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October 23, 2009, 10:17 PM | #1 | |
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Defending Yourself Against Attack by Threatening Force Is a Crime in Kansas
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/defendi...ime-in-kansas/ Quote:
Last edited by JohnKSa; October 24, 2009 at 01:12 AM. Reason: Removed SW inserted asterisks... |
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October 23, 2009, 10:33 PM | #2 |
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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. |
October 23, 2009, 10:47 PM | #3 |
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I agree with you Christchild...When it comes to me or them,it is them every time,with out hesitation.
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October 23, 2009, 10:54 PM | #4 |
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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. Last edited by Christchild; October 23, 2009 at 11:00 PM. |
October 23, 2009, 11:00 PM | #5 |
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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.
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October 23, 2009, 11:04 PM | #6 |
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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. |
October 23, 2009, 11:10 PM | #7 |
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They can only kill us once. the others see and moral suffers. The friendlys see and moral grows.
Do what you have to do. |
October 23, 2009, 11:15 PM | #8 |
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Amen.
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October 23, 2009, 11:44 PM | #9 |
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Thanks bro. It feels good to have fellow Americans of like mind around...
Amen indeed. |
October 24, 2009, 02:17 AM | #10 |
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Am I reading wrongly?
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. |
October 24, 2009, 03:23 AM | #11 |
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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... |
October 24, 2009, 07:54 AM | #12 | |||
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Old News or New?
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: Quote:
Here's what the relevant law says, verbatim: Quote:
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? Quote:
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. |
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October 24, 2009, 10:21 AM | #13 |
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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. |
October 24, 2009, 10:51 AM | #14 |
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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. |
October 24, 2009, 09:53 PM | #15 |
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What do I say?
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
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October 25, 2009, 03:55 AM | #16 |
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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. |
October 25, 2009, 08:04 AM | #17 | |
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Quote:
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. |
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October 25, 2009, 09:36 AM | #18 | |
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Quote:
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October 25, 2009, 09:48 AM | #19 |
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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 |
October 25, 2009, 10:42 AM | #20 |
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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. |
October 25, 2009, 11:13 AM | #21 | |
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Quote:
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. Last edited by OldMarksman; October 25, 2009 at 03:26 PM. Reason: Typos |
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October 25, 2009, 11:49 AM | #22 |
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I fully agree OldMarksman.
Anyone wanna bet that the Kansas legislature changes the wording of the statute to render this court decision moot? |
October 25, 2009, 11:55 AM | #23 | |
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April 21, 2010, 12:31 PM | #24 | |
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April 21, 2010, 01:00 PM | #25 |
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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." Last edited by DogoDon; April 21, 2010 at 01:06 PM. Reason: supplemented my response |
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