thing doesn't come up much.

But the statute is still pretty bizarre.

I've spent about 3 hours of tedious searching, and can't find one civil case in Illinois that awarded damages after finding willful or wanton misconduct after a self-defense incident. (Excepting a law enforcement one in Cook County, where the cop ignored "general orders"; but cops play by different rules, and it wasn't really a self-defense case, just liability on a traffic collision while responding to a call that resulted in a personal injury award.).

To be fair the law is "relatively" new - section was added in 2004. But still, it's been sitting out there a decade. Not finding any case law, should have probably clued me in about how "important" it is.

I dunno. I dislike the idea of insurance, dislike that the IL reps constantly push for mandatory liability insurance for gun owners, etc.

Just doesn't seem worth it.

 

[ChaoSS]

Just a thought here, but what about if you had the right to defend yourself, but you shot to maim, rather than simply to stop the threat. That seems to fit the definition of wanton or willful misconduct.

It also seems to me that I can envision a situation where such a situation couldn't be proven well enough for a conviction, or the DA simply chose not to pursue it, but civil court is another story.


I can also see the possibility of a shot that disables an assailant, and a civil court judge allows the perp to sue you for it, even if it isn't intentional, leave it to the jury to decide whether or not it was intentional.


Seems some insurance might be helpful. The sort that helps you with your legal costs, at the very least.

 

[Frank Ettin]

Just a thought here, but what about if you had the right to defend yourself, but you shot to maim, rather than simply to stop the threat. That seems to fit the definition of wanton or willful misconduct...

How? What is the legal definition of "wanton and willful" under Illinois law? Please cite applicable Illinois statutory or case law.

...It also seems to me that I can envision a situation where such a situation couldn't be proven well enough for a conviction, or the DA simply chose not to pursue it, but civil court is another story...

Yes, the DA could decide not to pursue a criminal charge, and there could still be a civil suit. Justified, intentional use of force in self defense is a also a defense to a civil claim as well as a criminal charge.

The use of force in self defense will be intentional. To be justified, it must be based on a reasonable belief that the use of force was necessary to prevent the otherwise unavoidable death or grave bodily injury to an innocent. I think you'll find, if you do the research on the legal definition of wanton and willful that the reasonableness of the use of force is inconsistent with that use of force also being wanton and willful.

...I can also see the possibility of a shot that disables an assailant, and a civil court judge allows the perp to sue you for it, even if it isn't intentional, leave it to the jury to decide whether or not it was intentional....

If you are claiming self defense you will have necessarily admitted that your use of force was intentional. See the discussion in this post of how a claim of self defense works. While that post discusses raising self defense in answer to a criminal charge, it works essentially the same way in a civil action -- except it's a plaintiff rather than a prosecutor and the plaintiff's burden of proof is a preponderance of the evidence rather than beyond a reasonable doubt.

 

[Trent]

How? What is the legal definition of "wanton and willful" under Illinois law? Please cite applicable Illinois statutory or case law.

Not just that, but wanton or willful misconduct. Wanton or willful conduct (omitting the mis-) has specific jury instructions (which I don't fully understand, admittedly).

http://www.state.il.us/court/CircuitCourt/CivilJuryInstructions/14.00.pdf

And here

http://www.state.il.us/court/CircuitCourt/CivilJuryInstructions/10.00.pdf

I think you'll find, if you do the research on the legal definition of wanton and willful that the reasonableness of the use of force is inconsistent with that use of force also being wanton and willful.

Is there any significant difference between "wanton and willful conduct" or "wanton or willful misconduct"?

Seems some insurance might be helpful. The sort that helps you with your legal costs, at the very least.

Insurance could be helpful to reimburse you for legal expenses in a criminal or civil trial, assuming you win. What a lot of people fail to realize is that self defense insurance is a reimbursement - YOU still have to come up with the retainer (which could be a very large amount), YOU still have to pay the lawyer, the insurance company reimburse for the legal expense after the fact.

As I understand it the Armed Citizen Defense League has a different strategy; it's not really insurance; if they review your case and find you acted within the law, they pay for the retainer (up front).

Personally - and this isn't meant as advice one way or the other - I would feel that spending the money on TRAINING would be more beneficial, long term, than INSURANCE.

Reason I say this is if someone is untrained and doesn't understand the law, lethal force statutes, and basic protective measures you can take (don't speak to police about the incident until an attorney is present, don't render medical aid to someone you just shot unless you are a trained professional, stop shooting if the aggressor surrenders or flees, don't continue shooting after they are incapacitated, don't shoot with friendlies in the background, and so on, and on)... that person is far more likely to end up in a "questionable" shoot which would go to trial.

(Idle statements like "Sucker got what he deserved", "I never liked that guy", or "Wow he broke in to the wrong rec-room!" is not a good thing to say to police who respond.. better to say NOTHING until the lawyer shows up other than - "I'll give a statement after I've spoken with legal counsel")

If your case of self-defense is so clear cut that there's little (if any) doubt that you were justified, and you acted properly, there's a much better chance of the SA/DA not pursuing charges.

