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.
(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.
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.
Moreover, note the implications of this ruling for neighboring sections: § 21–3215, for instance, provides that “A law enforcement officer, or any person whom such officer has summoned or directed to assist in making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of any force which such officer reasonably believes to be necessary to defend the officer’s self or another from bodily harm while making the arrest.” Presumably then police officers remain criminally liable if they say “Stop, or I’ll shoot!,” though not when they actually actually shoot. Does that make sense?
But in any event, whether or not the Kansas Supreme Court rightly interpreted the statute, the Kansas Legislature should repair this problem as soon as possible. Likewise, pro-self-defense groups in Kansas should make sure that this is on the Legislature’s docket.
Thanks to How Appealing for the pointer.
fwb says:
Shoot first. Ask questions later.
I’m so glad that judges will face a greater judgment BECAUSE of their actions.
Tiocfaidh ar la!
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October 23, 2009, 12:37 pmcjwynes says:
The defendant’s story was obvious BS and the facts weren’t very good for his self-defense theory even if he’d gotten the jury instruction. He threatened deadly force against a woman who he claims he thought might slap him. I can’t believe even a criminal defense lawyer could present that theory with a straight face, and certainly not to a jury in Kansas of all places.
I think people might try to sex this up by predicting that some guy will get charged for brandishing a knife to scare a burglar away from his family. Any prosecutor who took this decision as a green light to charge somebody for something like that would have proven himself incapable of reading opinions, reading juries, and reading voters.
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October 23, 2009, 12:51 pmJust Dropping By says:
I’m trying to figure out why there doesn’t appear to be any discussion of the rule of lenity by either the majority or the dissent. Does it not apply to affirmative defenses?
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October 23, 2009, 12:55 pmreadery says:
Is law enforcement currently legal in Kansas?
The business of law is to threaten people with the use of force if they do or don’t do certain behavior. It’s all well and good with the State of Kansas if the police simply haul people into jail if they commit conduct the police don’t like, but when when they give notice before doing so, the State of Kansas has a problem. Notice, after all, is nothing more than a kind of threat. (“Any person who does X shall be imprisoned...” — if that’s not a threat to use force, nothing is.)
On the other hand, the U.S. constitution requires giving notice, i.e. making threats, before laws can be enforced.
Since the U.S. constitution requires making threats before laws can be enforced, and the Kansas Supreme Court has told us that State of Kansas forbids making threats before the lawful use of force, the inexorable logical conclusion appears to be that law enforcement is now illegal in the State of Kansas.
On the other hand, since the do-not-threaten-force statute itself threatens force in its punishment section, it would appear to be itself illegal and itself a crime. Perhaps it’s managed to void itself?
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October 23, 2009, 1:03 pmBama 1L says:
The trial court denied the instruction on the ground the defendant hadn’t shown sufficient evidence to get it before the jury. Even accepting his version of the facts, it couldn’t accept his argument that fear of a slap would justify a threat of deadly force. The appellate courts then both affirmed on a different basis, the statutory interpretation here.
I think the prosecutor, the judge, and the jury got this one right. It’s a shame the appellate courts went with the “easy” statutory affirmance rather than the “hard” fact-based one.
I also think this is a case where you would get a better result from a “liberal-activist” court interested in public policy and willing to add to statutes than from a “conservative-textualist” court that insists every single word–even the missing ones–must mean something. (Actually, I think most cases are like that.)
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October 23, 2009, 1:06 pmepeeist says:
cywynes: Thanks for the info. The court was still wrong.
If the defendant’s story was obvious BS, that’s something that the trial court dealing with credibility could address (“the defendant raised the defence of self-defence, his testimony was not credible and even if he was to be believed, he did not reasonably believe the threat of deadly force was necessary — guilty”). The KSC should NOT, merely because this guy might be a liar, interpret the statute in such a ridiculous way that will be binding on lower Kansas courts.
