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This is the premise of a lateral thinking puzzle I wrote a while ago, and I'm wondering if it would actually work. Let's say I want to get someone arrested for some reason and I know he has a bad temper. So I wait until he is drunk and prone to violence then insult him until he attacks me so I can get him arrested. Would there be any potential legal complications to this idea, such as my risking jail time too?

Such insults would count as 'fighting words' so they are not protected speech, but I don't think that matters for this premise? All that matters if rather antagonizing someone into assaulting me would ruin my ability to insist they be arrested for assault or put me in legal jeopardy.

I'm interested in the USA perspective; all I really care is whether there is any state in which such a strategy would work.

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    In England and Wales, your deliberate behaviour might be deemed to be leading to a "breach of the peace" and so could lead to your arrest and possibly being bound over by a judge.
    – Henry
    Commented Nov 12 at 15:46
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    @Henry, that's worth writing into an answer (with the appropriate jurisdiction tag). Commented Nov 12 at 16:28
  • @TobySpeight Somebody else more knowledgeable might do so. Apparently it sometimes may not be a crime as such, but can involve arrest and court action in order to prevent a crime occurring.
    – Henry
    Commented Nov 12 at 18:13
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    You can. You may even manage to get them arrested for homicide;-) Commented Nov 12 at 22:49
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    The inclusiveness edit may harm the question. Because there's specific legislation that applies to a specific gender. Commented Nov 14 at 15:45

5 Answers 5

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This strategy may work in most places since verbal assault is not a defense argument for a physical assault:

Generally, provocation does not act as a complete defense, but it can mitigate damages or culpability.

But, provocation may potentially be a mitigating factor (same source) for a situation where someone ends up dead, reducing the crime from murder to manslaughter. However, words as a provocation wouldn't be enough:

In criminal law, the crime of murder may be reduced to manslaughter if the defendant acted in response to provocation.

Situations that typically constitute adequate provocation:

Adultery. A spouse who discovers their partner having sex with another is reasonably provoked, so that if, in the heat of passion, the spouse intentionally kills their partner or the partner’s lover, the homicide will be held to be voluntary manslaughter rather than murder.

Mutual Combat. Where two parties willingly enter a fight, and during the fight one of the parties kills the other, if the intention to kill was formed during the struggle, the homicide will be held to be voluntary manslaughter rather than murder.

Assault and Battery. A deadly or severe assault, or a strike with the fist that causes substantial pain or injury, may be sufficient to establish reasonable provocation. A minor blow is not sufficient to constitute a reasonable provocation.

Words

Almost universally, the courts have rejected words alone as providing adequate provocation for a homicide unless accompanied by conduct indicating a present intention and ability to cause bodily harm.

More importantly, provoking someone solely for the purpose of creating a scene may on its own be a crime, for example see a discussion about the California 415 PC here:

person can be charged with disturbing the peace under California Penal Code Section 415 PC for a number of disruptive activities, including fighting, loud or unreasonable noise violations and using offensive words

So while you may end up having the other person arrested, you also might end up in the cell right next to them, albeit with lesser charges.

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    Can you provide a citation for jurisdiction? Also, it may be helpful to provide some relevant quotes from your links to mitigate link rot. Commented Nov 12 at 14:15
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    @Pyrotechnical added
    – littleadv
    Commented Nov 12 at 17:55
  • I question the article, even if it's from Cornell Law. Mutual combat is legal only in some states and even then, if there's no serious injury. Commented Nov 14 at 15:48
  • @MindwinRememberMonica I don't think that's disputed in the article.
    – littleadv
    Commented Nov 14 at 17:52
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    @JBH premeditation could lead to the 415 PC application (in California, similar laws exist in other places).
    – littleadv
    Commented Nov 15 at 10:22
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Provocation

Provocation occurs when a person does a wrongful act or insult of a nature that is likely to deprive an ordinary person of their powers of self-control and induce them to commit a violent act.

Note this is an objective standard, so the person being drunk or prone to violence is irrelevant; the question is, would it provoke an ordinary person?

In some jurisdictions provocation is a full defense to assault. So, don’t do this in Queensland or Western Australia or your assailant will walk free.

In addition, in about half of Australian jurisdictions, provocation is a partial defense to murder. So, if you provoke them, and they kill you, they can only be convicted of manslaughter, not murder.

