From State v. Flint, 2010 WL 445934 (Kan. App. Jan. 29):
[A]fter leaving a bar in Emporia where [Brandon] Flint’s fiancee and another man exchanged angry words, Flint walked to his car. Outside, Flint’s fiancee and two men continued to talk in a heated fashion. Flint’s fiancee fell to the ground during the scuffle. At this point, Flint got his gun, walked back across the street, and pointed the gun at the chest of one of the men; both men immediately backed away. Flint’s fiancee got up, she and Flint walked back to Flint’s car, and they drove away.The State charged Flint with aggravated assault, and the jury convicted him. Flint requested an instruction for defense of another under K.S.A. 21-3211(a), but the district court denied his request, ruling Flint’s use of force was greater than reasonably necessary to resist the attack….
Now at this point one might think there’d be a discussion of whether there was sufficient evidence that Flint reasonably thought that the fiancee was in danger of death, serious bodily injury, or the like, or merely was involved in a not very serious scuffle. Or one might think there’d be a discussion of whether at the point Flint pointed the gun, the fiancee was in continuing danger, or whether the men had already started to walk away. The discussion in the opinion suggests to me that there’d probably be enough of a factual question on the subject that the matter should be left to the jury, with a suitable defense-of-others instruction (unless no reasonable jury could find, beyond a reasonable doubt, that defense of others was justified, in which case Flint should have gotten a directed judgment of acquittal). But if the court had said that the facts revealed no reasonably perceptible threat of serious harm to the fiancee, I’d have been inclined to defer to the court’s knowledge of the record.
But that’s not what this case is about. Let’s keep reading:
A majority of the Supreme Court held in [State v. Hendrix, 289 Kan. 859 (2009),] that K.S.A. 21-3211 created a defense of self or defense of another only when there is “use of force.” The majority decided actual physical contact rather than a mere threat or display of force is necessary to raise this defense. Since Flint merely threatened the use of his gun and there was no actual force applied, he was not entitled to the defense of another.
Wow. Had Flint actually shot the gun, he would presumably have been entitled to have the jury consider his defense-of-others defense. (Such a defense would generally be roughly similar to a self-defense defense, and use of deadly force is generally allowed in self-defense against sufficiently serious threats.) But because Flint merely brandished the gun, he’s a felon — even if he reasonably believed that brandishing the gun was necessary to save his fiancee’s life. That is simply absurd.
Here, by the way, is Judge Greene’s concurrence:
I agree that the outcome here is controlled by State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009), but I write separately to note that the factual scenario in this case is very much like the hypothetical scenario depicted by Chief Justice Davis’ dissent in Hendrix. The fact that Flint has been deprived of self-defense here demonstrates the wisdom of the Chief Justice Davis’ dissent and the urgent need for a legislative fix of K.S.A. 21-3211.
And here’s what I wrote about Hendrix the day it was decided:
Defending Yourself Against Attack by Threatening Force Is a Crime in KansasThat’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.
11-B.2O/B4 says:
Duly noted. Though quite frankly, if there’s reason to pull a weapon, there’s reason to pull a trigger. This guy’s mistake was not shooting. Then he could claim self defense and there would be two fewer hostile witnesses.
February 12, 2010, 6:05 pmShelbyC says:
True, although it could be that the reason to shoot dissapears after the weapon is pulled. But by the logic above, it appears that one could be charged with brandishing even if they pulled the trigger, no?
February 12, 2010, 6:09 pmSomething To Make Steam Come Out of Your Head | Little Miss Attila says:
[...] . . . if you believe in the right to self-defense. [...]
February 12, 2010, 6:17 pmFred the Fourth says:
Wait a minute. From the case we have both:
Flint requested an instruction for defense of another under K.S.A. 21–3211(a), but the district court denied his request, ruling Flint’s use of force was greater than reasonably necessary to resist the attack
and
the Supreme Court held in [State v. Hendrix, 289 Kan. 859 (2009),] that K.S.A. 21–3211 created a defense of self or defense of another only when there is “use of force.”
So he was convicted of excessive “use of force” but denied the DoA defense because there was no “use of force”?
My head asplode. IANAL so I guess this is too subtle for me.
February 12, 2010, 6:17 pmShelbyC says:
Anybody have any thoughts on a 1A right to threaten the legal use of force?
February 12, 2010, 6:23 pmChris Travers says:
I hope that ends up in the appeal to the state supreme court….
February 12, 2010, 6:28 pmHouston Lawyer says:
Once I pull my gun in anger, I cannot re-holster it until it has drawn blood.
February 12, 2010, 6:56 pmOren says:
Let’s see if we can set a legislative speed record here.
February 12, 2010, 7:12 pmOren says:
The hope is that you have not drawn it in anger but in order to prevent anger.
February 12, 2010, 7:15 pm30YearProf says:
I’ve read most of their reported cases and can attest that the Kansas courts are VERY hostile to self-defense and totally clueless about the dynamics of a confrontation. FWIW, they make the Minnesota Supremes look like a bunch of gunfighters.
See Everything You Need to Know About (Legally) Carrying a Handgun in Kansas at http://www.aacfi.com/products/KSEverythingYouNeedToKnow.php.
February 12, 2010, 7:15 pmEugene Volokh says:
I think Houston Lawyer is referring to one or more of these items.
