Words and the Mere Display of a Holstered Firearm Are Not “Unlawful Physical Force”: Kentucky Supreme Court Narrows the Initial Aggressor Doctrine and Clarifies Instructional Law

Introduction

In Troy Dunkleberger v. Commonwealth of Kentucky, the Supreme Court of Kentucky reversed a first-degree manslaughter conviction and remanded for further proceedings because the trial court erroneously instructed the jury on the “initial aggressor” limitation to self-protection. The central issue was whether two alleged acts by the defendant—yelling the victim’s name inside a cabin and briefly lifting his shirt to reveal a lawfully possessed handgun that remained holstered—could, without more, constitute “unlawful physical force” sufficient to support an initial aggressor instruction under KRS 503.060.

The majority, per Justice Conley, held that neither words alone nor the mere display of a holstered firearm (lawfully carried) constitute unlawful physical force or deadly physical force as a matter of law. The Court also clarified the sequencing of the standard of review: whether particular conduct is legally capable of qualifying as “unlawful physical force” for purposes of KRS 503.060 is a threshold question of law reviewed de novo; only after that threshold is passed does the abuse-of-discretion standard govern the decision to give or withhold an instruction on the facts.

Beyond instructions, the opinion addresses several evidentiary rulings likely to recur at any retrial, mostly affirming the trial court’s discretionary exclusions as either irrelevant, cumulative, or unduly prejudicial.

Summary of the Opinion

The Court reversed the manslaughter conviction because the trial court gave an initial aggressor instruction without legally sufficient predicate conduct. The two acts cited by the Commonwealth—(1) yelling the victim’s name and (2) revealing a holstered handgun—do not, standing alone, constitute unlawful physical force under KRS 503.060.
Words alone cannot be “physical force.” The statute and its definitions in KRS 503.010 are concerned with force “used upon or directed toward the body of another.” Verbal provocations do not qualify.
The mere display of a lawfully possessed and holstered firearm (including revealing concealed carry to open carry) is generally not unlawful, is protected by the Second Amendment and Kentucky Constitution § 1, cl. 7, and does not amount to deadly physical force or create a substantial risk of death or serious physical injury.
Although “brandishing”—drawing or pointing a gun—may justify an initial aggressor instruction, simply showing a holstered gun is different. The Court distinguished prior cases where the defendant openly displayed or pointed a firearm prior to shooting.
Limited exception: a holstered display coupled with coercive threats or commands could constitute unlawful force (e.g., menacing or criminal coercion). That scenario was not supported by the trial record here.
Instructional standard of review clarified: the classification of conduct (e.g., words, holstered display) as potentially “unlawful physical force” is a question of law reviewed de novo; the ultimate decision to give an instruction on the evidence is reviewed for abuse of discretion. A trial court has no discretion to commit an error of law.
Harmless error analysis: because the erroneous initial aggressor instruction could have materially constrained the jury’s assessment of self-defense, the error was prejudicial and not harmless.
Evidentiary rulings: the Court found no abuse of discretion in excluding (a) the victim’s two-year-old fentanyl conviction, (b) generalized “heroin history” unconnected to the incident, (c) a cumulative video of prior intoxication, and (d) a months-old video of the victim with a firearm obtained illegally where size was the only marginally relevant point.
Guidance to the bench: the Court reiterated (via Menser v. Commonwealth) that a self-defense-limiting instruction should identify the facts that could constitute the limiting condition (e.g., what act would make the defendant an “initial aggressor”) to avoid juror speculation. While not preserved here, the Court flagged this for future cases.

Detailed Analysis

I. The Statutory Framework and the Court’s Core Holding

KRS 503.060(3) withdraws the justification of self-protection if the defendant “was the initial aggressor,” subject to exceptions (e.g., nondeadly initial force met by deadly force, or withdrawal and communication). KRS 503.010(4) defines “physical force” as “force used upon or directed toward the body of another person and includes confinement.” KRS 503.010(1) defines “deadly physical force” as force used with the purpose of causing death or serious physical injury or known to create a substantial risk of such harm.

