Law of Self Defense — Regaining Innocence: A Real-World Example
Even the initial aggressor in a fight may be able to claim self-defense!
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.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Comments
Salman should have just shot him and took his chances in court, instead he’s dead.
Both people made mistakes. Hopefully, someone out there will learn from them.
“Initial aggressor” generally means the person who was the first to threaten or use unlawful physical force against another.
Uh-oh. “Threaten” and “use” are distinct.
Person A threatens to use unlawful physical force against Person B. This threat is verbal, though it may be lent some gravitas by a display of some weapon or dangerous hardware.
Person B then responds with actual physical force.
No matter what Person A verbally threatened, it would seem that Person B’s physical response would be disproportionate.
So, in this case, would Person A really be the initial aggressor? His verbal threats might have been precursors to an unlawful physical attack, given time, but they never actually happened.
Tom,
In order for a verbal threat to be sufficient to justify the use of physical force, in response, the threat has to reasonably clear, the person making the threat has to have the means or ability to immediately carry out the threat and has to do something which would convince a reasonable man that an attack is imminent. If a man threatened to beat you to death, balled up his fists and began to advance upon you, this would likely justify a reason belief that an physical attack was imminent and would justify the use of non-deadly force in response. As this aggressor has not actually thrown a punch or landed one, his actions are still, technically a threat, not the use of force.
As to the proportionality of the response, this depends largely upon the jurisdiction in which this occurs. Most jurisdictions limit proportionality, under statute and case law, to deadly and non-deadly force and to repeated use of force to that necessary to initially neutralize an attack. For example, when that man with the balled fists gets within range and you punch him, if he goes down, you can not “put the boots to him” [kick, or even punch him, repeatedly].
Merlin,
As Edward noted, the difference between deadly and non-deadly force is simply a matter of statistical probability. Though a single punch can cause death or great bodily harm, statistically, the probability of that happening is infinitesimal. Unlike the use of deadly weapons such as guns and knives. Now, if the single blow is delivered in a specific manner to a specific point on the human body which raises the statistical probability of that blow causing death or great bodily harm, a single blow can be considered deadly force. A sword-hand blow to the sides, back of the neck or temple, a ridge-hand blow to the temple or neck, a palm-heel strike under the nose and any strike directed at the trachea are all examples of weaponless deadly force.
Also, there is a difference between the classification of force being used and whether it caused death. Anytime the actions of one person result in the death of another, it is technically a crime. Certain exceptions exist, such as lawful self defense. Then, the criminality of the actions, which cause the death, are further broken down into avoidable accident, unavoidable accident, negligence, willful and wanton disregard, and intentional, either premeditated or spontaneous. And, these differentiations are not always standard. Punching someone in lawful self defense, which results in his falling backward and striking his head, causing his death, may be viewed as anything from unavoidable accident [even though the punch itself was intentional] to negligent homicide; depending upon the jurisdiction in which it occurs.
In today’s society, the aftermath of use of force in self defense can be quite complex. The use of self restraint coupled with knowledge, training and ability can go a long way to minimizing your potential legal liability, while allowing you effectively defend yourself.
This seems to say that if physically assaulted you aren’t allowed to pull you weapon to discourage further attacks? Really…I understand not chancing after the initial aggressor, chancing seems stupid once they have retreated.
I also don’t understand the idea that a punch is not deadly force, people die or have grave bodily injury from being punched every day? If someone punches another person and they subsequently die isn’t it deadly force or is it still considered non-deadly force?
Regarding a punch as deadly force, to a degree it depends on who is throwing the punch. A Heavyweight professional boxer could well be using deadly force, while the average guy would not. It depends on the probability of the punch actually being deadly. I don’t know the probability statistic on a punch being deadly, but let’s say it is one in ten million for the average person. That is not going to be considered “deadly force” under the law, even though it is theoretically just barely possible but extremely unlikely.
I appreciate the thoughtful response but..it begs a few questions.
How is someone suppose to know if someone is a professional fighter? Have you seen the female MMA fighters!
Is someone suppose to break out the calculator and the statics and do the math at the moment of a attack?
Why should someone gamble with their life, especially if they know nothing about an attacker except what is in front of them?
I realize you don’t make the laws and I appreciate you helping to interpret them for me.
Thanks Again!
Whether or not you can produce a deadly weapon and use it as a threat to stop an attack, which is limited to the use of non-deadly force, depends, largely, upon the jurisdiction in which it occurs. Some states make a distinction between a threat and an actual use of force. Other states, such as Florida, equate the threatened use of force with the actual use of force, statutorily, for lawful self defense purposes. In Florida, you can not legally threaten to use deadly force [present a deadly weapon in a threatening manner] except in response to the use, or threatened use, of deadly force against you.
No, it means your defensive action can’t be disproportionate and lawful at the same time. You can threaten with your gun to defend yourself. You can’t simply gun someone down in retaliation for a non-deadly force attack.
Just one point here. It is unlawful in virtually every jurisdiction in the US to use force against another in RETALIATION for any attack. You may only use force to defend against an imminent attack or one which is in progress.
salman was struck in the chest and not knocked down–personally, unless the guy had severely injured me or one of my loved ones, would not have pursued the perpetrator–why?–if he’s fled and you’re safe leave it to the cops–a more relevant example would be an incident of the ” knock-out game ” where the object of the attack is to knock the victim unconscious and flee–to me, that’s using deadly force, albeit with fists–i’m going to hurt/cap some sob like that–period
I, for one, would never convict you, if I were on your jury.
There is no such thing as “non-lethal force.” Any force, if applied properly and/or repeatedly can be lethal. Although a non-trained person has little chance of killing me with a single blow, he has a much greater chance of knocking me out with one or more blows. Once out, I am at his mercy. At the time he launches his attack against me, I will have no or limited intelligence about his capabilities or intentions. As far as I’m concerned, he’s capable of killing me and intends to do so.
Additionally, 80% of people shot with handguns survive. That means there is only a 1 in 5 chance that a defensive use of a handgun will actually be lethal. That also means that a criminal using a handgun has a 4 in 5 chance of launching what will actually be a non-lethal attack. At what point in the shift of the odds does the law consider the attack “lethal”? Do I have to know the odds and the law? The state insists that I not only have to know the law, but, in the moment I’m being assaulted, I must understand how it may be applied in the situation when viewed in its totality (something I can’t be assured of knowing), all while trying to defend myself against a potentially lethal attack (all attacks are potentially lethal). I think my computer will be using its cycles on more important matters at that moment – like survival.
I believe that every innocent person has the right to assure his or her survival of a criminal attack. I further believe that an attacker surrenders his own right to survive the encounter upon launching a criminal assault. Whatever happens as a result of a criminal attack is the responsibility of the attacker, because his initial actions were criminal, and the law should not burden the innocent with any care or consideration for the attacker’s welfare or his demise, should it occur as a result of his actions. The law abiding defender who was going about his ways in a peaceable manner did not ask to have need of specialized legal knowledge or the burdens of such decision-making. If the peaceful citizen, in this moment of extreme stress, acts in such manner as to assure his own survival, I think he has done that which is lawful, regardless of what statutes say. “Not guilty” will be my verdict. A death that results from actions initiated by a malefactor is the responsibility of the malefactor, even when it is the malefactor who dies. The malefactor is responsible for putting his victim’s survival into doubt and responsible for whatever actions the victim takes to defend himself, not matter how ill-considered, inappropriate, or disproportionate they may seem. This is a risk a person must accept to his own survival whenever he becomes an outlaw. I believe an outlaw is not merely acting outside the law, but he has also put himself outside the protection of the law, even if only temporarily and for a few fractions of a second.