Initial Aggressor: Losing the Right to Argue Self Defense

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.

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President’s Message

Marty eJournal column pix

First Degree Murder Charges Against Member Dropped

by Marty Hayes, J.D

I am writing this at Gunsite Academy where I am attending training. While on my way south from WA State, I received an urgent call from the home office, telling me of a member-involved shooting, and the need to get working on the case. I pulled over at a rest stop on I-5 in California and got to work on the Boots on the Ground phone. Within a couple of hours, we had lined up an attorney for the member, and a couple hours after that, the attorney and member got together at the jail to start the member’s defense. I will leave out the particulars of the situation, and will only note that immediately after the incident, the member did not have an attorney to call, so he called the Network first and our immediate task was connecting him with an attorney.

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Attorney Question of the Month


In late July the news was full of reports that rioters and other protesters had attacked citizens and law enforcement officers with lasers that can permanently damage vision. Some reports predicted Federal officers interdicting rioters in Portland, OR would suffer permanent blindness although the story moderated somewhat in the early days of August when word came out that the officers suffering eye damage were recovering after “suffering days-long blindness.”

Internet forums and social media continue to boil over with discussion of and suggestions about shooting rioters who aim lasers at a person’s eyes. Some of the discussion spilled over temporarily to the Network’s Facebook page. Because of the intense fear created by rioters' use of lasers to blind those who oppose them, we sought knowledgeable responses from our Network affiliated attorneys to this question:

If attacked by a person aiming a high-intensity laser at the eyes, does fear of permanent eye damage justify shooting the person wielding the laser?

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Book Review

Blind Injustice

A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions
By Mark Godsey
Paperback, 264 pages, $18.99
ISBN 978-0520305632
University of CA Press, Feb. 5, 2019

Reviewed by Gila Hayes

How do wrongful convictions occur in a criminal justice system as extensive as that of the United States of America? Some posit that prosecutors and police fail to thoroughly investigate, do not correct their mistakes, and at the extreme end of the speculation, we hear accusations of evil, malice, greed, slothfulness and other evils.

Author Mark Godsey, himself a Federal prosecutor for many years, gives an insider’s view of the resistance common to prosecutors and police when presented with evidence that the wrong person is locked up. This former prosecutor, who in 2003 joined Ohio’s then-new Innocence Project, writes knowledgeably about issues like confirmation bias, cognitive dissonance, memory, eyewitness errors, tunnel vision, threats to status quo and positions of authority, political pressures and other “flaws in the human psyche” that cause “police officers, prosecutors, judges, and defense lawyers to behave in bizarre and incredibly unjust ways without being aware that they are doing so.”

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Editor’s Notebook


by Gila Hayes

A panicked dog may explode into what is commonly called “fear biting,” a recognized canine response to perceived vulnerability even when the object of the poor creature’s fear aggression intends no harm. Animal scientists attribute fear biting to the poor animal’s earlier life experiences (post-traumatic stress), poor or non-existent socialization, or in some situations, genetics get the blame. Animals depend on fear responses to keep their species going. Perhaps humanity is not much more advanced in this regard.

While an animal’s instinctive fear response manifests in many forms, threat displays include the hard stare, growling, barking, snarling, lunging, snapping and the full-on, irrational blitz attack by an animal that has concluded–no matter how misguided–that it has to fight or be killed. Like a vulnerable teacup poodle biting its groomer, we’re hearing a lot of growling and seeing a lot of teeth-baring that suggests frightened citizens are at risk of launching into a panicked response, much like a canine fear biter.

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About this Journal


The eJournal of the Armed Citizens’ Legal Defense Network, Inc. is published monthly on the Network’s website at Content is copyrighted by the Armed Citizens’ Legal Defense Network, Inc.

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