Such as, a guy holding your wife hostage with a knife, you have a gun and say “let her go or I’ll kill you”, according to the KSC you are guilty and cannot assert self-defence (or in this case, defence of a third party).
If you just shoot the guy (which might be deserved, but the point is doing so risks your wife’s life also), no harm no foul. Except for your dead wife who you accidentally shot.
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October 23, 2009, 1:07 pmJoe says:
Presumably then police officers remain criminally liable if they say “Stop, or I’ll shoot!,” though not when they actually actually shoot. Does that make sense?
I’m not sure if this follows especially with the statement that they “need not retreat or desist from efforts to make a lawful arrest” ... saying “stop or I’ll shoot” seems to me such an “effort.”
Anyway, I see the dissent’s point, but the statute also references “reasonably believes that such conduct is necessary” ... as applied, the person here probably would still lose. This underlines the value of narrowly deciding issues of this nature.
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October 23, 2009, 1:16 pmgeorge weiss says:
btw i would submit there is no rational basis for the distinction here when applied in this clearly opposite manor and his conviction violates the equal protection clause...
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October 23, 2009, 1:17 pmBama 1L says:
Isn’t lenity an ambiguity doctrine? Under the majority’s reasoning, the statute is not ambiguous.
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October 23, 2009, 1:20 pmBobDoyle says:
I love Readery’s response! Broadly, this ruling simply seems bizarre. What am I missing?
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October 23, 2009, 1:21 pmNoah David Simon says:
precedent is so important. take it away and I’ll kick your ass
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October 23, 2009, 1:26 pmBama 1L says:
You’re assuming we tolerate these legal threats solely because of a self-defense rationale.
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October 23, 2009, 1:30 pmLTEC says:
Does anyone know how likely it is that an accidentally badly written law will ever get fixed? (Another example are those laws that accuse a 15 year old girl of creating child pornography when she takes a nude picture of herself.) Do our lawmakers care?
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October 23, 2009, 1:30 pmSteve says:
Back when we discussed the Supreme Court’s Ledbetter decision, there were those who thought the courts ought to apply some common sense, and there were those who thought the courts should apply the law strictly as written and leave the task of amending a poorly drafted statute to the legislature.
These are both perfectly respectable points of view, but I sure hope everyone is maintaining a consistent position from one case to the next. I would hate to think anyone is in favor of letting the courts apply common sense only when that common sense happens to correspond with their personal preference.
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October 23, 2009, 1:36 pmVaio Lynn says:
Even if the majority’s reading of the statute is right, that statute is only a permissive statute. The statute does not say that force is not allowed in any other situation.
Has Kansas adopted the common law as a background rule, as many states have? Even if not, the courts can read a self-defense gloss onto the statute if not contrary to express statutory text.
To be sure, the expressio unius canon cuts against such a common law rule or judicial gloss. But that is just a tool of interpretation — overriden here by the rule against arbitrary results. Was this argued at all? Why not?
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October 23, 2009, 1:39 pmsoccer dad says:
So HRW has some legislative input in Kansas?
:-)
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October 23, 2009, 1:49 pmwill47 says:
The dissent had to strain pretty hard to find an ambiguity. I dislike it when courts try so hard to save legislatures from themselves. Do these sorts of statutes completely pre-empt common law as it existed prior to their enactment? It seems to me that there might have been a defense to assault, recognized at common law, that applied where it was necessary to defend against the imminent use of force. While the legislature didn’t put that sort of provision into the statute, I’m not sure such can be read as rejecting the common law.
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October 23, 2009, 1:50 pmNoah David Simon says:
from reading some of the comments I am garnering that they changed precedent because the court didn’t like a man threatening a woman with physical threats. this is where the law can’t be clockwork. they should not of had to change the law to contain this hole. it was a matter of proportion. if a violent person is not a threat then that changes everything. other actions could of been done. I’m not saying that the woman could be reasoned with, because I’m going to assume she was unreasonable. Given a woman who is out of line and violent is a situation men deal with all the time, but is not written into the police record usually. I don’t know how many domestic abuse cases that I have heard of where the woman initiated the violence and the man was arrested. one really needs to get down to intent and proportion here. is the punitive action defending oneself from violence necessary force to resolve the issue or was it punitive itself. it is sad that they had to rewrite the law because this is a situation that happens all the time
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October 23, 2009, 1:52 pmNoah David Simon says:
@soccer dad! lol... exactly!
