Illinois’ law on deadly force crucial to Jason Van Dyke’s defense

Final preparations were underway for Jason Van Dyke’s murder trial last month when the indicted police officer’s attorney gave his take on the use of deadly force in Illinois — and the law governing it.

That law explains when police officers, like Van Dyke, may open fire.

What it does not do, defense attorney Daniel Herbert told Cook County Judge Vincent Gaughan, is call deadly force a “last resort.”

Now, as Van Dyke goes on trial for the fatal Oct. 20, 2014, shooting of Laquan McDonald, that law — and Herbert’s understanding of it — promises to play a key role in whether Van Dyke emerges with an acquittal or a conviction.

“Everything really comes down to the argument that that statute permitted Van Dyke to use the amount of force that he used,” veteran defense attorney Terry Ekl told the Chicago Sun-Times.

It’s crucial to a case that will also hinge on other variables, including whether Van Dyke decides to put his fate in Gaughan’s hands or roll the dice with a jury. Some legal experts say Van Dyke may be able to waive his right to a jury trial even after evidence begins.

Van Dyke is charged with six counts of first-degree murder, 16 counts of aggravated battery and one count of official misconduct.

Though it may seem odd that Van Dyke is charged with six counts of murder over one death, Ekl said that is actually “very, very normal.” That’s because each count is actually charged under a different legal theory.

It’s unclear how many of those counts will actually be considered by the jury, assuming the case isn’t decided by a judge. The verdict forms sent to the jury room will also be crucial to the outcome.

Regardless, legal experts seem to agree that, if prosecutors are going to prove Van Dyke guilty of one of those murder counts, they must show he acted “without lawful justification.” And that is where the law governing the use of deadly force comes in.

Speaking to the judge last month, Herbert insisted the law “does not talk about ‘necessary’” when it comes to the use of deadly force. But the word “necessary” actually appears in the law repeatedly.

The law says an officer is justified in using deadly force “when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or such other person.”

But it doesn’t stop there. A key portion also says the use of deadly force is justified when other factors are present: First among them, it must be “necessary to prevent the arrest from being defeated by resistance or escape.”

In that case, the law also requires either that the person “has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm,” or “is attempting to escape by use of a deadly weapon,” or “indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.”

That’s why it was no surprise last month when Van Dyke’s legal team asked the judge to bar any argument that McDonald didn’t fit the first two criteria — committing a forcible felony and trying to escape with a deadly weapon.

Herbert called it “undisputable” that McDonald did both. Prosecutors disagree.

McDonald was carrying a knife when he was shot by Van Dyke near 41st and Pulaski. Van Dyke’s defense team hopes to call witnesses who may talk about McDonald’s alleged history of violence and bolster a self-defense argument.

Meanwhile, before the shooting, Herbert contends McDonald committed a burglary at a nearby truck depot, among other alleged crimes.

Even if that’s true, prosecutors said they weren’t ready to concede that Van Dyke knew about the alleged burglary when he shot McDonald.

Gaughan said he wouldn’t rule until he heard the evidence at trial.

The judge simply told both sides, “if there was a burglary committed, that’s a forcible felony, by law.”