Petition for Writ of Certiorari — Kansas v. Clothier

IN THE SUPREME COURT OF THE UNITED STATES

Defendant-Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF KANSAS

nan me

---~

-

88 -1 68

No.

OCTOBER TERM, 1987

THE STATE OF KANSAS

Plaintiff-Petitioner

vs.

LLOYD D. CLOTHIER,

ROBERT T. STEPHAN

Attorney General of Kansas

Kansas Judicial Center

310 West 10th Street

Topeka, Kansas 66612

CLARK V. OWENS, II

(Counsel of Record)

District Attorney

18th Judicial District

Sedgwick County Courthouse

535 North Main

Wichita, Kansas 67203

(316) 268-7536

MONA LEE FURST

Assistant District Attorney

18th Judicial District

Sedgwick County Courthouse

535 North Main

Wichita, Kansas 67203

(316) 268-7577

Attorneys for Petitioner

PERT ET HHHeHAS

QUESTION PRESENTED

Do state statutes allowing the use

of force likely to cause death or great

bodily harm in defense of a dwelling and

property other than a dwelling, absent a

reasonable belief that such force is

necessary to prevent death or _ great

bodily harm violate the Fourteenth

Amendment rights to Due Process and Equal

Protection?

EPR GG

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I EQUAL PROTECTION ARGUMENT

IT DUE PROCESS ARGUMENT

III THE NEED FOR A UNIVERSAL

DECISION

CONCLUSION

APPENDIX

A - State v. Clothier

B - Transcript of Argument

Page

C - Excerpts of the State's Brief

TABLE OF AUTHORITIES

Cases: Page:

Ashcraft v. Mattis,

431 U.S. 171 (1977) 14,

Bartkus v. Illinois, 359 U.S. 121,

3 L.Ed.2d 684, 79 S.Ct. 676 (1959)

reh. den. 360 U.S. 907

Beard v. United States, 158 U.S. 550,

39 L.Ed. 1086,

15 S.Ct. 962 (1895)

Berman v. Parker, 348 U.S. 26,

99 L.Ed. 27, 75 S.Ct. 98 (1954)

Brown v. State, 149 Ark. 588,

233 S.W. 762 (1921)

Brown v. United States, 256 U.S. 335,

65 L.Ed. 961,

41 §.ct. 501 (1921)

Carey v. Piphus, 435 U.S. 247,

55 L.Ed.2d 252,

98 S.Ct. 1042 (1978)

24

22

19

18

28

19

24

Chapman v. Kentucky, 12 Ky. L. Rep. 704,

15 S.W. 50 (1891)

Conner v. Florida, 361 So. 2d 744,

(Fla. App. 1978)

Falco v. State, 407 Sc. 2d 203,

(Fla. 1981)

28

26

27

Cases: Page:

Jacobs v. City of Wichita,

531 F. Supp. 129,

(D. Kan. 1982) 18, 23

Johnson v. Zerbst, 304 U.S. 458,

82 L.Ed.2d 1461,

58 s.ct. 1019 (1938) 21

Loving v. Virginia, 388 U.S. l,

18 L.Ed.2d 1010,

87 S.Ct. 1817 (1967) 20

Mattis v. Schnarr, 547 F. 2d 1007,

n. 23 (8th Cir. 1976),

vacated moot sub nom. 14, 24

McDonald v. State, 597 S.W. 2d 365,

(Tex. App.) cert. den.,

499 U.S. 1010 (1980) 25

Mullaney v. Wilbur, 421 U.S. 684,

44 L.Ed.2d 508,

95 S.Ct. 1881 (1975) 21

Murdock v. Mayor, etc., of Memphis,

87 U.S. 429, 20 Wall 590 (1875) 12

New York Central Railroad Co. v.

White, 243 U.S. 188,

61 L.Ed. 667,

37 S.Ct. 247 (1916) 17

Palko v. Connecticut, 302 U.S. 319,

82 L.Ed. 288,

58 Ss.ct. 149 (1937) 18, 21

People v. Brown, 433 N.E. 2d 1081,

(Ill. App. 1982) 26

» if «

Cases: Page:

Roe v. Wade, 410 U.S. 113,

35 L.Ed.2d 147,

93 S.Ct. 705 (1973)

reh. den. 410 U.S. 959 21

Ross v. Moffitt, 417 U.S. 600,

41 L.Ed.2d 341,

94 §.Ct. 2437 (1974) 21

San Antonio School Dist. v. Rodriques,

411 U.S. 1, 36 L.Ed.2d 16,

93 S.Ct. 1278 (1973),

reh. den. 411 U.S. 959 14

Screws v. United States, 325 U.S. 9l,

89 L.Ed. 1495,

65 S.Ct. 1031 (1945) 14

State v. Blocker, 211 Kan. 185,

505 P.2d 1099 (1973) 6

State v. Cates, 223 Kan. 724,

576 P.2d 657 (1978) 6

State v. Clothier, 243 Kan. 8l,

P. 2d (1988) aa BOs Bho ka

State v. Gregory, 218 Kan. 180,

542 P.2d 1051 (1975) 19, 32

State v. Griffith, 9l Wash. 2d 572,

589 P.2d 799 (1979) 26

State v. Hedgepath, 46 N.C. App. 569,

265 S.E. 2d 413 (1980) 28

State v. Ivicsics, 604 S.W. 2d 773,

(Mo. App. 1980) 27

- iii -

— —

ne cecunenngrhintauay Wis scveiiea ak RRO SAS

Cases:

State v. Jones, 299 N.C. 103,

261 8.38, 26 141.3973)

State v. Kuta, 68 Wis. 2d 64l,

229 N.W. 2d 580 (1975)

State McCombs, 29

(1

V S.C. i351,

253 Siu 20 906 9

-

979)

State v. Simon, 231 Kan. 5/72,

646 P.2d 1119 (1982)

State v. Taylor, 143 Mo. 150,

44 S.W. 785 (1898)

State v. Weber, 246 Or. 312,

423 P.2d 767 (1967)

State v. Woods, 222 Kan. 179,

563 P.2d 1061 (1977)

Taylor v. Collins, 574 F. Supp.

£554 (2.0. Mich. i983)

Tennessee v. Garner, 471 U.S. Il

SS G&.Ba.~.44 ise

1051 S.Ct. 1694 (1985) 3%

La; i355 2 ts 20%

Walz v. Tax Commission, 397 U.S.

25 L.Ed.2d 697,

$0 S.Ct. 1409 (1970)

West Coast Hotel Co. v. Parrish,

300 U.S. 379 Gi LL.B. 7035,

+7 S.Ct. SIS (i930)

28

664,

22

OTHER AUTHORITIES

Page:

U.S. Constitution Amend. IV Be Al

U.S. Constitution Amend. XIV ee oe

ee bay Ld, 32

§§ 1 and 2 of the Kansas

Bill of Rights 2, 10

28 U.S.C. § 1257(3) z

28 U.S.C. § 2101(d) 3

42 U.S.C. $ 1983 16

K.§.A. 21-3211 any 27

K.S.A, 3212 1, 6, 7

K.S.A. 21-3213 ee Oy 7, 27

K.S.A. 21-3215(1) 19

K.S.A. 21-3404 5

K.S.A. 21-3715 23

K.S.A. 1987 Supp. 21-4501(d) (2) 23

Supreme Court Rule 20.1 3

Supreme Court Rule 20.4 3

Cal. Penal Code §§ 197-198.5

(West 1988) 29

Cases: Page:

Colo. Rev. State §§ 18-1-704,

18-1-704.5, 18-1-706 (1986)

Pia. Stat. Ana. SS 776.031,

776.08 (West 1976

Ill. Rev. Stat. ch. 38, $9 72

thru 7.3 (1977)

Mo. Ann. Stat. §§ 563.01 - .036,

563.041 (Vernon 1979)

N.Y. Penal Law §§ 35.15(2)

35.20(3) (McKinney 1987)

Ore. Rev. Stat. §§ 161.225,

161.229 (1986)

Tex. Pen. Code Ann. 9.42

(Vernon 1974)

Wisc. Stat. Ann. §§ 939.48-.49

LaFave and Scott, Crim. Law § 5.9

p.467 (2d Ed. 1986)

Wharton's Crim. Law & Procedure

§§ 220-221 (1957)

P.isK. Crim. 26 54.18

Pebhck« CESS. 344249

“et

25,

aT

26

26

29

27

SEGEEEEES

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE STATE OF KANSAS,

Plaintiff-Petitioner,

vs.

LLOYD D. CLOTHIER,

Defendant-Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF KANSAS

The State of Kansas, as

Petitioner, respectfully asks for a writ

of certiorari granting review of the

decision of the Supreme Court of the

State of Kansas entered April 29, 1988,

denying the State's appeal on a question

reserved involving the constitutionality

of two state statutes, K.S.A. 21-3212 and

K.S.A. 21-3213.

The opinion filed by the Kansas

Supreme Court is reported as State v.

