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Law of Self Defense: Self-Defense Claim Lost When Defender Becomes Aggressor

Law of Self Defense: Self-Defense Claim Lost When Defender Becomes Aggressor

Evergreen: Media Misunderstands Self-Defense Law

This week’s case is a recent criminal trial sentencing out of Connecticut that purportedly involves principles of “Stand-Your-Ground,” but that in reality, of course, has nothing to do with “Stand-Your-Ground” at all.

Three-on-one Attack Ends With Defender Convicted

The defendant in this case was Jeffrey Sumpter, 21 years old, who was working his job at a Dunkin Donuts coffee shop when he was assaulted by three attackers (or “juveniles,” as the media labels this gang of aggressors). Sumpter ended up stabbing one of the attackers in claimed self-defense. He was charged with felony first-degree assault, found guilty, and just days ago was sentenced to 18 months in jail and three years probation. (All as reported per the CTPost, and other sources.)

Why Not Acquitted on Basis of Self-Defense?

A reasonable argument could be made that Sumpter’s use of deadly defensive force was warranted, given the 3-to-1 ratio of attackers to defenders, and it was uncontested that the three “juveniles” initiated the attack against him, not the other way around. So how did Sumpter end up convicted of felony assault, rather than acquitted on the basis of self-defense?

The headline used by the media suggests one possibility: “Victim of Norwalk assault gets 18 months for not retreating” (emphasis added). And, as usual, the media gets it wrong.

Was Failure to Retreat the Defect?

As a quick refresher, there are five elements to a claim of self-defense—innocence, imminence, proportionality, avoidance, and reasonableness—and the issue of retreat falls under the element of avoidance. Avoidance has to do with whether there’s a legal duty to retreat, if safely possible, before using force in self-defense.

The large majority of states, about 36, have Stand-Your-Ground laws and do not impose the element of avoidance absent aggravating circumstances. In these states, there is no legal duty to retreat before defending oneself.

It’s true that Connecticut, where these events took place, is one of the few 14 or so remaining “duty-to-retreat” states. So, was the problem with Sumpter’s claim of self-defense that he had a safe avenue of retreat, but failed to take advantage of it before he stabbed one of his attackers? That’s certainly what the headline “Victim of assault gets 18 months for not retreating” would suggest, right?

Well, as you might have guessed, the answer is “no,” the failure of Sumpter’s claim of self-defense had nothing to do with him failing to take advantage of a safe avenue of retreat, and thus nothing to do with the element of avoidance.

Self-Defense Fails If Defender Becomes Aggressor

The failure of Sumpter’s claim of self-defense is found in the element of innocence. How can that be, you might ask, given that it’s uncontested that the three aggressors attacked HIM. Because, as the media itself reports: “After being assaulted inside the coffee shop, Sumpter ran outside and stabbed one of the men.”

That is a problem. In the eyes of the law what we have here is not a single fight in which Sumpter defended himself against the attack of the three aggressors. That fight did happen, but it also ended, when the aggressors left the coffee shop.

When Sumpter then pursued them and stabbed them, he became the aggressor in a second fight. As the aggressor in this second fight he lost the element of innocence, and thus lost self-defense as a justification for his stabbing one of the aggressors.

Self-Defense, Yes; Vengeance, No

The law of self-defense allows for the use of defensive force to resist an imminent unlawful use of force against you. It does not allow you to engage in acts of retribution or vengeance.

Remember folks: When you go to the fight instead of the fight coming to you, it very rarely looks like self-defense to anybody.

“Racist” Stand-Your-Ground Not So Racist

By the way, just as an aside, “Stand-your-Ground” has widely been characterized by social justice warriors and the media (but I repeat myself) as “racist,” especially after the George Zimmerman trial, and efforts to stop the few remaining states from joining the stand-your-ground majority of states is vigorously fought against on those grounds.

Had this case hinged on this defendant’s failure to retreat, however, then SYG could have saved his claim of self-defense. And as it happens, this defendant is a young black male. Thus, SYG could have saved a young black male from prison. SYG is racist? I think not—I think it favors everyone with a valid claim of self-defense, regardless of race or any other personal characteristic. That’s why I’m an advocate for SYG.

