by Tim Carpenter, Kansas Reflector
July 29, 2022
TOPEKA — The Kansas Supreme Court reversed lower court rulings Friday by rejecting a Wichita police officers claim of immunity from prosecution for recklessness after shots fired at an aggressive dog resulted in bullet fragments wounding a 9-year-old girl.
The high court determined state law confined the immunity privilege to the use of force or deadly force against a person reasonably believed to be an aggressor. The justice concluded immunity didn’t extend to officer Dexter Betts because state law didn’t shield a person’s reckless acts resulting in the injury of an innocent bystander.
The shooting in the living room of a Wichita home was documented in body-camera footage released by Sedgwick County District Attorney Marc Bennett. It showed Betts, who was responding to a domestic violence call, fired two rounds in rapid succession at an approaching dog. He missed the animal, but the girl sitting on the floor near the dog was struck in the face and foot when bullet fragments richocheted off the concrete floor.
In wake of the 2017 incident Betts was fired by the Wichita Police Department. He was charged in 2018 with felony aggravated battery of the girl in Sedgwick County District Court. He entered a plea of not guilty. In 2019, District Court Judge Kevin O’Connor dismissed the case based on the argument Betts possessed statutory immunity.
Both the district court and the Kansas Court of Appeals determined state law immunized Betts’ use of deadly force in self-defense even if he acted recklessly or if bystanders were injured.
Supreme Court Justice Dan Biles said in the Supreme Court’s unanimous decision the Wichita case raised issues not considered previously by the state’s highest court. In a typical self-defense immunity case, he said, the state would charge a defendant for committing a crime against an aggressor, which in this case would be a dog. In the Sedgwick county case, the injury was sustained by an innocent child.
Biles referred to state law that assigned immunity to a person who was “justified in the use of force against another … to defend … against such other’s imminent use of unlawful force.”
“When a defendant asserts self-defense immunity in a case involving reckless injury to an innocent bystander, who the defendant did not perceive to be an attacker, immunity does not apply,” Biles’ opinion said. “Said more plainly, the reckless use
of force against innocent bystanders lies outside the immunity statute’s stated scope.”
The ruling meant Sedgwick County prosecutors could proceed with a case against Betts if they could demonstrate probable cause existed the defendant recklessly harmed the bystander.
Biles’ opinion said 15 states and the District of Columbia had no explicit statute and no caselaw on self-defense and unintended harm to bystanders. Thirteen states allowed the immunity privilege to extend to this type of incident, but have held or suggested reckless crimes were excluded.
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