Keeping your Wits in the Age of Worldstar
Using your Combat Sport for Self-Defense
Besides fitness, one of the primary reasons that anyone takes boxing lessons – or participates in any combative sport for that matter – is to learn self-defense. That makes perfect sense. It’s a scary world out there, and if you want to survive a bad situation – you need to be fit enough, skilled enough, and have enough awareness to do something about it.
In training, the majority of your time will be spent practicing the techniques – and rightly so, as generally speaking, skill acquisition needs be the predominant activity and requires the most attention and time. So, no problem, you put in the necessary work and gain all sorts of effective and interesting combative skills. That’s great – but a key aspect is missing. Namely, understanding when it is appropriate to ply your craft.
You see, most boxing gyms or martial arts programs do not teach, or examine in any detail really, the appropriate situations in which you can legally act in self-defense. In the martial arts world, it seems the “avoid the fight if you can” and “but if you can’t and he’s coming at you with a knife” type statements are the only two perspectives offered. Not only are both prerogatives oversimplified and bland, but also they side step a very real and important issue; when is acting self-defense justified? The real world is not so black and white.
When can you respond to a threat? When someone is yelling at you – standing in your face? When they push you? What kind of force can you use? What can you protect? Who can you protect? What are the triggers or thresholds you have to look out for? The difference between knowing and not knowing, the difference between right action and wrong action… could be criminal charges, years in jail, and hefty civil liabilities.
This is exactly why students have come to get instruction in the first place, to learn how and when to defend themselves! Besides, what good are your self-defense skills if you don’t really know if or when you can use them? Therefore, to purport to teach individuals how to protect themselves by giving them combative skills without ever actually addressing, whether by ignorance or knowingly, when they can actually use their abilities in earnest is irresponsible and – frankly, poor instruction.
As I’m sure you’ve heard, ignorance of the law is no excuse – right? You will be held accountable regardless of whether you know the rules or not. The good news is that learning the basics of self-defense law is fairly easy. It’s not overly complicated, but it’s complicated enough to warrant a bit of study and explanation. It’s important because the risks are so high. You see, claiming self-defense is an all-or-nothing type defense – either you’ve got it, or you don’t. Acting in self-defense avoids liability, but failing to establish your claim of self-defense carries with it much exposure.
What lies below will be enough to orient you to factors you need to look out for and the types of thresholds that must be met to justifiably act in self-defense. No doubt, this information is worth knowing.
THE OBLIGATORY DISCLAIMER
But first, lets get this out of the way: This information is being provided for educational purposes only. It does not constitute legal advice. Each and every situation is different, and should you unfortunately find yourself in a situation where you must assert a claim of self-defense, you need to speak with your own attorney and apply the specific laws of your state. The judgments you follow should be your own; Just consider this the opinion of a complete stranger you’ve met online.
Civil versus Criminal Liability
The first main distinction worth noting is the difference between Civil and Criminal Liability. Civil liability results when someone is found to have committed a wrong against another person. This is the area of law known as Torts. Criminal Liability results when someone is found to have committed a wrong against the State, or society at large. In Civil Courts, you pay with your wallet – whereas in Criminal Courts, you pay with your freedom.
While the elements of a self-defense claim are the same in both systems, whose burden it is to prove and the level at which it must be proven differs. In criminal courts, it is the generally the prosecutor’s burden to disprove a defendant’s assertion of self-defense beyond a reasonable doubt. It’s worth noting that asserting a self-defense claim concedes that, yes, you did use force against another person but also that it was justified because you acted out of a necessity to defend yourself. That is an important fact since if a prosecutor can invalidate or eliminate a single element of the defense, then the entire self-defense claim will disappear leaving only the underlying admission or concession to the crime – which is essentially a slam dunk for the prosecution.
In Civil Courts, the burden of proof is much lower: a preponderance of the evidence. To state it plainly, this requires a majority of the evidence, i.e., 51% or greater. This difference in the burden of proof is why some actors are said to have ‘gotten off’ on criminal charges only to be held civil liable later. Take OJ Simpson for example, not guilty of the crime – but found guilty in civil court.
Now, some states have self-defense immunity laws. A self-defense immunity law typically states that if you are found to have acted in self-defense, you are immune from civil action. But, not all states have them, and the requirements differ from state to state so this is not something that you should assume applies.
THE ELEMENTS OF SELF DEFENSE
There are 5 factors or points that you have to establish to have a valid self-defense claim. As mentioned above, they must be established either beyond a reasonable doubt or by a preponderance of the evidence.
