All lawyers start with a disclaimer. The information in this article is not legal advice and does not create an attorney/client relationship between you and the author. It is for educational and informational purposes only. It is not a treatise on self defense law. Self defense law is an intricate combination of individual facts, state statutes and case law. It does include the nuances of defending your home, your property or others, domestic abuse situations or any individual state protections.
Good, now that is out of the way. The purpose of this article is to teach you a basic, easy to remember framework to create favorable evidence in case you have to use your training outside of the dojo. Your sensei teaches you how to win the physical fight if you are attacked. With every physical fight, however, you are potentially faced with a legal fight. This information is to help you learn how to put yourself in the best position to win the legal fight, both criminal and civil.
Our criminal justice system was originally designed to find the truth. The only truth, however, is that there is no “truth.” Our laws are not applied in a perfect realty (moral or ethical). They are applied by imperfect humans using conflicting facts. The Prosecutor’s job is to convict people of crimes. Prosecutors are paid to win and once the prosecutor has decided you are a target for a win, they are coming after you. Prosecutors have power and your job is to take it away. You want to make yourself a hard target to the prosecutor, because cases that look hard to win are more likely to be plea bargained or not charged at all.
While there isn’t necessarily “truth,” there are optics and narratives:
OPTICS – How does the scenario look to witnesses and first responders and on video.
NARRATIVES – (Optics drive Narratives) There are potentially two conflicting narratives, the prosecutor’s and yours. Your liberty will hang on these two competing narratives, the two stories presented to the jury. These narratives are shaped by witnesses, cell phone videos, Facebook Live, the Attacker, you, 911 recordings, first responders, your appearance and possibly your martial arts training.
There are four basic, easy to remember elements of a self defense claim. You will be successful with a claim of self defense if you show “A.V.I.P.” You need the elements of Avoidance, Victim, Imminent, and Proportionality. As we go through these elements, remember the term “reasonableness.” It is the umbrella over all four elements and everything you do in self defense, your perceptions, your decisions, conduct, must be reasonable both subjectively (in your own mind) and objectively (in the minds of others). If your conduct is deemed not reasonable, your self defense claim fails.
A is for Avoidance.
Avoiding a fight is a WIN. Avoidance is taking action so that the attack does not happen. The best way to avoid violence is absence, but it can also include de-escalation, calling the police for intervention, or retreat.
Awareness – Always have an awareness of your surroundings. Violence often happens in relatively predictable places. Such places include those where there are drugs and alcohol present, high volume cash businesses or anywhere groups of young men gather. If you find yourself in these places, ramp up your awareness. Look for spots of ambush and be on the look for people or things that look out of place. Are you paying attention to your surroundings or are you on auto pilot or Facebook? Always be intentionally evaluating your environment.
Know the types of Violence, Social (ego) and Asocial (Predator)
Social (Ego) Violence – Social violence follows subconscious rules. It is usually perpetrated by males and is a dominance game. It can involve territory or group loyalty and is a lesson. It stops when the lesson is learned. The main point is that it can be de-escalated.
Asocial (Predator) Violence – This type of violence is predatory interspecies hunting behavior and these attacks differ from social violence. There are two types of predators, the “Resource Predator” and the “Process Predator.” The Resource Predator wants something tangible: money, car, phone etc. This is your typical mugger, robber, or burglar, and the violence often ends as soon as they have what they want. The Process Predator wants the act itself: usually violence, rape, or murder. The Process Predator needs time and privacy with the target and they use one of two strategies:
- Blitz – Sudden physical attack. Predators don’t want to be hurt and they don’t want to be caught. They rely on Speed, Surprise, Ferocity and Weapons.
- Charm – They want to get close so, in the simplest form, they may ask you for the time, directions a cigarette or a handout. Once the goal is obtained (close and alone) the tactic switches to Blitz.
Knowing the difference can help you see the potential type of attack before it happens, de-escalate the situation appropriately, or perhaps end the confrontation by handing over your wallet or phone. If confronted by a Process Predator, it may allow you to prevent an attack or to strike first if necessary.
