Richardson v. Booker

2022 IL App (1st) 211055No. 1-21-1055
Opinion filed July 27, 2022
Third Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
KATHLEEN RICHARDSON, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County.
)
v. ) No. 19 OP 71827
)
ELENZIA BOOKER, ) Honorable
) Thomas Cushing,
Respondent-Appellee. ) Judge Presiding.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.
OPINION
¶1 This appeal arises following the circuit court’s denial of petitioner Kathleen Richardson’s
petition for a plenary order of protection under the Illinois Domestic Violence Act of 1986 (Act)
(750 ILCS 60/101 et seq. (West 2020)) against her former boyfriend, respondent Elenzia Booker.
Petitioner sought the order of protection following a physical altercation between her and
respondent in their shared home, where, inter alia, respondent punched petitioner in the back of
the head. In her amended petition and in her trial testimony, petitioner detailed four incidents of
abuse during her relationship with respondent. The circuit court denied the petition following a
hearing finding that petitioner’s credibility was damaged where her testimony regarding one of the
No. 1-21-1055
incidents went substantially beyond the allegations in her petition. The court found that, based on
the evidence presented, it was equally likely that either petitioner or respondent started the physical
altercation between the parties. The court therefore found that petitioner had failed to carry her
burden on the petition.
¶2 On appeal, petitioner contends that the court erred in denying her petition where the
evidence showed that respondent abused her and that his abuse was not a justifiable use of force.
Petitioner maintains that respondent admitted to abusing petitioner in his testimony, but the court
erred in finding that respondent was justified in his use of force because petitioner may have been
the aggressor. Petitioner also asserts that the court erred in ignoring evidence of respondent’s past
abuse. For the reasons that follow, we reverse and the judgment of the circuit court and direct the
court to enter a plenary order of protection in favor of petitioner and against respondent.
¶3 I. BACKGROUND
¶4 On March 18, 2021, petitioner filed a pro se petition for an order of protection against
respondent. That same day, the court issued an emergency order of protection that was set to expire
on April 8, 2021. The expiration date was extended several times. On June 21, 2021, petitioner
was granted leave to file an amended petition with the assistance of counsel.
¶5 Petitioner attached to the amended petition an affidavit setting forth the basis for the order
of protection. In the affidavit, petitioner detailed four instances of abuse during her relationship
with respondent. The most recent incident took place on March 14, 2021, where the parties got
into an argument about a trip they were planning. Respondent threw money at petitioner and
petitioner poured a bottle of water on him. Respondent then punched petitioner in the back of the
head. Respondent choked petitioner and told her that he was going to kill her. Respondent
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eventually let petitioner go and left the apartment. Petitioner went to the police station the next day
and was taken to the hospital for evaluation.
¶6 The second event detailed in petitioner’s affidavit took place on June 30, 2020. Respondent
was at their shared home with a “female friend.” Respondent said the female friend was going to
sleep in his room so that she could get some rest. Respondent became upset when petitioner
questioned why the female friend was sleeping in his room. Petitioner walked away from
respondent and then was “hit in the butt with a watch.” Respondent then knocked some clothes out
of petitioner’s hand and yelled at her.
¶7 Petitioner next recounted an event that occurred on September 3, 2015. Petitioner alleged
that she and respondent got into a verbal argument that escalated into him physically assaulting
her. Respondent grabbed her arms, grabbed her neck, gouged his thumbs into her neck, threatened
to kill her, threw her on the bed, put blankets over her head, and kicked her down a flight of stairs.
After the incident, petitioner called police and was treated at the hospital.
¶8 Finally, petitioner recounted an event that occurred on January 25, 2015. Petitioner was at
respondent’s apartment with her sister. Petitioner and respondent got into an argument, and
respondent became “enraged.” Respondent flipped over a coffee table, and it struck petitioner on
her left ankle. Respondent then physically moved petitioner’s sister out of the way to reach
petitioner. Respondent wrestled petitioner to the ground and then dragged her out of the apartment
by her ankle.
