Martial artist getting the extra squeeze by a judge for being a Martial artist.
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Graywalker
Brown Belt
Was was stupid was the original commenter getting away with promoting violence on the public and not being warned.
"Let the court handle it" is exactly what is said in these situations of violence...
Why is that appropriate, but when a civilian states the same thing, it is somehow not ok and insulting.
I am not promoting nor telling anyone what to do in this situation, I am stating what I would do in order to defend my own life from these types of unnecessary attacks. Nothing more.
Graywalker
Brown Belt
Why is this ok for employees of the people, in expressing this type of violence on the public. Do you not believe that all have a right to defend their own life?
It just doesn't make any sense at all.
It just doesn't make any sense at all.
Graywalker
Brown Belt
But I will respect the warning and refrain from discussing or commenting, when one promotes violence on the people.
lklawson
Grandmaster
You just advocated "to put security or a cop down hard." The best case is he calls a bunch of his friends and they dogpile you. The worst case is you get met with deadly force from multiple angles.
Yeah, it's a remarkably stupid thing to write.
jobo
Grandmaster
@greywalker
you need to work the quote function out mate
i agree, but you have just triggered one of the inherant biasis of the forum or which there are a fair few.
gun are a prime and revular example where beibg in favour of blastibg away indiscrimatly with your glock is fine and dandy , feeling that perhaps thats not the best idea, breaks the rules, this forum seem to have a consideeable number of glock owners in postions of aurthority or influence
just as it also has a great number of police, expolice, peopke with people conection, etal,
so, the police are great is a good topic for conversation, the police are phycotic bullies you may need to defend yourself from, less so
lklawson
Grandmaster
Even if they are, trying to fight them usually gets people dead. Cops have lots and lots of friends they can call at the drop of a hat. All of them are armed. Just take the arrest, don't resist or physically fight. Fight it in court instead.
Why try to fight a cop when you can have the Judge do it instead?
jobo
Grandmaster
well rather depends on if you feel your life in danger or if like some of the vids ive seen laterly they are just intent on beatibg you to a pulp,
in principal i agree withh you, unfortunely leaving your widow to get justice for you seems like second prize
lklawson
Grandmaster
It's actually quite rare and I can't remember the last time it was not preceded by the suspect resisting arrest. Everyone is wearing body cams now and all cop cars are equipped. Let them arrest you and then you can fight it in court. Cops making bad arrests have been disciplined and lost their jobs.
I'm not entirely sure what you're trying to imply but I know that my family is better off with me having beaten a bad arrest in the courts than with me dead from resisting arrest.
Think with your brain, not your testosterone.
jobo
Grandmaster
well yes and no, my original point was much as you say, you almost certanly not going to win, in the long run, not unless you have the means to escape the country,, and if there more than one cop probebly not in the short run either
that then leaves an open question of how much risk are you at not resisting, and that is totally dependent on how phycotic the cop is and what they think youve done
getting shot by the cops is quite rare in this country, but the incdebces of them shooting unarmed people is quite high as a % , coz if they have sent an armed unit, its because they think you are armed and they get trigger happy.
following the terrorist atttack on the london tube, the police follow as foreign looking chap with a rucksack on to the tube and emptied a magazene in to him, the cops were being very brave, they thought he had a bomb,which he didnt, he was just going to work,
they didnt give him the opertunity to resist, similarrly if they think your a bank robber ir similar violent
indevidual they will hit you hard with no warning and make sure you dont get up, resisting or not doesnt matter
and then there are just peopke standing up for their civil liberties, if you annoy them sufficiently even if you committed no crime, then they are not un likely to attack you unlawfully,
there was a case a few years ago, where some guy with a head wound from being attacked was lay on the ground, the police arrived and said" your going to hospital" the guys say " no im not " so the police beat him unconcious so that they can take him to hospital to recieve treatment for being beaten unconscious
the uk police often confuse what they want you to do, with the law, sure you can just allow yourself to be bullied, but the presevation of liberties required that some people do not and if they do attack you, they are always going to say, you assualed them first
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lklawson
Grandmaster
You don't preserve liberties by letting bad cops kill you. You fight it in court and get them fired.
jobo
Grandmaster
no you oresrve liberties by insisting your liberties are up held and then if necessary going to court.
if you ve complied, its to late, if they were pointing a gun at me however, id certainly do what i was told, so it is i supos3 country specific
This is ridiculous and extremely unfair, having a background in the martial arts shouldn't put you at a disadvantage in court. After all martial arts is not like a gun.
punisher73
Senior Master
Did you actually read the article? There was no "fight" and this was no self-defense situation, he sucker punched the guy and broke both sides of his jaw. Yes, being a trained fighter and knowing HOW to inflict damage and also being skilled enough to know when and how to use your skills should hold you to a higher standard when you abuse it.
