Law & the Martial Arts
By
THE STATEMENTS BELOW ARE NOT TO BE TAKEN AS LEGAL
ADVICE IN
ANY SENSE OF THE WORD. LAWS MAY HAVE CHANGED SINCE I WAS GIVEN
THIS INFORMATION (IT IS AT LEAST TEN YEARS OLD). IF YOU HAVE ANY
QUESTIONS ABOUT THE LAW, SEE YOUR LAWYER!
There are many "old wives tales" that have been going around for years
concerning the average citizen's rights of self-defense. For example, one
states that you have to wait for someone to punch you before you can punch your
attacker, or it will not be considered as legitimate self-defense. This is
crap.
1. The law obligates you to retreat when you can.
But, if you cannot retreat and the threat is immediate,
I WOULD SLUG HIM FIRST. Ed Parker, the father of American Kenpo Karate, said,
"He who hesitates meditates from a prone position." It doesn't matter
who hit who first, if you made every attempt to get away but couldn't, or if
the situation was upon you too fast to do anything else. However, the use of
force is not justified in response to verbal provocation alone, such as insults
and profanity. There must be a perceived imminent physical threat. Realize
though, if you outweigh your opponent by one hundred pounds, it will be hard to
prove that you "perceived an imminent physical threat" if the
opponent was unarmed.
One misconception that takes people by surprise is that
if you get into a fight with someone, and you are in the right, and the other
guy was the drunken bully who attacked you, that you will not be arrested.
Bull! The police generally don't have any way of knowing what happened (except
for the lies they are being told by both parties), and they really don't care.
They are there to end the violence. Although they can and do make many judgment
calls, depending on the circumstances, generally it is not their job to pass
judgment on the situation. Cops are there to put an immediate end to violence
and restore the peace. Usually, everybody goes downtown and the courts decide
who is guilty and who is innocent. This falls under an important concept in
Texas law known as "affirmative defense". It was explained to me
something like this... Basically, if you do something which on the surface
appears to be illegal ("I was fighting!"), but you had a legitimate
reason to do it under those circumstances ("It was legitimate
self-defense!"), you will present an affirmative defense ("I did it,
but I had a good reason to do it!"), as opposed to an ordinary defense
("I didn't do it AT ALL. I wasn't even there, and I can PROVE it!")
Let's say that the bully attacks you. You defend
yourself (legitimately) and the police arrive. Surprise! Both the bully and YOU
get to go to the police station. YOU will probably be charged with assault and
spend six to twelve hours in jail until your bond is posted (and remember, the
fee you pay to the bondsman is non-refundable - that means $$$). You will have
to hire an attorney to repre$ent you in the proceeding$ with a portion of the
fee up front (more $$$). You will $pend countle$$ hour$ with your attorney
in$ide and out$ide of the courthou$e. It i$ only when you convince the Di$trict
Attorney, or the Grand Jury, or the Judge, or the Jury that your
"affirmative defen$e" is GOOD that you will again walk free. The fact
that you acted in "$elf defen$e" will not $ave you the grief, wa$ted
time, and money ($$$) involved in the legal proce$$. Hopefully, you can afford
to be innocent ($$$). Oh, by the way, did I mention that it might co$t you a
few buck$?
A student of mine, Henry Milan (now deceased), who was
also a student of my student Bobby “Chief” Brown (also deceased) got into a bar
fight with three (Yes, THREE) local bullies in New Mexico. Henry severely
injured two of them and accidentally killed one of them. He had simply been
sitting sipping a beer when he was blind-sided with a punch to the side of the
head. It was a pure open and shut case of self-defense and justifiable
manslaughter. A bar full of witnesses told the story supporting Henry. It still cost him over $60,000.
Basically, these types of common misconceptions about
self-defense are relatively harmless, but there are a few VERY dangerous
misconceptions that I have heard repeated MANY times that should be
straightened out once and for all.
Perhaps the most prevalent of these, and one that I
heard again at a crime-watch meeting, is that if you have to shoot somebody in
your yard, you should drag the dead body into your house so that it will look
like breaking and entering before you call the police. The people who have told
me this absurd piece of insanity over the years really believed it to be true.
