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.