Ambiguity in 'stand-your-ground' law leads Kansas court to send two to trial

As showcased by two opinions this month, Kansas’ so-called “stand-your-ground” statute is in a state of legal limbo while lower courts await direction from the Kansas Supreme Court on how to determine if a defendant is acting in self-defense or in defense of others.

Over the course of eight days, between Oct. 7 and Oct. 15, the Kansas Court of Appeals twice overturned district court rulings that invoked the stand-your-ground law. As a result, two men who had previously been shielded from prosecution could now stand trial for attempted voluntary manslaughter and first-degree murder, respectively.

The most recent case is that of Loren Wiseman. On the afternoon of Dec. 6, 2014, Wiseman and his girlfriend, Alexandra Escarcega, drove to a Dillons grocery store in Garden City. As they approached, a man gestured at Wiseman, making a gang symbol and gun with his fingers.

After they parked their car but before they could get out, the man who had made the gestures, Jeremy Pascascio, began knocking on the window, yanking on the door handle and demanding that Wiseman get out of the car.

“No. I don’t know who you are,” Wiseman said.

Pascascio, according to court documents, hurled a slew of expletives and threats at the couple in English and Spanish, telling Wiseman to “fight me like a man” and allegedly threatening to kill Wiseman and Escarcega.

As his girlfriend tried to find her keys, Wiseman took his gun out of the glove box, removed it from a holster and placed it in his lap.

“You need to leave us alone or I will shoot you,” Wiseman told Pascascio, according to his testimony.

Undeterred, Pascascio allegedly responded with more expletives and threats. At one point, according to court documents, he told Wiseman, “You think I’m scared of you and your gun? You’re going to have to kill me.”

Wiseman said he would give Pascascio five seconds to leave before he would shoot. He counted down from five but did not pull the trigger. He then said Pascascio would have 10 seconds to leave before he would shoot. He counted down from 10. When he reached three, Pascascio said, “I’ve got something for you” and reached for his waistband, according to Wiseman. Believing Pascascio was reaching for a gun, Wiseman rolled down the window and opened fire, fatally shooting him in the head. No weapons were found on or near Pascascio.

Wiseman was charged with premeditated first-degree murder. He filed a motion claiming immunity under the stand-your-ground law. That motion was granted last February by Finney County District Court Judge Michael Quint, who ordered Wiseman released from custody and dismissed the charge against him.

Quint cited the testimony of six eyewitnesses, none of whom testified that Pascascio was moving away from the argument when he was killed.

“Mr. Pascascio initiated the confrontation and put himself in harm’s way,” the judge wrote. “[Pascascio] uttered threats of impending death or great bodily harm to the two occupants of the car and physically attempted several times to breach the locked door.”

The Finney County Attorney’s Office challenged the ruling to the Kansas Court of Appeals, where a three-judge panel overturned Quint’s decision on Oct. 15, ordering Wiseman to stand trial for premeditated first-degree murder.

“As the state argues, the time Wiseman took to give two countdowns for Pascascio to get away from the vehicle and manually roll down the window to shoot at Pascascio suggest that Wiseman was not actually in fear of imminent death or great bodily harm,” wrote Judge Steve Leben.

Though they were looking at the same evidence, Quint and Leben were looking at it differently, which goes to the heart of the legal debate over Kansas’ stand-your-ground statute.

The Kansas Supreme Court has given little direction to district courts on how they should determine whether someone was acting in self-defense or defense of others. The Court of Appeals has attempted to fill in the gaps, placing the burden on the state by ruling prosecutors must show probable cause that the defendant was not acting in defense. In a case last year, the Court of Appeals determined a district court judge, such as Quint, should not resolve conflicting evidence but instead should interpret evidence in a light most favorable to the government.

In other words, Leben ruled, Quint should have placed more importance on the state’s evidence that Pascascio never entered the vehicle, that Pascascio didn’t have a weapon, that Wiseman had time to count down twice — and therefore had time to avoid shooting Pascascio — and that one witness testified seeing Pascascio lift his shirt to show he didn’t have a weapon.

“A reasonable person could conclude that someone in genuine fear of imminent death or substantial harm would not be as deliberate as to count down twice before shooting or as concerned about property damage as to manually roll down the window rather than shooting through it,” Leben wrote.

The Kansas Supreme Court is expected to address ambiguities in the stand-your-ground law when it hears a separate stand-your-ground case, State v. Marlon Hardy, but no one knows when that will occur. The high court could hear arguments during a five-day session in mid-December; if not, it will likely take up the case next year.