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 VOLUME 11 - CHAPTER 253
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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.15 Self Defense By Aggressor

    253.4.15.1 Availability Of Self Defense To Aggressor Using Deadly Force: Instruction On Withdrawal
    253.4.15.2 Self Defense By An Aggressor, Trespasser Or Thief: Nondeadly Wrong-Doer Need Not Withdraw From Deadly Counter-Attack Or Response
    253.4.15.3 Self Defense: Defendant Has No Duty To Avoid Potential Assailant
    253.4.15.4 Self Defense: Definition Of Aggressor
    253.4.15.5 Self Defense: Definition Of Aggressor -- Words Alone Not Sufficient
    253.4.15.6 Self Defense By Aggressor: Inapplicable To Subsequent Distinct Encounter
    253.4.15.7 Self Defense By Aggressor: Reference To “Unlawful Act” Is Unconstitutionally Vague
    253.4.15.8 Self Defense: Definition Of Aggressor -- Words Accompanied By Hostile Acts May Be Sufficient
    253.4.15.9 Self Defense Not Available To Person Committing A Forcible Felony: Forcible Felony Must Be Independent Of The Act Of Self Defense
    253.4.15.10 Self Defense Instruction Should Not Use The Term "Aggressor"

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    See FORECITE National™ 253.4.6.1 [Availability Of Self Defense To Aggressor Using Deadly Force: Instruction On Withdrawal].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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RATIONALE: The general pattern instructions may mislead the jury into believing that the only way an aggressor may regain the right to self defense is by withdrawing. This is not true if a nondeadly aggressor was met with a sudden and deadly counter-attack.

POINTS AND AUTHORITIES:  "[M]any cases have recognized that the right to use force is contingent upon the defendant’s role which may, as a practical matter, fluctuate between that of aggressor and victim." (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-9, Comment, p. 8-58.) For example, an aggressor can restore his right to self-defense by withdrawing. (See Rowe v. United States (1895) 164 US 546 [17 SCt172; 41 LEd 547]; see also Thomas v. Lynaugh, 812 F2d 225, 229 (5th Cir. 1987) [self-defense applies where aggressor abandoned the encounter or intent to abandon which is communicated to the other party].)  

    Generally, if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counter-attack in self defense, the original assailant cannot slay his adversary in self defense unless he first, in good faith, declines further combat and fairly notifies the adversary that he has abandoned the affray. (People v. Hecker (CA 1895) 109 C 451, 463 [42 P 307]; Earl v. Commonwealth (KY 1978) 569 SW2d 686, 687; Watkins v. State (MD 1989) 555 A2d 1087 [an original aggressor at the nondeadly force level becomes a victim and acquires the right of self defense at the deadly force level if the original victim responds with deadly force]; LaFave, Scott, Substantive Criminal Law (West, 1986) § 5.7(E) (2d ed. 1986).)

    However, when the victim of a simple assault responds in a sudden and deadly counter-assault, the original aggressor need not attempt to withdraw and may use reasonable necessary force in self defense. (People v. Gleghorn (CA 1987) 193 CA3d 196, 201 [238 CR 82]; People v. Sawyer (CA 1967) 256 CA2d 66, 75 [63 CR 749].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

BRIEFING AVAILABLE: Click here. [Brief Bank # B-519].

RESEARCH NOTES:

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    An original aggressor who initiated the encounter with nondeadly force, such as an assault without a deadly weapon, need not withdraw if the victim of the nondeadly assault responds in a sudden and deadly counter-assault.

[Source: FORECITE National™.]

    If the defendant provoked the use of force, but _______________ (name of alleged victim) used force greatly disproportionate to the defendant's provocation and it was so great that the defendant reasonably believed [he] [she] was in imminent danger of death or injury, the defendant is not considered to have provoked the incident and [he] [she] lawfully acted in self defense.  