Lloyd D. Clothier, 243 Kan. 81, __ P. 2d

(1988), a copy of which is attached

hereto as Appendix A. This decision

denied the State's appeal in which the

State questioned the constitutionality of

two jury instructions (and the Kansas

statutes upon which they were based)

dealing with the use of deadly force to

defend a dwelling and property other than

a dwelling. An excerpt of the trial

transcript in which the trial court

declined to follow the State's requested

instructions is attached hereto as

Appendix B.

This assertion was based upon the

denial of Due Process and Equal

Protection under the Fourteenth Amendment

to the United States Constitution, and §§

1 and 2 of the Kansas Bill of Rights,

and referred by analogy to Tennesee vy.

Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105

S. Ct. 1694 (1985). Garner was decided

based upon the Fourth Amendment

prohibition against unreasonable

seizures, and held that the use of deadly

force by a police officer to stop a non-

violent, fleeing felon, without probable

cause to believe the officer was in fear

for his life, or threatened with great

bodily harm was unconstitutional.

JURISDICTION

Petitioner seeks review of the

decision of the Kansas Supreme Court, the

court of last resort in the State of

Kansas, filed April 29, 1988. This

petition is filed within the sixty days

following the decision to be reviewed

pursuant to 28 U.S.C. § 2101(d), Sup. Ct.

Rule 20.1, and Sup. ct. Rule 20.4.

Jurisdiction is conferred upon this Court

under 28 U.S.C. §1257(3).

-3-

ll

CONSTITUTIONAL PROVISION

INVOLVED IN THIS CASE

No State shall .. . deprive any

person of life .. . without due

process of law; nor deny to

any person within its jurisdiction

the equal protection of the laws.

Section 1, Fourteenth Amendment to the

United States Constitution.

STATEMENT OF THE CASE

On the morning of November 23,

1986, the defendant was awakened for the

second time that morning around 3:30 a.m.

by his dog's barking and growling. He

retrieved his loaded gun from the

nightstand, and went to the dining room

window to look outside. The defendant did

not turn on any outdoor or indoor lights

before looking outside, nor did he call

the police.

The defendant saw someone by his

Suburban van, reaching inside. Instead of

EEEEEERERERSSSS

sittin sate hid et RDB PRE

calling the police, he closed his eyes

and fired through the dining room window

in the direction of his boat which was

parked next to the van. Upon opening his

eyes, the defendant saw a second person

run behind the van, and fired a second

shot through the window, aiming toward

the grass. A bullet found its way to

fifteen year old Seanan Picard, who

died a short time later from the gunshot

wound to his head.

The defendant was tried and

acquitted of involuntary manslaughter

based upon K.S.A. 21-3404. During the

course of the trial, the defendant stated

for the first time that the reason he

had shot without turning on lights,

calling the police, or sending out his

dog, was because he thought the victim

might see his garage door opener in the

van, and perhaps try to use it to enter

the locked house. He also testified that

la, A aid ae ape pian RE Felts =:

he never saw the victim get into the van,

nor did he see an weapon or any

other object in the prowler's hands.

The jury was instructed upon the

theory of the defense of a dwelling and

of property other than a dwelling under

K.S.A. 21-3212 and K.S.A. 21-3213, and

the Pattern Criminal Jury Instructions

for Kansas (P.I.K. Crim. 2d) 54.18 and

54.19, without the instructions requested

by the State limiting the use of force

likely to cause death or great bodily

harm to instances where the actor had a

reasonable belief that such force was

necessary to prevent death or great

bodily harm to himself or another, as is

required to assert self-defense or

defense of another person. State v.

Cates, 223 Kan. 724, 729, 576 P. 2d 657

(1978); State v. Woods, 222 Kan. 179,

183-184, 563 P. 2d 1061 (1977); State v.

Blocker, 211 Kan. 185, 192, 194, 505 P.

2d 1099 (1973). K.S.A. 21-3212 reads as

follows:

Use of force in defense of

dwelling. A person is justified

in the use of force against

another when and to the extent

that it appears to him and he

reasonably believes that such

conduct is necessary to prevent or

terminate such other's unlawful

entry into or attack upon his

dwelling.

K.S.A. 21-2313 states:

Use of force in defense of

property other than a

dwelling. A person who is

lawfully in possession of

property other than a dwelling is

justified in the threat or use of

force against another for’ the

purpose of preventing or

terminating an unlawful

interference with such property.

Only such degree of force or

threat thereof as a reasonable man

would deem necessary to prevent or

terminate the interference may

intentionally be used.

The instructions given by the trial court

to the jury followed this language

verbatim, and added the _ following

required under Kansas law on defense of

both a dwelling and other property (State

v. Simon, 231 Kan. 572, 575, 646 P. 2d

1119 [1982]; P.I.K. Crim. 2d 54.18 and

54.19):

Such justification requires both

a belief on the part of the

defendant and the existence of

facts that would persuade a

reasonable person to that belief.

The State of Kansas argued before

the trial court that without the

limitation on the use of deadly force to

circumstances where it is needed to

prevent death or great bodily harm, the

instructions (and necessarily the

statutes upon which the instructions were

based) violated the Constitution because

"the preservation of human life is much

more important [than property rights] and

that when deadly force is used it can

only be used under strictly scrutinized

parameters. ..™"™ (IV R. 574-575). (See

Appendix B).

The State's argument was based

upon an analogy to the case of Tennesee

TEETH

v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1,

105 Ss. Ct. 1694 (1985) in which this

Court held that it was a violation of

the Fourth Amendment's' prohibition

against unreasonable seizures for a

police officer to use deadly force to

stop a non-violent, unarmed fleeing

felon, without first having probable

cause to believe that the officer or

another person was in imminent danger of

the threat of death or great bodily harn.

To allow a state government to immunize

the lay public from the consequences of

the use of deadly force by providing them

a defense not available to law

enforcement officers trained and

experienced as representatives of law and

order constitutes "state action" which

denies the victims of the civilian

vigilantes the constitutional guarantees

of due process and equal protection

found in the Fourteenth Amendment. (IV

R. 572-575); State v.Clothier, 243 Kan.

at 84-85 (Appendix A). See also Appendix

c (pertinent pages of Petioner's brief

to the Kansas Supreme Court).

The jury was instructed as per the

statutes involved, with the trial judge

stating in response to the State's

objections that the instructions were "no

more and no less" than was mandated by

the legislature (IV R. 572, 578).

(Appendix B). The jury acquitted the

defendant.

The State appealed the issue on a

question reserved, and argued in its

brief and in oral argument as was done

before the trial court: that the

statutes violated the Fourteenth

Amendment to the United States

Constitution, and §§ 1 and 2 of the

Kansas Bill of Rights by denying the

victim and therefore all citizens, of

life-- the most fundamental of rights--

without the due process requirements of

a trial and proof of guilt beyond

a reasonable doubt, and without the equal

protection of the law. (Appendix C). If

it is unconstitutional to use deadly

force without the threat of death or

great bodily harm under the Fourth

Amendment, then by analogy, it is also

unconstitutional under the Fourteenth

Amendment when the State sanctions such

action. Id.

The Kansas Supreme Court denied

the appeal on April 29, 1988 by ruling

that the jury instructions were proper

and that the two statutes did not violate

the Fourth Amendment, although the court

had been presented with the issues in

terms of the Fourteenth Amendment. State

vy. Clothier, 243 Kan. 81, Syl. q 2, 85,

P. 2d (1988) (Appendix A and C).

The Kansas Supreme Court acknowledged

that the State had raised a

- ll -

"constitutional issue" alleging

the creation by the legislature of

defenses constituting "state

action" in the determination of

the “reasonable or unreasonable

. » use of force in defense of.

- property"

but deemed the issue one for _ the

legislature. 243 Kan. at 84-85. The

only issues presented to the Kansas

Supreme Ceurt involved the

constituvionality of the statutes in

question. Although the decision rested

upon Fourth Amendment grounds--an

assertion not raised by the Appellant

other than in terms of analogy to the

Garner rationale-- that court nonetheless

decided the constitutional issue adverse

to this Petitioner. This Court may

therefore determine the issues based upon

the Fourteenth Amendment’ claims

consistently asserted by the State herein

through out the trial and appeal of this

case in the courts of Kansas. See

Murdoc wT, ° etc of Memphis, 87

- 12 -

U.S. 429, 444, 20 Wall 590 (1875).

Petitioner, as the law

enforcement representative of the

citizens of Kansas, requests a writ of

certiorari to determine the

constitutionality of the Kansas_ state

statutes which deny the citizens of

Kansas and the United States their

Fourteenth Amendment rights to due

process and equal protection of the law,

by analogy to the rulings and rationale

in Tennesee v. Garner, 471 U.S. 1, 85 L.

Ed. 2d 1, 105 S. Ct. 1694 (1985).

NG THE -

THE RULINGS OF THE DISTRICT AND

SUPREME COURT OF THE STATE OF

KANSAS DENY ALL CITIZENS THE

FOURTEENTH AMENDMENT RIGHTS OF DUE .

