Will you get into Legal Trouble if you Defend yourself from an Attacker?
The woman purposely smashed into three cars on the freeway, including mine, and she was temporally stopped on the surface street after hitting a curb. Fortunately, my car only had the whole left side scraped up, but I had been able to keep going and chase her. As she was starting to get her car back into motion, I looked beyond the hood of her car and I saw several pedestrians crossing the street at the crosswalk about a hundred yards down the road. In seconds she'd be heading right for them, and after what I had just witness, I knew she'd kill someone. I had to stop her.
I only had a second or two, and so I pulled my pistol from the holster, extended by arms out of my car window, and took aim at her rear tire that was only a few feet away. The first thought that went through my mind was, "Am I going to get into trouble for this?"
The people that I was afraid of getting into trouble with, for just that split second, was my chain of command. I was a police officer, on duty, and only a minute or two earlier I had been heading to the scheduled S.W.A.T. training that I had set up until I unexpectedly found myself in this incident.
I said to myself just before pulling the trigger, No, I will not get into trouble. She's about to kill someone with her vehicle. I will hit my target, and there is nobody in the backdrop.
BLAM! BLAM! BLAM!
Fifty feet later she lost control of her vehicle, crashed into a concrete lamp post, and came to a compete stop. She was no longer a threat to the public.
In fact, come to think of it, I've run those same words through my head many times when in a self-defense situation as a street cop, "Am I going to get into trouble for doing this?" For I have struck suspects with my baton, pepper sprayed others, kicked some, punched a few, and slammed many of them to the ground to arrest them.
Although I have been through many internal investigations throughout my career, I never once got into trouble for the use-of-force. Why? Because I know the laws, and I know what techniques and tactics I can, and cannot, use.
So, what about you? Do you know the laws, as it pertains to the use-of-force, in your jurisdiction? The military has Rules of Engagement. Law enforcement has the Use-of-Force Continuum, and as a civilian you are going to be held accountable to the applicable penal codes and case law if you ever have to defend yourself. Ignorance of the law is no excuse.
There's an expression I like, which serves as a warning to every martial artist, and it is, There are always two fights you must fight when it comes to self-defense. The first fight is for your life, and the second fight is for your freedom.
As a martial artist you train hard so that you can survive any fight, anything from a bar fight to a life and death fight. The second fight is to stay out of trouble with law enforcement and the judicial system, for they have the power to take away your freedom (jail or prison) or your worldly possessions (in a civil lawsuit) if you do not adhere to the legal use-of-force.
The best way I can educate you to stay out of legal trouble, should you ever be faced with an unexpected attacker where you must use your self-defense skills, is to share with you the Use-of-Force Ladder that I created in 2003, and that was first published by Black Belt magazine in 2005 in my book Reality-Based Personal Protection. For the past 15 years martial arts schools around the world have been using it, and that's because prior to this original graph there was nothing for civilians. When the concept first popped into my head I had to start from a blank sheet of paper, and then come up with something that any civilian could easily understand and still be legally accurate.
Let me give you two different self-defense situations, and we'll determine what you can, and cannot do, based upon the Use-of-Force Ladder as the guide.
SITUATION: A healthy unarmed man walks up to you, clenches his right fist, and threatens you, "I'm going to knock your teeth in!" and you have no reason why he wants to.
Referring to the Use-of-Force Ladder graph, what rung of the ladder, can you take?
ANSWER: Since the hostile is threatening you with minor injury, indicating that the threat is imminent by a clenched fist, and an assault is a misdemeanor, you are legally able to go to rung 3, which is reasonable force (the level of force that a jury would use if they were all in the same circumstance). In other words, you are only going to used empty hand techniques and tactics.
SITUATION: An old lady stands in the middle of a crowd in a public place. She looks like a sweet old grandma. You are a few feet away from her, and she is facing away from you.
Suddenly she pulls a pistol from her purse and starts shooting people. You have no doubt that in a moment or two she will have you in her sights as she is turning your way.
Referring to the Use-of-Force Ladder graph, what level of force can you use to defend yourself, or anyone in the crowd?
ANSWER: Since the woman is randomly firing a lethal weapon at people, and you may be next, you are legally able to go to rung 4, which is deadly force. Deadly force doesn't just force that can kill someone, but force that could also seriously injure someone. Legally, you may use deadly force, because the woman is committing a felony assault which is capable of inflicting serious injury or death to you and others.
