Legal implications

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Self-defense is not a right; it is a legal privilege which varies between jurisdictions. The authors are not lawyers, and this article is not intended to be, and does not constitute specific legal advice. Please consult your lawyer to find the specific details for your area. The legal aspects of the martial arts are constantly evolving, with each legislative session and with each appellate court opinion.

The privilege of self-defense can only be invoked if all four of the following criteria are met:

  1. You face an unprovoked attack,
  2. which presents and imminent threat of injury or death,
  3. and you responded with an objectively reasonable degree of force,
  4. to prevent an objectively reasonable apprehension of injury or death.

Failure to meet these four criteria is generally unlawful. However, this “imperfect self-defense” can be cited to mitigate the resulting penalties.

There are other factors which you must consider before invoking the privilege of self-defense:

  • Using deadly force is prohibited, unless you are confronted with deadly force (e.g., they draw a weapon).
  • You cannot respond with excessive force. You can only hurt your attacker to the degree necessary to make them stop their attack.
  • Some jurisdictions impose a Duty to Warn on martial artists, requiring them to inform their assailants of their skills, unless this would provoke the assailant further.
  • Some jurisdictions impose a Duty to Retreat in deadly force situations.
  • Martial artists may have a legitimate and unique claim to a preemptive anticipatory attack due to their skill at identifying assault attempts.
  • Beware that assailants may illegally claim that your martial arts training gives them reason to escalate force.

The fear of legal consequences should not keep you doing what you must to survive a violent encounter -- because if you don't survive, then everything else is meaningless. However, you should be mindful that every fight carries a risk of injuring, maiming or killing someone -- even if that was not your intent. If this happens, you may be seen as an aggressor in the eyes of the law, who could face jail time and/or financial crippling civil lawsuits.

You cannot engage in violence without consequences. These consequences are usually terrible and life-altering. Ask yourself, “What am I fighting over?” Is it worth being confined to a wheelchair? Is it worth wasting years of your life in jail? Is it worth selling everything to pay legal settlements? The answer is usually “no,” which is why most martial artists strive to preemptively avoid conflict.

Karate ni Sente Nashi

Gichin Funakoshi’s favorite laconic maxim, “Karate ni sente nashi” is frequently translated as “There is no first strike in karate,” and commonly taken to mean that a karateka never throws the first attack in a confrontation. This precept is conditioned into each student’s muscle memory by beginning every kata with a block.

A more literal interpretation is “there is no first initiative in karate.” That is, do not instigate. The cornerstone of any self-defense argument is innocence; you must be entirely without fault. If you escalate an avoidable situation to any degree, you then become partially responsible -- and liable -- for the outcome. Karate is for emergency use only, and it is not a go-to solution for all of life’s problems.

Additionally, “karate ni sente nashi” is a reminder to prevent your assailant from attacking first. A karateka should be aware of their assailant’s bad intentions, so you can counterattack so quickly that it seems like a simultaneous clash.

Assault and Battery

Many states define “Simple Assault” as acting in a way which places another person in imminent danger of physical harm. Please note that assault does not require physical contact; entering a karate stance to express your violent intentions constitutes an assault. Simple assault is a misdemeanor. Other states do require a physical connection, and thus consider assault and battery to be one crime.

“Aggravated Assault” is “an attempt to cause serious bodily injury to another or to cause serious bodily injury purposely, knowingly, or recklessly, with an extreme indifference to the value of human life.” Aggravated assault is a felony. Examples of aggravated assault include:

  • Assault committed with a deadly weapon or a dangerous object (e.g., making death threats while brandishing a weapon).
  • Assault with the intent to commit another felony (e.g., robbery, rape, etc.).
  • Assault which results in a serious physical injury (i.e., one which requires hospitalization or surgery, and/or results in a disability and/or disfigurement)
  • Assault when the assailant conceals their identity.
  • Assault against members of protected classes (i.e., police officers, healthcare providers, social workers, the developmentally disabled, or the elderly).

Please note that simple assaults could easily escalate into aggravated assaults in the heat of the moment.

“Battery” is an unlawful application of force to another person’s body, resulting in either bodily injury or an offensive touching. By definition, battery requires physical contact. Battery can be either a misdemeanor or a felony, depending on the circumstances and the severity of the resulting injuries.

