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Monday, March 26, 2012

Trayvon Martin and the Initial Aggressor Issue

In my initial post on the tragic Trayvon Martin case, I intentionally avoided discussion of the "initial aggressor" issue because I wanted to focus on the no-duty-to-retreat rule set up by Florida's self-defense statute and the fact that it had little to do with the immunity from prosecution and arrest that the statute also establishes. But the aggressor issue is unavoidable.

In general, the "initial aggressor" is divested of the right to use physical force in self-defense, much less deadly physical force, unless he withdraws from the encounter and indicates to the victim his withdrawal, and then the victim pursues. Thus, even in a "no duty to retreat" jurisdiction, such as Florida, the initial aggressor does indeed have a duty to retreat before resorting to deadly force. This should sound familiar to anyone who grew up with a sibling -- who can deny the innate sense of justice invoked by the words: "But s/he started it."

The trouble lies in the "it" that the other person supposedly started. What does one have to do to be considered the initial aggressor?

I have always found this to be one of the most maddeningly indeterminate questions of criminal law. In the case of U.S. v. Peterson, which I use in my Criminal Law class, the victim trespassed on the defendant's land and stole the windshield wipers from the defendant's vehicle, a misdemeanor. The defendant went into his house, retrieved a gun, returned, and told the victim not to move. The victim approached the defendant menacingly with a wrench and the defendant shot and killed him. The court held that the question of who was the initial aggressor was a question for the jury, rejecting the defendant's argument that the victim's trespass and misdemeanor theft made him the aggressor as a matter of law. (Confusingly, the court also held that the defendant had a duty to retreat, even if his dwelling extended to the curtilage of his house, because he was the initial aggressor as a matter of law!) Peterson tells us that committing an unlawful act does not necessarily make one an aggressor.

But then what does make someone the aggressor? A broad reading of some of the cases indicates that if the defendant was somehow "at fault," then he is the initial aggressor. But, if that were true, Peterson was wrongly decided because certainly the victim, by committing a theft, was the first person in the confrontation to act wrongfully. A much more narrow conception of "initial aggressor" encompasses an intent requirement -- one is the initial aggressor only if one's acts are, in the words of Peterson, "reasonably calculated to produce an affray foreboding injurious or fatal consequences" (emphasis added).

So let's apply this to the Trayvon Martin case. Florida Stat. sec. 776.041(2) is decidedly ambiguous on what an aggressor is: it provides that the right of self-defense is "not available to a person who [i]nitially provokes the use of force against himself . . . ." The critical word there is "provokes." "Provokes" might imply that some intent to precipitate violence is necessary. On the other hand, "provokes" can be read more broadly as simply triggering a violent response without intent that it occur, as when, in the classic voluntary manslaughter example, a wife "provokes" a fatal attack by her husband when he catches her in the arms of her lover, even if she did not expect to be discovered. The problem with this broad a reading is that one could be said to be the initial aggressor even by engaging in behavior that is entirely innocent, such as by asking a passerby for a handout, or even constitutionally protected, such as by telling the passerby that he practices a false religion and will burn in hell for it.

According to Zimmerman's statement to the police, released today, he had lost sight of Martin when Martin approached Zimmerman and then attacked him. Obviously, under this version of events, Martin is the initial aggressor. However, Martin's girlfriend has also said that she was on the phone with Martin when he heard him say, "What are you following me for?" and someone (presumably Zimmerman) answered, "What are you doing around here?" Martin told her that the man we now know was Zimmerman was following him and that he was going to walk quickly to get away. The Martin family lawyer has said that this information "blows Zimmerman's absurd self-defense claim out of the water."

Well, not quite. That would be true if following someone to ask questions rendered Zimmerman the "initial aggressor" as a matter of law. In that case, even if Martin had been the first to launch a physical attack, Zimmerman would have had to withdraw in order to regain the right to self-defense. But does following someone, even with the intent only to ask questions, render Zimmerman the "initial aggressor?" I would think not. This seems more like the panhandler hypothetical, except that Zimmerman had to approach and follow Martin in order to engage him in conversation. But, to me, the word "provokes" encompasses something more than asking another person questions, even one has to follow him down the street to do so.

This is not to say that Zimmerman could not be initial aggressor. If he followed Martin down the street with the intent to precipitate a violent encounter, or if he initiated physical contact, he would likely be the initial aggressor as a matter of law. And even if a jury believed that Zimmerman had no such intent, and that Martin initiated physical contact, it might be the case that Martin himself was justified in using physical force because he reasonably believed that Zimmerman was about to do him harm. In such a case, odd as it may seem, both may have had a valid self-defense claim, and there might not have been an "initial aggressor." But to say that the phone conversation between Martin and his girlfriend "blows Zimmerman's . . . self-defense claim out of the water" is, at the least, an overstatement.

Posted by Michael J.Z. Mannheimer on March 26, 2012 at 10:46 PM in Criminal Law, Current Affairs | Permalink


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Mark Kovacic: You seem to have completely misunderstood what I wrote. Your comments are responsive to arguments I didn't make and views I don't hold.

For example, you say, "We lived in such a world before the 2005 statute, your belief to the contrary notwithstanding." -- But I made no comments about the state of affairs prior to 2005. What I said was that "Florida's Stand Your Ground law doesn't force us to". Talking about what the SYG law does going forward, how could I be talking about the situation before the statute passed.

Posted by: David Schwartz | Apr 17, 2012 8:50:05 AM

Speaking directly to Mr Schwartz's comments:
Words are words and actions are actions, unless those words are directly indicative of immediate action, e.g. actual threats.

We lived in such a world before the 2005 statute, your belief to the contrary notwithstanding.
The difference this law makes is that we do not destroy an innocent defenders life while we work out that he or she was justified in defending themselves.

