Kansas appeals court clarifies use of ‘stand your ground’ defense

? The Kansas Court of Appeals issued a ruling Friday that could make it harder for people to assert blanket claims of immunity from arrest or prosecution under the state’s so-called “stand your ground” statute.

That law, passed in 2010, says individuals are immune from being arrested, detained or prosecuted for injuring, or even killing, another person if they acted in self-defense, unless there is “probable cause” for the arrest.

That law was just one in a series of new laws enacted in Kansas in recent years to expand the right of individuals to own and carry guns and to use them in self defense.

Last week, lawmakers passed and sent to Republican Gov. Sam Brownback a so-called “constitutional carry” bill. It would repeal the requirement for individuals to take a gun-safety course, submit to a background check and obtain a permit to carry a concealed handgun.

The case involved Marlon T. Hardy, who was arrested after he shot another man during a fight at a party in Wichita.

According to the appeals court decision, there were conflicting stories about exactly what happened, but the gist was that some other partygoers came outside and approached the car in which Hardy was riding. One of them, Javier Flores, punched Hardy in the face several times, apparently without provocation.

Hardy then picked up a gun that was inside the car and shot Flores, striking him in the shoulder.

Hardy was arrested for aggravated battery and, after a preliminary hearing, was bound over for trial. His lawyers then filed a motion asserting immunity based on the “stand your ground” law, and after a separate hearing, the trial judge dismissed the charges.

The Sedgwick County District Attorney’s office appealed the dismissal. Kansas Attorney General Derek Schmidt’s office took part in the appeal.

In its ruling Friday, the appeals court cited an earlier Kansas Supreme Court decision that said the burden of proof lies with the state to show probable cause for an arrest or prosecution. But neither that decision nor the statute itself gives any guidance for the procedures trial courts should use in deciding such questions.

In Hardy’s case, the appeals court said the trial court was wrong to hold a separate hearing where it considered evidence and testimony, including hearsay testimony that would not have been admissible at either the preliminary hearing or a trial.

Instead, the court said, the immunity claim should have been included at the preliminary hearing, where the court decides whether there is sufficient evidence to show that a crime was committed and that the defendant committed the crime before the case goes to trial.

Furthermore, the court said, while the state has the burden to show there was probable cause for the arrest, “If there is conflicting testimony, the preliminary hearing judge must accept the version of the testimony which is most favorable to the State.”

In other words, if a defendant says he was acting in self defense and the police say otherwise, it becomes an issue for a jury to decide at trial.

Officials at the Kansas Rifle Association did not respond to requests for comment on the decision.

Attorney General Derek Schmidt’s office also declined to comment, “due to our role representing the state and its agencies.”