Pt. 1 of an Interview with Attorney Jim Fleming

Interview by Gila Hayes

When we consider criminal cases that follow use of force, a common problem area questions whether a confrontation that devolved into a physical fight or a shooting was started and fueled by the defendant’s combative, aggressive words or actions. The legal terms vary slightly state to state and between jurisdictions, generally being described as being an initial aggressor. In light of how often good, normally law-abiding people find that they have committed serious crimes by initiating a fight, we spend time this month studying under the tutelage of our Advisory Board member attorney and firearms instructor Jim Fleming.

eJournal: Jim, we are not addressing people who regularly go to dive bars and scrap with the other drinkers on weekend nights! Far from it–so we need to learn to identify, avoid and recover from the slip ups that trap people when a human interaction goes off the rails and a normally good, law abiding person has inadvertently started a fight, maybe by trying to stop victimization before it escalates into risk of death or grave, unrecoverable injury. Where is the line between being the aggressor who started a fight and being one who has assertively stopped a threat before it gets so far out of hand that serious injury or death is probable?

Fleming: There is no one size fits all answer to a question like this. It is highly fact dependent, and the law, as is always the case, varies from state to state on both the definition of an initial aggressor and what impact that characterization will have on the analysis of the application of self defense. For example, different states vary between using the term “initial aggressor” or simply “aggressor.”

In general terms, a person loses the right to defend themselves from an attack and becomes an initial aggressor when they are the first to physically attack another person or initiate a fight by threatening to physically attack the other person. But some states (such as North Carolina and Oklahoma) further qualify the initial-aggressor limitation by adding the requirement that the attack or threat of attack must be “calculated” to induce a deadly attack by another so that the aggressor may employ what would otherwise seem to be a justifiable use of deadly force self defense. That word “calculated” screams out “THIS IS A JURY QUESTION!”

People need to seriously contemplate the fact pointed out by legal scholars such as Joshua Dressler in Understanding Criminal Law, “The issue of whether a defendant is the aggressor ordinarily is a matter for the jury to decide, based on a proper instruction on the meaning of the term.” Appellate courts end up with appeals based upon the use of jury instructions all the time.

eJournal: How difficult is it to regain the right to self defense (and thus merit a self defense jury instruction) if you’re the one who made the first aggressive action or words, then regret it and withdraw? Are there specific reasons a court would say an attempt to withdraw was insufficient? Is there a time in a confrontation after which it is too late to withdraw and claim that you said you were stopping? How does the initial actor demonstrate a good-faith withdrawal and regain right to use force in self defense?

Fleming: In most jurisdictions, initial aggressors may regain the right to self defense by clearly communicating to their adversary their intent to withdraw and overtly withdrawing from the fight in good faith. You could spend days drawing up scenarios in which the actions and words employed to “assertively stop a threat” would or would not be deemed to be a clear communication of a withdrawal from a conflict. It would still not produce a bright line rule.

eJournal: Members wonder if verbally challenging someone they find sneaking around their back yard or rooting through their car at 3 in the morning is the act of an initial aggressor. They ask how to deter crime without sacrificing the right to self defense, because they recognize they are willingly leaving the safety of their homes to contact someone who is up to no good. No one goes out to prevent vandalism or car prowl intending to start a life-and-death fight.

Fleming: Based upon my answer to your earlier question, you can see how fact and location dependent this all is. A verbal challenge may or may not be perceived as an initial aggression depending upon the circumstances and the words and actions used. For example, waving a gun around while yelling, “Get the hell out of here or I’ll shoot you!” is very likely to be seen as an act of initial aggression in many jurisdictions. Yes, even on one’s own property, since the act of shooting someone for a simple trespass is an unlawful act. The same words and actions used after another person has attacked or made a threat to attack is not likely to be seen as an initial aggression, but instead, a response to an initial aggression.

On the other hand, “What are you doing here? You need to leave or I will call the police!” absent the flourishing of a gun, is not an action a jury is likely to see as one “calculated” to induce a deadly attack by another.

People like simple answers; they find them comforting. In this context, there really are no simple answers. The answer is going to depend upon how the challenge is constructed in the context of the law controlling in the jurisdiction where it occurs.

