Denver: Provocation with Intent

NOTE: I have unlocked this blog post from member’s only access only for the week of March 14, 2022.

Welcome to today’s Law of Self Defense Members-only content, and once again we’re focused today on the shooting by Matt Dolloff of Lee Keltner in Denver this past weekend.

You may recall that in the Kyle Rittenhouse shootings there were mistaken claims that if it turned out Rittenhouse was in unlawful possession of the AR he used to shoot his attackers, that this unlawful possession would destroy his claim of self-defense.

I wrote at the time about how this argument was without merit. In most states, including Wisconsin re: Rittenhouse, as well as in Colorado as discussed here today, not all unlawful conduct loses one the privilege of self-defense as a legal justification for the use of force.

Generally speaking, in order for some unlawful conduct to strip one of self-defense, that unlawful conduct must fall into one of several well-defined buckets. Generalized unlawful conduct is not (in most states) sufficient. Mere unlawful possession of a firearm, as per Rittenhouse, is generally not enough—indeed, the unlawful gun possession itself may be justifiable on the grounds of self-defense.

In the Denver shooting, however, there are allegations that if proven to the satisfaction of the jury would, as a matter of law, strip Dolloff of every vestige of self-defense as a legal justification for his killing of Lee Keltner, and that’s what we’ll discuss today.

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OK, back the Denver shooting. As already mentioned, some generalized unlawful conduct is not enough to lose someone their privilege of self-defense, at least not under Colorado law where this shooting took place (and not under the law of most other states).

Rather, to lose the privilege of self-defense the unlawful conduct in question must fall into one of several buckets. Conveniently, the Colorado self-defense statute–§ 18-1-704. Use of physical force in defense of a person–defines these buckets for us specifically.

If Dolloff’s use of force again is found by the jury to fit into any one of these exclusionary buckets (and not qualify for an exception), his use of force cannot qualify as lawful self-defense as a matter of law.

So, let’s take a look at §18-1-704 in some detail, and see how it applies to the facts of this case.

§ 18-1-704 consists of four primary paragraphs.

The first paragraph describes the conditions that must be met to justify force as self-defense at all.

The second paragraph describes additional conditions that must be met in order to justify deadly defensive force—these are conditions above and beyond, and in addition to, those described in paragraph 1.

Paragraph 3 describes the types of unlawful conduct that functions to strip one of self-defense, with some possibility of recovering self-defense if certain additional conditions are met.

Paragraph 4 describes the legal defense of self-defense as a defense to charges of recklessness (imperfect self-defense), rather than charges based on intent and reasonableness (perfect self-defense, what we would think of as “normal” self-defense).

Colorado § 18-1-704: Self-Defense, Generally

With that overview, let’s take a look at the first paragraph of § 18-1-704:

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

In this single paragraph we see Colorado law touch upon four of the five elements of a claim of self-defense—the excluded element, Avoidance, is excluded because Colorado is among the large majority of stand-your-ground states, and does not impose a generalized legal duty to retreat before engaging in otherwise lawful self-defense.

The remaining elements are all addressed, however.

Innocence is addressed by the reference to the condition that one be defending against unlawful physical force, and not (for example) the lawful force of a police officer making a lawful arrest.

Imminence is addressed explicitly by the reference to the condition that one be defending against an imminent use of unlawful force, not some past or distantly future force.

Proportionality is addressed by the reference to using only a degree of force necessary for self-defense (and no more than that).

And Reasonableness is addressed explicitly by the multiple references to reasonableness in that single sentence.

Deadly-Force Self-Defense

Of course, all that addresses the use of defensive force generally. Before one may use deadly force in self-defense, however, additional conditions must be met, and these are set out in paragraph (2):

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary …; or

(c) The other person is committing or reasonably appears about to commit kidnapping …, robbery …, sexual assault …, or assault… .

(References to statutory citations removed for clarity.)

So, before deadly defensive force may be used, one must meet all the conditions of paragraph (1), and then also the conditions of any one of the sub-paragraphs of paragraph (2).

Specifically, the deadly force defender must have reasonably perceived an imminent threat of deadly force …. or … they were the occupant of a dwelling who was about to be the victim of physical force by a burglar … or … they were using the deadly defensive force against someone reasonably perceived to be committing one of the enumerated forcible felonies of kidnapping, robbery, sexual assault, or assault.

