By statute,
Factual and Procedural History
What we consider amounts to a matter of statutory interpretation and, thus, a question of law. State v. Guder,
Hardy and another man stopped at a party to pick up a couple of female acquaintances. Some other partygoers came out and approached the convertible in which Hardy was riding. There are multiple versions of what happened. The gist seems to be that Javier Flores, the putative victim of the aggravated battery, approached the car and without provocation punched Hardy in the face several times. Hardy picked up a handgun from inside the car and fired a shot, striking Flores in the shoulder. Witnesses offered differing accounts as to whether Flores continued to threaten Hardy after punching him, whether Flores was being physically restrained when Hardy fired, and whether other partygoers menaced Hardy.
The State charged Hardy with aggravated battery, a severity level 4 person felony violation of K.S.A. 2014 Supp. 21-5413. After he was bound over for trial at a preliminaiy examination, Hardy filed a motion for self-defense immunity, as provided in K.S.A. 2014 Supp. 21-5231(a). The district court convened a hearing on the motion and wound up spending much of the time with the prosecutor and Hardy’s lawyer trying to sort out what ought to be considered in deciding the request for immunity. The district court ultimately received and reviewed the transcript of the preliminary examination at which Flores and Yuliana Mejia testified, two police reports, transcripts of tape recorded police interviews with Hardy and with Mejia, and a few other documents. The district court heard no witnesses as part of the motion hearing, although neither side asked to present live testimony. In short, the district court held a nonevidentiary hearing and considered a good deal of material that would have been inadmissible at the preliminary examination or at trial.
Two days later, the district court made a detailed bench ruling granting Hardy’s motion for immunity and dismissing the complaint. Given tire ruling, the district court obviously recognized factual conflicts relevant to self-defense as portrayed in the materials submitted at the hearing. The district court also plainly resolved at least some of those conflicts in deciding the motion and did so favorably to Hardy, although the ruling doesn’t describe those determinations with any particularity. The State has appealed the dismissal of the complaint, as permitted by K.S.A. 2014 Supp. 22-3602(b)(l).
Legal Analysis
Self-Defense Immunity in Light of Ultreras
Persons facing criminal charges for their use of force may assert a statutory immunity
“(a) A person who uses force which, subject to the provisions of K.S.A. 2014 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2014 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer’s official duties and the officer identified the officer’s self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, ‘criminal prosecution’ includes arrest, detention in custody and charging or prosecution of the defendant.
“(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but tire agency shall not arrest the person for using force unless it determines that there is probable cause for Ae arrest.
“(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause.” K.S.A. 2014 Supp. 21-5231.
We refer to the statutory shield as self-defense immunity, although it extends to lawful force used to protect another person, a dwelling, a place of business, and an occupied vehicle or to prevent the unlawful interference with other property. The statute substantively goes beyond establishing a defense to criminal charges and imposes immunity from arrest and prosecution. Despite the breadth of that protection, the statute conspicuously lacks any guidance as to how procedurally a claim for immunity should be handled in the district or appellate courts.
In Ultreras, the court held that the State bears the burden of establishing probable cause to believe a person’s use of force to be unlawful or unjustified to defeat a claim for self-defense immunity.
[ljGiven the posture in which the issue came up on appeal in Ultreras, the court didn’t have to formally address the procedural mechanics of deciding self-defense immunity claims. The district court erroneously required Ultreras to prove entitlement to self-defense immunity by a preponderance of evidence and, therefore, improperly denied his request. But the court found the error to be harmless because a jury later convicted Ultreras of aggravated battery, thereby rejecting his claim of self-defense. The jury necessarily concluded that the evidence didn’t even create a reasonable doubt about Ultreras’ guilt. See State v. Johnson,258 Kan. 61 , 66,899 P.2d 1050 (1995). Accordingly, the motion for self-defense immunity would have failed under the correct probable-cause standard-— a significantly less rigorous burden for the State than proof beyond a reasonable doubt. See State v. Jones,298 Kan. 324 , 334,311 P.3d 1125 (2013).
In recognizing a probable cause evidentiary standard and allocating the burden of satisfying that standard to the State, the Ul-treras decision effectively adopts the requirements imposed at a preliminary examination or hearing under K.S.A. 2014 Supp. 22-2902. (The statute refers to the proceeding as a preliminary examination; but in common parlance, it is known as a preliminary hearing.). At a preliminary examination, the district court shall order the defendant to face trial on a charged felony “[i]f from the evidence . . . there is probable cause to believe that a felony has been committed by the defendant.” K.S.A. 2014 Supp. 22-2902(3).
Procedural Treatment of Motions for Self-Defense Immunity
Following that lead, we see no reason the procedural structure of a preliminary examination
f2]The parties, with the district court’s permission, could stipulate to the use of otherwise inadmissible evidence, just as they may in other proceedings. See Gannon v. State,298 Kan. 1107 , 1125,319 P.3d 1196 (2014) (discussing scope of stipulations to evidence).
