State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A22-0432

Court of Appeals Chutich, J.
Dissenting, Thissen, Procaccini, JJ.
Took no part, Hennesy, J.

State of Minnesota,

Respondent,

vs. Filed: July 31, 2024
Office of Appellate Courts
Earley Romero Blevins,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.
________________________

S Y L L A B U S
1. The duty to retreat when reasonably possible—a judicially created element
of self-defense—applies to persons who claim they were acting in self-defense when they
committed the felony offense of second-degree assault-fear w ith a device designed as a
weapon and capable of producing death or great bodily harm.

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2. When viewed in a light most favorable to the verdict, the evidence presented
at trial disproves, beyond a reasonable doubt , the defendant’s claim that he lacked a
reasonable opportunity to retreat.
Affirmed.
O P I N I O N
CHUTICH, Justice.
This case presents a narrow issue of firs t impression—whether the duty to retreat
when reasonably possible, a judicially created element of self-defense long established by
our court, applies to a person who claims th ey were acting in self-defense when they
committed the felony offense of second-degree assault-fear with a dangerous weapon. For
this decision, a dangerous weapon is limited to a “device designed as a weapon and capable
of producing death or great bodily harm.”1 Minn. Stat. § 609.02, subd. 6 (2022). Appellant
Earley Romero Blevins pulle d out a machete on a light rail platform in downtown
Minneapolis and brandished it at a woman a nd two men for nearly 1 minute, with the
specific intent to cause them to fear imme diate bodily harm. Based on this conduct, the
State charged Blevins with two counts of se cond-degree assault-fe ar with a dangerous

1 The Legislature has recognized two forms of assault: assault-harm and assault-fear.
Minn. Stat. § 609.02, subd. 10 (2022). A person commits assault-harm through the
“intentional infliction of . . . bodily harm upon another.” Minn. Stat. § 609.02, subd. 10(2).
Assault-fear, in contrast, “does not require a finding of actual harm to the victim.” State v.
Fleck, 810 N.W.2d 303, 308 (Minn. 2012) (cita tion omitted) (internal quotation marks
omitted). Instead, a person commits assault-fear by acting with the “intent to cause fear in
another of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10(1) (emphasis
added). Although assault-harm and assault-fe ar are distinct offens es, they are equal in
severity in the eyes of the law.

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weapon, a felony-level offense. Minn. Stat. § 609.222, subd. 1 (202 2). The Legislature
has deemed the act of committing assault-fear with a dangerous weapon to be harmful,
with a maximum punishment of 7 years in prison. Id.; see Minn. Stat. § 609.02, subd. 2
(2022) (defining “ ‘[f]elony’ ” as “a crime for which a sentence of imprisonment for more
than one year may be imposed”). Even fo r a person with no criminal history, the
presumptive sentence for second-degree assault-fear with a dangerous weapon is a prison
term of 21 months. Minn. Sent. Guidelines 2.E cmt. 2.E.01. Blevins waived his right to a
jury trial.
At his court trial, Blevins claimed his actions were authorized under Minnesota
Statutes section 609.06, subdivision 1(3) (2022), which allows a person to use reasonable
force upon or toward another when resisting an offense against the person. In a case that
involved a claim of self-defense to a charge of felony second-degree assault-harm with a
dangerous weapon, we said that the reasonab le force authorized under section 609.06,
subdivision 1(3) may be used only in “the absence of a reasonable possibility of retreat to
avoid the danger.” State v. Basting , 572 N.W.2d 281, 285–86 (Minn. 1997). After
considering the evidence presented at trial, the district court found that Blevins committed
the felony offense of second-degree assault-fear with a dangerous weapon. And consistent
with Basting, the court concluded that Blevins’s acti ons in threatening others with his
machete were not authorized under section 609.06, subdivision 1(3), because he had a
reasonable opportunity to retreat and failed to do so. The court of appeals affirmed, and
we granted Blevins’s petition for review.

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For the reasons described below, based upon the specific facts presented here—the
brandishing of a machete—we now narrowly ex tend our judicially created self-defense
element that imposes a duty to retreat when reasonably possible to persons who committed
the felony offense of second-degree assault-fear with a dangerous weapon, specifically, a
device designed as a we apon and capable of producing de ath or great bodily harm. In
doing so, we need not, and do not, decide whether this judicially created duty to reasonably
retreat applies to other charges of assault-fear.
Accordingly, we hold that a person claiming self-defense has a duty to retreat when
reasonably possible before committing the felony offense of second-degree assault-fear
with a dangerous weap on, specifically, a device designed as a weapon and capable of
producing death or great bodily harm. We also conclude that, when viewed in a light most
favorable to the verdict, the direct evidence from the secur ity videos presented at trial
disproves beyond a reasonable doubt Blevins’s claim that it was not reasonably possible
for him to retreat. We therefore affirm the decision of the court of appeals.
FACTS2
The State charged Blevins w ith two counts of felony second-degree assault-fear
with a dangerous weapon. Minn. Stat. § 609.222, subd. 1. The Minnesota Legislature has
defined a dangerous weapon as:
[A]ny firearm, whether loaded or unloaded, or any device designed as a
weapon and capable of producin g death or great bodily harm , any
combustible or flammable li quid or other device or instrumentality that, in
the manner it is used or intended to be used, is calculated or likely to produce

2 Because Blevins does not di spute the district court’s findings of fact, the following
recitation of facts is drawn from that order.

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death or great bodily harm, or any fire that is used to produce death or great
bodily harm.

Minn. Stat. § 609.02, subd. 6 (emphasis added).
The Legislature has also described the “g reat bodily harm” that limits the types of
devices that are considered to be “dangero us weapons.” “ ‘Gre at bodily harm’ means
bodily injury which creates a high probability of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss or impairment of the
function of any bodily member or organ or other serious bodily harm.” Id., subd. 8.
Blevins waived his right to a jury trial and submitted his case to the district court.
The following evidence was presented at tr ial and included surveillance videos that
captured the actions giving rise to the charged counts of second-degree assault-fear.
On June 2, 2021, Blevins was on the light rail platform at the US Bank Stadium
Plaza station in downtown Minneapolis.
A woman wearing a teal shirt, a man wearing a
sweatshirt, and a man wearing a tank top were also on the light rail platform. The woman
and the two men knew each other and were loitering on different parts of the platform.
When Blevins walked past the woman, sh e said something to him, and Blevins
responded angrily. While Blevins and the woman continued to argue, a train arrived, and
people stepped off the train. As the train sat at the station, the man in the sweatshirt, who
was armed with a knife, walked toward Blevins and the woman.
According to Blevins, the man in the sweatshirt told him to come into the platform
shelter outside the view of the surveillance camera so that he could slice Blevins’s throat.
In response to the threat, Bl evins pulled a machete out of hi s waist band. Blevins then