He should be held accountable.
dvcochran
Grandmaster
I have not followed the whole story but given the evidence we see I agree. That is a tricky thing with video clips; they can really misrepresent a story. That said, if the trained fighter went on the offensive unprovoked or unabated then, yes, his MA experience/skill should be factored in and hold him to a higher standard, thus holding him more accountable.
jobo
Grandmaster
it does and probebly should if you go round punching people for no reason
of course if your not semi famous and keep your moulth shut, its very unlikely they will know, unless you kill someone and they put a bit more effort in
lklawson
Grandmaster
It's not ridiculous. There is a certain logic to it, even if I don't necessarily agree. A person is more trained, has more expertise. Any time a person can be shown to have more expertise, they are likely to be held to a higher standard. Cops, it is argued, should be held to a higher standard on use of force because, among other reasons, they have (supposedly) more training than the average person. There's a reason that we hire people with expertise in a field to work in that field; we expect them to be better at it, knowing when to start and when to stop.
Courts holding "trained martial artists" to a higher standard is a common theme in many nations, including the U.S. Not too long ago, ims, I posted about a Boxer who, engaging in a self defense fight, did a one-two-three combo and his attacker got knocked down and died (depressed skull fracture, ims). The courts held that he had used excessive force because they believed that the successive punches after the first were unnecessary. The speed at which he was trained to deliver a one-two-three wasn't considered to be a factor. "He should have stopped after the first."
Yes, I know...
Peace favor your sword,
Kirk
lklawson
Grandmaster
Article by noted Self Defense Lawyer and expert, Andrew Branca:
Kirk
Do Martial Arts Skills Increase Legal Jeopardy? – Law of Self Defense
Do Martial Arts Skills Increase Legal Jeopardy?
by Andrew Branca
You’re a martial artist who observes a woman being victimized by her domestic abuser. You intervene in her defense, the confrontation turns physical, you throw some punches at the abuser. You connect, the abuser falls, and hits his head on the ground. He dies of the head injury.
Is it possible that the criminal justice system, prosecutors, judges, and jurors, will evaluate your use-of-force differently because of your martial arts training than they would that of someone lacking that training?
Answer: It’s absolutely possible. In fact, it would be almost bizarre for a prosecutor or judge to not take that kind of martial arts expertise into account, and their arguments and the judge’s jury instructions are likely to compel the jury to consider such expertise, as well. (That said, this is not a good reason to not learn martial arts, as I explain later.)
Before we dive in, today’s content is sponsored by CCW Safe, a provider of legal membership services (what many mistakenly refer to as “self-defense insurance”). I’m a member of CCW Safe myself, as is my wife, and I encourage you to consider them as a means of ensuring you have the legal resources you need to win the legal fight if you’re ever involved in a use-of-force event. You can learn more about them at:
Checkout | Law of Self Defense
If you do decide to become a CCW Safe member, you can save 10% on your membership by using the discount code LOSD10 when you sign up.
The fact pattern I described above is real, and comes to us out of the United Kingdom. In that actual case, the martial artist was charged with manslaughter. He claimed self-defense at trial, he was convicted of that charge and has been sentenced to 5 ½ years in prison. (You can read more about the case here.)
And we know in this case that the defendant’s martial arts expertise was used against him by both the prosecutor, in arguing manslaughter to the jury, and the judge, who gave the defendant a longer sentence than would have been the case absent the defendant’s martial arts expertise.
Naturally, here at Law of Self Defense we only cover the self-defense law of the United States. As I’ll explain, however, US law should be expected to apply in a very similar manner as was UK law applied to this now convicted martial artist.
