GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2022

Status

Accepted

Abstract

Under the initial aggressor doctrine, an “initial aggressor” 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 17-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 display of a firearm in public should factor into a claim of self-defense 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 regarding the carrying of firearms in public—laws on the front end—become less restrictive, the need to tighten up laws, like the law of self- defense, that apply on the back end to those who discharge or otherwise use their firearms in public becomes more pressing. Initial aggressor rules can serve this critical function and should be reformed accordingly to discourage gun owners from using their firearms to kill or injure others.

While all fifty states and the District of Columbia have placed some limitations 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 help discourage gun violence. To this end, the Article makes three key contributions to existing legal scholarship. First, the Article clarifies the morass of confusing initial aggressor rules that currently exist across the nation. Second, the 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 case. Third, this Article proposes a way to resolve this problem. It is the first to suggest that judges should be required to give an initial aggressor instruction whenever a defendant claiming self-defense brought a firearm outside the home and displayed it in a threatening manner or pointed it at another person. By lowering the threshold to get an initial aggressor instruction to the jury, the proposal ensures that the jury, rather than the judge, gets to decide whether the defendant was the initial aggressor.

GW Paper Series

2022-19

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