by Peter Hobart
INTRODUCTION
Anthony Ervin was a career
criminal. He was arrested eight times on assorted
robbery, weapons, and assault charges between 1987 and
1996. On October 8, 1996, he acosted Courtney Beswick, a
blind man who must have seemed like an easy target.
After Ervin’s demands for money were repeatedly refused,
he attacked Beswick. Beswick, a long time practitioner
of martial arts, threw his assailant over his shoulder,
onto the pavement. The fall broke Ervin’s neck, and he
subsequently died.
Having survived this terrifying
ordeal, Beswick still faced the possibility of criminal
and civil charges. In this case, however, the police and
estate of the deceased decided not to file charges
against Beswick, since he clearly acted in self-defense.
But this outcome is hardly the rule in the United
States. In fact, a recent law review article indicates
that a disturbing trend toward targeting martial arts
practitioners is emerging in the field of tort law.
With this in mind, it seems that the modern martial
artist must have at least a rudimentary understanding of
the applicable law if he ever hopes, or fears, that his
training may be called upon outside the dôjô.
In an effort to provide some practical answers, this
article will address the national majority position, and
any substantial minority positions regarding criminal
and civil liability with respect to the use of force in
defense of self, defense of others, and defense of
property. Pennsylvania law, where relevant, will also be
examined. The majority position reflects the practice of
most states, and is increasingly consistent with the
Model Penal Code (MPC). Pennsylvania law regarding these
issues is largely based on the MPC.
The author
regrets the ubiquity of the terms "reasonable" and
"generally" in this article — that these terms are
essential merely reflects the complexity, and often the
vagueness, of the law.
Case law
varies widely among jurisdictions, and is constantly
modifying and reinterpreting the rules of law. In an
effort to provide some concrete conclusions, a lsit of
relatively unqualified guidelines is provided at the
end.
CRIMINAL LIABILITY
Self-defense, non-lethal force:
Criminal liability is distinguished from civil liability
in that it is the state which brings charges against the
defendant, as opposed to the victim or his estate. The
general criminal law allows for the use of necessary and
proportionate, non-deadly force in self-defense anytime
the victim reasonably believes that unlawful force is
about to be used on him. Pennsylvania law is generally
consistent with this position. The critical language
under this standard is ‘reasonable belief’, ‘unlawful’,
‘about to’ and ‘necessary and proportionate’.
In order to establish a reasonable belief, the court
will use both a subjective and an objective standard.
The subjective standard determines whether this
defendant did in fact believe that an attack was
imminent (whether reasonably or unreasonably). In
arriving at this conclusion, the defendant’s state of
mind is relevant. Thus, a paranoid defendant might
introduce evidence of his condition to show that his
belief, however unreasonable, was at least genuine.
The reasonableness of the defendant’s actions is judged
by an objective rather than a subjective standard. The
reasonable person standard is one of the most difficult
aspects of the law to understand. In an effort to do
justice to both sides, the law requires the
trier-of-fact (usually the jury) to consider whether
an ordinary person in the defendant’s position would
believe that force was about to be used against him. The
defendant’s (and the assailant’s) physical
characteristics and past history will be taken into
account, but mental condition is of no concern. Thus,
comparative size, weight, strength, handicap or
pre-existing injury may support a reasonableness
finding, but unusual sensitivity or fear will not.
There is no simple formula for the legal application of
force in self-defense under American law. The confusion
is due, in part, to the complexity of the issue itself,
and in part to the variety of state laws within the
American legal system. The requirement that the force
defended against be unlawful simply excludes the right
of self defense when an ‘assailant’, such as a police
officer, is legally authorized to use force. It must be
noted however, that a majority of jurisdictions allow
the use of force, including deadly force, in resisting
an attack by a person not known to be a police officer,
and the use of non-deadly force against a known
police-officer attempting to make a wrongful arrest.
Pennsylvania does not allow the use of force in
resisting wrongful arrest, but it does allow the use of
force if an arresting officer unlawfully threatens to
use deadly force, or does not identify himself.
‘About to’ refers to the imminence requirement for the
right to self-defense. It is not enough that the
assailant threatens to use force in the future, or upon
the happening of a certain event. Thus the statement "If
you do that one more time, I’ll punch you" is
insufficient to trigger the right to self-defense. The
threatened use of force must be immediate.
