Provocation and Self-Defense

One recurring comment I’ve heard on the Zimmerman case is that Zimmerman was in the wrong for following Martin in the first place, and therefore couldn’t use deadly force when Martin reacted violently in response (perhaps in what Martin perceived was self-defense). This is an interesting and complicated question, which Prof. Alafair Burke (Huffington Post) discusses in some detail; I thought I’d also discuss it, with some overlap with Prof. Burke’s analysis.

To begin with, it’s clear that the right of lethal self-defense is lost in some situations. If D criminally attacks V with a knife, V takes out a gun, and D stabs V, D can’t defend himself by saying “I was in reasonable fear of death or grave bodily harm.” That risk of injury happened because D was committing a serious crime in the first place.

But what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction? Has D also lost the right to lethal self-defense, because he could have avoided the need for such deadly force by avoiding the earlier act — or because he more broadly “provoked” the occasion for such deadly force? (Note that this is a separate kind of provocation from that which reduces a murder charge to voluntary manslaughter; though the label is the same, the legal rules and consequences are completely different.)

Let’s consider a few scenarios:

1. D knows that V is insanely jealous, and has threatened to attack D for dating V’s ex-girlfriend. Nonetheless, D keeps dating her, and even appears with her in places where V might well see them. V attacks D in a way that threatens D’s life, and D shoots V.

2. D knows that V hates him, and that V is likely to attack D with deadly force when V sees him. (Maybe V is a rival gang member, or maybe V just hates D.) Nonetheless, D keeps going (legally armed) to a public place where he knows V periodically hangs out. V attacks D in a way that threatens D’s life, and D shoots V.

3. D, who is black, knows that there’s a race riot outside the house at which he is staying, and the mob had been baying for his blood before he ran into the house. But D goes (legally armed) onto the street, rather than staying in the house or escaping through a back alley. See Laney v. United States, 294 F. 412 (D.C. Cir. 1923). V, one of the white rioters, attacks D in a way that threatens D’s life, and D shoots V.

4. D goes to a brothel, where she knows her husband V is visiting a prostitute, and claims that “she went to this house to persuade her husband to leave there and return home with her.” The husband, however, who had in the past “threatened to kill her if she came to this house for him” and had “beaten her on several occasions,” attacks her in a way that threatens D’s life, and D shoots V. See Moore v. State, 160 S.W. 206 (Ark. 1913) (for whatever it’s worth, D and V in this case were both black).

5. D, “a 40-year old black woman, saw an elderly white man and woman sitting on a bench outside an apartment building and said to them, ‘Good morning. How are you?’ When the couple did not respond, she asked why they did not return her greeting. The woman, [V], said to appellant, ‘Get away from here you dirty nigger, you don’t belong here.’ Appellant responded with a racial slur and an obscene ‘mooning’ gesture and the two women wound up in a physical altercation. According to appellant and her witness, … [V] got up from the bench, approached appellant, and started swinging at her. In response, appellant stepped back and pushed [V]. [V] staggered back and then fell down on some shrubbery…. Within a half hour, [V] died of heart failure.” See Gibbs v. State, 789 So. 2d 443 (Fla. Ct. App. 2001) (a criminally negligent injury case rather than a murder case, but one in which the self-defense was nonetheless in play).

What should the law do in these situations? The general answer in most states, as best I can tell, is that the law tends to conclude that D loses his right to lethal self-defense on grounds of provocation only if he had the specific purpose of provoking V into threatening D with death or serious bodily injury, so that D would have an opportunity to kill or seriously injure V. If D simply knew that it was very likely that V would react violently, that is not enough.

Interestingly, the cases cited in items 3 and 4 are departures from this general rule. In Laney, the court held that Laney wasn’t entitled to a self-defense instruction because he knew that it was “almost inevitabl[e]” that a deadly confrontation would arise, and “had every reason to believe that his presence [on the street] would provoke trouble.” In Moore, the court seemed to go even further, taking the view that Moore wasn’t entitled to the instruction because she was “expecting trouble.” (The court also said she was “probably looking for [trouble],” but if it’s just a matter of probability, that should be a matter for the jury to decide; the court thus seemed to take the view that D’s “expecting trouble” when she enters a particular situation armed is sufficient to strip her of her right to use lethal force in self-defense if serious trouble does arise.)

But from the cases that I’ve read — and I’ve read quite a few — D.C. and Arkansas are outliers on this score, and usually the right to self-defense is lost only if D acted with the specific purpose to provoke a violent attack. The Model Penal Code takes this view as well.

Now on to Florida. Gibbs is a Florida precedent, and it was interpreting the Florida provocation statute, which has not been changed by the Stand Your Ground law:

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Note that “provokes” here does not indicate whether D only loses his right to self-defense if he has the specific purpose of causing V to use force against D, or if it is enough if D acts in a way that he knows (or should know) is highly likely to cause V to use force against D. But Gibbs reversed D’s conviction, for the following reason (emphasis added):

The instruction stated that appellant could not defend herself with non-deadly force if she “initially provoked” the victim. By not limiting provocation to the use or threat of force, the court failed to make the jury aware that the word “provoked,” as used in the instruction, did not refer to mere words or conduct without force. Stated another way, the instruction given by the court eliminated the use of non-deadly force in self-defense if there was any provocation by the defendant — no matter how slight or subjective the provocation. By that standard, a mere insult could be deemed sufficient to prohibit defending oneself from an attacker.

In this case, appellant’s self-defense was based on testimony that the victim verbally attacked her and then aggressively approached and swung at her. According to the defense, it was only then that appellant pushed the victim and used some force against her. Because the instruction did not limit provocation to some force or threat of force, the instruction could have misled the jury to believe that appellant’s pointedly asking the victim why she failed to acknowledge her greeting and/or appellant’s racial retorts and obscene gestures were sufficient provocation to preclude appellant from defending herself from an attack by the victim.

It thus appears that the law in Florida is that the defendant loses his self-defense rights on “provocation” grounds only if he is involved in a “forcible felony” or provokes the target by “force or threat of force.” (Gibbs apparently had no occasion to resolve the separate question of whether purpose to trigger forcible reaction or mere knowledge of a high likelihood of such reaction — or even something less — is required for “provocation.”) And, as Prof. Burke points out, it seems to have been Gibbs that led the trial court to not give the “provocation” instruction. Prof. Burke, a former prosecutor, opines that the denial of the provocation instruction “may have been the moment when Zimmerman got acquitted.”

All this is not a question of stand your ground vs. duty to retreat. The provocation limitation on self-defense rights, to my knowledge, exists in all states; it certainly exists in Florida. Conversely, even states that impose a duty to retreat generally apply the “provocation” limitation only in situations where the defendant had the purpose of triggering a serious attack by the target. There are some decisions, especially in Arkansas and D.C., that read the “provocation” limitation more broadly; but they seem to be the exception.

Provocation is a separate question from the duty to retreat. And if we are to talk about whether Zimmerman should have been convicted on the grounds that he shouldn’t have confronted Martin in the first place, and that he was more generally “looking for trouble” (see Moore and Laney), we should be talking about the provocation limitation and not the Stand Your Ground law.