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October 23, 2009, 1:54 pmCheckEnclosed says:
How have Kansas courts interpreted/construed “force in cases of forcible sexual assualt, robbery, extortion, etc.?”
Of course, if the statutes for those offences say “force, or threat of force”, then the court is caught between rules of construction requiring it to pay attention to the differences in words used by the legislature, and to avoid absurd results.(It should have avoided this one.)
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October 23, 2009, 1:56 pmPintler says:
Could it be worse that that? An officer (or anyone else) is in a situation that clearly justifies self defense, e.g. the perp has already opened fire. She draws her weapon, fully intending to return fire. The perp sees the gun and before she can fire drops his gun and puts his hands in the air.
If she shoots him, she is in trouble for shooting after the threat ceased. If she doesn’t, she can’t claim she acted in self defense.
No DA is going to charge this case, but more ambiguous circumstances still lead to the same dilemma.
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October 23, 2009, 2:00 pmDuffy Pratt says:
The alternative to this outcome would occur by applying the rule of construction:
“The legislature couldn’t possibly have been this stupid.” But in this case, it appears that the KSC knew better about the intelligence of the legislature...
Also, does anyone think that an injustice was done here?
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October 23, 2009, 2:13 pmJG says:
Under the majority’s reading, would a person who reasonably believed that “deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person” be entitled to a self-defense instruction if he or she in fact used less-than-deadly force against the assailant? Or would the majority’s plain language approach require that “deadly force” have been used for the person to be entitled to a self-defense instruction?
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October 23, 2009, 2:18 pmguest again says:
“were it not Azizzes time, I would smote you”
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October 23, 2009, 2:19 pmtjvm says:
If you’re going to proceed from the premise that “policy making is the province of the legislature,” as the court did here, I think you need to make a good-faith effort to discern what policy the legislature is actually pursuing. One of the statutes cited by the court permits the use of the threat of force (in addition to physical force) to protect property. So, under the court’s ruling here, a resident of Kansas has a greater right of self defense when defending his iPod, than he does when defending his life. It seems very unlikely that this is the policy intended by the legislature.
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October 23, 2009, 2:51 pmbirdlander says:
A Kansas man was recently convicted of aggravated assault for pulling a gun on a pair of men who pushed his girlfriend to the ground and were threatening her outside a bar. He asked the judge for a defense of another instruction, but the judge refused because he thought it was excessive force. After Hendrix, it’s not even excessive force, he simply isn’t entitled to the instruction as a matter of law, because he didn’t use actual force.
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October 23, 2009, 2:52 pmSeaDrive says:
Not much judicial empathy for persons under threat.
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October 23, 2009, 3:05 pmSuperSkeptic says:
Steve, you’re trying to make it look like the textualists are cherry-picking here, but this isn’t the case to point that out. This is an absurdity: a self-defense statute protecting the use of force surely covers the lesser threat of force, unless you are in ass-backwards-land like Kansas.
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October 23, 2009, 3:07 pmSteve says:
Well, I guess your use of the word “surely” has to trump the actual words of the statute!
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October 23, 2009, 3:14 pmPersonFromPorlock says:
Oh, well, at least it’s not bad law.
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October 23, 2009, 3:26 pmAJK says:
No, but a different statute says that threatening the use of force is illegal. The defendant was then arguing that he was justified under the statute quoted here.
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October 23, 2009, 3:26 pmSuperSkeptic says:
Since you mention the statute, section A 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.
