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Montana
Pre-Black Belt
Joined: 18 Apr 2007
Posts: 882
Location: Formerly Kalispell, Montana, now Spokane, WA
Styles: Shorin Ryu Matsumura Kenpo & Kobudo
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 Posted: Sun Mar 20, 2016 10:39 am Post subject: |
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| tallgeese wrote: |
Everyone stress this, and it might be a concern; however, there's nothing in any legal system I'm aware of that takes this into account.
The general rule is the "reasonableness" of force applied to defend one's self. So, is the amount of force you dish out proportional to the threat you perceived AT THE TIME. Not in retrospect, but the perception of facts known at the time.
Regardless of knowledge base or background, that's the big question you're going to have to answer. There will, of course, be exceptions but they are not the rule. If you act in defense, and you're actions were reasonable in regards to force, you'll likely be fine.
Much better to figure out what you're jurisdicional rulings are about reasonable force than to worry about the background you have in the arts.
Civially, not criminally, this might come into more of play. However, a good lawyer will be able to steer things back into the actual realm of reasonable action. If you're covered crimianlly it's much harder in most corners of the world, to get jammed up civilially. |
Exactly! The key thing here is not to over react. If somebody throws a drink in your face, don't beat them into a bloody pile! Sure, you feel like it, but a normal backhand across his face would be sufficient. If it escalates to his attacking you beyond that, use no more than appropriate force to stop his aggression!
That's what the law will look at. Using EXCESSIVE force, more than needed, is what you need to be careful of.
_________________
If you don't want to stand behind our troops, please..feel free to stand in front of them.
Student since January 1975---4th Dan, retired due to non-martial arts related injuries. |
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sensei8
KF Sensei
Joined: 23 Feb 2008
Posts: 16420
Location: Las Vegas, NV
Styles: Shindokan Saitou-ryu [Shuri-te/Okinawa-te based]
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| Posted: Sun Mar 20, 2016 11:35 am Post subject: |
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That normal backhand across the face will get one arrested for assault, thusly, a day in court. Not a good day for both. Yes, that thrown drink in the face was wrong, but so is the backhand, and two wrongs don't make a right. I believe that both are an assault, but nonetheless, if it's one or the other, the backhand will trump the thrown drink in the face.
Imho!
Ok...time for me to shut up!!
_________________
**Proof is on the floor!!! |
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LLLEARNER
Brown Belt
Joined: 10 Feb 2016
Posts: 687
Location: Central Maine
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| Posted: Tue May 03, 2016 9:56 am Post subject: |
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| rmurray wrote: |
| It may come up in court, (probably not, if you keep it to yourself) but there is no specific precedent or law that I have heard of. My Father is both a black belt and an attorney. He is also a very careful man. I'm sure that if something specific existed he would have warned me lots of times. |
I would bet he is one of the most careful men out there. being both an attorney and BB. Both his job and hobby call for a high degree of detail and CYA.
_________________
"Those who know don't talk. Those who talk don't know." ~ Lao-tzu, Tao Te Ching
"Walk a single path, becoming neither cocky with victory nor broken with defeat, without forgetting caution when all is quiet or becoming frightened when danger threatens." ~ Jigaro Kano |
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LLLEARNER
Brown Belt
Joined: 10 Feb 2016
Posts: 687
Location: Central Maine
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| Posted: Tue May 03, 2016 10:08 am Post subject: |
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| QCM wrote: |
How would they know in Court you are a black belt ?  |
Social media posts. Google. Witness statements. Other people interviewed. Character witnesses. Stuff like that comes out.
_________________
"Those who know don't talk. Those who talk don't know." ~ Lao-tzu, Tao Te Ching
"Walk a single path, becoming neither cocky with victory nor broken with defeat, without forgetting caution when all is quiet or becoming frightened when danger threatens." ~ Jigaro Kano |
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LLLEARNER
Brown Belt
Joined: 10 Feb 2016
Posts: 687
Location: Central Maine
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| Posted: Tue May 03, 2016 10:48 am Post subject: |
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I have not had a chance to read the whole thread, but here is my .02.
This is USA based.
It is all based on the subjective standard of the reasonable man test. Are the actions taken by the victim reasonable in the situation as it was happening at the time.
An action that is reasonable my not be reasonable for your grandmother. Based on the situation, your skill, age, physical condition, size, experience against the assailant's, skill, age, physical condition, size, experience what was the force NECESSARY to stop the action. Was pistol whipping the assailant necessary after he was on the ground begging for mercy? Maybe he is verbally complying but not physically complying (you better be able to articulate it). But would a wrist lock or some such have worked.
