State v. Betts

514 P.3d 341

STATE of Kansas, Appellant,

v.Dexter BETTS, Appellee.

No. 122,268

Supreme Court of Kansas.

Opinion filed July 29, 2022.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

Jess W. Hoeme, of Joseph, Hollander & Craft LLC, of Wichita, argued the cause, and Carrie E. Parker, of the same firm, of Topeka, was with him on the briefs for appellee.

The opinion of the court was delivered by Biles, J.:

While securing the interior of a family home during a domestic violence investigation, Wichita Police Officer Dexter Betts fired two gunshots in quick succession at a fast-approaching dog he thought was attacking him. He missed, and bullet fragments struck a young girl sitting nearby. The State charged the officer with reckless aggravated battery for injuring her. Betts moved to dismiss the charge before trial. He argued state law immunizes his use of deadly force in self-defense—even if he acted recklessly and regardless of who got hurt. The district court agreed and dismissed the case. When the State appealed, a Court of Appeals panel affirmed. State v. Betts , 60 Kan. App. 2d 269, 489 P.3d 866 (2021). On review, we reverse the grant of statutory immunity and remand the case to the district court for further proceedings.

This appeal presents facts we have not considered before. In the typical self-defense immunity case, the State charges a defendant with an intentional crime committed against a person claimed to be the aggressor. And when the defendant invokes statutory immunity from prosecution in a case involving the use of deadly force against the alleged aggressor, we determine whether the defendant had a reasonable belief such force was necessary to prevent imminent death or great bodily harm to the defendant or a third person. See, e.g., State v. Collins , 311 Kan. 418, 461 P.3d 828 (2020) (two-prong test applies).

But what about a circumstance like this when the crime charged involves an innocent bystander who was unintentionally injured during the defendant's allegedly reckless conduct while engaging in self-defense? To answer that, we begin with the statute. State v. Hardy , 305 Kan. 1001, 1008, 390 P.3d 30 (2017) ("As with any problem of statutory interpretation, we turn first to the plain language of the statute itself."). K.S.A. 2021 Supp. 21-5231(a)'s text explicitly ties its privilege to yet another statute, K.S.A. 2021 Supp. 21-5222, which provides only that a person is "justified in the use of force against another ... to defend ... against such other's imminent use of unlawful force ." (Emphasis added.) So on its face, the statutory grant of immunity is confined to the use of force against a person or thing reasonably believed to be an aggressor.

We hold K.S.A. 2021 Supp. 21-5231(a) does not extend its immunity to a defendant's reckless acts while engaged in self-defense that result in unintended injury to an innocent bystander as alleged here.

FACTUAL AND PROCEDURAL BACKGROUND

The parties do not dispute the district court's factual findings, so we quote from its written order:

"On December 30, 2017, defendant Betts, Officer [Andrew] Corliss & other Wichita Police Department (WPD) officers were dispatched to a residence on a report of domestic violence.... Information provided to law enforcement included that the man had a gun; the man had threatened suicide; the man had put the gun in his mouth; the man had choked a dog. The officers were notified that the actions of the man were committed in front of children. Officers were informed that the children were in the house screaming. WPD officers were responding to a volatile and potentially dangerous situation.

"Officers Betts and Corliss contacted a male outside the home upon arrival. The man was unarmed. The officers saw children standing inside the front door of the residence. WPD Sgt. Crouch arrived and instructed officers Betts and Corliss to enter the residence to check the safety of the occupants. As officers Betts and Corliss approached the door or shortly after their entry into the residence, Sgt. Crouch informed the officers that the gun was inside the residence under a pillow in a bedroom.

"When the officers entered the residence, two ... boys were in front of the television in the living room of the small home. A girl was on the floor in front of a sectional couch.... Officer Corliss entered the home and went to his left into the master bedroom and located a gun under a pillow. Officer Betts acknowledged the children and entered a hallway. Officer Betts, consistent with WPD department policy and/or procedures, had his weapon drawn. A flashlight was affixed to Officer Betts's firearm and provided illumination. Officer Betts noticed what he believed to be a pit bull in one of the rooms off of the hallway.

"Officer Corliss yelled out that he found a gun. Officer Betts acknowledged Corliss and said ‘we have a dog in here.’ Officer Betts returned to the living room. The dog that Officer Betts had noticed had advanced down the hallway and was approaching Officer Betts. Officer Betts said ‘whoa, whoa’ and fired twice at the advancing dog. The girl mentioned earlier can be seen on the floor in front of the couch near the advancing dog. The dog was barking as it approached the officer and appears to be lunging toward Officer Betts when the shots are fired. The shots missed the dog and struck the floor. Bullet fragments struck the girl above the eye and on a toe.

"Officer Betts's AXON camera recorded the incident. According to the AXON video, all of the above transpired within approximately thirty ... seconds of the officers' entry into the home." (Emphases added.)

The State charged Betts with reckless aggravated battery under K.S.A. 2017 Supp. 21-5413(b)(2)(B) ("Aggravated battery is ... recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted."). K.S.A. 2021 Supp. 21-5202(j) explains that "[a] person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."

The State's case alleges Betts consciously disregarded a substantial and unjustifiable risk of injury by firing his handgun twice at the dog while the girl sat nearby on the living room floor. At the preliminary hearing, the district court found probable cause to believe the charged crime had occurred and probable cause to believe Betts committed it. In its ruling, the court noted, "the child that was ultimately injured ... is right next to the dog." See State v. Washington , 293 Kan. 732, 733-34, 268 P.3d 475 (2012) (noting probable cause to bind a defendant over for trial " ‘signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt’ ").

Betts filed a pretrial motion to dismiss seeking self-defense immunity under K.S.A. 2021 Supp. 21-5231(a). It provides:

"A person who uses force which ... is justified pursuant to K.S.A. 21-5222 ... is immune from criminal prosecution and civil action for the use of such force.... As used in this subsection, ‘criminal prosecution’ includes arrest, detention in custody and charging or prosecution of the defendant."

K.S.A. 2021 Supp. 21-5222, which K.S.A. 2021 Supp. 21-5231 references, adds detail:

"(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force.

"(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person."

In his motion, Betts argued that so long as his use of deadly force against the dog was justified under this statutory scheme, any unintended harm to an innocent bystander should not change his entitlement to immunity. The State responded with three arguments: (1) self-defense immunity is never available to those who act recklessly; (2) a reasonable person in Betts' circumstances would not believe firing a handgun in the living room was justified because he saw the children and knew a dog was on the premises before he arrived; and (3) self-defense immunity is reserved for deadly force applied against a person, but not an animal.

Three witnesses testified for the State at an evidentiary hearing on the motion to dismiss. Officer Corliss described the incident, while Officer Hannah Holley, a crime scene investigator, explained how the bullets fragmented when they struck the floor and hit the girl. Wichita Police Lieutenant Christopher Halloran, a former range master in charge of the department's firearms training, described the policy on use of deadly force in self-defense against animals. He explained the policy allows WPD officers to use firearms to defend themselves against a charging or dangerous animal. He said: "[T]he fact that Officer Betts used his weapon to defend himself against a dog is not uncommon." He added: WPD "does shoot dogs pretty regularly." He presented a video simulator used to train recruits that includes scenarios with dog attacks. The defense introduced evidence summarizing 21 incidents of officers shooting at dogs between 2014 and 2018.

In ruling, the district court limited itself to the State's arguments, rejecting each. First, the court decided a defendant can assert self-defense immunity when charged with a recklessness crime. It relied on Hardy , 305 Kan. at 1010...