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moved toward the woman and the man in the sweatshirt, yelling and holding the machete.
The woman and the man in the sweatshirt began backing away from Blevins. As the man
in the sweatshirt put his knife away, the man in the tank top aggressively walked up to
Blevins.
Although Blevins feared for his safety, he did not try to walk away. Instead, Blevins
moved forward toward the woman, pointing the machete at her as he yelled. Blevins also
lunged at the man in the tank top, while holding the machete in his hand in an aggressive
manner. According to Blevins, he was trying to get the woman and the two men to back
off. Blevins yelled and swung the machete at them for approximately 1 minute, causing
them to retreat. As they re treated, Blevins took a less aggr essive posture, although he
continued to yell.
Based on the evidence presented at tria l, the district court made the following
findings of fact and conclusions of law. Blevins’s testimony that the man in the sweatshirt
told him to come into the sh elter outside the view of the camera so that he could slice
Blevins’s throat was credible. After the man in the sweatshirt threatened Blevins, Blevins
swung the machete at the woman and the tw o men for approximately 1 minute with a
specific intent to cause them to fear immediate bodily harm. 3 Consistent with Basting,
572 N.W.2d at 285–86, the district court concluded that Blevin s’s conduct was not
authorized under the self-defense statute, Mi nnesota Statutes section 609.06, subdivision

3 In an assault-fear crime, “[t]he intent of the [defendant], as contrasted with the effect
upon the victim, becomes the focal point for inquiry.” Fleck, 810 N.W.2d at 308 (alteration
in original) (citation omitted) (internal quotation marks omitted).

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1(3), because Blevins “had a duty to retr eat from the confrontation when he had a
reasonable opportunity to do so, and did not choose to do so.”
Based on its findings of fact and conclusions of law, the district court found Blevins
guilty of the two counts of felony second-degree assault-fear with a dangerous weapon. At
the sentencing hearing, the court sentenced Blevins to a presumptive 39-month prison
sentence.
On appeal, Blevins argued that the record did not support the district court’s finding
that he had a reasonable opportunity to retrea t and failed to do so. In the alternative,
Blevins argued that the judicially created duty to retreat when reasonably possible should
not apply when a person uses “n on-physical” force to resist an offense. After reviewing
the record, the court of appeals concluded that the record supported the district court’s
finding that Blevins had a reasonable opportu nity to retreat and failed to do so. State v.
Blevins, No. A22-0432, 2023 WL 2 125770, at *3–5 (Minn. Ap p. Feb. 21, 2023). In
dismissing Blevins’s alternative argument—that the judicially created duty to retreat when
reasonably possible should not ap ply to his use of non-physic al force—the court wrote:
“Requiring reasonable retreat will still permit people to reasonably defend themselves but
will also serve to end altercations and prevent escalation to the point that someone actually
uses physical force and causes bodily harm or death.” Id. at *4.
We granted Blevins’s petition for review a nd now affirm the decision of the court
of appeals.

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ANALYSIS
I.
Blevins contends that defendants like himself—who assert self-defense to the felony
offense of second-degree assault-fear with a dangerous weapon, specifically a device
designed as a weapon and capable of producing death or great bodily harm—should not be
subject to the judicially created duty to retreat when reasonably possible. 4 We review de
novo the question of whether the judicially created duty to retreat when reasonably possible
applies in such a context. See State v. Devens, 852 N.W.2d 255, 257 (Minn. 2014).
The self-defense statute, Minnesota Stat utes section 609.06, subdivision 1(3),
authorizes the use of “reasonable force” against another while “resisting or aiding another
to resist an offense against the person.” As a threshold matter, we observe that no party
has asked us to interpret the word “force,” as used in section 609.06, subdivision 1(3). Nor
have the parties asked us to decide whether “force” includes acts of felony second-degree
assault-fear with a dangerous weapon, which involve a threat to inflict bodily harm with a
dangerous weapon without any actual infliction of bodily harm. For this reason, we assume
without deciding that the word “force,” as used in section 609.06, subdivision 1(3), includes
threats of force.

4 The State also argues that Blevins’s convi ction can be affirmed based on evidence
that he provoked the attack. We need not consider the State’s alternative argument because
we conclude that Blevins had a duty to retreat. We also conclude that, when viewed in a
light most favorable to the verdict, the evid ence presented at trial disproves, beyond a
reasonable doubt, the defendant’s claim that he lacked a reasonable opportunity to retreat.

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Section 609.06, subdivision 1(3), does not include any language regarding the duty
to retreat when reasonably po ssible because the duty is a j udicially created element of
self-defense. See State v. Carothers, 594 N.W.2d 897, 900 (Minn. 1999) (observing that
Minnesota has codified the common law of self-defense, but not whether the duty to retreat
attaches to the defense, so the duty instead arises from case law). The dissent’s contention
that our analysis is “divorced from the statutory text” ignores the fact that the duty to retreat
when reasonably possible is not grounded in st atutory language but in stead is judicially
created. We have read section 609.06, subdivision 1(3), to include four elements:
(1) [T]he absence of aggression or provocation on the part of the defendant;
(2) the defendant’s actual and honest be lief that he or she was in imminent
danger of . . . great bodily harm; (3) the existence of reasonable grounds for
that belief; and (4) the absence of a reasonable possibility of retreat to avoid
the danger.
Basting, 572 N.W.2d at 285–86 (emphasis added).
Because it is a judicially created elemen t, we determine the circumstances under
which the duty to retreat when reasonably possible applies. See State v. Glowacki ,
630 N.W.2d 392, 402 (Minn. 2001) (holding th at “[t]here is no duty to retreat from one’s
own home when acting in self-defense in the home, regardless of whether the aggressor is
a co-resident”). Given that the facts of this case involve brandishing a machete in self-
defense, our narrow extension of the judicia lly created duty to retreat when reasonably
possible is limited to persons who commit fe lony second-degree as sault-fear with a
particular type of dangerous weapon—namely, a device designed as a weapon and capable
of producing death or great bodily harm.

