Defending Yourself Against Attack by Threatening Force Is a Crime in Kansas

[Casimer]

There's been an interesting ruling by the Kansas Supreme Court regarding the legality of threats to use force where the actual use of force is permitted for the same circumstances.

from the blog, The Volokh Conspiracy..

http://volokh.com/2009/10/23/defending-yourself-against-attack-by-threatening-force-is-a-crime-in-kansas/



Defending Yourself Against Attack by Threatening Force Is a Crime in Kansas

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.

continued...

The Rule of Lenity holds that ambiguities in the definition of statutes should be resolved in favor of the defendant in light of legislative intent.

[Christchild]

Well, in Kansas, I'd be a criminal. I'm an American and will NOT allow someone to do me harm, just to try to keep myself out of jail.

Jail, or possibly dead??? Hmmm......... I choose survival...As a GoodHearted American.

[javabum]

I agree with you Christchild...When it comes to me or them,it is them every time,with out hesitation.

[Christchild]

At's a Roger, JavaBum!

If Survival was a Crime, we wouldn't have made it this far.

If Fighting for What's Right were a "Crime", Our Heritage and History would look alot different.

I won't change it just because some UnAmerican Anti says "this" and "that" is a Crime. Pfff! Give Me a Break.

[javabum]

I have a wife and 2 daughters....hell ya i am doing what it takes to keep them safe....Even if it means going to jail.That's my job as a husband and a father.
We are no different than Law Enforcement trying to make it home every day safe.

[Christchild]

That's a Fact, Bro.

And this place is getting worse all the time. Times change, people change.

You can't Fight Fire with Wads of Toilet Paper...

Survival: Act Now, Talk Later......If there's anything to be said.

[Edward429451]

They can only kill us once. the others see and moral suffers. The friendlys see and moral grows.:D

Do what you have to do.

[Christchild]

Amen.

[Edward429451]

Thanks bro. It feels good to have fellow Americans of like mind around...

Amen indeed.:)

[Lost Sheep]

I think I understand the first post as saying, "use of force when justified is perfectly fine, but the THREAT of that (justifiable) level of force is to be held as criminal."

But posts 2 through 9 seem to be saying "I will use whatever force is necessary to protect me and mine".

Again, Kansas Supreme Court says defending yourself and yours is OK, But telling an attacker that you will defend yourself with force as necessary is not OK.

I guess that means if you draw your gun and that scares off an attacker, you had better make sure to shoot.

Were these judges raised in Wonderland? (Lewis Carrol, Through the Looking Glass, or Alice's Adventures in Wonderland)

Absurd is a good word, but does not go NEARLY far enough. But it rhymes. (t***)

Lost Sheep

I'm goin' to bed. The day cannot possibly get any more weird.

[Christchild]

After LostSheep's post, I went back and read the OP again.

Now, I'll always stick to my previous posts, but the OP does look like it's refering to the Threat of SD, not the Physical action, against an attacker. Hmmm...

If I feel it's necessary to Verbally Threaten a possible/would be attacker, I'm going to do that, for all reasons that would lead to an outcome of NOone getting physically harmed, but, in other cases, whatever that may be, I'll act according to what the situation looks like.

The new Kansas Law looks like some more B.S. that someone came up with, that's got too much time, and not enough Real World experience on their hands...

[OldMarksman]

The court ruling was just published, but all it does is restate what the law says, and the law was codified in 1995.


Here's the principle:

In interpreting a statute, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The intent of the legislature is to be derived in the first place from the words used. In determining whether a statute is open to construction or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous language.

When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.


http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2009/20091023/97323.pdf

Here's what the relevant law says, verbatim:

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.

Is it plain and unambiguous? I think so.

Is it patently absurd? I think so.

So, that's the way it is--until the legislature acts to amend the statute.

Does anyone condone the concept of legislation from the bench?

The new Kansas Law looks like some more B.S. that someone came up with, that's got too much time, and not enough Real World experience on their hands...

New law? Well, it is relatively new, but it has been in effect for more than a decade. However, I would conclude that the legislature was really just a little too rushed and didn't get it right the first time.