I do not and cannot blame them. After all, to the average "smart as a box
of hammers" citizen, it sounds plausible -- it could be true. Fortunately,
it isn't true. What is worse is that they all claim that they heard it from a
police officer (or heard it from someone else who heard it from a police
officer). I doubt that they could have gotten this incredibly misinformed data
from a cop since the police are usually a lot more familiar with the law than
is the average citizen. One thing a cop does NOT want to do is place him or
herself (or the department) in a position of being sued for giving out bad
legal advice. I was told that it is a crime to give legal advice if you are not
an attorney. Therefore, since I am NOT an attorney, this document is only
reflecting what an Assistant District Attorney in Texas told to me.
A good, long-time friend of mine, and the Assistant
District Attorney for Collin County, at the time, laughed out loud when I asked
him about the validity of dragging a dead body into the house. He pointed out a
few common sense things to consider along with a few hard and cold facts about
your rights to self-defense IN THE STATE OF TEXAS:
2. You have the right to self-defense.
That means, if necessary, you can KILL ANYONE if you have a
REASONABLE BELIEF that such an action is THE ONLY POSSIBLE MEANS you have
available to prevent them from killing, or doing serious bodily harm, to YOU or
ANYONE ELSE whom you are attempting to protect. And, if this is the case, you
have the right to do this in your house, in your yard, on your roof, or in the
middle of a cathedral during Easter Mass. It DOESN'T MATTER where you are. You
either have the right to self-defense or you do NOT. And in THIS state YOU DO!
Notice, however, the words "THE ONLY POSSIBLE
MEANS..." That is important. If there is ANY other way to rectify the
situation, ANY WAY AT ALL, and you have the TIME to do it, you MUST do THAT
instead of taking a life... EVEN INSIDE YOUR OWN HOUSE! This means that if it
is YOUR life in danger, YOU ARE OBLIGATED TO RETREAT. RUN AWAY, or make a
REASONABLE ATTEMPT to escape, if you can do so. This does not mean that you are
being a coward. You do not have a choice in this matter. IT IS THE LAW!
However, it is generally recognized in court that YOUR HOME is your place of
sanctuary, and once you are in your home, you are IN MOST CASES no longer
obligated to retreat.
Incidentally, if the defender reasonably believes his
or her intervention is immediately necessary to protect a third person, he may
protect the third person from the threat without retreating. That makes sense.
How can you protect someone else if you are running away? However, even here,
if there is ANYTHING ELSE that you can do to prevent their being harmed, you
must do IT instead of taking a life, provided that there is the time and means
to do something else, and that using less than lethal force would not put you
or someone else in immediate danger of death or serious bodily injury.
3. Basically, a person cannot repel "ordinary
force" with "deadly force" even when
protecting another person.
To illustrate his points, my DA friend told me of
actual cases on the books, some of which he participated in prosecuting. One of
them is of a pregnant woman who was slapped by her boy friend in her house. She
went out to her car, got a gun out of the trunk, walked halfway back across the
yard and shot her boyfriend who was just then stepping out onto the porch. Her
defense attorney based his case on the claim that she was doing this to protect
the life of her unborn baby (thereby negating the requirement that she retreat
from the threat). The court did not buy it. They said that the most expedient
way to protect her baby's life would have been to simply get into the car and
drive away. She had the keys (or she couldn't have opened the trunk) and she
certainly had the time to get away (after all, she had the time to open her
trunk, rummage around for the gun, and walk halfway back across the yard). She
served time for manslaughter.
Another interesting case: Several years ago a
25-year-old civilian woman took a gun (which she was illegally carrying) out of
her purse. She walked up behind a man and cold-bloodedly shot the man to death
on the streets of downtown Dallas, on a weekday, in the midst of hundreds of
noonday pedestrians. SHE WAS FOUND NOT GUILTY. She had recognized the man.