Reckless Self-Defense

Skipping ahead to paragraph 4, we see how Colorado addresses the use of self-defense as a legal defense to criminal charges based on recklessness.

Normally, perfect self-defense, the type of self-defense that can clear a defendant of all criminal liability, applies only to reasonable and intentional self-defense—the defender perceived a threat and reasonably used defensive force to neutralize that threat.   Perfect self-defense does not normally apply, however, to crimes of recklessness, which by definition are unreasonable.

Colorado law still allows self-defense to be raised as a legal defense to charges of recklessness, but in such cases instead of the state being required to disprove self-defense beyond a reasonable doubt (which is the case with perfect self-defense), the defendant retains the burden to prove self-defense by a preponderance of the evidence.

Losing Innocence: Initial Aggressor

That leaves us with paragraph 3, which is the focus of today’s Law of Self Defense Members-only content. It is here that the Colorado self-defense statute sets out the types of unlawful conduct that can strip a person of their privilege of self-defense.

It begins:

(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:

So, that tells us that even if a defender otherwise meets the generalized conditions of self-defense, they nevertheless do not qualify for self-defense if they trigger any of the sub-paragraphs of (3)(a), (b), or (c). In effect, in each of the described scenarios the purported defender has lost the element of Innocence, and thereby lost self-defense.

I’ll address each of these, but out of sequence.

Paragraph (3)(b) deals with the loss of self-defense by an initial aggressor. The initial aggressor is not necessarily the person to land the first blow, but rather the first person to threaten or use unlawful force against another. If one is the initial aggressor, they have lost the element of Innocence and therefore lost self-defense, and it is the other party that has a privilege of self-defense to resist that unlawful aggression.

In the context of the initial aggressor, however, paragraph (3)(b) also provides for a means by which the initial aggressor can regain self-defense. Specifically, the initial aggressor can regain the element of Innocence, and thereby regain self-defense, if they withdraw from the conflict and effectively communicate their desire to cease fighting to the other party.

Now, for the fight to continue the other party must pursue the withdrawing initial aggressor. In effect the withdrawing ends the first fight for the initial aggressor, and the pursuit by the other party begins a second fight in which this pursuer (previously the victim) has become the initial aggressor in that second fight, and the person who was the initial aggressor in the first fight has now regained their privilege of self-defense.

Note that regaining Innocence does not work retroactively—Innocence is regained for use-of-force purposes moving forward, the person is still on the hook for their unlawful uses-of-force prior to regaining Innocence.

These conditions may be relevant to the conflict between Keltner and Dolloff. If Dolloff were the initial aggressor, he’s arguable lost self-defense on that basis. But if Keltner was the original aggressor, Dolloff would nominally have a privilege of self-defense—unless, that is, Keltner had withdrawn and effectively communicated his withdrawal, in which case he had regained Innocence (and self-defense) and Dolloff then became the initial aggressor (without a self-defense privilege) in a second fight (the fight in which he shot the retreating Keltner). Without a self-defense justification, Dolloff’s shooting of Keltner would therefore be an unlawful killing.

Here’s that paragraph (3)(b) noting that a person is not justified in using physical force if:

(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or

 

In effect, paragraph (3)(b) reflects a public policy that is intended to encourage even the initial aggressor to cease their attack—if they do so, they regain innocence, and if after they cease their attack the other party pursues them, they can defend themselves against that pursuer’s counter-attack. They are still on the hook for the first fight that they started, but they can defend themselves in the second fight, so long as they made a good faith effort to end the first fight.

Losing Innocence: Mutual Combat/Combat by Agreement

Paragraph (3)(c) loses a person self-defense as a legal justification if they engage in mutual combat (what the statute refers to as “combat by agreement”):

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

Mutual combat or combat by agreement occurs when the parties mutually agree—either explicitly or implicitly/constructively—to settle their differences by physical combat.

Note that this exclusion of self-defense would apply to both combatants, as everyone engaged in mutual combat is in effect a mutual initial aggressor.

This condition could well apply to both Matt Dolloff and Lee Keltner in this case, if the evidence suggests they engaged in mutual combat. Of course, the effect with respect to Keltner is zero, because he died in the fight, and so will not be raising self-defense as a legal defense to any criminal charges arising from the conflict. The effect with respect to Dolloff, however, could well be to strip him of self-defense entirely.

One wrinkle here is that situations of mutual combat often involve elements of both Innocence and Proportionality. That is, two people may engage in mutual combat of a non-deadly force nature—say, a fist fight, or shoving—and in effect both have consented to the other’s use of non-deadly force on them, and neither can justify their use of non-deadly force upon the other as self-defense.