If you do not believe that the course of asserting an affirmative defense at trial as opposed to not being tried in the first place until the prosecution addresses the issue of self defense would be destructive to an innocent persons life/livelihood, I invite you to research the amount of time and money such an endeavor would entail.

Merely being arrested for a murder or manslaughter charge could result in costs easily in the 10's of thousands of dollars in order to bond out and get back to work, not to mention hours of lost work to attend hearings.

It is far better that we investigate, then charge and arrest only where there is cause beyond the fact that a homicide has occurred, lest we punish those whose only crime was being prepared to defend themselves against unlawful aggression.

Posted by: Mark Kovacic | Mar 28, 2012 2:45:13 PM

Just a quick note to say thanks for a great series of posts. I taught Peterson yesterday, just after reading this latest post, and your series helped me complete my thoughts on how to link Peterson and the Trayvon Martin case most effectively for the class. Cheers.

Posted by: FifthYearLawProf | Mar 28, 2012 9:25:07 AM

"Thus, even in a "no duty to retreat" jurisdiction, such as Florida, the initial aggressor does indeed have a duty to retreat before resorting to deadly force."

Reading the statute, I'm confused about one thing: What is the practical distinction in 776.041(3) between the initial aggressor (a) "exhaust[ing] every reasonable means to escape" and (b) "withdraw[ing] from physical contact" before resorting to deadly force? I realize (b) is essentially "duty to retreat," but what purpose does (a) add to the statute?

Posted by: Chris | Mar 27, 2012 9:47:15 PM

I would say that following someone, even as they walk briskly in what appears to be an attempt to get away from you, and then asking them in a hostile manner what business they have in a place they have every right to be would be considered provocation. Of course, that doesn't justify a subsequent attack, but under Florida law, it does trigger the duty to retreat in the face of non-lethal force.

We don't want a world where armed vigilantes can provoke non-lethal attacks against them and then respond with lethal force. And Florida's Stand Your Ground law doesn't force us to.

(I make no claims about what actually happened in the Martin/Zimmerman case.)

Posted by: David Schwartz | Mar 27, 2012 7:40:22 PM

Ken, that is a fair point and I would modify my stance accordingly. That is consistent with the common-law treatment of "general intent," which I always think of, in a very shorthand way, as corresponding to "at least recklessness" as defined by the MPC. So perhaps we can say that Zimmerman was the aggressor if he followed Martin hoping the encounter would turn violent, knowing that it was virtually certain to turn violent, or even aware of a substantial risk that it would turn violent.

Posted by: Michael J.Z. Mannheimer | Mar 27, 2012 1:19:05 PM

The fact that these issues are very tough to sort out (they involve a very ambiguous and constantly shifting set of circumstances that change who is the one truly defending themselves) is exactly why Castle-style immunity shouldn't be part of this law (Castle resolves them by simply favoring the party who is the homeowner, which is rarely ambiguous).

Immunity basically removes any standard measure of evidence, probability, likelihood to the story that the person claiming they felt their life was in danger: all they have to do is assert it, and have their story be rational, and a judge has grounds to toss out any charges leveled against them. That's far too broad, and far too early in the process. I agree that there should be far more safeguards against malicious prosecution of people who were attacked and tried to defend themselves. But that's just the wrong instrument for the job.

One possibility not mentioned here is if Zimmerman in some way tried to keep Martin from leaving the area in some manner: whether putting a hand on his arm (non-threatening in intent, perhaps, but a sign to Martin that the strange man who was chasing him was now about to restrain him), showing his gun, or something else. That could be interpreted as illegally attempting to detain Martin: something that Martin very well could have seen as a threat that he needed to react to.

Consider a woman cornered in an alley by a strange man who had chased her there, and seemed to be bent on her staying there while he talked her up. At what point would she be justified in striking him in order to get away? What sorts of actions would be required from him to justify such a response? (placing a hand on her shoulder? putting an arm out to block her exit?)

Now consider the same case, but the man reveals that he's armed with a gun (though he hasn't drawn or pointed it yet)? Is she justified in trying to beat him into submission and getting control of the weapon? What actions by the man would justify her staying (standing her ground) in order to make sure she wasn't going to get shot in the back?

Posted by: Drew | Mar 27, 2012 11:59:00 AM

Another very helpful post. But I would qualify the last paragraph a bit. I think that Zimmerman could be the initial aggressor even if he did not act with the *intent* to precipitate a violent encounter (and did not initiate physical contact), so long as he knew he posed a threat of harm to Martin. Suppose he brandished his gun or otherwise conveyed his willingness to use force if Martin did not answer his questions or did not leave the gated community. Then, it seems to me, Martin would be entitled to use force in response, and Zimmerman would not be entitled to use force unless he first withdrew from the encounter.

Posted by: Ken Simons | Mar 27, 2012 9:32:23 AM

Eric, absolutely. To my mind, that is the most important reason for the Sixth Amendment jury-trial right -- to preserve the jury's authority to make local common law in criminal cases. But there is a tension between that authority and the goals of assuring some level of predictability in the law and uniformity across a jurisdiction. So the question is how we instruct the jury. Do you think it's sufficient to ask them simply to determine whether the defendant was "the initial aggressor?" I'm not sure that's enough.

Posted by: Michael J.Z. Mannheimer | Mar 27, 2012 9:19:55 AM

Leaving things like this to the jury makes sense. It depends on local sensibility and custom.

Posted by: Eric Rasmusen | Mar 27, 2012 9:03:05 AM

I've found your commentary highly illuminating to understand the legal intricacies. Thanks.

Posted by: Jen Kreder | Mar 27, 2012 8:06:46 AM

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