[A]fter leaving a bar in Emporia where [Brandon] Flint’s fiancee and another man exchanged angry words, Flint walked to his car. Outside, Flint’s fiancee and two men continued to talk in a heated fashion. Flint’s fiancee fell to the ground during the scuffle. At this point, Flint got his gun, walked back across the street, and pointed the gun at the chest of one of the men; both men immediately backed away. Flint’s fiancee got up, she and Flint walked back to Flint’s car, and they drove away.
The State charged Flint with aggravated assault, and the jury convicted him. Flint requested an instruction for defense of another under K.S.A. 21-3211(a), but the district court denied his request, ruling Flint’s use of force was greater than reasonably necessary to resist the attack….
Now at this point one might think there’d be a discussion of whether there was sufficient evidence that Flint reasonably thought that the fiancee was in danger of death, serious bodily injury, or the like, or merely was involved in a not very serious scuffle. Or one might think there’d be a discussion of whether at the point Flint pointed the gun, the fiancee was in continuing danger, or whether the men had already started to walk away. The discussion in the opinion suggests to me that there’d probably be enough of a factual question on the subject that the matter should be left to the jury, with a suitable defense-of-others instruction (unless no reasonable jury could find, beyond a reasonable doubt, that defense of others was justified, in which case Flint should have gotten a directed judgment of acquittal). But if the court had said that the facts revealed no reasonably perceptible threat of serious harm to the fiancee, I’d have been inclined to defer to the court’s knowledge of the record.
But that’s not what this case is about. Let’s keep reading:
A majority of the Supreme Court held in [State v. Hendrix, 289 Kan. 859 (2009),] that K.S.A. 21-3211 created a defense of self or defense of another only when there is “use of force.” The majority decided actual physical contact rather than a mere threat or display of force is necessary to raise this defense. Since Flint merely threatened the use of his gun and there was no actual force applied, he was not entitled to the defense of another.
Wow. Had Flint actually shot the gun, he would presumably have been entitled to have the jury consider his defense-of-others defense. (Such a defense would generally be roughly similar to a self-defense defense, and use of deadly force is generally allowed in self-defense against sufficiently serious threats.) But because Flint merely brandished the gun, he’s a felon — even if he reasonably believed that brandishing the gun was necessary to save his fiancee’s life. That is simply absurd.