Again, consistent with preliminary examinations, the district court should not resolve conflicts in the evidence and, rather, ought to construe the record in a light favoring the State. The district court’s evaluation of evidence at a preliminary examination has been stated this way: “If there is conflicting testimony, the preliminary hearing judge must accept the version of die testimony which is most favorable to the State.” State v. Bell,
Courts similarly assess claims for qualified immunity extended to government officials sued for damages in civil actions. If facts relevant to an official’s claimed immunity are disputed, the issue must be deferred to trial. See Tolan v. Cotton,
In ruling on other pretrial motions in criminal cases, district courts do weigh evidence and make credibility findings. The most common, perhaps, are defense motions to suppress evidence. See, e.g., State v. Martinez, No. 107,995,
Because self-defense immunity affords a shield against prosecution and the attendant burdens and personal upheaval often associated with participation in the criminal justice process, especially as a defendant facing serious charges, a claim for the protection typically ought to be asserted early in that process. See State v. Jones,
District courts, therefore, ought to facilitate hearings combining preliminary examinations with claims for self-defense immunity. The Kansas Code of Criminal Procedure permits that sort of judicial efficiency. In light of State v. Seabury,
We, therefore, conclude that by order or local rule, district courts may require that a defendant assert any request for self-defense immunity so that it may be decided in conjunction with a preliminary examination at a single evidentiary hearing. Apart from simple efficiency, that sort of case management prevents a defendant from going to preliminary hearing and then deploying a motion for self-defense immunity principally as a tactical device to secure a second opportunity to examine at least some of the State’s witnesses under oath before trial. Those defendants waiving preliminary examination or charged with misdemeanors would be free to file motions for self-defense immunity anytime before trial, consistent with K.S.A. 2014 Supp. 22-3208, Jones, and case-specific orders. In this case, the district court imposed no such limitation on Hardy, so he may pursue his motion for self-defense immunity on remand. [3]
The language of K.S.A. 2014 Supp. 21-5231(a) extends self-defense immunity as a bar to arrest and charging in addition to halting tire continued prosecution of a criminal case already on file. Someone facing possible prosecution arising from an incident involving his or her use of force presumably, then, could seek a court ruling on immunity before any charges had been filed. The facts here don’t implicate that scenario. We venture no speculative suggestion on the proper procedure for invoking self-defense immunity in that abstract (and we think remote) circumstance.
Kansas self-defense law includes a rebuttable presumption that a person should be deemed to believe the use of deadly force to be reasonably necessaiy and, thus, lawful in specific enumerated circumstances. K.S.A. 2014 Supp. 21-5224(a). Among other situations, the presumption comes into play if a person uses deadly force against someone who is unlawfully or forcefully entering an occupied vehicle or has done so. Here, Flores did not try to get into the convertible, as someone attempting a carjacking might. Rather, he simply reached in to punch Hardy. The presumption, therefore, appears to be factually inapposite in this case under any version of the events. More broadly, in deciding a motion for self-defense immunity, a district court should not consider the presumptions in K.S.A. 2014 Supp. 21-5224(a) if, on some version of the facts, they would be inapplicable. To do otherwise would construe disputed evidence against the State,
To sum up, a district court must conduct an evidentiaiy hearing on a motion for self-defense immunity, unless tire parties otherwise stipulate to the factual record. The rales of evidence apply. At the hearing, the State has the burden to establish probable cause that the defendant acted without legal justification in using force. The district court must view the evidence in a light favoring the State, meaning conflicts in the evidence must be resolved to the State’s benefit and against a finding of immunity. Whenever possible, a district court should combine the hearing on the motion with a defendant’s preliminary examination.
District Court Misread Ultreras Tea Leaves
In attempting to tease some direction on procedure from Ul-treras, the district court here placed undue emphasis on language the decision drew from Rodgers v. Com.,
The district court may have focused on two passages from Rodgers quoted in Ultreras when it decided to permit the State to rely on police reports, witness interviews, and other hearsay. First, the Rodgers court noted probable cause tends to be “ ‘a fluid concept’ ” derived from “ 'die totality of the circumstances,’ ” as when a judge considers whether to issue a search warrant. Ultreras,
In Ultreras, the court also drew on a passage from Rodgers to the effect that once a defendant asserts self-defense immunity, “the State has the burden to establish probable cause ‘and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.’ ”
In Kentucky, a district court judge, roughly equivalent to a Kansas magistrate, conducts the preliminary hearing to determine if there is probable cause to refer a felony
Given the marked differences in criminal procedure between Kentucky and Kansas, we cannot conclude Ultreras’ reliance on Rodgers meant to endorse a new type of hearing—otherwise unrecognized in the Kansas Code of Criminal Procedure—equivalent to the Kentucky preliminary hearing for resolving motions for self-defense immunity. Nor do we conclude Ultreras allows district courts to dispense with tire rules of evidence in hearing those motions.
Finally, in this case, the district court suggested that unless it had the latitude to make credibility determinations and otherwise resolve conflicts in the evidence, a hearing on a motion for self-defense immunity would be of little significance, especially if a defendant had already been bound over at a preliminary examination, as was true for Hardy. In Ultreras, the court explained why that wasn’t so.
Having considered Ultreras and the purpose of statutory self-defense immunity, we reverse the district court’s dismissal of the complaint based on Defendant Hardy s motion. We remand with directions that the complaint be reinstated and the district court hold a hearing on self-defense immunity in conformity with this opinion and conduct any additional proceedings in this case as may be required.