The force used in self defense must reasonably appear to
be necessary to prevent the attack, and must be
proportionate to the gravity of the attack. Thus, for
example, if an assailant is about to slap the victim,
responding with the use of a fire-arm would be excessive
and therefore beyond the scope of the right to
self-defense. The proportionality standard under
Pennsylvania law is articulated as a prohibition on the
use of excessive force, but the fact that death results
does not automatically produce a finding of excessive
force.
Self-defense, lethal force:
The standard for use of deadly force is, predictably,
higher. The general criminal law allows for the use of
deadly force anytime a faultless victim reasonably
believes that unlawful force which will cause death or
grievous bodily harm is about to be used on him. Again,
Pennsylvania law is generally consistent with this
standard.
The faultlessness
requirement does not mean that the victim must be pure
of heart and without sin. It does mean that the right of
self-defense will not be available to one who has
substantially encouraged or provoked an attack. The
general rule is that words alone are not enough to be
considered a provocation under this standard, but there
are exceptions. For example, saying ‘I am about to shoot
you’ might well constitute sufficient provocation.
One of the circumstances which helps to determine the
level of threat encountered by the victim is the nature
of the assailant’s weapon (if any). As a general rule,
anything which might be used to kill a person, no matter
how odd, is considered a deadly weapon. Thus, a chair, a
lamp or a screwdriver may all be considered deadly
weapons. In some instances, the law will treat a trained
fighters hands as a deadly weapon, but in order to
trigger the right to self-defense using lethal force
against such a person, the victim must, of course, know
of the attacker’s special training.
U.S. courts are split with respect to an additional
factor in the lawfulness of the use of deadly force in
self-defense. A minority of jurisdictions require a
victim to retreat to the wall if it is safe to do so,
before using deadly force. ‘Retreat to the wall’ is
generally construed to mean taking any reasonable and
apparent avenue of exit. However, even minority
jurisdictions do not require retreat under three
circumstances. There is no duty to retreat from one’s
own home, if one is being or has been robbed or raped,
or if the victim is a police-officer making a lawful
arrest. In 1996 the Pennsylvania Superior Court held
that "although a person is afforded discretion in
determining necessity, level and manner of force to
defend one’s self, the right to use force in self
defense is a qualified, not an absolute right."
Pennsylvania is a retreat jurisdiction.
Even an initial aggressor may be given the right to
self-defense under certain circumstances. If the initial
aggressor withdraws from the confrontation, and
communicates this withdrawal to the other party, he
regains the right to self-defense. Also, if the victim
of relatively minor aggression ‘suddenly escalates’ the
confrontation to one involving deadly force, without
providing adequate space for withdrawal, the initial
aggressor may still invoke the right to self-defense.
Third parties:
The right to defense of others turns largely on the
reasonableness of the belief that the victim deserved
assistance. A minority of jurisdictions require that the
rescuer be a member of the victim’s family, or the
victim’s superior or employee. Similarly, a minority of
jurisdictions require that the rescuer’s belief be
correct, reasoning that the rescuer ‘merely steps into
the victim’s shoes’, while the majority requires only
that it be reasonable. Pennsylvania law imposes no such
restrictions. It does, however, require the additional
showing that the rescuer believed that his intervention
was necessary, and that the rescuer retreats if the
victim would be required to do so.
If in the course of intentionally defending himself or
another, a defendant recklessly or negligently injures
or kills a third person, self-defense will not bar
liability, but it will reduce the gravity of the charge
from an intentional crime to a reckless or negligent
crime.
Defense of Property:
In Pennsylvania, and a majority of jurisdictions, a
victim has the right to use non-deadly force in defense
of his dwelling when, and to the extent that he
reasonably believes that such conduct is necessary to
prevent or terminate another’s unlawful entry or attack
upon his dwelling. Deadly force is authorized when
violent entry is made or attempted and the victim
reasonably believes that it is necessary to prevent an
attack on his person. It is also authorized when the
victim reasonably believes that such force is necessary
to prevent entry into the dwelling by one who intends to
commit a felony therein. The rationale for allowing
self-defense in these scenarios is based upon the right
of inhabitants to be secure in their homes, rather than
the right to defend property, as can be demonstrated by
the law regarding defense of uninhabited property.