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The dissent suggests that when a defendant’s conduct does not inflict bodily harm,
we should collapse the four long-standing el ements of self-defense into an amorphous
reasonableness determination. We decline to depart from our well-established elements of
self-defense. It is critical for the public to clearly understand the parameters of an
affirmative defense. To now hold that the judicially created duty to retreat when reasonably
possible is not an element of self-defense but is just one consideration in a vague
reasonableness determination, would create confusion.
Our judicially created dut y to retreat when reasonably possible predates the
enactment of sec tion 609.06. In State v. Shippey , we stated, “Where the party has not
retreated from or attempted to shun the combat, but has as in this case unnecessarily entered
into it, his act is not one of self-defen[s]e.” 10 Minn. 223, 232 (1865). Almost a century
later, the Legislature passed section 609.06, 5 and we interpreted that statute in State v.
Johnson, 152 N.W.2d 529, 532 (Minn. 1967). In doing so, we acknowledged that section
609.06 “states the present Minnesota law as expressed in State v. Shippey .” Id.
Consequently, in Johnson, we reiterated that “the legal excuse of self-defense” includes
“the duty of the slayer to retreat or avoid the danger if reasonably possible.” Id. (emphasis
added). Since we announced this judicially created duty to retreat if reasonably possible
and articulated its elements, the Legislature has not seen fit to re vise section 609.06,
subdivision 1(3), in any substantive manner. Accordingly, our “judicial construction of a
statute, so long as it is unreversed, is as much a part thereof as if it had been written into it

5 Act of May 17, 1963, ch. 753, art. 1, § 609.06, 1963 Minn. Laws 1185, 1189–90.

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originally.” Roos v. City of Mankato, 271 N.W. 582, 584 (Minn. 1937) (citations omitted)
(internal quotation marks omitted).
To date, we have recognized only one exception to the judicially created duty to
retreat when reasonably possible before usi ng the force authorized in section 609.06,
subdivision 1(3): when a person is in their home. Glowacki, 630 N.W.2d at 402 (holding
that “a person should not be required to retreat from the home before using reasonable force
to defend [themself], regardless of whether the aggressor is also rightfully in the home”).
Blevins asks us to carve out a second exception to the j udicially created duty to
retreat when reasonably possible. He contends that this duty to retreat should not apply to
persons who commit second-degree assault-f ear by brandishing a device designed as a
weapon and capable of producing death or great bodily harm in self-defense. His request
is based on the following public policy argumen t: “Holding [that] an individual has no
duty to retreat before using n on-physical force, such as th reats or brandishing a weapon
when reasonable, would strike a balance between the inherent right of self-defense and the
policy of preventing bodily harm or death.” For the follow ing reasons, Blevins’s public
policy argument is unpersuasive.
Implicit in Blevins’s public policy argument are two assertions. First, people have
an inherent right to stand their ground, which he characterizes as “self-defense.” Second,
the judicially created duty to retreat when reasonably possible serves a narrow public policy
interest—to avoid unnecessary bodily harm or death. Both assertions are in direct conflict
with well-established law.

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As discussed above, we rejected the notio n that people have an inherent right to
stand their ground more than 150 years ago in Shippey, 10 Minn. at 232. Consequently,
the legal excuse of self-defense codified in section 609.06, subdiv ision 1(3), does not
include an “inherent right” to stand your ground. It is true that we have acknowledged that
the judicially created duty to retreat when reasonably possible does not apply to people
who are in their home because requiring re treat under those circumstances would be
unreasonable. Glowacki, 630 N.W.2d at 401–02.6 But that exception does not support an
assertion that people have an inherent right to stand their ground outside of their home
before committing the felony o ffense of second-degree assault-fear with a dangerous
weapon—specifically, a device designed as a weapon and capable of producing death or
great bodily harm—when it is reasonably possible for them to retreat.
To be sure, avoiding unnece ssary bodily harm or death is part of the public policy
interests underlying the judicially created duty to retreat when reasonably possible. See
2 Wayne R. LaFave, Substantive Criminal Law § 10.4(f) (3d ed. 2018). But we have
described the public policy interests underlying the judicially created duty to retreat when
reasonably possible more broadly to include avoiding “potentially deadly confrontations.”
Devens, 852 N.W.2d at 259. In Devens, we declined to extend the castle doctrine 7 to an

6 In Glowacki, we held that the judicially crea ted duty to retreat when reasonably
possible did not apply to a pers on who acted in self-defense in their own home because
“[r]equiring retreat from the home before acting in self-defense would require one to leave
one’s safest place.” 630 N.W.2d at 401–02.

7 “[U]nder the so-called ‘castle doctrine,’ a person need not retreat from his or her
home before acting in self-defense.” Devens, 852 N.W.2d at 258 (citations omitted).

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apartment hallway in part because that “m ight encourage, rather than discourage,
unnecessary and potentially deadly confrontations.” Id. When people commit the felony
offense of second-degree assault-fear with a dangerous weapon—specifically, a device
designed as a weapon and capable of produci ng death or great bodily harm—in response
to a threat of physical harm, they not only risk escalating the enco unter to a potentially
deadly confrontation, they engage in conduct that is so detrimenta l to society that the
Legislature has concluded that it is punishab le by up to 7 years in prison. Minn. Stat.
§ 609.222, subd. 1.
As set out above, a dangerous weapon incl udes “any firearm . . . , or any device
designed as a weapon and capable of producing death or great bodily harm, . . . or other
device or instrumentality that, in the manner it is used or intended to be used, is calculated
or likely to produce death or great bodily harm . . . . ” Minn. Stat. § 609.02, subd. 6
(emphasis added). No party disputes that Blevins’s machete was a dangerous weapon.
A machete is commonly understood to be a device designed to be used as a weapon.
Merriam-Webster’s Collegiate Dictionary 744 (11th ed. 2014) (defining “machete” as “a
large heavy knife used for cutting sugarcane and underbrush and as a weapon”) (emphasis
added); The American Heritage Dictionary of the English Language 1050 (5th ed. 2018)
(defining “machete” as “[a] large heavy knife with a broad blade, used as a weapon and an
implement for cutting vegetation”) (emphasis added); New Oxford American Dictionary
1047 (3d ed. 2010) (defining “machete” as “a broad, heavy knife used as an implement or
weapon”) (emphasis added); see also State v. Franklin, 368 N.W.2d 716, 719 (Iowa 1985)
(holding that “[a] machete is a dangerous weapon”); N.D. Cent. Code § 62.1-01-01 (2022)