February 12, 2010, 7:29 pmPintler says:
Ummmm…. I hear someone pounding on my door and shouting at 0200. Before I open the door, I draw my gun. Once I open the door, I see a woman who says ‘Help me, I was mugged’. I don’t see a reason to shoot at that point.
Similarly, I hear screaming outside. I go outside with a shotgun at port arms. The attackers run away from the victim. Probably not a good time to shoot.
If you have to shoot, shoot. If you can, say, order the assailant to drop the weapon, from cover or a safe distance, in general I think that’s a good idea. Among other reasons, it’s not always obvious who is the mugger and who is the citizen defending themselves.
And since there isn’t an LEO exception, I would sure hate to see them adopt such a policy. I would think, in general, a SWAT team is justified to conduct entries with drawn guns. I would hate for them to usually shoot someone when they do so.
I agree that it’s an incredibly dumb law. My impression is that courts/the law don’t seem to do a good job of applying the continuum of force to civilian self defense, despite being familiar with how it works for LEOs (but I caution that’s just an impression from reading the news).
It is always, as they say, fact specific. We had a local mall shooter a few years ago, where a civilian challenged the shooter and ended up seriously injured. I heard several officers discussing the incident, and their opinion was that those facts – an obvious bad guy (shooting unarmed people at the mall with an AK), you the wrong end of a pistol/rifle fight, at the longish distances of a mall. Their opinion was shoot without warning, in the back if possible.
February 12, 2010, 7:47 pmOwen H. says:
It seems pretty clear to me that if the brandishing of a weapon is considered “excessive” under the circumstances, firing it instead would not, even given the citations listed, suddenly render said use legitimate. He was wrong in this circumstance, and the only difference between now and if he had fired is that then he’d be up for aggravated assault or manslaughter at the very least.
February 12, 2010, 8:26 pmSoronel Haetir says:
Has the Kansas legislature responded to Hendrix at all? Given that case has been around awhile now and this court is just following state precedent perhaps it’s not seen as all that pressing regardless of how perplexing the application of this rule is.
February 12, 2010, 8:26 pmSuperSkeptic says:
Obviously protected. ;)
This ish is INSANE. Hendrix was and is ridiculous.
February 12, 2010, 8:30 pmEconGrad says:
Stupid cases like this make me super-glad to live in Florida. Even if the legislature fixes this, Hendrix is still a felon (unless they make the fix retroactive).
February 12, 2010, 8:30 pmButternut says:
Judicious use of force or the judicious threat of force resides only with the state.
All others…well, hire a lawyer.
February 12, 2010, 9:13 pmOren says:
Thanks. Guess that reference went right over my head.
February 12, 2010, 10:04 pmJohn Moore says:
This sort of nonsense was also the decided law here in Arizona until rectified by the legislature last September. Arizona was fortunate that our governor, Janet Reno, was selected to mis-run the Department of Homeland security, allowing us to secure our gun rights once she was gone.
Ironically, many years ago, while a juvenile, I had to fire a weapon as a warning – in Kansas. The situation was a rare one where a strong warning was justified but targeting my assailants proved not to be necessary (I had plenty more rounds in the magazine, in case the warning failed). It would have been terrible to have to choose between immorally shooting at my assailants (to please a judge) or be convicted of a felony!
February 12, 2010, 10:11 pmButternut says:
Been there, done that, John Moore. As a 12 year old.
Today you are not to learn and grow by experience. This approach we will all come to rue.
February 12, 2010, 10:16 pmJohn Moore says:
Correction: Janet Napolitano (who shares many characteristics with Reno, so the mistake was easy)
February 12, 2010, 10:22 pmrequired says:
I dunno about Kansas, but wouldn’t a generalized common law necessity defense be applicable even when a specific legislature imposed one doesn’t apply, is Kansas not a common law state? The self-defense defense merely a part of the necessity defense line of reasoning which the legislature has not yet codified. Does Kansas not recognize the CL necessity defense and does it regularly arrest firemen for breaking and entering?
February 12, 2010, 10:24 pm30YearProf says:
Required posted: ” Does Kansas not recognize the CL necessity defense and does it regularly arrest firemen for breaking and entering?”
Firemen are GOVERNMENT agents, they will not be arrested (unless they p. o. the police).
February 12, 2010, 10:36 pmrequired says:
Saying that the police are corrupt isn’t really very useful.
I could have phrased it better and asked if firemen regularly break the law instead.
February 12, 2010, 11:37 pmLior says:
To be clear: brandishing a weapon is “assault”, but the kind of assault that is committed without the “use of force”?
February 12, 2010, 11:54 pmSuperSkeptic says:
Assault can be merely a threat of the “use of force”.
February 12, 2010, 11:59 pmCory J says:
I know there isn’t an error in the text, but can someone explain the bolded part to me?
As I read it, this passage is saying the facts suggest that the matter of whether there was a valid defense of others should be left to the jury and Flint should be entitled to such an instruction, but Flint should be given a directed verdict in his favor if the prosecution cannot prove his case.
My question is, why isn’t there a “not” before “others” in the bolded part? If no reasonable jury could find, beyond a reasonable doubt, that defense of others was justified, why would he be entitled to acquittal?
I’m guessing I’m not remembering something from the burden of proof and I’m mixing up who has to prove/disprove the defense?
