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

[OldMarksman]

So what are the words that you're supposed to say that constitutes clearly a warning and not a threat

Sorry, I misread your question.

Based on the wording in the court's finding and on that of the dissenting opinion, I do not see a great distinction in terms of whether one would be entitled to a jury instruction on self defense in Kansas. Were you thinking about the crimes outlined in the original conviction?

The ruling says that for a self defense instruction to be properly given, force must actually be used. In the dissent, constructive force should include the threat of force.

Based purely on lay interpretation of the wording of the written statutes (and not taking into account case law), it's not clear that the Kansas finding on the jury instruction necessarily differs from the situation in some other states. Where I live, I cannot "exhibit a weapon in a threatening manner" except when engaged in a lawful act of in self-defense--but the defense of justifiability statute refers to the use of deadly force--same as in Kansas. There are exceptions. The law in Texas was amended some time ago to permit the threat of deadly force when necessary in cases in which the use of force is lawful. In Arizona, until recently, one could be convicted of aggravated assault for drawing a gun or perhaps even referring to its existence before imminent danger actually existed--so they changed the law.

So-- in various other states (Arizona and Texas being among those excepted), would a defendant who had not used deadly force be entitled to a jury instruction on self-defense? Would some other defense apply?

The question to me is, is that really different in various other jurisdictions? Is the self defense statute the operative avenue, or is there some other avenue based on simple necessity that was not present in the Kansas case?

Probably a good thing for everyone to know the answer.

Whatever the answer, the initial trial court case should make it clear to all that the weapon is a last resort.

As Antipitas points out, it would be very difficult for most people to justify a threat or anything else in the instance of the Kansas case at hand.

For Kansans, the words in the dissent would seem a little unnerving (essentially, "OK to kill but not to threaten").

For that reason, I'd wager that the law will be changed, and I'll also opine that the defendant would be in the same situation had it been done long ago.

 

[Al Norris]

I fully agree OldMarksman.

Anyone wanna bet that the Kansas legislature changes the wording of the statute to render this court decision moot?

 

[Chris_B]

For Kansans, the words in the dissent would seem a little unnerving (essentially, "OK to kill but not to threaten").

Exactly

 

[Bartholomew Roberts]

Anyone wanna bet that the Kansas legislature changes the wording of the statute to render this court decision moot?

Well, if anyone took you up on that bet, now is the time to collect. According to the Volokh Conspiracy, the Kansas legislature has amended the law to make clear that threats of force can qualify as justifiable self-defense and the Governor signed the bill yesterday.

 

[DogoDon]

Good to see that reason prevailed in Kansas. The new statute now provides:

(1) ‘‘Use of force’’ means any or all of the following directed at or
upon another person or thing: (A) Words or actions that reasonably con-
vey the threat of force, including threats to cause death or great bodily
harm to a person; (B) the presentation or display of the means of force;
or (C) the application of physical force, including by a weapon or through
the actions of another.

But it's absurd that the legislature had to explicitly define "use of force" just to prevent courts from reaching illogical results.

DD

P.S. Part of the blame here probably lies on the legislature, though. As the Kansas Supreme Court noted in its opinion, elsewhere the legislature had been careful to distinguish between "use of force" and "threat". For example, KSA 21-3213 (defense of property) reads:

"A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used."