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    An excellent result if you provoke someone to kill you. Maybe you should be more polite.
    – gnasher729
    Commented Nov 11 at 17:24
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    From that link: "Under section 264 of the Criminal Code 1899, a lawful act cannot be found to be provocation to an assault." Can verbally insulting someone be considered unlawful? As I understand it, if it's legal for you to say it at all, it's illegal for them to hit you for it. Commented Nov 12 at 14:53
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    @NuclearHoagie that is 1 of 9 jurisdictions
    – Dale M
    Commented Nov 13 at 2:16
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    @NuclearHoagie, only with very careful wording - Australia has public order offences relating to both swearing and insulting
    – Anybody
    Commented Nov 13 at 10:08
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No, they may self defend

If Alice insults Bob hard enough and long enough, German law does allow Bob to strike Alice, and even might put Bob into a situation where Bob may inflict considerable damage on the insulter Alice.

See BHG, judgment of 17. Mai 2018 – 3 StR 622/17 The Court held (paraphrased) that Bob can not be punished for the dangerous harm he inflicted on Alice after Alice spent several minutes harassing and insulting Bob:

  1. b) Die getroffenen Feststellungen belegen hinreichend, dass der Angeklagte zur Abwehr eines massiven gegenwärtigen rechtswidrigen Angriffs auf seine Ehre handelte. Diese darf als strafrechtlich geschütztes Rechtsgut (§§ 185 ff. StGB) grundsätzlich auch mit den Mitteln der Notwehr verteidigt werden (vgl. BGH, Urteil vom 14. Februar 1952 - 5 StR 1/52, BGHSt 3, 217, 218; Fischer, StGB, 65. Aufl., § 32 Rn. 8); dies gilt jedenfalls, soweit es sich - wie hier - nicht um nur geringfügige Behelligungen im sozialen Nahbereich, sozial tolerables Verhalten oder eine sonstige Bagatelle handelt (vgl. SSW-StGB/ Rosenau, 3. Aufl., § 32 Rn. 7).
  1. b) The findings made provide sufficient evidence that the defendant was acting to defend against a massive current illegal attack his honor acted. As a legal asset protected under criminal law (§§ 185 ff. StGB) it [honor] can generally also be defended using the means of self-defense (cf. BGH, judgment of February 14, 1952 - 5 StR 1/52, BGHSt 3, 217, 218; Fischer, StGB, 65th edition, § 32 Rn. 8); This applies at least as far as - as here - it is not just a matter of minor annoyances in close social areas, socially tolerable behavior or some other trivial matter (cf. SSW-StGB/ Rosenau, 3rd edition, § 32 Rn. 7).
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    The linked court case only handles the fact that one court decision had been deemed wrong and the lower instance had to redo it's trial. There is a lot of additional baggage to unpack, the accused being mentally ill, physically weaker than the person they attacked, and the attacked had already threatened them with death before. The insults were considered grave and not just normal insults hurled over a picket fence, while the accused had no means of just tolerating them, due to their mental state. So "you may stick a knife in people insulting you" is definetely the wrong take away.
    – nvoigt
    Commented Nov 11 at 9:58
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    To anyone else who cannot see this: I did not downvote, the answer is not technically wrong, I'm just afraid readers might get a wrong impression without a more detailed explanation.
    – nvoigt
    Commented Nov 11 at 12:38
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    @nvoigt The case is paraphrased by Kluwer as "Fehlende Prüfung des Vorliegens eines Notwehrexzesses im Rahmen eines Messerangriffs; Vorliegen eines die Notwehrlage begründenden rechtswidrigen Angriffs durch massive Beleidigungen auf die Ehre" - Failure to examine the existence of excessive self-defense in the context of a knife attack; Existence of an unlawful attack by means of massive insults to honor that substantiates the situation of self-defense
    – Trish
    Commented Nov 12 at 13:02
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    Also, Para 8 b) says, that that case was explicitly self defense and cites several others. The finding of the earlier court that defendant did assault was, as far as BGH goes, erronious as they ruled: honor may be defended with quite a lot of force if it is "not just a matter of minor annoyances [or]other trivial matter"
    – Trish
    Commented Nov 12 at 13:03
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    Wow, amazing ruling. I knew that provocation can lead to a milder sentence but I didn't know one could invoke self-defense. Commented Nov 12 at 14:18
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From UNC Law Review article Torts -- Assault and Battery -- Provocative Words as Defense

The court held that provocative words may be justification for an assault, provided the person uttering the words understood or should have understood that physical retaliation would be attempted. The words must be "fighting" words.

If the victim of the assault was specifically trying to provoke it, they surely fit the "understood that physical retaliation would be attempted" criteria.

I expect numerous other states have similar "fighting words" exceptions for assault.