The Doctrine of Competing Harms

The Privilege of Self-defense is never straightforward because necessity exists in a legal grey area. The Doctrine of Competing Harms allows people in dangerous situations to violate laws when their compliance poses a greater danger. (e.g., it is illegal for drivers to swerve into the left lane across a double-yellow line; but it is acceptable if they’re avoiding a falling tree.) To invoke the Doctrine of Competing Harms, you must prove that:

  • The harm you sought to avoid was worse than the punishment for breaking the law.
  • You was no reasonable alternative to avoid that harm, except by breaking the law.
  • You ceased to break the law as soon as the danger passed.
  • You did not create the danger which you sought to avoid.

Reasonable Apprehension

The privilege of self-defense is granted only when you are apprehensive about a reasonable fear of assault. Please note that apprehension is not fear. You can invoke self-defense against an assailant even if you are not afraid of them, or their attempts to harm you. You only need to reasonably believe that their assault will contact your body.

Reasonable Apprehension ties into the notion of excessive force. You must be apprehensive and fearful about incurring serious bodily harm and/or death to justify using deadly force in self-defense. You cannot use deadly force unless you fear that deadly force will be used against you. However, you do not need to fear your life to justify using lesser degrees of force in self-defense.

In general, you can claim apprehension if the assailant has all of the following:

  • Ability: The attacker has the physical and practical ability to injure, maim, cripple, or kill you.
  • Opportunity: Just because an attacker can harm you, doesn't mean that they will. Therefore, you must demonstrate that nothing is stopping them from causing harm.
  • Jeopardy: You must be in a truly dangerous or life-threatening situation, rather than an uncomfortable or potentially-dangerous situation.
    • Someone who shouts “I’ll kill you!” as they walk away is not putting you in jeopardy.
    • Someone who shouts “I love you!” as they lunge at you with a knife is putting you in jeopardy.

Be mindful that martial artists are trained to remain calm in dangerous situations, and this aspect of your training could undercut your claim of apprehension and hinder your legal defense. Martial artists are implied to need a greater apprehension before they can legally claim self-defense.

Some jurisdictions have a Doctrine of Anticipatory Attack, which allows pre-emptive striking privileges when you reasonably know that an attack is imminent. While this is usually not “reasonable” for the average person, it may be considered reasonable for a martial artist, who is presumably trained to pick up on subtle cues which indicate immanent attacks. Not all jurisdictions allow this extra privilege; please contact your lawyer for details. Like poker players, inexperienced fighters have “tells,” which a discerning, trained fighter will notice. The average person does not notice, does not try to notice, or misses these tells by paying attention to the wrong things. Attacks are usually preceded by one or more of the following:

  1. Aggressive verbal behavior. The assailant is trying to anger you into throwing the first punch. This way, you become the assailant, and they can claim self-defense. Verbal aggression usually takes the form of:
    • Insulting, to force you into redeeming yourself.
    • Baiting or attempting to provoke an aggressive response (e.g., “What do you want?”; “What are you looking at?”)
    • Making unprovoked accusations, threats, or demands.
    • Using foul language for no reason.
    • Taking “no” to mean “maybe.”
    • Forced teaming, i.e., using “we” language to create an artificial sense of partnership or trust, to lull you into lowing your defense.
    • Using false charm. People wrong assume that “nice” people are also “good” people.
    • Forced obligation. The assailant will try to do something “nice,” to create a debt.
      • Often, this takes the form of unsolicited promises or reassurances.
  2. A change in the rate, tone, pitch, or volume of someone’s voice.
    • Especially pay attention if a loud person suddenly becomes quiet, or vice-versa.
  3. A refusal to make eye contact, or excessive eye contact.
    • The opponent is trying to depersonalize you, and view you as an inanimate target.
  4. An empty or glazed-over glare or stare, which indicates they’re “sizing you up.”
  5. Sudden eye dilation.
  6. A person who was looking at you suddenly looks away.
    • This classic technique lulls you into thinking that the assailant will move on, when it really is a diversion to set up a suckerpunch.
  7. Pulling their head and neck back.
    • The average assailant is a “headhunter” who relies on the law of large numbers that one of his many blows your head will result in a one-hit knock-out. This motion is their attempt to avoid the same fate by pulling their head out harm’s way. Additionally, this lowers the assailant's chin, which protects their throat.
  8. Closing the distance. This could either be a lunge, or gradually inching in as they goad you.
  9. Attempts to follow, herd, flank, or mirror your escape attempts.
  10. Unusual or out-of-place body movements, such as:
    • Aggressive gestures (e.g., chest pounding, arm flapping, finger snaps)
    • Agitated pacing.
    • Fist clenching.
    • Teeth clenching.
    • Shifting their weight forward, straightening the spine, or other steps needed to adopt a fighting stance.
    • Adrenaline tremors.
    • Constantly fidgeting and adjusting themselves.
      • Criminals will throw their guns away when running from the police, to appear unarmed when apprehended. This is why criminals rarely use holsters; being caught with an empty holster is still suspicious. Criminals usually opt to carry their guns in their waistbands, to minimize jostling and printing. However, the gun will constantly shift as they move, and requiring repositioning.
  11. Attempts to draw a weapon.
    • Always assume your assailant has a concealed weapon. 70% of men carry knives, and while most of those are small multi-tool blades, it's still a knife.
    • Most weapons are carried on or around the waistline. Be concerned if the assailant is goes out of their way to conceal their waistline, by:
      • Wearing coats indoors, especially in warm or dry weather.
      • Wearing an button-up shirt un-tucked, with the bottom left unbuttoned.
    • People typically carry their weapons on their strong side, and wristwatches on their weak side. Use their watch as a guide.
    • Check to see if the assailant is “printing,” i.e., displaying the weapon's outline through their clothing. Often this is appears as an awkward lump.
    • Look for the carry clips which secure many folding knives, sheaths, and holsters.
    • Most holsters require a sturdy belt.
    • Drawing a weapon is usually a pure vertical or horizontal motion, accompanied by a click, snap, rustle, or velcro-rip sound.
  12. Sweating.
  13. Changes in breathing rates.
    • Untrained assailants tend to take shallow, rapid, erratic breaths prior to attacking.
    • Trained fighters tend to take slower, deeper breaths prior to attacking.
  14. Symptoms of an adrenaline rush. These include:
    • Pale or flushed skin. Adrenaline is a vasoconstrictor.
    • Increased heart rate (e.g., throbbing veins).
    • Muscle stiffness and tremors, especially in the hands.
    • Impeded fine motor skills (e.g., finger dexterity).
    • Impeded gross motor skills (e.g., hand-eye coordination, depth perception).
    • Hyper-vigilance.
    • Loss of rational thought. Adrenaline suspends higher thinking in favor in instinct a way to conserve energy.
    • Memory loss.
    • Inability to consciously move or act (i.e., “like a deer in headlights”).
  15. Physical violence toward nearby inanimate objects (e.g., punching walls).
  16. Stuttering speech (since all their attention is on the situation, and not on what they are saying.)
  17. Attempts to incite physical altercations with other people nearby.

Since this is a lot to take in, it is often easier to follow the fight narrative, and use the physiological clues as indicators of impending escalation. Fights involving male assailants follow a familiar script, which most people (inadvertantly) learned in middle school:

  1. Fights do not randomly occur. You will be selected, so look for people watching you.
  2. The assailant confronts you over some real or imagined grievance.
    • Begin de-escalation now. Even if it does not calm the assailant, it solidifies your innocence in the minds of witnesses.
    • Don’t argue with drunk people; they are incapable of reasoning.
  3. The assailant attempts to intimidate you.
    • Apologies will be taken as a sign of weakness -- but unlike fighting, they have no legal repercussions.
    • Goading or playing along with the assailant escalates the situation, making you partially responsible for the outcome.
  4. The assailant repeatedly pushes you, to knock you off-balance.
  5. The assailant attacks, usually with a right haymaker, because most assailants and bullies don’t know how to fight. (That is why they rely on intimidation.) This attack is either:
    • A suckerpunch.
    • A follow-up to a left lapel or collar grab to further imbalance you.
      • Hockey players are notorious for this.
      • Many meatheads take their shirts off when threatened to mitigate this pre-attack grab.
  6. A fistfight ensues.
  7. The fight goes to the ground, either because someone:
    • Was knocked out.
    • Was knocked down.
    • Turned the fight into a wrestling match.

Anticipatory attack requires you to be entirely without fault; this black-and-white requirement interprets any shades-of-grey as black. Given the prevalence of security cameras and bystanders with smartphones, assume that every aspect of the altercation is being recorded -- because it probably is. Act accordingly.