February 13, 2010, 12:11 amNoah David Simon says:
this reminds me of the Taser case mentioned a month ago on this blog. Tasing was justified merely because the man was angry at himself and was in his underwear. Fashion opinion became the reason for attacking the suspect. Considering a man driving in his underwear is unconventional most people would be wary, but the hope is that restraint would be used. There would not be an excuse not to taze if this law would be passed. Shouldn’t we create as many reasons as possible to not use violence? At any juncture the law should encourage not attacking by involved parties; even after a bullet is fired. This is less a legal issue for me and more an issue of what value does the law want to push? To assume you know the outcome of every situation is ridiculous and the law should always reward those that risk not killing someone
February 13, 2010, 12:31 amLarryA says:
One likely problem, if I might hazard a guess, is that Flint failed to report the incident, leaving the other two men to do so and therefore start out as the “victims.” My advice to students is, “If you pull it, report it, fast.”
Under the Texas penal code:
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
OTOH:
February 13, 2010, 1:20 amSec. 9.31. SELF-DEFENSE. (b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
Cory J says:
Whoops, I meant to say “not” before “justified”
February 13, 2010, 1:53 amPeteP says:
“Duly noted. Though quite frankly, if there’s reason to pull a weapon, there’s reason to pull a trigger.”
Bull. You take weapon in hand if you think you MIGHT have to shoot it. That is very different.
” This guy’s mistake was not shooting. Then he could claim self defense and there would be two fewer hostile witnesses.”
Again, bull. He used the minimum ‘force’ ( if you consider taking his gun in hand to be ‘force’ ) needed to preserve life and deal with the situation.
This kansas law, however, shows yet again why I have disdain for the law. Quite simply, becuase the law is often an id***t ( I guess we’re not allowed to use the I word here ).
If some lunatic is running at me with a machete raised over his head, proclaiming his intent to decapitate me, I’m not allowed to shoot him until AFTER the first strike ? Yah, right. I’ll keep that one in mind if the situation ever arises.
Right after I double-tap him.
February 13, 2010, 2:57 amfjfjfjfjfjfjfj says:
The court in State v. Flint erred by misapplying State v. Hendrix.
In State v. Hendrix, the defendant Hendrix was denied a use-of-force self-defense exception after he threatened an alleged assaliant by saying he would “break her neck.” However, Hendrix did not in fact attempt or make any indication that he would break the assaliant’s neck.
By contrast, in State v. Flint, the defendant actually pointed his gun at the assaliants.
The difference in these two cases is that in Hendrix, there is a pure threat without any encompassing force. Hendrix only disallows a threat when it is not part of some force.
To clarify the distinction further, suppose a defendant is attacked and in reasonable self-defense pulls a gun and kills the attacker. Under the incorrect rule in State v. Flint, the defendant could still be liable for assault for the act of pointing the gun at the attacker. That is, Flint’s incorrect reading of Hendrix is that Hendrix would only immunize defendant for actually shooting the attacker, and not for the initial and preparatory assault of aiming and pointing the gun.
This of course is not the holding of Hendrix at all. Hendrix disallows the use of wild and empty threats. A defendant cannot, under Hendrix, threaten to “kill the attacker’s family and burn down his house” unless he stops attacking. But where a threat is an inherent an unavoidable part of a use of force, Hendrix does not apply and instead the statute controls.
Because aiming a gun is an inherent part of firing a gun in self-defense, and because firing a gun in self-defense is statutorily permitted, aiming a gun is statutorily permitted.
Whether or not Hendrix was decided correctly, the court in Flint erred in reading its holding too broadly.
February 13, 2010, 4:48 amIf You Brandish a Gun in Self-Defense in Kansas, You’d Best Shoot It « Daniel Joseph Smith says:
[...] If You Brandish a Gun in Self-Defense in Kansas, You’d Best Shoot It By Daniel J. Smith http://volokh.com/2010/02/12/if-you-brandish-a-gun-in-self-defense-in-kansas-youd-best-shoot-it/ [...]
February 13, 2010, 9:08 amrhhardin says:
Could you claim to have pulled the trigger but it failed to fire, and have the best of all worlds.
February 13, 2010, 10:38 amrmd says:
As my CHL instructor (and probably yours too) emphasized repeatedly, context matters. Someone shouting “I’m gonna kick yer a**” at you from a block away is entirely different from somebody shouting the same thing two inches from your face. It would still depend on the exact circumstances of course, but the latter is much more likely to be “reasonably believed” to be a threat of serious harm. In the end, the most important thing he taught me was “DBTC” — Don’t Be the Test Case.
February 13, 2010, 11:08 amGary Griffiths says:
I teach judgmental use of force to law enforcement and armed security agencies nationwide.
In almost all jurisdictions, police officers who draw their weapons are required to file “Use of Force” reports. Pointing a firearm at another in a threatening manner without justification is, almost universally, a crime (typically, Aggravated Assault) because you are placing that person in fear of death or grievous bodily injury.
It is always desirable to avoid having to use a weapon that is drawn in self-defense, or defense of another. The wisdom of drawing the weapon and brandishing it in this situation is questionable, and certainly a matter that could well be considered by a jury, but to deny the defendant the right to present that defense when he could have used it in an unjustified shooting, is just ridiculous.
The Kansas statute is totally screwed up, and the judge had his head up his duffel bag when he applied it in this manner.