Most police training includes verbal commands. Get down, stop hitting me, drop the knife, etc. This is done for 3 major reasons. It tells bystanders what is going on. This is important when witness statements are taken, the witnesses are being told a knife is involved even if they cannot see it depending on viewing angle, it also looks less like the Po-Po are beating up a "disadvantaged" citizen for no reason. It continually instructs the perpetrator of what to do, they may start complying. And it keeps the officer breathing, making him/her more effective in the situation. All these reasons are valid and should be used by anyone in a self-defense situation.
Also never move the body even if it falls outside unless it is necessary to move the body for continued safety (the body is between you and a safe exit from another assailant). It opens you to tampering with evidence charges and makes you look guilty. Just because the perpetrator was shot in the back or falls outside does not make what the victim did wrong. I would shoot a guy in the back if he was between me and my family (putting them in danger). Okay, I shoot the guy in the back (he was moving toward my daughter), my shot does not instantly neutralize him. He runs outside then his blood pressure drops to low to maintain mobility and he expires on my lawn. I am 100% justified with that explanation of how a dead guy is now my new lawn ornament.
After calling the police, do not talk to them. The emotional and hormonal high will over ride your rational brain. Get your lawyer. Only answer questions with your lawyer present. Your lawyer is your rational brain, and guide through the legal hell that will come.
Also be prepared for the civil suit that his family will bring for killing their special snowflake altar boy.
Be prepared for the press to be against you. They will run pictures of the perpetrator that are of his 8th grade graduation when he is all smiles, sweetness, and full of potential. Never talk to them either, the press is evil incarnate.
_________________
"Those who know don't talk. Those who talk don't know." ~ Lao-tzu, Tao Te Ching
"Walk a single path, becoming neither cocky with victory nor broken with defeat, without forgetting caution when all is quiet or becoming frightened when danger threatens." ~ Jigaro Kano |
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andrewbranca
White Belt
Joined: 06 May 2016
Posts: 5
Location: Concord MA
Styles: Shotokan karate
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| Posted: Fri May 06, 2016 9:24 am Post subject: |
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| sensei8 wrote: |
Again, I'm not a lawyer and I've no idea what any court of law would say about "rank". I'm sure that some judges might take it into consideration, while other judges might not. Is it permissable or not? That's up to that judge, imho.
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I actually AM a lawyer, with a legal practice that specializes in use-of-force law (USA only, I'm afraid), so perhaps I can shed some light on this issue. I'll generalize a bit, but everything below would apply in all 50 states, unless I indicate otherwise.
There are five elements to any claim of self-defense, and they are cumulative--that is, all five must elements MUST be present (unless legally excused for some reason), or the entire self-defense claim collapses. To put it another, for a prosecutor to destroy your claim of self-defense he needs to destroy any ONE of the required elements of the legal claim of self-defense.
One of the elements that is always required is the element of reasonableness--were your perceptions, decisions, actions those of a reasonable person. Reasonableness is evaluated using a two-part test--first, whether your conduct was subjectively reasonable; second, whether your conduct was objectively reasonable. Your conduct must have been BOTH subjectively AND objectively reasonable, or your fail the element of reasonableness and you fail on self-defense.
In the context of objective reasonableness, the jury is asked to decide whether a hypothetical "reasonable and prudent person" would have conducted themselves in the same way. If not, your conduct was not objectively reasonable, you fail on the element of reasonableness, and you fail on self-defense.
Still with me? Here's where a defender's martial arts training/expertise comes into play.
That hypothetical "reasonable and prudent person" (RAPP, we lawyers love our acronyms) is customized to fit the particular facts of that particular case. One of the ways the RAPP can be customized is for any exceptional or specialized capabilities or knowledge possessed by the defendant that is not normally possessed by the general public.
The RAPP is presumed to possess generalized knowledge--fire is hot, knives are sharp, etc.--but NOT specialized knowledge. The same for specialized capabilities. If a defendant DOES possess specialized knowledge/capabilities, and this knowledge/capabilities contributed to their perceptions, decisions, and actions in self-defense, than that specialized knowledge/capabilities is relevant to their claim of self-defense.
In effect, then, the jury is being asked to decide if a reasonable and prudent person POSSESSING THE DEFENDANT'S SPECIALIZED KNOWLEDGE/CAPABILITIES would have acted in the same way as did the defendant. If the answer is "yes," then the defendant's conduct was objectively reasonable. If "no," then the conduct was NOT objectively reasonable, the defendant fails the element of reasonableness, and the defendant fails on self-defense.