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¶9 A. Trial Testimony
¶ 10 The court held a remote Zoom hearing on petitioner’s petition on July 27, 2021. At the
hearing, petitioner testified that she and respondent began dating in September 2014. 1 She testified
that she lived with respondent and they had two children, aged five and one years old. She further
testified that she “definitively” separated from respondent on March 14, 2021, prior to filing the
petition for an emergency order of protection. Petitioner testified that respondent was violent
toward her during the course of their relationship and testified about the four dates detailed in her
petition.
¶ 11 1. March 14, 2021
¶ 12 Petitioner first testified about an incident that occurred on March 14, 2021, at
approximately 3 a.m. Petitioner testified that while their children were asleep, she and respondent
began to argue about a trip they had planned. Petitioner testified that respondent had been drinking
at a bar that night and returned home intoxicated. When respondent got home, he grabbed the
money that they had been saving for the trip and started throwing it at petitioner. As the two
continued arguing, one of their children woke up. Petitioner went to make the child a bottle, but
respondent grabbed her.
¶ 13 Petitioner then went to get her jacket, so that she could leave the apartment. On her way to
the front door, she encountered respondent. Petitioner testified that she became “frustrated” and
grabbed a bottle of water and “dumped” water on respondent’s face. Petitioner then turned her
back on respondent to grab the rest of her belongings and respondent struck her in the back of the
head with his hand. Petitioner fell forward and hit her face on the wall. Petitioner testified that
1
Petitioner acknowledged that, in her petition, she wrote that she and respondent began dating in
September 2015, but she testified that this was a typographical error and she intended to write 2014.
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respondent struck her hard enough to create a “knot” about the size of an egg on the back of her
head and she suffered bruising on her face from where she hit the wall.
¶ 14 Petitioner then stumbled into the bedroom and respondent followed, yelling at her.
Respondent pushed petitioner against the window and the two continued “wrestling.” Respondent
attempted to put his arms around petitioner’s neck, but petitioner bit him and then dropped her
body weight to the ground to get him off balance. Petitioner ended up on top of respondent with
her back to his chest. Respondent put his arm around petitioner’s neck and started “squeezing.”
Respondent then wrapped his legs around petitioner and held her in a “mixed martial arts” style
chokehold. Petitioner testified that respondent had eight months of training in mixed martial arts
and had participated in one videotaped fight.
¶ 15 Petitioner testified that respondent held in her the chokehold for about 10 seconds.
Petitioner was able to breathe enough to scream “don’t kill me, don’t kill me. I don’t want to die.”
Respondent told petitioner that he was going to kill her and to not worry about the children.
Petitioner then tapped on respondent’s arm in a “submissive move,” and respondent let her go.
Petitioner and respondent then laid on the floor and “held each other.” Petitioner asked respondent
“why,” but he did not respond. After about five minutes, petitioner got up and went into the room
with their children. Respondent gathered his belongings, told petitioner he was leaving, and then
left the apartment.
¶ 16 Petitioner went to the police station the next day. While she was at the police station, she
became “sick” and had to be taken to the hospital in an ambulance. Petitioner had a contusion to
the back of her head and abrasions to her chest and neck. Petitioner introduced into evidence
photographs of her injuries taken by an investigator from the Department of Child and Family
Services.
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¶ 17 Respondent testified that he had been drinking that night, but he was not intoxicated.
Respondent testified that when he returned home, he had a “particular concern” with plans that he
had with petitioner. Respondent testified that petitioner had made “drastic changes” to their plans
and he wanted to speak to her about the changes. He told petitioner that he had a “bone to pick”
with her and tried to tell her his concerns, but she told him that she did not care about his concerns.
¶ 18 Respondent testified that the argument turned physical when he was walking down the
hallway with petitioner and was throwing money “over [her] head.” Petitioner picked up a half-
full water bottle and threw it at respondent’s face from “point blank” range. Respondent testified
that the water bottle hit him in the left eye, and his eye swelled up a “little bit.” After petitioner
threw the bottle of water at him, respondent reacted “immediately” and hit petitioner in the back
of the head. Petitioner turned around to face respondent and started “swinging” at respondent.