14
(defining “ ‘[d]angerous weapon’ ” as including a “machete” ). The dissent’s reliance on
one dictionary definition from 2002 for the assertion that a machete is not clearly a device
designed as a weapon is unpersua sive. Consequently, machetes fall within the statutory
definition of a dangerous weapon as a “dev ice designed as a weapon and capable of
producing death or great bodily harm.” Minn. Stat. § 609.02, subd. 6.
When a machete—a device designed as a we apon and capable of producing death
or great bodily harm—is brandish ed with an intent to cause fear in another of immediate
bodily harm or death, that is an action that escalates the situation. Certainly, doing so in
response to a credible threat of bodily harm might escalate the situation to such a dangerous
point that the initial aggressor backs down. But when it is reasonably possible to retreat,
escalating the situation to such a dangerous point does not serve public policy interests.
Accordingly, Blevins’s proposed excepti on to the duty to re treat—that when a
person is faced with bodily harm , they need not retreat when reasonably possible but
instead can stand their ground and escalate the situation to a more dangerous point by
brandishing a device designed as a weapon and capable of producing death or great bodily
harm in the uncertain hope that it will cause the initial aggressor to back down—is unsound.
In Minnesota, a person does not have an inherent right to stand their ground, and the public
policy interests underlying the judicially created duty to retreat when reasonably possible
include avoiding potentially deadly confrontations.
To be clear, we are not diminishing the role of the fact-finder in determining
reasonableness. As the district court did here in Blevins’s court trial, the fact-finder must
still decide whether a person had a reas onable opportunity to retreat under the

15
circumstances. If the fact-finder concludes that the person does not have that ability, the
fact-finder may then determine whether it was reasonable for the person to intentionally
cause another to fear immediate great bodily harm by brandishing the dangerous weapon.
The dissent seems to downplay the seri ousness of a charge of second-degree
assault-fear with a dangerous weapon, specifically a device designed as a weapon and
capable of producing death or great bodily harm, by suggesting that no harm has occurred
when one resorts to a “non-violent option[].” The Legislature’s criminalization of this
conduct as a felony belies that assertion. Even though the crime of second-degree
assault-fear requires no physical harm to be inflicted upon another, the Legislature has
determined that grave injury occurs when a person creates fear in another of immediate
great bodily harm.
The dissent, citing nonbinding cases from other jurisdictions, also poses an ominous
but unlikely hypothetical. 8 It suggests that under our na rrow extension of the judicially
created duty to retreat when reasonably possible before committing the felony offense of
second-degree assault-fear with a dangerou s weapon (device designed as a weapon), a
woman who is threatened by a man at a trai n station could not pull out a can of pepper
spray in self-defense without first retreating if reasonably possible. Because we have never
held that pepper spray falls within Minnesota ’s definition of a dangerous weapon, which
is limited by the phrase “great bodily harm,” Minn. Stat. § 609.02, subd. 6, meaning

8 Although we respond to the dissent’s hypothetical, we have previously observed
that there is nothing inappropriate about limiting our holding “to the actual facts
presented and not a hypothetical illustration that is materially different.” State v. Carufel,
783 N.W.2d 539, 545 n.3 (Minn. 2010).

16
“bodily injury which creates a high probability of death , or which causes serious
permanent disfigurement, or which causes a permanent or protracted loss or impairment of
the function of any bodily member or organ or other serious bodily harm,” Minn. Stat.
§ 609.02, subd. 8 (emphasis added), the dissent’s hypothetical is not realistic. In addition,
the nonbinding cases from other jurisdictions that the dissent cites in support of its
hypothetical are unpersuasive because those cases do not interpret the language of our
statute.9
In sum, we narrowly extend the judicially created duty to retreat when reasonably
possible to persons who claim they were acting in self-def ense when they committed the
felony offense of seco nd-degree assault-fear with a dangerous weapon , specifically a
device designed as a weapon and capable of producing death or great bodily harm. Because
this case does not present the issue of whether the judicially created duty to retreat when
reasonably possible applies to a person who commits an assault-fear without a dangerous
weapon, our holding is a narrow one limited to the sp ecific facts of this case. Nothing in
our opinion should be read as extending the judicially created duty to retreat when
reasonably possible to hypotheticals that do no t involve the use of a device designed as a

9 The dissent’s hypothetical is unsound fo r an additional reason. Although the
dissent’s hypothetical states that the woman ha s a reasonable opportunity to retreat, it is
not clear that she does. If the frightened woman, who is being approached and threatened
by a man who might pursue her if she attemp ts to flee, does not have a reasonable
opportunity to retreat, then the judicially created duty to retreat when reasonably possible
would not apply. Additionally, note that the elements of second-degree assault-fear require
more than a person simply preparing to use pepper spray; rath er a person must brandish
the pepper spray with an intent to cause another to fear immediate great bodily harm. See
Minn. Stat. § 609.02, subd. 10(1).

17
weapon and capable of producing death or gr eat bodily harm. We leave for another day
policy arguments about whether the judicially created duty to retr eat when reasonably
possible should apply to persons who claim self-defense and are using less serious means
than a device designed as a weapon and capable of producing death or great bodily harm.
II.
Having decided that Blevins had a duty to retreat before committing the felony
offense of second-degree assault-fear with a machete—a device designed as a weapon and
capable of producing death or great bodily harm—we now turn to his argument that the
district court erred in finding that he had a reasonable opportunity to retreat and failed to
do so. When viewed in a light most favorable to the verdict, the evidence presented at trial
disproves beyond a reasonable doubt Blevins’s claim that it was not possible for him to
retreat because searching for an escape rout e would have required him to turn away from
the people who were threatening him.10
When evaluating the sufficiency of the evidence, we use the same standard of review
for jury and court trials. State v. Jones , 977 N.W.2d 177, 187–88 (Minn. 2022). More
specifically, in cases based on direct evidence , we “view the evidence in a light most
favorable to the verdict and assume the fa ct-finder disbelieved any testimony conflicting

10 Because the use of force authorized under section 609.06, subdivision 1(3), is an
affirmative defense, once a defendant meets the burden of going forward with evidence to
support the defense, the State bears the burden to disprove one or more of the four elements
of the defense beyond a reasonable doubt, including the absence of a reasonable
opportunity to retreat. See Basting, 572 N.W.2d at 286.

18
with that verdict.” Id. at 187 (citation omitted) (inter nal quotation marks omitted).11 We
will not overturn the verdict if the fact-finder, acting with regard fo r the presumption of
innocence and the State’s burden of proof be yond a reasonable doubt, could reasonably
conclude that the defendant was guilty. Bernhardt v. State , 684 N.W.2d 465, 476–77
(Minn. 2004).
Here, the State presented surveillance videos to disprove Blevins’s claim that it was
not reasonably possible for him to retreat. Although we have never expressly considered
the issue of whether a video is direct or circumstantial evidence of what it shows, the court
of appeals considered the issue in State v. McCormick, 835 N.W.2d 498, 507 (Minn. App.
2013), rev. denied (Minn. Oct. 15, 2013), and concluded that a video was direct evidence
of what it showed. Id. Other courts have reached similar conclusions. See, e.g., Walker
v. State, 877 S.E.2d 197, 201 (Ga. 2022) (concluding that a police officer’s body-camera
video recording provided direct evidence of the defendant making terroristic threats to
shoot and kill the victim); State v. Kelley, 148 A.3d 191, 198 (Vt. 2016) (concluding that a
911 recording provided direct evidence that the victim wa s in an excite d condition).
Having carefully considered the issue, we conclude that the light rail station videos provide
direct evidence of what they show, including Blevins’s surroundings and the actions of the
woman and the two men.

