Provocation And Self-Defense

[MikeJackmin]

As many of you know, a claim of self-defense does not apply if the person in question is found to have provoked the initial conflict. So what, exactly, constitutes 'provocation'?

Here is an excellent legal analysis of the question, mostly focused on Florida law but worthwhile overall:

http://www.volokh.com/2013/07/16/provocation-and-self-defense/

(Note there is some minor discussion of the Zimmerman case; I have moderator permission for posting this link, but I'm sure they would prefer that we limit our discussion to the legal side of things).

 

[bdickens]

It is important to remember to apply the "reasonable man" standard when discussing provocation.

"Reasonable men" do not attack others for giving them dirty looks, for asking them to turn the stereo down or for honking their horns at them - no matter what kind of foul language may be used. "Reasonable men" certainly do not approach another who is following them, cold-cock them and smash their heads open on the concrete.

 

[Frank Ettin]

This is an excellent article and raises some very important points. It is worth a disciplined, serious discussion. But it is absolutely not an opportunity to discuss Zimmerman.

A number of situations and several cases are mentioned in the article. Those (not Zimmerman) should be our focus. The core issue is stated in the article as follows:

...what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction? Has D also lost the right to lethal self-defense, because he could have avoided the need for such deadly force by avoiding the earlier act — or because he more broadly “provoked” the occasion for such deadly force?...

 

[brickeyee]

Blanket discussions about things like this are rarely of use outside academic type discussions.

Both statute and common law are going to determine how the 'reasonable man' standard has been defined in any jurisdiction.

In Virginia, for example, fists in and of themselves are not considered lethal force.

Knocking out teeth is not considered 'grave bodily harm'.

Even within the state standards vary since general district courts are not 'binding' (sometimes even within the same district).

Circuit courts get a little better as precedent, but not always.

Only cases that have risen through the appellate court level are binding, and even then sometimes not in every circuit.

Virginia did not have an appellate level courts for many years.
Cases went from circuit to the state supreme court.
This made them binding throughout the state in every court.

A large amount of our lethal force law is old enough it took this path and is binding.
Our 'court reporter system' only covered limited courts for many years.
Around the 1920s it was extended as far as circuit courts (but still is not used in general district court generally).

Paying a local attorney with some experience in criminal defense and lethal force in your jurisdiction is probably worth the few hours and few hundred dollars.

This is especially true in a place like Virginia that has no statute lethal force law.

NONE.

IT IS ALL COMMON (CASE) LAW.

Even for the police.
Much of it is statewide though.

One of the few exceptions is in our brandishing law.
That allows law enforcement to point guns at suspects without it being considered brandishing.

For the rest of us, you better not point a gun (or 'display in a threatening manner to create fear') without the situation having decayed to lethal force being allowed.

Thus the situation of you are only allowed to draw if you are also allowed to fire.

You are NOT required to fire, but drawing (or displaying) without the need to use lethal force is liable to cause a brandishing charge.

 

[Arizona_Mike]

Deleted my initial comments because they were about a different post on the subject (I am a regular, almost daily, reader of Volokh's blog). This one is even more specific than the one I thought it was referring to. It covered the addition I was going to make.

Example 3 is a good example of why Stand Your Ground is needed. Without it, the bullies (in this example White racists) get legal backing for a bully's veto over the freedoms of others.

Mike

 

[Schwing]

Gun opponents like to point out that altercations are far more likely to turn deadly if one of the combatants is armed, legally or otherwise. I think it is our responsibility to disabuse them of this perception as much as possible. The fact that we are armed IMHO should actually discourage us from entering into any kind of confrontation whether it be road rage or otherwise.

I can only speak for myself but I have found that, since I started carrying about 15 years ago, I am far LESS likely to enter into any confrontation or engage even verbally with others. Knowing that I am armed gives me the comfort to know that I have a much higher chance living through a violent encounter but it has also trained me to avoid even the appearance of hostility since I do not ever want to be put in a situation where I might be inclined to use deadly force unless it was 100% unavoidable.

I would argue that carrying a weapon can actually help us be more peaceful in general.

 

[Colonel]

Interesting post, Brickeyee.

 

[rookorami]

I may be fuzzy its been a bit since my Criminal Law class however, I think I remember something for Missouri about this. You cannot claim self-defense as the initial aggressor unless, they escalate the confrontation to the point to where they become the aggressor. Its not the exact verbiage, but I do remember something close to that.

 

[Frank Ettin]

Blanket discussions about things like this are rarely of use outside academic type discussions....

Not necessarily. An understanding of these concepts can help one make choices about how he conducts himself.

For example, the article notes:

....The general answer in most states, as best I can tell, is that the law tends to conclude that D loses his right to lethal self-defense on grounds of provocation only if he had the specific purpose of provoking V into threatening D with death or serious bodily injury, so that D would have an opportunity to kill or seriously injure V. If D simply knew that it was very likely that V would react violently, that is not enough.