If one of them then escalates the non-deadly force fight to deadly force—responds to a shove by drawing a gun or knife, for example—then that person has arguably begun a new fight, a deadly force fight. Under that circumstance the other party had agreed only to a non-deadly force fight, had consented to only a non-deadly force fight, and had lost self-defense only with respect to a non-deadly force fight. Once the fight is escalated to deadly force, they regain their privilege of self-defense with respect to that new deadly force attack.

This could be relevant to the confrontation between Dolloff and Keltner if, for example, the facts suggest that the two men were engaged in non-deadly force mutual combat (e.g., shoving, defensive use of OC spray) and then Dolloff escalated that fight to a deadly force level when he went to his pistol. In that case Dolloff has become the sole deadly force aggressor, and of course has no self-defense justification for that use of deadly force against Keltner.

On the other hand, what often happens in such cases—one party escalates a non-deadly force mutual combat to deadly force, and kills the other party—is that the existence of the initial mutual combat is treated as a mitigating factor for the killing. The result is that what might otherwise have resulted in a murder conviction instead is mitigated to a manslaughter conviction.

After all, the thinking goes, there would have been no escalation to deadly force if there had not first been a non-deadly force mutual combat, and it is often thought that the person killed bears at least some responsibility for his own death by having engaged in that non-deadly force mutual combat in the first place.

In other words, the courts often want to distinguish a killing predicated on an initial non-deadly force mutual combat in which the victim was an active participant from a killing that is predicated on, say, the armed robbery of the victim. The first may be manslaughter even where the second may be murder.

Losing Innocence: Provocation with Intent

Finally, we get to paragraph (3)(a), which is of particular interest in this case.

It has apparently been suggested in certain circles that this killing of Keltner was a set-up. In other words, that Dolloff was on a mission, perhaps based on his own political biases favoring Antifa (against which Keltner was protesting) and/or at the prodding of the news media who had purportedly hired Dolloff as security in order to “create news” on which the agency would be well positioned to report.

I feel obliged to state up front that I lack the evidence to know whether this is a credible narrative of the events, or not. Even if the narrative is true, it may be that the evidence required to demonstrate its truth may never be disclosed. So, we discuss this narrative here for exploratory purposes, only, not as an argument for the truth of the narrative itself.   Use your own judgment as far as that goes.

That said, if the narrative is true it raises the possibility that Dolloff may have been a provoker with intent, which is the means of losing Innocence and losing self-defense that is addressed by paragraph (3)(a), which reads that a person is not justified in using physical force if:

(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or

This is the classic “throw the first punch, I dare you!” scenario. The person shouting that does not actually want to be punched in the face. Rather they want to use the other person’s obvious attempt to punch them in the face as an excuse to use counter-force against that other person, and then to attempt to justify that counter-force as justified self-defense.

Self-defense law is particularly wary of this circumstance, because it involves a bad actor attempting to game the system, to falsely make something appear to be self-defense when it is not.

As a result, the provoker with intent not only loses the element of Innocence, and thereby lose self-defense … you’ll note that they also lack the withdrawal and communication means of regaining Innocence, and self-defense, that is made available to the initial aggressor, as discussed above.

This is a public policy that is intended to punish the provoker with intent for his attempt to game the system. An initial aggressor may regain their senses, withdraw from the fight, and regain Innocence and self-defense for purposes moving forward. The provoker with intent owns that fight they provoked, period.

This scenario would apply to Dolloff if the narrative of his seeking to provoke that fight for the purpose of falsely claiming self-defense for his use of counter-force is demonstrated to be true. In which case Dolloff would have no self-defense justification for his shooting of Keltner, regardless of the other circumstances of the case.

I’ll note in passing, also, that it’s at least theoretically possible that if individual members of the media agency, or the media agency itself, hired or retained Dolloff for the purpose of having him provoke forcible confrontation, they could themselves be on the hook for a manslaughter or accessory prior to murder.

Proving such purpose, however, might prove very difficult if the media personnel are able to keep their mouths shut, and no one seeks a deal from prosecutors (assuming, of course, that Denver-area prosecutors are at all interested in going after the news personnel or agency at all).

And that, folks, is all the Law of Self Defense Members-only content that I have for all of you today.

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OK, folks, until next time …

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict!

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC