a motion for immunity pursuant to K.S.A. 2016 Supp. 21-5231,
the district court must consider the totality of the
circumstances, weigh the evidence before it without deference
to the State, and determine whether the State has carried its
burden to establish probable cause that the defendant's
use of force was not statutorily justified.
court's determination of probable cause must be premised
on stipulated facts or evidence, on evidence received at a
hearing pursuant to the rules of evidence, or both.
timing of such a hearing-including whether it should occur
before, after, or contemporaneous with the preliminary
hearing-is left to the sound discretion of the district
court. When exercising such discretion, district courts must
remain sensitive to the fact that the matter being resolved
is a question of immunity that ought to be settled as early
in the process as possible to fully vindicate the statutory
When rendering probable cause determinations pursuant to
K.S.A. 2016 Supp. 21-5231, district courts must consider the
statutory presumptions set forth in K.S.A. 2016 Supp. 21-5224
when they are factually implicated.
appellate court will apply a bifurcated standard of review to
a district court's determination of probable cause
pursuant to K.S.A. 2016 Supp. 21-5231. When a district
court's ruling entails factual findings arising out of
disputed evidence, a reviewing court will not reweigh the
evidence and will review those factual findings for
supporting substantial competent evidence only. The ultimate
legal conclusion drawn from those facts is reviewed de novo.
When there are no disputed material facts, a pure question of
law is presented over which an appellate court exercises
of the judgment of the Court of Appeals in 51 Kan.App.2d 296,
347 P.3d 222 (2015).
from Sedgwick District Court; David J. Kaufman, judge.
J. Maloney, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the briefs for appellant.
Richard Ney, of Ney and Adams, of Wichita, argued the cause
and was on the brief for appellee.
night of March 16, 2013, Marlon Hardy rode as a passenger in
Jaylyn Bradley's red Mustang convertible to pick up two
young women, including Y.M., at a house party on Fairview
Street in Wichita, Kansas. At the time, Javier Flores-a
partygoer already at the house-was severely intoxicated. He
had consumed about 20 beers and 4 shots of liquor. When
Bradley and Hardy attempted to leave with Y.M., a dispute of
some kind arose. Flores, along with a group of five to nine
partygoers, surrounded the open convertible, preventing it
from moving. Flores yelled racial slurs at Bradley and Hardy,
but they did not respond. Several bystanders tried to calm
Flores down and hold him back from the convertible, to no
avail. Violence ensued.
parties do not dispute that Flores instigated the violence.
Unprovoked, Flores approached the passenger side of the
convertible, reached in, and struck Hardy two to three times
in the face. Hardy picked up Bradley's gun from the
console and shot Flores once. Hardy put the gun down and
Bradley picked it up, shooting Flores again. Flores suffered
gunshot wounds in the right arm and left leg.
these undisputed facts, the State charged Hardy with
aggravated battery. Hardy eventually claimed self-defense,
and the case turned on the factual intricacies of that
defense-principally, was the shooting contemporaneous with
the violence initiated by Flores or had Flores disengaged
before being shot? Indeed, preliminary hearing testimony
supported both possibilities. Y.M. testified she was in the
convertible and saw Hardy fire the shot after Flores had
"backed up a little bit." She explained someone was
pulling Flores away from the car but Flores was still
"trying to get" Hardy. About a second later, Hardy
shot Flores. Y.M. also recalled that when Hardy fired the
shot, the convertible's path was clear enough to drive
away. Flores' story flip-flopped throughout his
testimony. Multiple times Flores testified he heard the shots
right before he stopped punching. Yet, he also
testified he heard the gunshot after he stopped
punching or walked away.
the preliminary hearing, the district court found sufficient
probable cause to bind Hardy over for trial. The court
recognized the issue of self-defense but concluded, "It
would be inappropriate for me to say at this juncture as a
matter of law that self-defense is appropriate."
Subsequently, Hardy moved for a grant of immunity pursuant to
K.S.A. 2016 Supp. 21-5231(a)-Kansas' self-defense
immunity statute-and asked for a probable cause hearing.
Citing State v. Ultreras, 296 Kan. 828, 295 P.3d
1020 (2013), Hardy claimed he was immune from prosecution
unless the State could establish probable cause that he was
not justified in his use of force. He argued the evidence
taken at the preliminary hearing showed Flores' attack
was unprovoked and Hardy's use of force was justified to
protect himself or another pursuant to K.S.A. 2016 Supp.
district court conducted the requested hearing, first
observing that pursuant to Ultreras, the State had
the burden to show probable cause that force was not
justified. The court recognized Ultreras
"reach[ed] no holding regarding the procedures by which
the immunity defense should be presented to or resolved by
the District Court."
advocated for an evidentiary presentation in the presence of
the defendant with a right to confrontation. Hardy
acknowledged "it's still an open question"
whether an evidentiary hearing is required pursuant to K.S.A.
2016 Supp. 21-5231 but argued the hearing "must be
something more than the Court looking at an affidavit of
probable cause, if you will, that can make that determination
because, obviously, that can be structured in any way
charging authorities wish to structure it."
State conceded that Ultreras gave no explicit
procedural guidance but pointed out that while reaching our
decision in Ultreras, we looked to a decision by the
Kentucky Supreme Court in Rodgers v. Com., 285
S.W.3d 740 (Ky. 2009). There, interpreting a similar
self-defense immunity statute, the Kentucky Supreme Court
refused to require an evidentiary hearing because one had not
been expressly required in the plain language of the immunity
statute. 285 S.W.3d at 755. Following Rodgers, the
State argued an evidentiary hearing was not required and the
district court could review witness statements and police
affidavits to make its finding. Finally, and most important,
the State argued the court must resolve conflicting evidence
in the light most favorable to the State.
turn, Hardy responded that K.S.A. 2016 Supp. 21-5231 provides
more protection than the usual probable cause determination-a
"true immunity"-otherwise the statute is
"wasted verbiage." Hardy asked for an independent
finding "based on what Ultreras talked about
and Rodgers talks about . . . the totality of the
circumstances is what the Court should look at. There's
no talk about that all evidence should be interpreted in
favor of the prosecution."
district court acknowledged that "reasonable minds can
certainly disagree"; however, "it is wholly
inappropriate, in my opinion, for a judge at a preliminary
hearing to make findings under . . . 21-5231, the ...