On October 23, in the case of State v. Hendrix, the Kansas Supreme Court said that "a jury instruction on self-defense is not warranted unless the defendant has used actual physical force."
When Rodney Hendrix believed that his sister Charlotte Brown was about to slap him, he told her to back away or he would "break her neck." Subsequently charged with criminal threat and aggravated assault, he asked the trial court for a jury instruction on self-defense, The judge refused. The Court of Appeals upheld the trial court on the grounds that the self-defense defense requires that the defendant have used actual physical force. The Supreme Court affirmed.
According to the Court, the self-defense statute is unambiguous and covers only use of force, not threat of force. K.S.A. 21-3211 states: "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."
So if Mr. Hendrix had actually punched his sister, he would have been able to use self-defense in his subsequent batterty trial. Since he was able to de-escalate the situation with a mere threat of force, he cannot.
I find this to be an absurb result. Surely the legislature did not intend the self-defense statute to force people to hit or shoot an assailant when a threat would suffice.
I agree with the dissent who gives this hypothetical:
"Consider the following example. One evening, a large man approaches a woman in a menacing manner and threatens, 'I'm going to hurt you!' Worried for her life, the woman takes a gun from her purse, points it at her assailant, and says, 'Stay where you are!' The assailant turns and runs.
"Assume for the sake of the example that the woman is subsequently charged with aggravated assault. While she successfully repelled her attacker with constructive force, she is not entitled to a self-defense instruction according to the majority opinion. Had she actually shot her assailant, she may very well have been entitled to that instruction under that same rationale. This bizarre result cannot have been intended by the legislature in its enactment of K.S.A. 21-3211 (Furse 1995)."
I hope the legislature takes note and amends the law to cover the threat of force, as well as the use of force.
Read the opinion here: http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2009/20091023/97323.pdf