Self Defense and the Law

Discussion in 'Self Defence' started by jiyunotachyryu, Oct 5, 2012.

  1. jiyunotachyryu

    jiyunotachyryu New Member

    Self Defense and the Law



    by Sensei Heath Merchen


    First, no party should take the below statement as definitive legal advice regarding what is or is not appropriate in a given state. If you have questions, you should consult a local attorney regarding your specific issues and you should not rely on any web site's generic advice to solve a problem you are encountering or to govern future decisions.


    As a former prosecutor, former criminal defense attorney, and employment attorney who has spent most of his career litigating, I have a more realistic perspective on the law and martial arts than most. Sadly, people who haven't been involved in the legal system often have the delusion that if you were in the "right", if you acted only in self defense, if you did nothing wrong, the truth will win out and you will be vindicated. Unfortunately, the "truth" of what actually happened in any given scenario doesn't govern the outcome; what plays the most important role instead is perception of the truth--which more often than not is an entirely different animal.

    It may be true that the other guy threw the first punch and that you attempted to use only the force necessary to defend yourself. However, if every witness at the bar perceived that you started the fight, what actually happened won't matter. The jury is much more likely to believe witnesses not involved in the confrontation over you or your buddies. As any trial attorney can tell you, a witness' account of any event can vary drastically from what happened.

    Hence, the first and most important lesson of self defense and the law is that the courtroom is not a friendly place and it should be avoided. Regardless of the "facts" of your case, any attorney who guarantees you a win or promises a specific outcome if you follow his advice is either a fool or a liar (or maybe both). Juries can neither be controlled nor their actions consistently predicted and anytime you chose to go to trial it is a roll of the dice. So unless you want to chance spending the rest of your life in prison, walk away (the human body is a delicate thing and you are always only one punch away from a murder charge). If you've been insulted, accept it and walk away. If you've been humiliated, accept it and walk away. If someone is doing everything humanly possible to goad you into a fight, walk away, even if it means embarrassing yourself in front of your friends. Your training isn't to be used to defend your ego. It imbues you with a responsibility to refrain from using your skills even when it seems justified--it is a matter of honor we emphasize in every class we teach. It's also a matter of staying out of jail.

    This is one of the reasons we teach the warning stance, and it is the first stance you should use whenever anticipating a confrontation that you can't avoid. Hands in the air, repeatedly yelling loudly for everyone to hear "I don't want to fight, I don't want any trouble" while you back away from the opponent. You want to make sure that everyone in the area sees exactly what is happening, that you are in a non-threatening posture, and that you are doing everything you can to avoid a confrontation. You want the one thing they remember from that evening to be that you were trying to get away.

    Once you have been attacked, and presuming there was no way out of the confrontation, you have the right to defend yourself using "reasonable force." What is or isn't reasonable in a given situation is going to be up to the jury to decide, so suffice to say that you want to use the minimum amount of force necessary to end the confrontation. This seems to be a contradiction to our training, and in reality it is, as surviving a confrontation and avoiding liability are not one and the same. If you "let up" on an opponent who has attacked you when he stops for a moment, it may give him the advantage and he may then make a strike or kick that seriously wounds or kills you--as we teach, due to reaction delay, the aggressor always has the advantage. However, if you don't let up, a jury could decide that the opponent would have backed away and your use of force was therefore "unreasonable." The result? You going to prison. It is important to understand how grey the legal system really is and to try to overcome the misinformation proffered by many regarding what is and isn't acceptable. Sometimes doing what will help you survive will also expose you to criminal charges no matter what your intent.

    So, given that there is no sure way to avoid a criminal charge, what are the best step measures? First, avoid places and situations where you are likely to get in a confrontation. Don't follow the bar brawl outside to see what happens--leave the scene. If your buddy gets hammered and likes to go take on the bar, find a new buddy. If someone gets mouthy with you and a confrontation starts brewing, leave.

    If you can't leave, make it clear to everyone around that you don't want to fight and that you are backing away using the warning stance. If the opponent attacks anyway, you should stop aggressing when the opponent backs away since attacking an opponent who is attempting to retreat will likely be viewed as "unreasonable" force. Now, is this the advice I'm going to give to a female self defense student who wants to know how to respond to a male who grabs her from behind in a darkened parking garage? Probably not...because in that situation her immediate survival is more important than her potential liability. In that case she should, from a physical safety perspective, not stop until the attacker is immobilized as otherwise he will likely continue the attempted assault/rape/murder, only this time angry and more violent because he was resisted. Could this expose her to liability down the road? Potentially, but how it's viewed is all in the eye of the jury.

