dissenting.
It is with great respect for the members of this Court that I must dissent in this instance. At the onset, it is worthy of note that Rainey was the only nonhearsay witness to give testimonial evidence. Hence, as the majority indicates, through Chief Justice VandeWalle, we review the Appeals Referee’s conclusion of law regarding misconduct on the undisputed facts that Rainey has supplied. It is further indicated in the majority opinion that there are exceptions to the general rule, whether employer mandated or caselaw generated, that an employee reasonably owes a duty to the employer to refrain from fighting on the job. Hence, “there are exceptions to the general rule, and when an employee acts reasonably to defend against an unprovoked assault by a co-worker, unemployment cannot be denied for fighting on the job. (Citations)” (Emphasis by this writer.)
All appear to agree that characterization of a knife as a dangerous weapon under the facts set forth herein is proper. Further, under North Dakota caselaw, also as set forth by the majority, to prevent imminent unlawful bodily injury, “serious bodily injury, or the commission of a felony involving violence,” Rainey had a right to offer use of deadly force to protect herself unless she could, with safety, retreat or engage in other conduct sufficient to avoid the altercation.
Under the salient facts of this ease, Rai-ney, possessed with the same knowledge her employer had of her co-worker’s established propensity for violence,1 while talking to a superior was verbally confronted by Les-meister, suffered an unprovoked physical assault with, in effect, a weapon, to-wit the metal pot, was able to wrest the pot away, and instinctively swung back, hitting the attacker once with the pot. She then felt her arm being pulled back and went along with it only to see her attacker pull out a knife and start after her with it, whereupon Rainey grabbed a knife and assumed a defensive posture by waiting while her attacker advanced, pressing the attack to her. Then both were restrained and had words.
There is no dispute that the entire incident happened in one short continuous nonstop period of time. There was no time for detached reflection, only time to react instinctively.
There further appears to be no disagreement that the initial physical attack against Rainey was unprovoked and that her instinctive reaction when struck to defend herself by grabbing the pot does not present a problem. The majority does not appear to attach significance to the strike with the pot Rainey gave her aggressor after she grabbed it. Perhaps it is because it appears to be a situation where Rainey was engaged in continuous defensive conduct of grabbing and striking in a traditional defensive counterattack which in her instance was to no avail. It was not enough. Rainey’s attacker did not pause. Instead the attacker escalated to the next available weapon, the knife, by accepted characterization a deadly weapon. Rainey stops, her attacker advances, and both are restrained. Here the majority appears to draw the line and sees Rainey somehow transformed from victim to aggressive attacker charged with escalating the violence in the work place. The majority states:
Having to be restrained from attacking with a butcher knife a similarly restrained aggressor is the antithesis of self-defense. Ramey’s own version of the incident establishes that the confrontation had escalated into mutual combat. At that point, neither person was justified in using force. (Citation) We conclude that Ramey’s conduct went beyond self-defense and constituted disqualifying misconduct precluding her from receiving unemployment benefits. (Emphasis by this writer.)
Does Rainey’s version of the incident show that she had to be restrained from attacking with a knife and that the fight actually esca*381lated into some kind of consensual back and forth mutual combat? Most assuredly Rai-ney’s unaimed defensive blow with the pot, which did not serve to stop the attack, did not make Rainey the aggressor. Rainey’s additional testimony on that point is as follows:
A. And I took it from her — I grabbed it from her as she was hitting me, I grabbed it. And I swung it back and hit her and it just happened to pop her on the head because she’s so much shorter than I am.
* * *
Here then is Rainey’s unaimed defensive blow which did not serve to slow her attacker. Since it is at this point that escalation occurs when the first deadly weapon makes, its appearance, it may be advantageous to iterate the pertinent portions of North Dakota’s self-defense law as contained in N.D.C.C. 12.1-05-03. To paraphrase, one has the right in North Dakota to use deadly force to defend herself against “danger of imminent unlawful bodily injury” and, in this instance, “serious bodily injury,” or the commission of a felony involving violence, unless it can be avoided, with “safety” to the actor, by retreat or conduct in an attempt to avoid the altercation before resorting to deadly force. This, in essence, is the law applicable.
We are constrained then to look at this particular situation through Rainey’s eyes as. long as her belief is reasonable. No one has disputed the fact that Rainey could have reasonably believed that a knife had been brought into play against her. Her testimony on this point is as follows:
Q. Some. Okay. So you saw that she was reaching for something with a handle.
A. At the sink at me.
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and
Q. Okay. And you thought she was taking out a knife?
A. Yes.
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It is important to note that at this point Rainey has nothing in her hands. Further, the situation is nonstop. It is ongoing and progressing rapidly. The question becomes whether Rainey reasonably believes she could in some manner turn or backpedal to retreat in safety. No one ever asked her at hearing. Also, we have not been furnished with any knowledge or description of the physical layout that Rainey and Lesmeister were in except that a sink was apparently in a close location. We do know the two were in a face to face position and in fairly close physical proximity. It is at this point that the second knife comes into play when Rai-ney grabs it from some location. We also know that Rainey’s aggressor did begin to press a knife attack by coming toward Rai-ney and further that Rainey did not respond but maintained a defensive posture. Rainey testified:
Q. Did you — did you go after her?
A. No. Because—
Q. Did she come after you?
A. Sergeant Raymos — she was coming toward me and Gladys and Rock pulled her back and Sergeant Raymos had me back.
Q. Okay. So—
A. In a—
Q. Both of you were restrained then?
A. Yes.
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Further evidence of Ramey’s lack of propensity to press any edged weapon attack on her aggressor is evidenced by a portion of Rainey’s testimony as set forth by the majority which testimony, in pertinent part, is as follows:
A. ... And I was thinking a, you know, she’s coming after me with a knife, you know, or whatever, so before I knew it, that’s what I grabbed and I was wrong for doing that. I guess I was just — I wasn’t gonna get until she came after me first.
