Unequal injuries. Competing narratives. Mismatched sizes and strengths. When police arrive at a domestic dispute, they face a high-stakes judgment call: who is the primary aggressor? Their determination controls who gets arrested, but the evidence rarely points in one clear direction.
Fort Lauderdale domestic violence attorney Dave L. Simmons has spent decades challenging improper primary aggressor findings. He knows the factors police are trained to consider and how easily those elements can be misinterpreted in the heat of the moment. Here's what everyone needs to know about this pivotal decision point.
What Makes Someone the "Primary Aggressor" in a Domestic Violence Case?
Florida law requires police to identify a primary aggressor before making an arrest for domestic violence. But that doesn't mean they have to conclude one party is exclusively to blame. Instead, officers look for the person who "appears to be" the predominant physical aggressor based on:
- The severity of injuries inflicted on each person
- Evidence that one party acted primarily in self-defense
- Each person's fear or lack of fear of the other
- Any history of domestic violence between the parties
The Relative Injury Paradox
In theory, police should be able to distinguish between offensive strikes and self-defense by examining each person's wounds. But it's not that simple. Injury severity often depends more on size and strength differences than on aggression levels.
A larger, stronger party can cause more damage with less effort. Meanwhile, a smaller victim may have to lash out repeatedly to stop their attacker—leaving extensive marks. As a result, police often arrest abuse victims who acted in self-preservation.
Witnesses and Assumptions
Of course, injuries don't develop in a vacuum. Context matters. But police frequently lack reliable witnesses to help them understand a volatile situation. If no third party saw the dispute, officers must rely on the participants' competing narratives and their own assumptions.
For instance, many people expect "real" victims to seem frightened, while aggressors should be angry. In reality, many victims express rage at their unfair situation. Abusers, on the other hand, often appear calm and in control. These counterintuitive demeanors can lead police to misinterpret emotions as evidence of aggression or innocence.
What If the Police Get the Primary Aggressor Determination Wrong?
In domestic violence cases, incorrect primary aggressor findings create two distinct risks:
- An abuse victim gets arrested and charged while their attacker goes free.
- Neither party is immediately arrested, but the case is still referred for prosecution.
In the first scenario, the accused party needs a skilled defense lawyer to show that the police incorrectly identified the primary aggressor. Through medical records, witness interviews, and expert testimony, an attorney can often demonstrate that a client's actions were justified self-defense, not unlawful attacks.
Even without an arrest, anyone named as a potential primary aggressor should contact a criminal defense lawyer. Taking a proactive approach allows the attorney to present exculpatory evidence and challenge the officer's conclusions before charges get filed.
Challenging a Primary Aggressor Finding
When both parties have injuries, determining who "started it" is rarely straightforward. Police must make quick judgment calls, but their assumptions are often incorrect. Overturning an incorrect aggressor determination takes time, tenacity, and strategic defense tactics.
If you've been wrongly named as the primary aggressor, you need an attorney who will:
- Meticulously review police reports, photos, and witness statements for inconsistencies
- Gather medical records to document the severity and type of injuries on each party
- Interview witnesses to uncover context about the relationship history and dispute
- Retain experts to explain how your wounds reflect self-defense, not aggression
- File motions to challenge the admissibility of improper police assumptions
- Present a compelling, fact-based narrative showing you acted in justified self-protection
- Negotiate with prosecutors to reduce or dismiss charges based on evidence of your victimization
- Take your case to trial to show a jury that you were not the primary aggressor
At the Law Offices of Dave L. Simmons, our legal team will thoroughly examine the evidence and present a persuasive alternative narrative. If you've been unfairly named as the primary aggressor in a domestic violence case, don't wait to get the advocacy you need.