[See generally People v. Gleghorn (CA 1987) 193 CA3d 196, 201 [238 CR 82]; Watkins v. State (MD 1989) 555 A2d 1087; see also IOWA CRIMINAL JURY INSTRUCTIONS 400.14 [Provocation - Disproportionate Force] (Iowa State Bar Association, 1991).]

    Before a defendant who is an initial aggressor using nondeadly force can be excused on the grounds of self defense, the defendant has a duty to retreat to avoid the danger if he can do so consistent with his safety. If there is no safe place available, the defendant is entitled to use whatever force is reasonably necessary to repel the counter attack to save himself from imminent danger of serious bodily harm or death.

[See generally People v. Gleghorn (CA 1987) 193 CA3d 196, 201 [238 CR 82]; Watkins v. State (MD 1989) 555 A2d 1087; Tipton v. State (MD 1967) 232 A2d 289, 292; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.13(b) [Self-Defense-Where Defendant is Alleged Aggressor-Where Defendant Is Aggressor Using Non-Deadly Force, Victim Counterattacks With Deadly Force, And The Defendant Subsequently Uses Deadly Force To Defend] ¶ 2 (Lexis, 2nd ed. 1988).]

    A person who commits a nondeadly wrongful act such as [assaulting another with fists or a weapon that is not deadly] [insulting someone with words] [trespassing on someone else's property] [trying to take someone else's property in a nonviolent way] does not lose all right to self defense by committing such a wrongful act.  If another person responds by assaulting the initial wrongdoer with deadly force, the initial wrongdoer may lawfully act in self defense. 

[See generally People v. Gleghorn (CA 1987) 193 CA3d 196, 201 [238 CR 82]; Watkins v. State (MD 1989) 555 A2d 1087; see also MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.19 [Non Deadly Aggressor Assaulted With Deadly Force] (ICLE, 2nd ed. 1999); see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7; People v. Townes (MI 1974) 218 NW2d 136; People v. Smith (MI 1976) 240 NW2d 475.]

    The use of force in defense of a person is not available to a person who purposely or knowing provokes the use of force against himself unless [such force is so great that he reasonably believes that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant] [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].

[See generally People v. Gleghorn (CA 1987) 193 CA3d 196, 201 [238 CR 82]; Watkins v. State (MD 1989) 555 A2d 1087; see also MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 3-105 [Use Of Force By Aggressor] (State Bar of Montana, 1990).]

    The initial aggressor may not invoke the defense of self protection unless: (1) he did not initially use deadly force and (2) the force returned or threatened was such that the defendant believed himself to be in imminent danger of death or serious physical injury.

[See generally People v. Gleghorn (CA 1987) 193 CA3d 196, 201 [238 CR 82]; Watkins v. State (MD 1989) 555 A2d 1087; see also Cooper, KENTUCKY INSTRUCTIONS TO JURIES 11.11 [Self Protection; Initial Aggressor Qualification] (Anderson, 4th ed. 2001).]

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    253.4.15.3    Self Defense: Defendant Has No Duty To Avoid Potential Assailant

RATIONALE: Without an explanatory instruction jury may be misled into believing that self defense is not available to a person who simply failed to take affirmative steps to avoid a potential enemy. This does not constitute "seeking a quarrel" and does not preclude lawful self defense.

POINTS AND AUTHORITIES: Normally, self-defense is not available to one who has sought a quarrel with the intent to force a deadly issue and thus to create a real or apparent necessity for his own assault. (See e.g., People v. Garnier (CA 1950) 95 CA2d 489, 496 [213 P2d 111]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.54 [Self Defense By An Aggressor] (West, 6th Ed. 1996); CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.55 [Plea Of Self Defense May Not Be Contrived] (West, 6th Ed. 1996).)