Petitioner hit him with an open hand across his left shoulder. Respondent grabbed petitioner’s arms
and wrestled with her for 10 or 15 seconds. Respondent testified that he suffered injuries to his
fingers as a result of trying to hold onto petitioner’s hands. Respondent wrapped his arms around
petitioner to try to subdue her, but she “dropped her weight down,” and both petitioner and
respondent fell backward.
¶ 19 Respondent denied choking petitioner and denied telling her that he would kill her.
Respondent testified that the altercation ended when petitioner bit him. Respondent let her go and
the two of them sat on the floor exhausted. After 10 minutes, respondent stood up, grabbed his
clothes, and left the house. Respondent acknowledged that he did not submit photographic
evidence of the injuries to his eye or his fingers.
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¶ 20 2. June 30, 2020
¶ 21 Petitioner next testified regarding an incident that occurred on June 30, 2020, around
midnight. Petitioner testified that she and respondent were at their home with a “female” named
Olivia. Petitioner testified that Olivia was respondent’s guest and respondent was intoxicated.
Petitioner and respondent got into an argument because petitioner “disagreed” about Olivia being
in respondent’s bedroom. Petitioner testified that respondent became violent and started pushing
her. Petitioner then went to pack her belongings. While she was packing, respondent came into the
bedroom and slapped the clothes out of her hands. Petitioner called her mother and put her on
speakerphone while she continued packing. Petitioner testified that she called her mother because
there had been “other altercations of violence” with respondent and she wanted a witness in case
something happened.
¶ 22 While petitioner was moving around the home, collecting her belongings, respondent threw
her down to the floor by her neck. Petitioner asked respondent why he was hitting her and asked
him “what did I do[?]” Petitioner also testified that after Olivia left the house, respondent threw
his watch at her, and the watch struck her on the backside. Petitioner left their house with the
children and did not return for a month.
¶ 23 Petitioner’s mother testified that when petitioner called her, petitioner sounded upset and
was crying. Petitioner’s mother could hear respondent’s voice over the phone and testified that he
sounded upset. Petitioner’s mother heard petitioner saying, “[S]top hitting me. Why are you hitting
me?”
¶ 24 Respondent testified that in June 2020, he and petitioner were taking a break, and he was
dating Olivia. He and petitioner had an agreement that they could date other people but could not
bring them to the house. Respondent testified that he brought Olivia to the house that night anyway
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to meet petitioner. Respondent testified that the three of them were in the garage, smoking and
drinking until respondent suggested that Olivia sleep in his room and he would sleep on the couch.
Respondent testified that he and petitioner argued, but the argument never turned physical.
¶ 25 3. September 3, 2015
¶ 26 Petitioner next testified about an incident that occurred on September 3, 2015, at
respondent’s residence before the parties lived together. Petitioner testified that respondent was
intoxicated and they had an argument. Petitioner was pregnant at the time. Petitioner was upset
that respondent wanted to sleep on the couch and did not want to sleep in bed next to her. Petitioner
went into the bedroom and started crying because her feelings were hurt. Respondent came into
the bedroom and told petitioner to stop crying, and petitioner responded that she would just leave.
Respondent told petitioner that she was not going anywhere. Petitioner testified that she started
the verbal argument, but respondent turned the argument physical and started “slapping [her]
around on the couch.” Petitioner testified that respondent hit her with an open hand back and forth
while she curled up to protect herself. Petitioner attempted to get away from respondent and ended
up getting scratched on her arms.
¶ 27 Petitioner went into the bathroom to pack her belongings, and respondent followed her.
Respondent attempted to push her into the bathtub, but petitioner “wrestled” him out of the
bathroom into the bedroom and onto the bed. Respondent wrapped the blankets from the bed
around petitioner’s head and then pulled her by the ankle onto the ground. Petitioner rolled up into
a ball to protect herself while respondent started punching her and “pushing [her] around.”