The 5 Elements of Self-Defense Law
As members of the Law of Self Defense community are well aware, there are up to five elements of any claim of self-defense. These elements are cumulative, meaning all required elements are, well, required. That means that a prosecutor can defeat a claim of self-defense and secure a conviction in a use-of-force case by disproving any one of those required elements. If one required element is defeated, the entire legal defense of self-defense fails.
If you are new to the Law of Self Defense community and unfamiliar with this concept of the five elements of self-defense, then I’m afraid you lack the most basic knowledge needed to understand how self-defense law works at all. There’s good news, however–we offer a FREE “5 Elements of Self-Defense Law” infographic that explains these five elements in plain English. You can get this FREE infographic at the link below. (Did I mention it’s FREE?). For a deeper explanation of those five elements we also provide an optional ~10-minute video micro-course at that same link, also FREE.)
Foundations: The 5 Elements of Self-Defense Law – Law of Self Defense
So, how would expertise in martial arts play into those five elements of a self-defense claim? More specifically, how would possession of such martial arts expertise open up avenues of attack by a prosecutor on a claim of self-defense, where those avenues of attack would not be as viable absent that expertise?
Martial arts expertise would most strongly impact the elements of Proportionality and Reasonableness.
Proportionality
The element of Proportionality has to do with the degree and/or duration of a use-of-force. In this case, it’s the degree aspect that’s relevant, meaning whether the force used qualified as deadly force or mere non-deadly force.
By “deadly force” we mean force likely to cause death or serious bodily injury. By “non-deadly force” we mean all lesser degrees of force.
It’s generally the case that a use-of-force involving only one’s bare hands—typically, thrown punches—is going to be assumed by the court to be a use of non-deadly force, rather than deadly force.
That general assumption is just that, however, a generalization that’s subject to being overcome if there are aggravating circumstances associated with the bare hands. For example, the bare hands might be used in a manner unusually likely to cause death or serious bodily injury, such as to strangle a victim. Alternatively, the bare hands might be wielded by an aggressor is so much larger or stronger than the defender that they are more likely than normal to cause death or serious bodily injury. Still another factor could be that there are multiple bare handed attackers against a single defender, a disparity of numbers that makes it more likely than normal that multiple sets of bare hands could cause death or serious bodily injury.
Can you see the common pattern among all those “aggravating factors” that can shift a bare handed attack from the non-deadly force bucket, into which bare-handed attacks normally fall, to the deadly force bucket? That’s right: the circumstances are such that this particular bare handed attack is more likely than normal to cause death or serious bodily injury.
Expertise in martial arts shares exactly that characteristic. Why do people study martial arts, and here I mean specifically the martial arts that train the student to better strike blows against an attacker, and in the context of self=defense? (In the real-world case that opened this post, the specific martial art involved was Tae Kwon Do, which involves substantial punching and kicking technique.)
Within that context, people study martial arts precisely to try to make their blows faster, better targeted, more powerful—bottom line, to be more effective at neutralizing a threat than would the blows of an untrained person.
By this reasoning, the punches thrown by someone with genuine martial arts expertise are likely to be substantially more powerful than the punches thrown by someone lacking that expertise. Specifically, the expert’s punches are more likely to inflict deadly force—force likely to cause either death or serious bodily injury—than are the non-expert’s punches.
To put it another way, whereas a punch thrown by a non-expert will almost always be deemed to have been a non-deadly use of force, a punch thrown by an expert martial artist—or professional boxer, MMA fighter, etc.—can more readily be perceived as qualifying as a deadly use of force.
And this perception of the expert’s punch qualifying as a use of deadly force is particularly likely when the victim of that expert’s punch actually dies as a result.
Bottom line, if you have a degree of martial expertise that makes your thrown punches more likely to inflict death or serious bodily injury than would the punches of a non-expert, don’t be surprised if your expert punches are put in the deadly force bucket, especially if you’ve killed someone with them.The legal consequences to your claim of self-defense can be severe—the total loss of that legal defense of self-defense. Why? Because in order to justify a use of non-deadly defensive force you need merely be able to demonstrate that you were facing a greater-than-zero threat of some physical injury, however slight. In order to justify a use of deadly defensive force, however, you need to be able to demonstrate that you were facing a deadly force threat.
