New Court Decision: Self Defense in Kansas

[jej]

This link is to the Volokh Conspiracy blog. Professor Volokh teaches law at UCLA. He and a couple of the other bloggers there generally present well reasoned pro-second amendment articles and argument.

Anyway, this

http://volokh.com/2009/10/23/defend...ck-by-threatening-force-is-a-crime-in-kansas/

post discusses a Kansas supreme court case that stands for the proposition that, in Kansas, one may use deadly force in defense, but may not use threats.

I don't know if this is a stupid law, or a stupid interpretation of a good law. Maybe it is just a good reason to stay on the OK side of the state line.

I expect that this is the sort of bad court outcome that the Kansas legislature will address eventually, but for now, its law there.

jej

 

[sleepyj]

Think of it this way maybe they dont want you to tell the attacker you have a gun. But instead to just pull it and use it. Then you tell the cop i didnt threaten the dead only shot him.

 

[doctruptwn]

There is another law that does allow for a threat I'll see if I can find it.

 

[doctruptwn]

Kansas § 21-3211: Use of force in defense of a person; no duty to retreat.
(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force.
(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.

Kansas § 21-3212: Use of force in defense of dwelling; no duty to retreat.
(a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling or occupied vehicle.
(b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling or occupied vehicle if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or another.
(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling or occupied vehicle.

Kansas §21-3213: Use of force in defense of property other than a dwelling.
A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.


AND

Article 32.--PRINCIPLES OF CRIMINAL LIABILITY 21-3219. Use of force; immunity from prosecution or liability; investigation. (a) A person who uses force which, subject to the provisions of K.S.A. 21-3214, and amendments thereto, is justified pursuant to K.S.A. 21-3211, 21-3212 or 21-3213, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, "criminal prosecution" includes arrest, detention in custody and charging or prosecution of the defendant.
(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest.
(c) A county or district attorney or other prosecutor may commence a criminal prosecution upon a determination of probable cause.
History: L. 2006, ch. 194, § 2; L. 2007, ch. 169, § 1; May 17.
__________________

You have to look at these as a whole not the individual parts to find, how the Ks. Law applies. It makes it confusing, but hey otherwise lawyers wouldn't have a job. So you have to take it for what it is. I know they are working on several things for this next legisative term and we'll see what happens.

 

[Glocktogo]

I have a law. It's called "Don't go to Kansas."

 

[Roadking Larry]

I have a law. It's called "Don't go to Kansas."

FTW

Sebilious fouled KS up so bad it's gonna take a few years to get it straightened out.

 

[shortgrass]

Laws are written by lawyers (i.e. the legislature). Some are written to give much leway to those who enforce the law (those at the top, please don't take offense local LEO's, you do a tough job). Some of them are written so vaguely because the don't want to take responsibilty for these laws it seems. And some are written just to keep lawers busy trying to figure out what the legislature ment when they wrote it. As time goes on less and less from our government is 'cut and dried'.

 

[mons meg]

Doctruptwin, the decision according to the article was regarding section 3211, not 3213. Volokh as usual provides good commentary:

That’s what the Kansas Supreme Court just held, interpreting Kansas Stats. § 21–3211. The statute reads,

(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.

(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.

© Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.

And the court concluded that while this allows self-defense that involves an actual attack on the attacker - for instance, hitting, shooting, or stabbing the attacker - it does not allow self-defense that merely involves a threat of violence against the attacker.

I think the dissent is right to say that “force” can reasonably be read as including “constructive force” such as threats, especially in light of the substantial American legal tradition of reading force this broadly (and despite the fact that other Kansas statutes generally do say “force or threat” or some such). And this is especially so because, as the dissent points out, the result is absurd: Restraint in the use of defensive violence is rewarded by criminal punishment. I believe courts should generally read statutes as written, but the should also read their terms against the backdrop of the legal rules that help define these terms, and principles such as the rule of lenity, and the presumption against readings that produce absurd results.

 

[doctruptwn]

Doctruptwin, the decision according to the article was regarding section 3211, not 3213. Volokh as usual provides good commentary:

I see what your getting at since we have been hacking over this, over the weekend. We have decided that technically this, is a problem on a number of levels because it would technically do several thing 1. Make actions of LEO illegal; "Stop or I'll shoot" 2. Since the law itself has a penalty section, that constitutes a threat in the law itself making it a threat of punishment, therefore making itself illegal.

 

[mons meg]

So how many of those Court members were Sibelius appointees?