Legal Commentary

Self-Defense and the Kansas Abortion Case

By Paul Cassell

There has been lots of media attention to the Kansas abortion case, in which defendant Scott Roeder plans to tell a jury that his slaying of Wichita doctor George Tiller was voluntary manslaughter.  Typical is this New York Times article. 

The defendant plans to argue that what would otherwise seem to be cold-blooded, first degree murder was in fact voluntary manslaughter because it was necessary to save unborn children. 

The Kansas voluntary manslaughter provision, found here, provides:

Voluntary manslaughter is the intentional killing of a human being committed:
(a) Upon a sudden quarrel or in the heat of passion; or
(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21?3211, 21?3212 or 21?3213 and amendments thereto.

Sec. 21?3211 is a combined self defense and defense of others provision, found here, which provides:

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

While the trial judge was initially inclined to allow Roeder to press his defense, the judge recently stayed proceedings to consider the prosecution?s argument that no killing was ?imminent? and therefore the defense is not available. 

I have not studied Kansas case law specifically, so I can?t specifically on the merits of the prosecution?s filing under Kansas law.  (Update: the prosecution brief is found here.)  But reasoning from general principles of criminal law, the prosecution?s argument seems quite well-founded.  The imminence requirement rests on (among other things) the notion that the defendant has no other option than to use force.  Here Roeder had ample time to pursue other options, and no reasonable juror could find otherwise.  According to the Times article, the facts of the case are these:

On a balmy Sunday morning, Roeder got up from a pew at Wichita?s Reformation Lutheran Church at the start of services and walked to the foyer, where Tiller and a fellow usher were chatting around a table. Wordlessly, he pressed the barrel of a .22-caliber handgun to Tiller?s forehead and pulled the trigger.

If that is a situation in which a defendant is allowed argue that death of another was ?imminent? requiring a violent response, than the floodgates are truly open.

Update:  An insightful commentor on my initial post drew my attention to Sec. 21?3211(a), found here, which provides:

(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 force is necessary to defend such person or a third person against such other?s imminent use of unlawful force.

This provision obviously greatly strengthens my initial conclusion, because no one can plausibly argue that an abortion is ?unlawful? force.

Full post as published by The Volokh Conspiracy on January 12, 2010 (boomark / email).