The COA does a nice job of expaining the incorrectness of state's factual argument on appeal that the bouncers were trying to deal with the situation in a nonconfontational way:
Here, a reasonable person in Sanders' posiution confronted with a weapon that, especially in the heat of the moment, might be taken to be a firearm would believe he or she needed to draw a firearm to resist that aggressive conduct and to defuse the perceived danger. In addition to [one of the bouncers], a second employee had accosted Sanders near the club entryway. Sanders or a reasonable person in his position also may have perceived that he was outnumbered, depending on whether he viewed Cooper as willing to enter into a physical confrontation with the club employees. Sanders had no duty to retreat in the face of the conduct Cooper ascribes to [the bouncer] and the other club employee. He could resort to force to defend himself rather than fleeing. The videotape shows Sanders baking away toward the front door of the club, albeit with his hand on his holstered pistol, while [the bouncer] advances towards him.
We also note that the video tape is far from decisive one way or the other. It fails to depict the initial stage of the confrontation when [the bouncer] and the second employee first tell Sanders to leave. The event unfolded quickly, and Cooper could have seen the employees point the pepper spray devices at Sanders then. The video also does not clearly show Sanders drawing his pistol and fails to capture where he may have pointed it.
Given the minimal evidentiary threshold necessary to require a court to give an instruction on self-defense, those circumstances are sufficient. The trial court, accordingly, erred in declining to instruct the jury on self-defense. Sanders is entitled to a new trial. We would not presume to suggest what a properly instructed jury would conclude. But, to this point, Sanders has been denied the opportunity (to which he was legally entitled) to find out.
But the jury, provided proper instruction, must sort out those kinds of conflicts. The evidentiary discrepancies do not furnish a basis to deny an instruction on self-defense. That would be looking at the evidence in a way disadvantaging Sanders and, therefore, contrary to the applicable legal standards in determining whether to instruct on a defense.Another case of "let the jury do its job!"
[Update: the state filed a PR on August 26, 2011.]
[Further update: the KSC denied the PR and the mandate issued on January 24, 2012.]