In an extreme example, in the Oman case, from Arizona, recently discussed on the ACLDN Facebook page, Oman yelled into the victim’s car, “I have my hand on my gun and I am going to shoot you!” To me, it seems pretty obvious that this is incredibly irresponsible. But, as I noted earlier, the statement “Get the hell out of here or I’ll shoot you!” is just as likely to be seen as the words of an aggressor, provoking a deadly response, whereas “What are you doing here? You need to leave or I will call the police!” which contains no threat of violent action, is not.

People have an infinite capacity for misreading other people’s actions. What to one person may seem the actions of someone “up to no good” might to another seem to be perfectly innocent or at least explainable. An example is the case of Renisha McBride: a 19 year old girl was killed in Dearborn Heights, Michigan in 2013 when she approached a home, seeking help after a car accident. The homeowner wound up shooting her in the face with a shotgun, killing her instantly. The homeowner was later convicted of second-degree murder in the death and sentenced to serve 17 years in prison.

The key is going to be how the “challenge” is constructed, and the words and actions used in that challenge.

eJournal: Jim, your instruction in how verbal warnings should be formed is very useful. If I leave my house to confront and direct an intruder to leave, but that elicits a violent counter response have I, by ordering the person off my property, initiated the fight, even though my words were not themselves a threat of violence?

Fleming: Part of the key is going to be what actions did you take at the outset. If you were simply verbally confronting the individual, perhaps you were saying, “Hey, you have no business being here! Who are you? What are you doing? If you don’t leave immediately, I am going to call the police” or something to that effect, you are not making any threats of violence at that point. You are making a threat, of course, but it is a threat to use legal means to address what is taking place. “If you don’t get out of here, I’m going to call the police,” as opposed to somebody that comes flying out into a situation who immediately begins threatening, “I’m going to shoot you!” or “If you don’t get out of here, I’m going to blow your head off,” or whatever else they come up with. When the courts look at this, they consider that language calculated to engender some type of an aggressive response.

If you tell the average person, “If you don’t do what I tell you, I am going to shoot you,” while there are some people who will listen to that, take it seriously, and turn around and run away, there are other people who will also take it seriously and they are going to react to that and say, “Hey, you just threatened my life. No matter how wrong and misguided I may be, I feel justified in doing what I am doing and now you are telling me you are going to kill me if I do not stop?” Well, that is likely to trigger a fairly violent response, because if you are going to threaten me like that, I am going to beat you to the draw, or at least I’m going to try.

There is a dividing line between words you might say and actions you might take. You have challenged someone who is acting suspiciously, for example, maybe I have found someone who has their head buried in the back seat of my car [chuckles] and I challenged him. If I end up with a situation where deadly force is used, the authorities who are reviewing that situation may decide for whatever reason they are going to bring charges and prosecute, and then what was said in that situation is part of the analysis.

People ask how likely is that to happen? I’m justified in what I have done. In response, I point to the example of a client I had who was totally justified in using deadly force because he was attacked in his own home by an individual who was about 6’ 9” and weighed over 325 pounds who kicked the door completely out of the frame and into the living room of the house and came in and attacked the guy without saying a word. Eventually, untrained as he was, my client wound up shooting the fellow. He got charged. I confronted the prosecutor and said, “What are you doing? Why are you bringing these charges?”

He said, “Well, he could have run out of the house.”

I said, “You have been a prosecutor long enough to know he has absolutely no duty here in Minnesota to retreat from his own residence. You know very well we have the Castle Doctrine in place here in Minnesota and that is what it says: you have no duty in your own residence to retreat.”

He looked at me and said, “Well, the bottom line is that we don’t want people here taking the law into their own hands.”

I said, “So, you would rather have this guy run the risk of being beaten to death by a guy who is easily twice his size who is physically attacking him because you don’t want him taking the law into his own hands?”

He said, “I don’t like the way you phrase that!” and I said, “I will see you in trial.” Eventually, he thought about it and began to realize how that was going to come across to the jury and he came back and dismissed those charges. We worked things out.

