concurring and dissenting.
I join in the majority’s decision that instructing the jury that Brown had the burden of proving self-defense by a preponderance of the evidence constituted an obvious error which, if prejudicial, would be plain error and require reversal of Brown’s conviction. Under the circumstances, I would find no prejudice since the undisputed facts preclude, in my view, any instruction on self-defense.
My disagreement with the majority turns on a question of law not fact. The majority errs, in my view, in considering in isolation Brown’s confrontation with Miller at the party house in determining whether Brown established some evidence that he acted in self-defense. In my view, this question cannot be answered without considering preceding events. When we consider all of the undisputed evidence construed most favorably to Brown, I am satisfied that Brown was not entitled to an instruction on self-defense and that, consequently, the instructional error did not prejudice him. I would hold as a matter of policy that the statutory duty to retreat before resorting to deadly force precludes an assailant from arming himself and seeking out his ultimate victim where he fears a violent confrontation, i.e., he is aware1 of a substantial risk that a confrontation will be likely to result in the necessity that he use *676deadly force in self-defense. In my view, Brown’s testimony establishes three factors that preclude an issue of self-defense in this case: (1) that he knew Miller had threatened to kill Brown with a gun, (2) that he intentionally armed himself fearing a violent confrontation, and (3) that he intentionally sought Miller out to “discuss” Miller’s threat. In my view, AS 11.81.-335(b) is dispositive of this question. It provides:
(b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others, the person can avoid the necessity of using deadly force by retreating, except there is no duty to retreat if the person is
(1) on premises which he owns or leases and the person is not the initial aggressor; or
(2) a peace officer acting within the scope and authority of the officer’s employment or a person assisting a peace officer under AS 11.81.380.
The shooting in this case took place in a bar that was not owned or leased to Brown. Brown was not acting as or on behalf of a peace officer at the time. Consequently, in order to present a question of self-defense to the jury, Brown was obligated to produce “some evidence” that he had attempted to retreat and thereby avoid his ultimate victim at the point when Brown reasonably became aware of the potential threat to his life and the possibility that he might have to resort to deadly force in self-defense. It seems to me the facts set out in Brown’s brief establish that he recognized the potential need for deadly force in self-defense long before he entered the “party house” but did not avoid Miller at that point, though he could easily have done so. Brown sets out the facts as follows:
On November 4, 1982, around 6:00 p.m., E.J. went to Mary’s apartment to deliver some mail to his daughter Linda. He gave her the mail and saw Miller [his ultimate victim] and Mary [his wife] close together on adjoining .couches. He had not noticed Miller’s truck outside and was not expecting to see Miller there. E.J. asked what was going on and stated that Mary and Miller were the last people he expected to see so close together. Mary began yelling and Miller said he would leave. E.J. told him not to leave since E.J. was headed home. E.J. left and Miller followed him out. Miller pulled on E.J.’s sleeve; when E.J. turned, Miller put his hand on a .44 magnum in a holster beneath his parka. Miller threatened to blow E.J.’s “brains out” if he did anything. E.J. told Miller to take his hands off him and left.
After awhile, E.J. returned to Mary’s apartment, determined to get to the bottom of the whole affair. Mary and E.J. argued and she told him to get out and not come back. Mr. Brown informed her that he was going to do just that.
Mr. Brown returned to his house. He decided that Miller's threat was too much and that he wanted and needed to talk to Miller. Because he knew that Miller was armed with a .44 pistol, E.J. took his .22 rifle with him. Mr. Brown took a cab to within a block of the party house. Although he did not know that Miller would be there, E.J. was afraid of what would happen if Miller saw him get out of the cab in front of the party house. Mr. Brown put two rounds in the rifle after he got out of the cab.
When E.J. walked into the party house, Miller was standing at the bar very close to the door. E.J. told him that he wanted to talk to him about threatening him with the gun earlier. E.J.’s rifle was held in his left arm. When E.J. told Miller that he wanted to talk with him, Miller asked what he wanted to talk about. E.J. re*677sponded that he thought they should talk about Miller’s threat and why he had “pulled a gun” on E.J.. Miller took a partial step, pulled his .44 magnum and pointed it at Mr. Brown. Mr. Brown fired first, striking Miller in the chest. Miller shot at E.J., barely missing his head. Mr. Brown fired a second shot into the ceiling. Mr. Brown and Miller then struggled over Miller’s gun which had live ammunition remaining. The struggle went outside where Brown was able to disarm Miller and kicked the .44 away. Leon Miller, E.M. Miller’s brother, and Tyrone Burkhead, a patron of the party house, separated them.
