Toning Down The Techniques
- Thread starter MJS
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Many of these issues are not black letter law; they come from the common law. You may not be able to find a law about defending yourself in the code books. You may find something in the Rules of the court, but that's not guaranteed.
Self defense is not a law you point to and say "this code section says I was OK" as a general rule; it's a claim or defense of justification against a criminal charge or civil tort. I'm going to stick with the criminal side because that's what I'm more familiar with. With a claim of self defense, the defendant is essentially saying that "yes, I committed an assault/malicious wounding/homicide -- but I had a good reason, 'cause he attacked me." In weighing this claim, the finder of fact (judge or jury) will assess several different factors, including the reasonableness of the harm you inflicted in comparison to the attack. Generally, to justify lethal force (that force which can be reasonably expected to cause death or grievous bodily injury), you must be in expectation of the same. To justify lesser force, the general rule is that it must be appropriate to the attack; you can't club someone attacking you with a feather pillow.
This assessment is not a rigorous "tit-for-tat" comparison; neither an ordinary citizen nor a police officer is required to use EXACTLY the same force or make EXACTLY the right choice in techniques. The demand is only that it, in the eyes of a reasonable person, be more or less on the same scale. Which returns us to the original topic... Within the scope of the various Kenpo self defense techniques, you have a continuum. You don't have to take the technique all the way to the end; you can stop it anywhere within the set where you've accomplished your goal. Even though the technique carries through to an eye gouge and neck break, you don't have to go all the way to the end. You may also wish to review this thread: Are You Supposed To Finish Techniques?
Self defense is not a law you point to and say "this code section says I was OK" as a general rule; it's a claim or defense of justification against a criminal charge or civil tort. I'm going to stick with the criminal side because that's what I'm more familiar with. With a claim of self defense, the defendant is essentially saying that "yes, I committed an assault/malicious wounding/homicide -- but I had a good reason, 'cause he attacked me." In weighing this claim, the finder of fact (judge or jury) will assess several different factors, including the reasonableness of the harm you inflicted in comparison to the attack. Generally, to justify lethal force (that force which can be reasonably expected to cause death or grievous bodily injury), you must be in expectation of the same. To justify lesser force, the general rule is that it must be appropriate to the attack; you can't club someone attacking you with a feather pillow.
This assessment is not a rigorous "tit-for-tat" comparison; neither an ordinary citizen nor a police officer is required to use EXACTLY the same force or make EXACTLY the right choice in techniques. The demand is only that it, in the eyes of a reasonable person, be more or less on the same scale. Which returns us to the original topic... Within the scope of the various Kenpo self defense techniques, you have a continuum. You don't have to take the technique all the way to the end; you can stop it anywhere within the set where you've accomplished your goal. Even though the technique carries through to an eye gouge and neck break, you don't have to go all the way to the end. You may also wish to review this thread: Are You Supposed To Finish Techniques?
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To be charged with a crime, it must be encoded in law. There is no such thing as being arrested for responding with too much force in self defense unless there is a specific law that defines what 'too much force' is and is not. The law itself may be mushy ('reasonable man' standard, etc), but it must exist. You cannot be prosecuted for a law that does not exist.
And self-defense statutes generally exist. Both 'hearth and home' statutes and personal self-defense statutes. This is because these are commonly encountered, and homeowners and the NRA and other groups constantly push to have them amended this way or that.
What is not likely to be encoded in law is what the exact meaning of 'reasonable' or 'honestly held belief' might be. Those are open to interpretation by courts, and generally, case law is used with regard to establishing precedent, although courts can rule on a case based on its own merits and thus establish precedent for similar cases in that jurisdiction.
Two things:
First, I keep agreeing with the statement that if you are NOT in fear of your life, you are NOT entitled to use lethal force in self-defense (in general). So I agree with you. You can't club someone who attacks you with a feather pillow.
Second, the test you mentioned is not the 'level of force used' but rather whether or not the test for self-defense was met, and if so, whether the 'reasonably in fear of one's life' was met. The 'level of force' consideration would not be part of the deliberations unless the test for self-defense was met, but the test for 'in fear of one's life' was not.
Again, that is true ONLY if the self-defense test is met, but the 'in fear for life' test is not.
