" 17-A M.R.S.A. § 2(18) (1983). We previously addressed the issue of whether the pointing of a gun constitutes deadly force in State v. Williams, 433 A.2d 765 (Me. 1981). [¶ 9] In Williams, the defendant loaded a handgun, and while holding it, made verbal threats against another individual.
It is not on a par with the actual use of deadly force. In State v. Williams, 433 A.2d 765, 768-770 (Me. 1984), we confronted the issue of whether Section 104(3)(B) encompasses the mere threat of deadly force in addition to the actual use of deadly force. After discussing the statute's legislative history, we adopted the position taken by the Model Penal Code, Sec. 3.11 (1962), namely, that the definition of "deadly force" does not include the threatened use of such force.
[¶ 7] Since 1981, we have unequivocally held that using a gun in a threatening manner without discharging the weapon constitutes nondeadly force only, and does not amount to the use of deadly force. State v. Glassman, 2001 ME 91, ¶ 11, 772 A.2d 863, 866; State v. Lord, 617 A.2d 536, 537 (Me. 1992); State v. Gilbert, 473 A.2d 1273, 1276 (Me. 1984); State v. Williams, 433 A.2d 765, 768-69 (Me. 1981). In doing so, we have reasoned:
States that have adopted the Model Penal Code also draw a distinction between the threatened use of deadly force and the actual use of deadly force. SeeToledo v. Florida, 452 So. 2d 661, 662 n.3 (Fla.Dist.Ct.App.1984) (stating that display of a weapon without more does not constitute deadly force); State v. Williams, 433 A.2d 765, 766 (Me. 1981) (threatening victim with gun not deadly force); Mattox v. Texas, 874 S.W.2d 929, 935-36 (Tex.Ct.App.1994) (threatening victim with gun constituted deadly force when firearm discharged). Once the gun discharges, however, those states hold that, by definition, the defendant has used deadly force and must justify his actions under the rules regarding the use of deadly force.
During the course of the trial, counsel stipulated that the force used by Gilbert was nondeadly. This stipulation was a recognition of the principle enunciated in State v. williams, 433 A.2d 765 (Me. 1981), in which we held that "deadly force" as used in the Maine criminal code does not include the threatened use of deadly force. Id. at 769-70.
Maine criminal law strictly construes statutory justifications. See generally State v. Williams, 433 A.2d 765, 769–70 (Me. 1981) (concluding that "deadly force" does not include a threat to use such force). Maine law provides that a "reasonable degree of nondeadly force" used during a domestic violence assault may be justified if it was deployed in self-defense — i.e., to defend against the imminent use of unlawful, nondeadly force by another — as long as the person using defensive force did not provoke the use of force by the other person and was not "the initial aggressor."
In one case we have found, the appellate court reversed the assault conviction of a defendant who brandished a knife and threatened to use it against the would-be taker of his saddle, on the principle that "[a] threat to use a deadly weapon, with the power to do it, may often be justifiable, when a battery with the same would not be." State v. Yancey, 74 N.C. 244, 245 (1876) ; see also State v. Williams, 433 A.2d 765, 768–70 (Me. 1981) (holding that prohibition on use of deadly force to defend property does not extend to mere threat of deadly force); State v. Lockwood, 43 Or.App. 639, 603 P.2d 1231, 1234 (1979) (defendant who threatened putative vandals with an unloaded pistol in order to protect his property from criminal trespass or mischief held entitled to instruction on use of reasonable force in defense of property).Fourth, the fire that Ms. Jones lit was too small and short-lived to pose a substantial risk of harm to Mr. Livingston. The fire never got out of control and Mr. Livingston easily could have moved to avoid it. And as soon as it became clear that Ms. Jones's attempt to frighten him was not working, she put the fire out.
See State v. Lord 617 A.2d 536, 537 (Me. 1992) (holding that threatening another with deadly force constitutes nondeadly force). However, in cases where we have distinguished the threat of deadly force from actual deadly force, the defendant merely pointed a gun in the direction of another person, but did not fire. See, e.g., State v. Williams, 433 A.2d 765, 769 (Me. 1981) ("Obviously, the threat of firing a gun in the direction of another person without actually doing so cannot be equated with the actual discharge of that weapon."). Here, Preston did not just brandish the rifle; he actually fired it.
However, in cases where we have distinguished the threat of deadly force from actual deadly force, the defendant merely pointed a gun in the direction of another person, but did not fire. See, e.g., State v. Williams, 433 A.2d 765, 769 (Me.1981) ( “Obviously, the threat of firing a gun in the direction of another person without actually doing so cannot be equated with the actual discharge of that weapon.”). Here, Preston did not just brandish the rifle; he actually fired it.
As in State v. Williams, we review de novo whether the conduct at issue constitutes nondeadly force within the meaning of the self-defense statute. 433 A.2d 765, 768-70 (Me. 1981); see also Alexander, Maine Jury Instruction Manual § 6-58 comment at 6-85 to -86 (4th ed. 2008) ("In most cases the jury will not need to address the nature of the force. The nature of the force may be relevant to the court in deciding what instruction is appropriate.").