Why I despise "I'd rather be judged by 12, than carried by 6"

Discussion in 'Self Defence' started by Marc MacYoung, Feb 25, 2012.

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  1. Marc MacYoung

    Marc MacYoung Valued Member

    I'd rather be judged by 12, than carried by six ...

    When someone mouths this cliché, I have a hard time keeping my cool. Because most people's understanding of the concept means the next 12 people they come across will be the 12 dudes raping them in the prison showers.

    Now, I really don't care about the person who's saying it getting gang raped. As far as I'm concerned, he called it down on himself. I do have a problem with the prison showers happening to the innocent person who:
    a) didn't know any better
    b) listened to the bozo

    The 12/6 dictum is primarily the brain child of Col. Jeff Cooper, founder of Gunsite. The colonel's military background strongly influenced his concepts of shooting -- including when to shoot and when to stop. A particularly hotly debated issue is the wisdom of training military style shooting in a civilian context. Basically, the rules of engagement (ROE) are different.

    It was often felt the colonel's perspective ignored the legal consequences in a civilian context -- in the name of ending a potential threat. The 12/6 'response' lends credence to this contention.

    Having said that, what I can say for sure is the 12/6 is a pity counter that is often used to dismiss a critical 'reality' about the consequences of violence. It's also the difference between self-defense and prison time. I don't know if the colonel used it as such, but I certainly will attest that is how a lot of folks use it today.

    I can give you a really good example of the differences between civilian and military tactics and how they viewed in different contexts. Good because it is often taught in civilian shooting and concealed carry classes. And it is court tested.

    Someone breaks into your house in the middle of the night. Your children are screaming, and he bursts into your room waving a shotgun. You shoot him. He falls down and drops the shotgun. As you pass him to go check on your children -- having kicked the dropped shotgun away from him -- he growls, "I'm going to kill you." You put two more rounds into him and go see if your children are safe.

    This is important -- that double tap IS following infantry protocol of passing a downed combatant. You take the fight out of him by killing him right there. That is what soldiers are taught to do and really ingrain on the battlefield. They do it without thinking as a survival protocol in combat.

    Except in a civilian context, you've just committed manslaughter. And if the DA is really gung ho, he's going to try for murder charges. That's because the immediate danger had passed when you shot him, and he was lying on the floor. Yes, he threatened you, but he was not an immediate danger to you anymore. (People get the term 'threat' confused because it generally means danger in a legal context, but something else in popular language.) He cannot act upon his threat to kill you. So you are not legally justified in shooting an unarmed man lying incapacitated on the ground for what he says.

    Google Jerome Ersland. The Oklahoma pharmacist was convicted of Murder 1 because he came back and shot a downed robber. Now, realistically, Ersland's shooting did not conform to the military rules of engagement, either. To see it as such, you'd have to turn your head and squint.

    Infantry rules of engagement are if the guy is in front of you, he's a hostile combatant. As such, you tap him as you pass. Once you've passed him, however, he is now a prisoner requiring medical assistance.

    Once Ersland passed the dude, he was no long a combatant -- even by military standards. Yes, returning put him back in front of Ersland. That is -- arguably -- where the military training kicked in, mixed with adrenaline and combat trauma. There will be some debate if shooting the downed guy would have been overlooked on the battlefield. What we can say for certain is it wasn't overlooked in the pharmacy -- especially because it was caught on video.

    Now you can argue "well, what if the guy went for the gun again" all you want. But the raw fact is he *didn't*. You can only act in 'self-defense' in response to what is happening. *Not* what might happen. If there is no immediate 'threat', it's not self-defense.

    This even applies in British common law where -- if you sincerely believe an attack is imminent -- you can act pre-emptively. But even this has limits. If the guy is in your face and snarls he's going to kick your ass, then yes. You can reasonably argue your pre-emptive strike was self-defense. If, however, the guy is standing -- not advancing, standing -- four feet away and does the same thing, your closing the distance to slug him isn't going to play well. (Under adrenal stress and spatial distortion, you had damned well better believe you're likely to step up, try to hit him, and not realize you did.)

    Someone once said, "War is a thinking man's game." So too is self-defense. Unfortunately the way "I'd rather be judged by 12 than carried by six" is often used, it is an emotional and dangerous cliché. Used that way, it is not a thought out and rational conclusion.

    Everything I've stated thus far is based on pretty much confirmable facts. You can confirm them by talking to a lawyer or reading law books. Now my opinion, based on some more facts. I'll qualify them. F = fact; O = my opinion.

    Violence is often the result of out-of-control emotions (F). Society has become less tolerant of violence (O). Many people, who engage in participatory violence, claim what they were doing was 'self-defense' (F). Many actually believe it. (O). This tendency to claim and believe an attack was 'self-defense' has 'peed in the pool' when it comes to cops and prosecutors believing such a claim (O). Self-defense is an affirmative defense (F). You are confessing to an action that is normally a crime (F). This "I did it" does half of the DA's job -- specifically proving that you were the one who did it (F). When you plead self-defense the 'production of proof' shifts to you. (F). You must produce enough proof (articulation of actions, their significance, the reason why it was dangerous) to explain why your actions were -- in fact -- self-defense (F). This, instead of it was you giving into your emotions and committing illegal violence on another person (F). Your 'fear' is not enough, you must provide facts that demonstrate not just your fears, but your actions were justified and reasonable given the circumstances (F).