PROCESS AND EQUAI PROTECTION BY

FAILING TO DECLARE

UNCONSTITUTIONAL STATE STATUTES

WHICH CREATE A DEFENSE FOR PRIVATE

CITIZENS TO THE USE OF DEADLY

FORCE WHEN THE USE OF SUCH FORCE

HAS BEEN HELD UNCONSTITUTIONAL

WHEN THE ACTOR IS A_ LAW

ENFORCEMENT OFFICER.

|

I. EQUAL PROTECTION ARGUMENT

The right te iite is a

fundamental, inalienable, natural right,

explicitly guaranteed to each citizen of

the United States, and which may not be

denied without the equal protection of

the law. U.S. Const. amend. XIV;

Tennessee v. Garner, 471 U.S. 1, 9, 85 L.

Ed. 2d 1, 105 S. Ct. 1694 (1985); Screws

Ve ite ates, 325 U.S. 91, 123, 134-

135, 89 Lt. Bas 1495, 68 8. Cts 2031

(1945) (concurring and dissenting

opinions) ; is v chnarr, 547 F. 2d

1007, 1017 and n. 23 (8th Cir. 1976),

vacate moot sub ___ nom. Ss a Vv

Mattis, 43% Gs 371i 0 = (3977) « The

statutes in question must therefore be

strictly scutinized to determine if they

are impermissible burdens upon the

constitutional right to life. See

- 14 -

2d 16, 93 S. Ct. 1278 (1973), reh. den.

411 U.S. 959. The importance of human

life, and its taking without

constitutional safeguards, has been

consistently recognized in decisions of

this Court and of the Federal Circuit

Courts as exemplified by Tennessee v.

Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105

S. Ct. 1694 (1985) where this Court

stated:

The suspect's fundamental interest

in his own life need not be

elaborated upon. The use of

deadly force also frustrates the

interest of the individual and of

society in judicial determination

of guilt and punishment. Against

these interests are ranged

governmental interests in

effective law enforcement. . .[WJe

are not convinced that the use of

deadly force is a_ sufficiently

productive means of accomplishing

{the goals of effective law

enforcement] to justify the

killing of nonviolent suspects.

- - »« The use of deadly force is a

self-defeating way of apprehending

a suspect and so_ setting he

criminal justice mechanism in

motion. If successful, it

guarantees that that mechanism

- 15 =-

will not be set in motion... I t

is not better that all

felony suspects die than that they

escape. Where the suspect poses no

immediate threat to the officer

and _ no threat to others, the harm

resulting from failing to

apprehend him does not justify

use of deadly force to do so.

Id. at 471 U.S. 9-10 (emphasis added).

Although this case dealt with a

civil action for damages pursuant to 42

U.S.C. § 1983, the above language

indicates not only a recognition for a

need to change in the area of law

enforcement practices, but also appears

to recognize that the fundamental

interest in life calls for due process,

in the form of the proper determinations

of guilt or innocence within the systen,

before a life can be summarily deprived,

as was Seanan Picard's. The Court

recognized that the need for the common

law rule allowing any force to arrest a

fleeing felon developed at a time when

most felonies were punishable by death,

- 16 =

and the occurence of a suspect's

death before conviction was of no greater

consequence than his ultimate punishment.

Tennesee v. Garner, 471 U.S. at 4, ll,

14. Noting that the modern trend has

been away from such use of force, the

Court ultimately ruled as it did. Jd. at

18-20.

No one has a vested right in any

rule of law entitling him to insist it

remain unchanged in violation of the

Constitution; the law must respond to the

needs of the people in aie changing,

dynamic society. Walz sv. Tax

Commissioner, 397 U.S. 664, 678, 25 L.

Ed. 2d 697, 90 S. Ct. 1409 (1970); New

York Central R.R. Co. v. White, 243 U.S.

188, 198, 61 L. Ed. 667, 37 S. Ct. 247

(1916). Although a State may adopt

legislation changing the common law when

it is reasonably necessary, based upon

its “police power" exercised to promote

- 17 -

TEEECEEETE

public safety, when this

legislation abridges fundamental rights,

it must be struck down. Berman v.

Parker, 348 U.S. 26, 32, 99 L. Ed. 27,

75 S. Ct 98 (1954); Palko v. Connecticut,

302 U.S. 319, 327, 82 L. Ed. 288, 58 S.

ct. 149 (1937). The common law rule

allowing the killing of a fleeing,

nonviolent felon has been recognized as

having “outlived its underpinnings of

principle and policy." Jacobs v. City of

Wichita, 531 F. Supp. 129, 131 (D. Kan.

1982). The law recognizes the right to

use self-defense only in circumstances

involving the threat of death or great

bodily harm. This Court should

recognize the need to address and change

laws which give greater deferrence to

property than to human life by striking

down the Kansas statutes which allow this

inequity.

In a situation where the

- 18 -

PERE EERPECEEESS

antagonist is armed, both a private

Kansas citizen and the police are

protected from criminal liability if they

use deadly force to protect a life.

Tennesee vy. Garner, 471 U.S. at 11-12;

Brown v. United States, 256 U.S. 335, 65

L. Ed. 961, 41 S. Ct. 501 (1921); Beard

) v. United States, 158 U.S. 550, 39 L. Ed.

1086, 15 S. Ct. 962 (1895);_ State yv.

) Gregory, 218 Kan. 180, Syl. 4 5, 542 P.

| 2d 1051 (1975); K.S.A. 21-3211; K.S.A.

21-3215(1). But when the felon is

: unarmed and nonviolent, the ruling of the

Kansas Supreme Court has denied equal

| application of the law by allowing a

state legislated defense to apply to

) private citizens, condoning their use of

deadly force in the same situation where

it has been held a law enforcement

officer cannot. There is no compelling

state interest in having statutes which

deny the fundamental right of life to

ee OGG I

- 19 -

ieee

ee

members of the public without equal

protection to unarmed victims killed by a

private citizen in circumstances where a

trained police officer could not do the

same. The statutes should have been, and

must now be, struck down. Loving v.

Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010,

87 S. Ct. 1817 (1967).

The use of deadly force by an

actor should not depend upon the status

of the triggerman, but rather should be

used when a necessity to prevent death or

great bodily harm exists, thereby

placing the fundamental right to life

above a mere interest in property. See

Taylor v. Collins, 574 F. Supp. 1554

(E.D. Mich. 1983) (following Tennesse v.

Garner). By upholding the two Kansas

statutes as constitutional, the Kansas

Supreme Court has validated the

"disparity in treatment by a State

between Classes of individuals whose

= 20 -

" ‘ a er ey Dain th EE cb ay tk nd een ime ee shee

wae depen phipatienataptye mA NS PSK FASE SEL Ee

ong

situations are arguably

indistingishable. Ross v. Moffitt, 417

U.S. 600, 609, 41 L. Ed. 2d 341, 94 S.

Ct. 2437 (1974).

II. DUE PROCESS ARGUMENT

No person shall be denied the

fundamental right to life without due

process of law. Roe v. Wade, 410 U.S.

133, 157, 35 L. EG. 24 147, 93 8. Ct. 705

| (1973) reh. den. 410 U.S. 959; Johnson v.

Zerbst, 304 U.S. 458, 462, 82 L. Ed. 2d

1461, 33 8. ©. 2039 (1938). This

includes the procedural safeguards,

| referred to in Tennessee v. Garner of

determining guilt or innocence through

the criminal justice system by way of

trial requiring proof beyond a reasonable

doubt shown by the prosecution. Palko v.

Connecticut, 302 U.S. 319, 327, 82 L. Ed.

288, 58 S. Ct. 149, 153 (1937); Mullaney

v. Wilbur, 421 U.S. 684, 701, 704, 44 L.

- 21-

i — 4

Ed. 2d 508, 95 S. Ct. 1881 (1975). The

applicable test in determining whether

legislation transgresses upon the

guarantee of que process is whether or

not the statute bears ae rational

relationship to a permissible legislative

objective. Wes t

Parrish, 300 U.S. 379, 81 L. Ed. 703, 57

S. Ct. S78 (1936). In making this

decision, the Court must balance all

relevant and conflicting factors

involved. Bartkus v. Illinois, 359 U.S.

121, 128, 3 L. Ed. 2d 684, 79 S. Ct. 676

(1959), reh. den. 360 U.S. 907.

There is no reasonable basis to

allow private citizens to kill

nonviolent, would-be car burglars when

the punishment for the crime being

committed by Seanan Picard at the time of

his death had he been an adult, would

have been a maximum prison term of 3-10

years, imposed after all the attendant

procedural safeguards provided by a trial

by jury requiring proof beyond a

reasonable. K.S.A. 21-3715; K.S.A.

1987 Supp. 21-4501 (d) (2). The only

state interest that could possibly be

sufficiently compelling to justify such a

killing would be in protecting the life

or safety of oneself or that of another.

See Jacobs v. City of Wichita, 531 F.

Supp. 129 (D. Kan. 1982).

There is no reasonable basis to

afford greater protection in civil or

criminal actions to a private citizen in

protecting his property than is given any

other person in protecting human life.

