I just finished a preliminary hearing that was somewhat unusual around here. In 2010 Kansas adopted a new series of laws on self defense and defense of others. Among the laws enacted, a defendant can make a preliminary claim of immunity from prosecution. The burden of proof then falls on the prosecution to prove it was not self defense or defense of others. I practice in a fairly quiet area of Kansas so have not had the opportunity to use this new law until today.

The facts really weren't disputed. My client lived with his brother. In early April, his mother came by with some food. She gave my client some and he retired to his bedroom to eat. She called for my client's brother and he emerged from his room, not recognizing her and obviously on drugs or drunk. He hit her hard enough she began to lose consciousness and when she fell, he jumped on her and started punching her, cutting her face and causing some bleeding. My client emerged from his room asking his brother what he was doing. The brother continued to punch mom and my client retrieved a .22 rifle and fired 2 or 3 shots, hitting the brother once. Our local county attorneys charged the brother with aggravated battery and tried charging my client with attempted murder.

I filed a claim of immunity and motion to dismiss and after hearing, the Court found the State failed to sustain their burden of proof and dismissed the case. Thankfully I don't have to do these type of cases daily, most of our crime is typical drug stuff. I was glad to see the self defense/defense of others law work the way the legislature envisioned. My man wasn't stuck in jail for 6 months or more awaiting trial. One thing he did which probably helped him most was exercise his 5th Amendment rights when police tried to question him. I realize some may argue he might never have been prosecuted had he made a statement, but as an attorney its much easier for me to deal with no statement than have one that can be twisted and turned by a prosecutor merely interested in adding scalps to the lodge. To the LEOs credit, they really didn't have a problem with what he did, and their investigation or lack thereof showed it.