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Deadly-Force Self-Defense and the Problem of the Silent, Subtle Provocateur

Should the George Zimmermans of the world lose their right to claim justifiable self-defense at trial? If you look at cases like Zimmerman’s in a vacuum, then your initial moral instinct might scream, “Yes!” Yet, how would you feel if an affirmative answer to this question carried with it the loss of innocent persons’ rights to come and go as they please? These questions involve more than an instinctual sense of morality. They also involve the application and attendant consequences of the law. When a person purposefully provokes an attack against herself with the intent to kill the attacker under a guise of justifiable self-defense, the law limits the right of this person (the “provocateur”) to claim self-defense at trial. Generally, the provocateur must verbally or physically act in some incendiary manner in order to invoke the “provocateur limitation.” Some provocateurs, however, may be able to provoke an attack by their mere presence (e.g., a street-gang member present in a rival gang’s neighborhood). Does and should the law impose the provocateur limitation in “provocative presence” situations? Combining a survey of the law with a philosophical and policy-oriented study, the author concludes that a proper provocateur limitation may, as applied, allow for the calculated killing of another human being by a “silent, subtle provocateur,” yet courts must allow this immoral possibility in order to preserve the dignitary rights of innocent defenders.