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Univ. of San Diego School of Law

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Friday, October 23, 2009

"Stop or I'll Shoot, and in Any Case I'm Guilty of Making a Criminal Threat"

Crime and Consequences comments on the recent decision of the Supreme Court of Kansas, calling for prompt legislative action to reverse it. In essence, the court construed its self-defense statute to reach "force" in self defense, but not the "threat of force." The opinion in State v. Hendrix is here. It shows the dangers of textualism in the wrong hands, and also shows how annoying cases make bad law. The trial court declined to give a self-defense instruction on the grounds that insufficient evidence had been introduced in support of the defense. Perhaps dubious of that ground, both the Court of Appeals and the Supreme Court said that the instruction was properly withheld because defendant had not used any actual force.

The dissent suggests that the majority's ruling will encourage those being threatened to use force immediately rather than a threat of force, but it appears that the majority's opinion may lead to an even more bizarre result unless someone reins it in. One would imagine that force will not be deemed necessary if a threat would have sufficed, so those acting in self defense will often still need to threaten force before using it. But the statute does not say anything that would suggest a threat of force is justified if actual force is later employed. So those who threaten force before using it in Kansas may be justified in killing but not in threatening to kill. One assumes that prosecutorial discretion will intervene at some point, but since the State argued for this unfortunate construction of the statute, one cannot be certain.

KC

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