Key Takeaways
- A person who starts a fight by threatening unlawful force generally cannot claim self-defense against the victim's lawful response.
- An initial aggressor can regain the right to self-defense by withdrawing and communicating that withdrawal, and in some states by facing a deadly response to a non-deadly attack.
- Even without throwing the first punch, a person who deliberately provokes an attack in order to have an excuse to use force can lose the right to self-defense under many statutes.
If you started the fight, or helped push things to the point of blows, can you still claim self-defense when the other person fights back?
In this TalksOnLaw Brief, Joel Cohen talks with Kimberly Kessler Ferzan, the Herbert F. Goodrich Professor of Criminal Law and Professor of Philosophy at the University of Pennsylvania Carey Law School, about how people can forfeit their defensive rights. Her short answer is no, but she explains that the law is nuanced and depends on whether you were the initial aggressor or the provocateur.
The Initial Aggressor
Professor Ferzan starts with the clearest case. "If I go to punch you, and you go to stop me, then I'm the bad guy, you're the good guy," she explains. The aggressor cannot claim to be threatened with unlawful force, because the aggressor's force was unlawful and the defender's force was lawful. There are exceptions. If the aggressor retreats and communicates that he is no longer a threat, he can regain his defensive rights. And in some jurisdictions, if the aggressor threatens only non-deadly force and the victim escalates to deadly force, the aggressor regains the right to defend himself, because the victim's response is no longer necessary and proportionate.
The Provocateur
A provocateur, by contrast, picks the fight without starting it. Professor Ferzan's example is someone who walks into a bar and repeatedly insults another person and his mother. The insulted person still may not attack, because insults are not a threat of unlawful force. But because the provocateur got the other person riled up, he may lose his right to defend against the attack he invited. Many statutes, she notes, are framed around a person who intentionally goads another into attacking so that he can then use force in response, in effect creating his own defense, and those statutes deny the defense in that situation.
Where Courts Get Confused
Professor Ferzan observes that courts often blur initial aggression and provocation. Courts say that mere words can never be enough, which is true for being an initial aggressor, but whether words alone can make someone a provocateur is a separate question. She describes a case holding that words were not enough, in which a dissent imagined someone shouting racial epithets at the funeral of a recently deceased civil rights leader to incite the crowd. Courts must also keep these questions distinct from the separate doctrine under which legally adequate provocation can reduce murder to manslaughter for the person who responds.
What to Know Now
The framework Professor Ferzan describes remains the law across the United States, with details that vary by state. The Model Penal Code, which many state codes draw on, denies deadly force to a person who, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter. Most states recognize that an aggressor who withdraws in good faith and makes that clear can regain the right of self-defense. States differ on whether a non-deadly aggressor regains the right when met with deadly force, and on how jurors are instructed about provocation. These rules also interact with stand-your-ground laws, which often do not protect a person who provoked the confrontation; Florida's statute, for example, generally denies the justification to someone who initially provokes the use of force. Because self-defense claims are so fact-specific, the precise answer depends on the state's statute and jury instructions.