But it's a good thing they took the time that they did. What they were doing back in 1995 was establishing in law that a person under attack has no duty to retreat--a change to the centuries-old common law that became the basis of Kansas law originally.

Anti-gun people consider that change to be B. S.

[Bartholomew Roberts]

Well, the result is a ridiculous one; but on the other hand, the Kansas court interpreted the statute exactly as the legislature wrote it. In this case, the statute was badly drafted.

Because the statute only discusses "use of force" and not "use of force or threat", as several of the other statutes do, the Kansas court reached the decision that you are not entitled to a jury instruction on self-defense if no actual physical force is used and that if this law needs to be changed, it should be done by the legislature and not the courts.

Basically it comes down to what you feel the role of the court is - should the court reinterpret a badly drafted law by the legislature in order to keep it from affecting someone's life or should they make the legislature correct its own mistakes, even though people will get caught up by the poorly drafted law who arguably were not intended to be affected?

Either way, I can bet I know one of the legislative goals of the NRA in Kansas next year... The other amazing thing is that this statute has been on the books for over 13 years now and the issue has never come up before. I can't imagine it is because in 13 years, noone in the state of Kansas ever threatened the use of force in self-defense, so I am guessing that prosecutors have been very selective about applying this interpretation and that the prosecutor in this case felt there was a good reason to push the interpretation here.

[Al Norris]

To add to what Bart is saying, you simply can't take this case in isolation. That is, you must read what the case is about, before you criticize what the Court said (the decision is linked in the Volokh.com link).

The prosecutor, in this instance, held that the threat of deadly force, was not justified, was not self defense and was in fact, criminal.

Come on folks! The guys sister threatened to slap him. He threatened her with lethal force if she did.

[SunflowerAmmo.com]

As a Kansan, I will have to think about what I say before I use force to defend myself. It doesn't make much sense that I could verbally announce my intention to do bodily harm to an aggressor, that I feel is threatening my life, and be prosecuted but I am justified to use actual force. It's bad news for bad guys in the end. SunflowerAmmo.com (http://sunflowerammo.com)

[Chris_B]

What's the difference here between a "warning" and a "threat" to an intruder who approaches you in your home?

"Leave the premises now or I will shoot you dead"

Is that a threat, or is that a fair warning? I'm not joking. What constitutes the threat, and what constitutes a warning. I can see legal action stemming from the act of saying "I will kill you if you continue to attack me", and I can see legal action stemming from shooting to kill without uttering a warning.

[OldMarksman]

I can see legal action stemming from shooting to kill without uttering a warning.

Shooting to kill is certainly unlawful, with or without a warning.

Shooting when immediately necessary to (1) defend against imminent danger of death or serious injury, or in some places, to (2) terminate or prevent an unlawful, perhaps forcible entry of one's occupied or perhaps other places, depending upon the jurisdiction, or perhaps, again depending upon jurisdiction, to (3) prevent a forcible felony, can be legally justified. No warning is required. The attacker may die (statistically that's not highly likely, if a handgun is employed) or he may not, but shooting to kill is not the lawful objective.

I hope this helps.

[RDak]

To add to what Bart is saying, you simply can't take this case in isolation. That is, you must read what the case is about, before you criticize what the Court said (the decision is linked in the Volokh.com link).

The prosecutor, in this instance, held that the threat of deadly force, was not justified, was not self defense and was in fact, criminal.

Come on folks! The guys sister threatened to slap him. He threatened her with lethal force if she did.

Ok Bart and Al. Makes more sense now.

[Chris_B]

:) I'm not quite that naive. Close but not quite

I understand completely that using deadly force- warranted or not, ultimately lawful or not- will most likely get you arrested and that it can only legally be used in a narrow band of situations. Your explanation does not help however, as it sidesteps my question. I'm not asking about when deadly force is legally permissible

At what point does a warning become a threat. That is my question. By their nature, warnings are ultimatums- do THIS or suffer THAT consequence, here is your last chance to comply

A threat is a very similar thing- you'd better do THIS or I will do THAT to you, just try me

So what are the words that you're supposed to say that constitutes clearly a warning and not a threat

"Get off that woman you're harming now or I will shoot!"

