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Olathe family questions why no charges filed in road rage shooting: 'It's not right'

Johnson County district attorney cites Kansas' 'stand your ground' law
Posted: 2:00 PM, Nov 19, 2023
Updated: 2023-11-20 09:31:19-05
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OLATHE, Kan. — A Johnson County, Kansas, man said he feels lucky to be alive after someone fired 10 bullets into his truck while he was driving down Interstate 35 in Olathe.

The Army veteran credits his military training with surviving that day.

But now, he said he lives in fear for himself and his family after the district attorney declined to press charges against the shooter.

The reason?

The DA pointed to the "stand your ground" law in Kansas, which has renewed a local lawmaker's efforts to amend the law.

Joe Martin's story

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It's beenalmost two months since Joe Martin was shot while traveling down a busy stretch of I-35 in Olathe near a retail and dining area.

"There were 10, 10 bullets, at least, in the truck," he shared, showing us the scars from the shots that hit him. "The shoulder, the left calf was a graze wound that got a scar, but it didn't go in. This one (pointing to his arm,) went in and through and out, and then this one (points to his shoulder) went in, traveled up and didn't exit."

It all started with a trip to a sandwich shop to get dinner for the family, well before the sun started to set.

Martin said the incident happened after he tried to exit onto I-35 southbound. As he was merging, he had to cut off another driver in the process.

The other driver then closed in on Martin's bumper and he tapped his brakes a couple of times.

When the two merged onto the highway, the driver moved two lanes over, dropped into Martin's blind spot and shots rang out.

"I mean, it was just a millisecond. I looked back and took a gunshot," Martin recalled. "I saw the muzzle flash of his weapon, and I just got behind my post of the car to try to protect my heart, my lungs and all that."

Nearly immediately, Martin, a former Army medic and combat veteran, said he recognized his wounds weren't life-threatening.

He said he then tried to pursue the shooter to identify a license plate for police.

At this point, while driving down the highway, he reached over to unlock the glove box where he keeps his firearm, in case the other driver circled back.

But as the other driver sped away, Martin lost him, so he headed to his nearby home for help.

His wife Sarah said she and her teenage son were outside watching their young daughter ride her bike up and down the street when Joe pulled into the driveway, a moment she said is forever seared into their brains.

"He gets out of his truck, and it's just blood everywhere," Sarah said. "So my daughter sees that and she immediately freaks out, she's hysterical."

Sarah described trying to comfort their daughter while their son called 911 and grabbed towels to help stop the bleeding.

Paramedics quickly arrived and took Joe Martin to the hospital, where he was treated for his injuries.

Martin credits his military training for his awareness, including providing police with an accurate description of the shooter.

As we previously reported, an arrest was made in the case, something that initially left Martin and his wife thrilled.

Then, confusion set in when they learned from Olathe police the man wouldn't face any charges.

"I got the call days later from the supervisor of the detectives that he walked me through — 'Yes, he was released. Yes, the DA does not want to press charges.' The shooter said he saw me with a pistol," Martin said.

The pistol is a key detail Martin vehemently disputed.

Johnson County DA's position

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Johnson County District Attorney Steve Howe noted there was a firearm in the car. Thus, the shooter's claim that he saw a gun and feared for his safety is enough to protect him under Kansas' "stand your ground" law.

"And your right is to protect yourself, protect your family, whether it's in your house or your car or even on the street," Howe explained. "So if a person displays a gun, you don't have to wait until a person points and pulls the trigger to go and defend yourself."

Howe clarified, in Kansas, there are actually 11 statutes that spell out citizens' rights to defend themselves.

In a situation like Martin's where one party said they saw a gun and the other claimed they didn't have one, the burden falls to the prosecutor to prove a claim of self-defense is not legitimate, something that can be difficult without video evidence or eyewitness testimony.

"If we can't meet that burden, then self-defense immunity law kicks into place, and we are not permitted to file charges or go forward with a criminal case," Howe reiterated.

The decision has left Martin's family beyond frustrated.

"I thought trial meant try; you try to find justice," Martin said.

Martin isn't alone in this belief.

Former U.S. attorney weighs in

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We brought Martin's case to former U.S. attorney and law professor Steve McAllister.

"My impression is that, perhaps, at least some Kansas prosecutors have used the law, or at least read the law, to see any claim of basically self-defense is justified by 'stand your ground,' and, therefore, no charges, no prosecution," McAllister said. "I don’t think that’s really what the law was supposed to do."

McAllister said even if Martin had shown a gun, shooting someone 10 times when you had the option to retreat could be interpreted as an unnecessary response.

"You know, for a prosecutor just to say that, 'There’s no charge because I don’t know if I can prove it,' well, I think you have to give the jury more credit than that to sort out what is reasonable, who did they find credible, do they believe both stories?" McAllister explained.

But Howe said it's not that simple.

"You know, the U.S. Supreme Court has talked about this, and what they have said is that hindsight is 20/20. You can’t apply that hindsight to a situation that happens in a split second," Howe countered. "It’s whether it was reasonable at the time that these actions occurred in a split second and not, you know, days later, when someone looks and criticizes the actions of an individual."

Lawmaker attempts to amend statute

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The fact that different attorneys can disagree on the interpretation of the law is one of the reasons Kansas Rep. Jo Ella Hoye (D-District 17) said the statutes need to be rewritten.

She said she believes in preserving a person's right to defend themself but also wants to give prosecutors more leeway to file charges.

"Clearly, these laws have empowered vigilantes, empowered people to feel emboldened to pull the trigger, even when there was a safer option," Hoye said.

While Hoye was unaware of Martin's case until KSHB 41 brought it to her attention, she said she's aware of a couple of similar cases in Kansas recently where no charges were filed due to the "stand your ground" law.

As a result, she and some of her colleagues have already introduced a bill to amend the law, which she hopes will be heard this next session.

"People are, it seems to me, getting away with serious crimes in our state," she said. "And so it is up to us to look at those statutes and say, 'Here’s how they’ve been interpreted. Now, do we need to make some tweaks here in order to make it make sense and improve public safety?'"

As for Howe, he's not convinced the law needs to change, noting that most of the time it protects Kansans and their families.

"Well, I know some people think we need to change this, but the caution I have is we know how to apply the law. We know what the Kansas Supreme Court has interpreted, so we have a bank of case law that we can use to make proper decisions," Howe said. "If we revamp the entire law, then we start from square one, and there’s a real danger to that."

"It's just not right"

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The Martins remain hopeful lawmakers will change the law and Howe will reconsider filing charges.

"It's not right, it's just not right," Sarah Martin lamented.

As for Joe Martin, who went to combat twice, he said the experience made him feel less safe on I-35 than during his time serving.

Records requests

We didn't name the shooter, not only because he wasn't charged, but also because when we requested the case file, we were only given what's called a face sheet, which doesn't name him.

When we filed an open records request, we were denied. Howe said the DA's office reserves the right to protect that information in case the office changes its mind and decides to file charges in the future.

The possibility of charges is something the Martin family anxiously hopes for, and they are asking for the community's help.

The Martins are asking anyone who was on I-35 near 119th Street in Olathe on Sept. 19 around 6:30 p.m. to contact the Olathe Police Department if they saw the altercation or took any cell phone video of the shooting.

They're hoping some undiscovered video or witness testimony could be the difference in the case.