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As far as this writer’s legal knowledge extends, feelings of guilt or wrongdoing, after the fact, and evidenced by statements such as “I was wrong for doing that” or such as “I must have lost it” do not provide or create a conclusion of law nor can the same replace the statutory law of self-defense.
It appears clear that Rainey never attacked with a knife. She went into a defen*382sive posture with it, and she felt it should not have happened. On the other hand, her coworker continued an already ongoing attack escalating it to an edged weapon even in the face of Rainey’s initial, and by all appearances quite reasonable defensive counterattack. Further, even though Rainey lost her cool, and she ought to be afforded the protection anyway of the old maxim that “the law does not demand detached reflection in the face of an uplifted blade,” Rainey should be commended for retaining a defensive posture with her weapon of defense. She can hardly be held to have had to defend herself against a knife with bare hands in the situation she was faced with.
Finally, and most importantly, what happened when Rainey and Lesmeister were restrained is evidenced by the only available nonhearsay evidence on that issue by Rainey as follows: (NOTE: This was immediately upon restraining of both.)
Q. Okay. And then what happened?
A. Then we were arguing because Ray-mos was holding me back and Rock and Gladys was holding Terraseta. They got Terraseta out the office.
⅜ * *
Rainey is perhaps not the most articulate witness to have offered testimony in a case which has come before this Court. Luckily, it is clear from Rainey’s other testimony that when she states, “... Raymos was holding me back ...,” she was not referring to herself pressing an attack with a knife. Two people hold back the smaller attacker and one holds back the larger defender. So far the situation does not smack of a mutual combat scenario in any easy fashion. However, this writer cannot help but be struck by the lack of support for the majority’s apparent conclusionary comments as applied to the facts of the instant case in pertinent part wherein it is concluded:
Both Rainey and Lesmeister had to be held back by others to stop the altercation. Having to be restrained from attacking with a butcher knife a similarly restrained aggressor is the antithesis of self-defense. ... At that point, neither person was justified in using force. (Citation)
Certainly this writer would agree at that point neither was justified in using or attempting to use force. However, the fact is that Rainey never had to be restrained from attacking with the butcher knife. As the only evidence on that point shows, she was in a defensive posture awaiting the attack that was on its way until such time as Lesmeister was restrained along with Rainey. It was at this point that the Court concludes that Rai-ney’s conduct went beyond self-defense and was disqualifying misconduct precluding her from receiving her unemployment benefits. The majority says that:
Rainey was aware of ProServe’s policy against fighting. She grabbed a butcher knife and had to be restrained from attacking Lesmeister. Even though Les-meister was the initial aggressor, Rainey’s escalation of the encounter into a life-threatening situation constituted misconduct evidencing a willful disregard of her employer’s interests. (Emphasis by this writer.)
I must respectfully disagree with my learned colleagues with regard to their version of the evidence and the ensuing statements with regard to what they propose Rainey did. According to the evidence, Les-meister escalated from verbal to physical attack with blunt instrument and then to deadly force with a knife. This writer is of the opinion that Rainey’s conduct did not go beyond a reasonable self-defense. The evidence does not show otherwise. We do not know that Rainey could have safely retreated or whether in the midst of that rapidly deteriorating situation she could have resorted to some, as of yet unarticulated, alternative conduct. Words immediately subsequent to the incident can hardly suffer interpretation as mutual combat. Rainey’s instinctive survival reactions in responding to an aggressive attack on her person by a co-worker with known propensities for violence with two separate weapons appears to have been downright reasonable. Rainey was faced with serious bodily injury by virtue of her facing an ongoing aggravated assault, the commission of a felony with violence. Peace officers across this country are trained in the so-called “seven yard rule.” That is, they are *383trained to shoot an advancing aggressor armed with a knife at 21 feet. However, without the use of a peace officer’s training and tools, Rainey survived in her physical person and should survive legally as well by being awarded her benefits.
The majority next disposes of an alternative theory offered by Job Service which the sendee calls “poor judgment.” The majority refers to the same theory as a “... hotheaded incident ...” type theory. Job Service offers the case of Anderson v. Florida Unemployment Appeals Comm’n, 517 So.2d 754 (Fla.Ct.App.1987), which case appears to reflect this Court’s earlier proffered maxim of “the law does not demand detached reflection in the face of an uplifted blade.” The majority declines to follow this case, with qualification. The case appears to me to be enough on point with the case before us. I would follow it, and I would affirm the Appeals Referee’s succinct and clear opinion with regard to this case.
I must conclude that Job Service’s conclusions of law are indeed sustained by its findings and that its decision is supported by those conclusions of law. It was not Rainey who escalated the encounter into a life threatening situation, and hers was not misconduct evidencing willful disregard of her employer’s interests.
Further, I see nothing which is unjustified and disproportionate to the need to defend when a deadly weapon is first pulled on Rainey and she counters with the same but in a defensive posture. There is no peace officer in this land who would not hesitate to resort to the putting in hand of a firearm when faced with a knife and utilizing the same upon an individual who is advancing with the knife. Whether on the street, in their home, or in the work place, the citizens of this State are entitled to the same right of self-defense of their person as any trained and equipped peace officer.
. Lesmeister had been counseled by ProServe approximately two months earlier for striking a pregnant co-worker m the stomach.