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Posted on May 4, 2023 by in Shawn Vincent

Initial Aggressors and Provocateurs

It’s tough to claim self-defense if you’re the one who started the fight. The core legal principle behind the justification for using deadly force in self-defense is that the defender must have a reasonable belief that they faced the imminent threat of serious bodily injury or death at the hands of another. We’ve recently explored how different interpretations of the terms “reasonable belief,” “imminent threat,” and “serious bodily injury” can impact the justification for using deadly force, and we warned that there are other legal considerations that can adversely impact a defender’s self-defense claim. Chief amongst these are the concepts of “provocation” and “initial aggressor.”

Don West, criminal defense attorney and National Trial Counsel for CCW Safe says, “When a case is being evaluated on whether self-defense was lawful under the circumstances, there is going to be a focus on who started it, and if you are legally considered the ‘initial aggressor,’ you may not have a legal claim to self-defense.” Not just anyone can make a legal self-defense claim in court. There has to be enough evidence of self-defense for the judge to allow lawyers to argue for self-defense at trial and for a self-defense instruction to be presented to the jury. In self-defense cases, it is almost always clear who the shooter was, so if a judge eliminates self-defense as a valid legal argument, few other options remain for avoiding a serious homicide-related conviction. For an armed defender, an “initial aggressor” finding is disastrous to a legal defense.   

Many physical conflicts begin as verbal altercations, but Don says that words alone are almost never enough to trigger the initial aggressor status — people can start an argument without technically “initiating” a fight. However, Don says, “If you assault someone … if you lay hands on them or even raise a hand and approach them, then you may become the initial aggressor.”  If you strike the first blow (or even try to) you could lose the legal claim to self-defense.

Even if a person strikes the first blow, it doesn’t necessarily mean they’ve lost their ability to claim self-defense permanently. Firearms instructor Steve Moses says, “If you engage in something that might go to mutual combat, then your self-defense claim probably evaporates — unless you make some heroic attempt to disengage and the other person continues.” As Steve suggests, an initial aggressor may shed that legal status if they make a clear-cut effort to remove themselves from the fight and retreat. If the other combatant re-engages, then it is possible the law will see the second part of the fight as a separate incident where the other party is designated the first aggressor. 

Don West says an initial aggressor might also regain the legal right to claim self-defense if the other combatant elevates the level of force being used. If one party to a fistfight introduces a weapon, then the other party may have legal justification for resorting to deadly force. It’s important to note, however, that these types of self-defense scenarios are dynamic, and without strong evidence, it can be very difficult to make a case for the sequence of events in a chaotic melee. Moreover, just because an initial aggressor can regain the right to legally claim self-defense, it doesn’t mean it will be a strong claim. Juries often fault armed defenders for not making enough effort to de-escalate or preclude a self-defense encounter, and likewise, they can be notoriously critical of armed defenders who initiate a conflict that leads to a fatality.

The Michael Drejka case helps illustrate the dynamic, nuanced nature of the “initial aggressor” concept and how juries assign responsibility to the parties involved in a deadly confrontation. Michael Drejka shot Markis McGlockton when an argument over a handicapped parking spot turned violent. McGlockton was in a convenience store while his girlfriend, Britany Jacobs, waited for him in the car, which was parked in a marked handicapped spot. Drejka took umbrage, and confronted her about it, insisting she move to an unmarked spot. An argument ensued. Security camera footage shows that when McGlockton exits the convenience store, he sees Drejka arguing with Jacobs, and he walks up briskly and violently shoves Drejka to the ground. Fearing McGlockton was going to continue the fight, Drejka pulls his concealed pistol and points it at his attacker. McGlockton pauses and steps backward, but Drejka fires anyway — a single, fatal shot.

In this case, McGlockton was the “initial aggressor.” He struck first, starting the physical confrontation by shoving Drejka to the ground, which is a crime: battery. McGlockton opened the door for Drejka to legally use force to defend himself — although the use of deadly force against an unarmed attacker proved controversial, and it was ultimately ruled unjustified. The fact that McGlockton began to back away contributed to Drejka’s criminal conviction because it appeared McGlockton made an effort to end the physical confrontation, potentially putting the blame on Drejka for reinitiating the violence. While Drejka wasn’t the initial aggressor, he did start the argument that lead to the fight. As Don West pointed out, it is not illegal to start an argument, but from a practical standpoint, an armed defender can lose the sympathy of a jury when they start a verbal altercation — especially if it’s done in a malicious way or if it is over some petty infraction. In those circumstances, a jury may hold the armed defender morally responsible for provoking a confrontation that ultimately turns deadly. 

“Provocation,” is a legal term that can factor into a self-defense case. Don West says provocation is the act of baiting someone to attack you. “You’re doing and saying things with the expectation that the other person will respond physically,” Don says, “giving you an excuse to attack them back.” In most jurisdictions, this act of baiting someone to attack in order to justify the use of force in return will legally invalidate a self-defense claim. “Provocation,” is pretty tough to prove, and as a legal exemption to a self-defense claim, we haven’t seen it come up in the many cases we’ve studied, however, we have seen many examples of how a defender’s role in initiating a confrontation damages their legal defense.

Although not strictly “provocation,” the home intrusion case of Markus Kaarma helps illustrate how the idea of baiting an aggressor or intruder into a manufactured self-defense scenario can be devastating to a self-defense claim. Kaarma shot an intruder who had entered his garage late at night. The law in most places allows a home defender to assume that an uninvited home intruder poses a threat to the occupants, and combined with the tenants of the Castle Doctrine, home defenders generally enjoy broad discretion when using deadly force. Nonetheless, Karma was convicted of deliberate homicide for his shooting and was sentenced to 70 years in prison because it was found he encouraged the incident that led to the use of deadly force. 

Investigators in Kaarma’s case found evidence that the defender had staged his garage to bait an intruder in order to justify shooting them. Weeks before the shooting, Kaarma had been the victim of a burglary. He often kept his garage door partially open at night so he could smoke out there. One night, an intruder entered through the partially opened door and stole some valuables. After the intrusion, Kaarma voiced his anger to neighbors and acquaintances, issuing threats toward the unknown perpetrator. The night of the shooting, Kaarma intentionally left the garage door open. He set up a video monitor so he could watch for intruders, and he placed a loaded shotgun by the front door. He also staged one of his girlfriend’s old purses on the trunk of a vehicle parked in the garage to lure in a would-be intruder.

The person who entered the garage that night wasn’t the previous burglar. That person was later captured and actually testified at Kaarma’s trial. Instead, the intruder wound up being a seventeen-year-old foreign exchange student who had learned about “garage-hopping” from his new American friends — the art of pilfering beers out of the garage refrigerators of hapless neighbors who left their doors open. Kaarma had intentionally staged his garage to attract an intruder, and it worked.  Despite the obvious provocation, Kaarma’s lawyers were allowed to assert self-defense at trial, but the jury didn’t buy it.

The lesson for concealed carriers is that the more you contribute to the circumstances that lead to a deadly use of force event, the more likely you are to face significant legal consequences. If you become the “initial aggressor,” or if you provoke an attacker with the intention of trying to justify a use of force response, you could lose your legal right to have a jury even consider your self-defense claim. Even if a judge allows a jury instruction on self-defense, a jury is unlikely to acquit a defender who provoked or started a fight that leads to the use of deadly force.