If your expert punch is deemed to have been deadly force in nature, and the threat you were defending yourself against was merely non-deadly in nature (e.g., a non-expert’s thrown punch), then you used disproportionate defensive force, you lose the element of Proportionality, and therefore you lose the legal defense of self-defense.
And if you lose the legal defense of self-defense, you’ve made yourself almost entirely vulnerable to being convicted of the underlying criminal charge—in the real-world case that opened this post, the charge of manslaughter.
Reasonableness
I’ve met many martial artists who object to this legal reality. Why should they be held to a higher standard legal standard for use-of-force ,just because they’ve invested the effort to gain self-defense expertise, than would someone who had not made such an effort. It’s not fair!
The element of Reasonableness is kind of an umbrella element that sits over all the others. Everything you perceive, decide, or do in self-defense must be the perception, decision, or action of a reasonable person. If it is not that of a reasonable person, you lose the element of Reasonableness, and you lose the legal defense of self-defense.
That element of Reasonableness is itself made up of two components, both having to do with the defender’s state of mind: subjective reasonableness, and objective reasonableness.
Subjective reasonableness has to do with the defender’s genuine, good faith belief in the need to act in self-defense as they did. If that subjective belief is lacking, the use of force could not have been reasonable.
But subjective reasonableness alone, however, is not sufficient. An unreasonable subjective belief in the need to act in self-defense is not enough to sustain the legal justification of self-defense. That subjective belief also has to be objectively reasonable.
Objective reasonableness asks whether a hypothetical reasonable & prudent person would have shared that same subjective belief. If so, the subjective belief is objectively reasonable. If not, then not.
Objective reasonableness is not an absolute standard, however, but is customized to fit the facts of the particular use-of-force event. It’s customized for the circumstances surrounding the use of force—day time versus night time, public place versus inside your home, etc. It’s customized to account for the stress of being in a fight—we’re not required to make perfect decisions in self-defense, we’re merely required to make reasonable decisions in self-defense.
The objective reasonableness is also customized in two other respects that tie into a defender having an expertise in martial arts. Specifically, objective reasonableness is customized for any special abilities or disabilities that the defendant may possess, and also customized for any specialized knowledge that the defendant may possess.
In terms of disabilities, it’s not hard to imagine that what might be a reasonable means of flight to avoid the need to use force in self-defense might differ between, say, a young, fit and healthy defender on the one hand, and an older, infirm, or disabled defender on the other hand. The disabled person’s reasonable options are simply not the same as those of the able person.
Conversely, in terms of abilities, a defender who has an exceptional fighting ability is likely to have more options available than would a defender with no particular expertise in fighting. And frankly it’s hard to not agree that these two classes of people should be treated differently. With genuine expertise comes responsibility, and the person possessing that expertise is going to be held to a higher legal standard than would someone lacking that expertise.
It’s also invariably the case that the defender with martial arts expertise is going to possess specialized knowledge that the non-expert lacks. That specialized knowledge could be as simple as having a well-informed understanding of the reasonable consequences of striking someone with an expert’s punch—for example, the increased probability that the victim of the strike might fall, strike their head on the ground, and die.
In short, the punch thrown by a martial arts expert might be objectively unreasonable, even if a punch thrown by a non-expert would have been objectively reasonable.
Once again, the legal consequence to your claim of self-defense can be severe—the total loss of that legal defense of self-defense. Why? Because in order for your use of defensive force to qualify as lawful self-defense it must be both subjectively and objectively reasonable. If it’s perceived as lacking either characteristic, it lacks the required element of Reasonableness, and you lose the legal defense of self-defense.
A prosecutor who can successfully argue that you did not actually have a subjective, good faith belief in the need to use your martial arts expertise as you did, or that your use of your martial arts expertise was objectively unreasonable precisely because of that expertise, can strip you of self-defense, and make you enormously vulnerable to conviction for the underlying criminal charge (in this case, manslaughter).
So, Should You NOT Learn Martial Arts?
Alternatively, I’m sometimes accused of at least implicitly suggesting that because gaining martial arts expertise might result in the imposition of a higher legal standard in a use-if-force case, that it would be better to not acquire that martial arts expertise.