The majority emphasizes two features:

“Physical force” must be directed toward the body. Words are not force; they are not contact and, “remaining only in idea,” cannot satisfy the statute. Accordingly, yelling the victim’s name—even if provocative—cannot alone support an initial aggressor instruction.
The mere display of a holstered firearm—without drawing, pointing, or combining the display with threats/commands—is lawful, constitutionally protected conduct in Kentucky and does not itself create a substantial risk of death or serious bodily injury. It is not “deadly physical force” and, absent more, is not “unlawful” physical force either.

The Court expressly distinguishes cases where defendants brandished, drew, or pointed firearms, noting that those act types may constitute initial aggression.

II. Constitutional Backdrop: Open Carry, Concealed Carry, and the Right to Self-Defense

Second Amendment: Under New York State Rifle & Pistol Ass’n v. Bruen, Americans have a right to carry firearms for self-defense; open carry in public is within the historical tradition recognized by the Supreme Court.
Kentucky Constitution § 1, cl. 7: Kentucky’s right to bear arms is especially protective of open carry; the General Assembly may regulate concealed carry, but open possession is favored and protected (Holland v. Commonwealth).
Application here: Dunkleberger lawfully possessed and carried his handgun. Revealing a concealed, holstered firearm in the midst of a confrontation merely transitions from concealed to open carry—a constitutionally protected mode of possession—and cannot be treated as unlawful physical force per se.

The majority’s analysis is policy-aware: in volatile encounters, the social and legal value of lawful armed self-protection is at its apex. Treating a holstered display as initial aggression would turn the right (to bear arms for self-defense) against its purpose by chilling lawful defensive signaling short of deadly force.

III. Standard of Review: A Two-Step Approach

The majority clarifies a procedural and doctrinal point that will have broad importance in instruction appeals:

Step one (de novo): Determine whether the type of conduct identified (e.g., words, holstered display) is legally capable of constituting “unlawful physical force” under KRS 503.060. This threshold classification is a question of law. A court has no discretion to treat constitutionally protected speech or lawful carry as “unlawful physical force.”
Step two (abuse of discretion): If the conduct type can be unlawful physical force, then the trial court’s decision to instruct on the basis of the evidence presented is reviewed for abuse of discretion.

This sequencing preserves the traditional deference owed to trial judges on factual sufficiency, while reinforcing that courts cannot, as a matter of law, predicate criminal liability or limitations on justification on protected or non-forceful conduct.

The dissent would confine review to abuse of discretion and evaluate the “whole circumstances” for whether the display could reasonably be seen as threatening. The majority responds that trial courts lack discretion to commit legal errors about what may or may not constitute “unlawful physical force.”

IV. The Court’s Use and Treatment of Precedent

A. Modern Kentucky cases and brandishing

Kidd v. Commonwealth (2022): Approaching a car with a gun “made clearly visible” shortly before shooting supported an initial aggressor instruction. The gun was not merely holstered; visibility coincided with the imminent use of deadly force.
Kingdon v. Commonwealth (2016): Pursuit onto a bus to confront the victim with a loaded gun, followed by drawing and shooting, supported the instruction.
McCain v. Commonwealth (2014) (unpublished): Defendant retrieved a gun after an earlier clash and sought out the victim; the instruction was appropriate. Not a holstered-display-only case.
Bowman v. Commonwealth (2024): Pointing a loaded firearm at the victim’s head before the fatal shot supported the instruction; it would be “patently absurd” to say pointing a gun is not “force directed toward the body.”

The majority harmonizes these decisions: brandishing, pointing, or otherwise weaponizing the firearm’s presence toward the body can constitute unlawful physical force; merely revealing a holstered firearm, without drawing, pointing, or coupling with threats, cannot.

B. Historic Kentucky cases and the pre-Code continuity

Carnes v. Commonwealth (1905): Going armed to meet a known threat did not justify an aggressor limitation; lawful possession is not “provoking the difficulty.”
Radford v. Commonwealth (1887): Jury may not treat “taking a gun along” as an attack; reversing where an aggressor instruction may have rested on mere possession.
Ayers v. Commonwealth (1922): The only conceivable act to “bring on the difficulty” was drawing or reaching for the pistol first; mere armed presence was not enough.
Collett v. Commonwealth (1938): Habitual carrying and following the decedent, with disputed words, did not support the instruction absent proof of unlawful initiation.
McDaniels v. Commonwealth (1952): Returning armed to the scene to renew a clash can render the defendant the aggressor; a distinct, second encounter matters.

