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21-5231. Same; immunity from prosecution or liability; investigation. (a) A person who uses force which, subject to the provisions of K.S.A. 2022 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2022 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, "criminal prosecution" includes arrest, detention in custody and charging or prosecution of the defendant.

(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest.

(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause.

History: L. 2010, ch. 136, § 29; July 1, 2011.

Source or Prior Law:



1. In ruling on request for immunity from criminal prosecution based on claim of self-defense, district court should conduct an evidentiary hearing procedurally comparable to a preliminary examination and resolve conflicting evidence in favor of the state. State v. Hardy, 51 K.A.2d 296, 347 P.3d 222 (2015).

2. The district court erred in granting self-defense immunity and dismissing the charge of aggravated battery without holding an evidentiary hearing, procedurally comparable to a preliminary examination, wherein conflicting evidence would be viewed in a light favoring the state. State v. Evans, 51 K.A.2d 1043, 1054, 360 P.3d 1086 (2015).

3. A district judge may consider and grant stand-your-ground immunity sua sponte at any time before sentencing has been pronounced. State v. Barlow, 303 K. 804, 818-19, 368 P.3d 331 (2016).

4. In evaluating a motion for immunity, court must consider the totality of the circumstances without deference to the state. State v. Evans, 305 Kan. 1072, 1074, 389 P.3d 1278 (2017).

5. On a motion for immunity, the district court must consider the totality of circumstances, weigh the evidence before it without deference to the state and determine whether the state established probable cause that the defendant’s use of force was not justified. State v. Macomber, 309 K. 907, 441 P.3d 479 (2019).

6. The state can defeat a pretrial motion for immunity by establishing probable cause that the defendant was engaged in a forcible felony or initially provoked the use of force. State v. Collins, 311 K. 418, 429, 461 P.3d 828 (2020).

7. Self-defense and immunity are distinct concepts, and the distinction between the two concepts is effectively lost if a case is erroneously permitted to go to trial; district courts must perform a procedural gatekeeping function and prevent cases where defendants qualify for immunity from going to trial. State v. Betts, 60 K.A.2d 269, 281, 489 P.3d 866 (2021), rev. granted (Sept. 27, 2021).

8. Probable cause under statute means that the district court’s findings of fact are sufficient for a person of ordinary prudence and caution to entertain a reasonable belief of defendant’s guilt despite justified use-of-force immunity claim; although the district court is not required to make particularized findings on a motion for immunity, the record should reflect the court’s recognition and application of the appropriate legal standard in arriving at probable cause determination. State v. Phillips, 312 K. 643, 479 P.3d 176 (2021).

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