Let’s look into each one a bit further…
You must not be the aggressor. That seems obvious enough, since an aggressor cannot claim he is acting in self-defense. Regardless, plenty of suspected instigators claim their actions were justified anyways, perhaps because of the burden it places on the prosecution to disprove it, or perhaps simply because they believe it – having acted during a lapse of reason. Also, both parties involved in a fight are considered co-aggressors where their actions could be reasonably seen as egging-each other on or consenting to combat.
For example, suppose someone at a bar is challenged to a fight and told by the instigator to “meet me outside”. Should that person then exit the building, it might appear that he/she is accepting the challenge and has consented to combat as a co-aggressor.
Also, it is possible to regain your innocence. If an aggressor withdraws from a fight and communicates his desire to withdrawal, the victim will become the aggressor should he or she continues to engage or pursues the fleeing party.
The threat must be about to happen right now, i.e. in the next few moments. If you don’t act right now, you will suffer some harm. Threatening future harm, i.e. “I’m going to go get my gun” or “I’m going to come back with my friends” is not sufficient. Where a future threat is made, you are expected to take advantage of other options like calling the police or leaving the area, etc. Similarly, you cannot act in self-defense when responding to something that has already occurred – doing so would be retaliation, not self defense.
For a threat to be immanent, the aggressor must have the ability to do harm and the opportunity to attack when you are in jeopardy. For example, a child may not have the ability to harm you, whereas a fully-grown person would. Likewise, someone with a bat does not have the opportunity to inflict damage if they are 100 yards away. Jeopardy involves a reasonable perception of a threat – thus, an armed soldier (ability and opportunity) wouldn’t, on it’s own, present an immanent threat because there is no jeopardy. So, what exactly constitutes jeopardy then? Well, when it comes to jeopardy, the question is whether someone is acting in a way that would make a reasonable person believe they are about to be attacked.
Perhaps someone is being verbally abusive and threatening…. Is that enough to put someone in jeopardy of an attack? No, it’s not. Although what someone is saying is certainly a factor, words alone are never enough. A physical action, or sign of an overt act consistent with the verbal threat is required. Saying “I’m going to shoot you” isn’t enough. But, if I also motion towards my waistband as if I am reaching for a pistol – I have most certainly put you in jeopardy. Reaching towards my waistband was the furtive action. Thus, threatening statements add to the circumstance of jeopardy such that almost all the jeopardy that is required could be present, but not entirely. And the remaining amount of physical action required would be very slight.
Again though, remember that you don’t have to wait till you have actually been attacked. You have to wait until the moment when ‘unless you act, the attacker will be able to actually harm you’ occurs.
If you are attacked with non-lethal force, you can only defend yourself with non-lethal force. Likewise, if deadly force is used, you may respond with deadly force.
Note that deadly force includes force that could cause grave bodily harm. Firearms or knives are obvious examples of deadly force, but joint locks and other combative techniques could also easily destroy a wrist or elbow or break a bone. Even a sustained beating might cause grave bodily injury. Because you can only use as much force as necessary to stop the threat, and because people don’t realize that some combative techniques can cause grave bodily harm – they unwittingly escalate confrontations from non-lethal to deadly force confrontations. As a result, they’d lose their self-defense claim and expose themselves to justifiable retaliatory action now involving deadly force.
Another issue is that people tend to only carry deadly force, especially when they are scared. Even though we are 5x more likely to be the victim of a non-deadly force attack, more people carry guns or knives as personal protection instead of some other non-lethal option such as pepper-spray. As a consequence, when a non-lethal confrontation occurs, they may be shocked to find that they’re being charged with aggravated assault because of their disproportional reaction. As the saying goes, if all you have is a hammer – everything looks like a nail.
Avoidance refers to the notion that you should not use force if you can avoid the need to do so by use of a safe avenue of retreat.
Some jurisdictions require avoidance, i.e. the “duty-to-retreat” states, but currently most do not, i.e. the “stand-your-ground” states. Even the duty-to-retreat states have an exception for one’s home, i.e. the “Castle Doctrine”– and many others have additional exceptions for temporary dwellings (e.g., hotel rooms, campers, tents), your place of business, and even your occupied vehicle. Also, you never have to retreat if doing so would increase your danger.
That said, even in some stand-your-ground states, it’s possible to lose your self-defense claim if you don’t utilize a safe avenue of retreat because the jury could decide your use of force wasn’t really necessary.