To do so is to authorize the unjustified

summary execution of a suspect, without

benefit of a trial, or other procedural

safeguards of due process of law, for a

mere property crime. This is a state

Constitution of both Kansas and the

: sanctioned act which is abhorrent to the

- 23 -

United States, and which can not stand

up to the strict scrutiny given such

statutes which impinge on fundamental

rights. See Mattis v. Schnarr, 547 F. 2d

1007, 1019, n. 29 (8th Cir. 1976),

vacated moot sub nom. -_ Ashcraft v.

Mattis, 431 U.S. 171 (1977). To allow

these statutes to remain intact is to

deny citizens protection from the

unjustified deprivation of life which the

due process clause is meant to protect.

Carey v. Piphus, 435 U.S. 247, 259, 55 L.

Ed. 2d 252, 98 S. Ct. 1042 (1978).

iit. THE NEED FOR A_ UNIVERSAL

DECISION

There is diversity among the many

states, with no definitive, universal

solution on the issue of using deadly

force to defend one's home and property.

For example, Tex. Pen. Code Ann. § 9.42

(Vernon 1974) states that a person may

justifiably use deadly force against

- 24<-

another to protect land or tangible,

movable property. This statue goes so

far as to permit the use of deadly force

to prevent one from fleeing with

property, even though the escapee is no

longer a threat to the defender.

McDonald v. State, 597 S.W. 2d 365 (Tex.

App) cert. denied 449 U.S. 1010 (1980).

Colorado, with the infamous "make

my day” law allows the defender to employ

deadly force to protect a home if the

intruder has 1) made an unlawful and

entry and 2) if the occupant reasonably

believes that the intruder might use any

type of physical force, no matter how

slight, against any occupant. Colo. Rev.

Stat. § 18-1-704.5 (1986). Even this

state, however, limits the use of deadly

force in protecting property from

interference to situations where there is

imminent danger of death or bodily harn.

Id. at §§ 18-1-704 and 18-1-706.

- 25 -

Other states, such as Illinois and

Wisconsin, require a reasonable belief

| of imminent death or great bodily harm

before deadly force may be employed

without legal sanction when defending

dwelling, property, or human life. Ill.

Rev. Stat. ch. 38, §§ 7-1 - 7-3 (1977);

: People v. Brown, 433 N. E. 2d 1081 (Ill.

App. 1982); Wisc. Stat. Ann. §§ 939.48-

-49 cited in State v. Kuta, 68 Wis. 2d

641, 229 N.W. 2d 580 (1975). See also Mo.

Stat. Ann. §§ 563.031-.036, 563.041

(Vernon 1979). Some states have even held

that it is per se unreasonable and

excessive force as a matter of law to use

deadly force absent necessity. Conner v.

Florida, 361 So. 2d 774, 776 (Fla. App.

1978); State v. Jones, 299 N.C. 103,

261 S.E. 2d 1, 8 (1979); v. W ,

246 Or. 312, 423 P. 2d 767, 770 (1967),

cert. den. 389 U.S. 863; State vv.

Griffith, 91 Wash. 2d 572, 589 P. 2d 799,

~- 26 -

803 (1979).

Use of deadly force to defend a

dwelling in these and other states is

seen as an extention of the right to

self-defense, and requires that an actual

attempt or entry of the dwelling be

attained, along with the reasonable

belief that the intruder intends’ to

commit a felony therein. Falco v. State,

407 So. 2d 203 (Fla. 1981); State v.

Ivicsics, 604 S.W. 2d 773 (Mo. App.

1980); State v. Taylor, 143 Mo. 150, 44

S.W. 785 (1898); Colo. Rev. Stat. § 18-1-

704.5 (1986); Fla. Stat. Ann. §§ 776.031,

776.08 (West 1976 and Supp. 1988); Ore.

Rev. Stat. §§ 161.225, 161.229 (1986).

See also 1 Wharton's Crim. Law and

Procedure §§ 220-221 (1957). Yet the

Kansas statutes, which were derived from

those of Illinois and Wisconsin, (See

Judicial Council Comments to K.S.A. 21-

3211-K.S.A. 21-3213) allow the jury to

- 27 «

decide when such use is reasonable when

property is concerned, even though the

law decides when it is reasonable in

defense of a life.

Many states already follow the

path asserted by the Petitioner herein by

holding that the use of deadly force

which results in the taking of human life

merely to defend any property is never

reasonable, nor is this interest superior

to the interest in human life. r Vv.

State, 149 Ark. 588, 233 S.W. 762, 763

(1921); Chapman _v. Kentucky, 12 Ky. L.

Rep. 704, 15 S.W. 50, 51 (1891); State v.

McCombs, 297 N.C. 151, 253 S.E. 2d 906,

911 (1979); State v. Hedgepath, 46 N.C.

App. 569, 265 S.E. 2d 413, 416 (1980).

Lastly, states like California and

New York have adopted the Model Penal

Code. This is more specific in its

requirements, limiting deadly force to

instances in which there is’ substantial

-28 -

risk to the person. Deadly force may be

utilized if the occupant believes that

the trespasser is attempting to commit a

felony and either (1) has employed or

threatened deadly force against or in the

presence of the occupant, or (2) the use

of force other than deadly force would

expose the occupant or another to

substantial danger or serious’. bodily

harn. Cal. Penal Code §§ 197-198.5

(West 1988); N.Y Penal Law §§ 35.15(2),

35.20(3) (McKinney 1987). See also

LaFave and Scott, Crim. Law § 5.9, p. 467

(2d Ed. 1986).

CONCLUSION

The current differences in state

law regarding the degree of force which

may be used to protect property is

inherently unjust and unconstitutional.

It is absurd that a person who guns down

- 29 -

a fifteen year old boy for tampering

with

his vehicle may be held to answer for his

use of excessive force in one state, but

may shoot with impunity in another.

By upholding these statutes which

grant greater deferrence to property than

to human life in circumstances where this

Court has ruled such action

unconstitutional if the actor is a

trained law enforcement officer, the

Kansas Supreme Court has created a State

sanctioned defense for vigilante violence

which is repugnant to both the Equal

Protection and Due Process clauses of

the Fourteenth Amendment to the United

States Constitution. The state action of

creating such legislative defenses

allowing private citizens to kill when

law enforcement officials cannot must be

examined with great scrutiny by this

Court so as to obtain a definitive,

- 30 -

universal answer on the issue of

deadly force absent the threat of death

or harm to human life.

a —

Suge i om IL

CLARK V. OWENS, II

(Counsel of Record)

District Attorney

MONA LEE FURST

Assistant District

Attorney

18th Judicial District

Sedgwick County Courthouse

535 North Main

Wichita, Kansas 67203

(326) 268-7536

ROBERT T. STEPHAN

Attorney General or Kansas

Kansas Judicial Center

310 West 10th Street

Topeka, Kansas 66612

Attorneys for Petitioner

APPENDI X

‘ad

a — ee a ence apie eae re oe ee ae pu ere, ee ee ee ae “nae. a ae Pe Se

VOL. 243 JANUARY TERM, 1988 81

State v. Clothier

No. 61,006

STATE OF KANSAS, Appellant, v. LLOYD D.

CLOTHIER, Appellee

SYLLABUS BY THE COURT

ha CRIMINAL LAW--Involuntary

Manslaughter--Jury Instructions.

In a criminal action where the

defendant was charged with involuntary

manslaughter, it is held that the trial

court did not err in refusing to instruct

the jury that a person is justified in

using force likely to cause death or

great bodily harm in defense of property

only when he reasonably believes that

such force is necessary to prevent death

or great bodily harm to himself or

another.

2. SAME--Constitutionality of

Criminal Statutes Justifying Use

of Force to Protect One's Dwelling

or Other Property. K.S.A. 21-3212

and kK.S.A. 2i-3213 are not

unconstitutional as a violation of

the Fourth Amendment rights of

the deceased victim.

Appeal from Sedgwick district court;

OWEN BALLINGER, judge. Opinion filed

April 29, 1988. Appeal denied.

Mona Furst, assistant district

attorney, argued the cause, and Robert T

Stephan, attorney general, and Clark V.

Qwens, district attorney, were with her

on the brief for appellant.

fete Paste ghedin eee en RTS St

es cx gids seem rts easy eee aCe.

Se AR La he MA AT Cr SRE AS GEN LN EINE NEMEC Ee

Jack Focht, of Focht, Hughey, Hund &

Calvert, of Wichita, argued the cause and

was on the brief for appellee.

The opinion of the court was delivered by

PRAGER, C.J.: This is an appeal by the

State on a question reserved following

the acquittal of the defendant, Lloyd D.

Clothier, on a charge of involuntary

manslaughter (K.S.A. 1987 Supp. 21-3404).

The evidence presented at the trial was

essentially as _ follows: Defendant

Clothier was awakened by his barking dog

at his home around 3:30 a.m. on

November 23, 1986. He got up and let the

dog out of the house. A few minutes

later, the dog returned. Defendant

» returned to bed, but the dog continued

snarling. Defendant got up, took a

revolver from his nightstand, and went to

the dining roon. He looked out’ the

window and observed someone reaching in

the window of his automobile parked on

the driveway. The person had not only

broken the window but had actually opened

the door of the vehicle. Defendant was

scared and concerned, because his garage

door opener was located inside the

vehicle. Defendant testified that he

wanted to evare the person away so he

fired a warning shot through the window,

not intending to hurt anyone. He then

saw someone run behind the car and across

the yard. He fired another shot, aiming

down at the ground, to warn the person

not to return. Defendant told his girl

friend to call the police. He then

stepped outside of the house and saw

15-year old Seanan Picard lying injured

on the driveway. Picard later died from

a gunshot wound to the head. Defendant

was acquitted by the jury on the theory

that he acted in defense of his

property.

