In their defense, the majority admits this the exact result of its decision, but in a trend cutting across its jurisprudence, simply says the statutory language is clear and that this is a problem for the legislature to fix (we have seen these sorts of "anti-activist" decisions in other criminal cases and in civil cases). Policy arguments simply don't fly in the face of plain language:
Hendrix primarily argues policy considerations. Among other things, he points out the alleged absurdity in denying self-defense to a defendant (purportedly like himself) who can defuse a violent situation with the mere threat of force, but then in granting the defense to one who instead chooses to actually apply force. He argues the statute—or at least our interpretation of it—promotes violence because defendants wanting to ensure their entitlement to the defense will use actual force instead of words.Suprisingly, this decision did not garner a lot of attention from the local press, but it did get some attention around the blogosphere. Here was coverage on How Appealing. Here was coverage at The Volokh Conspiracy. Here was coverage on CrimProf blog. Even Crime and Consequences, suggested here that "prompt legislative action is in order."
We agree with the worthy goal of promoting de-escalation, e.g., defusing a violent episode with some well chosen words. However, policy making is the province of the legislature. It alone must decide whether to pursue this goal in the self-defense statute. Consequently, it alone must decide to make the explicit distinctions there as it has in the other statutory enactments mentioned earlier.
In fact, there was broad support for a Hendrix fix in the Legislature--it was supported by both the Kansas Association of Criminal Defense Lawyers and the Kansas County and District Attorneys Association. Bills were introduced in both houses and there was no opposition, although there were small differences between the versions.
Eventually, the bill that was approved by both houses, House Substitute for Senate Bill 381 which can be accessed here, changed the definition of use of force to include the threat of force:
‘‘Use of force’’ means any or all of the following directed at or upon another person or thing: (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; (B) the presentation or display of the means of force; or (C) the application of physical force, including by a weapon or through the actions of another.Jennifer Roth worked on this bill (and many others) for KACDL and Carl and I both testified on KACDL's suggestion that the Hendrix fix be applied retroactively, which the Legislature adopted.
The new law also adopts some new presumptions regarding the use of force, which should be considered carefully when crafting instructions or pre-trial motions to dismiss based on K.S.A. 21-3219 (immunity from prosecution for person who uses force).
The bill is effective when published in the Kansas Register, which will be tomorrow, April 29, 2010, see here.