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

That’s what the Kansas Supreme Court just held, interpreting Kansas Stats. § 21-3211. The statute reads,

(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.

(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.

(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.

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