Non-deadly force may be used merely to defend one’s
property from imminent, unlawful interference. Force may
not be used if some other, reasonable means would have
the same effect. The only exception to the immediacy
requirement is that force may be used to regain
wrongfully taken property after the taking (i.e. no
longer a prevention of immediate interference) if the
victim uses such force in ‘immediate pursuit’. The legal
rationale for this exception is, of course, that the
interference continues as long as the aggressor retains
control of the property.
Deadly
force may never be used in defense of uninhabited
property. The popular misconception with respect to this
law emanates from confusion over situations where the
right to defend property and the right to defend persons
therein overlap. Pennsylvania allows the use of
reasonable, non-lethal force in the protection of
property and notes that such a defense of property will
not be regarded as ‘provoking’ an attack on the
defender’s person. Pennsylvania allows the use of force
necessary to eject a trespasser, short of inflicting
serious bodily injury. If the defendant reasonably
believes that the trespasser intended to commit a
felony, then serious bodily injury is justified. When
two people claim ownership over a piece of personal
property, Pennsylvania law provides that force may not
be used to prevent one from taking it.
Use of force to prevent crime:
A citizen has a privilege to use non-deadly force which
reasonably appears necessary to prevent a felony, riot
or other serious breach of the peace, and some states
(such as California) have extended this privilege to the
prevention of any crime. Deadly force may be used only
to prevent the commission of a dangerous felony,
involving a risk of human life. A citizen has the same
right as a police-officer to use non-deadly force to
effectuate an arrest if he reasonably believes that the
alleged criminal has in fact committed the crime. A
private citizen may also use deadly force to effect an
arrest, provided the alleged criminal is actually
guilty. Here, a reasonable belief is not enough.
Pennsylvania phrases this provision differently. A
private citizen is justified in using the same amount of
force as if he were directed to prevent the crime by a
peace officer, except that lethal force may not be used
unless the defendant reasonably believes that it is
necessary to prevent death or serious bodily injury to
himself or another. At the direction of a peace officer,
a private citizen need not retreat from making a lawful
arrest, and may use any force he believes necessary to
defend himself or another from bodily harm while making
the arrest.
CIVIL LIABILITY
In a civil case, it is the victim (or his estate) bringing the action. While there are many similarities to a criminal charge, it is important to understand that the civil plaintiff must only prove his case ‘by a preponderance of the evidence’. This is a much lighter burden than the criminal standard of ‘beyond a reasonable doubt’. The principal tort actions which a victim who defends himself might face, include battery, assault and wrongful death.
Battery and assault:
In virtually every jurisdiction (including
Pennsylvania), to make out a case for battery, the
plaintiff must show that the aggressor made harmful or
offensive contact with the plaintiff’s person, that the
aggressor intended to bring about such contact, and that
the aggressor’s actions in fact caused the contact.
While harmful contact is easily determined from the
specifics of the situation, offensive contact is judged
by the objective, ‘reasonable person standard’. As a
prominent Philadelphia law professor explains, "tapping
a person on the shoulder is not reasonably ‘offensive’
whereas, tapping someone ‘considerably lower’ would be."
‘Plaintiff’s person’ means in general anything connected
to the plaintiff’s body. This would include a hat, a cup
in plaintiff’s hand, and on a recent bar exam, even the
car in which the plaintiff was sitting! Thus, snatching
a book from a person might well constitute a battery.
The causation requirement can also be deceptive. Not
only would a thrown projectile which strikes the
plaintiff constitute a battery, but ducking to avoid
such a projectile, and hitting one’s head would also be
actionable. Moreover, no actual damage need occur to
bring an action for battery. The offensiveness of a
non-harmful contact will support an award of nominal
damages.
Assault, briefly, is
the creation of a reasonable apprehension of an imminent
battery, in the victim. Simple fear is not enough. The
aggressor must have a present apparent ability to bring
about such contact. In other words, the victim must
actually expect to be struck or touched. Conversely, the
fact that the victim was not in the least bit afraid
does not bar recovery. Thus, a professional boxer may
successfully sue a weakling for assault, even though
there was no actual danger of being hurt.
Words are generally not enough to support an action for
assault, but words coupled with some act may be. For
example, shaking one’s fist and threatening with words
might well constitute assault. Similarly, a conditional
threat such as ‘your money or your life’ is also
sufficient to support a charge of assault. Like battery,
no actual damage need result.