The statute is designed to give people discretion to proportionally use force to defend themselves. Do you disagree with that? It follows logically that if someone has given you the power and permission to hit another person to defend yourself that you may also, faced with those circumstances, say to them first, in order to insure you are correct in your belief that force is reasonably necessary to defend yourself or in order to prevent/deter the use of any force by that person against you in the first place, “do not use force against me or I will be compelled to return force in kind to defend myself.” Do you disagree with that logic? If you agree with those two points, then you should agree with those of us in dissent. If not, explain why you do not.
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October 23, 2009, 3:26 pmEinhverfr says:
Absurd results doctrine?
I.e. I reasonably believe I have to defend myself, so I can punch someone in the face, but I can’t inform them of my intent first (“Back off or I will punch you in the face”)?
That seems really bizarre.
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October 23, 2009, 3:30 pmFlash Gordon says:
This may be a variation of the maxim “Hard Cases Make Bad Law.” I think “Bad Cases Make Bad Law” as well.
Under the facts of this case the defendant could easily have been found guilty, IMHO, even if a self defense instruction had been given. It seems to be somewhat arguable as to whether he could have reasonably believed that he faced an imminent threat of death or serious bodily injury from his sister.
If it is reasonable to interpret the facts of this case in that manner, and I believe it is, I wonder why the Supreme Court didn’t simply hold that the trial court was correct in refusing the instruction because there was no credible evidence that a deadly force response to the sister’s action, much less a threat of deadly force, was justified.
They could have upheld his conviction without screwing up the law for later cases.
Of course, it is the trial judge that might have kept this from going wrong by being more explicit on why the instruction was refused. If the trial judge had ruled that under any version of the facts offered by brother or sister, brother did not offer any evidence to support his theory of self defense and no rational fact finder could conclude that he had a reasonable belief he was facing an imminent act of deadly force from sister.
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October 23, 2009, 3:49 pmbirdlander says:
But that’s exactly what the trial judge’s ruling was. Except that there was evidence — the defendant’s own testimony, which is good enough in Kansas to get an instruction if you request it.
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October 23, 2009, 3:56 pmVisitor Again says:
Someone above mentioned making an equal protection argument here. What about making a due process argument, based on Eugene’s work? There’s no right more basic than the right to defend yourself. If the constitutional argument had any force, it might have pushed the court into deciding other than it did on the statutory ground. But probably not in this case since a court that insists on a literal reading of a statute despite absurd consequences is unlikely to take seriously an argument that the due process clause protects a right of self-defense.
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October 23, 2009, 4:36 pmSteve says:
It follows logically that if someone has given you the power and permission to hit another person to defend yourself that you may also, faced with those circumstances, say to them first, in order to insure you are correct in your belief that force is reasonably necessary to defend yourself or in order to prevent/deter the use of any force by that person against you in the first place, “do not use force against me or I will be compelled to return force in kind to defend myself.” Do you disagree with that logic? If you agree with those two points, then you should agree with those of us in dissent. If not, explain why you do not.
I agree with the proposition that a court should use logical reasoning to determine whether its interpretation of a statute leads to an absurd result, as occurred in the Ledbetter case. There are those who do not believe the court should apply its own logic to go beyond the words of a statute and should instead allow the legislature to amend the law if it deems necessary, and I would expect those people to agree with the result in this case.
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October 23, 2009, 4:47 pmreadery says:
I would go through all the Kansas statutes prohibiting doing various things with force — rape, robbery, etc. If they don’t specifically mention that it is also illegal to do these acts with threat of force, then presumably it is legal to accomplish these acts with threat of force.
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October 23, 2009, 5:45 pmNoah David Simon says:
we have a serious cultural problem when we can’t allow the police to articulate, “stop or I will shoot” because a woman felt a man had a legal advantage.
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October 23, 2009, 5:57 pmNickM says:
There was nothing absurd about the result in the Ledbetter case. The question there was whether paychecks count as new discriminatory acts if they are all lower due to past discrimination. The majority said no, the dissent said yes.