February 13, 2010, 2:03 pmCharlie on the PA Tpk says:
The repercussions of this decision are more frightening than a drawn weapon could ever be!
February 13, 2010, 3:32 pmElmer says:
From the earlier thread:
It’s not quite a burglar with a knife, but prosecutorial discretion does not appear to be a reliable safety mechanism.
Question for the readers: If you were male, and in the place of either of the men involved in the argument with that woman, would you have complained to the police, even if the woman fell through no fault of your own? What if the woman had attacked you?
I think I’d still understand the fiancee’s actions and let the matter rest.
I didn’t see anything related to this during a quick check of the Kansas legislature’s site, and K.S.A. 21–3211(a) does not appear in the current house calendar.
February 13, 2010, 3:56 pmSelf-Defense Issues in Kansas « The Republican Heretic says:
[...] Issues in Kansas Sat 13 Feb 2010 The Republican Heretic Leave a comment Go to comments Eugene Volokh brings up an interesting case in Kansas in which a man pulled a gun, ostensibly in self-defense, [...]
February 13, 2010, 5:06 pmgeorge weiss says:
rational basis due process argument?
February 13, 2010, 6:54 pmBrooks Lyman says:
With regard to brandishing a gun being assault: In MA (and probably many other states), while there is no law against open carry (any MA lawyers who know otherwise, please correct me and cite) gun license holders are cautioned to never allow their concealed handgun to be visible (exposed) to observation by any bystanders. For example, when sweeping one’s jacket back to reach one’s wallet, with a hip-holstered handgun. You may be reported to the police, and if accosted, will not likely be charged, but will almost be guaranteed to lose your gun license as a “non-suitable” person. The unofficial charge is something along the lines of “threatening behavior.”
February 13, 2010, 9:31 pm30yearProf says:
I wrote this for the next printing of Everything You Need to Know About (Legally) Carrying a Handgun in Minnesota (AACFI, 2007).
Defensive display and reasonable force
Defensive display or “brandishing” may be defined as a threat to cause death or serious bodily harm by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force only if necessary. See Model Penal Code sec. 3.11(2) which provides:
(2) “deadly force” means force that the actor uses with the purpose
of causing or that he knows to create a substantial risk of causing
death or serious bodily injury. Purposely firing a firearm in the
direction of another person or at a vehicle in which another person
is believed to be constitutes deadly force. A threat to cause death
or serious bodily injury, by the production of a weapon or otherwise,
so long as the actor’s purpose is limited to creating an apprehension
that he will use deadly force if necessary, does not constitute deadly
force. (emphasis added)
Defensive display does not involve the actual discharge of a firearm. Thus it cannot produce lethal results. Most importantly, neither does it constitute the “use” of deadly force.
Brandishing is governed by the rules for use of reasonable force set forth in Minnesota Statute 609.06 and not the more restrictive rules for use of deadly force to intentionally take the life of another set forth on Minnesota Statute section 609.065 (see page 38). This is the usual American rule.
As criminal law scholar Wayne R. LaFave says in Principles of Criminal Law, sec. 9.4(a) last sentence (2003):
“merely to threaten death or serious bodily harm, without any
intention to carry out the threat, is not to use deadly force,
so that one may be justified in pointing a gun at his attacker when
he would not be justified in pulling the trigger.” (emphasis added)
This is a common example of the necessity criteria in action prohibiting greater force when lesser force will do. If the assailant continues the attack, use of deadly force (i.e., firing the gun) will be necessary and, therefore authorized. An imminent threat is seldom instantaneous. If the threat (even of death or great bodily injury) can be safely neutralized by a mere counter-threat, that is certainly allowable even if never mandatory. Ninety-nine percent of successful defensive gun uses involve mere brandishing — display — of the firearm. The defender demonstrates that she is capable (means, motive and opportunity) of using deadly force and the encounter ends as the assailant flees. Even criminals can weight the odds of their own injury.
Although seldom heard of by the public except in homicide cases, justification defenses like self-defense apply to all crimes. Thus self-defense may be pleaded if as a consequence of a brandishing incident you are charged with assault in the second degree (a felony), with intentionally pointing a gun at or toward another person (a misdemeanor) or with reckless handling or using a gun so as to endanger the safety of another (a misdemeanor) or other crimes.
February 14, 2010, 2:42 pmLarryA says:
In my case, I’m the instructor.
Texas law says force is not justified in response to verbal provocation alone. Therefore you can’t use force or deadly force because someone says, “I’m gonna kick yer a**.”
You can, however, include the threat in your overall assessment of the situation. If the totality of the circumstances as you know them at that moment bring you to the reasonable conclusion that the other person is about to use illegal force or deadly force against you, then self defense is generally justified. The exceptions under Texas law are:
1. You have provoked the force used against you,
2. You have consented to the force used against you,
3. You have engaged in an altercation while illegally carrying a handgun, or
4. A law enforcement officer is arresting you, whether legally or illegally.
There is a loophole to the last, if you have offered no resistance and an officer uses excessive force.
As Tom Craven said in Edge of Darkness, “Everything’s illegal in Massachusetts.”
1. The vast majority of the 50 states don’t have licensing to possess a firearm, so there’s no license to lose.
2. “Open carry” generally means you must carry so other people can see your gun. Carrying so they can’t see it is “concealed carry.”
