State v. Hendrix

Davis, C.J.,

dissenting: Under Kansas law, “[a] person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such force is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” K.S.A. 21-3211(a) (Furse 1995); accord State v. Shortey, 256 Kan. 166, 173, 884 P.2d 426 (1994). The majority determines that the plain language “use of force” means only the exertion of physical force. Because I find the language of K.S.A. 21-3211 (Furse 1995) to be ambiguous and because I conclude that the legislature reasonably intended to incor*865porate both physical and constructive force within the self-defense statute, I cannot join in the majority opinion and must dissent.

Consider the following example. One evening, a large man approaches a woman in a menacing manner and threatens, “I’m going to hurt you!” Worried for her life, the woman takes a gun from her purse, points it at her assailant, and says, “Stay where you are!” The assailant turns and runs.

Assume for the sake of the example that the woman is subsequently charged with aggravated assault. While she successfully repelled her attacker with constructive force, she is not entitled to a self-defense instruction according to the majority opinion. Had she actually shot her assailant, she may very well have been entided to that instruction under tiiat same rationale. This bizarre result cannot have been intended by the legislature in its enactment of K.S.A. 21-3211 (Furse 1995).

Although the majority recognizes the incongruity in this outcome from a policy perspective, it finds that its interpretation of K.S.A. 21-3211 (Furse 1995) is demanded by the plain language of that statute. I disagree that the plain language dictates such a result.

K.S.A. 21-3211(a) (Furse 1995) provides that, in certain instances, the “use of force” is justified when defending oneself or others. The statute does not define the terms “use” or “force.” In my opinion, die failure to define these terms creates an ambiguity in the statute that must be resolved through statutory construction.

Notably, the majority assumes that the term “force” includes only “physical force.” See slip op. at 5-6 (indicating that the “ordinary meaning” of “force” is “actual [or physical] force”). This interpretation is not based on the plain language of the statute, as K.S.A. 21-3211 (Furse 1995) is silent as to the types of force it encompasses. The generic term “force” may include both “actual force” — that is, physical force — -and “constructive force” — that is, the threat of actual force. See Black’s Law Dictionary 717 (9th ed. 2009) (distinguishing actual force [“(f)orce consisting in a physical act”] from constructive force [“(t)hreats and intimidation to gain control or prevent resistance”]).

Likewise, the majority opinion interprets the term “use” in K.S.A. 21-3211 (Furse 1995) to mean only the exertion of physical *866force. The majority reaches the blanket conclusion that “ ‘[u]se of force’ does not mean ‘threat of force’ or ‘display of force’ or ‘presentation of force’ or any interpretations which similarly dilute the actual use of force, i.e., physical contact.” Slip op. at 6. But contrary to the majority’s interpretation, “use” is a general term that may include ah of those other actions (threat, display, presentation, etc.). Sée Black’s Law Dictionary 1681 (9th ed. 2009) (defining “use” in general terms as “[t]he application or employment of something” and listing 34 examples where “use” carries different meanings in the legal context).

It is a cardinal principle of statutory interpretation that a statute should not be read to add language that is not found in its text. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Absent a definition of the terms “use” and “force” in K.S.A. 21-3211 (Furse 1995), we are left with the task of ascertaining the intent of the legislature in its including those undefined terms in the statute. In order to reach the majority’s conclusion that it may resolve the question before us under the statute’s plain language, one must first assume that the legislature intended to exclude constructive force to limit “force” to “physical force” only. The same is true if one limits “use” to describe only the “exertion of physical force.” Contrary to the majority’s conclusion, the language used in K.S.A. 21-3211 (Furse 1995) is not necessarily clear and, without some assumptions on the part of the reader, does not exclude constructive force from the ambit of self-defense.

When the language of a statute leaves the reader generally uncertain as to which of two or more reasonable interpretations is proper — as is the case here — courts must resort to maxims of construction. See Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84 (1996). Most importantly, when ascertaining legislative intent, courts must interpret statutes in a reasonable manner as long as such an interpretation is consistent with a statute’s language. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).