Your sophistry in service of the ATLA agenda is annoying.
Nick
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October 23, 2009, 5:59 pmSteve says:
There was nothing absurd about the result in the Ledbetter case.
Right, there’s nothing absurd about expecting someone to know that they’ve been a victim of pay discrimination within 30 days from the initial decision, because of course everyone in America knows the salary of their co-workers and can instantly determine if they’ve been mistreated.
The reason the decision caused such an uproar is that most Americans know from their own experience that salaries of co-workers are a private matter and that it’s completely absurd to expect everyone to know within 30 days whether they’re getting screwed in relation to their co-workers. Seldom have I seen a more ridiculous reading of a statute — although this Kansas case might take the cake.
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October 23, 2009, 6:07 pmNickM says:
That’s not what the Court ruled the law meant. You know better.
Lily Ledbetter didn’t even argue for tolling until discovery of the paycheck differential, because she waited for several years after she learned of it to file suit.
Shame on you for misrepresenting the decision.
Nick
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October 23, 2009, 6:40 pmOperationCounterstrike says:
So, don’t threaten the attacker. Kill him without warning.
Problem solved!
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October 23, 2009, 8:07 pmInstapundit » Blog Archive » KANSAS SUPREME COURT: It may be legal to kill an attacker, but not to threaten him…. says:
[...] KANSAS SUPREME COURT: It may be legal to kill an attacker, but not to threaten him. [...]
Kansas Supreme Court Blog says:
I also think this is a case where you would get a better result from a “liberal-activist” court interested in public policy and willing to add to statutes than from a “conservative-textualist” court that insists every single word–even the missing ones–must mean something. (Actually, I think most cases are like that.)
Bama 1L, you are obviously unfamiliar with our Supreme Court. While such discussions are generally full of overwrought rhetoric you will find that a great many Kansans would describe the KSC as the epitomy of a liberal-activist court. Some of that is, as I say, overwrought (most of their workload is dull and depressing — seemingly endless drug murders from Kansas City, Kansas and Wichita for instance), but there is no smoke without fire.
This court (so deferential to the Legislature here) is the same one which held that the Legislature HAD to increase spending on schools. They may get another chance to think about that as the resulting deficit will probably lead to cuts in Education spending next year.
Reasonable people can of course disagree about the validity of that decision, but I think all can agree that is hardly the signature ruling of a Conservative Court.
For what it’s worth, the author of this opinion was recused in that case...after he was caught poring over school budget spreadsheets with the Speaker of the State House and the Majority Leader of the State Senate.
Four of the seven Justices were appointed by Kathleen Sebelius.
I also noticed that where the opinion refers to the idea of these things being up to the Legislature it cites the State v. Prine case. That was a 6–1 decision where they held that evidence that the defendant liked to perform sex acts on small girls could not be admitted because the particular sex acts involved in that case were slightly different to the ones in the previous cases. The Legislature promptly amended the law, all but unanimously, to undo that decision.
Finally, I should note that Kansas has the Castle Doctrine in place. I would have to go and look it up to see how it applies outside the home to get a sense of how this interacts with it. I think that if this decision does hurt self defense rights, we can safely expect the Legislature to fix it when it returns to Topeka in January.
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October 23, 2009, 9:50 pmWtfo says:
It’s preferrable for the burglar not to survive in the first place. Dead criminals don’t sue and show up in court as sympathetic witnesses.
Generally speaking, if you need to deploy the weapon you need to USE it. There are few situations where the safest course of action for YOU is to draw a weapon and issue verbal commands.
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October 23, 2009, 10:09 pmDoc Merlin says:
This ruling is absurd, absolutely absurd. I hope it gets appealed and self defense gets declared a constitution right under the 10th, as per the dicta in Heller.
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October 23, 2009, 10:42 pmTim says:
I wonder if this caselaw makes it illegal for the police to draw their firearms when making a felony stop.
