Arthur Kohn attacked Jeffrey Smith with a crowbar at a gas station in Lapeer, Michigan, a little after 7 AM on the morning of December 30, 2019. In response, Smith shot and killed Kohn. He claimed self-defense. A crowbar, in most circumstances, when wielded by a capable person with the opportunity and intent to inflict harm, constitutes a deadly weapon.
Nonetheless, as we revealed in Lesson 8, a jury dismissed Smith’s self-defense claim and delivered a guilty verdict after only about 90 minutes of deliberation. If Smith faced the imminent threat of great bodily harm or death at the hands of another, how could he be convicted of first-degree murder? In large part, it was because the jury likely decided that Smith was the initial aggressor.
When the Michigan Court of Appeals reviewed the case, the judges acknowledged that “the victim (Kohn) opened the passenger door of the Buick (Smith’s vehicle) and reached inside with his left arm.” The court wrote, “Defendant noticed the victim was holding a crowbar in his right hand. With his arm fully extended, defendant fired a gunshot at the victim, causing the victim to back away momentarily. The victim began ‘swinging’ the crowbar inside the Buick with his right arm. Defendant fired a second gunshot at the victim.” So far, the facts look reasonably favorable to the defender’s self-defense claim.
But we also know that moments before the deadly encounter, Smith had a road-rage-type encounter with Kohn where the men exchanged angry words, including a “couple of F-bombs.” After driving away, Smith chose to return to the gas station to reinitiate the confrontation. When the two vehicles aligned, side by side, security footage captured Smith extending his right arm. Prosecutors argued Smith pointed his .38 Smith & Wesson revolver at Kohn. “While sitting in the Buick,” the Court of Appeals wrote, “with the front passenger side window partially rolled down, defendant raised his right arm and pointed the revolver at the victim, who was sitting in his Chevy.” Criminal defense attorney Don West reminds us that pointing a firearm at someone is a crime—often an assault—and certainly a deadly threat.
The Michigan Court of Appeals concluded: “Defendant’s contention that the victim was the aggressor during the second confrontation is meritless. The evidence presented showed that defendant initiated the second confrontation by (1) electing to return to the gas station after having left and then (2) aiming the revolver at the victim.” Quoting the Michigan Supreme Court case of People v Rajput, the court asserted, “[A]n initial aggressor (i.e., one who is the first to use deadly force against the other) … is generally not entitled to use deadly force in self-defense.” Smith, the Court of Appeals concluded, was the first aggressor, and it invalidated his self-defense claim.”
Michigan’s case law describing the initial aggressor as “the first to use deadly force against the other” is relatively defender-friendly compared to most states. Remember, the self-defense laws vary from state to state, but practically every jurisdiction recognizes that a defender loses their right to claim self-defense if they are the initial aggressor. In many places, any criminal use of force, regardless of whether it rises to the level of deadly force or not, could turn someone into the initial aggressor. As Don West puts it: “The initial aggressor is usually the person who commits the first violent crime.” When Smith pointed his pistol at Kohn, he committed the first violent crime, and he became the initial aggressor.
The application of the legal designation of initial aggressor isn’t often cut-and-dried. Often, there is reasonable controversy over whether a defender acted as the initial aggressor, and in such cases, judges tend to allow juries to resolve it. Like so many other aspects of self-defense, the law has left the practical expression of the initial aggressor concept up to interpretation—and that generally means interpretation by a jury of your peers. The extent to which a defender initiated a violent encounter becomes one of many factors used to determine whether the defender’s use of force was legally justified.
For Lesson 10, we’ll return to the scene of the Indiana shoot-out between hostile neighbors Dean Keller and Jeffrey Weigle to see how Weigle’s initial act of aggression affected the disposition of the police investigation. Then we’ll return to the now familiar convenience store in Clearwater, Florida, to see why a jury convicted Michael Drejka of manslaughter, despite the fact that his attacker initiated the violence. Finally, we’ll go to Elizabeth City, North Carolina, to take a deeper look into the volatile escalation of violence that led to Gyrell Lee shooting and killing Quinton Epps.
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“Words aren’t typically enough to brand someone an initial aggressor,” Don West says. “You can yell at people. You can use profanity and very colorful language. You can do almost anything verbally except communicate a threat, usually coupled with some credible ability to carry it out.” Jeffrey Weigle used a lot of “very colorful language” on June 27, 2017. Weigle shouted insults at his neighbor, Dean Keller, from across the fence on the property line. Weigle even insulted Keller’s wife. Throughout the exchange, Keller kept his cool. But when Weigle presented a revolver and cavalierly brandished it, Keller drew his concealed pistol and fired multiple rounds, striking Weigle four times in the chest. Weigle feebly returned fire, striking no one. When the shooting stopped, Weigle stood up, and as he retreated to his home, he lobbed one last insult across the fence.