That’s definitely not my position. The top priority has to be to win the physical fight. If you don’t do that, everything else becomes rather less important. Acquiring expertise in martial arts suitable to self-defense better enables you to win that physical fight—and here I’m speaking of martial arts broadly to include not just traditional Asian fighting arts but also BJJ, defensive knife use, defensive gun use, defensive OC spray use, verbal judo, etc.
Win. The. Fight.
That said, it also should not be surprising that the society generally and the law in particular will treat a person with a substantial degree of expertise in fighting than they will someone who lacks such expertise, and in particular where that expertise was used in such a manner as to cost another human being their life.
So, develop the expertise, win the fight … and expect to be held to a higher legal standard, if you kill someone using that expertise, than would someone lacking that expertise.
And conduct yourself accordingly.
Peace favor your sword,Do Martial Arts Skills Increase Legal Jeopardy?
by Andrew Branca
You’re a martial artist who observes a woman being victimized by her domestic abuser. You intervene in her defense, the confrontation turns physical, you throw some punches at the abuser. You connect, the abuser falls, and hits his head on the ground. He dies of the head injury.
Is it possible that the criminal justice system, prosecutors, judges, and jurors, will evaluate your use-of-force differently because of your martial arts training than they would that of someone lacking that training?
Answer: It’s absolutely possible. In fact, it would be almost bizarre for a prosecutor or judge to not take that kind of martial arts expertise into account, and their arguments and the judge’s jury instructions are likely to compel the jury to consider such expertise, as well. (That said, this is not a good reason to not learn martial arts, as I explain later.)
Before we dive in, today’s content is sponsored by CCW Safe, a provider of legal membership services (what many mistakenly refer to as “self-defense insurance”). I’m a member of CCW Safe myself, as is my wife, and I encourage you to consider them as a means of ensuring you have the legal resources you need to win the legal fight if you’re ever involved in a use-of-force event. You can learn more about them at:
Checkout | Law of Self Defense
If you do decide to become a CCW Safe member, you can save 10% on your membership by using the discount code LOSD10 when you sign up.
The fact pattern I described above is real, and comes to us out of the United Kingdom. In that actual case, the martial artist was charged with manslaughter. He claimed self-defense at trial, he was convicted of that charge and has been sentenced to 5 ½ years in prison. (You can read more about the case here.)
And we know in this case that the defendant’s martial arts expertise was used against him by both the prosecutor, in arguing manslaughter to the jury, and the judge, who gave the defendant a longer sentence than would have been the case absent the defendant’s martial arts expertise.
Naturally, here at Law of Self Defense we only cover the self-defense law of the United States. As I’ll explain, however, US law should be expected to apply in a very similar manner as was UK law applied to this now convicted martial artist.
The 5 Elements of Self-Defense Law
As members of the Law of Self Defense community are well aware, there are up to five elements of any claim of self-defense. These elements are cumulative, meaning all required elements are, well, required. That means that a prosecutor can defeat a claim of self-defense and secure a conviction in a use-of-force case by disproving any one of those required elements. If one required element is defeated, the entire legal defense of self-defense fails.
If you are new to the Law of Self Defense community and unfamiliar with this concept of the five elements of self-defense, then I’m afraid you lack the most basic knowledge needed to understand how self-defense law works at all. There’s good news, however–we offer a FREE “5 Elements of Self-Defense Law” infographic that explains these five elements in plain English. You can get this FREE infographic at the link below. (Did I mention it’s FREE?). For a deeper explanation of those five elements we also provide an optional ~10-minute video micro-course at that same link, also FREE.)
Foundations: The 5 Elements of Self-Defense Law – Law of Self Defense
So, how would expertise in martial arts play into those five elements of a self-defense claim? More specifically, how would possession of such martial arts expertise open up avenues of attack by a prosecutor on a claim of self-defense, where those avenues of attack would not be as viable absent that expertise?
Martial arts expertise would most strongly impact the elements of Proportionality and Reasonableness.
Proportionality
The element of Proportionality has to do with the degree and/or duration of a use-of-force. In this case, it’s the degree aspect that’s relevant, meaning whether the force used qualified as deadly force or mere non-deadly force.