–Attorney Andrew F. Branca, Law of Self Defense LLC

Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.

[Featured image via CTPost from Norwalk Police Department]


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Excellent summary, Andrew. (But you knew that.) This case just showed up in my twitter feed as trending and yes, the headline made me wonder how this miscarriage of justice was able to occur. The single pertinent fact omitted in the story: Mr. Sumpter left the original site of the assault on him, and stabbed one of th4e juveniles outside in the parking lot. This is an excellent case of vengeance effectively negating a claim of self defense.

Had this case hinged on this defendant’s failure to retreat, however, then SYG could have saved his claim of self-defense.

How so?

“After being assaulted inside the coffee shop, Sumpter ran outside and stabbed one of the men”

That’s an attack by Sumpter, not a failure to retreat. The legality (as per “SYG”) of a failure to retreat has nothing obvious to do with his attack on his ex-assailants.

    bear in reply to tom_swift. | July 4, 2018 at 5:47 pm

    Tom, you’re better than this. The phrase, “had this hinged,” makes the proposition hypothetical. The case, in reality, hinged on the second fight, making all other SYG defenses moot. It only takes one failure of any of the five requirements of self-defense to lose standing as SYG. Please reread Mr. Branca’s analysis more slowly. He is THE expert in these matters. I suggest that everyone buy and carefully read his book, Law of Self-defense.

    ttl in reply to tom_swift. | July 4, 2018 at 8:41 pm

    Bear covers it well, but I have to say it really seems novel to take the last paragraph out of context rather than the first, lol.

These new weekly columns are fascinating to read so please keep them coming. Fortunately you will never run out of material.

It would be worthwhile to provide a link to the previous column of yours in which you explained in great detail the five elements necessary to claim a SYG defense. You wrote that in one of the retired police officer who shot a popcorn thrower columns, about a year ago.

Happy Independence Day !


Did any of the well informed journalists mention what caliber the knife was?

As always the media gets the important facts wrong to fit their editorial narrative.

Just remember every time you see a mistake in a paper you know about there are dozens or hundreds of stories you might not be familiar with the facts the media has almost certainly gotten wrong.

    Andy C. in reply to forksdad. | July 5, 2018 at 1:23 am

    In some cases, it’s not even a case of the media getting it wrong, IE in error. They DELIBERATELY distort and massage the facts in order to service their desired “Narrative.” Or, quite frankly, lie like rugs.

Once again, Branca’s writing on SYG prompted me to hunt down a list of states by SYG “category.” Hope they have it right:

Sadly, I’m in castle-doctrine territory. But D.C. and Vermont — *unconditional* duty to retreat! Sheesh!

I suspect I would be unable to serve as juror on this case, because I’ve got a lot of sympathy for the defendant since he was attacked unprovoked first.

I suppose it goes along with the question: “If I’m attacked in a business, and I follow the criminal out to the parking lot and hold him at gunpoint until the police arrive, am I in trouble?”

(A: Yes, particularly if you shoot during the process)

Andrew, great piece, as usual.

But let’s never kid ourselves about the media not ‘understanding’ anything. The ‘media’ is nothing but leftist hacks spouting poison for consumption by the uninitiated.

They ‘understand’ the law to the extent it serves them, and hurts the rest of us.

And those in the ‘media’ not in the leftist ‘destroy America’ cult – well, event they don’t ‘misunderstand. They’re just ignorant.

IMHO if you attack someone, you deserve anything you get in return!

    MajorWood in reply to Kaffa. | July 5, 2018 at 2:13 pm

    And when the media attacks me with lies, they get my contempt in return. When the Oregonian calls me to subscribe, I ask the person on the phone when the paper is going to come clean of their role in covering up Neil Goldschmidt raping his 14 yo babysitter neighbor. Everything in the Oregonian, even the weather and baseball scores, is a lie until proven otherwise.

inspectorudy | July 5, 2018 at 1:06 am

There have been home invasions where the homeowner ran the invaders out of the home and then pursued and shot them. They run into the same issue. As unfair as the circumstances may be to the original victim, anything the victim does after the fight/attack is over, then becomes revenge or “Payback” which of course is a crime unto itself. The old Texas advice used to be to shoot them before they could get out of your house!