Obviously, no use-of-force situation is black and white, and the police will question you as to why you did what you did. Common questions that you will be asked for both situations that I presented to you would be: "Where you in fear of your life or for someone else?" "Did you have an opportunity to escape?" "Did you have any other options?"
Even if you do not answer all of the questions by the police, because you have "the right to remain silent," the questions will definitely come up in a court of law, which will be answered by your attorney.
Currently most civilian martial artists don't include legal issues as part of their self-defense training, and without knowing the laws pertaining to self-defense as well as a law enforcement officer, or having the Use-of-Force Ladder as a guide, they will most likely be screwed if they open their mouth when questioned by the police or judicial system after defending himself or herself from unexpectedly attacked. This is why I've presented the Use-of-Force Ladder to you, and that's so you will have a tool to keep you out of trouble. However, I know that you need more information about the Use-of-Force Ladder, because two scenarios alone are not enough to completely understand it. Therefore, you make click the link below and get a full explanation of the graph.
For those of you who live in Canada or the United Kingdom, or plan on visiting any of these countries, I have included the Use-of-Force Ladder graphs using those countries' own legal terms as well. In fact, in all three of the countries I have mentioned (the United States, Canada, and the United Kingdom) I have had quite a number of law enforcement officers, attorneys, and even a few judges, take my courses where I have presented these graphs, and they validated them all as legally accurate.
Use-of-Force Ladder: United Kingdom
Use-of-Force Ladder: Canada
The Jim Wagner Use-of-Force Ladder (TM) Explained
Every adversary that attacks you is going to have the same reason for attacking you, and they all have the same level of fighting skills, right?
Human conflict is unpredictable because there are countless factors involved. As such, there is no "cookie cutter approach" to dealing with conflict, and taking such and approach can get you possibly hurt and in a lot of legal trouble.
Once you actually use your martial arts skills in a real self-defense situation, you will be held legally accountable for your actions. It doesn't matter if you're a seasoned street cop or you've just completed your third martial arts lesson, some prosecutor or defense attorney is going to bring up the use-of-force issue. They're going to have a field day with you if you can't articulate the different levels of force. Therefore, it is imperative that you know what you can and cannot do in any conflict situation.
Based on Standards
I am a former soldier, jailer, street cop, SWAT officer, diplomatic bodyguard, counterterrorist with the U.S. government, and the list goes on. In every single one of these positions that I have held, I have had to follow either a Rules of Engagement or Use-of-Force policy. If I stayed within the policies, I was protected. If, on the other hand, I acted outside of the policies' guidelines (using unreasonable force or violating someone's Constitutional rights), I could have found myself in jail (with criminal charges) or paying out some big bucks (in a civil lawsuit), and perhaps both. Fortunately, I have never stepped over that line, even though I have had to use force against suspects on many occasions.
Being a civilian who is learning self-defense does not isolate you from the law. Ignorance of the laws of the land is not a legal excuse that will protect you, especially when it comes to excessive force cases. Most civilian martial artists have no idea just how much trouble they can get into legally, even when they, in good faith, were just trying to protect themselves or someone else. There are a few well meaning martial artists right now sitting in prison, because they didn't know where to draw the line, or even where the line was at in the first place when it came to the use-of-force. This is why I created the Jim Wagner Use-of-Force Ladder TM. Although "the ladder" is similar in concept to what the military and civilian law enforcement agencies must follow, my ladder is specifically designed for civilians, and easy to understand.
The Colors of Conflict
Like a real latter that you would lean up against a building, the most stable place to be is not on the ladder at all. Once you get on, there are risks – even from a foot off the ground you can get injured. Likewise, in daily life you are always safest when you avoid conflict. Yet, trouble can sometimes find you without you looking for it.
Before you go up, or down, the ladder you will notice that to the left of the ladder are the subject's actions (your attacker), indicated with a gray triangle, and a vertical arrow next to it with a gradient of colors. The arrow corresponds with the Jim Wagner Conflict Color-Code System that I developed, inspired by my military, corrections, and law enforcement, private security, and even my martial arts background:
- Secure (White)
- Caution (Yellow)
- Danger (Orange)
- Conflict (Red)
Secure is staying off the ladder all together. At this level you are in a secure place: home, work that is not open to the public, and social events among only friends or family. Conflict is not anticipated. This does not mean that you are totally secure. At Code White you must have emergency plans in place in the event that the peace is disturbed. For example, if you are at home you should have some sort of home security plan: locks, outdoor lighting, alarm system, surveillance cameras, escape routes, etc. At work you must have an escape plan should there be an intruder, and so forth.
