Issue before the Court: Does displaying a firearm render a defendant the initial aggressor as a matter of law, thus precluding a justification charge?

 

Held: It does, unless a reasonable view of the evidence establishes that the defendant withdrew and communicated his withdrawal to the complainant, who then threatened to use or used imminent deadly force.

 

Discussion: The justification defense is not available to a defendant who is the initial aggressor, which is the first person who uses or threatens to use imminent physical force. See PL 35.15.  Even if the second individual is the initial aggressor with respect to ordinary physical force, another person can be the initial aggressor with respect to deadly force.  A defendant who seeks to use the justification defense for his use of deadly force cannot therefore be the first individual in the encounter to use or threaten to use imminent deadly force.

Here, it was undisputed that the defendant had been the first and only person to draw a gun, even though the decedent had later “swiped at” the gun in his hand.  The court unanimously held, as a matter of law, that drawing a gun rendered the defendant the initial aggressor.  The justification defense was therefore unavailable to him unless a reasonable view of the evidence had demonstrated that he had subsequently withdrawn from the dispute and communicated that withdrawal to the decedent before the decedent “swiped at” his gun; the court held that no reasonable view of the evidence supported this theory, even in the light most favorable to the defendant.

 

CAL Observes: The First Department’s opinion, reversed by the Court of Appeals, paints a much different picture of the encounter between the defendant and the decedent.  The First Department pointed out that the decedent, who was younger and taller than the defendant, had been the initial aggressor of the encounter with respect to ordinary force.   He had repeatedly swung at defendant’s face and then continued to approach him even after the defendant drew the (lawfully possessed) weapon, which was not pointed in the decedent’s direction.  Immediately before the defendant pulled the trigger the decedent, continuing to advance toward him and throw punches at his face, grabbed for the gun while making an implicit threat to use it against the defendant.  The First Department found that a jury could reasonably conclude the decedent had been about to use deadly force toward the defendant by gaining control of his gun.  The First Department also noted that the argument that persuaded the Court of Appeals—the “sweeping proposition” that by drawing a weapon a defendant becomes the initial aggressor as a matter of law—was unpreserved and without merit.

 

Undecided by the Court of Appeals is whether this “sweeping proposition” about the initial aggressor rule applies to dangerous instruments that are not guns.  Reading Brown together with Vega and Rkein, it may well be interpreted this way.