The Kansas Supreme Court will rule whether the state’s “stand-your-ground” law protects a fired Wichita police officer who claimed self-defense immunity after shooting a girl when aiming for a dog.
The ruling is likely to have wide ramifications, both for potential prosecutions in police use-of-force cases and for any situation where a shooter can claim they feared for their safety.
Lower court rulings in favor of the officer have already been used as reasons not to charge other law enforcement officers in use-of-force cases. Sedgwick County District Attorney Marc Bennett cited the case last month when he declined to charge the jail deputies who killed Cedric Lofton.
The ruling could also apply a “good guy with a gun” who, in trying to take out a mass shooter, also hits innocent bystanders.
The case stems from Dec. 30, 2017, when former Wichita Police Department officer Dexter Betts responded to a domestic violence call. He shot at a dog, missed, and bullet fragments hit a girl who was in the line of fire.
Betts was fired by the Wichita Police Department within a month of the shooting, which was in the midst of nationwide attention from the swatting case, which happened two days earlier. Bennett’s office charged Betts with aggravated battery, a felony.
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District Court Judge Kevin O’Connor ruled in December 2019 that the stand-your-ground law made Betts immune from criminal prosecution and any civil lawsuits.
O’Connor wrote at the time that his decision “may be an unintended consequence not envisioned by the Legislature but the plain and clear language of the statute demands the result.”
Prosecutors appealed, lost, then appealed to the Supreme Court, which heard oral arguments on Thursday.
Statute 21-5222 states that anyone is justified in using force if they reasonably believe it is necessary to defend against someone else’s unlawful force. Deadly force is justified if they reasonably believe it is necessary to prevent imminent death or great bodily harm. They are not required to retreat.
Statute 21-5231 grants such people immunity from criminal prosecution and civil liability.
The question of whether deadly force was justified is the critical question, argued Assistant District Attorney Matt Maloney.
“We agree that the use of some level of force was appropriate in this case,” Maloney said. “We don’t think that officer Betts was obligated to simply stand still and let this dog potentially attack him.”
The district court judge’s ruling found that using force was necessary. However, nowhere did the judge specify that the use of deadly force was necessary.
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“Our position is that there was an absolutely crucial legal error, which is the fact that Judge O’Connor fully and totally failed to address the issue of whether deadly force was necessary,” Maloney said.
Maloney conceded that Betts felt threatened, but he said the officer never articulated a fear of imminent death or great bodily harm, which is what justification for deadly force requires.
“I would argue that a reasonable person in that situation would not fear that, because a dog barked and took a couple of steps towards him, that he was at risk of death or great bodily harm,” Maloney said.
“I would believe that the vast majority of human beings have encountered unfamiliar dogs at some point in their life. And maybe there’s a little bit of fear. And maybe you’re somewhat concerned that that dog might try to bite you.”
The dog was about 35 pounds and several feet away, while Betts was a man in full police gear with a weapon, flashlight, “full arsenal of non-lethal tools” and other standard police equipment. He also had a partner nearby — a partner who testified that he never drew his gun during the incident.
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If Betts had tried to punch, push, grab, kick or beat the dog with a weapon and somehow hit the girl, he wouldn’t have been charged with a crime. Maloney said those would be a reasonable use of nonlethal force.
“Instead, he went with the nuclear option and immediately fired two shots towards this 35-pound dog that he knew from before he ever entered the house, he was on alert that there was a dog present.”
A ‘license to shoot’
Justice Dan Biles said the ruling — whatever it may be — will apply to any private citizen who uses force and claims self-defense. The decision won’t just apply to officer-involved shootings and other police use of force cases.
Maloney and defense attorney Jess Hoeme, of Joseph, Hollander and Craft agreed with Biles.
Since the ruling will apply outside of law enforcement scenarios, Biles said, the court should consider the effect on hypothetical scenarios. His example was a crowded concert where a person faces a reasonable threat.
“If they’ve got a gun, they can just start shooting,” Biles said of the statute. “And regardless of how many people drop, they’re going to have immunity, as long as you can show the threat was there while the trigger’s being pulled.”
Biles also prodded the officer’s accuracy, noting that “in my hypothetical, the person might be a better shot than the officer was because the officer missed in this case.”
Hoeme said the first consideration should be to the officer’s safety, not to the “collateral” of what is behind the target.
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He conceded that Betts’s “biggest mistake” was missing the dog, because if the bullets had hit their target, “We wouldn’t be here.” Hoeme added that Betts “was one of the top shooters in the class.”
“If you’re in a crowded situation,” Hoeme said, “and there’s a man coming at you with a machinegun, and you shoot multiple times, and in the process of shooting at that person with a machinegun you hit a couple others, that does not detract from the idea that you were still justified in using force.”
Biles said the circumstances don’t matter because “the statute only focuses on one thing, and that’s the evaluation of the threat from the individual, and after that you can fire away.”
