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.

Sad circumstances...good adjudication.

good work.

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Of the Troops & For the Troops

Mom's fine now. Had facial lacerations and bruises. Brother is in jail charged with aggravated battery and possession of methamphetamine with intent to sell. Seems he had a big cache of drugs in his room when the police ran a search warrant.

I have seen , too often, where the assaulter is forgiven and allowed to remain in place. Had a local Murder his mom, a beloved RN in Latah County, Idaho... He died in prison.

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Of the Troops & For the Troops

In Texas self-defense along with insanity and a few others are "affirmative defenses" which if proved with bar a conviction. However the burden of proof is on the defense to establish their affirmative defense. However, the burden of proof is "by a preponderance of the evidence" and not "beyond a reasonable doubt", as it is for the state to sustain a conviction.

Defense of others is another such affirmative defense, but the shooters gets the same right of defense as did the person in danger. If the person in danger has a legit self defense claim then so do the shooter. If not then there is no defense of others defense.

The classic illustration is where a fellow looks down an alley and sees a scruffy person holding a gun on another guy. The good citizen shoots the scruffy guy with the gun who turns out of be under cover cop. Bad shooting. So if pays to call 911 unless you are 100% certain of what is going down.

In your case, the mom would have a right of self defense and therefore the son with the 22 rifle would be in the clear. However cops and DAs don't like to make judgment calls, they would rather charge the person and let the jury sort it out. I don't like that, but that is what happens more often than not. DAs don't like to dismiss cases involving gun violence as it might come back to bite them in the next election.

We also adopted the castle doctrine then and essentially put the burden on the State to prove via preponderance of the evidence it was not self-defense or defense of another. The whole idea was to try to keep people out of jail that had a legitimate claim of self-defense. Like your experience though, our police and prosecutors don't seem to like to make the call and would prefer a Judge does it. Criminal defendants are "supposed" to have a preliminary hearing (probable cause hearing to bind over for trial) within 14 days of 1st appearance in court. Unfortunately the courts have interpreted that to be a "discretionary" time limitations so its now the norm to have the prelim in about 30 days. With a client such as I had (indigent), that means he lost his job and was locked up for a good bit (about 35 days in this case).

When I read your post, I wasn't thinking Castle Law, but straight self defense under non-Castle law circumstances.

Texas has had a form of Castle Law since 2007. Under circumstances (home, vehicle and business) where the Castle Law might apply, the law creates a rebuttable presumption that the shooting was justified under the Castle Law. The state must rebut that presumption.

At the same time, Texas eliminated the duty to retreat in both Castle and straight self defense circumstances. The duty to retreat was not a part of Texas law when I was in Law School, but was added sometime later. It is gone again and good riddance.