3. In the 39 states with shall-issue concealed handgun licenses the government must show that you are ineligible for a CHL under the listed qualifications, not under some subjective “we don’t think this guy should have a gun” rule. In Texas revoking a CHL requires a final conviction for a misdemeanor or the equivalent. Prohibiting a person from possessing a firearm requires a felony conviction or the equivalent.
4. In Vermont and Alaska no license is required to carry a handgun openly or concealed.
5. The most common law enforcement reaction down here when a cop finds out I’m carrying a handgun is, “Cool. What kind?”
6. Keep your wallet on the opposite side from your handgun.
Note: Every state law is different. YMMV.
February 14, 2010, 6:04 pmFederalist Paupers » Blog Archive » The Most Perverse Legal Interpretation I’m Aware Of says:
[...] Most Perverse Legal Interpretation I’m Aware Of Read this and be [...]
February 14, 2010, 6:40 pmBrooks Lyman says:
LarryA,
True, most states do not have our (MA) stupid and probably unconstitutional law requiring a license for possession of a gun (any gun, not just a handgun – air guns excepted). But many states have a concealed carry license, and many states do not allow open carry, so the concern of inadvertent exposure is still valid in many places, particularly in more liberal urban settings. Even if you don’t lose your CHL, the police attention isn’t a good reference when it comes up for renewal….
In MA, which is not a “shall issue) CHL (LTC – “License To Carry” in MA) state, but a “may issue” state, the local police chief or his designee can deny a license to any “unsuitable” person. He’s supposed to define what “unsuitable” means when he denies the LTC, and yes, you can take him to court, but the judges almost always side with the chief on LTC denial cases. The best solution is to move to a more liberal (in the proper sense of that word) town.
There’s a story about a Brookline (that’s the town next to Boston where Dukakis came from) man who contested the chief’s refusal to issue a Class A LTC (there’s two classes, A allows large capacity firearms and concealed carry, B doesn’t) instead of a Class B. When the situation was explained to the judge in the local district court, the judge got red in the face, leaned over the bench and said to the Chief, “What! Are you still issuing gun licenses in MY town!?” Brookline and Boston are two of the worst offenders; they have added a number of local provisions to the State-mandated licensing requirements. As you quote, “everything’s illegal in Massachusetts.”
February 15, 2010, 12:07 amRobin says:
It appears that everyone has missed the fact that Mr. Flint’s girlfriend fell down. There was never an assault and Mr. Flint
February 15, 2010, 9:46 amplaced another person’s life in danger because he did not have all the facts. If Mr. Flint had killed an innocent man, even by accident, he would have gone to jail. Personally, if Mr. Flint had pointed his firearm at me in those circumstances, he better be looking over his shoulder all the time. I do not appreciate my life being placed in danger by an idiot.
Mark Buehner says:
If that is the logic, isn’t brandishing the weapon indeed a ‘use of force’ rendering this entire distinction irrelevant? If you hold that pointing a weapon at someone can be an assault on their person, aren’t you required to believe that the same act is a use of force in the other context? In other words shouting an empty threat at someone is an entirely different act than pointing a loaded weapon at them. That seems to be the distinction made in prosecuting assault, it should be the same distinction in defense.
Facts not in evidence. Let the jury decide if she fell down or was pushed, and more importantly if Flint was aware of which. What was Flint’s alternative? Wait until they kick her in the head? If I perceive that my wife is knocked down by two drunks, I would act, particularly if able to take control of a situation and de-escalate it as Flint in fact did.
February 15, 2010, 10:50 amRobin says:
Mr. Buehner,
February 15, 2010, 11:23 amSo your argument goes that it is alright to threaten someone and maybe kill them because you “perceive” someone was assaulted? The article never mentioned who started the argument and it only referred to a scuffle. Is it possible that the girlfriend tried to hit someone, lost her balance, and fell down? Your line of reasoning assumes an assault and justifies lethal force against possibly innocent people. Responsible people carry firearms for protection, not intimidation. Please remember that.
NickM says:
Is it possible that one woman tried to assault 2 drunk men and then fell down on her own? ROFL. You sound like a defense attorney’s dream juror.
Nick
February 15, 2010, 12:28 pmMark Buehner says:
Of course. What do we have besides our perceptions? If I saw somebody knocked down, I perceived them as being knocked down. By what other method do I have to judge? Hastily assemble and poll a jury? ANY self defense claim is based this way. Obviously our perceptions aren’t always reliable, and we can be held accountable for how reasonable our reliance on them was given the conditions. But isn’t that for a jury to decide?
Sounds like the kind of details a jury should have the opportunity to hear, doesn’t it?
First of all- any time you see an assault you are making an assumption. Could the people be acting out a play? Plausibly. Its nice to think we can all draw perfect conclusions in the heat of the moment but that’s ridiculous. Secondly, what lethal force? Thirdly- again, any time you invoke self defense of a third person you run the risk that an innocent person is involved. That’s for a jury to sort out of the actions were reasonable. If you saw someone with a knife at your spouses throat you might turn a gun on them. But they might be a doctor performing an emergency tracheotomy. Are you always forced to assume an assault ISNT taking place because it MIGHT NOT be? That sounds to me like a good way to write self defense out of the law. You don’t for sure know that you are being assaulted until you have actually been assaulted, at which point you (or someone else) may already be dead. That doesn’t sound reasonable to me.
