A year after Cedric Lofton death, possible change to 'stand your ground' law uncertain in Kansas




  • In US
  • 2022-09-23 13:41:55Z
  • By The Topeka Capital-Journal
Protesters walk around the Kansas Statehouse grounds with rifles during a protest in April 2020.
Protesters walk around the Kansas Statehouse grounds with rifles during a protest in April 2020.  

One year after a Wichita teenager was killed in a juvenile jail, progress to overhaul the Kansas law used to shield law enforcement officers from prosecution has been fledgling - but lawmakers say progress could come next year.

Kansas' so-called "stand your ground" law was catapulted into the public consciousness after 17-year-old Cedric Lofton was killed after being restrained in a prone position by officers at the Sedgwick County juvenile intake center.

Sedgwick County District Attorney Marc Bennett pointed to the law as justification for not filing charges against the officers involved, despite the county coroner ruling Lofton's death a homicide.

More: Kansas coroner rules homicide in death of Black teen who was restrained face-down on jail floor

The statute allows residents to use deadly force if a person "reasonably believes" it to be necessary to defend themselves or a third party against a deadly threat posed by another individual.

In the wake of Bennett's decision not to charge the officers, top Republicans said tweaks to the law were in order, but nothing came to pass in 2022.

Lawmakers say they will entertain the idea when they return to Topeka for the annual legislative session, though what exactly might change remains unclear. Some want to exempt law enforcement from the liability shield for conduct as a part of their duties.

"I think there has always been interest," said Rep. Barbara Ballard, D-Lawrence. "It is a matter of if the timing is right."

After Cedric Lofton killing, lawmakers weigh potential response

This April 21, 2019, photo shows Cedric Lofton, of Wichita, who died in September 2021 while being restrained after an altercation with staff at a Wichita juvenile center.
This April 21, 2019, photo shows Cedric Lofton, of Wichita, who died in September 2021 while being restrained after an altercation with staff at a Wichita juvenile center.  

The "stand your ground" law is regularly cited as a defense in cases involving law enforcement and private citizens. Kansas is one of a handful of states where the law can be used to shield against both civil and criminal liability.

In Kansas, the "stand your ground" claim is raised during a pre-trial hearing, with the prosecution forced to prove the use of force wasn't reasonable.

This routinely shapes the decision prosecutors make in bringing charges in the first place. A March Wichita Beacon story found that Wichita Police and the Sedgwick County Sheriff's Department have shot and killed 19 individuals since Bennett took office. In 16 of those cases, Bennett declined to press charges, citing the "stand your ground" law.

The law was back in the news in July, when the Kansas Supreme Court said a Wichita police officer couldn't claim immunity for attempting to shoot a dog he feared would attack him, with bullet fragments striking a young girl in the area.

More: Kansas cop who shot girl while aiming for dog can't claim immunity, Supreme Court rules

"If the Legislature wishes to extend self-defense immunity when an innocent bystander is hurt, it can do so," Justice Dan Biles wrote in the opinion. "In the meantime, we find nothing in the statutes providing a blanket shield for reckless conduct injuring an innocent bystander who was not reasonably perceived as an attacker."

The question becomes whether they will consider such a change - or any revisions to the law.

In the wake of Bennett's decision not to charge officers in connection with Lofton's death, top Republicans expressed concern that the statute was being applied in ways not initially intended.

"I don't know how you apply stand your ground to that scenario," Senate President Ty Masterson, R-Andover, told the Associated Press in January.

Rep.
Rep.  

At the time, Rep. Stephen Owens, R-Hesston, chair of the House Corrections Committee, said he was planning on holding hearings on the matter in 2022.

But Owens said in an interview that legislators ultimately found it more prudent to wait and examine recommendations from a Sedgwick County commission formed to review Lofton's death, though no suggestions on the subject ultimately came out of the report.

"We just didn't want to react too fast, because we wouldn't have been able to have all of the information in our hands anyway, to be able to make effective decisions," Owens said.

At the same time, Ballard and Douglas County lawmakers were approached by Stephen McAllister, a former solicitor general under Attorney General Derek Schmidt, about the possibility of exempting law enforcement officers and public employees from the law, when serving in their work capacity.

More: Family of Cedric Lofton files federal civil rights lawsuit over death of teenager at Kansas jail

Rep.
Rep.  

McAllister also served as U.S. attorney under President Donald Trump and launched a federal civil rights investigation into the shooting of teenager John Albers by an Overland Park police officer.