    The 12/6 motto is often used by people to skip all this legal mumbo jumbo and sophist crap and get to the most important of all things -- my feelings (O). If I'm scared, I'm going to act on my feelings and let the court sort it out (O). This, because I told myself I was about to die and that scared me so I killed him in 'self-defense' (O).

    Stop and think about that for a second. Because there is one hellaciously big abyss that we've stepped over without even blinking. Why is it bad when someone else kills because of their emotional and subjective state, but it's all right, A-OK, okey dokey when we do it? (O).

    It has been my experience that most people who use the colonel's, "I'd rather be judged by 12 than carried by six" maxim are not only doing exactly that, but justifying that position -- and their ignorance of the law -- with that cliché.(O)

    Oh BTW, although this is about shooting, you might also want to sit down and consider how it also applies to using 'military combatives' and 'reality based self-defense' training (F).

  2. holyheadjch

    holyheadjch Valued Member

    Marc, when I hear people say that, it is normally when discussing a grey area in the law and when used in that context, I think it is correct.

    It's effectively a soundbite that boils down to 'If in doubt, air on the side of action, rather than inaction'. I struggle to believe that you would have a problem with that notion.
  3. Mitlov

    Mitlov Shiny

    I'd agree with this. The point about shooting someone on the ground after you've disarmed them isn't a problem with the 12/6 rule, it's a shooting that doesn't comply with it. I think the rule only actually comes into effect when:

    (1) You don't know if you're legally in the right if you do shoot; but
    (2) You don't know if you're going to get killed if you don't shoot.

    Shooting a disarmed perp who is on the ground doesn't meet the second element.
  4. Jabby Mcgee

    Jabby Mcgee Valued Member

    From what I have read of some of your posts in the past, I get the impression that you are a lawyer - am I correct, or am I thinking of somebody else?

    Would there be any legal defense in stating that you shot the man when he was on the ground in the fear that he may have had another weapon in his possession, or may have been able to regain his weapon? In other words, fearing that if you attemptred to apprehend him, he could have stabbed you or pulled out another gun, or overpowered you and took the firearm off you etc? Because in the military, this is the reason for putting bullets in a man when he's down. of course, the civilian world is nothing like the military world, but in when in genuine fear for your life, I would have though that this would have some weighting in court.
  5. Marc MacYoung

    Marc MacYoung Valued Member

    Actually I'm a big fan of withdrawing on the side of caution. You've done a lot more to reduce the chance of error -- especially if the guy follows you. You can articulate that you tried to leave the scene and despite you attempting to make a good faith withdrawal he continued to act aggressively and in a manner consistent with 'jeopardy.' (following you).

    Odds are however, leaving will resolve the situation non-violently.

    There are VERY few situations where
    a) violence doesn't come with legitimate instructions on how to avoid it
    b) the potential of violence isn't resolved by you leaving
    c) citizens cannot leave

    That's because citizens do not have a duty to act. Now there's a lot of subtle shadings in this, which is not the same as a gray area. In your home vs. out on the street are all complicating factors that effect the shadings.

    Actual criminal jeopardy is in fact, pretty easy to identify.
    http://www.nononsenseselfdefense.com/five_stages.htmlSo too is having someone who is coming at you with intent to kill you
    http://www.nononsenseselfdefense.com/someone_trying_ to_kill_you.htm

    I have experience with both. I've also been in situations where I had a duty to act. The idea that it's hard to tell the difference, really isn't accurate.
  6. Mitlov

    Mitlov Shiny

    I am a lawyer, but when I post here, I am not posting as a lawyer, just a martial artist who likes debating. NOTHING I post on MAP should be construed as legal advice, nor is any attorney-client relationship to be presumed from any debate on this forum.

    Besides, I don't do criminal law, so I don't have any legal knowledge of the boundaries of the self-defense-or-defense-of-others defense that a criminal defendant might wish to rely upon.
  7. Jabby Mcgee

    Jabby Mcgee Valued Member

    Fair enough, I was just curious really.
  8. 47MartialMan

    47MartialMan Valued Member

    Yes. The cliché' does leave much to understand. (In the past, I've posted some "bits" on other forums about this cliché')

    I get a "similar attitude" of some martial artists and gun owners whom believe that they have the right to put down someone at any cost without concern

    Many times I would be in discussions with gun owners whom state when they will use their weapon, how they will empty the capacity, get more rounds, re-load, and start again.

    Then, I have spoken to LEOs who upon responding, that a gun owner "emptied the capacity" as it was a reaction to raw fear without premeditated conscious.

    The cliché; 12-6 can ether be identified as a gung-ho attempt to justify a action or as a slang method to say that someone is not going to let anyone give them, or a loved, great harm.