So deterrence is not a reasonable use for a firearm under any circumstances? You subscribe to the above theory that if you bring a gun into play, you must fire it?
That’s obviously ridiculous. Brandishing a weapon prevents crimes every day. This sounds like a pretty pathetic backdoor attempt to keep people from lawfully carrying a sidearm by removing any utility from doing so unless you decide you are going to kill someone no matter what. Which sounds like a good way for more people to get shot than is necessary.
February 15, 2010, 12:35 pmBrandishing in Kansas | Snowflakes in Hell says:
[...] Eugene Volokh reports on an unusual law in Kansas that actually can make the punishment for brandish…. I agree with Professor Volokh that this is something Kansas groups should get the legislature to fix, pronto. [...]
February 15, 2010, 2:11 pmRobin says:
Sir,
February 15, 2010, 2:22 pmMy mistake. I assumed you were a reasonable citizen that wouldn’t take the law into your own hands unless absolutely necessary. I was in the Army for 25 years so don’t try your crappy argument about some back door attempt. I have carried a firearm since 1977, open and concealed and have had to draw my weapon twice in all that time. When I carry concealed, I carry it off-hand to ensure I don’t draw it unneccessarily. A firearm is a tool and it sounds like Mr. Flint was just waiting for an opportunity to flash it around and use it, if he had the chance.
Just for the sake of argument, your logic dictates that anyone that saw Mr. Flint with his weapon pointed at the men had a perfect argument for killing him. They could have “perceived” that Mr. Flint was a mugger. How about an undercover police officer?
This is why we have laws; because most people do not have the “situational awareness” needed to make a sound decision.
Mark Buehner says:
I consider my mate being assaulted by 2 men absolutely necessary. Don’t know about you. I’m not the type to wait until her blood is splattered one the pavement before concluding I’m going to put a stop to whatever is happening.
And i’m sure you’d appreciate it if some random stranger on the internet without any facts and making all kinds of assumptions about your motives decided you should be in jail for drawing it. Why did you draw and not fire? What did you think you were doing brandishing a fire arm like that?
And exactly which facts lead you to that conclusion? Where do you get the right to make that assumption- and moreover not allow Mr Flint his day in court to let a jury decide if he was as reckless as you assume?
Such things have been known to happen sadly. Circumstances count. I would think as a former soldier you would have an iota of empathy for trying to deal with a violent situation in a few heartbeats with people you care about on the line- much less some arm chair interneter who thinks he knows things the rest of us dont about the situation drawing judgment after the fact.
You also seem to have trouble registering the fact that FLINT DIDN’T SHOOT ANYBODY. He brandished his weapon, JUST LIKE YOU DID. It ended the confrontation that might have almost instantly resulted in a woman being tragically or fatally injured. One kick to somebodies head can kill them. God knows I wouldn’t let two drunks make that decision before I put a stop to it with someone I love. Would a cop have drawn his weapon if he came across a woman on the ground between two angry men? Why shouldn’t her husband? Like they say, when seconds count the police are minutes away.
But you do, right? Everything you’ve said leads me to the opposite conclusion. You might be satisfied with possibly cleaning a woman’s blood off the street rather than allowing a man to defend her without anyone getting hurt, but thank god your not in charge of my or mine’s safety.
February 15, 2010, 3:04 pmMark Buehner says:
Let me reiterate- i’m NOT saying Flint is innocent. I’m saying he should be allowed to present his defense and allow all the relevant facts (that Robin somehow knows) be presented to a jury. Its entirely possible Flint overreacted. Its also possible he was justified. He should be allowed to present his case. The idea that no matter what the circumstances were he must be unjustified is ridiculous.
February 15, 2010, 3:17 pmRobin says:
Mr. Buehner,
February 15, 2010, 4:45 pmI’m not sure where you were going, but in the end you arrived at the same conclusion I had in the beginning. Mr. Flint broke the law and will answer to it in a court of law. He deserved to be arrested and should be prosecuted so he can tell his side of the story. I would also recommend prosecution for reckless endangerment AND I would sue him, if I could. If he didn’t do anything wrong, he shouldn’t be worried. Right?
By the way, drawing your weapon and pointing your weapon at someone’s chest are two entirely different things. Kind of like the difference between holding a knife and holding it to someone’s throat. I never had to aim my weapon at anyone. Just the sight of it in my hand was enough.
Mark Buehner says:
Robin, if you had absorbed the point of this post, its that a court has said he will not be allowed to present this defense. Which I find abhorrent. In other words no-one gets these details about why he believed his girlfriend was in danger, nor any other potential evidence to same. The court is saying under no circumstances was he allowed to point that weapon at those men to protect a third party (at least unless he followed through by shooting them which is the title of the post). I don’t know if he was justified or not, and I don’t suppose you do either. We may have our theories. But Flint wont get to present this defense, no matter what his intentions were or what circumstances dictated.
You were fortunate. I believe the law varies state by state, but I believe simply brandishing a weapon can be assault as well. Again- without knowing (or being allowed to know) the circumstances, I don’t think its right to condemn the man. Perhaps he wasn’t getting their attention just holding the weapon and shouting? Who knows? That’s the point, if you don’t even get to present your defense its all irrelevant.
February 15, 2010, 5:00 pmKevin P. says:
You have obviously not paid any attention to the whole point of this point. Please go up to the very top and read all over again, slowly and carefully.