Respondent told petitioner that no one cared about her and that he could kill her and “dump” her
body somewhere and nobody would be able to find her. Respondent then helped her stand up and
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petitioner removed the blankets from around her head. Respondent looked at petitioner and then
went to get some water.
¶ 28 Petitioner and respondent then both drank some water. After about 20 minutes, petitioner
attempted to leave respondent’s apartment. Respondent, however, would not let petitioner leave
and stood in front of the doorway. Eventually, respondent stepped away from the doorway and
petitioner was able to leave the apartment. Respondent chased her out into the hallway and caught
petitioner by grabbing the backpack she was carrying on her back. Respondent then put his forearm
around her neck and choked her. Respondent again told petitioner that he would kill her and no
one would find her body.
¶ 29 Petitioner managed to get away from respondent when other residents of the apartment
building came out into the hallway. Petitioner ran down the stairway, and respondent followed.
Before reaching the bottom, petitioner turned to face respondent, and respondent kicked her down
the steps. Petitioner landed on her back at the bottom of the stairs. Respondent then came
downstairs, grabbed petitioner by her hair and backpack, and dragged her out of the building.
Respondent went back inside the building, leaving petitioner outside.
¶ 30 After respondent left, petitioner called police. When police arrived, petitioner told them
that she needed medical attention and she was transported to the hospital in an ambulance.
Petitioner testified that she suffered scratches to her neck and “bodily bruises.” Petitioner then
introduced into evidence photographs she had taken of her injuries while she was in the hospital,
as well as medical records.
¶ 31 When respondent’s attorney asked him about the September 3, 2015, altercation,
respondent testified that he did not remember that date based on petitioner’s testimony. He
testified, however, that during the course of their relationship, he never kicked petitioner down the
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stairs and never put blankets over her head. He also denied that he had ever choked petitioner or
told her that he was going to kill her.
¶ 32 4. January 2015
¶ 33 Petitioner finally testified about an incident that occurred in January 2015 at respondent’s
apartment. Petitioner’s sister, Kimberly Simmons (Kimberly), was present for the incident.
Petitioner testified that she and respondent got into an argument that turned physical when
respondent “launched” a wooden coffee table across the room. Petitioner testified that the coffee
table bounced off the refrigerator and landed on her foot. Respondent then attempted to physically
remove both petitioner and Kimberly from the apartment. He first grabbed petitioner’s arms and
attempted to walk her out of the apartment, but petitioner fought back. Petitioner wanted to collect
her belongings before she left the apartment.
¶ 34 Petitioner fell to the ground, and Kimberly fell on top of her. Respondent then pulled both
women out of the apartment by grabbing petitioner’s ankle and dragging her into the hallway.
Respondent closed and locked the apartment door. Petitioner started banging on respondent’s door
until respondent opened the door, grabbed petitioner by the neck, and told her to stop. Respondent
closed and locked the door again. Petitioner testified that she suffered injuries to her right foot and
chest and had some bruising. Petitioner submitted into evidence photographs that she had taken of
her injuries.
¶ 35 Kimberly testified that she did not know what respondent and petitioner were arguing
about, or how the argument started, but testified that respondent initiated the physical violence
when he “tossed” a coffee table toward her and petitioner. Kimberly testified that the table hit
petitioner on the foot. After he tossed the table, respondent grabbed Kimberly, moved her out of
the way, and tackled petitioner to the ground. Respondent then grabbed petitioner by the ankle and
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tried to drag her out of the apartment. Petitioner was trying to break free from respondent, but she
could not. Respondent dragged petitioner into the hallway, where they continued to “tussle” until
Kimberly stepped in between. Respondent then slammed the door to the apartment and locked
them outside. Kimberly testified that, after the incident, petitioner had a swollen ankle, scratches
on her neck, and a sore body. Kimberly testified that, during the struggle, she heard respondent
tell petitioner to “be quiet or else.”
¶ 36 Respondent testified that he and petitioner were arguing when he asked her to leave. He
testified that, at the time, they were “barely” dating and petitioner’s name was not on the lease for
his apartment. Petitioner responded that she would not leave, so respondent tried to “guide” her
out of the apartment. Petitioner still refused to leave, so respondent tried to physically remove her.