Typically, relevant specialized knowledge is introduced into evidence through the testimony of an expert witness in that field.
It's important to understand that such specialized knowledge/capabilities can be used EITHER to the defendant's detriment OR benefit, depending on the circumstances.
An example of how specialized knowledge might be used to a defendant's BENEFIT is if he is faced with multiple "unarmed" opponents, and his dojo training and experience has taught him that such a disparity of numbers represents a threat of grave bodily harm. This could justify him in using a weapon even though his attackers are "unarmed." When the prosecutor argues that a weapon should not have been used against an "unarmed" opponent, the expert witness is brought in by the defense to educate the jury with the relevant specialized knowledge.
An example of how specialized knowledge might be used to a defendant's DETRIMENT is if he is faced with an attacker apparently possessing no particular fighting expertise, e,g, throwing round house punches at the defender, and the defender possesses a suitable expertise in, say, judo, that he could reasonably throw the attacker to the ground rather than perform elbow mediated dental extraction on the poor fellow. (Another one of the elements of a self-defense claim, proportionality, requires that you use no more force than necessary to neutralize the threat.)
That latter example is what most people are thinking of when they wonder "Can my black belt be used against me in court?" The answer is that if you possess a particular level of expertise, you will be held to the standard of someone possessing that level of expertise. It's hard to argue that this shouldn't be the case, really.
Sorry, we lawyers tend to run on-and-on. I hope that's helpful information.
_________________
Andrew F. Branca
Attorney at Law
Nothing in this post constitutes legal advice, nor does it establish an attorney-client relationship or privilege.
If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction. |
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sensei8
KF Sensei
Joined: 23 Feb 2008
Posts: 16420
Location: Las Vegas, NV
Styles: Shindokan Saitou-ryu [Shuri-te/Okinawa-te based]
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| Posted: Fri May 06, 2016 1:34 pm Post subject: |
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| andrewbranca wrote: |
| sensei8 wrote: |
Again, I'm not a lawyer and I've no idea what any court of law would say about "rank". I'm sure that some judges might take it into consideration, while other judges might not. Is it permissable or not? That's up to that judge, imho.
|
I actually AM a lawyer, with a legal practice that specializes in use-of-force law (USA only, I'm afraid), so perhaps I can shed some light on this issue. I'll generalize a bit, but everything below would apply in all 50 states, unless I indicate otherwise.
There are five elements to any claim of self-defense, and they are cumulative--that is, all five must elements MUST be present (unless legally excused for some reason), or the entire self-defense claim collapses. To put it another, for a prosecutor to destroy your claim of self-defense he needs to destroy any ONE of the required elements of the legal claim of self-defense.
One of the elements that is always required is the element of reasonableness--were your perceptions, decisions, actions those of a reasonable person. Reasonableness is evaluated using a two-part test--first, whether your conduct was subjectively reasonable; second, whether your conduct was objectively reasonable. Your conduct must have been BOTH subjectively AND objectively reasonable, or your fail the element of reasonableness and you fail on self-defense.
In the context of objective reasonableness, the jury is asked to decide whether a hypothetical "reasonable and prudent person" would have conducted themselves in the same way. If not, your conduct was not objectively reasonable, you fail on the element of reasonableness, and you fail on self-defense.
Still with me? Here's where a defender's martial arts training/expertise comes into play.
That hypothetical "reasonable and prudent person" (RAPP, we lawyers love our acronyms) is customized to fit the particular facts of that particular case. One of the ways the RAPP can be customized is for any exceptional or specialized capabilities or knowledge possessed by the defendant that is not normally possessed by the general public.
The RAPP is presumed to possess generalized knowledge--fire is hot, knives are sharp, etc.--but NOT specialized knowledge. The same for specialized capabilities. If a defendant DOES possess specialized knowledge/capabilities, and this knowledge/capabilities contributed to their perceptions, decisions, and actions in self-defense, than that specialized knowledge/capabilities is relevant to their claim of self-defense.
In effect, then, the jury is being asked to decide if a reasonable and prudent person POSSESSING THE DEFENDANT'S SPECIALIZED KNOWLEDGE/CAPABILITIES would have acted in the same way as did the defendant. If the answer is "yes," then the defendant's conduct was objectively reasonable. If "no," then the conduct was NOT objectively reasonable, the defendant fails the element of reasonableness, and the defendant fails on self-defense.
Typically, relevant specialized knowledge is introduced into evidence through the testimony of an expert witness in that field.
