Gun Violence: When ‘Self-Defense’ Becomes Murder

Kyle Rittenhouse, the 17-year-old who shot and killed two people during a 2020 protest in Kenosha, WI., was found not guilty last November after a jury accepted his claim that he was acting in self-defense. He believed his life was in danger.

Prosecutors had argued that the claim was spurious on the grounds that the teenager’s decision to bring an AR-15 to the protest made him an “initial aggressor” under Wisconsin law.

“You cannot claim self-defense against a danger you create,” said Assistant District Attorney Thomas Binger in his closing argument. “If you’re the one who is threatening others, you lose the right to claim self-defense.”

The jury didn’t agree. Still, the case illustrated the confusion surrounding application of the “initial aggressor” legal doctrine in U.S. jurisprudence, according to a forthcoming Legal Studies Research Paper published under the auspices of George Washington University Law School.

All 50 states and the District of Columbia allow “initial aggressor” limitations on self-defense claims. Nevertheless, according to the paper written by Cynthia Lee, the Edward F. Howrey Professor of Law at the George Washington University Law School, state statutes vary widely on defining what constitutes aggression.

“If hostile words and verbal insults are sufficient to eliminate one’s ability to claim self-defense, surely displaying a firearm in a threatening manner or pointing a firearm at another person should be sufficient to remove one’s ability to claim self-defense as well,” argued Lee.

Similarly, there is no litmus test for determining what would invalidate an individual’s claim to self-defense.

That leaves the “initial aggressor” troublingly ambiguous, Lee notes.

In some states, the defendant must be proven to have initiated the aggression purposefully or knowingly, in order to have their self-defense claim waved. This means that the court must find beyond a reasonable doubt that the defendant meant to harm the individual before being provoked or engaging in a mutually combated altercation.

Courts have struggled to define “initial aggression” since at least 1925 when, in Scott v. Commonwealth, the Supreme Court of Virginia found that the self-defense argument does not extend to cases where an individual responds to offensive language like insults.

 Similarly, in People v. Santiago, the Illinois Court of Appeals in 2018 found that a defendant’s hostile language constituted aggression and thus invalidated his claim to self-defense. Witnesses had testified the defendant provoked the violence by shouting gang slogans and made gang signals before shooting.

“‘Provokes’ might imply that some intent to precipitate violence is necessary,” said Michael Mannheimer, author of a paper on the Trayvon Martin case, who was quoted in the study.

“On the other hand, ‘provokes’ can be read more broadly as simply triggering a violent response without intent that it occur.”

In George Zimmerman’s trial for the 2012 murder of Trayvon Martin, the question surfaced of whether Zimmerman, a member of a Neighborhood Watch group who was patrolling a Florida gated community, acted as an initial aggressor when he intercepted Martin.

Although Martin was doing nothing unlawful, Zimmerman pursued him aggressively as a suspect, provoking Martin to respond with hostility.

Zimmerman said he shot Martin because he felt his life was in danger.

Nevertheless, during the trial, the judge decided not to notify the jury of the initial aggressor doctrine, which the study argues is a flaw in many states’ initial aggressor policies.

The issue has increasing importance outside the courtroom, as gun violence in America increases in proportion to the number of people now carrying guns. Concealed carry is allowed in all 50 states, and a Supreme Court ruling is expected shortly in a New York case about whether individuals have a Second Amendment right to carry guns in self-defense.

Lee warns that if the right is upheld, it “does not mean that any time an individual uses a firearm in public to harm or kill…they have acted in self-defense and should not be held accountable for their actions.”

Nevertheless, she pointed out, resolving the confusion about defining the “initial aggressor” is crucial because it underlines the point that a claim of self-defense is an “issue separate and apart from the question whether that individual has a Second Amendment right to ‘bear’ a loaded firearm in public.”

According to Lee, the ambiguity could be resolved in part by requiring judges to give juries an instruction about the initial aggressor doctrine whenever a defendant claiming self-defense has brought a firearm outside the home and displayed it threateningly or pointed it at another person.

“The law of self-defense has a mechanism — the initial aggressor limitation — that can help discourage people from pointing guns in public,” the study says.

“This mechanism, however, has not yet been utilized to its fullest.”

The paper can be downloaded here.