CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 15, 2014

Moore on Provoking Self-Defense

John D. Moore has posted Reasonable Provocation: Distinguishing the Vigilant from the Vigilante in Self-Defense Law (78 Brook. L. Rev. 1659 (Summer 2013)) on SSRN. Here is the abstract:

The right of self-defense is often viewed as a bedrock principle in the criminal law. That right, however, is subject to certain restrictions. Among those restrictions is the requirement in most jurisdictions that the individual claiming self-defense cannot have provoked the conflict. The precise contours of what constitutes provocation vary by jurisdiction. Each jurisdiction, to some extent, leaves unanswered the question of whether individuals can intentionally insert themselves into situations where violence is reasonably foreseeable and still maintain a claim of self-defense. The key problem in making these determinations is distinguishing between vigilant community members hoping to protect their communities and vigilantes seeking to mete out their own brand of extrajudicial law enforcement. While the former may be socially desirable, a society of laws can have little tolerance for the latter. Defining the boundary between these behaviors requires a carefully crafted rule that balances the interests of society and the needs of the individual. 

After identifying and examining the three primary frames for defining provocation in the context of self-defense, this article argues that courts should adopt a two-part inquiry when weighing whether a defendant is precluded from claiming self-defense: (1) Were the defendant’s allegedly provocative actions objectively reasonable?, and (2) Was the risk of violence that the defendant incurred reasonable in light of the totality of circumstances? Either as a stand-alone rule or as a gloss on the currently existing frames, this standard would preserve societal notions of justice while providing a measure of clarity to jurors and members of society at large.

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