Assuming, for the moment, that Sumpter did, in fact, pursue his assailants outside the business and attack them with a knife, this has nothing to do with Stand Your Ground laws.

First of all, there are three exceptions, listed under CT 53a-19(b). They are when a retreat may not be made safely, when the attacked is inside his home or inside his business. As Sumpter was inside his business, when attacked, he had no duty to retreat from his assailants. SYG laws only eliminate any need to retreat, in the face of attack, if a person is acting legally in a place where he has a legal right to be.

Second, if the assailants were retreating and did not present an immediate threat of great bodily harm or death to Sumpter, or anyone else, the directing force, including deadly force, against any of them would not be considered lawful self defense and would be, itself, a criminal act.

So, only the laws which govern the circumstances under which force, including deadly force may be used lawfully apply here. And, this would be dependent upon the existing laws governing self defense in the state. Unless, Sumpter was attempting to detain any one, or all, of the men for a felony crime, such as robbery, or attempted robbery, under CT53a-22(f), in which resistance to his actions would activate his right to use force in self defense under CT53a-19. Then he might have a common law defense for an unlawful use of force charge.

These situations can become complicated quickly and it is imperative that one always know the laws regarding use of force and err on the side of caution in the application of force. States, such as Connecticut, are very reluctant to rule liberally regarding a person’s right to use force lawfully.

    “SYG laws only eliminate any need to retreat, in the face of attack, if a person is acting legally in a place where he has a legal right to be.”

    FYI, many SYG jurisdictions do not impose the condition that you are in a place where you have the right to be. That condition is common in the states that are SYG based on statute, but much less common in the states that are SYG based on case law. And roughly half the SYG states are SYG based on case law, rather than statute.

    California, for example, is a SYG state (based on case law since the 1890s) that does NOT impose that condition, and goes further to explicitly instruct the jury that the defendant could lawfully pursue his attacker if necessary for his safety. CALCRIM 505.

      pwaldoch in reply to Andrew Branca. | July 5, 2018 at 9:11 am

      Ok, gonna shill for Mr. Branca, If you like his weekly updates, go to his Patreon page and sign up for a small amount each week and get a weekly dish of analysis in much more depth.

      Take any of his classes! its worth every dime if you are a regular CCW/carry a weapon. His classes should be mandatory 😉 if you carry. You need to know it BEFORE you get into a “kinetic situation”.

      Well, you were doing really well, up to now. My quote specifically referred to SYG laws.

      Let’s take a look at your claim about CALCRIM 505, shall we?

      Here is the relevant portions of these jury instructions.

      “1. The defendant reasonably believed that (he/she/ [or] someone
      else/[or] )
      was in imminent danger of being killed or suffering great bodily
      injury [or was in imminent danger of being
      (raped/maimed/robbed/ )];
      2. The defendant reasonably believed that the immediate use of
      deadly force was necessary to defend against that danger;” and

      “Belief in future harm is not sufficient, no matter how great or how
      likely the harm is believed to be. The defendant must have believed
      there was imminent danger of death or great bodily injury to (himself/
      herself/ [or] someone else). Defendant’s belief must have been
      reasonable and (he/she) must have acted only because of that belief. The
      defendant is only entitled to use that amount of force that a reasonable
      person would believe is necessary in the same situation. If the defendant
      used more force than was reasonable, the [attempted] killing was not
      justified.” and,

      “No Defense for Initial Aggressor
      An aggressor whose victim fights back in self-defense may not invoke the doctrine
      of self-defense against the victim’s legally justified acts. (In re Christian S. (1994)
      7 Cal.4th 768, 773, fn. 1 [30 Cal.Rptr.2d 33, 872 P.2d 574].) If the aggressor
      attempts to break off the fight and communicates this to the victim, but the victim
      continues to attack, the aggressor may use self-defense against the victim to the
      same extent as if he or she had not been the initial aggressor. (Pen. Code, § 197,
      subd. 3; People v. Trevino (1988) 200 Cal.App.3d 874, 879 [246 Cal.Rptr. 357]; see
      CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.)
      In addition, if the victim responds with a sudden escalation of force, the aggressor
      may legally defend against the use of force. (People v. Quach (2004) 116
      Cal.App.4th 294, 301–302 [10 Cal.Rptr.3d 196]; see CALCRIM No. 3471, Right to
      Self-Defense: Mutual Combat or Initial Aggressor.”