Obviously that is nothing less than threatening the use of force, because it is unlikely with the overwhelming force of a felony stop that any suspect is going to do anything but comply.
In that case, it seems by your characterization of this opinion, there’s no justification for threatening this force.
Are we going to start locking up cops for drawing down on unarmed people or anyone else they threaten force against where they would not be justified in using it?
I think we should have started prosecuting cops for this a long time ago (if I would be arrested for drawing down in that instance, cops should be as well) but I highly doubt that is what was intended by this opinion.
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October 23, 2009, 10:49 pmTweets that mention The Volokh Conspiracy » Blog Archive » Defending Yourself Against Attack by Threatening Force Is a Crime in Kansas -- Topsy.com says:
[...] This post was mentioned on Twitter by Xavier, J Blanks. J Blanks said: KS Sup. Ct.:If attacked, you can kill a guy. But, if you warn him and he backs off, you have committed a crime. http://tinyurl.com/yhjbx9v [...]
Daily Pundit » Braying says:
[...] The Volokh Conspiracy » Blog Archive » Defending Yourself Against Attack by Threatening Force Is ... [...]
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October 23, 2009, 11:43 pmCorky Boyd says:
Many years ago my father who lived in an upscale area of Washington DC, grabbed a shotgun after my mother said she heard some strange noises. He didn’t really expect anything, but to his surprise there was a burgler attempting to break into the house. He didn’t know whether the intruder was armed or not.
In his haste he had failed to load the gun, so he figured his only option was to scare the dickens out of the intruder until the police arrived by threatening to blow his head off. It worked.
I guess in today’s legal atmosphere, he would be the one going to the pokey and the intruder the victim. By what sophistry do judges come up with such decisions?
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October 23, 2009, 11:50 pmmemomachine says:
Hmmmm.
*shrug* I’ve had an extremely low opinion of judges for years. This certainly reinforces my opinion.
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October 24, 2009, 12:23 amYou can’t make this stuff up!! : 43251 says:
[...] can’t make this stuff up!! October 24th, 2009 Leave a comment Go to comments http://volokh.com/2009/10/23/defending-yourself-against-attack-by-threatening-force-is-a-crime-in-ka... Share and [...]
John C. Randolph says:
Oh, so if there’s an intruder in your house and you’re within this court’s jurisdiction, be sure you kill him instead of scaring him. Thanks for clearing that up, judges!
This is one more example of many that credentials don’t indicate intelligence.
–jcr
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October 24, 2009, 1:22 amtraveler496 says:
If legislators ever get around to fixing this absurd (at least, absurd-as-applied) law, can they craft the new legislation so as to automatically release anyone unfortunate enough to have been imprisoned due to the absurd law? Or would some absurd ex post facto restriction prevent this?
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October 24, 2009, 1:37 amAmerican Psukhushka says:
Highly irrational and rights infringing decision. It possibly violates the state’s own self-defense doctrine. It certainly violates self-defense doctrine in general, since proportionality dictates that if one can neutralize a threat with the least amount of force — in this case mentioning the use of force — one should do so. So the state is actually encouraging the escalation of violence or even unnecessary violence by preventing the individual from using the mention of force as a deterrant.
I suspect there are other defenses to an irrational decision and argument like this as well. For example someone engaging in a violent act — getting ready to break into your dwelling, rape you, etc. — is already likely guilty of some lesser offense or offenses: threat, assault, trespassing, burglary, conspiracy, attempt, stalking, menacing, etc. So speech defenses like “fighting words”, etc. may likely come into play.
Also, I suspect the wording of the alleged threat might come into play: “If you break into my dwelling I’ll be authorized to use deadly force.” or “If you’re going to try to rape me again I’ll be authorized to kill you.” is a lot different from a simple “I’m going to kill you.” with no explanation. In the former two statements you would be reminding the assailant that you would be employing violence authorized by law rather than illegal violence.(Threats usually involve illegal violence.) Past or overall circumstances would likely come into things as well — if an assailant was falsely imprisoning someone and raping them repeatedly it is likely that the imprisonment itself could be considered one long, ongoing felony battery.(With the rapes and other crimes occurring with the imprisonment.)