11 In contrast, “when a disputed element of the offense is proven by circumstantial
evidence, a heightened two-step analys is standard of review applies.” State v. Jones ,
4 N.W.3d 495, 500 (Minn. 2024).

19
Assessing the sufficiency of th e evidence under the standa rd applicable to direct
evidence here, the surveillance videos clearly show that Blevins had room behind him to
retreat and could have walked at an angle, keeping an eye on the woman and the two men,
while he retreated. Moreover, at various points the woman and the two men turn their
backs to Blevins while he is brandishing hi s machete, giving Blevins an opportunity to
retreat from them. Thus, when viewed in a light most favorable to the verdict, the evidence
presented at trial disproves, beyond a reason able doubt, Blevins’s claim that it was not
possible for him to retreat.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

HENNESY, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.
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D I S S E N T
T
HISSEN, Justice (dissenting).
The court holds that a person under a ttack must always find and exercise a
reasonable opportunity to retreat before th reatening force with certain weapons (but
apparently not others) to deter the attacker. Not only is the court’s decision divorced from
the statutory text and unprecedented in the United States; it also flies in the face of human
nature. In the context of assault-fear ch arges—cases where a person being attacked does
not harm the attacker to defend themself but merely threatens harm—the better rule is that
a fact-finder may consider whether a reasonable opportunity to retreat existed as part of the
broader and more pertinent self-defense determination of whether the defendant’s
threatened use of force was reasonable. Th is does not mean that a person who ignores a
potential escape option will always prevail on their self-defense claim; it simply leaves the
fact-finder to decide whether, under all the circumstances, the defendant was reasonable in
acting in self-defense.1 Although this is a question that a fact-finder is well-equipped to
1 A fact-finder could find that, in response to being attacked by three persons, one of
whom had a knife and threatened to slice hi s throat, Blevins’s act of waving a machete
without harming the attackers wa s disproportionate to the attack and thus unreasonable.
See State v. Glowacki , 630 N.W.2d 392, 402 (Minn. 20 01) (observing that the key
self-defense inquiry is “the reasonableness of the use of force and the level of force under
the specific circumstances of each case”). But, as discussed below, the court’s rule does
not allow a fact-finder to reach that question. The rule today—made explicitly in response
to someone waving a machete— imposes an identical duty to retreat on someone before
they can make any threat in volving a device designed as a weapon and capable of
producing death or great bodily harm and without consideration of the type or
dangerousness of the weapon or other instrument that the attacker employs.
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answer, the court creates an illogical bright-line rule that takes that qu
estion away from the
fact-finder. As such, I dissent.
I start with the text of the self-defense statute, which provides that “reasonable force
may be used” against another “to resist an offense against the person.” Minn. Stat.
§ 609.06,
subd. 1(3) (2022).2 Notably, the statute nowhere imposes a duty to retreat; it
merely requires that the use of force be “reasonable.” Id. The court
holds that, as a matter
of law, a person who is being attacked must retreat if they can reasonably do so before
using even a reasonable threat of force with certain weapons in an effort to deescalate the
situation or deter the attacker. Instead of creating a new bright-line rule in a new context,
we should follow the statutory language to determine whether Blevins’s threatened use of
force was reasonable. Under this test, the district court and the jury could consider
Blevins’s ability to retreat as one of the many factors that bears upon the reasonableness of
his threatened force.3 I would reverse Blevins’s conviction and remand for a new trial to
2 The court and I agree for purposes of th i s opinion that the threatened use of
force—the concept captured in Minnesota’s assault-fear definition, Minn. Stat. § 609.02,
subd. 10(1) (2022)—is an exercise of force for purpos es of section 609.06, subdivision
1(3).
3 The model jury instructions on self-def ense provi de factors on the reasonableness
of force that address the court’s concerns about escalation without imposing a sharp
bright-line rule. The relevant jury instruction provides:
It is lawful for a person, who is resisting an offense against (his) (her) person
[or aiding another in resisting an o ffense against the person] and who has
reasonable grounds to believe that bodily injury is ab out to be inflicted, to
defend from an attack. In doing so, the person may use all force and means
that the person reasonably believes to be necessary and that would appear to
a reasonable person, in similar circumstances, to be necessary to prevent an
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determine whether hi s threatening behavior was reasonable. It is possible that the
threatened force was reaso nable or unreasonable, but the court’s decision today takes
that question away from the fact-finder in future cases.
Of course, we start with the text of the statute, but we do not always end there. The
court emphasizes that the duty to retreat was created by judges. But our judge-created rule
imposed a duty to retreat before h arming someo ne—or, stated differently, before
“unnecessarily enter[ing] into [combat].” State v. Shippey, 10 Minn. 223, 232 (1865). The
court is eliding the difference between threatening someone and actually harming them.
The court’s rule in this case was not created by earlier judges—it was invented today. And,
as a result, the Legislature could not have incorporated the court’s new rule when it enacted
the statute in 1963.
Today, the court takes the law of self-defense into uncharted waters. This new rule
is not only unprecedented in this state—as far as I am aware, the rule has never been
adopted anywhere in the United S tates. Until no w, the collec tive wisdom of judges
nationwide over hundred s of years has never imposed a duty to retreat before making
threats to deter an aggressor.
injury that appears to be imminent. The kind and degree of force a person
may lawfully use in defense of self or others is limited by what a reasonable
person in the same situation would believe to be necessary. Any use of force
beyond that is not reasonable.
10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury In struction Guides, Criminal ,
CRIMJIG 6.10 (7th ed. 2023).
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There is a critical difference between us ing threats in self-defense and harming
someone in self-defense. Both actions are, by definition, a response to a potentially
dangerous situation. The Stat e does not claim on appeal th at Blevins was the aggressor;
the man who instigated the confrontation by threatening him with a knife was the aggressor.
The State also does not dispute that the assa ilant’s conduct—approaching Blevins with a
drawn knife and telling hi m to move out of view of the camera so that he could slice
Blevins’s throat—created in Bl evins an actual, honest, and reasonable fear of imminent
death or great bodily harm. And no one cl aims that Blevins physically harmed his
attackers.
Generally, the reasonableness of a self-d efense claim should be left to the
fact-finder. See State v. Glowacki , 630 N.W.2d 392, 40 3 (Minn. 2001); see also State v.
Stietz, 895 N.W.2d 796, 802 (Wis. 2017) (“[T]he question of reasonableness . . . when a
claim of self-defense is asserted, is a question peculiarly within the province of the jury.”
(citation omitted) (internal quotation marks omitted)). But many st ates have a rule that it
is per se unreasonable to use deadly force when retreat is an option. This is because, in
response to an offense against a person (such as a threat of harm) the law should incentivize
people to retreat or to deescalate—rather th an escalate—a situati on, particularly when
death may result. If someone responds to a danger ous situation by re sorting to deadly
force, they have necessarily escalated the situation. See Glowacki, 630 N.W.2d at 403
(concluding that a bright-line rule is appropr iate regarding use of deadly force because
although the issue is normally for the jury to decide, “when no reasonable mind could draw
an [inference that the defendant acted reasonably], the question may be decided as a matter
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of law.”). That is w
hy many states impose a duty to retreat before using deadly force.4
See, e.g., Del. Code Ann. tit. 11, § 464(e)(2) (W est 2023); Haw. Re v. Stat. Ann. § 703-
304(5)(b) (West 2023); Neb. Rev. Stat. Ann. § 28-1409(4)(b) (West 2023); N.J. Stat. Ann.
§
2C:3-4, subd. b(2)(b) (West 2023); 18 Pa. Stat. and Cons. Stat. § 505(b)(2)(ii) (West
2023).
Minnesota has a per se rule that it is always unreasona
ble to harm an attacker using
even non-lethal force when there is a r easonable opportunity to retr eat. In that sense,
Minnesota is an outlier. 5 Indeed, the very section of La Fave’s treatise cited by the court
proclaims that “[i]t seems everywhere agreed that one who can safely retreat need not do
4 By applying a duty to retreat specifically to us es of deadly force, states are following
the advice of the American Law Institute. See Model Penal Code § 3.04 cmt. 4(c) (Am.
L.
Inst. 1985) (“[T]he protection of life has such a high place in a proper scheme of social
values that the law s
hould not permit conduc t that places life in jeopardy, when the
necessity for doing so c
an be avoided by the sacrifice of the much smaller value that inheres
in standing up to an aggression.” (emphasis added)).
5 It appears that Minnesota is currently th e onl y state that imposes a duty to retreat
before using non-lethal force against a threat of deadly force. Iowa used to take that
position, see Iowa Code § 704.1 (2016). But in 20 17, Iowa did away with the duty to
retreat altogether—it became a “stand your grou nd” state. 2017 Iowa Acts ch. 69, § 37;
see also State v. Williams, 929 N.W.2d 621, 637 (Iowa 2019) (discussing the change). The
Massachusetts Appeals Court has stated in dicta that there is a duty to retreat before using
non-lethal force, Commonwealth v. Toon , 773 N.E.2d 993, 1004 (Mass. App. Ct. 2002),
but the highest court of that comm onwealth has held the opposite. Commonwealth v.
Baseler, 645 N.E.2d 1179, 1181 (Mass. 1995) ( holding that the district court erred by
instructing the jury th at the defendant needed to “use all reasonable efforts to avoid
combat” to prevail on his self-defense argument based on his use of non-lethal force).
Interestingly, North Carolina recognizes a duty to retreat before using deadly or non-
deadly force, but only in response to a threat of non-deadly force; if the person “reasonably
believes that such force is necessary to prevent imminent death or great bodily harm,” there
is no duty to retreat. N.C. Gen. Stat. Ann. § 14-51.3(a) (West 2023); see also State v.
Everett, 592 S.E.2d 582, 586 (N.C. Ct. App. 2004).