If a person is authorized to defend themselves, and they are reasonably in fear of their lives, the choice they make with regard to what technique to use is of course entirely up to them. However, in general terms, if a person is authorized to defend themselves with deadly force, the selection they make is not going to be reviewed by investigators with regard to 'level of force'.
To sum up - with regard to self-defense where deadly force is authorized - the choice of response level is up to the victim. The victim's use of force is not likely to be questioned, but rather whether the victim was 'reasonably in fear of their life'.
KenpoDave
2nd Black Belt
You seemed to take issue with my own similar opinions when you responded to my first post. Thanks for clarifying.
My apologies if I was unclear. It was never my intent! I kind of knocked together this diagram. Based on Michigan law (could be different in different states), this is the situation. In the case where self-defense is permitted, but deadly force is not permitted, then absolutely the 'level of force' used in response would be questioned. In the case where self-defense is permitted and deadly force is permitted, then not.
From a personal standpoint, I would not intentionally try to use a 'less-lethal' response if I was in fear of my life. I would use the technique I thought most likely to end the fight immediately and preserve my own life. I do not feel I have a moral obligation to do the least amount of harm possible to the attacker, and I certainly would not have a legal obligation to do so. But if people feel a moral or ethical need to 'tone down' their response in cases where deadly force is permitted, then so be it and good luck to them.
The Kentucky statutes are online, but some of them are inexplicably missing:
http://www.lrc.ky.gov/KRS/503-00/CHAPTER.HTM
Here is the bit about self-defense, though. Pretty standard stuff:
http://www.lrc.ky.gov/KRS/503-00/050.PDF
With regard to the link you posted, that's an interesting case. However, the case appears to be hinging on the 'duty to retreat' that Kentucky added to the basic self-defense law; I guess recently. Furthermore, the DA seems to be arguing:
So not the 'level' of response, but that the 'right to self-defense' ended when the threat ended - and the DA feels that when the driver was shot, the danger was ended. Remember, the defendant felt that the danger was that he was going to be run over. If the Jeep could no longer run him over because the driver was shot and it stopped, it would not be reasonable to believe that it posed a life-endangering threat.
And in the end, it appears the defendant (the victim in the case) was acquitted.
punisher73
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If you are going to debate something with somebody, PLEASE read what was actually said.
I did NOT mix up the two issues. I seperated them quite clearly for when you are actually in fear of your life and just using force because some guy gets in your face at the bar. I did not leave anything out, I SAID that it is up to the prosecutor to prove their case. Here is the law.
http://legislature.mi.gov/doc.aspx?mcl-780-961 and here is the important part.
Again, you are charged with the crime of assault (corresponding to the injuries you caused) and you have to prove that what you did was within the law. Just as I stated before. You are correct, I did not cite the specific law the first time, but quoted from my police procedural because AGAIN, I was talking about non-deadly force assaults.
I am NOT talking about a deadly force assualt and you protecting yourself, nor did I EVER say otherwise. The original topic was on toning down techniques and having appropriate levels of response (ie: can't crush their throat because they put their hand on my shoudler alone). My comments are in regards to Joe Citizen having some guy outside a bar come up to him and then get in his face and he has to protect himself.
I am not wrong, you just did not read my post on what it was addressing.
Scenario 1: If Joe Citizen does not fear being assaulted, he has no right to 'protect himself' at all.
Scenario 2: If he does fear being assaulted, but does not fear being killed, then he has an affirmative defense to defend himself with force other than deadly force.
Scenario 3: If he does fear being assaulted and he 'reasonably and honestly' fears for his life, then he has an affirmative defense for defending himself with deadly force.
I cannot imagine how scenario 2 would ever happen to me. Can you picture such a thing? I think maybe if Joe goes out looking for fights, maybe. I don't, so if someone attacks me, I have to presume they're trying to kill me. For a guy who does not hang around in bars or engage in street fights, that's the only reasonable response.
Doc
Senior Master
punisher73
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Thank you for clarifying your response, I understand your intent much better. Working in LE I do see #2 alot.