February 16, 2010, 1:23 amreadery says:
It appears Kansas law requires simply pulling the trigger and shooting without saying or doing anything that would imply one has a weapon or might give the people one is defending against any basis for perceiving they are under sort of threat before the weapon is discharged.
Self-defense requires shooting without threatening. Any threat is illegal. One must shoot non-threateningly.
February 16, 2010, 5:15 amreadery says:
I believe the best defense here would be for Flint’s lawyer to claim in opening argument that he actually did shoot the weapon, perhaps that he pulled the trigger but it didn’t go off or something like that. This would permit him to raise the defense including whatever evidence the gun was shot might be available as well as the relevent circumstances, and cross-examine the state’s evidence in a way that would elucidate the self-defense claim.
The judge might rule the defense unavailable after the evidence was presented, but by that point the jury would know the essential facts, and the defense might be able to make the jury aware that the only reason the judge would be throwing out the self-defense claim is that the gun didn’t actually go off.
February 16, 2010, 5:22 amreadery says:
Also, shouldn’t some enterprising Kansas lawyer start openly advertising for plaintiffs willing to sue Kansas police officers who brandish or carry weapons in a threatening manner during their interactions with them?
After all, as Professor Volokh has pointed out, Kansas law enforcement officers have authority to use force against people, but no authority to threaten use of force.
Since most of what law enforcement officers routinely do involve express or implied threats of force which would be illegal if done by ordinary citizens, such plaintiffs shouldn’t be hard to find.
February 16, 2010, 5:31 amRobin says:
Kevin P.,
February 16, 2010, 9:10 amThank you. You are right. Apparently, I was led astray by myself. However, I still agree with the court. From the article, it appears that no one else was charged so I have to assume no one else violated the law. Since assault and/or threatening are crimes, it is apparent that the responding officers did not believe either of those occurred. How can you plead self defense, or defense of others, when there was no threat or crime? That is why it is called “brandishing”. As an armed citizen, Mr. Flint has a responsibility to understand what is happening around him. When you carry a weapon, you have to accept responsibility for your actions, right or wrong. It seems that Mr. Flint doesn’t want to be responsible.
Mark Buehner says:
?
So now the police are the ultimate arbiters of the law? Why bother with juries at all? Police decline to prosecute, so forget your defense, you’re already guilty. Got 50 witnesses and video tape from 3 security cams? Too bad, the jury isn’t going to hear it.
February 16, 2010, 9:59 amUSMC Steve says:
I would then recommend that if it comes to the point where any Kansan has to pull a weapon to defend themselves or others, etc., they should ALWAYS shoot the adversary and not give them the opportunity to back down or away.
This is so freaking stupid that it defies belief. I fully realize that the law has really nothing to do with common sense, but this is just soooo dumb.
February 16, 2010, 12:01 pmChris Travers says:
I agree with ReaderY.
The best way out of this is to start suing police officers for brandishing weapons. After all it is now clearly established that threatening to use force (“drop the weapon or I’ll shoot”) is not use of force and therefore is an assault by LEO’s in violation of individual constitutional rights.
I bet either the courts or the legislature would fix that problem in a hurry…..
February 16, 2010, 1:35 pmfj says:
This reminds me of an ironic aspect of Pennsylvania self-defense law. There is caselaw (I can dig it up if someone cares) that indicates self-defense can only be asserted in a homicide if the defendant admits that he deliberately killed the victim. Some of the caselaw goes so far as to suggest that this rule applies to all uses of deadly force. So, in effect, it’s illegal to fire a warning shot or even shoot to wound (both of which would constitute deadly force) in self-defense. I like to think of PA as the steel-cage-match state: if two men enter a violent confrontation, only one man can leave.
February 16, 2010, 3:01 pmKukulkan says:
I doubt that a cottage industry of suing police officers for brandishing weapons will have any effect. The Kansas Supreme Court’s holding applies only to self defense or defense of others pursuant to a state statute. Police officers may use their weapons to seize (e.g. arrest) people. The use of force to seize a person is a federal constitutional issue. Accordingly, the U.S. Supreme Court’s definition of use of force will apply to situations where a police officer uses his/her weapon to effect an arrest, not Kansas’ Supreme Court’s definition of use of force.
February 16, 2010, 3:33 pmDown Range Radio 148 | Down Range TV says:
[...] Brandishing a gun in Kansas [...]
February 17, 2010, 1:10 amRobin says:
Mr. Buehner,
It is now apparent to me that all you want to do is argue for arguments sake. You’re not worth it. I won’t bother to read your replies anymore, but so you will understand:
The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: “1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish.” This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, “brandishing” a weapon is defined to mean “that the weapon was pointed or waved about, or displayed in a threatening manner.”
Read more: http://www.justanswer.com/questions/1j424-what-is-brandishing-a-firearm-when-you-have-a-firearm-carrying#ixzz0fno45VYs
USMC Steve,
February 17, 2010, 9:13 amIf you are really a Marine, you took an oath to defend the Constitution of the United States. The Constitution provides states with the power to establish their own laws. Brandishing a firearm is illegal in Kansas. What part of your oath do you NOT understand? It sounds like you really haven’t thought about it very much.
USMC Steve says:
Robin, a few points here.
1. your statement is both ignorant and makes no sense. My duties as a Marine have nothing to do with what I said. Nor does the oath I took. You don’t know what you are talking about. I do.