The practical result of the majority’s interpretation of “use of force” in K.S.A. 21-3211 (Furse 1995)- — that a self-defense instruction is only warranted when actual physical force has been ex*867erted — is to interpret the ambiguity in favor of physical violence. Instead of using words to deter harmful conduct, persons would be encouraged to escalate a situation by committing some kind of physical act that would justify acting in self-defense under the law. In the example described above, the woman would be encouraged to shoot her assailant instead of merely threatening him. As Hendrix argues in his petition for review, this result is truly “absurd.”

The majority attempts to bolster its interpretation by turning to other examples in our statutes where the legislature has apparently differentiated between “threat” and “force.” I do not find these distinctions persuasive in light of its unreasonable interpretation in favor of escalating already violent situations. Instead, I would resolve the ambiguity in favor of nonviolence and de-escalation.

I find the self-defense definition included in the Model Penal Code to be a particularly helpful example of a resolution of the question before us. Model Penal Code § 3.04(1) (1995) provides that “the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” (Emphasis added.) Several states have adopted the exact language of the model code in their definition of self-defense. See Del. Code Ann. tit. 11, § 464 (2007); Guam Code Ann. tit. 9, § 7.84 (2008); Hawaii Rev. Stat. § 703-304 (2007); Neb. Rev. Stat. § 28-1409 (2003); N.J. Stat. Ann. § 2C:3-4 (West 2005); 18 Pa. Cons. Stat. Ann. § 505 (Purdon 1998).

Two important aspects of the model code are worth noting. First, the model code employs the same phrase — “use of force” — that is used in K.S.A. 21-3211 (Furse 1995). It does not distinguish between threats and physical force, nor does it specifically define “force” in that context. Second, the model code indicates that one may use force “upon or toward” another. In other words, the “use of force” does not necessarily require some physical force exerted on another; rather, it can involve force directed toward another to de-escalate a violent situation. Put simply, the Model Penal Code envisions self-defense to include constructive force.

*868The cases decided by the states employing the Model Penal Code definition are consistent with this interpretation. For example, in Com. v. Rittle, 285 Pa. Super. 522, 428 A.2d 168 (1981), the Pennsylvania Superior Court reversed and remanded an assault conviction for a new trial because the trial court failed to provide a self-defense instruction. In Rittle, the victim, who was much larger then the allegedly sickly defendant, approached the defendant’s car and threatened to beat up the defendant. The defendant reached into his back seat, produced a gun, and pointed it at the victim; the victim walked away. No shots were fired. The trial court refused to charge the jury on self-defense and the defendant was found guilty of simple assault. On appeal, however, the court held that the jury could have concluded that the victim was the initial aggressor who attempted to place the defendant in fear of imminent serious bodily injury and such could amount to simple assault. Therefore, the defendant was entitled to an instruction on the use of self-defense. 285 Pa. Super, at 525-26.

It is true that K.S.A. 21-3211 (Furse 1995) is not identical to the Model Penal Code’s self-defense definition. Instead of stating that “the use of force upon or toward another person is justifiable” in limited circumstances (as Model Penal Code § 3.04[1] [1995] provides), K.S.A. 21-3211(a) (Furse 1995) states that “[a] person is justified in the use of force against an aggressor” when the other conditions of the statute are met. (Emphasis added.) I do not find this difference to be significant, however. The term “against” encompasses the same behavior that may be directed “upon or toward” another. Thus, it is consistent with the model code and likewise does not exclude from its ambit the use of constructive force in self-defense.

Statutes should be interpreted in a reasonable manner as long as such an interpretation is consistent with a statute’s plain language. Winnebago Tribe of Nebraska, 283 Kan. at 77. Because it would be entirely consistent with the language of K.S.A. 21-3211 to interpret “use of force” to include both constructive and actual force, I would conclude that the legislature intended to include constructive force within its definition of self-defense. Thus, in the hypothetical example described above between tire man and the *869woman, I would conclude that the woman’s use of force to repel her assailant by pointing the gun fits the legislature’s definition of self-defense.

Luckert, J., joins in the foregoing dissent.