The Justifiable Use of Force and the Duty to Retreat

With the Kyle Rittenhouse trial now entering its waning hours, much and more has been written about the justifiable use of force in self-defense situations. In the Rittenhouse case, the prosecution is failing to overcome the statutes that make exceptions for the lethal use of force in certain situations.

The prosecution had hoped to introduce evidence that Rittenhouse had gone to the riot in order to “defend property,” but was rebuffed from introducing that evidence. Further, the prosecution was unable to uncover any social media evidence that indicated that Rittenhouse went there for the purpose of doing armed combat with “commies.” That would have been the smoking gun (no pun intended) they needed to pursue a strong prosecution against Rittenhouse. Unfortunately, they never uncovered that smoking gun. And while we can all question why Rittenhouse was allowed to enter a war zone with a gun and the type of parenting failures that had to go into that decision, the jury will not be able to take that into account.

That means that the prosecution is stuck arguing that Rittenhouse did not act in self-defense once he got to Kenosha. Since the one guy was going after his gun and the other guy tried to hit him with a skateboard, the prosecution will likely not overcome their burden of proof.

Self-Defense Laws Differ by State

Some states have explicit “duty to retreat” requirements when an individual is presented with an immediate threat. Note that self-defense cannot be used in cases where the threat is not immediate. You can’t off someone before they off you, for example, unless they have a gun to your head. Other states explicitly rebuke “duty to retreat” requirements with “stand your ground” statutes. These statutes make it harder for the prosecution to charge someone with a crime when there is a credible threat. How hard it is to try such a crime differs by state. Florida has the most aggressive stand your ground laws in the country requiring prosecutors to “prove” that the defendant did not have a credible threat against their life or person. The burden on the prosecution is so high, that these cases often never make it to trial. 

These considerations are important because in a typical murder trial in which a defendant raises a self-defense defense, the burden of proof actually shifts to the defendant to prove that it is more likely than not that they had a credible threat to their life that authorized them to discharge the weapon. A case like that would be easier to bring to trial, and easier to prove.

Somewhere in between “duty to retreat” states that require those in imminent danger to retreat prior to using lethal force, and “stand your ground” states, are states that have neither statute at all. That would include a state like Illinois. Illinois Law places no burden on an individual to retreat during an attack nor does it authorize an individual to act with lethal force if they feel threatened. However, case law in these suits has favored those who used lethal force when there was an immediate threat to their home, life, or the lives of others. So, a prosecutor would not be able to enter evidence that the individual had the ability to retreat and chose not to. But nor does the prosecution have the burden of proving what the defendant felt or believed at the time of the shooting.

Talk to a Chicago Criminal Defense Attorney

Self-defense trials are often complicated by what the jury believes the defendant believed at the time of the shooting. A good criminal defense attorney will know when a self-defense argument is the strongest case you can make against the charges. Call Chicago criminal defense attorney David Freidberg today at  (312) 560-7100 and we can begin preparing your defense immediately. 

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