Even a mutual consent to fight is an unlawful act (except in WA), and both parties may sue one another for resulting damages. A few jurisdictions claim that consenting to the crime of mutual combat negates any civil claims, unless the combat escalates beyond the original agreement (e.g., someone pulls a knife).

Duty to Retreat

Some states impose a Duty to Retreat on their citizens, to preclude unwarranted death and mayhem.

The use of deadly force as self-defense is generally unauthorized, and when confronted with a deadly opponent, you are legally required to make every reasonable effort to escape from that threatening situation. However, there are four exceptions to this rule:

  • Impossibility of escape. If your good-faith effort to retreat reveals that all avenues of escape have been blocked, then the use of deadly force as self-defense is authorized. (The “Duty to Retreat” is actually more of a “Duty to Attempt Retreat.”)
    • The justification for using deadly force vanishes upon escaping, i.e., you can’t legally return to attack your would-be assailant at a more advantageous time.
  • Competing Harms. The Duty to Retreat is voided if you reasonably believe that an escape attempt would decrease your safety. (e.g., you do not have leave cover during a shootout to run to the door.)
  • Castle Doctrine. Most states wave the Duty to Retreat for assaults which occur inside your home, because your home is assumed to be the safe place you would retreat too.
  • Stand-Your-Ground Laws. Many states have “stand-your-ground” or “line-in the-sand” laws which remove the Duty to Retreat inn some or all situations. Please consult your lawyer to verify your state’s requirements and limits.

Please note that the Duty to Retreat only applies to the use of deadly force. There is no Duty to Retreat from non-deadly force situations -- even if you know you could escape with absolute certainty.

Duty to Warn

Some jurisdictions impose a Duty to Warn, where a defender must inform their attacker of their intent to defend themselves, assuming such warning will not escalate the severity of the assailant's attack. This legal duty includes warning potential attacker about a martial artist’s skill, so assailants to understand the dire unintended consequences of their actions, and no one encounters a “force exceeding consent.” This warning must be made with the intent to deter, and not to intimidate or threaten. Jurisdictions requiring a Duty to Warn claim that it is unlikely compromise a martial artist's self-defense ability, given their greatly disproportionate ability injure their assailants.

The Duty to Warn only applies if declaring your intention to defend yourself will not compromise that defense. If the fear of fighting a karateka could prompt a bare-handed assailant to draw a knife, then there is no Duty to Warn.

Excessive Force

The privilege of self-defense only allows an assaulted person to repel attacks with the amount of force which a “reasonable” person would have thought necessary under the circumstances (a “reasonable force”). Escalating your response beyond this point is “excessive force.” It is unlawful to use a greater level of force than what is necessary to protect yourself. The level of force used in self-defense must be proportionate to the harm which you seek to avoid, as indicated by the force continuum listed below:

  1. Presence.
    • Use of posturing and confident body language to intimidate the attacker.
    • Voice projection.
    • Apologize and/or talk your way out.
    • De-escalation.
    • Use mind games to confuse and stun opponent.
  2. Empty-hand restraints.
    • Pins, locks, and armbars.
  3. Non-lethal force.
    • Striking with the intent to incapacitate.
    • Strangleholds technically belong here, but they will seem excessive because the general population watches too many action movies, and erroneously thinks that these are deadly.
  4. Use of non-lethal weapons.
    • Club strikes with the intent to incapacitate.
    • Chemical sprays.
    • Tasers.
  5. Deadly force.
    • Striking with the intent to kill.
    • Stabbing.
    • Shooting.

You cannot escalate the situation by moving further down the force continuum unless it is in response to your opponent’s increase in force. You must stop using force once your opponent stops using force (i.e., it is generally unlawful to kick a man when he’s down). There are two exceptions to this rule:

  • Castle doctrine. Most states allow escalated force when defending against an assault which occurs inside your home, because your home presumed to be your place of safety.
  • Disparity of force.' If you are confronted with an attacker who is significantly more able, or if faced with multiple attackers, then force escalation may be warranted to compensate for your disadvantage.

Please note that it is always unlawful to use deadly force as a response to non-deadly force.

The question of whether-or-not you could have stopped your assailant using less force will be an important aspect in your legal defense. Malice, or specific intent, will be presumed from the circumstances. Some jurisdictions state that martial artists, because of their special skill, will presumably inflict the specific injuries they intended to inflict. In practice, this is a grey area, as failed assailants tend to exaggerate the extent of their injuries to frame their intended victim. Martial artists have countered these frame-ups by citing the following as evidence:

  • A known personal reputation as a peaceful person.
  • Specific training to only use their skills in self-defense.
  • The intoxication of the adversary. Since an intoxicated people experience dulled sensation and slower signal processing, they will feel less pain, and it takes longer for them to feel pain. This creates a Disparity of Force, because an intoxicated person could withstand a reasonable force and still continue their assault.

