Kansas Brandishing Law

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The recent case from the Ks Supreme Court as to self defense has some interesting develoments for us in Kansas. The Volokh Report is a good place to read about this decision.

In light of this recent decision, I began to be concerned about what could be the achilles heel of Open Carry in Kansas. Brandishing.

What constitutes "brandishing"?

At what point does posession move to brandishing?

Is brandishing allowed as a stop gap step along the way to lethal force or is it confined to the threshold of lethal force, which seems to be the implications of the Supreme Court decision?

The Volokh Report author seems to think that you can only legally brandish IF you have crossed the line into the legally allowable use of lethal force. Hence, If your going to pull that gun you might just as well shoot the threat!

It would seem that in Kansas, pulling your gun and pointing it or waving it or generally "brandishing" it can get you arrested unless you were in life threatening or serious bodily harm danger.

There could be some situations where actually pulling that gun and having it in your hand could get you in trouble when common sense was telling you to be ready for trouble.

This scenario makes me wonder what would happen. You hear a noise in your back yard. You grab your .627 Magnum blaster and search the back yard when the PD officer your wife called, finds you with gun in hand. Would any PD officer find you in violation of the brandishing law given the new Court ruling?

Clearly the State of Kansas Legislature must correct this problem.

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Does this ruling only apply to free citizens? For example, WPD pull out their guns all the time and point them at suspects... My brother is WPD and he says that they do this to make ready for a potential threat and it is not meant to be used a show of force, but rather as a preparation for using deadly force, if it appears that it might be needed...

Would be interesting to see how documented police training in Kansas could be leveraged against the courts as a way to properly address a potential threat...

Unfortunately, the ruling could potentially be turned around on law enforcement in Kansas, as well...

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Is this the story with which you were referring?

http://volokh.com/2010/02/12/if-you-brandish-a-gun-in-self-defense-in-kansas-youd-best-shoot-it/

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yes, thats the story.

When one of our members here approached the Mission Ks PD asst. Cheif, brandishing was mentioned as a possible violation from open carry. (he seemed to have been looking for a legal reason to stop someone from open carrying.

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Thanks for bringing this to attention KansasScout. I'm just wondering if the fella would've just said "Stop that or I'll fire" he'd have been arrested for conveying a threat? Shooting an unarmed? person is bad, but I imagine shooting two would be worse?
Guess we have to bring this to the attention of our state reps.

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This is an example of a bad case making bad law. The guy probably overreacted in the situation but his conviction was just not a good thing given it's implications.

I doubt many of us would have pulled a gun in that situation. They could probably have left fairly easily but the woman probably was whiskey brave and had whiskey mouth.

It is not even clear she was pushed. Chances are she was not. So there was not much of a threat displayed. I don't know what was being said.

If someone is armed or has a club or knife, I think your covered. They must be actually threatening you though. Simply having them may not be enough of a threat.

I suppose HOW you brandish a weapon matters?

We DO need to get our legislators on this one.

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bran·dish[suP][/suP] 
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var interfaceflash = new LEXICOFlashObject ( "http://sp.ask.com/dictstatic/d/g/speaker.swf", "speaker", "17", "15", " Use brandishes in a Sentence


See images of brandishes


Search brandishes on the Web



Origin:
1275–1325; ME bra(u)ndisshen < AF, MF brandiss- (long s. of brandir, deriv. of brand sword < Gmc). See brand, -ish[suP]2[/suP]
—Related forms
bran·dish·er, noun

—Synonyms
1. swing, flaunt, wield, display.

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this is a difficult one, because walking up to two guys while fiancee is laying on ground near them, would definitely pose a threat to most citizens, e.g. out numbered, potential kick to fiancee could be life-threatening. I suppose there is not enough information, e.g. two guys acting aggressively, in order to conclude if he over reacted. I suppose if I could not physically stop a fight that was breaking out between my fiancee and two guys, I would probably want to utilize something that could stop it. Most cops are prepared to escalate, e.g. verbal warning, pepper spray, taser, then gun, but this guy only had his body and then acquired a gun to stop a potentially life-threatening kick to his fiancee... The situation could have been handled better, e.g. shout verbal "suggestions", when approaching, but once the issue arose, I think it is appropriate to end the fight quickly to prevent someone from getting kicked in the head, etc... Would the guy get into trouble for shouting "Please (sounding like Police), step away from the women", with a hand on his weapon which was concealed from the public behind his back under shirt/jacket? I usually carry a flashlight to add authority impact... Yes, I don't have all of the facts, but I think it could be argued that he was in fear of his fiancee's life, because a kick to the head by one of the guys could have cause serious bodily injury. Sounds like he had a crappy attorney...

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The Kansas legislature has sent a bill to the Govenor for signiture that will correct the bad case law that arose from the incident as found in Ks Vs Hendrix.

This bill corrects the faults in the law that led to this mans conviction. I have not heard if the Govenor will sign this. I would bet he does.

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i try not to think of it as brandishing, i like to think of it as: Suggesting.

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What is scary is that in Wichita, the police are TAUGHT by the state of Kansas to display a firearm while giving verbal commands to give up. This is a form of "lesser" force that is wanted of police officers to subdue a situation non-violently if possible. And Damian you are correct, they also brandish them to ready themselves like clearing a building that was recently broken into or on felon car stops etc. If the police and KLETC find it very important to do so shouldn't citizens?

This is getting very scary for not only citizens but Law Enforcement. But also keep in mind guys that the 10th district (Kansas) gets overturned by the Supreme Court more than any other 49 states by 80% of the time! So pretty much they are always interpreting the law incorrectly.

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KansasScout wrote:

The recent case from the Ks Supreme Court as to self defense has some interesting develoments for us in Kansas. The Volokh Report is a good place to read about this decision.

Click to expand...

Pls link to blogs or other authorities if you mention them.

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KansasScout wrote:

yes, thats the story.

When one of our members here approached the Mission Ks PD asst. Cheif, brandishing was mentioned as a possible violation from open carry. (he seemed to have been looking for a legal reason to stop someone from open carrying.

Click to expand...

I think the opposite is more likley true true - that mere open carrying is a way to deter violent crime before any incident arises without running afoul of the apparent self-defense display loophole in Kansas statututory law identified in State v. Flint.

For example, the Virginia Supreme Court has said that transitioning from concealed to open carry in a threatening way without cause is criminal brandishing in Virginia. See Commonwelth v. Morris at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1032714&invol=1

We have discussed the theoretical problem of transitioning from concealed to open carry during any sort of confrontation before, but never in the context of the apparent result under Kansas law where a threat of deadly force may not be excusable even on self-defense grounds - I am amazed at the apparent result in State v. Flint - are you Kansas folks working to get the statute fixed?

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As I think I already posted about. the correction is before the governor now, awaiting his signiture. I have not heard an update this week as to his signing yet. I will post when It does, or does not

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You are right with your def. of Brandishing the weapon. and on the second issue of pulling your weapon on your property while believing there maybe a threat is not an issue. the bad guys who are trying to do harm or do theft aren't going to ring your door bell and ask. I don't think the officer would have an issue. Know at first he might think you are the bad guy. So making your self known would be a plus.

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Any updates? Is there a bill number I can reference?