      Note the extensive use of the term “immediate” in the first passage. A person retreating, especially running away, would not present a threat of immediate danger of attack. Nothing in this instruction states that a person may pursue and engage another, lawfully. In the second passage, it clearly and specifically states that belief in future harm does not justify using force against another, no matter how likely that harm may be. In the last portion, the instructions clearly state that should a person acting in self defense continue to engage with the previous aggressor, after the aggressor has attempted to break off the fight and has made it clearly known that he is breaking off the fight, then any continuation of the use of force, by the initial victim, would change the victim’s status to one of unlawful aggressor and would grant the initial aggressor the right to use force in self defense. To make it even worse, should the initial victim suddenly escalate the use of defensive force beyond that reasonable for the threat, this grants the initial aggressor the right to legally use force in his own defense.

      See the problem? This stuff is complicated. and this is a single state. Each state is slightly different in its interpretation of a person’s right to stand his/her ground.

      Now, SYG is nothing more than the elimination of the the duty to retreat, before using force in the face of an imminent threat. SYG has to be codified by statute, or it becomes completely subjective, rather than being an objective standard. However, all SYG requires that the person being attacked MUST be in a place where he can lawfully be AND not engaged in any criminal act against another, in order to lawfully use force in general self defense. As an example, a trespasser must retreat if confronted by the owner of the property or his agent. A man robbing another may not use a claim of self defense should his victim use force to terminate the robbery attempt.

        I’m happy to argue legal issues, it’s what I do for a living, but if you’re going to deliberately propagate false or misleading legal information, that won’t stand.

        Specifically, you cite CALCRIM 505, and yet exclude the specific language relevant to the point under discussion, to wit, whether under CA law there is a legal duty to retreat and a privilege to pursue if necessary for safety:

        “[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/ ) has passed. This is so even if safety could have been achieved by retreating.”

        Reasoned argument is fine. Intentional disinformation is not acceptable.


Based on the facts outlined above (thanks Andrew) I PERSONALLY believe it was self defense. Mr. Sumpter was making sure the attackers would not attack him again.

As usual, the Fake News Media buries the lede.

I was scratching my head then saw he went after them.

Nope nope nope. Why do this? I know; hormones. He probably knew them and wanted to get some preliminary kick ass in while they on the run. Big Mistake.

    pwaldoch in reply to jakee308. | July 5, 2018 at 9:18 am

    Doesn’t matter why he came after them, he did it. After they left, he could have locked the place and called the cops if he was afraid they would come after him.

At the time, he had a pending charge for violating probation after previously pleading guilty to one charge of carrying a dangerous weapon.

yeah he’s an angel…..

DouglasJBender | July 5, 2018 at 12:02 pm

Maybe he ran after them because they left an item on the counter, and they then threatened him, so he stabbed them.

I think you increase your click-count by a factor of ten if you can work “Stand Your Ground” or a derivative of it into your headline. Who didn’t have a passionate opinion about the killing of Trayvon Martin, which made Stand Your Ground famous in spite of that not being an element of Zimmerman’s defense?

Sadly, you can too often count on the media to report the story wrong!

harleycowboy | July 6, 2018 at 8:34 am

He failed to play the race card.

When a woman’s body is attacked by a fetus, she incurs risk of death or serious bodily injury (which includes being forced to endure incessant touching for 9 months). If Roe v. Wade were overturned and even if the fetus were deemed a “person” with life and liberty rights of its own, the woman so attacked retains the right to kill the fetus in self-defense once the five conditions — innocence, imminence, proportionality, avoidance, and reasonableness — are satisfied. Imminence and impossibility of avoidance are self-evidently satisfied. So is proportionality, since killing a fetus is the only option to terminate the annoyance and the threat, and avoidance by retreat is not available.

So it seems that only innocence is in question. Some would hold the pregnant woman not innocent because she engaged in unprotected sex, but of course she might have been naive, deceived by the man or simply have suffered the results of a botched vasectomy or tubal ligation, or a broken condom.