Sticks & Stones: Supreme Court of Kentucky Reverses Manslaughter Conviction, Finding Initial Aggressor Instruction Was Improperly Given

In Kentucky, as in most jurisdictions, the prosecution can request an "initial aggressor" instruction informing jurors that the defendant does not have a self-defense claim if he was the initial aggressor (unless certain narrow exceptions apply). But, of course, to receive such an instruction, there must be some evidence in the record that the defendant was in fact the initial aggressor. And that was the problem for the prosecution in the opinion of the Supreme Court of Kentucky today in Dunkelberger v. Commonwealth.

In Dunkelberger, Troy Dunkleberger and Jarron Slayback were two men among a group vacationing at Red River Gorge. During the vacation, Slayback was playing/roughhousing with two children

Dunkleberger thought the roughhousing was excessive and potentially harmful. Dunkleberger yelled Slayback’s name three times to get his attention and put an end to it, which succeeded. Slayback ceased playing with the kids and walked to a different part of the cabin.

Thereafter, "Dunkleberger in turn grabbed some beer and went outside to the campfire with Jordan [Simpson]. Slayback came outside only minutes later." There  was conflicting testimony about what happened next:

At this point, the testimony of events diverges significantly. According to Dunkleberger, Slayback approached him and pushed him several times and began arguing with him. A threat was made by Slayback that he would “gut” Dunkleberger “like a fish.” Slayback was in fact carrying a CRKT fixed-blade knife hanging from his neck. But concerning for Dunkleberger was Slayback’s hand movements around his left pocket. Dunkleberger saw a bulge in the pocket, and when Slayback partially turned his body back towards the house, he perceived a movement to the pocket. Dunkleberger testified he believed Slayback was trying to pull a weapon. Therefore, he drew his own Glock 23 and shot Slayback eight times. It would turn out Slayback did have a flashlight in his pocket, accounting for the bulge. But Dunkleberger conceded there was nothing in Slayback’s hand at the moment he shot him.

According to Jordan, however, when Slayback approached Dunkleberger after coming out of the cabin, he engaged in a purely verbal confrontation. The two were nose to nose, but Slayback had his hands behind his back and never pushed Dunkleberger. Dunkleberger grabbed his shirt and lifted it up to reveal the handle of his pistol in his waistband. Slayback responded, “What are you going to do, pull a Glock on me?” Megan and Samantha were up on the porch, demanding the two cease their argument. Slayback turned around to address them at which point Dunkleberger drew his weapon and shot Slayback.

Dunkleberger claimed self-defense at his ensuing trial, and the State asked for, and received, an "initial aggressor" instruction. 

In reversing Dunkleberger 's conviction, the Supreme Court of Kentucky ruled as follows:

We conclude the yelling of Slayback’s name does not constitute physical force inflicted upon or directed towards the body of another. "Numerous courts have held either that one may not use force in self-defense from verbal assaults, or that an aggressor instruction is not justified where the alleged provocation is merely verbal."...Indeed, children are frequently taught by the time they are in kindergarten that "sticks and stones may break my bones, but words can never hurt me." This proverbial wisdom, simple enough for children of tender age to understand, reflects the distinction between words and physical force. By requiring an unlawful act of physical force, the initial aggressor statute does not allow words to predicate an initial aggressor instruction....

We must next review whether the display of a lawfully possessed and holstered firearm constitutes unlawful physical force or deadly physical force. We must do this, first, because the act itself was separate from the yelling of Slayback’s name. While the Commonwealth attempts to portray these two occurrences as part of one course of aggressive conduct, they are not. After Dunkleberger yelled Slayback’s name the two parted ways for several minutes. Even were we inclined to hold yelling a name could constitute unlawful physical force, the testimony was unanimous that both Dunkleberger and Slayback went to different parts of the property immediately afterward thereby terminating the initial encounter....Therefore, Dunkleberger’s display of a holstered weapon must be reviewed in isolation because if that act constitutes unlawful physical force or deadly physical force, then the initial aggressor instruction could still be justified.

Americans have a constitutional right to carry a firearm for self-defense purposes under the Second Amendment....This includes openly carrying weapons in public....Kentuckians have a right to bear arms “in defense of themselves...” under Ky. Const. § 1, cl. 7. Our constitution is "an exemplification of the broadest expression of the right to bear arms."...Indeed, “the legislature is empowered only to deny to citizens the right to carry concealed weapons.”...Thus, our constitution unequivocally shields and favors open displays of firearms should a citizen choose to arm him- or herself in public. Accordingly, "a person is granted the right to carry a weapon openly[.]"...

Dunkleberger’s possession of the firearm was initially concealed. It is not disputed that he was duly licensed to carry a concealed firearm. Therefore, Dunkleberger’s possession of the firearm was lawful, in and of itself. A person in a confrontation who reveals that he is in fact carrying a firearm by displaying it, but not drawing the weapon from a holstered position, does not commit unlawful physical force. The effect of displaying a concealed but holstered firearm is to convert the carrying of the firearm from a concealed position to an open position, nothing more. Since Dunkleberger was duly licensed for concealed carry, his act of displaying his holstered firearm was merely to go from one mode of lawful possession to another mode of lawful possession.

Accordingly, the court concluded that the State was not entitled to an "initial aggressor" jury instruction.

-CM