Joe Citizen is at the local watering hole or bowling alley having a good time with his friends. Larry Lowlife is having no luck in scoring a babe and is going home alone again. Larry's next best thing in life is scrapping so he decides to take it out on Joe Citizen who seems to be having too much fun. Larry approaches Joe and accuses him of eyeballin him and keeps instigating it. Joe apologizes for any slight that may have occurred and even offers to buy him a beer to make amends. Larry will have none of this and keeps yelling and threatening Joe. Joe again states that he wants no trouble and has moved back some to appear non-threatening. Larry suddenly decides talk is over and steps forward and draws his arm back to throw the punch. Joe has been training and has been trying to de-escalate this situation, but now knows through his training and experience that an assault is imminent and he has to protect himself.
Another common scenario is a fender-bender or parking lot incident. You are minding your own business and get into an accident because somebody pulled out in front of you and didn't have time to react (or maybe it is your fault). Other person just wants to be mad and keeps escalating even though you are trying to de-escalate it.
These are the types of things I train my adult students for. I agree that if you hang out in a lot of seedy bars you will increase your chances of violence, but it can still happen to everyday people by being in the wrong place.
Thanks, I appreciate the response very much! I get your point now. I used to work in LE, and from my point of view, everybody who got into a bar scrap was generally 'mutual combat'. I guess I can see how it could happen the way you described, that makes sense. I just haven't seen it myself, but I get your point. :asian:
SL4Drew
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For any dweebs (like me), here is an interesting article discussing the application of the laws of self-defense in general and their impact of somewhat predictable cognitive failures at the time of the encounter. http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/SimonsK071007REV1a.pdf
I found interesting because although I have seen similar papers and studies with regard to the use of force by a law enforcement officer or general cognitive failures of the brain under stress, this paper was the first I've seen that addresses some of those same things from a legal perspective, in the context of the law of self-defense.
This is the abstract:
The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g. in operating a motor vehicle, that he deserves punishment? A third version of the reasonable person criterion, which has received much less attention, asks what degree of control a reasonable person would have exercised. Many criminal acts occur in highly emotional, stressful, or emergency situations, situations in which it is often both unrealistic and unfair to expect the actor to formulate beliefs about all of the facts relevant to the legality or justifiability of his conduct. A "reasonable degree of self-control" criterion is sometimes the best criterion for embracing these contextual factors.
In self-defense, for example, it is conventional to ask whether the actor believes, and whether a reasonable person would believe, each of the following facts: (a) an aggressor was threatening him with harm, (b) that harm would be of a particular level of gravity, (c) his use of force in response would prevent that harm, (d) the level of responsive force he expects to employ would be of a similar level of gravity, (e) if the force was not used, the threatened harm would occur immediately, and (f) no nonviolent or less forceful alternatives were available whereby the threat could be avoided. United States law typically requires an affirmative answer to each of these questions. Yet in many cases, an actor threatened with harm will actually have no beliefs at all about most of these matters. It would be unfair to deny a full defense to all such actors. At the same time, we should still hold such an actor to a normative standard of justifiable behavior. Specifically, this essay suggests that we reformulate the reasonableness criterion and require this type of actor to exercise a reasonable degree of self-control in response to a threat of force.
I found interesting because although I have seen similar papers and studies with regard to the use of force by a law enforcement officer or general cognitive failures of the brain under stress, this paper was the first I've seen that addresses some of those same things from a legal perspective, in the context of the law of self-defense.
This is the abstract:
The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g. in operating a motor vehicle, that he deserves punishment? A third version of the reasonable person criterion, which has received much less attention, asks what degree of control a reasonable person would have exercised. Many criminal acts occur in highly emotional, stressful, or emergency situations, situations in which it is often both unrealistic and unfair to expect the actor to formulate beliefs about all of the facts relevant to the legality or justifiability of his conduct. A "reasonable degree of self-control" criterion is sometimes the best criterion for embracing these contextual factors.
In self-defense, for example, it is conventional to ask whether the actor believes, and whether a reasonable person would believe, each of the following facts: (a) an aggressor was threatening him with harm, (b) that harm would be of a particular level of gravity, (c) his use of force in response would prevent that harm, (d) the level of responsive force he expects to employ would be of a similar level of gravity, (e) if the force was not used, the threatened harm would occur immediately, and (f) no nonviolent or less forceful alternatives were available whereby the threat could be avoided. United States law typically requires an affirmative answer to each of these questions. Yet in many cases, an actor threatened with harm will actually have no beliefs at all about most of these matters. It would be unfair to deny a full defense to all such actors. At the same time, we should still hold such an actor to a normative standard of justifiable behavior. Specifically, this essay suggests that we reformulate the reasonableness criterion and require this type of actor to exercise a reasonable degree of self-control in response to a threat of force.
