When Does Provocation Bar Self-Defense?

Much of the debate in the Zimmerman/Martin case springs from ignorance of the law. Assume for a moment that Zimmerman deliberately “provoked” Martin, by profiling or “stalking” the teenager, or by confronting and insulting him. Some think that such provocation legally justifies physical attack (often called an “ass-whoopin”). Some also think that the law bars the recipient of such a “provoked ass-whoopin” from using deadly force to defend himself.

Evidence will eventually decide whether Zimmerman “provoked” Martin. But the other two beliefs (that an “ass-whoopin” in response to provocation is legal, and that the whoopee may not use deadly force in self-defense) are badly in error. Anyone who acts on such beliefs by physically assaulting someone who provoked them risks being killed (if in a state with strong self-defense laws) or sent to prison for many years. Only one state allows non-physical “provocation” as a defense for attacking someone. (The state is California, and even then the defense applies only when the person provoked is proven to have been mentally defective.)

“He did not deserve to die.”

This is the most common argument voiced by friends, relatives, or sympathizers of someone killed while delivering an “ass-whoopin”. An example may illustrate:

While driving home on March 8, 2012, Seth Browning (23) saw Brandon Baker (30) driving erratically. Browning followed Baker in order read his tag number as he phoned the police. He was unaware that Baker’s twin brother Christopher was following both of them in his own car. Brandon Baker noticed that he was being followed and swerved to pin Browning’s car against the curb. At the same time Christopher Baker pulled in behind Browning, trapping him. The brothers approached Browning on foot demanding to know why he was following Brandon. They were angry and seemed threatening. Browning opened his car window a crack and told them to leave him alone and that the police were on their way. The brothers continued to approach in a threatening manner, so Browning pepper-sprayed them through the opening. The faceful of pepper spray made Christopher retreat but it enraged Brandon, who smashed Browing’s car window, punched him in the face, and reached in to grab his throat. Browning thereupon pulled his legally licensed handgun and shot Brandon dead.

In the self-defense hearing, the dead man’s friends and relatives argued passionately that Brandon had not deserved to die. Brandon may have been angry, they said. He may have been drunk, he may have been blinded by rage, he may have been foolish, he may even have frightened the stalker when he tried to deliver a well-deserved “ass-whoopin”, but none of those mistakes warranted a death sentence.

The authorities agreed that nobody deserves to die, but it was Brandon’s choice to take that risk as clearly as if he had jumped off a bridge. His killing was legally justified. First, under the law deadly force is allowed against someone who breaks into an occupied house or car. Second, and more importantly, your being followed (or even stalked) does not justify your assaulting someone.

“The law is wrong and should be changed.”

This is the second most common argument against self-defense. The belief is irrelevant. Every state has procedures in place to enact, repeal, and amend statutes. If you think a law should be changed, tell your state legislator. The justice system does not care whether a law is just, simply that it is the law.

“He called me a nigger.”

On March 1944 during a heated argument at the National Cathedral in Washington DC, a White librarian named Catherine Reardon called Black janitor Julius Fisher a “nigger”. He responded by slapping her, beating her, choking her, finally stabbing her to death. His lawyer, the famous Charles Hamilton Houston, asked the judge to tell the jury that given the provocation, they were allowed to convict Fisher of manslaughter rather than premeditated murder. The judge’s refusal was upheld by SCOTUS–there is no such “provocation” provision under the law.

In June 1968 in a Washington DC bar, two White U.S. marines got into an argument with Benjamin Murdock. When they called him a “nigger”, he pulled out a gun and shot them both to death. Again, the defense argued provocation based on the legal doctrine of “fighting words”. Again, the court ruled that there was no such legal doctrine.

Over the decades, hundreds of lawyers have argued that their client was provoked by words or by gestures. They have lost. Since 1975, caselaw throughout the United States has been universal: “Words and gestures alone… regardless of how insulting or inflamatory those words or gestures may be, do not constitute adequate provocation for [physical assault].”

Provocation bars self-defense when it is physical.

The law does say that if you shove, kick, or hit someone you cannot shoot them when they shove, kick, or hit you back.

776.041 (1) — The [self-defense] justification described in the preceding sections of this chapter is not available to a person who:
(2) Initially provokes the use of force against himself or herself…

In order to bar self-defense, the: provocation must be physical and the retaliation must be commensurate with the provocation. “Sticks and stones” is the rule of thumb. Hit someone who merely insulted you or gave you the finger, and you risk being killed or imprisoned.

And yet,even the law barring self-defense if you hit the other person first has exceptions.

776.041 (1) (a) — … unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she 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…

In other words, even if A hits B first. If B retaliates so strongly that A is in imminent danger of death or great bodily harm and cannot escape, then A can legally shoot B dead even though A started it.

Also,

776.041 (1) (a) —  or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

In other words, say that A hits B and runs away. If B then chases A and puts A in danger of death or great bodily harm, then A can then legally shoot B dead even though A started it.

“But this is unfair!”, you say. “This means someone can walk up to me, insult me, call be a “nigger”, give me the finger, even hit me, and run away. If I chase him to deliver an “ass-whoopin”, he can legally shoot me! It is so unfair!”

Again, If you think a law should be changed, tell your state legislator. The justice system does not care whether a law is fair, simply that it is the law.

Conclusion

Dr. Sweet’s grandfatherly advice: The law assumes that you are a mature adult. It expects you to act like a mature adult. Mature adults do not hit each other. No matter how provoked you think you are, no matter how angry or upset you may be. Try to deliver an “ass-whoopin” and you risk death or imprisonment.

Next time: The Castle Doctrine


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Frank W. Sweet is an NRA-certified firearms instructor who teaches the safe and effective use of handguns for self-defense. He was awarded an M.A. in Civil War Studies in military history from American Military University in 2001. He is the author of Legal History of the Color Line (ISBN 9780939479238), Six Gems of Forgotten Civil War History (ISBN 9780939479023), and of numerous published historical essays. To receive a schedule of his firearms training courses, email to fwsweet@ccwvslaw.org. The information above should not be construed as legal advice.


Other Backintyme sites: Essays on the U.S. Color Line Armed Citizens and the Law
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