Citations to the record and footnote omitted.
Even if we construe the record most favorably to Brown, it is clear that he realized that Miller presented a substantial threat of physical violence at the time of their first confrontation at Brown’s wife’s home. Nevertheless, Brown went to his own home, armed himself with a rifle, and sought Miller out to “talk to him [Miller] about threatening him [Brown] with a gun earlier.” Under these circumstances, Brown’s testimony establishes his recklessness. Brown therefore failed to establish some evidence that'he attempted to retreat at the earliest practicable time as a matter of law and, in my view, forfeited any right to claim self-defense. See Bangs v. State, 608 P.2d 1 (Alaska 1980); State v. Millett, 273 A.2d 504, 510 (Me.1971). For this reason, I would not follow State v. Jackson, 382 P.2d 229 (Ariz.1963), and other cases which, in my view, encourage violence by authorizing the kind of conduct that Brown engaged in this case. Brown had a right to lead his life unobstructed by Miller. The fact that he knew Miller was armed and could be dangerous did not require Brown to hide in his room. If Brown feared Miller, Brown certainly could arm himself in order to go about his normal business so long as he did not intentionally seek Brown out. In my view, public policy precludes us from holding that Brown may arm himself with a rifle and seek out someone he has substantial reason to fear will shoot him in order to continue a confrontation.
I am not insensitive to Brown’s predicament. Miller’s threat to kill him no doubt hurt Brown’s pride and may even have enraged him. To this extent, Brown’s response was understandable. But on reflection, we should not give our approval to Brown’s subsequent actions because to do so encourages extremely dangerous confrontations. Brown’s testimony establishes that he went to the party house knowing that a violent confrontation was likely. His actions endangered every person present. It is fortunate that more people were not injured. I would hold that the statutory duty to retreat precludes a finding of self-defense where the assailant seeks out his victim, in the absence of some evidence that the assailant did not foresee a substantial risk that a necessity for deadly force would arise. I, therefore, dissent from the decision to reverse Brown’s conviction.
. I am not suggesting a negligence standard. In essence, I would require some evidence that Brown was not “reckless” in seeking out his ultimate victim as that term is defined in AS 11.81.900j(a)(3) before I would allow that issue of the use of deadly force in self-defense to go to the jury. If there was some evidence that Brown did not appreciate the risk that his actions in seeking Miller to continue the confrontation would result in a gun fight, then Brown’s duty to retreat would be a jury issue and the burden would be on the state to disprove self-defense beyond reasonable doubt.
Alaska Statute 11.81.900(a)(3) provides: Definitions, (a) For purposes of this title, unless the context requires otherwise,
(3) a person acts "recklessly" with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had ' that person not been intoxicated acts recklessly with respect to that risk;
I believe this application of the rules requiring retreat to the facts of this case is implicit in the statute and does not involve judicial legislation. On three occasions, the supreme court has followed similar reasoning — that the law should not be interpreted to encourage people to engage in violent confrontations — to a similar result — restrictions on the availability of related defenses. See Bangs v. State, 608 P.2d 1 (Alaska 1980) (person who leaves fight, arms himself, and returns becomes "initial aggressor” forfeiting right to self-defense); Gray v. State, 463 P.2d 897, 909 (Alaska 1970) (person who commits armed robbery forfeits right to claim self-defense against police or victim's use of deadly force so long as robbery is in progress); Miller v. State, 462 P.2d 421, 426-27 (Alaska 1969) (rejecting majority rule permitting use of force to repeal peaceful but illegal arrest). The following language from Miller is particularly apt:
*676The control of man’s destructive and aggressive impulses is one of the great unsolved problems of our society. Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined. Along with increased sensitivity to the rights of the criminally accused there should be a corresponding awareness of our need to develop rules which facilitate decent and peaceful behavior by all.
462 P.2d at 426.