In this column, our Network Affiliated Attorneys generously contribute commentary and information from their professional experience to help Network members better understand the myriad legal issues affecting how law enforcement, the courts and society in general react to use of force in self defense. This month we asked our affiliated attorneys this question:

In Washington State, the initial aggressor issue in a self-defense case is outlined by State v. Riley, 976 P.2d 624 (1999), stating: “However, in general, the right of self defense cannot be successfully invoked by an aggressor or one who provokes an altercation.”

The question: in your jurisdiction are words alone sufficient to invoke an initial aggressor jury instruction, or must there be more than just words?

John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534

In my jurisdiction (Georgia), an initial aggressor (i.e., not using self defense) generally may not use self defense, unless he has clearly communicated his intention to break off the aggression. Just words do not usually constitute initial aggression, with the exception being what are commonly referred to as “fighting words.” While the concept of fighting words continues to exist in Georgia, the idea that words are so bad that they cannot help but provoke a physical response strikes me as becoming less and less likely in an age when people commonly say things in public that formerly would have been socially taboo.

Benjamin M. Blatt
P O Box 221, South Bend, IN 46601

In Indiana, the courts have held that a person may be an initial aggressor, and thus trigger jury instructions on the subject as relates to the negating of a self-defense claim, merely by having provoked the violence with words.

In Indiana, the “initial aggressor” statutory language is found in Indiana Code § 35-41-3-2(g)(3), which reads: “(g) Notwithstanding subsections (c) through (e), a person is not justified in using force if: (3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.”

When reviewing self-defense cases, the Indiana courts frequently cite Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). In order to prevail on a self-defense claim, a defendant must demonstrate he was in a place he had a right to be; did not provoke, instigate, or participate willingly in the violence; and had a reasonable fear of death or great bodily harm. Id. A mutual combatant, whether or not the initial aggressor, must declare an armistice before he or she may claim self-defense. Id. If a defendant is convicted despite his claim of self defense, we will reverse only if no reasonable person could say that self defense was negated by the State beyond a reasonable doubt. Id. at 800-801. An “initial aggressor” is one who provokes a fight or who willingly participates in it. Bryant v. State, 984 N.E.2d 240, 251, (Ind. Ct. App. 2013). Additionally, the Indiana Court of Appeals held that a defendant was an initial aggressor after a verbal argument escalated into a physical altercation that resulted in the defendant choking and punching the victim. Cole v. State, 28 N.E.3d 1126, 1129-30 (Ind. Ct. App. 2015).

Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003

In Arizona, mere words are never enough to warrant the use of lethal force. Lest we forget, as Mas Ayoob would remind us, lethal force is an option only in “the gravest extreme.” No matter how large the insult, extricate yourself from the situation, apologize as you do so (even though you’re not the one who should be apologizing) and live to tell the tale another day. If someone steals your parking space, give them a thumbs up and drive on. Don’t forget, however, it is perfectly fine to utter a silent prayer that the jerk develops anal cancer. That goes a long way towards making you feel like you’re not just backing down! We don’t want John Wayne to roll over in his grave if possible!

As further evidence of this fact, Arizona statutory law dictates that you forfeit your right to claim self defense as a legal justification for your actions if you started the fight. Moral of the story: walk away if at all possible, and, let’s be honest—it is almost always possible.

I was fortunate enough to take another class from Thunder Ranch’s own Clint Smith a few weeks ago and, careful to leave room in the margin of my notes for the many “Clintisms” that I knew would be coming, I jotted one down that applies here: “Graveyards all over the world are filled with people who would not back down.” Words to live by!

Gary True
Summers Compton Wells LLC
515 St. Louis Street, Suite 203, Edwardsville, IL 62025

The short answer under Illinois law is yes, words alone can result in an initial aggressor jury instruction. The relevant Illinois statute, 720 ILCS 5/7-4, provides:

The justification described in the preceding Sections of this Article [self defense and defense of others, defense of property, defense of dwelling] 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, with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
  3. Otherwise initially provokes the use of force against himself, unless:
    (1) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he 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
    (2) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Paragraph (b) refers to the person who uses words or action to goad another into acting so the person has an excuse to use force. Such a person is often referred to as a “provoker” or “provoker with intent.” Paragraph (c) refers to the more common initial aggressor, the person who starts the fight. Unfortunately, Illinois law refers to both of them as the “initial aggressor.” Note that only the initial aggressor under paragraph (c), and not the provoker under paragraph (b), can regain the right to use self defense if the other person escalates the level of force, as stated in subparagraph 1, or by withdrawal from the fight that is clearly communicated to the other party, as stated in subparagraph 2. If the jury finds that words or acts by the defendant were intended to provoke a response that would justify the use of force, the defendant cannot be found to have acted in self defense.

In People v. Tucker, 176 Ill. App.3d 209 (2nd Dist. 1988), the Appellate Court upheld the defendant’s conviction in part because he made comments to the victim and his friends that appeared intended to provoke them into fighting. In People v. Barnard Ill. App.3d (5th Dist. 1991), the Court stated in dicta (not necessary to the ruling in the case) “It has been held that mere words may be enough to qualify one as an initial aggressor” citing Tucker and the 1870 Illinois Supreme Court case of Greshia v. People, 53 IL 295 (Ill. 1870).

There is not much case law on this point, probably because defendants often engage in physical actions in addition to words to make them the initial aggressor, or because a lot of heated words are often exchanged between defendants and victims, or perhaps because intent to provoke is difficult to prove. Nevertheless, it seems clear that words alone are sufficient to warrant an initial aggressor jury instruction in Illinois.

It seems to be more difficult, but not impossible, for mere words of the “victim” to justify the use of force in self defense. It is possible where the victim has a reputation for following up his words with violent acts and the defendant knew of that reputation before the incident. In People v. Bailey, 27 Ill. App.3d 128 (1st Dist. 1975), one of the “victims” told the defendant “I am going to kick your ass” and the other told the defendant that the only way he was going to leave the room was through the window. The defendant knew the men making the statements were violent individuals who had beaten other persons. Under these circumstances, those statements and other facts justified the defendant using his gun and the Appellate Court overturned his conviction.

However, usually some overt act must go along with the words to justify a reasonable belief of imminent harm. For example, the Illinois Supreme Court stated in People v. Golson, 392 Ill. 252 (Ill. 1946) “The rule is further settled in this State that mere threats of personal injury or even against the life of another will not justify the latter in taking the life of the person who has made such threats, when he is doing nothing to put them into execution.” Subsequent cases have followed this general rule absent facts indicating the defendant knew of the speaker’s reputation for following up his threats with violence. I mention this issue because the case law seems to indicate that less is required to be considered the initial aggressor (provoker) by words alone than for mere words of the “victim” to justify a use of force response. Of course, each case will depend on its facts, or more accurately, the facts as the jury believes them to be.
A big “Thank You!” to our affiliated attorneys for their contributions to this interesting discussion. Please return next month when we ask our affiliated attorneys for their thoughts on a new topic.

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