    In the end, it is just a saying that leaves to the concise moment of truth of what a person may or may not do under a situation, which they may or may not have under control, be it themselves or the unfolding events.

    But unless someone is truly in such a position, no one can actually predict his or her reaction or how the situation will unfold.
  9. John Titchen

    John Titchen Still Learning Supporter

    An interesting article Marc. I'm more tolerant of the phrase than you, but even so I don't like it.

    I don't like it personally because it indicates a casual approach to training and ROE that is bad for the trainee and bad for others in the environment they enter. To me the phrase implies an acceptance of uncertainty and a faith in the correct judgement of others, and I don't like that at all. I don't want the people I train questioning their decisions or ability to act or wondering whether they are going to go to court - I want them to be so clear on the self protection ROE that there isn't any doubt clouding their minds or confusing their actions.

    That of course sounds rather trite. After all, real fights are not as clear cut as television or the movies would have us believe. As you say the law in Britain allows preemptive striking - but when does a preempt become an assault? After all the guy or girl who preempts is rarely calm and collected but has a system flooded with adrenaline and (hopefully) a brain and a mouth (not to mention the all important body language) that is trying a number of deescalation techniques to get out of fighting. You can accept failure here too early and end up looking like the aggressor.

    A prime example of the latter occurred last week on a training day I ran. The visiting instructor who acted preemptively was convinced he had acted correctly and in the discussion afterwards described aggressive body language he had spotted. The training instructor he hit had not even begun to get himself worked up to attack - as the video showed. The 'red' instructor was pretty shocked by just how much his preemption had looked like an assault to everyone else, and it proved an important lesson in both timing, the need to attempt deescalation, and adopting verbal tactics and body language that highlighted the dynamic to others 9and the camera).

    [ame="http://www.youtube.com/watch?v=1V6yJGmiD1A"]Sim Day 4 Fourth Bar Scenario - YouTube[/ame]

    Looking at the above in the context of Section 76 of the Criminal Justice and Immigration Act 2008 which now sets in statute how the CPS views this, you can see how this would have been problematic t justify and would most likely have resulted in prosecution:

    In this instance it was prior experience outside of training that had sparked a memory and resulted the early preempt. In the debrief we were able to talk this through along with the need to delay making a statement until later. The prior experience had not been mentioned initially when describing the event back, but it was actually the single element that might have excused his actions in line with the above. (incidentally the gentle knee and taps to the head were just a reminder to one participant that his choice of tactics were not necessarily the best in an area filled with people)

    I'm digressing a little though.

    My view is that if you design and train your responses to fit the ROE, and you drill the ROE into people, you should never be in a position where you feel you are making a choice between life/death for you and a court case. A vital part of this type of training is to have pressurised elements where people are not just fighting under (for them) pressure but making choices and talking under pressure.

    I agree. This clip shows three different scenarios played out. In some cases it didn't work as well as I wished as there were some 'new' role players who weren't as aggressive as they could have been. There is stuff to learn from each of these three scenarios (having mistakes video analysed can be so useful) , but actually the first one is the one to try to replicate.
    [ame="http://www.youtube.com/watch?v=LBJbbvYumKM"]Sim Day 4 the club booth - YouTube[/ame]
  10. Marc MacYoung

    Marc MacYoung Valued Member

    Well said. Although with some people I have met, I'll upgrade 'casual' to 'sloppy.'

    I particularly like your point about bad for other people. I've met more than a few folks who are basically looking for an excuse to go off on someone and use their training. They consider themselves the 'good guy' and train to face 'bad guys.' Yet they are way more likely to go off on some innocent slob who tells them to sod off. Their ROE appear to is that anyone who scares them in the slightest is a bad guy and warrants extreme responses.

    And yeah, your story about the the 'this happened to me once' brings us close to how wobbly this can get.

    What amazes me is the outright denial of the idea that certain strategies -- that are --
    a) likely to deescalate/prevent the situation
    b) demonstrate that you really did try to avoid it
    c) an external 'checklist' that indicates actual danger (as opposed to just being afraid)
    need to be understood and used.

    If, by the time the fecal matter hits the fan, you HAVEN'T lined this stuff up, then the reason you 'freeze' ain't going to be because of your fear of legal repercussions.

    Point C isn't just about explaining to the cops and lawyers, it's also integral to making an appropriate -- dare we say 'good' -- use of force decision. Is the situation so bad that I need to use lethal force? Or am I just freaking out? And if you're freaking out then the odds are good you're going to freeze and/or fall apart -- especially when there is such a danger.
  11. John Titchen

    John Titchen Still Learning Supporter

    Sadly that's all too true.

    I'd say this is very common. Or rather I think a lot of people have wishful daydreams (or their non ma friends do for them) where they 'save the day'. These tend to be related to a completely ignorant view of real violence and its consequences. Fortunately for most people this is just a daydream. However we've all seen big and small guys (pretty much always the guys) strutting in public with the MA t shirt to say how hard they are...


    This of course comes down to the appropriateness of the training given. The actual physical stuff we do - yes it is important, yes there are good and bad ways of doing things, but the physical is just the tip of the iceberg.
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