Years earlier he had broken into her apartment, on several different occasions,
and beat and raped her. The police found the man, she testified in court, and
the man was sent to prison. He was heard to say to her, as he was led out of
court, "When I get out of prison, I am going to find you and get you,
bitch. When I see you, I am going to kill you on the spot." She had a
REASONABLE BELIEF that he had the means and the motivation to carry out the
threat. When she heard that he had been released from prison, she started
carrying a gun with her for protection. She saw him before he saw her. The
courts acknowledged that her actions were REASONABLE in THESE UNUSUAL
CIRCUMSTANCES, because it was the only APPARENT means she had to prevent him
from carrying out his threat. She was not even charged for illegally carrying
the gun.
According to my DA friend, the concept goes something
like this: If your beliefs or actions are the SAME as that of the AVERAGE,
morally straight, prudent citizen, IF THAT CITIZEN WERE IN THE SAME
CIRCUMSTANCES, then that action or belief is deemed to be REASONABLE.
4. HOWEVER, YOU CAN ONLY USE THE AMOUNT OF FORCE
NECESSARY
TO STOP THE THREAT.
If a person points a gun at you with the clear
intention that they are going to shoot you, and you pull out a gun and shoot
them first, and they fall to the pavement injured and incapable of continuing
their threat (or even if they die at this point), YOU ARE PROBABLY WITHIN YOUR
RIGHTS. If, however, you can then clearly SEE that they are incapable of
continuing their attack and are no longer a threat to you, BUT, you proceed to
walk over to them and put another bullet into them, YOU BECAME THE ATTACKER,
and if the intruder now dies, YOU ARE A MURDERER IN THE EYES OF THE LAW AND YOU
WILL PROBABLY BE PROSECUTED TO THE FULL EXTENT OF THE LAW.
Note: A defender will be held liable for his or her use of deadly force,
even in defense of attack by
deadly force, if the defender does not
reasonably believe the degree of deadly force was
immediately necessary to protect him or
herself. You must never "over do" your defense.
It becomes plain to see that there are limitations on
the use of force in self-defense. It is possible that in the face of a skilled
defender, an attacker may abandon his attack, or clearly communicate his
intention of doing so. If the attacker abandons the attack, the right of
self-defense on the part of the defender ceases. However, leaving a fight to
gain a weapon, or other advantage, is not considered "abandonment" in
the legal sense, and the right of self-defense continues.
An interesting side note: A man once emptied a full
clip of bullets into an armed person who had just broken into his home in the
middle of the night. The police asked the man why he shot the intruder so many
times. The man said, "Because that is all of the bullets I had in the gun."
That was the correct answer. No
charges were brought against the homeowner. Firing all of the bullets WITHOUT
HESITATION was considered to be a single response to the threat. BUT, if he had
stopped firing in the middle of the clip, recognized the fact that the assailant
was no longer a threat, and then starting firing again, he would have been in
SERIOUS trouble. At this very moment, there is a man serving 30 years for
manslaughter NOT because he shot his intruder six times with a 25 caliber gun,
instantly paralyzing the man from the neck down, but because he THEN walked
across the room, after the man was no longer a physical threat, got a loaded
shot gun, walked back across the room, and blew the intruders head off.
Now, let's get back to dragging a dead body into your
house.
Gunshots are fired at night in your neighborhood. The
neighbors look out of their windows, or step out on their front porches, to see
what happened (I know it sounds stupid, but believe me. Almost ALL of them do it.)
. What do they see? YOU DRAGGING A DEAD BODY ACROSS YOUR YARD. This does not
look good for you, and the judge will not be amused. Besides, you probably will
not feel much like dragging a dead body around since you will already be
occupied with retching in the bushes, shaking and sobbing uncontrollably, and
soiling your underwear. All of these are VERY COMMON reactions to having taken
someone's life -- among decent folks. If you did manage to do something as
stupid as drag a dead body into your house, some of the questions that will be
fired at you before the grand jury might be:
"If
you were within your rights to kill him because he was an immediate threat to
you and your family's life, as you claim, then WHY DID YOU FEEL YOU HAD TO
ALTER THE CRIME SCENE AND ALTER THE EVIDENCE? Did you think that the police
were so stupid that they would never notice that trail of bent, bloodstained
grass across your yard where you dragged the body? ...Or the grass stains on
the body itself? ...Or your spent cartridge casings lying out in the middle of
your lawn? ...Or the fact that half of his brain is laying in a pool on your
driveway? We don't even need the 40 neighbors who called the police station
saying that they heard shots ring out and then saw YOU, in your underwear,
huffing and puffing, dragging a dead body around the neighborhood. Even the
WORST trained crime scene investigator would have to be both blind AND
unconscious not to see what happened here. Well, WHAT HAVE YOU GOT TO SAY FOR
YOURSELF?"