This is one reason why martial artist are implored to be humble -- because displays of bravado and machismo in your daily life could compromise your future legal defense. Besides, acting tough means that you are not tough, because otherwise you wouldn’t have to act -- everyone would just know. Therefore, the truly tough can be gentle, pleasant, and joyful, because their reputation is so solid that it requires no defense. You should strive to live in such a way that gives police investigators nothing to find (e.g., don’t buy that “I’d rather be judged by twelve than carried by six” bumper sticker).

A martial artist could be presumed to act maliciously if:

  • The martial artist was an expert.
  • The martial artist was he trained by other experts, and not self-taught.
  • The injury was caused by a specific martial arts technique, as opposed to “street fighting.”
  • The injury was caused by a technique which the martial artist knew, or should have known, from their training.
  • The martial artist deliberately attacked vital areas with excessive force.
  • The martial artist was responsible for the situation, either in whole or in part.

Anyone saying “…but I just couldn’t let him get away with it!” has escalated the situation and acted with malice. Free yourself of such thoughts, and be sure to never say anything to this effect, to anyone, ever.

Please note that if you did not act maliciously, you may have recklessly or negligently. Lower-ranked students are presumed to have less control due to their lack of expertise. Claims of negligence become less likely as one gains expertise, and an expert’s actions are presumed to be deliberate, since they presumably have a greater control over their abilities due to their skill and professionalism.

“My Hands are Lethal Weapons…”

Contrary to popular belief, there is no requirement for black belts to register their hands as lethal weapons. Martial artists face little to no legal restrictions, though boxers and wrestlers often do. This is unlikely to change because the many legislative attempts to regulate, license, or register martial artists throughout history have failed due to enforcement issues:

  • Martial artists trained informally in private homes, etc. would escape detection by authorities.
  • Prohibition would create a black market for martial arts books and educational materials.
  • The capacity to employ deadly force is not limited to martial artist, since pocket knives are unregulated and grant great advantages in altercations.
  • Martial arts cannot be stolen like firearms, so there is no need for their registry.
  • How can one disarm a martial artist?
  • How can martial arts be confiscated, in accordance with existing deadly weapons laws?
  • Would their putting hands in pockets constitute carrying a concealed weapon?
  • Since most martial artists train barefoot, are shoe considerations still relevant in aggravated assault determinations?

A weapon is legally defined to be anything which is used to feloniously assault another person. This is a deliberately vague definition, because basically anything can be used as an improvised dagger or club. However, it remains an open question as to whether or not empty hands are, or are not, deadly weapons; this definition varies between jurisdictions.

SCOTUS defined a “deadly weapon” as “a thing with which death can be easily and readily produced” or where “great or serious injury is likely to result.” (see Acres v. United States). In general, the methods and techniques used are an important determining factor. A non-deadly weapon may be considered deadly if it was used to deliver repeated and continued to vital parts of a defenseless, non-resisting victim. As such, the majority of courts have ruled that shoes are deadly weapons. When deciding if hands and feet were used as deadly weapons, the following items are considered:

  • The nature of the assailant’s injuries.
  • The degree of force the defender used.
  • Whether repeated blows were struck
  • The manner or style of attack.
  • Whether the attacks directed at vital areas of the assailant’s body.
  • Whether the defender had special training as a fighter.
  • The extent of the defender’s training. (e.g., a master is more likely to be a weapon than a novice; the formally trained are more likely to be weapons than self-taught people who “learned” from books.)
  • The condition of the martial artist's hands and feet. A defender who’ve extensively conditioned their hands and developed significant knuckle callouses has acted in a premeditated way.

Be aware than many people (e.g., assailants, witnesses, and jurors) have only been exposed to martial arts through action movies, and assume that martial artists are intrinsically deadly weapons. This misconception may convince an assailant to escalate force. American courts have not made this equivalence, and the “he-knew-karate-and-thus-I was-scared-and-shot-him” defense has historically failed. However, you should avoid bragging about your skills to minimize the risk of being shot by your frightened assailants.