Meanwhile, if one has a gun, and a nice 2 million dollar "insurance" policy, and no training, they're going to be walking around "half cocked" all the time... a dangerous scenario for them to be in, legally, if they don't understand the basics of lethal force law.

So my emphasis would be on training, and knowing how to stay safely, and profoundly, on the "good" side of the law.

(I'd bring up one recent case in Florida where the shooter could have acted much differently and saved himself a TON of legal trouble on a questionable shoot, but I won't name names, for fear of derailing the thread.)

 

[Frank Ettin]

...Is there any significant difference between "wanton and willful conduct" or "wanton or willful misconduct"?...

Probably not.

Wanton or willful conduct (omitting the mis-) has specific jury instructions...

Let's look at that:

When I use the expression “willful and wanton conduct” I mean a course of action which [shows actual or deliberate intention to harm] [or which, if not intentional,] [shows an utter indifference to or conscious disregard for (a person's own safety) (and) (the safety of others)].

The options allow the instruction to be tailored to the specific case.

Essentially, as defined in the jury instruction, "willful and wanton" is conduct which shows an actual or deliberate intent to harm or which shows an utter indifference to or conscious disregard for the safety of another.

Now if you use force in self defense, you deliberately intend to harm someone, or at least you want to stop him from what he's doing to possibly hurt you, and you don't care what happens to him as a result.

So the statute you quoted in the OP makes no sense to me.

 

[Trent]

So the statute you quoted in the OP makes no sense to me.

Yeah. Me neither. Which is why I wanted to ask about it.

There's three statutes back to back (defense of person, defense of dwelling, and defense of property), and while all three have different justifications for lethal force escalation, the B part is worded the same in each, so I didn't bother quoting all three.

There is additional parts which could tie in (theoretically) and I'll quote it here:

The header immediately prior to the exhonoration / justified use of force sections is important as it establishes affirmative defense:

(720 ILCS 5/6-4) (from Ch. 38, par. 6-4)
Sec. 6-4. Affirmative Defense. A defense based upon any of the provisions of Article 6 is an affirmative defense except that mental illness is not an affirmative defense, but an alternative plea or finding that may be accepted, under appropriate evidence, when the affirmative defense of insanity is raised or the plea of guilty but mentally ill is made.
(Source: P.A. 82-553.)

(720 ILCS 5/Art. 7 heading)
ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION

(720 ILCS 5/7-1) (from Ch. 38, par. 7-1)
Sec. 7-1. Use of force in defense of person.

(Then the one I quoted in the OP comes in)

and then at the end...

(720 ILCS 5/7-4) (from Ch. 38, par. 7-4)
Sec. 7-4. Use of force by aggressor.
The justification described in the preceding Sections of this Article is not available to a person who:

(a) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(b) Initially provokes the use of force against himself, with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or

(c) Otherwise initially provokes the use of force against himself, unless:

(1) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(2) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(Source: Laws 1961, p. 1983.)

Which means that aggressors are not justified in force in self defense unless the defender escalates from non-lethal to lethal, or breaks off and the original defender then re-escalates.

(A certain Florida case comes to mind again on 7-4(c)(1).)



With aggressors being excluded (except in very rare occasion), I still have trouble formulating any scenarios where someone could be justified in use of force (lethal or otherwise), yet fall afoul of the wanton or willful misconduct.

A shoot is not justified if you continue to use lethal force after the aggressor is stopped, so shooting them "too much" doesn't qualify; that's murder, not justified.

A shoot is not justified if the bad guy surrenders or runs away.

A shoot is not justified if the bad guy isn't using lethal force, so shooting someone over a fist fight (assuming there is not a disparity of force; 250 lb body builder against an 80 year old man, or multiple attackers), is not justified.

I dunno. Each case or scenario I think of where a person would be justified doesn't involve wanton or willful misconduct.

Every case I think of where a person is NOT justified does, but .. they don't get civil immunity anyway because they weren't justified... so..

I'm trying to examine this from the (perhaps flawed) viewpoint that there is SOME context that the last few words would come in to play.

But they seem superfluous and meaningless.

 

[316SS]

...Is there any significant difference between "wanton and willful conduct" or "wanton or willful misconduct"?...

Probably not.

If that's true, I agree with the following:

Now if you use force in self defense, you deliberately intend to harm someone, or at least you want to stop him from what he's doing to possibly hurt you, and you don't care what happens to him as a result.

So the statute you quoted in the OP makes no sense to me.

However, if there is a distinction between conduct versus misconduct, it makes more sense. This is from a standpoint of construction only, I cannot cite any justification other than it stands to reason.

Consider: as Frank states, legally justified self defense is willful (conscious) and wanton (disregarding the potential harm to the object of lethal force) conduct (behavior, no negative connotations). However, willful and wanton misconduct is bad conduct, i.e. conduct that is known to be wrongful. Legally justified self defense might be willful and wanton, but it is not wrongful, and is therefore immune from civil liability. Or not.

