Scholarship Highlight: A New Perspective on the Initial Aggressor Doctrine

In a new article forthcoming in the North Carolina Law Review, Cynthia Lee surveys the current state of the "initial aggressor" doctrine–under which an individual who initiates a violent confrontation loses the right to claim that he or she acted in self defense–and proposes several changes to the doctrine to discourage gun violence and ensure that "initial aggressor" cases are properly evaluated in court. 

Cynthia Lee, Firearms and Initial Aggressors , 101 N.C. LAW REV. ___ (forthcoming 2023)

Abstract:

Under the initial aggressor doctrine, a person who initiates a physical confrontation loses the right to claim self-defense. Until recently, judges, legal scholars, and others have paid relatively little attention to this doctrinal limitation on the defense of self-defense. Two high-profile criminal trials in 2021 put the initial aggressor doctrine front and center of the national conversation on issues concerning self-defense and racial justice. One involved Kyle Rittenhouse, the seventeen-year-old teenager who brought an AR-15 style rifle to Kenosha, Wisconsin, during the third night of racial protests in August 2020, and ended up shooting three men, killing two and injuring the third. The other involved the February 2020 shotgun shooting by Travis McMichael of an unarmed Black man named Ahmaud Arbery as he was jogging in a predominantly White neighborhood in Satilla Shores, Georgia.

The question of how the threatening display of a firearm in public should factor into the initial aggressor doctrine when a claim of self-defense has been asserted has become more important than ever as the nation continues to relax its restrictions on firearm carrying in public and as criminal homicides by firearms rise. As laws regulating the carrying of firearms in public--laws on the front end--become less restrictive, the need to tighten up laws that apply on the back end to those who discharge or otherwise use their firearms in public becomes more pressing. Initial aggressor rules, which are an integral part of self-defense *2 doctrine, can serve this critical function and should be reformed to discourage gun owners from using their firearms except when truly necessary in self-defense.

While all fifty states and the District of Columbia have placed some kind of limitation on an initial aggressor's ability to justify the use of force in self-defense, current initial aggressor rules are ambiguous and often contradictory. Most state statutes do not define the term “aggressor” and no clear rules exist regarding whether and when an initial aggressor instruction must be given to the jury.

This Article attempts to strengthen the initial aggressor doctrine so it can be used to help discourage gun violence. To this end, this Article makes three key contributions to existing legal scholarship. First, this Article clarifies the morass of confusing initial aggressor rules that currently exist across the nation. Second, this Article theorizes that one of the main problems with current initial aggressor doctrine is that it leaves too much discretion in the hands of the judge, which means the jury--the body that is supposed to decide whether a defendant qualifies as an initial aggressor--often never gets to decide this key question that can make or break a defendant's claim of self-defense. Third, this Article proposes a few ways to resolve these problems. It first suggests that states define the term “initial aggressor” in a way that better captures the behavior the term is meant to include. Second, this Article proposes that judges, as a general matter, must give an initial aggressor instruction whenever an individual outside the home displays a firearm in a threatening manner or points that firearm at another person, is charged with a crime, and then claims they acted in self-defense. By lowering the threshold to get an initial aggressor instruction to the jury, this proposal ensures that in most cases the jury, rather than the judge, gets to decide whether the defendant was the initial aggressor.