Petitioner fought back by “kicking doors, hanging onto the door frame,” and falling to the ground
and grabbing the door jamb. Respondent acknowledged that he grabbed petitioner by her foot in
an attempt to make her let go of the door jamb. Respondent testified that, during this struggle,
Kimberly was encouraging petitioner to leave the apartment on her own. Respondent
acknowledged that he flipped over a coffee table but testified that he did not expect it to go toward
petitioner.
¶ 37 B. Court Ruling
¶ 38 In rendering its judgment, the court stated that it considered the demeanor of the parties
and all the witnesses while testifying. The court stated that it considered each of the four events
that were subject of petitioner’s testimony. The court noted that it did not “discount” the incidents
that took place in 2015 but considered that there were five years between the 2015 events and the
June 2020 incident. The court stated that it was more concerned with the incidents from 2020 and
2021, but considered the 2015 incidents relevant to the question of who the aggressor was in the
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June 2020 and March 2021 incidents. The court nonetheless found that the 2015 incidents were of
“limited relevance.”
¶ 39 The court stated that, in its view, the operative question was “did the Respondent initiate[ ]
a physical fight” on March 14, 2021. The court noted that both parties acknowledged respondent
was throwing money at petitioner. The court observed that there was a conflict in the testimony;
petitioner testified that respondent was hitting her with the bills, but respondent testified he was
throwing them over her head. Nonetheless, the court found that while this behavior might be
aggressive, it was not “something that’s violent.” The court also observed that there was a conflict
between petitioner’s testimony that she poured water on respondent, while respondent testified
that she hit him in the face with a water bottle. Both parties agreed that respondent then hit
petitioner in the back of the head.
¶ 40 In order to determine whether the physical confrontation was prompted by petitioner or
respondent, the court then looked to the June 2020 incident. The court found that petitioner’s
testimony of this incident went “substantially” beyond the allegations of her amended petition,
which was prepared with the assistance of counsel. The court found that there was nothing in the
petition about physical violence or that petitioner was so afraid that she called her mother. The
court found that these discrepancies “damage[d] the Petitioner’s credibility.” The court found
that—with petitioner’s credibility damaged and with no corroborating evidence for the events of
March 14, 2021—the court could not say that “it’s more probably true than not true that she poured
water on him rather than hitting him in the face with a water bottle.” The court therefore vacated
the emergency order of protection and denied petitioner’s petition for a plenary order of protection.
This appeal follows.
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¶ 41 II. ANALYSIS
¶ 42 On appeal, petitioner contends that the court erred in denying her petition where the
evidence presented of respondent’s abuse entitled her to an order of protection. Petitioner
maintains that respondent admitted to abusing petitioner in his testimony, but the court erred in
finding that respondent was justified in his use of force because petitioner may have been the
aggressor. Petitioner also contends that the court erred as a matter of law in ignoring evidence of
respondent’s past abuse.
¶ 43 A. Plenary Order of Protection
¶ 44 A petitioner alleging abuse and seeking an order of protection has the burden to establish
by a preponderance of the evidence that abuse has occurred. Best v. Best, 223 Ill. 2d 342, 348
(2006). The trial court’s determination as to whether the petitioner has met her burden will not be
disturbed unless it is against the manifest weight of the evidence. Id. at 348-49. Under this standard,
we give deference to the trial court as the finder of fact because it is in the best position to observe
the demeanor of the parties and the witnesses. Id. at 350. “A reviewing court will not substitute its
judgment for that of the trial court regarding the credibility of witnesses, the weight to be given to
the evidence, or the inferences to be drawn.” Id. at 350-51 (citing In re D.F., 201 Ill. 2d 476, 499
(2002)). A finding is against the manifest weight of the evidence only if the opposite conclusion
is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence
presented. Id. at 350.
