This is the final post in an eight-part series on the necessary components of a successful plea of “self-defense” in the case where a person has had to employ lethal force to protect himself or others* from harm. This “self-defense” type of legal defense normally comes up in cases when a person uses a weapon, particularly a firearm, to kill or injure another person, but because martial artists develop skills in using their bodies and/or improvised weapons to cause bodily harm to other people, it can easily apply to what we do as well. In any case, I consider familiarity with the law in one’s own nation and locality to be essential to a martial artist’s training and the development of his or her personal “use of force doctrine.”
* We haven’t covered the law as it applies to protecting others. In general, you are permitted to use lethal force in protecting a third person if that third person would have been justified in using lethal force in their own defense, or, to look at it another way, if you would have been justified if you had been in their circumstances.
Suppose you had an encounter with another person, outside of your home or workplace, that started as, or escalated to, a violent physical confrontation and resulted in you using your martial arts training to cause substantial injury to the person. Will you be convicted of battery (misdemeanor or felony), or even charged or arrested? Assuming you are being judged fairly by the legal system, this will depend on whether or not your actions met a set of five requirements. Those five requirements, or what we’ve been calling the five elements of a successful claim of “self-defense,” are what we have covered in this series of posts. In so doing we have drawn from Andrew Branca’s book “The Law of Self Defense” (3rd edition).
- Innocence — You must not have instigated the confrontation or caused it to escalate to physical force, or from non-lethal to lethal force. If the confrontation had started physical and then had de-escalated, but you re-ignited it with your words or actions, then you would not be considered innocent.
- Imminence — The threat to you must have been immediate, not at some future time. The person threatening you must have the ability to harm you, e.g., with a weapon, superiority in size and strength or numbers, or positioning. They must have the opportunity, at a close enough range and with no physical barriers preventing them. And you must be in jeopardy, that is, they must have the intent to harm you.
- Proportionality — The degree of force you use, and the duration of its use, must be proportional to the threat of force that you believe you face. If and only if you believe that deadly force is being used, or about to be used, towards you, are you allowed to use deadly force against the attacker. Deadly force used against a non-deadly threat is considered “excessive.” in regard to duration, if you feared or experienced deadly force against you during a conflict, and actions that you took, or other circumstances, caused that threat of force to be neutralized, your justification for deadly force would no longer exist.
- Avoidance — If you felt threatened with possible deadly force,you must have attempted to retreat if there was a safe means to do so. (If you had been protecting a third person, retreat must also been safely possible for that person.) We saw that Pennsylvania is a so-called “Stand your ground” state, which provides an exception to this legal “duty to retreat,” but we advised that the prudent martial artist will disregard that provision and make it their policy to always attempt retreat before resorting to lethal force.
- Reasonableness — This can be thought of as an umbrella over the other four: all of your judgements and actions taken in an act of self-defense must have been reasonable. That is, you have to be able to demonstrate that a hypothetical “reasonable person” would have responded the same was you did, if he or she were “in your shoes.” A reasonable person, in the same circumstances, and possessing your relevant physical characteristics and specialized knowledge, would have also used lethal force.
We also looked at the language of Pennsylvania law as it applies to “self defense.” Most states define the concepts in the same or similar ways. Lethal force is that which, “…under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.” Serious bodily injury is that which “…creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” And a person’s use of lethal force may be justified if he or she “…believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat.”
So we have covered a lot of legal ground, but I believe this is knowledge that the responsible martial artist should “arm” themselves with. I’ll let Genwa Nakasone provide the tl;dr (too long;didn’t read) for those who have trouble with reading long-winded blog posts. This is from his explication of Gichin Funakoshi’s 20 principles of karate, found in “The Twenty Guiding Principles of Karate” (1938):
“…[I]n the event you are accosted by a thug or challenged by an aggressive troublemaker, you should try to avoid striking a mortal blow. You must hold as an essential principle that avoidance of injury to others with your fists and feet is your first concern. Even in an emergency one must strive to avoid striking a fatal blow…On the other hand, when circumstances beyond control cause practitioners to have recourse to action, they must respond wholeheartedly and without concern for life or limb, allowing their martial prowess to shine to the best of their ability.”
Go to part 1 in the series: Introduction