The former officer, Clayton Jenison, hasn't faced state or federal charges. But McAllister said he was taken aback that Jenison could be shielded from prosecution in Johnson County under "stand your ground."

"It's hard enough sometimes to hold police and public employees accountable in some of these really tragic situations," McAllister said. "Adding 'stand your ground' is just kind of insult to injury. They don't need it - if they are acting reasonably, they've got plenty of protection under the law already. And if they're not, there's no reason to add this into the mix."

Wichita activists will do 'whatever it takes to get justice for Cedric Lofton'

All the while, activists in Sedgwick County have continued pushing for action.

"We know there are some legislators working to revise 'stand your ground' currently, but we don't think that that's enough," said Mary Dean, a Wichita activist. "We think that more needs to be done. And we will do whatever it takes to get justice for Cedric Lofton and all of the other victims of police violence that have not got justice because of the inequities posed by 'stand your ground.'"

Dean and a group of other activists met with Schmidt earlier this year on Lofton's death and the potential for change to "stand your ground."

The back-and-forth, they said, wasn't productive, with activists wanting him to take a more active role on the issue.

As legislators consider changing the law, however, Rep. K.C. Ohaebosim, D-Wichita, emailed a request to Schmidt's office last month to request a formal attorney general opinion on behalf of Dean and another constituent.

A Democrat legislator has asked Attorney General Derek Schmidt for an official opinion on the use of Kansas
A Democrat legislator has asked Attorney General Derek Schmidt for an official opinion on the use of Kansas' so-called u0022stand your groundu0022 law.  

Such an opinion is general advice that typically carries some weight in the courts, although it isn't binding.

But Clint Blaes, a spokesperson for Schmidt's office, said an initial review of the request from Ohaebosim appears to deal with a set of hypothetical facts, which are "generally not a question that may be addressed in an attorney general's opinion."

Schmidt's office declined to say whether Bennett's decision was legally sound.

Blaes did say a 2010 modification to "stand your ground" "was not intended to resolve situations such as the case in Wichita."

That change said an individual didn't have to wait for an attacker to actually use force in order to respond to a threat.

"In light of years of judicial decisions interpreting these statutes, other state self-defense statutes, and how the various self-defense statutes interact, it may be prudent for the Legislature to review all of them to ensure they are being interpreted and are working as intended," Blaes said. "As he has told multiple interested parties, Attorney General Schmidt is willing to participate in that discussion when the Legislature convenes next session."

Potential for change to 'stand your ground' in 2023 uncertain

Legislative efforts to rewrite the law, however, are in the nascent stages and would need considerable stakeholder input before moving forward.

A potential sounding board is Bennett, the Sedgwick County DA, who said he discussed the matter with several legislators earlier this year, though he hasn't been continuing those conversations presently.

"Those discussions may well occur this fall," he said in an email.

Rep. John Carmichael, D-Wichita, said he believed change was warranted.

"When the Stand Your Ground law was passed, did anyone think that it would ever apply to juveniles in custody at a county - in essence, a state-sponsored correctional institution?" he said. "I certainly don't think so."

But Carmichael said any changes would need buy-in from the state's powerful gun industry groups, such as the Kansas State Rifle Association, something he didn't see happening.

"Maybe progress can be made," he said. "But overall, I'm not terribly optimistic."

Moriah Day, executive director of the Kansas State Rifle Association, didn't respond to an email asking if the group had a position on the matter.

Other groups have also not yet weighed in.

Members of the state's principal lobbying group for law enforcement had not yet discussed the matter, Ed Klumpp, legislative liaison for the Kansas Peace Officers Association said. But Klumpp added that he wouldn't be surprised if legislators took action.

While Owens, the Hesston representative, said he was inclined to say "honest-to-goodness" mistakes by law enforcement officers should be shielded, he also was sympathetic to family members of those who have been killed.

Ultimately, he added, there was likely to be some sort of dialogue in 2023, whether in his committee or the House Judiciary Committee.

"Our law enforcement officers are called to put their lives on the line every single day that they are on duty, and oftentimes everyday that they're not on duty," Owens said. "And so they deserve as much protection as the law can provide.

"But we also have to take into consideration that, you know, when there is negligence, or when there is especially gross negligence, then there also has to be accountability because they're held to a higher standard."

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.

This article originally appeared on Topeka Capital-Journal: Kansas legislature slow to change law after teen's death in custody

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