While recovering in the hospital, Weigle learned he’d be charged with criminal recklessness for his role in instigating the shootout. Weigle also learned that Keller would not face charges for shooting him four times in the chest. Johnson County Prosecutor Brad Cooper announced, “He (Weigle) was charged with being the person who brought out the handgun and started waving it. ” Just as in the Smith case, authorities considered the man who drew his pistol first to be the initial aggressor.
Cooper also made another bold declaration: “Waving a gun around gets you shot when the other guy is armed.” Throughout The Armed Defender’s Dilemma, we focus primarily on the legal jeopardy associated with using deadly force in self-defense, but the Keller case illustrates that armed defenders also risk getting shot—a result that the Tactical Professor, our friend Claude Werner, might call “a negative outcome.” Don West says, “If you’re the first aggressor and you are using force, you put the other person in the position of having to decide whether they are facing the imminent threat of harm, which could give them the legal justification to use force in response.”
With four shots to the chest, Weigle is lucky he survived. Weigle’s luck also extends to the fact that he didn’t hit anyone when he returned fire. Had Weigle injured or killed Keller or his wife, prosecutors might have charged him with anything between aggravated battery and murder. In such a scenario, Weigle’s legal team might have argued that their client had simply responded to Keller’s use of deadly force, but in response, the prosecution would almost certainly circle back to the initial aggressor rule. “I think it’s clear that Weigle is the one who crossed the line,” Don West says. “He displayed the firearm in a reckless manner. That’s legally sufficient to be characterized as the first aggressor if you didn’t act in self-defense. If you are the initial aggressor, you are not acting in self-defense.”
It is worth underscoring this point: if you are the initial aggressor, and the other person fights back with comparable force, then you have probably surrendered your legal right to claim self-defense. If the other party responds with disproportionate force, you might regain legal justification. If you make a demonstrable effort to disengage and the other party pursues the attack, then you might regain the legal justification to use force in self-defense. But in each of those scenarios, your legal defense would start a step behind, because as Don says, “every ‘if’ adds a level of complexity to the case.”
Dean Keller also caught a bit of luck. He is fortunate his security camera captured the verbal altercation—Weigle’s unlawful display. As we noted in Lesson 8, due to the position of Keller’s camera, Weigle’s revolver can be seen for only a few frames. Without that footage, it might have appeared that Keller simply had enough of his neighbor’s verbal abuse and decided to shoot him. The two men had been in documented fights before—one of which resulted in biting and stabbing. Without that footage, and considering the neighbors’ violent histories, authorities may have had trouble sussing out just who started the fight. 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 clear attempt to disengage and the other person continues.”
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When Markeis McGlockton walked out of the Circle A Food Store on Sunset Point Road in Clearwater, Florida, on July 19, 2018, he saw 47-year-old Michael Drejka locked in a verbal confrontation with Britany Jacobs, McGlockton’s life partner. McGlockton marched towards Drejka and violently shoved him to the ground. Drejka, surprised by the attack and prone on the pavement, drew his pistol and fired a single fatal shot. Don West says, “McGlockton, in my view, is the first aggressor legally because I didn’t see any evidence that Drejka did anything illegal during his argument with Britany Jacobs.” At first, Pinellas County Sheriff Bob Gualtieri seemed to agree, and he declined to arrest Drejka, citing Florida’s defender-friendly stand-your-ground law. Gualtieri noted, however, that when Drejka aimed his pistol at McGlockton, he paused before he fired. “That pause gives me pause,” the sheriff said. “That pause gives me some concern.”
The sheriff’s concern stemmed from the video evidence showing McGlockton stepping back once Drejka drew his pistol. In fact, the video shows McGlockton’s entire demeanor change from that of a threatening aggressor to one of contrition. Most people who viewed the video, including the jurors who convicted Drejka of manslaughter, felt that Drejka’s defensive display ended the attack. Alternate juror Edie Clator told reporters, “The defendant had enough time to make the decision that once he saw the victim retreating, that he did not have to pull the trigger.”