By “deadly force” we mean force likely to cause death or serious bodily injury. By “non-deadly force” we mean all lesser degrees of force.
It’s generally the case that a use-of-force involving only one’s bare hands—typically, thrown punches—is going to be assumed by the court to be a use of non-deadly force, rather than deadly force.
That general assumption is just that, however, a generalization that’s subject to being overcome if there are aggravating circumstances associated with the bare hands. For example, the bare hands might be used in a manner unusually likely to cause death or serious bodily injury, such as to strangle a victim. Alternatively, the bare hands might be wielded by an aggressor is so much larger or stronger than the defender that they are more likely than normal to cause death or serious bodily injury. Still another factor could be that there are multiple bare handed attackers against a single defender, a disparity of numbers that makes it more likely than normal that multiple sets of bare hands could cause death or serious bodily injury.
Can you see the common pattern among all those “aggravating factors” that can shift a bare handed attack from the non-deadly force bucket, into which bare-handed attacks normally fall, to the deadly force bucket? That’s right: the circumstances are such that this particular bare handed attack is more likely than normal to cause death or serious bodily injury.
Expertise in martial arts shares exactly that characteristic. Why do people study martial arts, and here I mean specifically the martial arts that train the student to better strike blows against an attacker, and in the context of self=defense? (In the real-world case that opened this post, the specific martial art involved was Tae Kwon Do, which involves substantial punching and kicking technique.)
Within that context, people study martial arts precisely to try to make their blows faster, better targeted, more powerful—bottom line, to be more effective at neutralizing a threat than would the blows of an untrained person.
By this reasoning, the punches thrown by someone with genuine martial arts expertise are likely to be substantially more powerful than the punches thrown by someone lacking that expertise. Specifically, the expert’s punches are more likely to inflict deadly force—force likely to cause either death or serious bodily injury—than are the non-expert’s punches.
To put it another way, whereas a punch thrown by a non-expert will almost always be deemed to have been a non-deadly use of force, a punch thrown by an expert martial artist—or professional boxer, MMA fighter, etc.—can more readily be perceived as qualifying as a deadly use of force.
And this perception of the expert’s punch qualifying as a use of deadly force is particularly likely when the victim of that expert’s punch actually dies as a result.
Bottom line, if you have a degree of martial expertise that makes your thrown punches more likely to inflict death or serious bodily injury than would the punches of a non-expert, don’t be surprised if your expert punches are put in the deadly force bucket, especially if you’ve killed someone with them.The legal consequences to your claim of self-defense can be severe—the total loss of that legal defense of self-defense. Why? Because in order to justify a use of non-deadly defensive force you need merely be able to demonstrate that you were facing a greater-than-zero threat of some physical injury, however slight. In order to justify a use of deadly defensive force, however, you need to be able to demonstrate that you were facing a deadly force threat.
If your expert punch is deemed to have been deadly force in nature, and the threat you were defending yourself against was merely non-deadly in nature (e.g., a non-expert’s thrown punch), then you used disproportionate defensive force, you lose the element of Proportionality, and therefore you lose the legal defense of self-defense.
And if you lose the legal defense of self-defense, you’ve made yourself almost entirely vulnerable to being convicted of the underlying criminal charge—in the real-world case that opened this post, the charge of manslaughter.
Reasonableness
I’ve met many martial artists who object to this legal reality. Why should they be held to a higher standard legal standard for use-of-force ,just because they’ve invested the effort to gain self-defense expertise, than would someone who had not made such an effort. It’s not fair!
The element of Reasonableness is kind of an umbrella element that sits over all the others. Everything you perceive, decide, or do in self-defense must be the perception, decision, or action of a reasonable person. If it is not that of a reasonable person, you lose the element of Reasonableness, and you lose the legal defense of self-defense.
That element of Reasonableness is itself made up of two components, both having to do with the defender’s state of mind: subjective reasonableness, and objective reasonableness.
Subjective reasonableness has to do with the defender’s genuine, good faith belief in the need to act in self-defense as they did. If that subjective belief is lacking, the use of force could not have been reasonable.
But subjective reasonableness alone, however, is not sufficient. An unreasonable subjective belief in the need to act in self-defense is not enough to sustain the legal justification of self-defense. That subjective belief also has to be objectively reasonable.
