Police officer who happens to be at jail is not a correctional officer

Washburn student intern Wes Weber and I won in State v. Toliver, No. 112,509 (Kan. April 14, 2017), reversing a Riley County conviction for battery on a correctional officer. An officer arrested Mr. Toliver on suspicion of drug offenses and, during the arrest, Mr. Toliver allegedly shouted profanities at the officer and spit on the officer's hand. After the officer arrived at the "sally port" of the jail, the same officer attempted to get Mr. Toliver out of the patrol car when Mr. Toliver allegedly spit in the officer's face. The state charged Mr. Toliver with battery on a law enforcement officer (for the incident during the arrest) and battery against a correctional officer (for the incident in the "sally port.") The COA reversed the conviction for battery against a correctional officer because the state failed to prove that the officer was a correctional officer or employee (a higher severity level offense). during the second incident.  The state argued it merely had to prove that the officer was a "city or county employee." The KSC carefully parsed the statute, including citations to Bryan Garner, to consider "how adjectives modify nouns in sequences or phrases. The KSC concluded that, applying these rules, 

While it is not always easy to define a "term of art," we note that the Kansas Legislature has defined the phrase "correctional employee" and "corrections employee" in the context of other statutes. See K.S.A. 74-4914e(1)(a); K.S.A. 65-6015(b). More significantly, the legislature has used the phrases "officer or employee" and "officers or employees" to describe a collective entity over 700 times in more than 300 statutes. The legislature's regular and repeated use of this phrase demonstrates a clear intent that the words "officer or employee" constitute a single unit to be modified together by a preceding adjective and not—as the State urges—to describe two separate and distinct entities.

In the absence of some contextual indication that the legislature intended the word "correctional" to modify only "officer," the general rule governing modifiers of nouns in a sequence will apply. Here, the context of the statute clearly supports application of this general rule of grammar. Accordingly, the word "correctional" modifies both "officer" and "employee" in the phrase "officer or employee." 

The KSC also noted that, if it adopted the state's reading of the statute, it would become self-nulfying, a construction it should avoid. Because the state conceded that it did not the officer was not a correctional officer nor a correctional employee, the KSC vacated that conviction.