necessity defense in Illinois

2025Regarding the defense of necessity, section 7-13 of the Code provides: “Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” Id. § 7-13. ¶ 22 The necessity defense “is viewed as involving the choice between two admitted evils where other optional courses of action are unavailable [citations], and the conduct chosen must promote s

2025Section 7-13 specifically provides: “Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or - 19 - private injury greater than the injury which might reasonably result from his own conduct.” Id. § 7-13. ¶ 84 The necessity defense “is viewed as involving the choice between two admitted evils where other optional courses of action are unavailable [citations], and the conduct chosen must promote some higher value than the va

2026“A specific and immediate threat *** constitutes the very nature of a necessity defense; thus, proof of that factor is a threshold requirement for its establishment.” Kite, 153 Ill. 2d at 45 .

2026“A specific and immediate threat *** constitutes the very nature of a necessity defense; thus, proof of that factor is a threshold requirement for its establishment.” Kite, 153 Ill. 2d at 45 .

2026See also Taylor, 2023 IL App (4th) 220381, ¶ 57 (recognizing that under McDonald, “when a trial court has determined there is insufficient evidence to support giving a certain jury instruction, that decision is reviewed for an abuse of discretion”); People v. Boston, 2016 IL App (1st) 133497, ¶ 36 (reviewing for an abuse of discretion the question of whether the trial court erred in failing to provide a necessity defense instruction to the jury).

2025“Conduct that would otherwise be illegal is justified by necessity only if the conduct was the sole reasonable alternative available to the defendant under the circumstances.” Id. at 1034 ; see People v. Boston, 2016 IL App (1st) 133497, ¶ 39 (a necessity defense applies only when the “defendant’s conduct was the sole option to avoid injury”). ¶ 89 As the trial court found, defendant faced no threat when Moon arrived because he was not in the apartment, nor did he face any immediate threat after he climbed into the apartment through the window.

2026See also Taylor, 2023 IL App (4th) 220381, ¶ 57 (recognizing that under McDonald, “when a trial court has determined there is insufficient evidence to support giving a certain jury instruction, that decision is reviewed for an abuse of discretion”); People v. Boston, 2016 IL App (1st) 133497, ¶ 36 (reviewing for an abuse of discretion the question of whether the trial court erred in failing to provide a necessity defense instruction to the jury).

2024See Taylor, 2023 IL App (4th) 220381, ¶ 66 (testimony that the defendant feared possible retaliation from the victim’s friends was insufficient to warrant an instruction on the necessity defense where there was no evidence presented as to why the defendant believed the victim’s friends posed an immediate threat and since the mere possibility that the victim’s friends may have wanted to retaliate was not evidence of a specific or immediate threat). ¶ 33 Absent even slight evidence that defendant reasonably believed his conduct was necessary to avoid a greater public or private injury than that

2022Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation - 13 - 2022 IL App (2d) 210736-U and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” Accord People v. Janik, 127 Ill. 2d 390, 399 (1989) (setting forth the elements of the necessity defense). ¶ 54 “The defense of necessity applies when the threat of harm was immediate, and defendant’s conduct was the sole option to avoid injury.

2020See People v. Boston, 2016 IL App (1st) 133497, ¶ 39 (necessity defense applies when the “defendant’s conduct was the sole option to avoid injury”); People v. Guja, 2016 IL App (1st) 140046, ¶ 49 (“because defendant had reasonable alternatives - 13 - 2020 IL App (2d) 180438-U *** the defense of necessity was therefore unavailable to him as a matter of law”); People v. Gibson, 403 Ill App. 3d 942, 952 (2010) (“if other alternatives existed that would have caused less harm, the defendant *** was not entitled to the necessity defense instruction”), abrogated on other grounds, People v. Bailey, 20

2025Brown, 2023 IL App (4th) 220399, ¶¶ 22, 27 . ¶ 36 We find that the trial court did not err in finding a lack of objective evidence for a necessity instruction.

2024See People v. Brown, 2023 IL App (4th) 220399, ¶ 27 (“A necessity defense requires that ‘the threat of harm was immediate and defendant’s conduct was the sole option to avoid injury.’ ” (quoting People v. Boston, 2016 IL App (1st) 133497, ¶ 39 )). ¶ 68 Applying Kite and Brown, we conclude that defendant was required to show the existence of a specific and immediate threat for a necessity defense to be warranted.