D-6
so before using nondeadly force.” 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(f)
(3d ed. 2018). I do not suggest in this dissent that Minnesota should pull back from its per
se rule that a person using force (lethal or non-lethal) to harm an attacker is acting
unreasonably if they do not first try to retreat. But I would not expa nd the scope of this
rule to also say that a failu re to retreat before using mere threats of force with certain
weapons is unreasonable.6 I would leave that reasonableness inquiry to the fact-finder on
a case-by-case basis.
When someone responds to an aggressor with threats (assault-fear) but does not
harm the aggressor, this might (intentionally or not) escalate the situ ation in the manner
that we were concerned about in our earlier cases—by causing harm. But, as the court
admits, it might instead deter an attack or create better opport unities to retreat. Because
such situations are fluid, we should not impose a bright-line rule that takes away from the
fact-finder the power to decide whether the use of force is reasonable on the assumption
that using threats will categorically escalate th e situation. This ex plains why every other
state—and Minnesota, for its entire 166-year history—has not recognized a duty to retreat
before threatening someone with physical harm.

6 The court notes that we ha ve long held that a duty to retreat applies before a
defendant may use force under section 609.06, subdivision 1( 3), and that the Legislature
has not revised section 609.06, subdivision 1(3), in respon se. But that observation does
not inform the issue presente d in this case, because—as we all agree—we have never
before imposed a duty to re treat in these circumstances, where the defendant merely
threatens the use of physical force. In other words, the Legislature has never had an
opportunity to endorse (explicitly or implicitly) the court’s new construction of the statute.

D-7
The court admits that reasonable threats can deescalate dangerous situations but
maintains that they do so only by “escalating the encounter to a potentially deadly
confrontation.” (Emphasis added.) There are several problems with this line of reasoning.
First, it is ironic that the court repeatedly em phasizes that a defendant need only exercise
an opportunity to retreat if th e opportunity is reasonable in the eyes of the fact-finder but
refuses to defer to a fact-finder as to the reasonableness of the type and level of threat used
to defend oneself. It is unclear why the c ourt allows the fact-finder to engage in one
reasonableness inquiry (the opportunity to retreat) but turns around and refuses to let the
fact-finder even consider the other (the reasonableness of a threat). Second, it is a gross
mischaracterization to use the label “escala ting” to describe the actions of someone
who—upon reasonably fearing for their life—indi cates that they have pepper spray or a
pocketknife and tells the assailant to keep their distance. In some circumstances, this might
result in escalation, but attempted retreat could have the same effect (e.g., if the attacker
gives chase). Third, although courts review the facts with the bene fit of hindsight, an
individual who reasonably fears great bodily harm or death must make a rapid decision in
the heat of the moment. See Brown v. United States, 256 U.S. 335, 343 (1921) (Holmes, J.)
(“Detached reflection cannot be demanded in the presence of an uplifted knife.”). That
person should not be punished for exerci sing reasonable, propor tionate non-violent
options.7 They may not know which option is more likely to avoid harm: retreat or threats

