cjwynes: 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.

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.

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...

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.

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.

Its technically an assault of course but come on. This went to the state supreme court. What a waste of resources.

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.

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.

Wtfo: 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.

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.

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.

CheckEnclosed: How have Kansas courts interpreted/construed “force in cases of forcible sex­ual assu­alt, rob­bery, extor­tion, etc.?”

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.

cjwynes: 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.

Is that supposed to be comforting?

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.

This is one more example of many that credentials don’t indicate intelligence.

-jcr

*shrug* I’ve had an extremely low opinion of judges for years. This certainly reinforces my opinion.

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?

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.