People ask, “How likely is that to happen to me? Well, it is 50-50. It is either going to happen to you, or it’s not. If it does, now those actions that you took in mere seconds while you were using whatever decision tree you use to bring you to make a decision as to how you are going to react are going to be reviewed, analyzed, discussed and talked about over a period of months, if not years before the thing is finally resolved. That is very difficult for people to understand.

People say, “Well, I will be able to explain it to the jury.” No, you are not! As the defendant in a criminal case, the only time that you ever get to address the jury is when you are on the stand and you are responding to questions. If your attorney has properly prepared you for that, your answers to the questions are going to be very simple, very direct, and very short.

You do not get to talk to the jury! That is never going to happen. The perception that is going to work is totally off base.

On the one hand, you have to think about how you are going to respond to the person you are confronting. On the other hand, you need to be aware of the fact that people on the jury are going to view decisions you made and the actions that you took, and they may have very different perceptions of what they think would be appropriate under those circumstances.

When I said, “What was the language that was used by the defendant in this case? Was that language calculated to bring about a deadly attack?” I quoted from the AZ jury instruction that had to do with whether the words were used that would be or could be considered to have been calculated to have introduced a deadly attack. If that is what the jury decides, then your argument about self defense is gone. In some jurisdictions, if the judge decides that’s what it was, you will not be allowed to introduce a self-defense jury instruction to the jury and then argue those facts during closing arguments.

You have got to be really careful about how you are going to approach this person and how you are going to approach this issue. It is going to be made more difficult by the fact that at the time you are going to have to do this you are not going to be Mr. or Miss Calm, Cool and Collected. You are going to be stressed out; you are going to be fearful; you are going to have adrenaline pumping and so you have to be really, really careful in thinking ahead about how you might approach something of that nature.

eJournal: Some have equated innocence with not being the initial aggressor. Is it that simple? If a person said the first harsh words, is he or she the one at fault?

Fleming: It is nowhere nearly that simple. An initial aggressor who withdraws and effectively communicates their intent to withdraw will not lose the right to claim self defense if they are forced then to use deadly force against the other party to the confrontation–provided that the elements justifying the use of deadly force are present.

However, very few human beings have the discipline, temperament and training to remain dispassionate in an argument. As anger and/or fear mount, judgment is skewed and reactions can become exaggerated. As a result, we end up hearing over and over again, “I was in fear for my life.” “I thought I saw a gun,” or “I thought he was reaching for a gun.” Maybe you did, but you must realize that ultimately a jury looking at the situation may very well not agree with your perception of events.

Harsh words that a judge might conclude were “calculated to induce a deadly attack” can rob you of the ability to use self-defense as a justification for otherwise criminal conduct.

eJournal: Let’s make sure we understand: actual assaultive actions aren’t required; you could forfeit your right to self defense by what you say alone.

Fleming: Words alone can constitute that level of aggression, if they are found to have been “calculated” to induce a deadly attack.

eJournal: Are there fewer restrictions on making the first aggressive act if on one’s own property?

Fleming: This is a lot trickier because across the country, the rule is that non-deadly force can be used to protect property that is in the owner’s lawful possession–if the force that the defendant uses reasonably appears to be necessary to prevent or stop an unlawful intrusion onto, or interference with, that property. But–and this is a huge limitation on that ability to use force–deadly force can never be used simply to defend property against someone else’s interference with that property, even if that interference is unlawful and even if there is no other way to prevent that interference.

So non-deadly physical force, or words used to warn that non-deadly force will be employed to protect property, are not the words or actions of an aggressor.

eJournal: Let’s say that your contact with the would-be criminal whose crime you interrupt lasts for three minutes, starting with you coming out of your house and saying, “What are you doing? Get out of there, or I will call the police,” and in that segment of the episode, you correctly did what you are allowed to do. If the intruder responds violently or with real threats of violence and you defend yourself, when the prosecutor or DA charges you and you subsequently explain your actions to the court, are you going to have to explain everything you did from the first moment up to your use of force in self defense, or will you be judged on that half-second in which the intruder came boiling toward you and you believed you were about to be killed so you drew your gun? Are we defending that last half second as if it is a freeze-framed segment in a video or the entire three minutes?