The State appealed on a question

reserved. The question presented is

whether the district court erred in

instructing the jury that a person may

use deadly force to defend a dwelling or

property other than a dwelling, without

limiting such instruction to situations

in which human life and safety are

imminently endangered. The court

instructed the jury as follows:

"INSTRUCTION 6

"Use of force in the defense of a

dwelling. A person is justified in the

use of force against another when and to

the extent that it appears to him and he

reasonably believes that such conduct is

necessary to prevent or terminate such

other's unlawful entry into or attack

upon his dwelling. Such justification

requires both a belief on the part of

defendant and the existence of facts that

would persuade a reasonable person to

that belief.

"Use of force in defense of property

other than a dwelling. A person who is

lawfully in possession of property other

than a dwelling is justified in the

threat, or use of force against another

for the purpose of preventing or

terminating an unlawful interference with

such property. Only such degree of force

or threat of force thereof as a

reasonable man would deem necessary to

prevent or terminate the interference may

be intentionally used."

At the close of the evidence the State

submitted to the court a proposed jury

instruction which stated:

"A person is justified in using force

likely to cause death or great bodily

harm in defense of property not a

dwelling only when he reasonably believes

that such force is necessary to prevent

death or great bodily harm to [himself]

{another]."

The instruction as actually given by

the court, followed the language of

K.S.A. 21-3212 and K.S.A. 21-3213, as

well as PIK Crim. 2d 54.18 and 54.19.

K.S.A. 21-3212 and K.S.A. 22-3213 provide

as follows:

"21-3212. Use of force in defense of

dwelling. A person is justified in the

A- 6 -

Sa SS

use of force against another when and to

the extent that it appears to him and he

reasonably believes that such conduct is

necessary to prevent or terminate such

other's unlawful entry into or attack

upon his dwelling."

"21-3213. Use of force in defense of

property other than a dwelling. A person

who is lawfully in possession of property

other than a dwelling is justified in the

threat or use of force against another

for the purpose of preventing or

terminating an unlawful interference with

such property. Only such degree of force

or threat thereof as a reasonable man

would deem necessary to prevent or

terminate the interference may

intentionally be used."

The State argues that these statutes

are in derogation of the common law which

prohibits the use of deadly force in

defense of property unless there is a

threat of imminent bodily harm prior to

the use of such force. At the time of

the adoption of the Kansas Criminal Code

in 1969, the proposal by the Kansas

Judicial Council included the following

concluding sentence to the proposed

oo

K.S.A. 21-3213:

"Tt is not reasonable to intentionally

use force intended or likely to cause

death or great bodily harm for the sole

purpose of defending property other than

a dwelling."

That sentence was deleted by the

legislature, demonstrating an intent to

avoid limitation, thus leaving this

section apparently as broad as K.S.A.

21-3212. See the author's comment in

Vernon's Kansas Crim. C. § 21-3213, p.

200 (1971). In adopting that position,

the Kansas legislature joined a minority

of jurisdictions which permit the use of

all reasonably necessary force in the

defense of property other than a

dwelling.

It is the position of the State on this

appeal that the jury instructions on the

use of force in defense of a dwelling and

in defense of property other than a

dwelling (K.S.A. 21-3212 and 21-3213) are

unconstitutional as a violation of the

Fourth Amendment to the United States

Constitution. The State bases its

argument on the case of Tennessee _ v.

Garner, 471 wie. 2, 85 Ls EG. 241, 105

S. Ct. 1694 (1985), where the United

States Supreme Court ruled that’ the

Fourth Amendment prohibits the use of

deadly force by a police officer to

prevent the escape of a suspected felon

unless it is necessary to prevent the

escape and the pursuing police officer

has probable cause to believe that the

Suspect poses a significant threat of

death or serious physical injury to the

officer or others. Tennessee v. Garner

involved an action brought by a father in

federal district court seeking damages

against a police officer and the city of

Memphis, Tennessee, under 42 U.S.C. §

1983 (1982), for claimed violations of

his deceased son's’7 constitutional

rights. The son was killed by the

Memphis police officer as the son fled

over a fence; in the backyard of a house

he was hecetarteing: The officer used

deadly force to prevent the escape,

observing only that the burglar was 17

or 18 years old and of slight build. The

United States Supreme Court held that the

use of deadly force under’ those

circumstances to prevent the escape of an

unarmed suspected felon violated the

Fourth Amendment civil rights of the

deceased son.

The State on this appeal has taken the

position that, if the police cannot use

deadly force to stop a 15-year old

burglary suspect without probable cause,

why should a private citizen have that

privilege? The State maintains that the

defenses created by K.S.A. 21-3212 and

a ~ 10

21-3213 constitute state action which

violates the Fourth Amendment.

Counsel for the defendant first

contends that this court lacks

jurisdiction to determine the issue,

because the issue of constitutionality of

the two statutes was not raised in

district court. We have considered the

record in the case and note that the

prosecutor objected to the failure of the

trial court to give the requested

instruction, and specifically mentioned

the case of Tennessee v. Garner and that

there was a constitutional issue

involved. The trial court overruled the

State's objection. Under the

circumstances, we have concluded that

this court has jurisdiction of the issue

on this appeal.

In determining this issue, we note that

the State concedes that the instruction

A- 11

on defense of property given by the

trial court was a correct statement of

Kansas law. The statutory justification

for the use of deadly force is contained

in K.S.A. 21-3211, 21-3212, and 21-3213

and presents a fact issue to be

determined by the trier of fact using an

objective standard, j.e., from the

viewpoint of a reasonable man in the

accused's position. State v. Simon, 231

Kan. 572, 646 P.2d 1119 (1982).

The instructions as given by the court

in this case follow the requirements of

the Kansas statute. It has long been the

rule in Kansas that all crimes are

established by legislative act. There

are no common-law crimes in Kansas, and

there can be no convictions except for

such crimes as are defined by statute.

State v. Jackson, 239 Kan. 463, 721 P,2d

232 (1986); _State v. Young, 55 Kan. 349,

A- 12

356, 40 Pac. 659 (1895). As pointed

out in State v. Sexton, 232 Kan. 539,

543, 657 P.2d 43 (1983), it is also the

rule in this state that a criminal

statute will not be extended by courts to

embrace acts or conduct not clearly

included within its prohibitions, citing

State v. Doyen, 224 Kan. 482, 488, 580

P.2d 1351 (1978). Our criminal statutes

are to be strictly construed. State v.

Kearns, 229 Kan. 207, 208, 623 P.2d 507

(1981).

The State's argument in this case

presents essentially a quarrel with the

legislative wisdom of deciding to grant

the defenses set forth in K.S.A. 21-3212

and K.S.A. 21-3213. In asking this court

to change the rule of self-defense

provided by statute, the State is in

effect asking this court to exercise a

legislative prerogative. The legislature

A- 13

a

has made a determination that juries in

Kansas should be allowed to determine

whether the action of a person was

reasonable or unreasonable in the use of

force in defense of his property.

As to the claim of unconstitutionality

based upon Tennessee v. Garner, we hold

that the rule of that case has no

application in a criminal case.

Tennessee v. Garner must be followed in

determining the rights of an injured

victim in a civil action where he claims

that excessive force was used by a police

officer or by a private individual. The

rule, however, has no application where

an owner of property who used force in

defense of his property is charged with

the crime of involuntary manslaughter.

In the opinion in Tennessee v. Garner,

the Supreme Court of the United States

does not at any place state that a

A- 14

criminal defense such as we have in

K.S.A. 21-3212 and K.S.A. 21-3213 would

be a violation of the United States

Constitution.

State v. Stokes, 215 Kan 5, 523

P.2d 364 (1974), was a case involving

defense of the person, not property.

There is no language in Stokes which

changes the law of defense of property as

provided by K.S.A. 21-3212 and 21-3213.

As pointed out by counsel for the

defendant is his brief, the law in Kansas

is clear that the legislature has

determined by statute that a jury should

determine whether or not the application

of force in defense of property was

reasonable under all the circumstances

existing. The trial court in this case

had no right to exercise its judgment in

determining the reasonableness of the

defendant's actions, for to do so would

a = 35

Ee

REP eS.

eye"

be an intrusion into the function of the

jury. Based upon the reasoning set forth

above, we hold that the trial court did

not err in its instructions to the jury

on the issue of the reasonableness of the

force used by defendant in defense of his

property.

The appeal of the State is denied.

m= 16

APPENDI X B

(Thereupon, at 3:35

o'clock P. M. on

the i2th day of

May, 1987, the

Foeoiieowrinas

proceedings were

had, the defendant

being present and

the jury not being

present.)