This is the level that you must always maintain when you are in public. You should always be aware of your environment: people, vehicles, behind large objects, dark areas, etc. This is not a state of paranoia, but prudent caution known as Situational Awareness. That's why the arrow extends below the ladder and into the white area. You should be alert long before you about to get into conflict.
Once there is any indication of a conflict the yellow color blends rapidly into orange. For example, on either side of the ladder the yellow turns darker when a subject is giving VISUAL INDICATORS, such a hard stare (mad dogging you), posturing, wearing gang colors, etc.
At this level there is a real possibility of danger since the subject is giving VERBAL INDICATORS: direct threats, suspicious words, etc. The intensity of this Pre-Conflict phase can escalate or dissipate. The potential for conflict can be rapid, steady, or gradual. Although words themselves cannot hurt you physically, words will determine your course of action. If someone is threatening to hurt you, there must be three elements present before you can take physical action: means (the wherewithal to harm you), opportunity (the immediate ability to harm you), and the intent (the thought to harm you, whether implied [such as a robber with a mask and gun] or verbalized ["I'm going to kill you!"])
At this level you are in physical conflict. Does this mean you can use whatever self-defense techniques you would like? No. There are many levels of conflict. Even in warfare there are differences: low intensity conflict (guerilla warfare, terrorism, etc.) and high intensity conflict (all out war or limited actions). Someone who pushes you because they are rude will not be treated like someone who is trying to stab you with a knife.
Notice that the left arrow of the graph starts at the bottom of the ladder as a low risk situation then escalates to a high risk situation, while the arrow to the right starts from being cautious to being engaged in physical conflict.
The higher you climb any ladder, the more unstable it can become; especially if you are climbing it by yourself. If you are alone when a subject confronts you, you are the only one that can help yourself. Yet, if you have other people with you (strength in numbers) they can help support you. Once you go beyond the ladder you will experience either serious injury or death, just as you would if stepped off a real ladder from the top rung (thus, the top of both arrows are black indicating serious injury or death). In other words, you must always maintain control, no matter what level you are at.
There is good reason why the two arrows in the graph both point upward, and downward. That's because a conflict situation may start at any level, at any time. You may find yourself in Code Red without going through all of the previous rungs beforehand. For example: if you're standing in a bank, and then suddenly bank robbers barge in blasting away with their guns – you're there in Red zone instantly.
In some situations, you may climb the ladder progressively, which is escalation, and in other situations, what my have started off high, there may be opportunities to deescalate.
Climbing the Ladder
The JimWagner Reality-Based Personal Protection Use-of-Force Ladder™ has four rungs to make use-of-force levels easy to remember. Law Enforcement officers often complain that their own Use-of-Force Continuum graphs, or "steps" as they are often called, are difficult to remember. You won't have that problem with this one. This ladder will be easy to remember in any conflict situation.
Rung 1, or Level 1, starts at the base of stability and ends at Rung 4 which is an unstable and unpredictable height. Remember this rule: The suspect's actions will always dictate your actions. A true martial artist stays off the ladder if he or she can help it. Yet, when you do come face to face with hostile subjects, you may have no choice but to take some action. As we all know, there are three reactions humans will take in a conflict situation: 1. Flight (get away) 2. Fight (defend yourself) 3. Submit (give into the subject's demands or actions).
At level 1 a subject uses VISUAL INDICATORS. In other words, you will feel that there is possible danger based on things that you see: a suspicious subject approaching you, somebody who is looking around nervously, a car slowing next to you. At that moment no laws are being broken by the subject, none that you may be aware of, but you know something is wrong, so you prepare yourself mentally and physically for all possibilities. First you take on a CONFIDENT DEMEANOR (see YOUR REACTION under the right gray triangle). This means that you look confident and not afraid. Your facial expressions indicate that you are aware of your environment and know how to use it to your advantage. CONFIDENT DEMEANOR also means that you look like you are prepared for an encounter, or because you are aware of the danger you are making a "tactical retreat."