    However, this rule does not apply to one who, while otherwise acting lawfully, simply fails to curtail his or her activities to avoid an encounter with another person. "For one may know that if he travels along a certain highway he will be attacked by another with a deadly weapon, and be compelled in self-defense to kill his assailant, and yet he has the right to travel that highway, and is not compelled to turn out both his way to avoid the unexpected attack." (People v. Gonzales (CA 1887) 71 C 569, 578 [12 P 783]; see also Wharton’s Criminal Law (West 15th Ed. 1993) § 127, pp. 188-89 ["[T]he defendant need not secrete himself to avoid the victim...."].) "A person threatened with an attack that justifies the exercise of the right of self defense need not retreat ... This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene." (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.50 [Self Defense–Assailed Person Need Not Retreat] (West, 6th Ed. 1996).)

    However, a person does not become an aggressor merely because he or she provides an opportunity for conflict.  (Wharton’s Criminal Law (West, 15th Ed. 1993) § 137, pp. 230-31.)  For example, one does not become an aggressor by traveling on a public road near the home of one who has threatened him or by arming himself to repel an anticipated attack.  (Ibid.)

    See also FORECITE National™ 253.4.14.5 [Self Defense: Definition Of Aggressor -- Words Alone Not Sufficient].

    See also FORECITE National™ 253.4.15.4 [Self Defense: Definition Of Aggressor].

    See also FORECITE National™ 253.4.15.8 [Self Defense: Definition Of Aggressor -- Words Accompanied By Hostile Acts May Be Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    The defendant has no obligation to curtail [his] [her] activities to avoid an encounter with a person who may attack [him] [her]. Therefore, a person does not forfeit his or her right to self-defense simply by driving by another person on a public street even if the person driving by has reason to believe that the other party may initiate an assault by shooting at the passing automobile.

[Source: Adapted from People v. Gonzales (CA 1887) 71 C 569 [12 P 783].]

    A person does not become an aggressor merely by providing an opportunity for conflict. Therefore, one who does an act which merely affords an opportunity for conflict is not thereby precluded from claiming self defense.

[Source: Adapted from State v. Jackson (AZ 1963) 382 P2d 229, 232.]

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RATIONALE: When appropriate special instruction may be necessary for the jury to understand the legal definition of an aggressor for purposes of applying the self defense instructions.

POINTS AND AUTHORITIES:  The aggressor is generally the one who first commits acts which would ordinarily put the other person involved in fear of death or serious bodily injury. (See a Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.38 [General Jury Instructions-Commentary-Self Defense of Person] p. 2-72 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).)

    However, a person does not become an aggressor merely because he or she provides an opportunity for conflict.  (Wharton’s Criminal Law (West, 15th Ed. 1993) § 137, pp. 230-31.)  For example, one does not become an aggressor by traveling on a public road near the home of one who has threatened him or by arming himself to repel an anticipated attack.  (Ibid.)

    See also FORECITE National™ 253.4.11.9 [Self Defense: Reasonable Person Standard -- Defendant Need Not Wait For The Attack].

    See also FORECITE National™ 253.4.16.2 [Self Defense: Imminent Danger — Assailant Need Not Wield Deadly Weapon].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    For purposes of these instructions an aggressor is a person who first uses or threatens the immediate use of offensive physical force. 

[Source: A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL [General Jury Instructions - Commentary-Self Defense of Person] p. 2-72; (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996); see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5.22 [Defenses-Justification–Physical Force] (West, 1988).]

    An aggressor is a person who, without having the right to act in self defense, uses physical force against another person.

[Cf. A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.38 [Commentary- Self-Defense Of Person] p. 2-72; (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996); see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5.22 [Defenses-Justification–Physical Force] (West, 1988).]

    The actual striking of the first blow or inflicting the first wound does not in itself determine who was the initial aggressor. A person who reasonably believes that another person is about to use physical force upon him need not wait until he is struck or wounded. The person may, in such circumstances, use physical force defensively, so long as it was reasonable for him to believe that that other person was using or about to use physical force upon him. He is then not considered to be the "initial aggressor," even though he struck the first blow or inflicted the first wound.

    A person becomes the initial aggressor by taking the offensive and striking or attempting to strike the first blow or inflicting the first wound even though he or she was not being attacked or about to be attacked physically, or reasonably believes himself or herself to be in such position.

