Self-defense is an affirmative defense that justifies the defendant's conduct and can mitigate or exonerate the defendant from responsibility. But what happens if the defendant was the initial aggressor or provoked the victim in some way — can the defendant still claim self-defense? Professor Kimberly Ferzan of University of Pennsylvania School of Law discusses under what circumstances defendants may forfeit their defensive rights, what it means to be an initial aggressor or a provocateur, and how courts interpret the differences between the two.
Kimberly Ferzan is a professor at the University of Pennsylvania Law Shool. Her research focuses on criminal law theory.
Interview with Criminal Law Expert – Professor Kimberly Ferzan
TalksOnLaw (Host): Professor Kimberly Ferzan of the University of Pennsylvania School of Law, Kim, welcome to TalksOnLaw.
Kimberly Ferzan: Thanks so much for having me, Joel.
Host: Let's talk about self-defense when, perhaps, you started the fight, or perhaps you were equally responsible for things coming to blows. Can you still use it as an affirmative defense?
Kimberly Ferzan: The law's gonna be very nuanced about this. The short answer is no, but it's gonna depend a little bit. So, the important thing here is to break up two different kinds of ways that you could potentially forfeit your defensive rights. One is you're the initial aggressor, and the second is you provoked it; you're the provocateur. So, initial aggressors, right, obviously can't use self-defense. If I go to punch you, and you go to stop me, then I'm the bad guy, you're the good guy. I can't then say, “Wait I'm the— I'm being threatened with unlawful force,” right. My force was unlawful, and your force was lawful. Now, there are going to be a couple tricks to this, right. So, if I then retreat and I communicate I'm no longer threatening you, then I can regain my defensive rights. If I threaten you with non-deadly force and you escalate to deadly force, then in some jurisdictions I regain my defensive rights.
Host: That's interesting, Professor. So, in that case I say, “Professor, I'm really upset with my grade. I'm gonna come over there and give you a paper cut.” And you pull out a gun and say, “Well, you just stepped to me, now you're gonna meet your maker.” Well, perhaps I can then have a real claim for self-defense, depending on the state.
Kimberly Ferzan: Yes, because I have now done something wrong by so completely escalating. I'm not using the right kind of self-defense that's necessary and proportionate. Instead, I'm using disproportionate defense to what you threatened.
Host: That was initial aggressor. Provocateur, I suppose, what does it mean to be provoking the violence?
Kimberly Ferzan: So, you can provoke the violence without starting the fight by getting someone really riled up or giving them reason to want to attack you. So, if I go into a bar and I call your mother a whole bunch of names and continually insult you, then I have in some ways picked the fight. Now, notice that in that case, you're still not allowed to attack me. You would still be acting impermissibly because I'm not actually threatening unlawful force. However, because I'm the one who got you riled up, I actually lose my right to defend against you.
Host: Professor, could you give me an example where self-defense was not permitted because the person was seen as being provocative?
Kimberly Ferzan: One thing that's really interesting about this is that courts get very confused about the difference between initial aggressors and provocateurs. So, sometimes the kinds of things that they start looking for with provocation is actually initial aggression. So, some courts will say things like “mere words can never be enough.” But, of course, mere words can never be enough to be an initial aggressor, but there's a totally separate question whether mere words could be enough to count as being a provocateur. So, there was one case that held this where the dissent — that mere words weren't enough — and the dissent said, well, wait a minute. What if there was a civil rights leader who had recently died, and at his funeral someone showed up and started shouting racial epithets at the crowd. Can't you imagine a case where the person intentionally, and even with words, got everyone so riled up that they then decided to use force against this person. And if the person does that, should they then have the right to self-defense? But it turns out to be very tricky for courts to figure out what this category is, how it relates to initial aggressors, and then how it relates to the entirely separate question of when the person who's the respondent should get a reduction from murder to manslaughter because of legally adequate provocation.
Host: Yeah, that does seem like a horrible hypothetical, where, you know, someone basically tricks someone into justifying their deadly force. So, in the hypothetical you're giving, it sounds like you're envisioning someone saying, “Hey, I'd like to kill a civil rights leader. Why don't I trick them into attempting to beat me up?”
Kimberly Ferzan: And that's exactly how many statutes are framed, in terms of “I am intentionally poking at you in order for you to react, so that I may defend against you,” right, so it is this in some ways creating your own defense, and then courts are saying — well no, or actually, statutes are saying — you are not permitted to defend in those cases.