At level 2 things start to heat up. The subject is actively engaging you or others around you, through VERBAL INDICATORS. This can be anything that warns you that an attack is about to happen, but short of direct threats. The conflict cues can be anything from the subject's tone of voice to implied threats, or even things you overhear – such as suspicious passengers in an airplane whispering about how "this is going to be a short flight" when it fact it is a long flight. Those are not alarming words in and of themselves, but with some visual indicators one might suspect a possible terrorist attack.
If a subject is trying to start a fight with you the best thing to do is to try to calm that person down or ignore them altogether. This is known as VERBAL DEFLECTION. By reacting in this matter, you will not incite the situation any further. However, in some situations you may have to use a firm, confident voice to talk some subjects down. You may have no choice but to try to intimidate them and try to resolve the conflict in this manner. Words will not hurt you physically, but words will be a good indicator that it may escalate to a physical confrontation.
At Level 3 we enter into actual physical contact with the subject or multiple subjects. It may be a precursor push, or a punch to the nose, or it could even be a sexual touch (sexual battery). It's at this level where must not use the "cookie cutter approach." If someone simply pushes you to intimidate you, or to get you to swing first, in response you cannot launch a side kick and blow their knee out, then come crashing down on them with a drop knee to their spine. If you do, even though you have a legal right to defend yourself, you would most likely go to jail. This would be "unreasonable force" for the situation.
At Level 3 you can get injured: a broken nose, cuts, bruises, scrapes, soreness, etc., but they are neither serious nor life threatening. If the subject throws a few swings at you because you're throwing him out of your party, you can't rip his head off – the law won't allow you to do that, even if you did sustain minor injuries from his blows.
Since there are no hard and fast rules on what you can and cannot do in a self-defense situation, the law will judge you by a simple rule: What would a reasonable person do in the same situation? The law enforcement officer who questions you knows what is reasonable or not, and the jury who listens to you in a court of law, will determine what is reasonable or not. By the way, law enforcement officers are not judged by what a "reasonable person" would do in the same situation, but rather what a "reasonable peace officer" would do, because they are bound by a lot of restrictions that civilians are not.
At level 4 serious bodily injury or death is likely to result. If a suspect does attack you where death or serious bodily injury is likely to result (FELONY ASSAULT), then you have the right as a citizen to use DEADLY FORCE. This not only applies to felony assaults against you, but those you choose to protect in your immediate presence. If someone is trying to harm a family member or co-worker in your presence, you may, but are not required to, to use deadly force. However, if the case goes to court, you will still be judged based on reasonableness of the force used.
Examples of felony assault include attempted murder, mayhem (putting out an eye, severing a limb, ripping off an ear, etc.), rape, caustic chemical attack, robbery, etc. In other words, and remember these words carefully, you must have fear for your life, or the life of another if you use deadly force.Notice that the gray triangles start off with broad bases, then taper off to mere points. The right triangle represents the options you have in a conflict situation. When we start off with Level 1, there are multiple options: you can walk away, call the police, yell for help, etc. However, by the time you are engaged in a life-and-death conflict there are limited options. If someone is trying to stab you, and your back is against a wall, you have basically only one option – stop the knife from cutting or entering you. If you don't block the knife, or disarm the attacker, you could be dead.
Memorize it, Use it
On a real ladder you do not always have to go up the ladder rung by rung. If you choose to skip a rung, you can. However, by doing so, it is always more unstable. In a real conflict you may have to skip a level. For example, let's say that you have a VISUAL INDICATOR that a man has a belt bomb strapped to himself (a very real possibility in this day and age). Although one does not truly know the intention of the person (it could be a prank for all anyone knows), the "bomb" itself implies intent to blow himself, and anything around him, up. Thus, you can go directly from VERBAL INDICATOR to DEADLY FORCE, and skipping REASONABLE FORCE altogether based upon what you saw.
By memorizing the Use-of-Force Ladder™ that I created, you, and those you train with, will be able to stay within the law if you ever have to use your self-defense skills. If you're a self-defense instructor you can start teaching your students the different levels of force, and how each technique and tactic looked upon legally. In so doing, you not only teach them that there is no such thing as a generic attacker, but how to survive the justice system when they use what you have taught them.
BE A HARD TARGET
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