[See generally Wharton’s Criminal Law (West, 15th Ed. 1993) § 137, pp. 230-31; see also A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.38 [Commentary- Self-Defense Of Person] p. 2-72; (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996); see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5.22 [Defenses-Justification–Physical Force] (West, 1988).]

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    253.4.15.5    Self Defense: Definition Of Aggressor -- Words Alone Not Sufficient

RATIONALE: Without an explanatory instruction the jury may be misled into concluding that the use of abusive language or threats are alone sufficient to make a person the legal aggressor under the rules of self defense.

POINTS AND AUTHORITIES: Words alone are not sufficient to justify self defense; but threats may be considered to evaluate conduct that would otherwise be equivocal or unimportant. (Wharton’s Criminal Law (West, 15th Ed. 1993) § 127, pp. 189-90.) On the other hand, words accompanied by hostile acts may be sufficient to constitute a threat of physical attack or, in some cases, to constitute a threat of serious bodily harm and to justify acting in self defense. (See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) Inst. 10.1 [Words Accompanied By Hostile Act] p. 274 (South Carolina CLE, 1994).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    Verbal quarrels, the use of abusive language, and/or the calling of names, unaccompanied by physical threats or acts, do not justify the use of any physical force.

[See generally Wharton’s Criminal Law (West, 15th Ed. 1993) § 127, pp. 189-90; see also A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL [2.38 [Commentary- Self-Defense Of Person] p. 2-72 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

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RATIONALE: The standard initial aggressor instruction may be misleading when the defendant was the aggressor in an earlier incident but not in the incident that is the basis for the prosecution.

POINTS AND AUTHORITIES: Use of an instruction limiting the applicability of self defense (or provocation) if one who is the original aggressor is improper where the second encounter by the defendant and the victim were separate and distinct and not a continuation of the first. (Stepp v. Commonwealth (KY 1980) 608 SW2d 371, 374; see also Deville v. Wilks (LA 1969) 229 So2d 128, 130 ["The first encounter ended when the parties were separated and left the scene in separate vehicles. It is unnecessary, therefore, for us to consider or to determine which of the two parties was the actual aggressor in the first altercation"].)

    Accordingly, the initial aggressor instruction should not be given where the second encounter was separate and distinct as a matter of law or, alternatively, where the evidence presents a question of fact as to this issue the instruction should be modified to so reflect. (Stepp, 608 SW2d at 374.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    The special rules regarding one who is an initial aggressor do not apply to subsequent encounters between the defendant and ____________ (alleged victim) which are separate and distinct from the earlier encounter in which it is alleged that the defendant was the initial aggressor. If you have a reasonable doubt as to whether or not the subsequent encounter was separate and distinct from the first, you must not apply the initial aggressor rules to the subsequent encounter based on any aggression by the defendant in the first encounter.

[Source: FORECITE National™.]

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    253.4.15.7    Self Defense By Aggressor: Reference To "Unlawful Act" Is Unconstitutionally Vague

RATIONALE: It would be vague and overbroad to instruct the jury to consider the availability of self defense based on a determination of whether certain conduct was "unlawful."

POINTS AND AUTHORITIES: Use of the term "unlawful act" in an instruction without any further definition or specification improperly leaves the jury to decide for themselves what constitutes an unlawful act. (See e.g., SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-9-9 [Self Defense Against An Unlawful Act] (State Bar of South Dakota, 1996) ["The right of self defense exists only against an unlawful attack. The right does not exist, even though bodily injury appears probable, against a person who, in threatening or appearing to threaten injury, is acting lawfully"].)