The majority reads KRS 503.060 against this background, noting the Code was not meant to upend preexisting principles (Charles v. Commonwealth). The through-line is that lawful possession and carry—without more—do not suffice to label someone the initial aggressor.

C. Words are not “force”

Echoing State v. Riley (Wash. 1999) and other authorities, the Court underscores that verbal provocations alone cannot justify an initial aggressor instruction aimed at penalizing unlawful physical initiation. Kentucky’s own case law recognizes that truly “fighting words” or serious affronts may support a separate “provocation” instruction, but that is a different doctrinal tool than the “initial aggressor” limitation.

D. Wanton endangerment analogies

To reject the idea that a holstered display creates a “substantial risk” of serious harm, the Court analogizes to KRS 508.060(1) decisions (e.g., Gilbert, Bell, Swan) holding that merely possessing or not drawing/aiming a firearm typically does not create the necessary risk for first-degree wanton endangerment. That logic dovetails with KRS 503.010’s definition of deadly physical force.

E. Bowling and the separation of encounters

Even if yelling a name could be thought aggressive, it was separated by time and distance from the later outdoor confrontation (Bowling v. Commonwealth). The Court treats the two as distinct incidents, so the later holstered display must be evaluated on its own merits—which, again, did not amount to unlawful physical force here.

F. Menser and the content of instructions

Although not preserved, the majority reaffirms Menser v. Commonwealth’s rule that a self-defense-limiting instruction should identify or define the acts that could constitute the limiting condition, lest jurors speculate. It rejects the dissent’s suggestion that Menser conflicts with Kentucky’s “bare bones” instruction philosophy, noting the two have long coexisted (Moore v. Damron). In practice, this is cautionary guidance: when instructing on “initial aggressor,” courts should connect the legal principle to the fact pattern that could trigger it.

V. The Dissent’s Counterpoints

Justice Keller, joined by Justice Bisig, dissents on three primary grounds:

Standard of review: The dissent would apply only abuse of discretion to the decision to instruct and would not insert a de novo legal threshold. It views the majority’s approach as deviating from settled standards in recent aggressor-instruction cases.
Whole circumstances: The dissent would consider the escalation, interpersonal friction, and the in-argument revelation of the holstered gun as a potentially threatening act, sufficient for a reasonable jury to find initial aggression under a deferential standard. It reasons that “displaying so as to threaten” is “force directed toward the body” even short of pointing.
Bare bones instructions: The dissent defends Kentucky’s bare bones model and resists any requirement that instructions enumerate supporting facts. It views Menser as outdated.

The majority answers that the classification of lawful speech and carry as “unlawful physical force” is a legal question, not one committed to discretion, and that brandishing cases remain good law but are materially different from a holstered display.

VI. Practical Impact and Forward-Looking Implications

A. Tightening the gateway to “initial aggressor” instructions

This published decision materially narrows when an initial aggressor instruction may be given:

Words alone, even harsh or provocative, cannot support the instruction.
The mere display of a holstered firearm, without drawing, pointing, or combining the display with threats or coercive commands, is not “unlawful physical force” and not “deadly physical force.”
Brandishing (drawing) or pointing, or coupling a holstered display with menacing or coercive conduct, can still support the instruction. Fact development about gestures, commands, and proximity will matter.

B. Renewed attention to instruction drafting

Trial courts should avoid “free-floating” initial aggressor qualifiers. Where warranted, the instruction should identify the act(s) that could constitute initial aggression to prevent juror speculation (per Menser).
Lawyers should be prepared to argue both the legal capacity of the alleged act to constitute unlawful physical force (a de novo issue) and the factual sufficiency under abuse-of-discretion review.

C. Evidentiary strategy and charging decisions

Prosecutors: To secure an initial aggressor instruction, develop evidence of unlawful physical conduct—e.g., physical touching, drawing or pointing a weapon, grabbing, confining, or a holstered display paired with explicit threats or commands amounting to menacing or coercion. Relying on words or a mere holstered reveal risks reversal.
Defense: Object early and specifically to aggressor qualifications predicated on speech or holstered displays; request pinpoint instructions that define the qualifying acts; and preserve Menser-based objections to prevent speculative applications.