Interestingly, the cases cited in items 3 and 4 are departures from this general rule. In Laney, the court held that Laney wasn’t entitled to a self-defense instruction because he knew that it was “almost inevitabl[e]” that a deadly confrontation would arise, and “had every reason to believe that his presence [on the street] would provoke trouble.” In Moore, the court seemed to go even further, taking the view that Moore wasn’t entitled to the instruction because she was “expecting trouble.”...

That sort of uncertainty might well give one pause before voluntarily inserting himself into a situation he should have reason to know could be volatile or turn violent. And based on these cases, it's probably a good idea for us to consider very carefully our reactions to taunts or insults.

 

[Ed N.]

As many of you know, a claim of self-defense does not apply if the person in question is found to have provoked the initial conflict.

I don't believe this is correct in Florida. Refer to http://www.flsenate.gov/Laws/Statutes/2011/776.041 .


Note the following (emphasis added):

The justification described in the preceding sections of this chapter is not available to a person who:
.
.
.
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant;


IANAL, but it appears to me that the provoker loses protection under SYG (i.e., he must now try to escape), but if he is unable to escape he still has the right of self defense, even though he provoked the attack.

 

[Moondoggie]

You're going to find about 50 different definitions of provocation, self defense, lethal force, etc as each state has its own laws and case law that defines specific instances. Some are very specific, some very vague.

You also have to think about laws addressing "terroristic threats", disturbing the peace (for instance, in my state the disturbing the peace statute has a reference to "fighting words"), simple assault, aggravated assault, deadly force, etc. Also, be sure you know what effect or impact "brandishing a firearm/deadly weapon" might have in your locale.

If you're going to carry a firearm, be SURE you KNOW what the law is in your jurisdiction. Same goes for inside your home. And, for goodness sake, if you pick up a firearm inside your residence to investigate a possible problem, be sure to put on your glasses if you wear them.

If you take a CCW class, hopefully the curriculum will cover these topics. In my state, the CCW curriculum is approved by the state so you have something to stand on if you have a CCW and color inside the lines.

I lived all over the country in my military career, and a general rule of thumb I developed is to ignore words and walk away. Never engage in "Oh, yeah?" or "one up" responses with strangers. Think about what the cost might be, and be the more responsible person. Chances are you're never going to see a random antagonist again, so why care about winning a battle of words?

 

[beatledog7]

In the cases cited in the blog, either of the parties could have made a choice that would in all likelihood have avoided the eventual deadly outcome. The questions for a jury ought to be, "Who had the opportunity to de-escalate, and did he or she do so?" Consider this scenario regarding provocation:

X and Y are engaged in a serious argument. Seeing no resolution in the offing, X turns and departs from Y, but Y pursues and re-engages X in a life threatening manner. X cannot end the attack in any other way, and he shoots Y.

The reason for the argument or who started it does not matter. Whether there was a long-term running battle between X and Y does not matter. X may well have "provoked" Y, but X demonstrated a willingness to end the event without violence; he made an obvious attempt at de-escalation. Y was unwilling to let the event conclude in the same manner; he let his emotions override his good judgment and became the aggressor. No matter what X may have done to or said to Y at any other time, Y's life was not in danger at the moment he chose to use lethal force against X. X's response was in self defense, and he should harbor no guilt.

Is that analysis correct? Does it carry legal weight as well as moral weight?

Someone will probably assert that perhaps X knew he could get Y to attack him, and therefore he provoked Y. Even if that were the case, Y still could have made a different choice, and by doing so could have remained alive.

 

[brickeyee]

The general answer in most states

Makes the knowledge not all that useful.

There are 50 states ad numerous submunicipalities with their own law.


You can get a general idea, but all you need to be involved in is one of the 'special' places ad the rules are different.

It is enough work to review and keep up to date on both statute law and case law in one or two jurisdictions.

And then you have the uncertainties even within states since not all court ruling in one portion of the state may apply to the whole state.

The same thing at the Federal level with appellate circuits not binding each other.

 

[Frank Ettin]

The general answer in most states

Makes the knowledge not all that useful....

Nope, the practical application is to look for the "lowest common denominator."

...There are 50 states ad numerous submunicipalities with their own law....

Except that they generally aren't all that different at the core. While things can get fuzzy at the edges, one can often find areas of sufficient commonality to help one order his actions.

So here, the "moral" we can get from the cases is to avoid inserting oneself into situations he has reason to believe are likely to turn volatile and to avoid responding to taunts.

 

[brickeyee]

"avoid responding to taunts."

Until you get to the 'fighting words' level in some jurisdictions.

Best to know the specific laws applicable in places you intend to carry.

Many of the self defense cases regretfully end up at the edges since 'reasonable man' is a concept not always clearly defined and one that often varies with local politics.