    For example, in Washington, the instruction on aggressor-defense of self originally stated that self defense was not available to a person who committed an "unlawful act" upon another person. This instruction was held to be unconstitutionally vague. (See State v. Arthur (WA 1985) 708 P2d 1230, 1232.) The Arthur held that the availability of self defense should not turn on the jury’s unguided determination as to whether the defendant’s conduct was "unlawful." The court stated: "The instruction is too vague and too broad. An aggressor instruction must be directed to intentional acts which the jury could reasonably assume would provoke a belligerent response by the victim." (See also State v. Hardy (WA 1986) 722 P2d 872, 875; but see State v. Hughes (WA 1986) 721 P2d 902, 909-11 [instruction not too vague in light of other instructions and facts of the case].)

    In light of the potential constitutional problems with the phrase "unlawful act" the state of Washington Jury Instruction Committee revised the instruction to correct the problems identified by  the Arthur case. (WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 16.04 [Aggressor-Defense Of Self] (West, 2nd ed. 1994).)

    See also FORECITE National™ 300.13 [Vagueness And Overbreadth].

    See also FORECITE National™ 255.4 [Self Defense, Partial Or Imperfect].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    Self defense is not available to a person who provokes a belligerent response by committing an intentional act for the purpose of creating a necessity for acting in self defense.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 16.04 [Aggressor-Defense Of Self] (West, 2nd ed. 1994).]

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    253.4.15.8    Self Defense: Definition Of Aggressor -- Words Accompanied By Hostile Acts May Be Sufficient

RATIONALE: In deciding who was the aggressor the jury should be informed that provocative or threatening words, when accompanied with hostile acts may make a person the aggressor.

POINTS AND AUTHORITIES: Words which accompany a hostile act or acts may be sufficient to constitute a threat of physical attack and to justify the use of self defense. (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) Inst. 10.1; see also IOWA CRIMINAL JURY INSTRUCTIONS 400.11 [Words Of Provocation] (Iowa State Bar Association, 1997); FORECITE National™ 253.4.1.10 [Self Defense: Racial Epithets].)

    See also FORECITE National™ 253.4.16.2 [Self Defense: Imminent Danger — Assailant Need Not Wield Deadly Weapon].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    Depending on the circumstances, a person may act lawfully in self defense based on another person's words which are accompanied by hostile acts.

[Source: FORECITE National™.]

    The use of physical force is not justified by verbal quarrels, the use of abrasive language, the calling of names, unaccompanied by physical threats or acts.  However, words which are accompanied by hostile acts may reasonably justify the use of force in self defense.

[See CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.38 [General Jury Instructions-Commentary-Self Defense of Person] p. 2-72 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

    Depending on the circumstances, words accompanied by hostile acts may constitute a threat of physical attack or serious bodily harm sufficient to make the person the aggressor and to justify the lawful use of self defense by the person threatened.

[Source: FORECITE National™.]  

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    253.4.15.9    Self Defense Not Available To Person Committing A Forcible Felony: Forcible Felony Must Be Independent Of The Act Of Self Defense [This entry has been deleted]

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RATIONALE: To avoid confusion a self-defense instruction should refrain from using the term "aggressor" and instead refer to the parties by name or otherwise refrain from using the term aggressor.

POINTS AND AUTHORITIES: See generally Gilbert v. Commonwealth (VA 1998) 506 SE2d 543, 547; State v. Brown (WV 1988) 371 SE2d 609, 613; Tijerina v. State (TX 1996) 921 SW2d 287, 289-90; see also FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 3.04(d) [Justifiable Use Of Deadly Force] p. 49 (Florida Bar, 2000).

    Cf. FORECITE National™ 6.2.10 [Improper To Use The Term "Victim" In Jury Instructions].

    The defendant who because of threats or prior difficulties with __________ (name of alleged victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of ____________ (name of alleged victim), has the right to arm [himself] [herself].

[See generally Gilbert v. Commonwealth (VA 1998) 506 SE2d 543, 547; State v. Brown (WV 1988) 371 SE2d 609, 613; Tijerina v. State (TX 1996) 921 SW2d 287, 289-90; see also FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 3.04(d) [Justifiable Use Of Deadly Force] p. 49 (Florida Bar, 2000).]