Retreat – If you are unable to avoid the situation and an attack appears imminent, look for a safe avenue of retreat. A handful of states impose a legal duty on you to retreat from a situation if you have a safe avenue. This means if you can safely retreat from the situation and choose not to, you have failed on your claim of self defense. “Stand your Ground” states do not require you to retreat even if you have a safe avenue. Even in most stand your ground states however, a prosecutor may still be able to argue at trial that you had a safe avenue of retreat and a reasonable person would have taken it. To be clear, the only way you have a 100% chance of not dying and not going to jail is to retreat. Stand your ground laws exist to save your ego, not your life. If you can retreat from a situation, whether your state requires you to or not, take it.
V is for Victim
You must be the victim, not the attacker. Remember that it’s not what you think, it’s the OPTICS. How does it look, what does the evidence show, can the evidence make it look like you were the attacker?
- What did you say?
- What was your posture?
- Were you moving forward, standing still or moving backward?
- What do the witnesses say?
- How does it look on cell phone video.
One of the biggest issues that defeats this element is mutual combat. Even if you did not initiate the conflict, if you consent to the fight, then both parties are deemed to be the Attacker. Again, this is not your state of mind but the optics of the situation. Don’t consent to an altercation. You have to be careful not to act in a way that can be perceived and interpreted as an invitation or acceptance to mutual combat. Don’t just be aware of what is intended, but also of how conduct can be perceived or made to look.
I is for Imminent
There must be an appearance of threatened and impending injury as would compel a reasonable and prudent person to instant defense. The altercation must be happening now, but it does not mean you have to wait to be attacked. You can take the first action as long as you are the victim. If you do act first, however, you need to be able to ARTICULATE the pre-fight indicators that would lead a reasonable person to believe they were about to be attacked. You will need more than the attacker’s words, “I’m going to hurt you.” Words must be combined with a physical act such as non-compliance (refusing to obey a command), removing clothing (gloves, hats, coats, glasses), positioning/herding (moving you into a corner) and / or furtive communication (signs, muttering, switches languages). Also, be on the look-out for pre-fight physiology of the attacker AND be able to communicate it. These could be a fighting stance, excessive sweating and / or dilated pupils, pacing, clenched hands and teeth, hunching of neck and shoulders or bending at the waist, change in verbal skills (talk, talk, talk – no talk) and weapon indexing.
P is for PROPORTIONALITY – (Minimum Effective Dose)
The physical force used in an encounter is measured from two perspectives: the attacker’s force and the defender’s force. The attacker’s force determines how much force you can use in self defense and these two forces must be proportional to each other for success on this element. This does not mean exactly the same type, it is not shove for a shove or punch for a punch. The force must be assessed in the totality of the circumstances looking at two factors: Intensity and Duration
INTENSITY – The law looks at force as either deadly or non deadly force.
- Deadly Force – Force capable of causing death or grave bodily harm. The use of a deadly weapon, (gun or knife or any other object) or a sustained physical beating. You can use any type of deadly force to defend yourself against a deadly force attack.
- Non Deadly Force – All lesser degrees of force. All non deadly force is not equal to all other non deadly force. It is a continuum.
People get in trouble on this element by using more force than is proportional. Many Danzan Ryu techniques can cause great bodily injury. A technique applied improperly, or taken too far, can result in a deadly force response to a non deadly force attack.
In medicine, there is a term known as Minimum Effective Dose (MED). The MED is simply the smallest dose that will produce a desired outcome. This concept applied to self defense is to use only the amount of force needed to neutralize the attack.
DURATION – The other aspect of Proportionality is duration. The defense of force can only be used during the time the attacker is meeting the requirements of imminence. Once the attacker is neutralized, either because you stopped them or they gave up, continuing the use of force is an excessive use of force in the eyes of the law and no longer proportionate. You fail on the element of proportionality (it becomes a new assault).