    Fortunately, there are some parts of liability avoidance that are within our control, although few in my experience exercise that control wisely. For example, a phenomenon I saw repeatedly when I was a prosecutor involved bar brawl scenarios where an individual didn't start the fight, but was charged with assault for fighting back. The reason? Ego. When asked by the investigating police officers if he was afraid he was going to be assaulted by the aggressor, the ever so manly bar brawler would confirm that he had no fear and wasn't going to take any !@#@!#!@#! off of that !@!#!@#!. So he was arrested, hauled off to jail, prosecuted, convicted, and did time.

    What he failed to realize was that an essential element of using self defense to justify the use of force in most states is that you were afraid the assailant was going to cause you serious bodily injury or kill you, (the statutory wording in most states is that you "reasonably believed you were in danger of serious bodily injury or death" or in the case of a nonlethal assault "reasonably believed you were about to suffer bodily harm"). Even if the other guy started it, even if he threw the first punch, even if he hurt you, if you weren't afraid, then your self-defense claim will more likely than not fail. Was the brawler in my scenario really afraid when the incident occurred? Absolutely. However, his bravado kept him from admitting it and landed him in jail. The moral of this story? Acting like a tough guy before, during, or after a fight will only get you into trouble.


    Now, the acting like a tough guy scenario is clear enough legally, but it is yet another area where training and the law can collide. As we teach in class, human beings are predators and many of the same instinctual responses that govern animals in the wild still kick in when we are faced with the adrenalin heightening stress of a potential confrontation. If you are confronted by someone, my advice generally is never lower your eyes (until the confrontation starts), but keep staring at them, as one of our basic "predatory" instincts is that when "prey" averts its eyes, it is a sign of weakness and therefore time to attack. Therefore, lowering your eyes actually increases the odds that your opponent will attack you. However, that "staring" could be perceived by witnesses as a form of aggression, even though it is designed to avoid the confrontation. Here again, the best method to avoid a confrontation is at odds with the way to create the best witness perception from a criminal or civil liability perspective.

    All these same rules, and the same shadowy grey areas, exist when defending someone else. If your buddy starts a fight, biting off more than he can chew, and you then intervene to keep him from getting killed, it is going to be a difficult case to argue self defense even though your motives were pure. However, if your friend really is going to get killed without your intervention, liability concerns need to take a back seat. The same is true if you see someone being attacked, being mugged, being assaulted--there is no way to guarantee protection against criminal liability or a civil suit, even from the person you're trying to rescue.

    However, the code of conduct we proffer requires that our students assist those in need and defend those who are unable to defend themselves, even if doing so means taking physical or legal risks. To help minimize those risks, follow the same advice and steps regarding general self defense measures: try to help your friends avoid places and situations where confrontations are likely to develop. If one does start to develop, get your friend away from it, (even if you have to drag him or her away). If you can't get away, make sure you are doing everything possible to make it clear that you and your friend don't want any trouble and that you do not want to fight, (warning stances). Finally, prior to intervening, yell at the top of your lungs statements that emphasize the danger to the person in need of rescuing, i.e. "Please stop, you're going to kill him," "Please stop, he's not breathing," etc and request help: "Someone call the police, now," "Call an ambulance, please" etc. ensuring that, one, hopefully, someone does call the police, and, two, everyone in the vicinity perceives that you were there to assist and were not trying to further the confrontation.

    The above information is simply a short synopsis of the issues surrounding self defense and the law. Don't take the information and believe that following the advice will in some way shield you from all liabilities--that kind of advice just doesn't exist. Rather, if you have specific questions, contact an attorney in your area.
     
  2. Dave76

    Dave76 Valued Member

    What a great article, thanks! I wish more schools would talk about legalities of using thier art. I realized how important it was after nearly being arrested for assault. Only got off after asking the officer what I should have done since I didn't start it, used minimal force, and left as soon as I could. The officer actually became angry with me when he couldn't think of an answer! Was pretty scary for me! It pays to know the law!
     
  3. John Titchen

    John Titchen Still Learning Supporter

    For more detailed and accurate information on this forum concerning self defence and the law as it applies to a number of countries, with content posted by lawyers, LEO and trainers who have been briefed by some of the foremost experts on the subject, check out the following threads:

    http://www.martialartsplanet.com/forums/showthread.php?t=107937
    http://www.martialartsplanet.com/forums/showthread.php?t=89920
    http://www.martialartsplanet.com/forums/showthread.php?t=51323

    All three of these are 'stickies' in the Self Defense forum.
     
  4. Grass hopper

    Grass hopper Valued Member

    Tanks for the great information :)
     

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