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Friday, March 28, 2014

‘Reasonableness’ the key to Kansas’ stand-your-ground law

By RICK PLUMLEE
The Wichita Eagle

The merits of stand-your-ground laws have been hotly discussed since a Florida teenager was shot to death by a neighborhood watch volunteer.

Opponents of Kansas’ stand-your-ground law say they are concerned that it gives someone license to kill regardless of circumstances.

But law enforcement and legal experts say that’s not true.

“In the state of Kansas, it’s all about reasonableness,” Wichita Police Deputy Chief Tom Stolz said: reasonable belief that force is necessary to prevent imminent death or great bodily harm. Reasonable use of force in self-defense.

Police are still sorting through what exactly happened on the night of Feb. 26 when George Zimmerman, 28, a neighborhood watch volunteer in Sanford, Fla., fatally shot Trayvon Martin, 17.

New and conflicting information has come to light almost daily in the past week. Zimmerman acknowledged pursuing Martin but said he shot only after he was attacked by the teenager. That’s where things get fuzzy.

One consistency through it all has been the intertwining of Florida’s stand-your-ground law and the case.

Kansas is among at least 10 states that have laws patterned after the one Florida put on the books in 2005, although the law has rarely been applied in Kansas.

Kansas’ Legislature adopted a stand-your-ground law in 2006 and revised it some in 2010. Simply put, the law means if a person isn’t doing anything illegal and is attacked by someone, that person doesn’t have to first try to run away but can stay and use reasonable force in self-defense.

Before 2006, Kansas’ law required that if there was an opportunity to escape a violent scene – or a chance to retreat – a person had to make that the first option.

“The law cleared up any misconception about whether you did or didn’t need to retreat,” Wichita criminal defense attorney Richard Ney said. “The question was always, ‘Well, what could have they done to retreat?’ Now, if you’re defending yourself, you do not have to retreat.”

But there are still limitations, some of which are misunderstood by the law’s critics, legal experts say.

“The confusion is that people are thinking this allows you to use excessive force,” said Charles O’Hara, a criminal defense lawyer in Wichita. “They’re acting like the law lets you go hunt someone down and shoot them, and that’s not true.”

But that’s not what Wichitan Mary Dean thinks when she reads reports about what happened in Florida.

“Reasonably? Just like Zimmerman did?” said Dean, a leader of the group Kansas Justice Advocates. “He claimed that he felt threatened, and he was chasing somebody. People make things up as they go.

“It’s rather scary that they can use that law to justify killing someone. That law has to be repealed.”

O’Hara questions whether the stand-your-ground law should even be applied to the Florida case. Zimmerman called 911 and told the dispatcher he was pursuing someone.

The issue in the Florida case should be over whether Zimmerman used excessive force, O’Hara said.

Numbers sketchy

The stand-your-ground law apparently has not been applied much in Kansas, if anecdotal information from law enforcement agencies is any indication. No specific numbers are available statewide. But Wichita police have never applied it in discussing a case, Stolz said. And the Sedgwick County District Attorney’s Office isn’t aware of it ever being a factor in a case it has handled, spokeswoman Georgia Cole said.

A spike in justifiable homicides by citizens could be an indicator that stand-your-ground laws were creating a problem, although justifiable homicides wouldn’t necessarily be related to a stand-your-ground incident. Nationally, the recent rate of justifiable homicides by citizens has been fairly steady, climbing about 4 percent annually from 2006 to 2010, according to the FBI. There were 278 such homicides in 2010.

Only three justifiable homicides by citizens have been worked by Wichita police since the Kansas law took effect in 2006, Stolz said.

The National Rifle Association was among those lobbying for the law to be enacted in Kansas and elsewhere. But abandoning reasonable actions was never part of the effort, said Patricia Stoneking, president of the Kansas State Rifle Association, the NRA’s state affiliate.

“Reasonableness standard applies to everything,” Stoneking said. “You have to face imminent death or great bodily harm before you can use any measure of force to defend yourself. That’s our starting point.”

At the same time, she said, “The law isn’t saying you should seek out a fight. It’s simply saying if you must fight, you have a right to do that. It’s always beyond me why people don’t think someone has a right to defend themselves.”

Regardless of how an incident goes down, Stolz said, “You can assure yourself as a citizen that if you use force against another – either deadly force or some type of serious force – that it will be investigated. It may be justified, but it still has to be investigated to make sure all these reasonableness clauses were upheld.

“People illegally assault each other every day in this city. If you want to stay on the legal side, there has to be reasonableness.”

You are likely to be OK using the stand-your-ground law if someone is breaking into your house or trying to carjack your vehicle.

“If you are in your own home, your right to privacy and expectation of safety is a 10 on a scale of 10,” Stolz said. “In a motor vehicle, it’s pretty high. Out on the street, it’s a little lower. In a nightclub, even less.”

Watching for crime

Wichita has had a Neighborhood Watch program for decades, but citizens are instructed to only observe and report suspicious activity to police, Stolz said.

That was expanded to include Neighborhood Patrols for a few years during the 1990s as the result of a crime spike. Citizens walked a patrol and wore special jackets to identify themselves as part of the patrol, but they were armed with nothing more than cellphones and were told to call the police if there was a problem, Stolz said.

“The guy in Florida would have violated our reasonableness clauses by confronting the kid,” he said.

Before Kansas adopted its stand-your-ground law, the reasonable thought process was that if you could avoid violence, you needed to do that and look first for a way to flee.

“You couldn’t stay there and fight just because of your pride,” O’Hara said.

Jack Focht, a Wichita attorney and former prosecutor, finds it disturbing that the law was changed.

“It really broadens the use of self-defense,” he said. “It justifies using weapons. I don’t happen to be one who believes you should go around shooting one another except under limited circumstances.

“The gun lobby scares the hell out of me.”

But Stoneking said a person can’t necessarily avoid violence by leaving a situation.

“If someone is chasing you with a ball bat and they’re going to beat your brains out, are you supposed to run until they catch you?” she said. “Some people aren’t able to run. I wouldn’t get very far. Retreating is not always an option.”

But pursuing isn’t a good option either.

In a concealed-carry class she teaches in Bonner Springs, Stoneking said students are taught not to act like a cop and chase someone down.

“The law has worked fine in Kansas,” O’Hara said. “There hasn’t been much controversy. Before the reasonableness was, ‘Could have you avoided the violence?’ Now the reasonableness is, ‘Did you reasonably react to the situation?’ ”

Reach Rick Plumlee at 316-268-6660 or rplumlee@wichitaeagle.com.

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