Hoeme agreed. He said officers can find themselves in situations where there is a potential for collateral damage, “but that is not part of our consideration, according to the statute.”
Biles noted the statute has no language limiting the application of the provision
“We don’t get into whether that’s a good policy or a bad policy kind of thing,” Biles said. “It’s just that’s the language of the statute.”
Was it reasonable?
Maloney asked the court to focus the “reasonable belief” language in the statute. He asked the judges to imagine Betts was delivering a pizza, standing at the door when the dog barked and steps toward him.
“If that pizza deliveryman is armed, does that give him a self-defense claim that he’s entitled to shoot at the dog?” Maloney said.
The district court’s ruling, he said “gives anybody in any context a license to shoot a dog, if the dog barks and takes so much as a step or two towards it, if it’s an unfamiliar dog.”
The aggravated battery charge alleges that Betts acted recklessly, which Maloney said would mean he consciously disregarded a substantial and unjustifiable risk.
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Justice Caleb Stegall suggested that making the immunity in the “stand-your-ground” law not apply to reckless actions would “effectively enable the state to charge any case as a reckless crime and therefore essentially wipe self-defense off the books.”
Justice Keynen Wall summarized the prosecution’s argument as “reckless conduct, by definition, can never support an objectively reasonable belief that deadly force is necessary.”
Justice Melissa Taylor Standridge asked Hoeme why the case shouldn’t have gone to a jury.
“So there’s no reasonable, prudent person out there that would believe that use of deadly force was not justified?” she asked.
“Yeah, that was the sound discretion of the district court judge based on all the evidence that he heard,” Hoeme said.
Maloney said the case should go to a jury because a reasonable person could believe Betts is guilty. Betts could still argue self-defense during a trial.
‘Could have’ and ‘should have’
The facts of the case are generally not in dispute, leaving the court to focus on legal questions of whether the officer qualifies for immunity.
Police responded to a domestic situation, where they were told the male subject of the call had a gun, had made suicidal statements and had choked a dog.
“Domestic violence calls are always very volatile, and this one was no exception,” Hoeme said.
“I fully respect that officer Betts was in a stressful situation,” Maloney said. “But the domestic violence call had been resolved.”
Officers largely resolved the immediate situation. The man essentially gave himself up to police outside in the driveway. Betts and another officer went into the house to check on children in the home and to retrieve the gun.
While in the house, the dog barked and approached Betts, which he mistakenly believed was a pit bull. It is disputed whether the dog “lunged” at the officer.
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The dog attempted “to attack him in a very vicious way,” and Betts reasonably decided to use force to protect himself, Hoeme said.
Betts fired two shots at the dog. Both bullets missed their mark. At least one ricocheted off the floor, and fragments hit a 9-year-old in a toe and above her eye. The girl had been sitting on the floor behind the dog. The miniature English bull terrier, named Chevy, was also hit by bullet fragments.
“Here we are four years later,” Hoeme said. “It’s really easy for us to talk about … he could have done this, he should have done that.”
The court took the case under advisement. A decision from the justices is likely several months away.
Decision could affect future cases
Bennett, the Sedgwick County district attorney, cited the Legislature’s 2010 “stand-your-ground” law and related court rulings in his charging decision on the Lofton death, which attracted national attention.
Lofton, 17, was in the midst of a mental health crisis on Sept. 24, 2021, when he was arrested by Wichita police. Police had originally planned to take him to a hospital, but Lofton allegedly struck the officers, so they took him to Sedgwick County’s juvenile jail.
Lofton struggled with corrections officers while at the jail, so they put him in a WRAP restraint system lying prone on the floor. Lofton later stopped breathing and died. The coroner ruled his death a homicide.
Bennett said it is not clear that the restraint contributed to Lofton’s death. Rather, “death was brought about by the position in which Cedric was held as well as the ongoing struggle,” which lasted for over 30 minutes and impeded his breathing. But under statute and case law, the corrections officers have the right to defend themselves when an inmate resists.
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The jail “employees acted in self-defense under Kansas law,” Bennett said. “They are immune from prosecution as a result of Kansas’s robust stand-your-ground law.”
Bennett cited several cases where the law has been used to block criminal prosecutions.
In one case, a man shot someone who had punched him two or three times. The assailant was unarmed, but the court deemed the blows to the head justified deadly force.
Charges were dismissed in a separate case, where a man stabbed his neighbor after a friendly wrestling match turned sour. The unarmed neighbor allegedly verbally threatened the man, so the man stabbed him with a sword.
A manslaughter charge was dismissed against a man who shot and killed an acquaintance, who had threatened him before, who he believed was running to a car to get a gun.
Since 2013, the DA’s office has declined to press charges against 33 civilian homicide suspects because of the “stand-your-ground” law. The DA has had three homicide cases dismissed by judges who cited the law.
In that same time period, 15 law enforcement officers haven’t been charged, based on the law.
Jason Tidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at [email protected] Follow him on Twitter @Jason_Tidd.