D. Self-defense landscape and “imperfect self-defense”

The Court emphasizes that its ruling does not immunize defendants from liability. Absent the improper aggressor qualifier, juries may still find the defendant acted in “imperfect self-defense,” supporting second-degree manslaughter or reckless homicide where the belief in the need for force was genuine but formed recklessly or wantonly (Commonwealth v. Hager).

E. Public carry and defensive signaling

The decision sensibly clarifies that lawfully carrying citizens may reveal a holstered firearm as a deterrent signal without ipso facto becoming initial aggressors. However, such displays accompanied by coercive demands or explicit threats may convert lawful carry into unlawful conduct (e.g., menacing, criminal coercion), potentially supporting an aggressor instruction. As always, facts and context are critical.

VII. Complex Concepts Simplified

Initial aggressor (KRS 503.060): If you start a fight with unlawful physical force, you ordinarily lose the right to claim self-defense—unless your initial force was nondeadly and the other escalated to deadly force, or you withdrew and clearly communicated your withdrawal.
Physical force vs. deadly physical force: “Physical force” means actual force directed at another’s body (including confinement). “Deadly physical force” is force intended to kill or cause serious injury or known to create a substantial risk of that harm.
Words vs. force: Words—even provocative or insulting—are not “force.” Calling someone’s name or engaging in verbal confrontation cannot, by itself, be the “initial aggression.”
Mere holstered display vs. brandishing: Showing a holstered gun is not the same as drawing or pointing it. The former, absent threats, is lawful and not “deadly physical force”; the latter can be unlawful and may support an aggressor instruction.
Menacing and criminal coercion: Using words or actions (including displaying a gun) to make someone reasonably fear imminent injury (menacing) or to coerce their behavior (criminal coercion) may make an otherwise lawful display unlawful in context.
Imperfect self-defense: A genuine but unreasonable or reckless perception of threat can reduce culpability (e.g., from intentional homicide to manslaughter or reckless homicide) but does not exonerate.
Stand-your-ground and no duty to retreat: Kentucky law does not require retreat (KRS 503.055); one may stand their ground. This interacts with the Court’s recognition that defensive displays are often intended to prevent violence.

VIII. The Court’s Treatment of the Record Evidence and Instruction

Two alleged “aggressor” acts:
- Yelling the victim’s name: not physical force as a matter of law.
- Holstered display: lawful, non-deadly, non-coercive display; insufficient alone to be “unlawful physical force.”
Temporal separation: Any friction inside the cabin ended when the parties separated for several minutes. The later outdoor confrontation was a new encounter; the holstered display had to be independently unlawful to support the instruction (it was not).
Harmless error: Because the initial aggressor qualifier narrowed the jury’s ability to accept self-defense, the error was prejudicial.
Evidentiary issues for retrial:
- Prior drug conviction (2018) and generalized heroin history: properly excluded as irrelevant or unduly prejudicial given temporal distance and lack of proof of use that weekend.
- Evidence of hallucinogenic mushrooms that weekend: permitted; toxicology and witness testimony covered intoxication adequately.
- Video of prior intoxication: cumulative; exclusion within discretion.
- Video of victim with illegally obtained gun months earlier: marginal relevance (size only) outweighed by prejudice; exclusion within discretion.

Conclusion

This published decision sets a clear, two-part precedent in Kentucky self-defense law and trial practice:

Substantively, words and the mere display of a holstered, lawfully possessed firearm are not “unlawful physical force” and cannot, without more, support an initial aggressor instruction. Drawing, pointing, or combining a holstered display with threats or coercive commands remain viable bases for the instruction.
Procedurally, whether a category of conduct can ever amount to “unlawful physical force” is a threshold legal question reviewed de novo. Only if the conduct type qualifies do we ask, under abuse-of-discretion review, whether the evidence warranted the instruction in the particular case.

The Court also revives attention to instruction content, reminding the bench that self-defense-limiting instructions should identify the act(s) that, if found, trigger the limitation to avoid juror speculation. And it affirms a series of careful evidentiary rulings that will guide retrial, should the Commonwealth proceed.

In the broader legal context, Dunkleberger recalibrates the initial aggressor doctrine to align with constitutional protections for speech and arms-bearing, sharpens the distinction between mere possession/display and weaponized conduct, and offers practical guidance for judges and litigants on how to litigate and instruct self-defense cases going forward.