Drejka contended he didn’t see McGlockton step back, but Drejka also conceded that, if McGlockton had stepped back—or even stopped advancing—the shooting wouldn’t be justified. During Drejka’s police interrogation, Detective Moffett asks: “What happens if he … if he didn’t come towards you, would you still have fired a round?” Drejka replies, “Hell, no. There’s no reason to. If he’s retreating, then I don’t need to use my firearm.” Don West says, “In some respects, Drejka knew where the boundary was. Had he recognized that McGlockton stopped or was retreating, he knew that he would not legally be allowed to use lethal force because the attack was not imminent at that point.”
You know many of these details about the Drejka case because we presented them in Lesson 7: Don’t Shoot AFTER the Threat Is Over. What makes them relevant for Lesson 10 is that when McGlockton stopped his attack and stepped backwards, retreating from the defender, he effectively reset his initial aggressor status. In a practical sense, if not from a strictly legal or statutory perspective, the violence in the Drejka case unfolded in two distinct episodes. The first episode began when McGlockton shoved Drejka to the ground and ended when he stepped away. The second episode began when Drejka pulled the trigger and ended when McGlockton ran into the convenience store, collapsed, and died. As an armed defender, even if you’ve done something that might make you the initial aggressor, you can potentially reset the scenario by making a clear effort to end the confrontation and disengage, thus preserving your right to claim self-defense should the other party choose to continue the physical altercation. But you don’t want to count on that caveat.
Self-defense confrontations unfold quickly, and it can be difficult to keep track of the dynamics of a messy fight. To demonstrate the perilous nuances of the initial aggressor concept, Steve Moses proposes a hypothetical: What if McGlockton also had a gun? Imagine that, instead of retreating from Drejka’s defensive display, McGlockton drew a concealed pistol and managed to shoot Drejka before being shot himself. In that scenario, McGlockton likely would have been charged in the shooting, and he probably would have claimed self-defense. However, the fact that he committed the first violent crime by pushing Drejka to the ground would have made him the initial aggressor. Even if a judge allowed McGlockton’s hypothetical legal team to present a self-defense argument, the jury would have been instructed on the initial aggressor rule, and they would likely have convicted the defendant.
We can parse out the shooting of Markeis McGlockton moment by moment because, like the Dean Keller case, a security camera captured the entire exchange. The video in the Keller case served to exonerate the defender. In the Drejka case, one juror told reporters they watched the surveillance video “at least two or three hundred times,” and it helped seal the manslaughter conviction. Without video, both cases might have resulted in different legal consequences. It all helps reinforce Lesson 1: The Goal of Self-Defense Is to Break Contact. Initiating contact with a potential aggressor is the opposite of breaking contact.
The Drejka case also reinforces the idea that a criminal conviction is not the worst outcome for the initial aggressor in a self-defense case; the worst outcome is death. Despite Drejka’s conviction, Steve Moses says, “It was McGlockton’s actions as the initial aggressor that eventually resulted in him getting shot.”
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Gyrell Lee’s cousin Jamieal Walker had a running beef with Quinton Epps, who allegedly had a reputation for starting trouble. Lee celebrated New Year’s Eve 2012 in the yard of a neighbor’s house in Elizabeth City, North Carolina. Shortly after midnight, Lee witnessed Epps and Walker “engaged in a heated argument” near a car on the street, according to court documents. Epps left, but twenty minutes later, he reappeared, and this time he became “verbally abusive and aggressive.” When Lee and Walker noticed Epps cruise by a third time, Lee decided to retrieve his .45 pistol from his car “out of instinct,” he said.
After circling the block, the car stopped in the street three houses away. Lee and Walker decided to walk over and confront Epps. An argument erupted between Walker and Epps almost immediately. Lee testified that he tried to “calm the hostilities” and “eradicate the verbal disagreement.” He failed. Walker punched Epps in the face—becoming the initial aggressor. In response, Epps grabbed the hood of Walker’s jacket and shot him twice in the stomach. Lee testified that “right after [Epps] shot [Walker], [Epps] looked at me and pointed [his] gun and [then] I shot him.”
Lee fired eight times, emptying his magazine. Epps died in the street. Walker fled and died of his wounds in a neighbor’s backyard about 120 yards from the shooting. Lee fled and hid his firearm under a garbage can in his backyard. When authorities caught up with Lee on New Year’s Day, they initially suspected him of both shootings until they were able to sort out the relationship between the parties. Seven days later, a Pasquotank County grand jury indicted Lee for first-degree murder. Lee claimed self-defense.