THE COURT: Mr. Puntch, do you

have an extra copy of the amended

complaint-information that was filed

May 4, 1987?

MR PUNTCH: Let me check, your

Honor. I did see one in the file.

THE COURT: I know there is one

that's put in the back of the file that

was filed, but I wanted to mark on one

freely without defacing the original.

MR. PUNTCH: I have got it right

here.

COURT: Now, then, each one of

you have copies of the instructions and

the verdict form. Before we get started

I understand the State wishes to make an

amendment to the complaint and

information.

MR. PUNTCH: Well, your Honor, I

am not sure I am making an amendment.

Under the complaint information as filed

the State alleged that the lawful act of

defense of property was done in an

unlawful or wanton (sic) manner in this

case. And at this time the State elects

to proceed on the theory that the lawful

act of defense of property was done in an

unlawful manner by use of excessive

force.

THE COURT: Okay.

MR. PUNTCH: If the Court requires

an amendment I shall prepare and file one

with the Court but I am doing so in open

court and that is the State's election.

————————

THE COURT: As long as it is in

the record that you are proceeding on a

theory other than wantoness (sic) and it

is just on that it is an unlawful act?

MR. PUNTCH: Yes, your Honor;

THE COURT: Excessive force.

Okay. Now then, gentlemen, you both have

copies of the verdict form and the eleven

instructions. If either one of you have

any objections let's hear then. The

State always goes first.

MR. PUNTCH: Well, thank you,

your Honor. Yes. With regard to this

case, first of all the State proposed

certain forms of instructions which the

Court has a copy of, and it is the

position of the State in this case that

the State's first proposed instruction

has been given with another addition.

The State's second proposed

instruction is being given with some

additions to it.

“

e s s

The State's third proposed

instruction the Court has said it will

not give, and I wish to make a record on

that point.

THE COURT: Go ahead.

MR. PUNTCH: The State's third

proposed instruction is that a person is

justified in using force likely to cause

death or great bodily harm in defense of

property not a dwelling only when he

reasonably believes that such force is

necessary to prevent death or great

bodily harm to himself or another. I

have taken that instruction from language

in the case of State v. Stokes, 215

Kansas at page 5. State v. Stokes was a

case which involved self defense. In

that case the Supreme Court approved an

instruction which stated the basic law of

self defense in the State of Kansas and

which further had the language I just

quoted to you. I believe that is still

the law in the State of Kansas, that in

self defense a person may not use deadly

force unless that person reasonably

believes that such force is necessary to

prevent death or great bodily harm to

himself or another.

It is the position of the State of

Kansas, your honor, in that case that a

person who is merely defending property

or defending a dwelling has no right to

use any greater force than a person would

be able to use in defense of their own

life. It is illogical and inconceivable

that a person would be able to take

another's life in defense of themselves

only under circumstances where they fear

great bodily harm or in taking their own

life. But to take another person's life

merely in defense or (sic) property

without such apprehension of great bodily

harm or death to someone else, it is I

believe merely a logical extension of the

j EEE EERE es

law arguing from self defense to defense

of property or defense of a dwelling. I

suggest that there is some support for

that position in the case of State v.

Johnson, 6 Kansas Appeals 2d 750. In

that case the person was charged with

aggravated assault when he shot at some

persons who were on his property. He

also was attempting to make an arrest

during the course of that case. He was

convicted of aggravated assault. Part

of the theory was that the defense of

property in that case involved the use

of excessive force; that is, the use of

the weapon. The interesting part about

that case is that it cites KSA 21-3216,

the type of force which a person may use

in making an arrest.

Now, I note an arrest situation is

an inherently dangerous situation when a

private person is attempting to make an

arrest. It is a confrontative situation

a

a § & & " , ) :

when a person is attempting to make an

arrest under those circumstances where

the danger is much higher than merely

attempting to protect your property. The

statute clearly states you may use deadly

force under those circumstances when that

person reasonably believes the person may

cause great bodily harm if they do not

use force in apprehending the individual.

State v. Blocker in 211 Kansas

page 185 cited in Stokes as support for

the position that person may use only

such force as is reasonably necessary up

to that point to defend themselves.

State v. Stokes was later cited with

approval in the case of State v. Cates

which is in 222 Kansas but I don't

remember the exact page. It is a case

out of Sedgwick County, Kansas, and

again was merely to support the

proposition that deadly force may be used

only to repel deadly force.

In the case of Tennessee v. Garner

in a United States Supreme Court case

back in 1985 the Supreme Court found it a

matter of constitutional law that a

policeman may not use deadly force to

shoot a non-violent fleeing felon, and

the point I am making with all of that is

the trend of the courts of this country

are that although property rights are

important the preservation of human life

is much more important and that when

deadly force is used it can only be used

under strictly scrutinized parameters,

and the jury is entitled in this case to

be instructed on the law as to the use of

deadly force as was used in this case and

that it is I believe the law of the State

of Kansas as it exists at this time, and

I object for those reasons for that not

being included, your Honor.

With regard to the instructions

proposed which were proposed by the Court

——

q Prec re§ F s ¥ " s “a . ‘ 4 cay

ae ee ——— —— - _

the State has no objection to

Instruction No. 1, the State has no

objection to [Instruction No. 2. The

State has no objection to Instruction No.

36

With regard to Instruction No. 4

it is the position of the State of Kansas

in this case that the State could

proceed on the theory that the acts which

the defendant committed in this case as

has been testified to from the witness

stand fall into two separate categories,

and that the jury was entitled to be

instructed on each one, that the

Defendant's acts were lawful in that he

was defending property or as he testified

a dwelling, but they were done in an

unlawful manner by the use of excessive

force and that is the theory upon which

the Court has instructed after the

State's election. I am merely preserving

for the record the State's position that

this case is different from the case of

State v. Betty Warren, and I will get

that cite for you in a moment.

MR. FOCHT: 5 Kansas Appeals 2d.

MR. PUNTCH: Yes, I know it is 5

Kansas Appeals something. I don't have

it with me. Thank you, counsel. As I am

sure the Court is aware State v. Warren

says that when you are talking about self

defense that conduct may be lawfully done

in an unlawful manner. Lawful conduct

may be done unlawfully but self defense

can't be done in a wanton manner. That

is basically the import of State v.

Warren.

It is my argument to the Court and

I believe based pon the earlier argument

I made about the use of deadly force in

self defense applying to defense of

property that defense of property is

quite different from self defense, that

when you are merely talking about objects

B- 10

g HHH

that there is a higher standard of care

which applies to that than applies to

protecting one's own life, that you

should not be able to use deadly force

without some higher standard, that there

is a higher standard that applies in

protecting property, using deadly force

to protect property than there does to

protect another human life and because of

that the Supreme Court ruling in State

v. Warren is not applicable here in that

the Defendant's acts in this case

although lawful can in fact be done ina

wanton manner, that the jury could find

that the force which was used by the

defendant in this case was not excessive

but that the manner of application of

that force in this case was wanton. And

I am stating this on the record merely to

preserve the record. I have made the

election as I noted before and we are

proceeding on that theory and my purpose

B= ii

in this part of the argument is merely to

preserve that.

The State has no objection to

Instruction No. 5, Instruction No. 6,

Instruction No. 7, Instruction No. 8,

Instruction No. 9, Instruction No. 10,

Instruction No. 11.

THE COURT: We will take these up

as they were presented to the Court with

the State's objections first.

MR. PUNTCH: Your Honor, excuse

me. I have also reviewed the verdict

form. The State has no objection to the

verdict forn.

THE COURT: Thank you.

Instruction No. 4 was changed to fit the

amendment that the State made to fit the

theory that they are following in the

case at this time. No. 6, there are two

paragraphs and the first paragraph is

just exactly verbatim what the statute

says is the right to use force in the

es - 12

defense of a dwelling. No more, no iess.

It is just exactly what the statute says.

And the second paragraph is the same.

It is what the statute says the use of

force in defense of property other than a

dwelling may be. It is exactly what the

legislature said it shall be, no more and

no less. And if the legislature wants to

change it they can but they haven't done

so. The Court is going to leave the

instructions in the respect just like

they are.

Now, then, any objections by the

Defense?

MR. FOCHT: If it please the

Court, I am not going to take a great

deal of time making a record as to what

went on prior to this time. Suffice it

to say that we thoroughly hacked out I

think both positions of the State and the

defense and it led to the State taking

the action your Honor has indicated and

=» ~ a3

the instructicns being prepared as your

Honor has indicated.

My only objections to the

instructions at this point go to

Instruction No. 7, which I do not

believe to be applicable to this case,

and that is basically it.

I have read the verdict form. I

submitted to your Honor certain requested

instructions prior to this time, you

have taken them into’ consideration,

selected what you wanted and rejected

what you chose to. I, of course, think

mine were better than yours but that is

the way lawsuits are made so I have made

my record.

THE COURT: Well, I think you are

right. Now, I was thinking we would

probably have to go ahead and excuse the

jury until morning. We will probably go

a little after 5:00, 5:15, 5:20 or maybe

even 5:30.

B- 14

MR. PUNTCH: I have no objection.

