The facts in the Charles Dunn case in Florida are pretty straightforward, and for the most part undisputed. The 47-year-old Dunn, a software developer, pulled into a Jacksonville gas station on November 23, 2012. A Dodge Durango with four teenagers was parked next to Dunn’s vehicle. “Loud music” was blaring from the teenagers’ vehicle. An argument ensued between Dunn and the teens over the volume of the music. The argument quickly escalated, and fearing for his life, Dunn retrieved a 9mm handgun with a ten round clip in it from his glove compartment. Saying he saw one of the teens, Jordan Davis, with a gun, Dunn opened fire. Several bullets struck and killed the 17-year-old Davis. The SUV sped away. Dunn fired three final shots, striking the vehicle as it sped away.


Dunn faced a jury trial in the case, invoking Florida’s self-defense. On February 15, 2014, a jury convicted him of four counts of attempted murder and deadlocked on the first degree murder charge involving Davis’ death. The shooting event, as well as the jury’s verdict, has triggered an endless analysis by T.V. “legal experts” and cable news pundits about the Florida self-defense statute, many of whom misidentified the use of Florida’s Stand Your Ground law as implicated in the case.  We will not follow that path. Instead we will take the events surrounding the shooting to see if they provide a legitimate self-defense under Texas’s version of “stand your ground.”


Texas Penal Code § 9.31(a) provides that “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”


Dunn testified in his own defense at trial, and for argument’s sake, we will accept his testimony at face value. According to Dunn, while sitting in his vehicle waiting for his girlfriend to come out of the convenience store of the gas station, Dunn said he politely asked the teens to turn down what he felt was obnoxiously loud, bass-thumping music. He thanked the teens when they obliged. However, Davis became irate that Dunn confronted them about the music. Dunn said he heard threatening comments from the teens, including a racial slur that called him a “cracker.” Two of the teens got out of the SUV and started staring menacingly at Dunn who rolled down a window and confronted the teens about whether they were talking about him. He said he saw Davis reach down and pick up a shotgun and began to exit the SUV, all the while threatening to kill Dunn. Fearing for his life, Dunn said he retrieved his gun from the glove compartment and opened fire. He fired three volleys of 10 shots, according to witnesses.


Prior to the actual shooting, witnesses said they heard Davis tell Dunn that he could not speak to him (Davis) that way. Witnesses said Dunn then opened his door for a better shooting angle.

Accepting these core publicized facts as true, Dunn might have had a difficult time mounting a self-defense defense in Texas because of the state’s provocation doctrine. This doctrine is also known as “provoking the difficulty” or “provoking the attack,” and it is the one forceful limitation on the right of self-defense. In fact, it is a concept in criminal law that can act as a total bar against a defendant’s right to self-defense.


The doctrine of provocation is codified in § 9.31(b)(4) of the penal code. An en banc decision by the Texas Court of Criminal Appeals in 1998, in Smith v. State, held that before the prosecution can secure a charge to the jury on provocation there must be sufficient evidence 1) that the defendant did some act or used some words which provoked the attack on him, 2) that such act or words were reasonably calculated to provoke the attack, and 3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. All three elements are questions of fact.


The better part of discretion would have been for Dunn to tolerate the “thumping” noise in silence or ignore it through indifference. He chose not to do so. He had a 9mm gun with a ten-round clip in his glove compartment. Perhaps his willingness to provoke a confrontation was encouraged by the presence of the gun in the vehicle, who knows?  Once it became clear to him—and by his own admission it was clear to him—that the teens had become upset because of his request to lower the music, Dunn became even more provocative when he rolled down a vehicle window and asked the teens if they were talking either to or about him. In the heat of that context, the question becomes whether Dunn legally provoked the teens in such a manner as to prevent his use of self defense.


Whether Jordan Davis had a shotgun will never be known. The weapon could have been discarded once the teens fled from the scene. What is known is that no one other than Dunn saw the weapon.   It would be a safe bet, given the conflicting testimony, that a court in Texas would allow the jury to consider both self defense and provocation.


The doctrine of provocation is founded upon what the Texas Court of Criminal Appeals called a “theory of estoppel.” The court in 1921 defined the legal maxims of the doctrine in Mason v. State: “A man may not take advantage of his own wrong to gain favorable interpretation of the law; he seeks the law in vain who offends against it … One cannot willingly and knowingly bring upon himself the very necessity which he sets up for his own defense.” In the context of the taking of a human life, the court added: “If a person by his own willful and wrongful act brings about the necessity of taking the life of another to prevent being killed himself, he cannot say or claim that such killing was in his own necessary self-defense, for the law then imputes to him his own wrong and its consequences.”


This doctrine was recently reaffirmed last September in Reeves v. State: a doctrine that requires the prosecution to prove every element beyond a reasonable doubt before it can secure an instruction on provocation to the jury.


The first element—that the defendant did some act or used some words which provoked the attack on him—was defined in Smith: “A defendant may have a desire that the victim will attack him, or he may seek the victim with intent to provoke a difficulty, but the defendant must go further and do or say something which actually provokes the attack before he will lost his right to self-defense. The act or words can be directed at third parties, not just the victim, in order to provoke the difficulty

The second element—that the defendant’s acts or words were reasonably calculated to provoke the attack—was also defined in Smith: “An act is reasonably calculated to cause an attack if it reasonably capable of causing an attack, or if it has a reasonable tendency to cause the attack. Some provoking acts or words can by their own nature be legally sufficient to support a jury finding.”


The third element—that the act was done, or the words were used, for the purpose and with the intent that the defendant would have a pretext for killing the victim—was also defined in Smith: “Even though a person does an act, even a wrongful act, which does indeed provoke an attack by another, if he had no intent that the act would have such an effect as part of a larger plan of doing the victim harm, he does not lose his right of self-defense.”


Given the evidence presented in the Dunn case, a Texas prosecutor could make an argument that Dunn provoked the difficulty, and therefore forfeited his right of self-defense. The issue of whether to instruct the jury on provocation would be made by the judge after an assessment of the evidence presented during the trial.


Regardless, of the facts in Dunn’s case, the bottom line in Texas is: “One cannot willingly and knowingly bring upon himself the very necessity which he sets up for his own defense.”