At 11:34 PM on Saturday, July 11, 2015, a deadlocked jury finally came to a unanimous verdict, finding Gyrell Lee guilty of second-degree murder—in part because “the State contended that defendant should have retreated because a reasonable person in defendant’s shoes would have ‘removed himself from the situation’ and ‘run away.’” The verdict sparked controversy. The Cato Institute filed an amicus brief during the appellate aftermath of the verdict, and one of the authors, Ilya Shapiro, wrote in a summary: “That’s why North Carolina passed its own ‘stand your ground’ law in 2011: to prevent someone like Gyrell Lee, who defended himself and his cousin in good-faith reliance on his right to repel force with force, from being treated like a common criminal.”
Ultimately, the North Carolina Supreme Court reversed the verdict and ordered a new trial because of the criminal court’s failure to properly instruct the jury on North Carolina’s version of the stand-your-ground law. The Supreme Court’s opinion stated there is “a reasonable possibility that, had the trial court included the stand-your-ground provision in its instructions, a different result would have been reached at trial.” We’ll never know for sure if a proper jury instruction would have resulted in an acquittal because seven years after the Supreme Court ruling, the prosecutor quietly dropped the charges, stating that “the State’s primary witness has subsequently been charged with perjury and later convicted of a sex offense.” As a result, “the State can not rebut the defendant’s assertion of self-defense.”
We’ll discuss the Lee case more in Lesson 15: Don’t Stand Your Ground, but for now, the shooting of Quinton Epps provides some interesting back-door lessons about the complicated concept of the initial aggressor.
First, it is clear that Gyrell Lee was not the initial aggressor—Walker assumed that role when he punched Epps in the face. However, Lee was clearly associated with the first aggressor, as he was there to support his cousin. He was a party to the aggression. It’s not difficult to imagine a jury finding Lee “guilty by association,” holding him partially accountable for his cousin’s initial act of violence when rendering their verdict.
Second, it’s worth asking whether Epps, had he survived, could have successfully claimed self-defense for shooting Walker after being punched in the face. Chief Justice Mark D. Martin answers this question in his concurring opinion to the decision overturning Lee’s conviction. Martin writes:
Given these facts, Epps used deadly force against Walker after Walker had merely thrown a punch. That punch did not justify a reasonable belief on Epps’ part that shooting Walker was necessary to prevent Epps from suffering death or great bodily harm, so Epps himself did not act in lawful self-defense … when he shot Walker. This means that Epps’ use of deadly force was unlawful, and defendant therefore could have defended Walker from it with deadly force.
It means, as a third party, Lee could have been more justified in using force to defend the initial aggressor than the initial aggressor would have been in defending himself. That is, if the trial court interpreted the Supreme Court Justice’s opinion accordingly, and if the judge properly instructed the jury, and if the jury forgave Lee of his other shortcomings. Once again, every “if” adds complexity to a case, and in a life-or-death encounter, you won’t have the now-retired Justice Martin there to give you advice. Regardless of the nuances of the law and the circumstances of the fight, if you’re the initial aggressor, or on the side of the initial aggressor, a jury will likely hold that against you—so don’t be the initial aggressor.
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Unlike the Keller and Drejka cases, no one captured video of the shootout that resulted in the deaths of Walker and Epps. At trial, prosecutors suggested Lee shot Epps after he had fallen to the ground. The State’s sole eyewitness said he saw “one guy reach over on the guy that was falling and shoot, and then … one get up and run and one continuously get shot.” He stated that while Walker ran away, Epps remained on the ground and Lee “came out of nowhere,” stood over Epps, and repeatedly shot Epps at close range.” That’s the same witness, by the way, who later allegedly perjured himself and was convicted of a sex crime.
Any parent with more than one child has probably heard the phrase “They started it!” when trying to mitigate a sibling dispute. Usually it’s just easier to punish everyone involved than to try getting to the bottom of it. In self-defense shootings where both parties committed acts that led to the deadly violence, prosecutors find it very easy to file charges against the surviving party. Steve Moses says, “All physical fights—where both parties elected to be there—I think they have a criminal element to it. In a self-defense scenario, you have a criminal and a victim. But in this particular instance, you are both criminals.” While Steve’s comment might not be strictly legally true in all circumstances, it’s true enough in spirit and in the practical application of justice to deserve careful consideration.
No responsible concealed carrier intentionally becomes the initial aggressor, but sometimes arguments spin out of control, and people become emotionally hijacked—remember Lesson 8. Don West says, “A verbal conflict rarely stays in one place. Somebody truly starts it, maybe with an ugly word or with an eyeroll, and it goes from there, back and forth, until somebody crosses the line to become the initial aggressor. If you’re that person, you’ve probably lost your claim of self-defense.”