¶ 45 1. Abuse
¶ 46 Petitioner first asserts that the central question at the hearing was whether respondent had
abused petitioner. Petitioner contends that the circuit court failed to address this primary
consideration, instead focusing on which party was the “aggressor.” Petitioner maintains that the
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evidence presented demonstrated that respondent abused petitioner. Petitioner asserts that under
the Act, the court was therefore required to enter an order of protection.
¶ 47 We agree with petitioner that the Act provides that once the trial court finds that the
petitioner has been abused, “ ‘an order of protection *** shall issue.’ ” (Emphasis in original.) Id.
at 348 (quoting 750 ILCS 60/214(a) (West 2004)). Under the Act, abuse is “physical abuse,
harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.”
750 ILCS 60/103(1) (West 2020). The circuit court here seemed to place little emphasis on the
question of whether petitioner was abused, instead focusing almost entirely on the question of
whether petitioner or respondent was the aggressor.
¶ 48 The trial court should have addressed the question of whether respondent was justified in
his use of force only after it found petitioner had been abused. See id. § 214(e)(1). Instead, the
court seemed to put the cart before the horse, focusing only on whether respondent was justified
in his use force. Nonetheless, the court’s consideration of whether respondent was justified in his
use of force against petitioner suggests that the court found abuse and moved on to the second step
of the analysis in determining whether respondent was justified in his use force without explicitly
stating that it found abuse.
¶ 49 We find that the evidence presented supports a finding that respondent abused petitioner.
We acknowledge that the trial court made a finding that petitioner was not credible with regard to
her testimony of the June 2020 incident, where her testimony went substantially beyond the
allegations made her in petition. However, that credibility determination seemed to relate only to
that incident and did not extend to petitioner’s testimony regarding the other incidents. Notably,
the evidence of abuse was undisputed at the hearing. Petitioner testified that on March 14, 2021,
respondent struck her on the back of the head causing a “knot” about the size of an egg. Respondent
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acknowledged that he hit petitioner in the back of the head. Petitioner also presented testimony
that in January 2015 respondent threw a coffee table that struck her on the foot. Again, respondent
acknowledged in his testimony that he thew the coffee table and that it struck petitioner. Having
found abuse occurred, we may now consider, as the circuit court did, whether respondent was
justified in his use of force such that a plenary order of protection should not issue.
¶ 50 2. Justifiable Use of Force
¶ 51 Section 214(e)(1) of the Act provides that the trial court may deny a remedy if the
respondent has cause for the use of force that satisfies the standards for justifiable use of force
provided by Article 7 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/art. VII (West
2020)). 750 ILCS 60/214(e)(1) (West 2020). Article 7 of the Criminal Code provides:
Ҥ 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.” 720 ILCS
5/7-1 (West 2020).
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A claim of justified use of force includes proof of the following elements:
“(1) unlawful force threatened against a person, (2) the person threatened was not the
aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) the
person threatened actually and subjectively believed a danger existed that required the use
of force applied, and (6) the beliefs of the person threatened were objectively reasonable.”
People v. Gray, 2017 IL 120958, ¶ 50.
Here, petitioner contends that the court erred in focusing on who was the “aggressor,” rather
evaluating the six elements necessary to establish a justifiable use of force. We agree.
¶ 52 First, we do not accept the trial court’s finding that petitioner, rather than respondent, was
the aggressor in this case in the March 14 incident. Even accepting respondent’s version of the
events as true, he testified that he had a “bone to pick” with petitioner. Respondent then followed
petitioner around their apartment, throwing money over her head while yelling at her about a
vacation they were planning. The court found that while this behavior might be aggressive, it was
not “something that’s violent.” The evidence showed that respondent then struck petitioner in the
back of the head after she either (1) poured water on him or (2) threw the water bottle at him, and
it struck him near the eye. Interestingly, the court could not determine which version of water
bottle incident was more likely, finding that it was equally likely that either petitioner or respondent
started the physical altercation between the parties. Nonetheless, the court seemed to find that
respondent was not the aggressor because the act of following petitioner around the apartment and
throwing money over her head did not amount to physical abuse. However, as noted, for purposes
of the Act, abuse is “physical abuse, harassment, intimidation of a dependent, interference with
personal liberty or willful deprivation.” 750 ILCS 60/103(1) (West 2020). Thus, abuse under the
Act encompasses more acts than physical abuse.
