Sherry F. Colb

Can Violence Be Allowed When a Warning Is Prohibited? The Kansas High Court Issues a Perplexing Ruling

By SHERRY F. COLB
Wednesday, February 3, 2010

Last October, the Kansas Supreme Court held that a person who reasonably fears unlawful violence in the State of Kansas is not legally entitled to defend himself by threatening his assailant. The law of self-defense, according to the court, permits the use of only actual physical violence – not the threat of violence – to repel an attack.

As a result, the court ruled in Kansas v. Hendrix, a criminal defendant who responds to a reasonable fear of assault with a threat, but not with physical force, may not have his jury instructed on the law of self-defense.

This ruling is both counterintuitive and perverse, and it helps expose how purely textual interpretations of a statute – in the absence of judgment and purposive extrapolation – can lead to absurd results.

The Defendant's Version of the Facts, and the Trial and Appellate Courts' Rulings

According to the defendant, the facts of the case were as follows: When he was visiting his mother in the hospital, his sister approached him and stuck her hand in his face, while loudly swearing at him. Fearing that she would slap him and intending to head off her attack, he threatened to "break her neck." (His sister disputed his account and claimed that he had made his threat without provocation.).

The defendant asked the trial judge to instruct the jury on self-defense, which state law defines in this way: "A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's use of unlawful force."

The trial judge refused to give a self-defense instruction, and the jury subsequently convicted the defendant of making a criminal threat and of misdemeanor assault.

In requesting the instruction, the defendant claimed that the law of self-defense corresponded to the evidence that he had offered. The trial court found, however, that the story the defendant had told at trial did not provide plausible support for the conclusion that he reasonably feared an attack at the time that he threatened to break his sister's neck. Accordingly, the trial court concluded that the law of self-defense did not apply.

Stated differently, the trial court ruled that a defendant may offer the jury the option of acquitting him on self-defense grounds only if the jury could conclude, based on the evidence, that it was reasonable for the defendant to fear that, absent his conduct, the victim would have subjected him to unlawful force. In Hendrix's case, the court found, the evidence did not meet this threshold test.

Unhappy with both the ruling and the convictions that followed, the defendant appealed, first to the Court of Appeals and then to the State Supreme Court.

Had the Court of Appeals (and then the Kansas high court) affirmed the conviction on the grounds originally offered by the trial court, then there would be nothing interesting to discuss. The story the defendant told about self-defense strains credulity on its face, and the trial court could legitimately have found that there was insufficient evidence to support the predicate for a self-defense instruction, namely a reasonable fear on the defendant's part that he would suffer unlawful harm at the hands of the alleged victim.

The Kansas Court of Appeals and Supreme Court did not, however, affirm the conviction on the trial court's original grounds. Instead, the Court of Appeals found, and the Kansas high court affirmed, that even if the evidence did support the defendant's having reasonably feared that he would face unlawful force from his sister, he still would not have been entitled to a self-defense instruction, because he did not actually use physical violence against his alleged assailant. He only threatened to do so.

What's Wrong with the Kansas Supreme Court's Ruling?

The first problem with the Kansas Supreme Court's ruling is that it effectively requires that a person who is threatened use physical violence, rather than issue a verbal warning.

If John Doe raises a knife to stab Jane Roe in the chest, on this approach, Jane is guilty of a crime if she simply aims a gun at John and says "Drop the gun or I'll shoot." Yet she is guilty of nothing at all if she instead shoots John without any warning.

This makes no sense. If a warning would safely de-escalate the threat of violence, why would the law prohibit such a warning, but permit actual violence? The resulting rule would hold that the person threatened with an attack has two choices: Either turn the other cheek, or physically harm the assailant. (Imagine a legal regime in which police, too, were prohibited from giving warnings and simply had to choose between shooting and getting shot.)

A second problem with the Kansas Supreme Court's ruling is that if giving a warning is impermissible, then it might be that neither a warning nor violence in self-defense is allowed. That is, if all it would take to save oneself from an imminent threat were a warning – such as "Stop right there or I'll shoot!" – then the use of physical force against such a threat would, by definition, not be "necessary," and necessity is a requirement under Kansas's statutory language defining self-defense.

Physical violence cannot be said to be "necessary" when a warning or threat would suffice. On the Kansas Supreme Court's reading of the law, however, a warning or threat is never legally permissible self-defense. Unable, then, either to threaten or to carry out physical force, the person about to be violently attacked may not legally do anything to protect himself. With the possible exception of instances in which a warning would plainly be futile, the self-defense law would offer a person being threatened with a wrongful attack nothing but the choice between passive acceptance of an attack, on the one hand, and a prison term, on the other.

The Pitfalls of a "Plain Meaning" Analysis of the Law

Ironically, the Kansas Supreme Court defends its ruling on the ground that laws should be interpreted to have meaning, rather than to be meaningless, stating that "there is a presumption that the legislature does not intend to enact useless or meaningless legislation." The court asserts that if we interpret the words "use of force" to include not only actual physical force but also the threat of physical force, then other laws that specify both the use of force and the threat of force would contain meaningless, redundant portions. If, in other words, "use" really means "use or threaten," then the laws of Kansas that explicitly address the situations of those who "use or threaten" force are redundantly addressing the situations of those who "use or threaten or threaten" force.

This sort of analysis might make sense if (a) the laws of Kansas constituted the words of a Divine Being who spoke with unerring clarity and precision on every occasion; or (b) a legislature might plausibly choose to prohibit an effective warning under circumstances in which it would permit physical force; or (c) a legislature might provide a self-defense justification in its criminal laws, but then refuse to offer that justification to anyone who could protect himself from force through a warning, by prohibiting both the warning and the actual use of physical force.

Much of the time, a court may safely apply a statute which states its terms unequivocally in situations that fall squarely within those terms. There are, however, exceptions, and one exception that arises is the case in which no legislator in her right mind would have intended a statute to do what the "plain language" of the statute appears to do. This is such a case.

The Kansas Supreme Court begins its analysis by saying that "the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained." Unlike Justice Scalia, then, who is also a great fan of relying exclusively on statutory text and plain meaning, the Kansas Supreme Court considers legislative intent to be the decisive fact and views statutory text as a (potentially dispositive) vehicle for determining that intent.

On this approach, the Kansas Court had to believe that the omission of "threatens" from the self-defense statute was not simply an oversight (or the product of an assumption that the use of force implicitly contemplates the threat of force as a lesser included measure) but, rather, reflected the legislature's choice to outlaw a victim's warning an attacker who is imminently threatening him or her.

To believe all this, however, is to believe that the very same legislature that, according to the Kansas Supreme Court, speaks with perfect clarity and consistency and never engages in redundancy or undue brevity, also wishes to penalize someone who has the legal right to defend himself but instead employs a warning and thereby avoids physical violence altogether.

Far more logical is the dissent's approach, defining the "use" of force as including both physical and "constructive" or threatened force. This is a reasonable interpretation of the statutory language – and one that also has the virtue of avoiding an absurd result. It is plainly the interpretation that should have been embraced by a unanimous Kansas Supreme Court – rather than by an understandably frustrated dissent.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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