 

[Trent]

Wait.. maybe I thought of one.

CHASING an assailant where lethal force was originally justified or damaging them with an act that is somewhat other than justified use of force.

If you give pursuit after shooting someone, or run them over with a car (twice? lol) while trying to escape, or something similarly oddball .. the original shoot (defense) could be justified, but the overall act could involve wanton or willful misconduct above and beyond the act of self defense.

 

[Trent]

Another comes to mind.

The guy who shot those kids that broke in to his house, in his basement, then stored them for a day or so before calling the cops.

Shoot might have been justified under the law, but keeping the bodies cooling in the basement and calling in law enforcement a day or three later.. wanton or willful misconduct.

Shooting someone in self defense and leaving them laying in an alley to bleed to death without calling or reporting.

Stuff like that.

Make sense?

 

[ChaoSS]

How? What is the legal definition of "wanton and willful" under Illinois law? Please cite applicable Illinois statutory or case law.

My definition would be based off of common usage/dictionary definition. I don't know if Illinois law law defines it, if it does, this question would be answered, I would think.

I was just offering up an idea, though, one that makes as much sense to me as any other offered up here, though I certainly am not claiming to be right.

If you are claiming self defense you will have necessarily admitted that your use of force was intentional. See the discussion in this post of how a claim of self defense works. While that post discusses raising self defense in answer to a criminal charge, it works essentially the same way in a civil action -- except it's a plaintiff rather than a prosecutor and the plaintiff's burden of proof is a preponderance of the evidence rather than beyond a reasonable doubt.

When I said intentional I meant whether the result was intentional, not whether the use of force was intentional. If I shoot someone who is attacking me, I might end up killing him, I might end up maiming of paralyzing him. That, however, would be unintentional. My intent would be to stop the threat. This, as opposed to the high speed operator who can manage to shoot both of the guy's kneecaps out after shooting the gun out of his hand.


And what you said about "preponderance of evidence" vs "beyond a reasonable doubt" is what I was getting at. As far as a criminal case goes, there may be no proof beyond a reasonable doubt that you willfully maimed the person, but there may be a "preponderance of evidence" to suggest the same, so you are not protected from a civil suit.

Just an idea, though, I rarely can figure out what goes through the minds of the majority of legislators.

 

[Frank Ettin]

My definition would be based off of common usage/dictionary definition. I don't know if Illinois law law defines it, if it does, this question would be answered, I would think...

Which really is of no help. "Willful and wanton", the words used in the statute and under discussion here, is a common phrase in law and has a particular meaning. As pointed out by Trent in post 15, it has been specifically defined in Illinois law. However, that definition doesn't really clear things up.

 

[RetiredUSNChief]

"...unless the use of force involves willful or wanton misconduct."

It seems to me that this is a kind of "catch all" phrase appended to the statute which allows the state to determine whether or not the body of the statute is applicable for a given case. But it seems to be somewhat redundant because the wording of the statute itself presupposes that the use of force was, indeed, justified in the first place. Hence the wording immediately preceeding this portion which says "...against the person or estate of the person using such justified force..."

It is possible that deadly force to defend oneself might be justified on the face of an encounter, yet when investigated more closely it could be determined that the situation requiring the use of such force was the direct result of deliberate instigation by the defender. I suppose this might fall under some kind of "willful or wanton misconduct".

And, since my writing isn't always clear, let me restate the scenario:

Guy 1 gets involved in an argument, deliberately verbally baiting his opponent to the point where he starts poking/shoving the guy. Eventually fists start swinging and now Guy 1 decides he's getting the short end of the stick in the fight and pulls his gun to "defend himself" against the guy swinging at him.

He defended himself against his attacker...but he was at fault for instigating the conflict in the first place.

I haven't looked at Illinois statutes on this, but I'm pretty sure SC law has something somewhere about this...that a person using deadly force who deliberately put themselves in a situation where it was required like this can still be held accountable.

I suspect, however, that the choice of wording is due more to politician-speak then to actual legal-speak.

 

[gc70]

The "willful or wanton misconduct" phrase certainly seems strange.

One thing the phrase probably does not address is shooting an assailant again after the threat or attack has been stopped. The authorization for force contained in self-defense statutes no longer applies once a threat or attack has been stopped. Subsequently causing injury to a former attacker would be a separate act that would fall outside self-defense.

The only way the Illinois statute would seem to make sense would be for the act of self-defense to be carried out in a willfully or wantonly inappropriate way. For example, it would probably not be wise to say "I shot the attacker in the kneecap so he would be crippled for the rest of his life."

 

[RetiredUSNChief]

Heh!

It would probably not be wise to attempt to justify HOW one shot an attacker under any circumstances and to restrict the WHY to exactly the dictates of the circumstances within the law. And to speak thusly only to one's own attorney beyond the initial report.