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¶ 53 Nonetheless, even assuming petitioner was the aggressor during the March 14 incident as
the trial court found, the court failed to evaluate whether respondent’s use of force was necessary,
whether he subjectively believed that a danger existed that required his use of force, and whether
that use of force was objectively reasonable. Notably, if any one of these elements is negated, a
claim of justifiable use of force necessarily fails. Gray, 2017 IL 120958, ¶ 50. Respondent did not
testify that he believed his use of force was necessary. The court did not find that respondent’s use
of force was objectively reasonable. Further, any threat of force appears to have ended before
respondent struck petitioner. Respondent struck petitioner in the back of the head as retaliation,
not in an effort to defend himself from an imminent threat of unlawful force. We therefore find
that the court erred in finding that respondent was justified in his use of force.
¶ 54 3. Past Abuse
¶ 55 We further find that the court erred in failing to fully consider the evidence petitioner
presented of past instances of abuse. In addition to the March 14 incident, petitioner testified
regarding altercations that occurred in June 2020, September 2015, and January 2015. During
petitioner’s testimony about the September 2015 incident, the court interrupted counsel’s
examination to ask if petitioner had filed for an order of protection following the event. Counsel
responded that petitioner did. Counsel informed the court that, “[a]n emergency order of protection
was granted, but my understanding is it later lapsed.” After hearing this, the court encouraged
petitioner’s counsels to conference. The court stated that there may be “some relevance” to these
incidents, but the court was concerned about investing “a substantial amount of time on an incident
that I’ve just learned already resulted in a remedy for the Petitioner.” The court permitted counsel
to continue to elicit testimony about the incident, but informed counsel that “the relevance of
something six years ago for which the parties have already been to court and had an opportunity
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to seek relief from a judge is tenuous. Tenuous.” In issuing its ruling, the court stated that the
incidents from 2015 were of “limited relevance,” and the court considered them relevant only to
the question of who the aggressor was in the June 2020 and March 2021 incidents.
¶ 56 The trial court’s determination that the 2015 incidents were of limited relevance because
petitioner had already sought a remedy based on those incidents finds no support in the law. In
fact, the Act expressly directs courts to consider instances of past abuse. Section 214 of the Act
provides that in determining whether to grant a specific remedy, the court should consider
“the nature, frequency, severity, pattern and consequences of the respondent’s past abuse,
neglect or exploitation of the petitioner or any family or household member, including the
concealment of his or her location in order to evade service of process or notice, and the
likelihood of danger of future abuse, neglect, or exploitation to petitioner or any member
of petitioner’s or respondent’s family or household.” (Emphasis added.) 750 ILCS
60/214(c)(1)(i) (West 2020).
The Act does not provide that the court should assign less weight to instances of past abuse if the
petitioner has already sought a remedy for that past abuse.
¶ 57 The court’s error is considerable because the evidence presented regarding the January
2015 incident in particular shows uncontested evidence of physical abuse. Petitioner testified that,
during an argument, respondent flipped over a coffee table that struck her on the foot. Kimberly
corroborated petitioner’s testimony. Respondent did not deny that he flipped over the table and
that it struck petitioner, but merely testified that he did not expect the table to go toward petitioner.
This was evidence of abuse that the court should have considered in determining whether abuse
occurred and whether to issue the plenary order of protection, and not solely for its relevance as to
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who was the aggressor on March 14, 2021. Notably, respondent did not contend that he was
justified in his use of force during the January 2015 incident.
¶ 58 We find this court’s ruling in Dibenedetto v. Dibenedetto, 2019 IL App (3d) 180761instructive. In Dibenedetto, a wife filed a petition for an order of protection against her husband
after more than 45 years of marriage. Id. ¶ 3. The wife alleged that the husband “verbally abused
her, insulted her daily, routinely humiliated her in public, tracked her movements, threatened to
kill her, frequented her place of work to cause problems, and physically abused her in the past.”