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  • The SC ruled a long time ago that "Fighting words" aren't protected speech under the 1st Amendment - Chaplinsky v. New Hampshire (1942)
    – Peter M
    Commented Nov 12 at 15:45
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    That's a related but separate issue from whether they excuse the assault in response.
    – Barmar
    Commented Nov 12 at 16:38
  • But it does mean that in no US state can you claim fighting words as protected speech. So it lowers the bar for being assaulted.
    – Peter M
    Commented Nov 12 at 16:42
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    There are a number of free speech exceptions but most of them don't excuse assault as retaliation.
    – Barmar
    Commented Nov 12 at 16:48
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    @PeterM A ruling that something is "Not protected under the 1st Amendment" in no way rules out a claim that it's protected under a state constitution or law. Don't confuse "The 1st Amendment does not say that it is protected" (correct analysis) with "The 1st Amendment says that it is not protected" (which your comment appears to claim)
    – Ben Voigt
    Commented Nov 12 at 17:18
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"Get him arrested" is covering a broad range of outcomes. Most answers thus far are dealing with whether the provocateur has technically committed a crime, or whether the puncher has a legal defense likely to prevail at trial. Both are relevant, but elide aspects of the process that are essential to the question posed.

The goal as stated is causing an arrest. If the scene is staged in front of a police officer, that's highly likely to occur as the puncher will at least be prevented from leaving until the situation has de-escalated and the parties have been separated. As an arrest is simply "the use of legal authority to deprive a person of their freedom of movement", this satisfies the requirements. But there's no certainty of jail time for either parties involved.

Officers have broad discretion in handling most situations. An arrest isn't even guaranteed in the situation described, if the officer is able to end the altercation with a verbal warning and ascertains that no serious threat or harm exists. They may arrest either or both parties to the incident (in the sense of detaining on site for a matter of some minutes), then let them go. They may issue citations to one or both parties for some variation of disorderly conduct or breach of peace. And they may bring one or both parties to the station, formally book them, and subject them to detention in a holding cell until they make bond (varies on jurisdiction, but generally for minor offenses bail is based on a pre-established schedule and can be paid without requiring a judge or court appearance) and/or are deemed sober enough to pose no threat. This last is likely what the questioner means by "get arrested" and it is by no means guaranteed, especially if the officer witnessed the provocation.

It's worth noting that some states do have "mandatory arrest" laws, which remove an officer's discretion in certain assaults. But to my knowledge those are all specifically related to domestic violence calls, which would entail a rather more elaborate and prolonged level of preparation and provocation than the question considers.

The question also mentions the punched person's "ability to insist [the puncher] be arrested", which seems to reflect a common misconception. Despite what television programs have led many to believe, a victim has no ability to insist that anyone be arrested, under any circumstances.

Typically, if you are the victim of a crime, you or someone calls the police, who report to the scene and record information about what happened. Police reports are then turned over to the office of the local state or district attorney and a lawyer is assigned to the case. That prosecuting lawyer reviews the police reports, including victim and witness statements, to decide whether charges should be filed.

If an officer witnessed and intervened in the fight as discussed above, the report is already made. But in either case, it's up to the DA's office to decide whether to pursue the matter further. If the report or their initial investigation turns up obvious provocation, this will factor into their consideration of whether or not to pursue the matter and formally press charges. For the puncher to be arrested after the fact, the DA's office would need to decide to press charges, and those charges would have to be sufficiently serious to justify pre-trial detention instead of a simple summons or notice to appear before the court. The specifics vary widely based on location and circumstances, but arrest warrants are not commonly issued for low level misdemeanors.

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    I think the OP is simply assuming that if someone commits a serious crime they will likely be arrested. Perhaps based on watching shows like Law & Order, where the detectives and DA doggedly pursue and prosecute attackers.
    – Barmar
    Commented Nov 13 at 18:01
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    And the question is about the insulter's goal, regardless of whether the police actually carry it out.
    – Barmar
    Commented Nov 13 at 18:03
  • And how many people who are arrested for assault actually do it in view of the police? Isn't it more common for the police to be called after the fact?
    – Barmar
    Commented Nov 13 at 18:05
  • @Barmar Fair point. I was potentially stretching the spirit of "Would there be any potential legal complications to this idea" to include "are my assumptions about the initial stages of the legal process accurate", but that's more of a frame challenge than a direct response to the explicitly stated concerns.
    – Jay McEh
    Commented Nov 13 at 18:07
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    But that doesn't seem to be the main question, as described in the title, which is about potential consequences to the person being goaded into attacking.
    – Barmar
    Commented Nov 13 at 18:10

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