How long will we be having for final

argument?

THE COURT: That was my next

statement. We started out with one hour.

We got down to 30 minutes before we come

back out here. I would like like (sic)

everything to cut it to 20.

MR. PUNTCH: Your Honor, I don't

think we would be able to put on our

final argument in 20 minutes a side. The

State would request at least 30.

THE COURT: I think I have applied

all the pressure I could apply. I will

give you 30 minutes. Both of you want

some kind of warning?

MR. PUNTCH: Yes, your Honor. The

State will divide its closing argument

half and half and I think we would each

like a two minute warning.

THE COURT: Mr. Focht?

B- 15

APPERODUIS:Z Cc

The prosecutor argued before the

Court that the statutes and the jury

instructions which were based upon them

were unconstitutional under the

provisions of Tennessee v. Garner. (IV R

574-575). The implication was that it

was per se unconstitutional to allow the

defendant a legal defense which would not

be applicable to a law enforcement

officer in the same situation (IV

R.575). Although the prosecutor did not

specifically mention the due process and

equal protection clauses of the 14th

Amendment, nor their counterparts found

in § 1-2 of the Kansas Bill of Rights,

(Manzanares _v. Bell, 214 Kan. 589, Syl.

5, 522 P.2d 1291 (1974)], he did state

that “although property rights are

important the preservation of human life

is much more important and that when

deadly force is used it can only be used

under strictly scrutinized parameters. .

- * (IV R. 575). This was sufficient

to preserve these issues on appeal. In

addition, the constitutionality of a

statute can be considered even if for the

first time on appeal, when necessary to

determine the merits or where the issues

can not be intelligently decided without

doing so. Van Sickle v. Shanahan, 212

Kan. 426, Syl. 3, 511 P.2d 223 (1973);

State _v. Nelson, 210 Kan. 439, Syl. 4,

502 P.2d 841 (1972). The constitutional

issues involve a denial of a fundamental

right and are therefore necessary to a

final decision. State v. Puckett, 230

Kan. 596, Syl. 1, 640 P.2d 1198 (1982).

1. THE STATE-CREATED LEGAL

DEFENSES IN K.S.A.

21-3213, AND THE JURY

INSTRUCTIONS GIVEN

THEREUNDER, VIOLATE THE

FEDERAL AND STATE

CONSTITUTIONAL RIGHTS OF

THE VICTIM, AND ALL

CITIZENS, TO EQUAL

PROTECTION OF THE LAW.

Equal protection analysis requires

strict scrutiny of a legislative

Classification when the classification

impermissibly interferes with the

exercise of a fundamental right or

operates to the peculiar disadvantage of

a suspect class. State ex rel. Schneider

v. Liggett, 223 Kan. 610, 576 P.2d 221

(1978). In such cases the courts apply

a stringent test which strips

away the protective presumption of

constitutionality and adopt an attitude

of active and critical analysis,

subjecting the classification to strict

scrutiny. iT When "suspect

Classifications" or "fundamental

interests" are involved, the burden of

proof falls upon the state to justify the

Classification as necessary to the

accomplishment of some compelling state

interest. Loving v. Virginia, 388 U.S.

1, 18 L.Ed.2d 1010 87 S.Ct. 1817 (1967);

State ex rel. Schneider v. Liggett,

supra. The determination of whether the

statute infringes upon a "fundamental

interest" depends upon whether’ such

interest is explicitly or implicitly

guaranteed by the Constitution. San

Antonio School District v. Rodriques, 411

a ae oe maoeeeea. 16, 93 S.Ct. 1278

(1973), reh. denied 411 U.S. 959, 36

L.Ed.2d 418, 93 S.Ct. 1919; State ex

BEREREEEREEESSSE

rel. Schneider v. Liggett, supra.

The right to life is a

fundamental, inalienable, natural right,

explicitly guaranteed to each citizen of

the United States and Kansas which can

not be denied without equal protection of

the law. U.S. Const. amend. XIV; Kansas

Bill of Rights, § 1; Screws v. U.S.,, 325

U.S. 91, 123, 134-135, 89 L.Ed 1495, 65

$.¢ce. 23031 (19468) (concurring and

dissenting opinions); Mattis v. Schnerr,

547 F.2d 1007, 1017 and n. 23 (8th Cir.

1976), vac moot sub nom Ashcroft v.

Mattis, 431 U.S. 171 (1977); State v.

Harris, 90 Kan. 807, 817, 136 P. 264

(1913). When such a fundamental right is

involved, the compelling state interest

test requires the court to consider the

nature of the rights affected by the

legislation, the classification

established, and the governmental

BEEEEEEE

interest which made the classification

necessary. i ospi Vv

County, 415 U.S. 250, 39 L.Ed.2d 306, 94

S.Ct. 1076 (1974); Manzanares v. Bell,

214 Kan. 589, 600, 522 P.2d 1291 (1974).

When the State's statute under this test

contravenes the inherent constitutional

rights of the citizens by failing to show

a more compelling state interest, it must

be struck down. Loving v. Virginia, 388

U.S. 1, 12, 18 L.Ed.2d 1010, 87 S.Ct.

1817 (1967); ity o axt ings v

Bryant, 226 Kan. 383, 386, 598 P.2d 1051

(1979).

The State of Kansas has the right

to act in protection of the public by

promoting the law and order, and by

designating certain actions, such as

burglarizing a vehicle or a home, as

criminal under the State's criminal

code. e e el. Sc ide -.

BEEEEEEEE EERE

Liggett, supra at 615. This includes

the right to abrogate the common-law when

its principles are no longer suited to

the conditions and wants of the people

and the times. Manzanares v. Bell,

supra, 214 Kan. at 589. The United

States Supreme Court's decision in

Tennessee _v. Garner, 471 U.S. 1., 85

L.Ed.2d 1, 105 s&.ct. 1694 (1985)

recognized the fact that the common-law

rule which allowed law enforcement

officers to use deadly force to effect

the arrest of even a non-violent suspect

had outlived its usefulness and was

unconstitutional. Id. at 11-15. As the

United States District Court for Kansas

put it:

Examination of the history

of the common law felony arrest

privileges reveals that it is

the example par excellence of

a rule that has outlived its

underpinnings of principle and

policy.

BEEGEEERGGGES

Jacobs v. City of Wichita, 531 F.Supp.

129, 131 (1982). That Court went on to

say that “the entire scope of the rule

was to protect the constable from

criminal liability.” Id. It is truly

ironic that now the law enforcement

officer is no longer protected from

criminal liability due to the

unconstitutionality of a rule which, in

Kansas, provides a complete criminal

defence (sic) to a private citizen who

kills a would-be, non-violent burglar

trying to break into a mere vehicle. The

Court in Tennessee v. Garner held that

the use of deadly force by a police

officer in this situation is prohibited

by the Constitution. A State can not be

allowed to adopt legislation which

creates and validates an unconstitutional

defense based merely on the status of who

pulled the trigger. If the constitutional

PEER Eas

rights of a victim are violated by a

statute which provides a legal defense to

a law enforcement officer who kills a

non-violent suspect without first

possessing the fear of imminent danger to

himself or another, then the

constitution must also prohibit the

adoption of a statute which provides a

legal defense in criminal and civii law

to the same activity when accomplished by

a private citizen. Such "state action"

by a legislature in purporting to

provide a defense to the use of deadly

force in protecting property under the

same circumstances cannot’ survive

constitutional scrutiny. See Manzanares

vy. Bell, supra, 214 Kan. at 602-603.

There is no compelling state interest in

allowing a private property owner to blow

away a person for merely interfering with

property when those trained to uphold the

SEREEGREEEEEEES

laws and to keep order in the State of

Kansas and the United States are

constitutionally prohibited from doing

the same. The nature of the right to

life is so basic and fundamental that

there can be no state interest, even that

of protecting one's property from

unlawful interference, compelling enough

to justify its arbitrary denial by

private vigilantes but not by trained law

enforcement personnel sworn to uphold the

rights of all citizens under the

Constitution. See Mattis v. Schnarr, 547

F.2d 1007, 1019 (8th Cir. 1976), vac moot

sub nom Ashcraft v. Mattis, 431 U.S. 171

(1977). The jury instructions we well as

the statutes involved must be disapproved

as they have been interpreted herein for

violating the Equal Protection clause of

the 14th Amendment and §§ 1 and 2 of the

Kansas Bill of Rights.

Cc - 49

2. THE STATE-CREATED LEGAL

DEFENSES IN K.S.A. 21-3212

AND K.S.A. 21-3213, AND THE

JURY INSTRUCTIONS GIVEN

THEREUNDER, VIOLATE THE

FEDERAL AND STATE

CONSTITUTIONAL RIGHTS OF THE

VICTIM, AND ALL CITIZENS, TO

DUE PROCESS OF LAW.

The Fourteenth Amendment, as well

as §§ 1-2 of the Kansas Bill of Rights,

guarantee that no one shall not be denied

the fundamental right to life without due

process of law. Roe _ v. Wade, 410 U.S.