Is that a threat, or is that a warning? Seems to me that's going to be called a threat

[RDak]

Chris, in my layman's opinion, it is impossible to give you a concrete answer on this one.

It is a subjective situation IMHO.

I guess you'd (reasonably) be safe to say, if the facts warrant it, "you're scaring me and I have a gun". Just state your honest feeling and finish by stating you have a gun. You know what I mean, "you're seriously hurting that woman and I have a gun...so stop it".

I mean, what else can we do??

That's about all anyone can really say because this type of question is so subjective IMHO.

[OldMarksman]

So what are the words that you're supposed to say that constitutes clearly a warning and not a threat

Sorry, I misread your question.

Based on the wording in the court's finding and on that of the dissenting opinion, I do not see a great distinction in terms of whether one would be entitled to a jury instruction on self defense in Kansas. Were you thinking about the crimes outlined in the original conviction?

The ruling says that for a self defense instruction to be properly given, force must actually be used. In the dissent, constructive force should include the threat of force.

Based purely on lay interpretation of the wording of the written statutes (and not taking into account case law), it's not clear that the Kansas finding on the jury instruction necessarily differs from the situation in some other states. Where I live, I cannot "exhibit a weapon in a threatening manner" except when engaged in a lawful act of in self-defense--but the defense of justifiability statute refers to the use of deadly force--same as in Kansas. There are exceptions. The law in Texas was amended some time ago to permit the threat of deadly force when necessary in cases in which the use of force is lawful. In Arizona, until recently, one could be convicted of aggravated assault for drawing a gun or perhaps even referring to its existence before imminent danger actually existed--so they changed the law.

So-- in various other states (Arizona and Texas being among those excepted), would a defendant who had not used deadly force be entitled to a jury instruction on self-defense? Would some other defense apply?

The question to me is, is that really different in various other jurisdictions? Is the self defense statute the operative avenue, or is there some other avenue based on simple necessity that was not present in the Kansas case?

Probably a good thing for everyone to know the answer.

Whatever the answer, the initial trial court case should make it clear to all that the weapon is a last resort.

As Antipitas points out, it would be very difficult for most people to justify a threat or anything else in the instance of the Kansas case at hand.

For Kansans, the words in the dissent would seem a little unnerving (essentially, "OK to kill but not to threaten").

For that reason, I'd wager that the law will be changed, and I'll also opine that the defendant would be in the same situation had it been done long ago.

[Al Norris]

I fully agree OldMarksman.

Anyone wanna bet that the Kansas legislature changes the wording of the statute to render this court decision moot?

[Chris_B]

For Kansans, the words in the dissent would seem a little unnerving (essentially, "OK to kill but not to threaten").

Exactly

[Bartholomew Roberts]

Anyone wanna bet that the Kansas legislature changes the wording of the statute to render this court decision moot?

Well, if anyone took you up on that bet, now is the time to collect. According to the Volokh Conspiracy (http://volokh.com/2010/04/20/kansas-now-allows-threat-of-deadly-force-in-self-defense-and-not-just-use-of-such-force/), the Kansas legislature has amended the law to make clear that threats of force can qualify as justifiable self-defense and the Governor signed the bill yesterday.

[DogoDon]

Good to see that reason prevailed in Kansas. The new statute now provides:

(1) ‘‘Use of force’’ means any or all of the following directed at or
upon another person or thing: (A) Words or actions that reasonably con-
vey the threat of force, including threats to cause death or great bodily
harm to a person; (B) the presentation or display of the means of force;
or (C) the application of physical force, including by a weapon or through
the actions of another.

But it's absurd that the legislature had to explicitly define "use of force" just to prevent courts from reaching illogical results.

DD

P.S. Part of the blame here probably lies on the legislature, though. As the Kansas Supreme Court noted in its opinion, elsewhere the legislature had been careful to distinguish between "use of force" and "threat". For example, KSA 21-3213 (defense of property) reads:

"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."