A prosecutor may try to use your Danzan Ryu training against you? There have been court cases where the prosecutor entered evidence of a defendant’s prior physical training (i.e. martial arts, boxing) to show force was not proportional. In other words, because of training, one punch was excessive use of force. While this approach is generally not successful, the prosecutor can use your training and background to show your actions were not reasonable. Make sure your response is the minimum amount necessary to neutralize the attacker.
CONTROLLING THE NARRATIVE
BEFORE THE ATTACK – If you have not been able to avoid the encounter, make sure your words and actions communicate that you are the victim – not only to the attacker but to all the witnesses and for video. This may be: “I don’t want to fight, I am leaving, Please don’t come closer, Stay back.” Do not assume a combative posture, be in a guarded position with hands held defensively (but ready). Predators look for weak victims. Don’t look like a victim. Use a command voice. Yell for help to cause doubt in the predator’s mind and to attract witnesses. Use your voice to drive the narrative and strip the situation of any ambiguity.
AFTER THE ATTACK – You have the right to remain silent. Should you? There are three approaches: say nothing; say a very limited number of things; or say way too much. I teach a pre-determined limited information script if you can stay disciplined. If you have given the forethought to this, and you can limit your comments to the things that will help, you will begin to create the narrative needed.
911 CALL – I advocate calling 911 and saying the minimum necessary to begin to create your narrative. The 911 Operator collects information and relays it to the responding officers. Give your full name, location and a brief description of yourself. With respect to substance, limit yourself to these very particular statements and don’t go into any greater depth. “I was attacked.” It is evidence you were the victim and the other was the aggressor, entered into the record at the earliest possible moment. I was afraid she was going to hurt (kill) me and I had to defend myself. If you don’t call 911 you run the risk that the other party will, and they begin the process, making you look like the criminal. Police tend to put people into one of two buckets. The person who calls the police is typically the complainant and the police presumption is it’s that person who has been wronged.
UNIFORMED OFFICERS – When the police arrive, they are there to determine if probable cause of a crime may have been committed. If you have used force against someone else, it is almost a given that a crime has been committed. Always assume you will be arrested in the aftermath of a use of force situation. The information to provide is pretty much the same as you provided to the 911 operator. You should say a little but not too much. Give them your full name. You already have given it to the 911 operator. Briefly describe the encounter the same as 911: You were attacked, BE ABLE TO ARTICULATE PRE-FIGHT INDICATORS; you were in fear of harm (for your life) and you had to defend yourself. Identify evidence and exculpatory witnesses. There may be many people there by the time the cops get there so help the cops find what you need to build the right narrative.
INVESTIGATIVE OFFICERS – Do not talk to the detectives without an attorney. Say nothing except your right to counsel and right to silence. Do not be ambiguous. Assert the right. There is no upside to saying anything to them without counsel.
Have an exit plan. Practice scenarios in your mind. If you disable your attacker, are you going to hold down the attacker? Does the attacker have friends? If you take away a weapon, don’t use it, because you now become the aggressor – you stopped a deadly force attack and then started a new one. Don’t give the weapon back and if you do have the attacker in a restraint hold, don’t let the attacker go if they tap out (this may sound stupid, but it is what we practice).
You study Danzan Ryu and practice the physical skills daily or weekly, but your most important weapon is your mind. Save this article and read it once a month or more. Ramp up your awareness in public situations. Always look for ways to avoid violence. If you can’t avoid it safely, retreat. If you can’t retreat, make sure it doesn’t look like you are the aggressor. If the confrontation is unavoidable, only use the force necessary to stop the attack.
Robert Kaufer is an attorney licensed in Minnesota, Wisconsin, Texas, Colorado and Arizona. He has attained the rank of Sankyu in Danzan Ryu studying under Nate Hill and Tom Thiel at Shinzen Kai in Saint Paul, Minnesota. Along with Nate and Tom he wants to thank Threat Resolution Sciences, LLC for their training in self defense, where he learned your most important weapon in self defense is your mind.
Robert Kaufer (in sunglasses) discusses legal implications of unarmed self defense with a group of AJJF members at Camp Kodenkan Midwest 2018 in Duluth, MN. Photo Credit: Monica Villanueva.