Fleming: The broad answer depends on the experience of the attorneys that are involved and their understanding of what I have started referring to as “true” self defense. You see, everybody arrested for some type of assaultive conduct or a murder, is going to start screaming about self defense at the very first opportunity that they get. Case after case that pled the affirmative defense of self defense is rejected because in the vast majority of situations, it was not self defense; it wasn’t even close to being self defense.

You better have an attorney who understands true self defense because any defense attorney can throw that dart at the wall to see if they can hit something but the attorney that understands true self defense is one who understands all the variables that might be involved. They don’t necessarily have to be experts: the attorney doesn’t have to be their own expert witness but has to be able to understand and be able to recognize the types of issues that are involved. Is this a crime scene issue? Is this blood spatter issue? All of the different things that become part and parcel of true self defense so that the attorney recognizes the issues and reaches into their quiver to find the experts they can bring in to articulate the different things that go into properly analyzing the issue.

eJournal: If I may add to your points the fact that while the Network is blessed to be associated with you, with our other Advisory Board attorney Emanuel Kapelsohn and all our affiliated attorneys across the nation, when one looks at the larger population of armed citizens distributed all across the United States of America, there very likely aren’t really enough attorneys like you to serve the burgeoning number of armed citizens. I’d like to direct readers to something you taught me about years ago that we published at that allows the Network to bring in a deeply experienced attorney like you to defend the member by working in concert with the member’s local attorney. That way we combine familiarity with local practices with the experience of defending self defense. I’m guessing that there exists a fair bit of “local flavor” to the way initial aggressor issues are recognized and dealt with.

Fleming: A lot of this is going to be contingent on where you are. There is no universal law out there on these issues. The different states handle initial aggressor issues in different ways. Their jury instructions are different. The different states have different standards and they set up these shifting burdens differently so it is really difficult if someone says, “I want an answer to this question that is going to apply anywhere in the country.”

People are running around with carry permits or a combination of permits and sometimes someone tells me their permits give them “reciprocity in 47 different states.” That’s great, but just remember if something goes down you are going to be judged and handled by the law in the state where you are. That happens! If you do not understand the law in that jurisdiction, you put yourself at risk.

Now, does that mean that if you are going to go on a vacation trip and drive around the country that you are going to have to spend six months studying the law in all of these jurisdictions? No, but it does mean that you are going to need to be thinking about it in terms of general principles and then making sure that you have the ability to use resources such as the Armed Citizens’ Legal Defense Network because members can call and say, “I’m a member and I got into trouble in Arizona,” and the organization can help them identify the attorney or attorneys they want to be working with in AZ.

The Network can identify someone that knows this area of law, as opposed to some businesses that say, “Well, we are going to provide you with legal counsel,” and you say, “Well, wait a minute! Don’t I get to pick my own?” and they say, “No, we have got that taken care of!”

When they do that, how the hell do I know whether I’m going to end up with somebody who actually knows what they are doing? It is really important to be in a position to know that when I make the call, they are actually going to get me in touch with somebody who actually knows what they are talking about.

eJournal: Jim, we are running short on time and space in this journal edition and yet I have a number of questions about how the principles that prohibit arguing self defense if you were the initial aggressor apply to related situations like mutual combat as well as more about the jury’s task of determining that use of force was true self defense.

Readers, Jim has agreed to continue this lesson, so in a month please be sure to look up the October edition of our journal for more information about initial aggressor issues, all illustrated by Jim’s experience working in the criminal justice system.Cover 2nd Amend READERS


Attorney and Network Advisory Board member Jim Fleming practices law in MN, an attorney of more than 37 years trial and appellate court experience in MN, NE and has argued both civil and criminal appellate cases in the State appellate courts as well as before the Eighth Circuit Court of Appeals. He is the author of several books: Aftermath: Lessons in Self-Defense and The Second Amendment and the American Gun: Evolution and Development of a Right Under Siege. Jim and his wife Lynne Fleming operate the firearms training school Mid-Minnesota Self-Defense, Inc. where Jim is the lead instructor. Learn more about Flemng at and his law practice website at

To read more of this month's journal, please click here.