This Case of the Week focuses on a real-world example of the application of the self-defense law doctrine of “regaining innocence.”

One of the five elements of a claim of self-defense justification for a use-of-force against another person is the element of innocence, which denies the justification of self-defense to a person who was the initial aggressor in a fight. “Initial aggressor” generally means the person who was the first to threaten or use unlawful physical force against another.

So that’s that, right? The initial aggressor loses the legal justification of self-defense? Not so fast! As the late-night TV infomercials say, “Wait! There’s more!”

It is possible for the initial aggressor, who has therefore lost the element of innocence and lost the legal justification of self-defense, to regain their innocence and self-defense. There are two ways this can be accomplished.

Regaining Innocence: Withdrawal & Communication

The first method is known as “withdrawal & communication,” and it involves the initial aggressor physically withdrawing, or making a good faith effort to withdraw, from the fight in combination with effectively communicating to the other party that they no longer want to fight.

When the initial aggressor withdraws from the fight, the other party has to come to them for the fight to continue. In effect, the law holds that by withdrawing from the conflict, the initial aggressor has ended the first fight and the other party is now the initial aggressor in a second fight. In that second fight, the person who had been the previous initial aggressor has regained their innocence, and therefore regained self-defense.

Regaining Innocence: Circumstances of Escalation

The second method to regain innocence is under circumstances of escalation. This occurs when a person is the initial aggressor in a non-deadly force fight. So long as the other party responds to this attack with mere non-deadly force they are arguably simply acting in lawful self-defense.

Imagine that an initial aggressor throws a punch, and their intended target physically shoves away that attack. In that case we have a non-deadly attack, non-deadly defense. It’s consistent with another mandatory element of a self-defense claim: the element of proportionality.

What happens if the first person uses or threatens mere non-deadly force and their intended target escalates to a deadly force response? So, the first person throws a punch, and the second person responds bringing a knife or gun into the fight as their response.

A deadly force response to a non-deadly force attack is an excessive use of force as matter of law. Doing so violates the self-defense element of proportionality, so that the deadly force response cannot be justified as self-defense, and thus the deadly force response is unlawful.

Under these circumstances, the first person, the person who initiated the non-deadly force fight, is permitted to defend himself against the unlawful deadly force response, and justify his response as self-defense.

Gunfight at a Detroit Gas Station

In this Case of the Week, we see an initial aggressor regain innocence arguably by both of these methods in a confrontation reported on by the web site Michigan Live.

The confrontation occurred at a Detroit gas station. Michigan Live reported that an unnamed 25-year-old was the initial physical aggressor in a dispute with 34-year-old Ali Salman.

The cause of the confrontation is not provided, but things went physical when the 25-year-old threw the first punch. The punch struck Salman in the upper body, but did not knock him down. It is undisputed that the 25-year-old was the initial, non-deadly force aggressor.

After that punch was thrown, two things happened that are relevant to the doctrine of an initial aggressor regaining innocence: the 25-year-old non-deadly force initial aggressor (1) withdrew from the fight, and (2) Mr. Salman responded to the punch by pulling a gun.

In any case, Salman didn’t merely draw his gun. He also chased the fleeing 25-year-old and pointed his gun at him. Salman has now become the initial deadly force aggressor in a second fight. In response to this act of aggression by Salman, the 25-year-old drew his own gun and shot Salman in the head. Salman died of the gunshot wound.

Prosecutors: Lawful Self-Defense, No Charges

Michigan State Police initially sought a warrant for the arrest of the 25-year-old. After viewing surveillance video of the confrontation, local prosecutors declined to charge the 25-year-old for the shooting death of Salman and ruled the shooting a lawful case of self-defense.

And there you go: Regaining innocence in real-world action.

Remember: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.


Attorney Andrew F. Branca
Law of Self Defense LLC

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