2023See People v. Kucavik, 367 Ill.

2023Conversely, the court may only withhold a necessity instruction when the evidence is “so clear and convincing as to permit the court to find as a matter of law that there is no affirmative defense.” Kucavik, 367 Ill.

2022The necessity defense, like self-defense or defense of another, “are all justification defenses that employ a similar balancing of the circumstances a defendant faced against the actions he took.” People v. Crowder, 2018 IL App (1st) 161226, ¶ 29 .

2020Necessity ¶ 41 "[T]o establish a defense of necessity, the person claiming the defense (1) must be without blame in occasioning or developing the situation and (2) must have reasonably believed that his conduct was necessary to avoid a greater public or private injury than that which might have reasonably resulted from his own conduct. [Citation.] This usually involves the choice between two admitted evils where other optional courses of action are unavailable, and the conduct chosen - 12 - No. 1-17-1262 must promote some higher value than the value of literal compliance with the law." People

2025App. 3d at 137 (holding that the court properly granted the State’s motion in limine, filed at the close of the State’s case-in-chief, seeking to bar the defendant from asserting a necessity defense or presenting evidence in support of such a defense because necessity was not a “viable” defense in that case); Kratovil, 351 Ill.

2025“Conduct that would otherwise be illegal is justified by necessity only if the conduct was the sole reasonable alternative available to the defendant under the circumstances.” Id. at 1034 ; see People v. Boston, 2016 IL App (1st) 133497, ¶ 39 (a necessity defense applies only when the “defendant’s conduct was the sole option to avoid injury”). ¶ 89 As the trial court found, defendant faced no threat when Moon arrived because he was not in the apartment, nor did he face any immediate threat after he climbed into the apartment through the window.

2003App. 3d 798, 801 , 780 N.E.2d 1144, 1147 (2002) (applying section 7-13 (720 ILCS 5/7-13 (West 2000)) and stating "conduct that would otherwise be an offense is justified if the defendant was (1) without blame in occasioning or developing the situation and (2) reasonably believed the conduct was necessary to avoid a public or private injury greater than the injury that might reasonably result from her own conduct"); 720 ILCS 5/24-1.1(b), (d) (West 2000) (denying the necessity defense to only inmates in possession of prohibited weapons).

2003App. 3d 798, 801 , 780 N.E.2d 1144, 1147 (2002) (applying section 7 — 13 (720 ILCS 5/7 — 13 (West 2000)) and stating “conduct that would otherwise be an offense is justified if the defendant was (1) without blame in occasioning or developing the situation and (2) reasonably believed the conduct was necessary to avoid a public or private injury greater than the injury that might reasonably result from her own conduct”); 720 ILCS 5/24 — 1.1(b), (d) (West 2000) (denying the necessity defense to only inmates in possession of prohibited weapons).

2025See People v. Cummings, 2023 IL App (1st) 220520, ¶ 33 . ¶ 92 Defendant also compares this case to People v. Ferree, 221 Ill.

2016Id. at 218 . ¶ 49 Defendant also relies on Musgrove, a prison escape case, to support his position that he presented enough evidence to warrant a necessity instruction.

2025See People v. Legoo, 2020 IL 124965, ¶ 34 (noting that the defendant, a sex offender, could not rely on the necessity defense to enter a public park to retrieve his son where other options, including calling the police for assistance, were available to him). ¶ 91 We note that defendant argues that the jury’s inquiry, “Can a felon have a gun if in danger?” indicates that there was at least some evidence supporting a necessity defense.

2024See People v. Legoo, 2020 IL 124965, ¶ 34 (noting that the defendant, a sex offender, could not rely on the necessity defense to enter a public park to retrieve his son where other options, including calling the police for assistance, were available to him). - 14 - ¶ 32 Defendant’s remaining claims that he possessed the UTV to prevent harm to himself and his family are unavailing because he failed to identify any specific and immediate threat.

2021App. 3d 391, 394 , 686 N.E.2d 379, 382 (1997). ¶ 72 Specifically, defendant argues trial counsel should have pursued a necessity defense where defendant found a loaded firearm lying on the ground and used it to prevent Davis from attacking him with a dumbbell.