It's important to understand that such specialized knowledge/capabilities can be used EITHER to the defendant's detriment OR benefit, depending on the circumstances.
An example of how specialized knowledge might be used to a defendant's BENEFIT is if he is faced with multiple "unarmed" opponents, and his dojo training and experience has taught him that such a disparity of numbers represents a threat of grave bodily harm. This could justify him in using a weapon even though his attackers are "unarmed." When the prosecutor argues that a weapon should not have been used against an "unarmed" opponent, the expert witness is brought in by the defense to educate the jury with the relevant specialized knowledge.
An example of how specialized knowledge might be used to a defendant's DETRIMENT is if he is faced with an attacker apparently possessing no particular fighting expertise, e,g, throwing round house punches at the defender, and the defender possesses a suitable expertise in, say, judo, that he could reasonably throw the attacker to the ground rather than perform elbow mediated dental extraction on the poor fellow. (Another one of the elements of a self-defense claim, proportionality, requires that you use no more force than necessary to neutralize the threat.)
That latter example is what most people are thinking of when they wonder "Can my black belt be used against me in court?" The answer is that if you possess a particular level of expertise, you will be held to the standard of someone possessing that level of expertise. It's hard to argue that this shouldn't be the case, really.
Sorry, we lawyers tend to run on-and-on. I hope that's helpful information. |
Solid post, Andrew!!
Andrew,
If I've a chance to leave my attacker, and I don't, I continue to engage, am I wrong, in the eyes of the Law, and ultimately in a court of law?!? How far can one push the defense of perception?? If I say I perceive that I was still in danger, am I forgiven in the eyes of the court??
"I do not hit, "it" hits all by itself!!!" Automatic responses and the like, how might a judge view that? Can one use that quote as a defense? Seeing that one might say..."I was attacked, and my response was so automatic that after that very moment, I didn't think with intent, I just reacted without thought." Considerations are forgotten, not by malice, but by circumstances that I acted upon by automation within myself, as I've been trained to do so.
Thanks, Andrew!!
_________________
**Proof is on the floor!!! |
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andrewbranca
White Belt
Joined: 06 May 2016
Posts: 5
Location: Concord MA
Styles: Shotokan karate
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| Posted: Fri May 06, 2016 1:51 pm Post subject: |
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| sensei8 wrote: |
If I've a chance to leave my attacker, and I don't, I continue to engage, am I wrong, in the eyes of the Law, and ultimately in a court of law?!? How far can one push the defense of perception?? If I say I perceive that I was still in danger, am I forgiven in the eyes of the court??
"I do not hit, "it" hits all by itself!!!" Automatic responses and the like, how might a judge view that? Can one use that quote as a defense? Seeing that one might say..."I was attacked, and my response was so automatic that after that very moment, I didn't think with intent, I just reacted without thought." Considerations are forgotten, not by malice, but by circumstances that I acted upon by automation within myself, as I've been trained to do so.
Thanks, Andrew!!
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There are varied ways that failing to take advantage of safe avenue of retreat can undermine your legal defense of self-defense. Of course, in one of the 16 duty to retreat states you would lose self-defense as a matter of law. Poof, it's gone.
Even in most stand-your-ground states, where you do not have a legal duty to retreat, the prosecution can still argue to the jury that your failure to do so was not the conduct of a reasonable and prudent person, and so you lose self-defense because you lose on the required element of reasonableness.
There are a handful of "hard" stand-your-ground states that prohibit the jury from even considering whether the defender could have retreated, which sounds good, but even here you can get tangled up by failing to take advantage of a safe avenue of retreat.
This can happen if the prosecution can convince the jury that you were the initial aggressor (doesn't need to be TRUE, just needs to be CONVINCING). If he does that successfully you lose self-defense on the required element of innocence.
UNLESS it turns out that YOU can show that even if you WERE the initial aggressor, you legally recovered your innocence by withdrawing from the fight in good faith. Of course, if you can be made to look like the aggressor and CANNOT show you withdrew in good faith then you will NOT have recovered your innocence, you lose self-defense, and off to the party you go.
In terms of "automatic defensive reactions," I understand the rationale from a tactical perspective, especially when we're most likely to be subject to an ambush attack, but that kind of terminology is very dangerous for a legal claim of self-defense.
Self-defense, from a legal perspective, must be a deliberate, reasoned act--NOT an automatic reflex. If your automatic reflex turns out to put you outside the bounds of self-defense law (e.g., your "automatic" use of force was disproportional to the attack) the fact that it was an "automatic" response not only won't save your self-defense claim, characterizing it as "automatic" will only further undermine that claim.
