When Provocation Is No Excuse: Making Gun Owners Bear the Risks of Carrying in Public

Markeis McGlockton, an unarmed 28-year-old African-American father of three, was shot to death in front of his five-year-old son by “wannabe police officer” Michael Drejka during an argument over parking. Because McGlockton had shoved Drejka before Drejka shot him, Drejka was convicted only of heat-of-passion manslaughter, not murder. This Article argues that the heat-of-passion defense shouldn't be available in cases like Drejka's-cases where the defendant was carrying a loaded gun in public at the time of the provocation and used the gun to kill his provoker. The heat-of-passion defense is a concession to the difficulty of complying with the law's demands in moments of passion. In cases like Drejka's, however, the defendant's difficulty in complying with the homicide law is of his own making. If he had taken the same precaution that most people take against such difficulties-namely, not carrying a loaded gun in public-he wouldn't have had any trouble not killing his provoker. In defending the proposed limit on the heat-of-passion defense, this Article will advance three novel claims about the criminal law: (1) that self-mediated risk-risk that is mediated by the actor's own future volitional conduct-sometimes suffices to make conduct morally blameworthy; (2) that even decisions by an actor that appear to represent core exercises of protected individual liberties-the decision to form racist beliefs, for example, or the decision to carry a gun outside the home-sometimes can supply the locus of moral blame in criminal prosecutions; and (3) that in cases where the actor's fault inheres in self-mediated risk, the law's usual reluctance to impute moral blame doesn't apply.