2021App. 3d 391, 394 , 686 N.E.2d 379, 382 (1997). ¶ 72 Specifically, defendant argues trial counsel should have pursued a necessity defense where defendant found a loaded firearm lying on the ground and used it to prevent Davis from attacking him with a dumbbell.

2020See Gonzalez, 385 Ill.

2020See Gonzalez, 385 Ill.

2020See Bardsley, 2017 IL App (2d) 150209, ¶ 22 . ¶ 32 As for the dissent’s suggestion that defense counsel in criminal proceedings will intentionally sit on their hands instead of raising a viable affirmative defense at the earliest opportunity, our supreme court has roundly rejected that kind of supposition.

2020See Bardsley, 2017 IL App (2d) 150209, ¶ 22 . ¶ 32 As for the dissent’s suggestion that defense counsel in criminal proceedings will intentionally sit on their hands instead of raising a viable affirmative defense at the earliest opportunity, our supreme court has roundly rejected that kind of supposition.

2019See Geary, 129 Ill. 2d at 402-03 (applying the necessity exception to the purchase of tampons and sanitary napkins); Getto, 86 Ill. 2d at 49-51 (same with regard to telephone service); Ross v. City of Geneva, 71 Ill. 2d 27, 34-35 (1978) (same with regard to electrical service).

2019See Geary, 129 Ill. 2d at 402-03 (applying the necessity exception to the purchase of tampons and sanitary napkins); Getto, 86 Ill. 2d at 49-51 (same with regard to telephone service); Ross v. City of Geneva, 71 Ill. 2d 27, 34-35 (1978) (same with regard to electrical service).

2019See Geary, 129 Ill. 2d at 402-03 (applying the necessity exception to the purchase of tampons and sanitary napkins); Getto, 86 Ill. 2d at 49-51 (same with regard to telephone service); Ross v. City of Geneva, 71 Ill. 2d 27, 34-35 (1978) (same with regard to electrical service).

2019See Geary, 129 Ill. 2d at 402-03 (applying the necessity exception to the purchase of tampons and sanitary napkins); Getto, 86 Ill. 2d at 49-51 (same with regard to telephone service); Ross v. City of Geneva, 71 Ill. 2d 27, 34-35 (1978) (same with regard to electrical service).

2019See Geary, 129 Ill. 2d at 402-03 (applying the necessity exception to the purchase of tampons and sanitary napkins); Getto, 86 Ill. 2d at 49-51 (same with regard to telephone service); Ross v. City of Geneva, 71 Ill. 2d 27, 34-35 (1978) (same with regard to electrical service).

2019See Geary, 129 Ill. 2d at 402-03 (applying the necessity exception to the purchase of tampons and sanitary napkins); Getto, 86 Ill. 2d at 49-51 (same with regard to telephone service); Ross v. City of Geneva, 71 Ill. 2d 27, 34-35 (1978) (same with regard to electrical service).

2025Id. ¶ 29 Known as the necessity defense, section 7-13 of the Criminal Code provides that “[c]onduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” 720 ILCS 5/7-13 (West 2022).

2020Similar to the self-defense context, the court must give a necessity instruction where there is ‘some evidence, however slight,’ Washington, 2012 IL 110283, ¶¶ 43, 51 , that the defendant has a subjective belief that his conduct is necessary to avoid another harm.

2024The State responds that counsel was not ineffective, and defendant cannot show that he suffered prejudice because the necessity defense was unavailable to him under the evidence presented. ¶ 27 In support of his argument, defendant relies upon People v. Shepherd, 2020 IL App (1st) 172706 , and People v. Gullens, 2017 IL App (3d) 160668 .

2024Shepherd, 2020 IL App (1st) 172706, ¶¶ 9, 20 .

2021Id. at 955 .

1991See People v. Newbolds (1990), 204 Ill.

2016Accordingly, in this context we must consider whether: "(1) the prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the authority or there exists a history of futile complaints which make any result from such complaint illusory; and (3) there is no time or opportunity to resort to the courts." (Internal quotation marks omitted.) Id. at 45 (quoting People v. Tackett, 169 Ill.

2016App. 3d 397, 402 (1988)).5 Although, the presence of every factor is not required for the establishment of a necessity defense, "[a] specific and immediate threat, however, constitutes the very nature of a necessity defense; thus, proof of that factor is a threshold requirement for its establishment." Id.