Objective reasonableness asks whether a hypothetical reasonable & prudent person would have shared that same subjective belief. If so, the subjective belief is objectively reasonable. If not, then not.
Objective reasonableness is not an absolute standard, however, but is customized to fit the facts of the particular use-of-force event. It’s customized for the circumstances surrounding the use of force—day time versus night time, public place versus inside your home, etc. It’s customized to account for the stress of being in a fight—we’re not required to make perfect decisions in self-defense, we’re merely required to make reasonable decisions in self-defense.
The objective reasonableness is also customized in two other respects that tie into a defender having an expertise in martial arts. Specifically, objective reasonableness is customized for any special abilities or disabilities that the defendant may possess, and also customized for any specialized knowledge that the defendant may possess.
In terms of disabilities, it’s not hard to imagine that what might be a reasonable means of flight to avoid the need to use force in self-defense might differ between, say, a young, fit and healthy defender on the one hand, and an older, infirm, or disabled defender on the other hand. The disabled person’s reasonable options are simply not the same as those of the able person.
Conversely, in terms of abilities, a defender who has an exceptional fighting ability is likely to have more options available than would a defender with no particular expertise in fighting. And frankly it’s hard to not agree that these two classes of people should be treated differently. With genuine expertise comes responsibility, and the person possessing that expertise is going to be held to a higher legal standard than would someone lacking that expertise.
It’s also invariably the case that the defender with martial arts expertise is going to possess specialized knowledge that the non-expert lacks. That specialized knowledge could be as simple as having a well-informed understanding of the reasonable consequences of striking someone with an expert’s punch—for example, the increased probability that the victim of the strike might fall, strike their head on the ground, and die.
In short, the punch thrown by a martial arts expert might be objectively unreasonable, even if a punch thrown by a non-expert would have been objectively reasonable.
Once again, the legal consequence to your claim of self-defense can be severe—the total loss of that legal defense of self-defense. Why? Because in order for your use of defensive force to qualify as lawful self-defense it must be both subjectively and objectively reasonable. If it’s perceived as lacking either characteristic, it lacks the required element of Reasonableness, and you lose the legal defense of self-defense.
A prosecutor who can successfully argue that you did not actually have a subjective, good faith belief in the need to use your martial arts expertise as you did, or that your use of your martial arts expertise was objectively unreasonable precisely because of that expertise, can strip you of self-defense, and make you enormously vulnerable to conviction for the underlying criminal charge (in this case, manslaughter).
So, Should You NOT Learn Martial Arts?
Alternatively, I’m sometimes accused of at least implicitly suggesting that because gaining martial arts expertise might result in the imposition of a higher legal standard in a use-if-force case, that it would be better to not acquire that martial arts expertise.
That’s definitely not my position. The top priority has to be to win the physical fight. If you don’t do that, everything else becomes rather less important. Acquiring expertise in martial arts suitable to self-defense better enables you to win that physical fight—and here I’m speaking of martial arts broadly to include not just traditional Asian fighting arts but also BJJ, defensive knife use, defensive gun use, defensive OC spray use, verbal judo, etc.
Win. The. Fight.
That said, it also should not be surprising that the society generally and the law in particular will treat a person with a substantial degree of expertise in fighting than they will someone who lacks such expertise, and in particular where that expertise was used in such a manner as to cost another human being their life.
So, develop the expertise, win the fight … and expect to be held to a higher legal standard, if you kill someone using that expertise, than would someone lacking that expertise.
And conduct yourself accordingly.
Kirk
Steve
Mostly Harmless
I agree with this, and I think most people do. The million dollar question right now is whether this is a feature or a flaw. A lot of folks look at the true statement above and say, "Regardless of actual circumstance, this is exactly what happens. Someone says or does something and the cops call their friends, dogpile, and you get met with deadly force from multiple angles."
Here's a relevant question. What if you reasonably believe that the cops are going to kill you regardless? Heck, we see videos with regularity now of "bad apples" killing or beating folks who aren't resisting. To be clear, this isn't a referendum on cops. It is, however, a reality that some people believe when they encounter a cop that chances are probable he (usually) is a bad cop and their life is in as much danger as if they were being robbed at gun point.
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