In any case this is a very irrational and unwise decision.
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October 24, 2009, 2:19 amMike McDougal says:
Is that supposed to be comforting?
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October 24, 2009, 2:19 amLoboSolo says:
It was the Kansas courts that ruled that the crimes of the mother do matter when it comes to making the father pay child support. It was the case of mother committing statutory rape and the Kansas court ruled the that the victim (the underage father) was liable despite the fact that the child was the result of a criminal act by the mother.
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October 24, 2009, 3:03 amstrcpy says:
I assume it is a similar idea as in Tennessee Carry Permits. This is you, as a citizen, are not allowed to make a “stop” as you do not have the training. You are, however, able to defend your life and well being. As such the *only* time you are allowed to use your weapon (in this case concealed — but same holds true of non-concealed) is when that is the case. You draw it when you intend to kill, not before. This is to try and prevent situations to escalating from what would normally be an argument to lethal — and I relatively agree.
Indeed, since you are allowed to defend you life once you expose a weapon you open yourself up to “defense” too — if you are shot — well you had a gun pulled and were threatening someones life. So, again, the moral of this story is to *not* expose said weapon until/unless you are immediately threatened.
As such I rather agree with the law — you do *not* want to empower you normal citizens to be able to pull a gun and say “halt or I’ll shoot!”.
However, our laws are also supposed to be sane. They have never truly been a pure computational like “if then” contract. There are too many what we in the software world would call “edge cases”. Because computers are not capable of that type of thought most of our time is actually spent making sure all the edge cases work out — we may literally have half a million lines of code with less than 100,000 doing the actual problem and you still have bugs and miss special cases. We have judges and juries that are supposed to figure out what was meant and apply that.
In this case it is obvious that a lower than the maximum legal force was applied and should be just fine. It is too hard to describe all the edge cases in ones like this for a fully comprehensive law — that is why we have humans in charge of the process. If we are to seek to be pure application of logic then I suggest we replace our judges and juries with computers — they are better at that type of thing anyway and software engineers are trained to deal with that complexity. Not only that but it would be cheaper.
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October 24, 2009, 3:35 amRicardo says:
How does this square with the argument that the statistics concerning the number of defensive uses of firearms are all wrong because they only count incidents when the weapon is fired? Using this argument along with your logic, there are lots of cases of firearm misuse out there.
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October 24, 2009, 4:17 amATLien says:
This is law and lawyers have come to. You should all be ashamed.
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October 24, 2009, 5:14 amSDN says:
The Kansas Supreme Court has qualified for the Order of the Plexiglass Bellybutton, First Class.
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October 24, 2009, 7:36 amRichard of Oregon says:
I’d hate to be the prosecutor who is trying to get this by a jury.
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October 24, 2009, 7:39 amAmerican Psukhushka says:
strcpy–
As such the *only* time you are allowed to use your weapon (in this case concealed — but same holds true of non-concealed) is when that is the case. You draw it when you intend to kill, not before. This is to try and prevent situations to escalating from what would normally be an argument to lethal — and I relatively agree.
In the examples I listed — someone breaking into your dwelling to assault you, someone trying to rape you — deadly force would have already been authorized. So someone telling the assailant that they would be killed if they persisted wouldn’t be an escalation of an argument, it would be taking a step involving less force to try to defend oneself before resorting to authorized deadly force. Trying to criminalize an effort to resolve a dangerous situation without resorting to authorized deadly force seems unwise, since warning an assailant would seem to prevent unnecessary violence and deaths in a signficant number of situations.
A practice like that would also violate the principals of minimality and proportionality, which are often used in the formulation of self-defense doctrine. Minimality meaning the use of as little force as possible to defend oneself and proportionality meaning an amount of force necessary to neutralize a threat.
