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By now we have all either read about or seen the photos and/or video of Mark and Patricia McCloskey, the couple from St. Louis, pointing their weapons at the protesters who were trespassing on their property. Before I discuss the legalities of their actions, I would like to address the difficult times we are now living in. We must agree that what is happening in our world today is not typical. The combination of COVID-19, racial tensions with the police, high unemployment, and a presidential election around the corner (all of which have many ramifications on us all), has caused stress for everyone to say the least. However, during these troubling times, the laws in Illinois pertaining to self-defense and defense of property have not changed.

What if This Happened in Illinois…?

If what happened in St. Louis to the McCloskeys took place in Illinois, Mrs. McCloskey would have probably been arrested and charged with Aggravated Assault. In Illinois, the crime of Aggravated Assault is codified and can be found at 720 ILCS 5/12-2:

“Aggravated Assault… (c) Offense based on use of firearm, device, or motor vehicle. A person commits aggravated assault when, in committing an assault, he or she does any of the following: (1) Uses a deadly weapon…”

The statute goes on to define a deadly weapon, but for today’s purpose, we can all concede that a rifle or handgun fits the definition. An assault is defined in Illinois as follows:

“A person commits an assault when, without lawful authority, he or she knowingly engages in conduct which places another in reasonable apprehension of receiving a battery.” 720 ILCS 5/12-1.

Pointing a weapon in the direction of another would constitute an aggravated assault in Illinois; a Class A misdemeanor, punishable by up to a year in county jail.

Illinois Crimes The McCloskeys Could Have Faced…

I would be remiss if I did not briefly discuss other crimes that the McCloskeys could have potentially faced under Illinois law. If the McCloskeys did not have a valid FOID and Conceal Carry License (“CCL”), they could be charged with Aggravated Unlawful Use of Weapon under 720 ILCS 24-1.6, which is a felony in Illinois. Illinois law allows you to carry on your own land or abode, so the McCloskeys could lawfully carry their weapons and not be in violation of 720ILCS 24-1.6. Mrs. McCloskey exhibiting her handgun where it can be seen in a threatening manner, even though she was on her own property, violates the Conceal Carry Act 430 ILCS 66/5. The Aggravated Unlawful Use of a Weapon charge is a misnomer and does not require the actual use or discharge of the weapon, carrying is sufficient. Depending on where this happened in Illinois, primarily in the northern, more populated areas, the McCloskeys could also be charged with Disorderly Conduct under 720 ILCS 5/26-1, which is often used as a catchall when an officer is not sure what to charge.

The laws in Illinois make a distinction between possessing and carrying a weapon. If you have a valid FOID but not a CCL, you can possess the weapon in your home and transport it in your vehicle (not accessible, broken down, and unloaded). Therefore, if you are committing a crime outside the confines of your home while you are armed, even if it would be a misdemeanor such as making a threat (Aggravated Assault), you would be charged with the felony of Unlawful Use of a Weapon under 720 ILCS 5/24-1.6(h). Remember, being close to home, even at a friend’s or neighbor’s, does not exempt you from these laws. Mrs. McCloskey, even if she had valid FOID and CCL in Illinois, could have been charged with a felony based on committing a crime (even a misdemeanor) while armed with a weapon.

When is a Person Justified in Using Deadly Force in Illinois?

You can never use deadly force to defend property. This rule even pertains to unruly protesters who are trespassing on your property. Remember, the law in Illinois defining justifiable use of force states:

“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.” 720 ILCS 5/7-1 (emphasis added).

The important elements we need to keep in mind in the law above are “defense of person,” “reasonably believes,” and “imminent.” Were the McCloskeys acting reasonably at the time? This takes us to defense of property…

Use of Force in Defense of Dwelling.

“(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 prevent or terminate such other’s unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:

(1) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or

(2) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.” 720 ILCS 5/7-2 (emphasis added).

Would the McCloskeys be justified in defending their property by using, or threatening to use, deadly force against protesters under Illinois law? Probably not. The bottom line is that the prudent thing to do in a situation like this is lock your doors and call the police. In Illinois, even showing a weapon in public can be considered Aggravated Assault depending on the situation and the mindset of the parties at the time.

Please continue to be a responsible gun owner and, together, we will make it through these difficult, strange times.

If you have any questions, please contact U.S. LawShield and ask to speak to your Independent Program Attorney.

The preceding should not be construed as legal advice nor the creation of an attorney-client relationship. This is not an endorsement or solicitation for any service. Your situation may be different, so please contact your attorney regarding your specific circumstances. Because the laws, judges, juries, and prosecutors vary from location to location, similar or even identical facts and circumstances to those described in this presentation may result in significantly different legal outcomes. This presentation is by no means a guarantee or promise of any particular legal outcome, positive, negative, or otherwise.