Defending Property & The Castle Doctrine
As mentioned above, the law provides extra dispensation in the context of highly defensible properties. This is the Castle Doctrine. In these scenarios, there is a larger legal presumption that your actions were reasonable if certain conditions were met.
The most common involves a genuine intruder who forcibly enters your home at night. Not that you should use force, but there is less you’d have to do to justify its use. The broadest discretion is applied. Issues arise when, for example, the intruder is not genuine, i.e. he has some right to be there or when the intruder is on the porch, front yard, garage or place outside that jurisdiction’s definition of ‘home’.
Open land is not highly defensible, so threatening someone who is trespassing on your property with a gun is a no-no. Personal property is not highly defensible either. Things like your laptop, the stuff in your garage and unoccupied car; only non-deadly force is allowed. Except in Texas, which allows deadly force to be used in defense of personal property (assuming certain circumstances are met), defending your laptop with a gun is aggravated assault with a firearm.
The elements of defending others are the same as those required to defend oneself. If someone is unable to use self-defense on their own behalf, you can’t use it on their behalf for them. So, practically speaking, defending others is more complicated since you are more attenuated from the situation and may not know what is really happening.
Obviously, the facts will drive each particular instance, for example, you may have more knowledge about a family members situation than a stranger’s situation. Regardless, if you encounter people fighting after the scuffle has begun, you wouldn’t know who the aggressor is – and on that basis, would not be able to defend either.
Another unfortunately common issue is that the victim doesn’t always remember what occurred or recount the events in your favor. You can imagine a domestic altercation where, after saving the wife and she realizes that her husband is about to go to jail, the wife blames you for starting the fight. Now you look like the aggressor.
That’s why you should act with great caution when coming to the rescue of others. It’s much safer to be a good witness, call the cops or videotape the event. I’m not saying you should never intervene –but you should understand the risks from a physical and legal perspective. It’s very easy to make a mistake (see reasonableness below) but not all jurisdictions allow reasonable mistakes in the defense of others.
Some jurisdictions operate under an Alter Ego Paradigm. In such jurisdictions, whether or not your defense of someone else was justified is determined by assuming the defended persons ego. Your right to defend that person is no greater than that person’s right to defend themselves. So, what reasonably looks like a kidnapping might actually be undercover police officers making a legal arrest. There is no right to resist arrest, so you have no right to defend them (even if it appeared reasonable to do so), and you’ve actually just committed assault against police officers. Without knowing which jurisdiction you are in, the only prudent assumption you can make is that Alter Ego is applied.
The principle of Reasonableness is really an umbrella principle that applies to the previous four. Everything you do, all of your decisions must be of a reasonably prudent person under the same or similar circumstances, and possessing the same specialized skills and knowledge (if any). If you thought the other person was the aggressor, or that the threat was imminent, or that the force was proportional, or that you couldn’t have avoided the confrontation – yet a reasonable person would disagree, then you did not act in self-defense.
That being said, the law can allow for reasonable mistakes. This, for example, is the type of thing that happens occasionally to the police where they thought a suspect had a gun, but it turned out to be a toy or a wallet or some other object. So, the law doesn’t require perfect decisions – only reasonable decisions. A detached reflection cannot be expected in the presence of an uplifted knife.
All self-defense carries with it the risk of injury or death. It’s impossible to reduce the risk of injury from a fight to zero. It’s also impossible to reduce the risk of legal issues resulting from a fight to zero. Even if you do everything right. So ultimately, you need to ask yourself– what is worth the risk? You could die – or spend your life in jail. So, what would you risk your health and freedom to protect? Your life? The life of a family member?
Additionally, we all have a responsibility to keep ourselves safe, so why should someone else’s lack of preparation become your problem? They could have learned to protect themselves too. Is the life of that stranger worth the risk? Is it worth it to save a laptop or some personal item – or further, to save someone else’s laptop or property?
Perhaps more importantly, how should we train?
We need to train to recognize the elements above. Acting too soon is not legally permissible, but acting too late means the fight may be lost! We need to practice recognizing when the threshold has been met, and determining when we can now go 100% in our own defense. Simulations need to incorporate the actual legal elements.
In the meantime, each time you see an application of self-defense, whether on the Internet or the evening news, you need to ask yourself… What makes their case stronger? What makes their case weaker? Start looking at these events through the lens of legal justification.
When the moment comes, it’s unlikely that you’ll have the wherewithal to undergo a complex analysis, so the more predigested these concepts are and the more practiced you are, the better off you’ll be. Like most other legal issues, it’s best not to have them in the first place. A self-defense claim is no different; the best way to win that fight would be to be somewhere else.