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October 24, 2009, 8:33 amBart Hall (Kansas, USA) says:
In Kansas, here’s where we get our Supreme Court:
http://www.kscourts.org/Appellate-Clerk/General/Supreme-Court-Nominating-commission.asp
Here, more or less, is the current Nominating Commission:
http://kansasmeadowlark.com/2009/01/07/political-profile-of-kansas-supreme-court-nominating-commission/
Scroll down and notice the overwhelming contributions to Democrats, and particularly Sebelius herself. Then you can see what sort of people they offer to the governor to choose:
http://kansasmeadowlark.com/2009/01/08/sebelius-picks-obama-donor-for-kansas-supreme-court/
Interesting how his law firm got well over a third of a million dollars in business from the state in return for their contribution to Sebelius and her allies.
Of the seven justices, four were appointed by Sebelius (Democrat), two by Bill Graves (RINO), and one by Joan Finney (Democrat).
Kansas is in desperate need of a Senate confirmation process for our Justices, but that’s unlikely to happen soon.
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October 24, 2009, 9:16 ammatt c says:
the court’s reading of the statute is not apparent to me. the statute is literally silent as to the threat of force, but force means more that physical force and includes by implication lesser uses of force, including threats of the same. the court has reached a truly absurd and hyper-textualist result. all i can figure is that the court doesn’t know what force is. imagine for a moment, ordering a burger from a restaurant and the waitress brings you a meat patty without a bun–both a bun and a meat patty make a burger. both the threat of and physical use of force make force.
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October 24, 2009, 9:33 amBob from Ohio says:
No real crime in Kansas apparently. This is a he said/she said family dispute without any actual violence.
Its technically an assault of course but come on. This went to the state supreme court. What a waste of resources.
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October 24, 2009, 9:40 amMorning Links/Open Thread | The Agitator says:
[...] Supreme Court sets self defense policy of “shoot, don’t ask [...]
Kelly Ann says:
Um...I think Kansas was looking for the phrase a fortiari
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October 24, 2009, 11:12 amreadery says:
I consider myself a pretty strong textualist, and so far as I’m concerned thinking this result is in any way mandated by textualism is a bunch of malarky. The idea that either we let judges have free reign to say that “due process” prohibits minimum wage or abortion laws or whatever laws they happen not to like at the moment, or we have to put up with cases like this, is complete nonsense. It’s a false, totally bogus dichotomy.
Numerous common-law and statutory cases have held that “force” includes threats of force in numerours criminal matters, everything from robbery and rape to kidnapping and slavery. Otherwise, bills of indictment/information averring the use of force would be inadequate to aver a threat.
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October 24, 2009, 7:35 pmtraveler496 says:
About 3 years ago at Carl’s Jr. I ordered a hamburger with ketchup, lettuce, and tomato only. I was given two buns enclosing ketchup, lettuce, tomato, and no meat.
I suppose that if the server had been from the court’s majority in this opinion (a fine idea in its own right), he or she would have held the buns.
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October 24, 2009, 10:15 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by blanksslate: KS Sup. Ct.:If attacked, you can kill a guy. But, if you warn him and he backs off, you have committed a crime. http://tinyurl.com/yhjbx9v...
SayUncle » odd says:
[...] In Kansas, it’s probably legal to shoot someone to defend your self. But illegal to threaten the attacker. [...]
John Thacker says:
Yes, well I’d say that any prosecutor who decided to subpoena grades and school records for Innocence Project members would be pretty incapable of such too, but it’s happening in Chicago.
An argument that “sure, the law is bad, but don’t worry, prosecutors won’t use it in a bad way” is hardly comforting.
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October 26, 2009, 10:52 amDefending Yourself Against by Threatening Force is a Crime in Kansas « God Given Freedom says:
[...] http://volokh.com/2009/10/23/defending-yourself-against-attack-by-threatening-force-is-a-crime-in-ka... [...]