OP
Doc
Senior Master
Just wanted to bump this back up. Looking forward to your thoughts Doc.
I teach students body mechanics and reasonable responses to assaults. Students who feel a personal need through circumstance to "maim" do not need my approval or instruction to do so. Poking someone in the eye is something people have when they walk through the door. Ripping, slashing, scratching, biting, stomping, etc are all things that humans will resort to when threatened significantly enough. Put your hand on the infant child of an unskilled mother and see what happens.
It takes more skill not to maim then it does to do so. I was always taught ideally, the more skill you had the less damage you need to inflict to end a confrontation, but that doesn't mean if you "need" to, tat you're unskilled. What it means is, if that's all you have sooner or later you are going to utilize more force than is necessary, because you don't have skill to do otherwise.
"If all you have in your tool kit is a hammer, every problem you face will always look like a nail." - Ed Parker Sr.
OP
- Thread Starter
- #77
Of course, while these skills are a natural, I would say that they'd be twice as effective if they were polished. How many times have we seen a cardio kickboxing class, where the people in the class, are swinging and kicking away at bags, with little to no form? I've seen it many times. Now, fine tune those strikes, and I'd be more willing to say they'd be twice as effective.
As I said, I don't think that those things are the answer in every situation, but I'm not going to throw them out either and IMO, I don't think anyone else should.
And this is why, personally, I think that its important to have all our bases covered. Be able to determine what we need to do, and base our response accordingly.
Doc
Senior Master
While we essentially agree sir on the base premise, I disagree that there is a strong relationship between "polishing" an uninstinctive roundhouse kick skill, and the natural propensity to use instinctive defense mechanisms under duress, thus my "untrained" reference to a mother protecting her child.
The mechanisms to mechanically refine specific martial function are extremely sophisticated in most cases. The slash, poke, smash, scratch, bite, spit, and stomp of most modern arts are not.
That is why they are "emphasized" in short duration self-defense courses of a few hours. They are primarily instinctive, and are relatively easy to reinforce over much more difficult skills to acquire.
It is also, by design, why the methodology was chosen for commercial self defense teaching. Relatively speaking - it's easy. It is also why it is "de-emphasized" in more difficult and passive disciplines like Aikido and judo, but take note it is even relatively absent in the more aggressive Jiujitsu, Hapkido, Karate-do arts, etc. as well. They are a result of "stripping down" traditional material for quick effectiveness, over labor and knowledge intensive longer term training.
While its effectiveness has no argument, its ethical applications bare strong scrutiny, and its proponent's students must be reminded that it is they alone who must embrace the consequences of their actions should their use be misplaced in a circumstance. For it is they who will bare the brunt of societies wrath for its social misuse monetarily, emotionally, and possibly even physically. As a public law enforcement officer the bulk of my adult life, I truly understand both sides of the argument, but have also have had a personal hand in incarcerating more than one good guy/gal "defending" themselves inappropriately.
While for some including its teachers, it's a wild fantasy fueled by many who have never had an actually life and death encounter, who dream of enacting personal justice on those who would violate them.
While the position is noble, and I stand in that line myself, personal justice and redemption must be tempered by ethical restraint, and hopefully bolstered by the possession of sufficient skill and ability to moderate the response appropriately to the circumstance. If one does not have that ability, than in our modern society, their training is deficient until they can sir.
While many who have never been there will cavalierly spout slogans of "judged by 12 over carried by 6," it is not so cavalier when you factor your own freedom, and the personal wealth of you and your family into the equation. Maybe that's why so many young dumb males gravitate to some arts. They have nothing to lose but their own freedom, while the more mature stop and think of the grave consequences.
Stix
.
Regarding training (from my SL4 perspective), if I train every day to gouge someone's eyes out, then if someone takes a swing at me I will have to override that muscle memory to employ reasonable force. I, of course, don't assume that every attack will be an attempt to kill me, so I don't want my automatic response to be maiming or killing actions. If the circumstances dictate escalation, then I will adjust accordingly, and do whatever it takes.
KenpoDave
2nd Black Belt
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