7 The court correctly observes that an “inj ury”—in the technical, legal sense—occurs
when a person creates fear in another of im mediate bodily harm. Bu t the question is not
whether an action taken in self-defense is injurious. Self-defense arises only in situations

D-8
to deter the attacker. Fourth, faced with a th reat of death or great bodily harm, the best
option might in fact be a belt-and-suspenders a pproach: threaten the attacker to gain the
possibility of a safer retreat and then take advantage of that possibility. Crucially, the
court’s holding today forecloses that option. The court requires the person to exercise a
reasonable opportunity to retreat before leveling a reasonable threat at the attacker.
Consider a scenario in which a woman is at a train station and a man approaches
and threatens to stab her. A ssume that, like Blevins, she has a reasonable opportunity to
retreat by walking away. She actually, hones tly, and reasonably believes that she is in
danger of imminent death or great bodily harm.8 She has a can of pepper spray in her purse
and brandishes it to ward off just such aggression; in response the man is afraid and backs
off. She gets on the next train and is later arrested for assaulting the man by causing fear
of bodily harm. See Minn. Stat. § 609.222, subd. 1 (2022) (defining second-degree assault
as assault “with a dangerous weapon”); Minn. Stat. § 609.02, subd. 10(1) (2022) (defining
assault as “an act done with intent to cause fear in another of immediate bodily harm or
death). Under the court’s rule, the woman is not entitled to a sel f-defense instruction

where a defendant has engaged in some form of injurious criminal conduct, and self-
defense is an express exception to the general prohibition of such conduct by the
Legislature. Thus, the only question before us is whether the Legislature intended that a
defendant—who reasonably believes that they are at imminent risk of death or great bodily
harm—must retreat before threatening force in a reasonable manner.

8 In considering whether an individual ma y threaten force in self-defense, it is
important to keep in mind that the individual can only claim self-defense if the individual
actually, honestly, and reasonably feared i mminent death or great bodily harm. State v.
Johnson, 719 N.W.2d 619, 630 (Minn. 2006). Once a person no longer actually, honestly,
and reasonably fears such imminent danger, the threat of force must be withdrawn.

D-9
because she had a duty to retreat before she could pull out the pepp er spray. This result
flies in the face of human nature and experien ce; yet it is the precise outcome demanded
by the court’s holding today.
The court fights this hypothetical, claimi ng that it is unrealistic. The court points
out that we have never decided the issue of whether pepper spray is a dangerous weapon.
But it is far from clear that pepper spray is not a dangerous weapon under either the narrow
and selective definition of “dangerous weap on” the court employs today or the broader
statutory definition of “dangerous weapon” set forth in section 609.02, subdivision 6
(2022).
There are five categories of dangerous weapons under the statute: firearms,
flammable liquids, fires, “any device designed as a weapon and capable of producing death
or great bodily harm,” and any “other device or instrumenta lity that, in the manner it is
used or intended to be used, is calculated or likely to produce death or great bodily harm.”
Minn. Stat. § 609.02, subd. 6 (emphasis added ). The court limits its decision today to a
subset of dangerous weapons—those designed as weapons and capable of producing death
or great bodily harm. But the court’s focus on only a subset of dangerous weapons strains
logic and creates a confusing standard for fu ture cases. Once the court has crossed the
threshold of imposing a duty to retreat before responding to an attack with a reasonable
threat of force, there is no principled reas on to impose a duty to retreat specifically for
items designed as weapons and capable of producing great bodily harm, but not other items
that the Legislature has decided are also da ngerous weapons. The court simply ignores
that difficult question.
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Moreover, pepper spray is designed as a weapon. The only question is whether i
t is
“capable of producing . . . great bodily harm,” id., which is defined by statute as, among
other things, prolonged “impairment of the f unction of any bodily member or organ.”
Minn. Stat. § 609.02, subd. 8 (2022). Other states have concluded that pepper spray meets
similar definitions for dangerous weapon because of its capacity to blind people for several
hours. See Handy v. State, 745 A.2d 1107, 1115 (Md. 2000); State v. Ovechka , 975 A.2d
1, 6–7 (Conn. 2009); see also People v. Blake , 11 Cal. Rptr. 3d 678, 690 (Cal. Ct. App.
2004) (noting that the victims of the pepper spray “suffered substantial, though transitory,
respiratory distress, burning sensations and blindness” and that “it takes little imagination
to picture the more serious injuries these victims were fortunate to escape, such as
burns, chemical pneumonia, cornea damage or serious asthma attacks”).9
In short, the court affords itself the luxury of avoiding hard questions (whether there
is a duty to retreat prior to using threats with other types of dangerous weapons) and
abandons district courts to confusion and a choice between a rock and a hard place. Maybe
the court’s rule is limited as the court st ates to instruments designed as weapons and
capable of inflicting death or great bodily harm. In that case, there is a duty to retreat
9 See also St ate v. Simmons, 872 N.W.2d 293, 298 (Neb. Ct. App. 2015) (holding that
pepper spray is a “dangerous instrument” for purposes of second-degree assault on an
officer); United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir. 1998) (holding that mace
is a dangerous weapon—defined as “ ‘an instrument capable of inflicting death or serious
bodily injury’ ”—for purposes of federal sentencing guidelines (quoting U.S. Sent’g
Guidelines Manual § 1B1.1 cmt. n. 1(d) (U.S. Sent’g Comm’n 1997))). But see United
States v. Harris , 44 F.3d 1206, 1216 (3d Cir. 1995) (h olding that the evidence did not
support the district court’s finding that a cer tain type of mace is a dangerous weapon for
purposes of federal sentencing guidelines).