An "automatic" defensive response that's unlikely to cause much damage--e.g., a block or a shove to create distance--also is unlikely to cause too much legal liability. On the other hand, an "automatic" defense response that maims your "attacker"--especially if it turns out you were wrong about the nature or intensity of the "attack" is going to be a huge problem, legally speaking.
That's all I have time for right now, sorry about that, but clients need their cases handled. But I write about this stuff all the time in my professional capacity as an attorney specializing in use-of-force law. Google is your friend.
_________________
Andrew F. Branca
Attorney at Law
Nothing in this post constitutes legal advice, nor does it establish an attorney-client relationship or privilege.
If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction. |
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sensei8
KF Sensei
Joined: 23 Feb 2008
Posts: 16420
Location: Las Vegas, NV
Styles: Shindokan Saitou-ryu [Shuri-te/Okinawa-te based]
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| Posted: Fri May 06, 2016 2:22 pm Post subject: |
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| andrewbranca wrote: |
| sensei8 wrote: |
If I've a chance to leave my attacker, and I don't, I continue to engage, am I wrong, in the eyes of the Law, and ultimately in a court of law?!? How far can one push the defense of perception?? If I say I perceive that I was still in danger, am I forgiven in the eyes of the court??
"I do not hit, "it" hits all by itself!!!" Automatic responses and the like, how might a judge view that? Can one use that quote as a defense? Seeing that one might say..."I was attacked, and my response was so automatic that after that very moment, I didn't think with intent, I just reacted without thought." Considerations are forgotten, not by malice, but by circumstances that I acted upon by automation within myself, as I've been trained to do so.
Thanks, Andrew!!
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There are varied ways that failing to take advantage of safe avenue of retreat can undermine your legal defense of self-defense. Of course, in one of the 16 duty to retreat states you would lose self-defense as a matter of law. Poof, it's gone.
Even in most stand-your-ground states, where you do not have a legal duty to retreat, the prosecution can still argue to the jury that your failure to do so was not the conduct of a reasonable and prudent person, and so you lose self-defense because you lose on the required element of reasonableness.
There are a handful of "hard" stand-your-ground states that prohibit the jury from even considering whether the defender could have retreated, which sounds good, but even here you can get tangled up by failing to take advantage of a safe avenue of retreat.
This can happen if the prosecution can convince the jury that you were the initial aggressor (doesn't need to be TRUE, just needs to be CONVINCING). If he does that successfully you lose self-defense on the required element of innocence.
UNLESS it turns out that YOU can show that even if you WERE the initial aggressor, you legally recovered your innocence by withdrawing from the fight in good faith. Of course, if you can be made to look like the aggressor and CANNOT show you withdrew in good faith then you will NOT have recovered your innocence, you lose self-defense, and off to the party you go.
In terms of "automatic defensive reactions," I understand the rationale from a tactical perspective, especially when we're most likely to be subject to an ambush attack, but that kind of terminology is very dangerous for a legal claim of self-defense.
Self-defense, from a legal perspective, must be a deliberate, reasoned act--NOT an automatic reflex. If your automatic reflex turns out to put you outside the bounds of self-defense law (e.g., your "automatic" use of force was disproportional to the attack) the fact that it was an "automatic" response not only won't save your self-defense claim, characterizing it as "automatic" will only further undermine that claim.
An "automatic" defensive response that's unlikely to cause much damage--e.g., a block or a shove to create distance--also is unlikely to cause too much legal liability. On the other hand, an "automatic" defense response that maims your "attacker"--especially if it turns out you were wrong about the nature or intensity of the "attack" is going to be a huge problem, legally speaking.
That's all I have time for right now, sorry about that, but clients need their cases handled. But I write about this stuff all the time in my professional capacity as an attorney specializing in use-of-force law. Google is your friend. |
Fair enough, Andrew, thanks!!
Google, huh, everything is true on the internet, huh?! LOL 
_________________
**Proof is on the floor!!! |
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andrewbranca
White Belt
Joined: 06 May 2016
Posts: 5
Location: Concord MA
Styles: Shotokan karate
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| Posted: Fri May 06, 2016 3:49 pm Post subject: |
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| sensei8 wrote: |
Google, huh, everything is true on the internet, huh?! LOL
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Good God, no, it's almost all wrong, at least when it comes to self-defense law.
I meant just my name.
--Andrew
_________________
Andrew F. Branca
Attorney at Law
Nothing in this post constitutes legal advice, nor does it establish an attorney-client relationship or privilege.
If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction. |
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on the post.