God forbid that you should ever have to shoot somebody,
but if it happens, LEAVE THE PERSON THERE. Touch nothing. DO NOT RUN AWAY. DO
NOT LIE TO THE POLICE. Tell exactly what happened, or WAIT FOR YOUR LAWYER
(your choice).
5. Ordinarily you can only use deadly force to
protect life and limb, NOT
to protect your property.
However, the laws in Texas are tricky. You CAN use force
that you reasonably believe is necessary to prevent or terminate the other
person's trespass or unlawful interference with your property under certain
circumstances.
Does that include the use of DEADLY FORCE? YES! But
ONLY under the following circumstances:
ØUse of ORDINARY force would cause substantial risk of
death or serious injury TO THE DEFENDER ... or... Deadly force is the ONLY
means by which the property can be protected... AND…
ØThe deadly force is IMMEDIATELY necessary to prevent
the imminent commission of ARSON, BURGLARY, ROBBERY, THEFT AT NIGHT,
DESTRUCTION AT NIGHT, or to prevent the immediate escape of the offender with
the property.
BOTH of
the above stated conditions must exist.
Law is not simple. If it were, everybody would be a
lawyer... instead of the way it is NOW, where everybody just THINKS he is a
lawyer. Once again, the concepts expressed in this document are not to be taken
as legal advice, and are not being presented as such. They are only my
interpretation of what was expressed to me by my friend, the assistant district
attorney. He told me much more than this. In fact, he was one of my regular
martial arts students for several years, and we discussed the fine points of
Texas State law where it concerns the rights of self-defense for hours and
hours, almost every week, over a period of several years. There is MUCH more to
it than what can be expressed in this one document. IF YOU HAVE ANY QUESTIONS
ABOUT THE LAW, SEE YOUR LAWYER!
NOW SPECIFICALLY FOR THE MARTIAL ARTS SCHOOL!
Traditionally, when a student signs up for lessons, and is accepted as a
student by a martial arts teacher, it is assumed that the student could, and
probably will sustain at least some minor injuries during their course of
study. This is usually accepted as
necessary due to the nature of the activity. Many schools have their students,
or responsible parties, sign wavers
against holding the school, and instructors, liable for injuries that may be
sustained by the students while on the property of the school, and/or during
the course of instruction and practice.
Now for the shocking news (shocking to martial arts
instructors, that is). In the state of
Texas, these wavers are completely worthless. In Texas, and possibly
other states, you cannot sign away your rights in that fashion. You could sign
a stack of wavers, and if the instructor, or another student, pops you in the
nose, against your will, you can still sue the crap out of them. The student
does not have to put up with brutality from some bullying fellow student, or
bullying instructor. In fact, the student does not have to put up with ANYTHING
that they do not want to do, or any activity they do not want to engage in, on
a moment-by-moment basis. The wavers are just window dressing.
To be covered, the instructors must understand that
they must make sure that the students, or their responsible parties, understand
the possible consequences of any activity they may engage in, and clearly give
the student the option of NOT participating in that particular activity. Also,
every reasonable effort must be made to ensure the safety of the students
during the course of learning their art. For adult students, it may be
advisable to make sure that they understand the nature of what they are
engaging in, what the likely or possible consequences are for engaging in that
activity, and make sure that they understand that they ALWAYS have the option
of “sitting out” on any given activity, if they do not feel comfortable about
engaging in that activity, without repercussion.
THE ABOVE STATEMENTS ARE NOT TO BE TAKEN AS LEGAL
ADVICE IN ANY SENSE OF THE WORD. LAWS MAY HAVE CHANGED SINCE I WAS GIVEN THIS
INFORMATION (IT IS AT LEAST TEN YEARS OLD). IF YOU HAVE ANY QUESTIONS ABOUT THE
LAW, SEE YOUR LAWYER!
