(concurring) — The trial court properly instructed the jury by giving the “aggressor instruction,” WPIC 16.04, along with instructions on self-defense, because the jury had to decide between competing stories of who instigated the conflict, and because there is evidence supporting the view the defendant started the conflict. 11 Washington Pattern Jury Instructions: Criminal (2d ed. 1994). I write separately to take issue with the majority’s assertion that words alone can never support the giving of an aggressor instruction.
Riley belatedly raises a First Amendment argument in this case suggesting an aggressor instruction may not be given where words alone are the provocation or, alternatively, may be given only in conjunction with an instruction on “fighting words” under the First Amendment. We have approved an aggressor instruction where the provocation *915was oral only. State v. Hawkins, 89 Wash. 449, 154 P. 827 (1916) (defendant was the aggressor and brought on affray by accusing deceased of castrating one of defendant’s hogs).
I agree with the majority we do not need to reach Riley’s First Amendment argument under the facts here. It is undisputed Riley pulled his gun first and aimed it at Jara-millo. There was evidence for the jury to rely on that Riley was not provoked into pulling his gun. Thus, this is not a case where words alone made Riley the possible aggressor. His act of drawing his weapon first, in addition to whatever alleged conversation he had with Jaramillo, constituted ample grounds for an aggressor instruction.
Nevertheless, the majority reaches beyond the necessities of this case to decide a point neither disputed nor argued by the parties: “Although language in some older cases suggests that words alone may justify the conclusion that the speaker is an aggressor, we hold that words alone do not constitute sufficient provocation.” Majority op. at 910-11 (footnote omitted). I cannot agree. The majority’s concern, and cases the majority cites for support, involve the legality of an assault against the speaker of offensive or infuriating language. Although we have never had the opportunity to hold as much, it is likely we would agree with those courts that have held the recipient of invective or insult, in the absence of a palpable physical threat, is never privileged to respond with violence. We would most likely agree with Atticus Finch’s advice to his precocious, six-year-old daughter, Scout: “[Y]ou just hold your head high and keep those fists down. No matter what anybody says to you, don’t you let 'em get your goat. Try fighting with your head for a change.” Harper Lee, To Kill a Mockingbird 84 (J.E Lippincott Co. 1960). Modern society does not condone violent responses to mere language. As we said in State v. Mierz, 127 Wn.2d 460, 482, 901 P.2d 286, 50 A.L.R.5th 921 (1995): “It is a wise course, and the hallmark of our civilization, that the rule of law should prevail over needless confrontation.”
But this case is not about condoning a violent response *916to mere language. The question is not whether Jaramillo was justified in responding to Riley’s taunts by going for his gun; Jaramillo was not on trial. This case is about Riley, the verbal aggressor and shooter. The hypothetical question the majority raises is whether Riley could have been deprived of a self-defense instruction solely because of the words he used to provoke Jaramillo. The question is hypothetical because Riley argued self-defense to the jury and actually received the benefit of self-defense instructions.
Nevertheless, the majority betrays its fundamental misunderstanding of the role of aggressor instructions by saying, “If words alone, and in particular insulting words alone, could justify the ‘victim’ in using force in response and preclude the speaker from self-defense, principles of self-defense would be distorted.” Majority op. at 911.6 There is no attempt to justify or ratify the use of violence in response to provocative words. The focus is not on the conduct of the aggressor’s victim, but on whether the State is deprived of an aggressor instruction when the aggressor claims self-defense after having provoked a fight with the victim. The majority conflates the two concepts, and a muddled analysis is the result.
The idea of a first aggressor may well be embedded in human nature as a manifestation of rudimentary justice. All can remember as children either using or hearing the excuse—“But he started it”—when being admonished by an adult for fighting. What “he started” may have been aggressive or provocative language as well as actual physical violence.
No one seriously disputes that “fighting words” exist, that there are “ ‘words . . . which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” City of Seattle v. Camby, 104 Wn.2d 49, 52, 701 *917P.2d 499 (1985) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)). Recognizing the existence of “fighting words,” however, is not the same thing as saying one is privileged to respond to “fighting words” with violence, despite the majority’s misapprehension.
The majority, in fact, creates a privilege in a speaker to utter “fighting words” by asserting words alone can never result in an aggressor instruction for the speaker’s provocative words. Thus, according to the majority, no matter what one says, no matter how provocative, no matter what the circumstance of the provocation, a speaker may always assert self-defense if attacked by the person the speaker provokes into attacking, and the State is never entitled to an aggressor instruction. The majority’s rule defies human nature.
Imagine a funeral ceremony with hundreds of mourners for a widely respected African-American civil rights leader. A white supremacist appears at the church and begins shouting nonthreatening, racial epithets. Enraged mourners rush the person, who pulls out a concealed gun and kills several of them. At his trial for murder, he argues self-defense. Under the majority’s reasoning, because he used only words to provoke the attack, the white supremacist was not an aggressor and the State is not entitled to an aggressor instruction. Imagine Friday night Sabbath services at Temple DeHirsch Sinai in Seattle. A man wearing full Nazi regalia appears and begins to deface the sanctuary walls with spray painted swastikas and anti-Semitic slogans in view of the congregated worshippers. His actions do not involve any threats of physical harm. Nevertheless, several of the congregants approach him and attempt to push him out the door. He responds by pushing back, and one of the congregants falls and is injured. At his trial for assault, the neo-Nazi argues he was only defending himself. Under the majority’s reasoning, because he used only words or demonstrative speech to provoke the attack, he was not the aggressor and the State cannot obtain an aggressor instruction. Similar scenarios may be posited. In each such case, *918according to the majority, when only words are the provoking agents and there is no threat of physical harm, the aggressor may always argue self-defense, but the State may never obtain an aggressor instruction.
The majority’s reasoning is contrary to human nature and contrary to law. “Fighting words” by definition may provoke violence, and while all may agree such violence is never justified, very few besides the majority believe the aggressor ought always to be allowed to escape responsibility for the consequences of his or her provocative behavior by arguing self-defense. When one provokes another to violence by words alone, by a combination of words and threatening behavior, or by threatening behavior alone, Anglo-American law has always held the provacateur may lose the benefit of arguing self-defense7 and the jury may be given the aggressor instruction. We should not create a rule of law to the contrary without the benefit of an actual case or controversy on the subject. I therefore concur only in the result.
Dolliver, J. Pro Tern., concurs with Talmadge, J.
The majority’s use of quotes around the word victim indicates its evident skepticism that Jaramillo was the victim here. Jaramillo was the object of Riley’s oral taunts and then the recipient of the shot Riley fired that rendered Jaramillo a quadriplegic. •
Contrary to the majority’s implication, many cases from other jurisdictions support the proposition that an aggressor may lose the ability to argue self-defense by speaking provocative words. See, e.g., Vaughn v. State, 17 Ala. App. 383, 84 So. 879 (1920); Wheatley v. State, 93 Ark. 409, 125 S.W 414 (1910); People v. Barnard, 208 Ill. App. 3d 342, 567 N.E.2d 60, 153 Ill. Dec. 345 (mere words enough), appeal denied, 139 Ill. 2d 598, 575 N.E.2d 917, 159 Ill. Dec. 110 (1991); McCarty v. Commonwealth, 244 Ky. 413, 51 S.W.2d 249 (1932); State v. Ball, 262 S.W. 1043 (Mo. 1924); State v. Council, 129 S.C. 116, 123 S.E. 788 (1924); Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998); Scott v. Commonwealth, 143 Va. 510, 129 S.E. 360 (1925).