AA2, S57, 35 L.Ead.2d 147, 93 S.Ct. 705

(1973) reh. den. 410 U.S. 959; Johnson v.

Zerbst, 304 U.S. 458, 462, 82 L.Ed.

1461, 58 S.Ct. 1019 (1938); Landrum v.

Moats, 576 F.2d 1320, 1325 (8th Cir.

1978) cert. den. 439 U.S. 912; Jacobs v.

City of Wichita, 531 F.Supp. 129, 132 (D.

Kan. 1982); . Included in due process is

- * £3

PEEEGSESRRRERSESE

the procedural safeguard of a trial

requiring that proof of guilt beyond a

reasonable doubt be shown by the State.

Palko v. Connecticut, 302 U.S. 319, 327,

82 L.Ed. 288, 58 S.Ct. 149, 153 (1937;

an v. Wilbur, 421 U.S. 684, 701,

704, 44 L.Ed.2d 508, 95 S.Ct. 1881

(1975).

-The applicable test in determining

whether legislation transgresses upon the

guarantee of due process of law is a

determination of whether the _ statutes

bear "a ‘reasonable relation' to a

permissible legislative objection."

Manzanares v. Bell, supra, 214 Kan. at

602. Due process emphasizes the fairness

between the State's action (here,

creating the statutes in question which

allowed the defendant to summarily kill

the victim without benefit of a trial)

and the individual dealing with the State

GS = 22

(the victim, Seanan Picard), and whether

that action is adopted in the interest of

the community. State ex rel. Schneider

v. Liggett, supra, 223 Kan. at 613-614.

In making its decision, the Court must

balance all relevant and conflicting

factors involved. Bartkus v. Illinois,

359 U.S. 121, 128, 3 L.Ed.2d 684, 79

S.Ct. 676 (1959), reh. den. 360 U.S. 907.

If, after analysis, there exists no

reasonable basis for the State action, it

must be held unconstitutional. See

Manzanares _v. Bell, supra, 214 Kan. at

603 (citing Tri State Hotel Co. v.

Londerholm, 195 Kan. 748, 408 P.2d 877).

There is no reasonable hasis to

allow private citizens to kill

non-violent, would-be thieves or vehicle

burglars when the punishment for the

crime being committed by the victim at

the time of death, after the attendant

Cc - i3

procedural safeguar” of a trial and

conviction on proof beyond a reasonable

doubt, is only a 3-10 year maximum prison

term, had he even been an adult, See

K.S.A. 21-3715; K.S.A. 1986 Supp.

21-4501(d) (2). The only state interest

that could possibly be _ sufficiently

compelling to justify the killing of one

human being by another when the first is

interfering with property io to protect

the life or safety of the actor or

another. See e.g., b ‘, i

Wichita, supra, 531 F.2d at 132. The

victim in the present case was reaching

unlawfully into a vehicle parked

twenty-seven feet from the defendant's

home. He had, however, exhibited no

weapon, no threat of violence, and no

indication whatsoever of any intent to

come near the defendant's home or person.

The - United States Supreme Court has

c=- 14

already ruled, in a similar scenario,

that it would be unconstitutional for a

police officer to take the suspect's

life, absent the fear or threat of

imminent death or bodily harm. Tennessee

vy Garner, supra, 471 U.S. at ll.

There is no reasonable basis to

afford greater protection in civil or

criminal actions to a private citizen in

protecting his property than is given any

ether person in protecting human life.

To do so is to authorize the summary

execution of a suspect, without benefit

of a trial, or other procedural

safeguards of due process of law, for a

mere property crime. This is state

sanctioned act which is abhorrent to the

Constitution of both Kansas and the

United States and which can not stand up

to the strict scrutiny afforded such

statutes when they impinge on fundamental

Cc = 4&3

rights. See Mattis v. Schnarr, supra,

547 F.2d at 1019, n.29.

The use of deadly force in any

situation is a privilege, not a right,

and can be exercised only in the most

limited circumstances. 1 Wharton's Crim.

Law and Procedures, §221 (1957); Falco

v. State, 407 So.2d 203, 207-208 (1981

Fla.); State v. Mounkes. 88 Kan. 193,

197, 127 P. 637 (1912). (Citing Gen.

Stat. 1090 § 249). To allow its use

without requiring fear of imminent,

serious injury to human life is to deny

the Constitutional right to life without

benefit of equal protection or due

process of law.

[Tjhe preservation of life

has such moral and ethical

standing in our culture and

society, that the deliberate

sacrifice of life merely for the

protection of property ought not

to be sanctioned by law.

Jacobs , supra, 531 F.2d at 131 [citing

C= 46

Professor Wechsler, 35s A.L.I.

Proceedings 285 (1958) ]}.

3. THE STATE LEGISLATURE HAD

ADAPTED K.S.A. 21-3212 AND

K. S. A. 21-3213 IN VIOLATION

OF THE CONSTITUTIONS OF THE

UNITED STATES AND THE STATE

OF KANSAS BY PURPORTING TO

IMMUNIZE OTHERWISE CRIMINAL

HOMICIDES WHEN DONE SOLELY TO

PREVENT OR TERMINATE

INTERFERENCE WITH PROPERTY

OTHER THAN A DWELLING.

The State may adopt legislation

which changes the common law or creates

new rights when it is reasonably

necessary, based upon its "police power",

to promote the general welfare and safety

of the people. State ex rel. Schneider

v. Liggett, 223 Kan. 610, 615, 576 P.2a

221 (1978); Wi lams v. Ci of Wi j ’

C - 17

BEGEGEEEEEE

190 Kan. 317, 331-332, 374 P.2d 578

(1962) app. dis. 375 U.S. 7, rxeh. den.

375 U.S. 936 (1963). But when such

legislation abridges the fundamental

rights guaranteed citizens in the

Constitution, it will not be allowed to

stand. Palko v. Connecticut, 302 U.S.

7a. ane Ge twee 200, SE S.Ct. 149,

(1937); Snyder v. Masschusetts, 291 U.S.

37, 203, 76 &eEG. 674, S21 S.Ct. 330

(1933)? Manzanares v. Bell, 214 Kan,

589, 603, 522 P.2d 1291 (1974). The

Kansas legislature has, in K.S.A.

21-3213, created a new right to use

deadly force by a private party in

defense of property; such a statute, and

jury instruction, denies the victim his

fundamental right to life without

affording him due process or equal

protection of the law. See Jacobs v.

City of Wichita, supra, 531 F.2d at 132.

c - 18

In K.S.A. 21-3213, the legislature

codified the niet law which already

allowed the use of deadly force in

defense of a dwelling. See State v.

Countryman, 57 Kan. 815, 48 P.137

(1897); State v. Mounkes, 88 Kan. 193,

197, i127 P. 637 (1912). There is,

however, no "vested or protected right

[acquired] in violation of the

Constitution by long use ..." Walz v.

Tax Commissioner, 397 U.S. 664, 678, 90

S.Ct. 1409, 25 L.Ed.2d 697 (1970);

State ex rel Schneider v. Liggett, supra,

at 612.

The present case deals with the

most fundamental of human rights: the

very right to live. Furman v. Georgia,

408 U.S. 238, 290, 33 L.Ed.2d

346, 92 $.ct. 2726, (1976) reh.

den. 409 U.S. 902, (J. Brennan,

concurring). As such the denial of this

c- 19

BEEERRERERERER ERS EEE

right is not a policy issue which would

be better left to the legislature.

Jacobs v. City of Wichita, supra, 531

y.2@ at 131. It is a right upon which

the state may infringe only in the most

compelling circumstances. 7. 6 GG CO132:

Resolution of this issue is required to

protect the rights of all citizens to

life and to the civil liberties given

them in the Constitution. See Landrum

v. Moats, 576 F.2d 1320 (8th Cir. 1978)

cert. den. 439 U.S. 912.

Both the statutes herein, and the

jury instructions upon which they were

based, denied the victim of his life

without the procedures required by due

process to determine guilt or innocence.

The victim was also denied equal

protection by allowing the defendant a

complete defense to his’ homicide,

arbitrarily applied to one class of

Cc - 20

persons (private property owners) and

not to another class of persons (law

enforcement officers, as mandated in

Tennessee _v. Garner), and without any

compelling state interest or rational

basis to justify the distinction. The

legislature can not set a bright line

assessing both criminal and civil

liability against a policeman for the

death of a non-violent felon, yet

providing no recourse at all against a

private citizen for the same act. There

Clearly exists no rational basis nor

compelling state interest to justify

such an unconstitutional and arbitrary

application of the law. As such both the

statutes and the instructions as

presently construed clearly violate the

constitution and must be disapproved.

State v. Baker, 11 Kan. App. 2d 4, Syl 1,

711 P.2d 759, _rev. den. 238 Kan. 878

¢ = 2:

(1985). See also Board of Greenwood

County Commissioners v. Nadel, 228 Kan.

469, 472-473, 618 P.2d 778 (1980); City

of Baxter Springs v. Bryant, 226 Kan.

383, 385-386, 598 P.2d 1051 (1979).

This Court should sustain this appeal,

and by judicial decree construe the

statutes in a manner consistent with

the Constitution.