2. Kansas can pass any law they want to. No problem. That does not mean that the legislature is not a bunch of dumbasses to have crafted the specific provisions in this one. The portion that makes it criminal to draw a weapon in self defense without actually using it is utterly fucking stupid and lacking in any common sense at all. Thus, the Kansas legislature has encouraged escalation of force, rather than encouraging de-escalation of force, given that you get busted if you DON’T shoot the potential assailant, but don’t if you DO. If you haven’t established that yet, you need some oxygen and a clue.
Based on the piece of crap they passed, my statement that one should invariably shoot their assailants makes perfect sense as a response to the stupidity of the Kanas legislature. That any judge with any intellect at all would allow a conviction on this just confirms the lack of common sense of any kind present in the judicial system in Kansas.
February 17, 2010, 10:17 amMark Buehner says:
I accept your concession, graciously offered.
February 17, 2010, 10:37 amMikee says:
This is a case of a judge deciding that self defense, or defense of others, is not allowed, laws be damned.
And I thank God daily that I live in Texas now, not Maryland or Kansas or Massachusetts or many other silly places.
February 17, 2010, 11:58 amPintler says:
Robin, your own link included an example from someone who says he was arrested for brandishing when the gun never left the holster. FWIW, I have read other accounts of that happening over the years.
To make sure I understand you, is your position that holding a pistol at the low ready position is never brandishing? If I am engaged in a heated discussion about whether the store will let me return a widget w/o the receipt, and I draw to the low ready (or for that matter merely move back my jacket to display a holstered gun, without ever touching the gun), do you think I have not ‘brandished’? If that is the case, you disagree with every instructor I have had.
As I understand it, you are not brandishing just because you have a gun visible – a hunter afield with a rifle is OK, as is Farmer Bob investigating funny noises in the chicken house at night, shotgun in hand – but displaying a gun in any manner in a confrontation runs the risk of legal trouble, depending on the facts, the whims of the police/prosecutor/jury, state law, and local mores. My instructors, at least, say to assume you will be prosecuted, and only draw the gun when the alternative is worse than prosecution, namely a high likelihood of not surviving.
February 17, 2010, 1:10 pmChris Travers says:
Maybe that’s the point. Maybe the idea is that our streets would be safer if all assailants are shot.
February 17, 2010, 5:01 pmWill says:
fj,
I think that is a common legal position. Basically, if you fire the gun in any way other than shooting to kill, you must not have felt in fear for your life, and therefore you have illegally discharged a gun. Lots of other charges may apply. In other words, don’t imitate “The Lone Ranger”, who was always shooting guns out of peoples hands, and other non-lethal uses of his firearms. Besides, it’s not safe if you aren’t using the designated bullet catcher(s). Flinging slugs hither and yon can get expensive, particularly if you hit a no-shoot bystander.
My personal rule is if I clear leather, my little companion is going to be making loud noises as soon as the sights are indexed. The intended recipient(s) of my response had better make a near instantaneous withdrawal from my position to avoid those loud noises from being generated in their direction.
February 18, 2010, 10:48 pmDave Kopel’s Second Amendment Newsletter | The American Jingoist says:
[...] Eugene Volokh The Volokh Conspiracy February 12, 2010 http://volokh.com/2010/02/12/if-you-brandish-a-gun-in-self-defense-in-kansas-youd-best-shoot-it/ [...]
March 4, 2010, 1:56 pmCaleb Sholes says:
Expect to master plenty about airsoft guns. Terrific new page!
March 15, 2010, 10:26 amShooting for Self-Defense? « LewRockwell.com Blog says:
[...] quickly. Seeing a firearm would typically end the approach and the conflict. Yes, I know that brandishing a firearm can be tricky, and interpreted by law in various ways. But I’d rather end a road conflict [...]
April 18, 2010, 1:35 pmDavid Breaux says:
I was recently being followed by two vehicles, my rate of speed was 15mph due to obvious yet unknown vehicle trouble. I tried to indicate by switching on my flashers and pulling over and letting the two cars pass. Two times they went around only to again continue to follow very closely behind me. The two cars had now followed me for three miles and I was within what I believed to be 2 to 3 miles from my home and safety from the risk of breakdown, but not the new worse risk of whatever the two cars may have in mind?
I was unsure and thought the worse of how many the two cars may be holding for passengers?
In my truck was me and my 9 year old daughter, we both were afraid and had been driving for hours with troubles from the mechanical trouble, it was 12 midnight dark and few cars other than those involved here out.
At a point I made the choice to show my weapon I had on board due to the fact of returning from the mountains where we had spent the day, as any time I go into the mountains I try to take what I feel may be required for a survival situation.
April 24, 2010, 1:34 amThe point I pulled off to make known my weapon an AK47 as I pulled it out the 2 cars drove on by as a third came into sight behind them who had just got there and happen to be a police officer.
I was what I know to be defending myself from being any further scared the same as my daughter was also. I am charged with Felony Ag.Assult, that is now going to court under 2 misdemeanors brandishing a weapon, and child endangerment. I feel very screwed for defending myself from potential danger that I and my daughter felt was quite real and had gone on long enough followed for 3 miles at 15 mph. Any comments here I am not a criminal but think prison may be in my future and the loss of my home and business everything I own with no family to offer any help.