D-11
before threatening someone with a knife, 10 but not before threat ening someone with a
baseball bat, toxic chemicals, or a chainsaw—none of which are designed as weapons but
could in context cause death or great bodily injury.11 This result makes no sense.
Alternatively, the court’s ru le will ultimately apply to all statutory categories of
dangerous weapon, meaning that the duty to retreat will apply to threats using instruments
that are not designed as weapons. That outc ome leads to a different set of unreasonable
outcomes: for instance, a woman walking down a dark street could not hold a key in her
fist in a threatening manner to deter an attacker (she must retreat first if possible). In
addition, the boundaries of the definition of dangerous weapon are so hazy and broad that
it becomes incredibly difficu lt to determine wh en one must retreat before making
reasonable threats. Indeed, a person must reasonably retreat before raising a fist as a threat
and deterrent because we have said that even a fist can constitute a dangerous weapon. See
State v. Basting, 572 N.W.2d 281, 284 (Minn. 1997).
In addition, the court’s rule will be exce edingly difficult to a pply in other ways.
Minnesota courts have struggled to determine whether knives are “designed” as weapons,
coming to different conclusions depending on the characteristics of the knife. In one case,
the court of appeals concluded that the State failed to presen t sufficient evidence that a

10 As discussed below, it is not entirely cl ear which knives are designed as weapons.

11 This difficulty with defining “ ‘[d]anger ous weapon’ ” is likely the reason why the
Legislature included a catch-all provision in the statute. See Minn. Stat. § 609.02, subd. 6;
State v. Abdus-Salam , 1 N.W.3d 871, 875 (Minn. 2024 ) (“[A]n everyday object not
traditionally considered a weapon may nevert heless become a dangerous weapon if the
object is used in a manner calculated or likely to produce death or great bodily harm.”).

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knife was designed as a weapon because it was “not apparent that [the juvenile offender’s]
small folding knife was designed as a weapon rather than for its many other uses.” In re
Welfare of P.W.F., 625 N.W.2d 152, 154–55 (Minn. App. 2001). In another case, the court
of appeals came to a different conclusion as to a somewhat longer folding knife. State v.
Walker, No. A22-1734, 2023 WL 8539594, at *4–5 (M inn. App. Dec. 11, 2023). In this
case, the court relies on the fact that a mach ete is described in so me dictionaries as a
weapon. But dictionaries do not all agree on this point. See Webster’s Third New
International Dictionary 1353 (2002) (defining “machete” as “a large heavy knife [usually]
made with a blade resembling a broadsword often two or th ree feet in length and used
[especially] in So. America and the West I ndies for cutting cane and clearing paths”).
Moreover, many items (such as axes, knives, and machetes) have uses as a weapon and not
as a weapon; the dictionary cannot tell us for what purpose a particular implement was
designed.
Relatedly, the court provides no basi s for carving out a special rule for
second-degree assault-fear with certain weapons. Self-defense is a defense that applies to
all assault cases. See Minn. Stat. § 609.06, subd. 1(3) (a uthorizing the use of reasonable
force when resisting “an offense against the person”). It is certainly possible that a person
who is threatened might threaten back without using a dangerous weapon. Once again, the
court today crosses an important threshold, holding for the first time that a person who does
not retreat when it is reasonable to do so can never claim that it was reasonable to threaten
their attacker with certain weapons as deterren ce to deescalate a situation, or to provide
more space to retreat safely. The court provi des no reason—and it is hard to discern one

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based on the court’s analysis—why the reasoning underlying its new rule would not equally
apply to a charge of fifth-degree assault (thr eat of violence causing fear of any level of
bodily harm).12 See Minn. Stat. § 609.224, subd. 1(1) (2022). In other words, because the
defense set forth in section 609.06, subdivisi on 1(3), applies to all assaults, and I cannot
perceive how the court can meaningfully di stinguish how its new rule would apply to
assaults other than second-deg ree assault-fear, a person facing an attacker must retreat if
reasonably possible before taking any defensive steps that cause fear of bodily harm in the
attacker. Accordingly, the cour t’s repeated insistence that its ruling is “narrow” is cold
comfort. The result today will surprise a lot of Minnesotans.
The court claims that Blevins’s argument is based on two premises: that individuals
have an inherent right to stand their ground a nd that the duty to retreat is meant to avoid
potentially deadly confrontatio ns. Both of these arguments are straw men—Blevins’s
argument does not rely on either of them.
First, the court tries to cast Blevins’s ar gument—that one does not need to retreat
before using threats in self-defense—as transforming Minnesota into a “stand your ground”
state. Of course, the full meaning of that term is that, if you are threatened, you are entitled
to stand your ground and use force to harm someone . The term has never applied to the
right to merely use threats—in this State or in any other. Under my proposed approach,

12 To the extent the court bases its ruling on the fact that someone could have been
injured by Blevins swinging a m achete, the court allows bad facts to make bad law. The
court’s new rule applies equally well to so meone who takes less dangerous action, like
revealing a knife in a belt or holding pepper spray in a threatening manner. These varied
situations are precisely why the reasonableness of a threat should be left to a fact-finder to
decide.

D-14
the duty to retreat before harming someone still applies. But my approach recognizes that
threatening an aggressor is one tactic—much like retreating—to avoid harm. Moreover,
threats are often used in conjunction with retreat.
Second, the court argues that the duty to retreat is undergirded by a broad public
policy of avoiding potentially deadly confront ations. While that is a noble goal, it is
irrelevant in the context of a self-defense claim. After all, when the man threatened Blevins
with a knife and said he would slice his th roat, a potentially deadly confrontation had
already begun, before Blevins did anything at all to threaten the aggressor. There is nothing
that Blevins could have done to avoid the potentially deadly confrontation entirely, because
he was responding to a situation three other people had created.
The actual public policy underlying the duty to retreat is that, in response to a threat,
individuals should be incentivized to avoid harm rather than escalate the situation.
Notably, under our law, if someone hurts another in self-defense, they have, by definition,
escalated the situation. But threats are more nuanced.13 They might escalate or deescalate
a situation (or create better opportunities to retreat). Indeed, Blevins succeeded in making
his original assailant back off—his threat worked as a deterrent.
When one considers the dut y to retreat as encourag ing people to deescalate
dangerous situations, requiring retreat before us ing force (certainly lethal force) to harm
someone is justified. Whether it is reasonable to require in all circumstances that a person

13 Under my proposed rule, ther e is an additional check on the use of force: if a person
uses threats in self-defense and someone is harmed in the process, the State can charge
assault-harm.

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retreat if reasonably possible before using the threat of force to deescalate the situation or
create better opportunities to escape is a much different question best left to the jury.
Notably, the legal issue before us is not about the level of force or threatened force
that Blevins used. But the court’s broad holding today would apply equally well to
someone who wards off a potential attacker by brandishing a knife, a lawfully possessed
firearm, or a can of pepper spray. Not all threats in self-defense are equally likely to
escalate (or deescalate) a situation, which is why the question is best left to a fact-finder in
considering the reasonableness of the threat.
For the foregoing reasons, I respectfully dissent.

PROCACCINI, Justice (dissenting).
I join in the dissent of Justice Thissen.