Id. The wife testified that the husband emotionally, verbally, and physically abused her throughout
the course of their marriage and that his abuse had recently increased. Id. ¶ 5. The wife detailed
the husband’s history of abuse, dating back to 1979. Id. ¶ 6. The wife obtained an order of
protection against the husband in 1999, but she withdrew her petition after the parties attended
counseling. Id. The wife testified that the husband’s abusive behavior had escalated in 2018 when
he repeatedly threatened to kill her and put a GPS tracking device on her vehicle. Id. ¶ 7. The
parties’ daughter also testified about the abuse she had seen her father commit against her mother
over the years. Id. ¶ 8. In entering the order of protection, the court said that its finding was based
on the fact that the husband’s abuse started 35 or 40 years ago and then continued to escalate. Id.
¶ 10. “ ‘I mean, he continued to do those kind[s] of things.’ ” Id. On appeal, this court found that
the circuit court had satisfied the statutory requirements for entering an order of protection under
the Act and found that the husband had forfeited his argument that the court’s finding of abuse
was against the manifest weight of the evidence. Id. ¶¶ 18, 20.
¶ 59 Respondent contends that Dibenedetto does not support petitioner’s argument because that
case detailed a persistent pattern of abuse. Respondent asserts that, in this case, in contrast, there
was a five-year gap between the incidents, showing no such pattern. However, there is no
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No. 1-21-1055
requirement that an order of protection should issue only if the respondent’s past abuse is
“persistent.” Rather, the Act directs the court to consider “the nature, frequency, severity, pattern
and consequences of the respondent’s past abuse.” 750 ILCS 60/214(c)(1)(i) (West 2020). Here,
the court failed to do so, finding that the 2015 incidents were of limited relevance, despite the fact
that they illuminate the frequency, severity, and pattern of respondent’s abuse of petitioner. As
Dibenedetto demonstrates, evidence of abuse is relevant to the determination of whether abuse
occurred, whether it occurred 40 years ago or 5 years ago. The Dibenedetto court also found it
immaterial that the wife had previously sought an order of protection but allowed it to lapse. This
is consistent with the principles of Act, and it was error for the court here to disregard these past
instances of abuse in determining that an order of protection should not issue.
¶ 60 We find that the evidence presented demonstrates that respondent abused petitioner. The
evidence does not show that respondent was justified in his use of force. Accordingly, the circuit
court should have granted petitioner’s petition and entered a plenary order of protection in favor
of petitioner and against respondent. We therefore reverse the trial court’s judgment and remand
the matter so that the court may enter a plenary order of protection.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we reverse the judgment of the circuit court of Cook County, and
we remand to the trial court for the court to enter a plenary order of protection consistent with this
order.
¶ 63 Reversed and remanded with directions.
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No. 1-21-1055
Richardson v. Booker, 2022 IL App (1st) 211055Decision Under Review: Appeal from the Circuit Court of Cook County, No. 21-OP-71827;
the Hon. Thomas Cushing, Judge, presiding.
Attorneys Benjamin C. Weinberg and Benjamin S. Paulsen, of Dentons US
for LLP, and Teresa A. Sullivan, of Legal Aid Chicago, both of
Appellant: Chicago, for appellant.
Attorneys Ari Williams, of Ari Williams Law, LLC, of Chicago, for
for appellee.
Appellee:
Amici Curiae Sarah Weber, Lari Dierks, and Sarah Scruton, of Katten Muchin
Rosenman LLP, Jaclyn Zarack Koriath, Denice Wolf Markham,
Margaret Duval, Miguel C. Keberlein Gutiérrez, and Elizabeth
Payne, all of Chicago, Sarah Megan, of West Chicago, Christine
Raffaele, of Springfield, Susan M. Simone, of East St. Louis, and
Sasha Drobnick, of Washington D.C., amici curiae Domestic
Violence Legal Empowerment and Appeals Project et al.
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