Wrongful death and survivor acts:
Although traditionally any tort action abated at the
death of the victim or the perpetrator, most states have
now enacted ‘survival acts’ for wrongful death (it is
from this old common law rule that the concept of
escaping liability by killing, rather than injuring a
victim, derived). Now the estate of the deceased may
bring an action against the killer for all damages which
occurred between the commission of the tort, and death
(e.g. pain and suffering).
Further, every state has now enacted a statute providing
for a civil remedy for wrongful death. Here, the a
designated representative sues for the pecuniary injury
to the next of kin (lost wages, lost companionship).
While the wrongful death action is quite complicated,
the critical aspect for present purposes is that the
same defenses against the plaintiff apply as if the
victim himself were suing.
Self-defense in tort law:
While the principles of self-defense at tort law are
similar to those at criminal law, the mode of analysis,
and areas of emphasis differ. In general, self-defense
is valid when a person has reasonable grounds to believe
that he is about to be attacked. Under these
circumstances, he may only use such force as is
reasonably necessary to protect against the potential
injury. Since only reasonable ground are required, a
genuine mistake with respect to the attack will still
support the right to self-defense. Once the attack or
tort has ended, so does the right to self-defense.
Retaliation is never permitted.
As
at criminal law, there is generally no duty to retreat,
and deadly force may be used to prevent death or serious
bodily harm. Even in the minority jurisdictions which
require retreat (like Pennsylvania), there is an
exception to the requirement if the victim is in his
home. Although the attacker has no right to self
defense, if the attack is non-deadly, and the victim
responds with deadly force, the aggressor may defend
himself with deadly force.
Third parties:
Under tort principles, a victim who accidentally injures
a third-party in the course of defending himself is also
protected from suit by that third party. A majority of
jurisdictions also allow the defense of victims only if
the victims themselves have a right to self-defense.
Thus, if the rescuer makes a mistake regarding the
victim’s right to self-defense, he too will be liable.
However, there is a strong modern trend toward
protecting rescuers from suit if their wrongful
assistance of a victim is based on a reasonable mistake
(Pennsylvania tort law allows for a reasonable mistake).
The rescuer may use as much force as the victim could
have used in self-defense.
Defense of property:
In the defense of property, a request to desist prior to
the use of force is required, unless it would be futile
or dangerous. There is almost never a right to self
defense when the ‘intruder’ in fact has a right to be on
the property. Thus, it is unwise to attack a supposed
intruder without ascertaining his identity first! A
significant exception occurs when the ‘intruder’
contributes to the ambiguity regarding his identity or
purpose.
As at criminal law, there
is a right to use force in the recovery of stolen
property, as long as the victim is in ‘hot pursuit’ of
the taker. Also as under the criminal standard, deadly
force may never be used simply to defend property.
Finally, the right to trespass for necessity supersedes
the right to self-defense. Thus, a home-owner is not
privileged to use force to turn away those who need
refuge from an emergency.
Prevention of crime:
Since the right to use force is limited to the
prevention of the commission of a tort in civil actions,
one who subdues an attacker and then continues to use
force to hold him until the police arrive, must be aware
that he has moved over from a tort privilege, to the
privilege of arrest under criminal law.
Martial arts teachers’ liability:
Under the Theory of Agency, the principal is liable for
unlawful acts which he causes to be done through an
agent. There are three possible ways in which a martial
arts instructor might be held liable as the principal
for the unlawful acts of his students, as agents. First,
if the instructor appears to ratify or approve of
unlawful conduct, he may be held liable for the
commission of such acts. Thus, a dojo which encourages
the use of excessive force, or lethal force in
inappropriate situations may be seen to ratify and
approve of unlawful conduct. Similarly, an instructor
who continues to teach a student who has abused his
knowledge may be held responsible, if not liable, for
subsequent torts.
Second, an
instructor may be held liable for having entrusted a
student with ‘an extremely dangerous instrumentality’.
"[W]hen an instrumentality passes from the control of a
person, his responsibility for injuries inflicted by it
ceases. However, when an injury is caused by an
exceptionally dangerous instrumentality, or one which
may be dangerous if improperly used, a former owner or
possessor may ... be charged with responsibility for
[its] use...." The implications for instructors who
teach potentially lethal techniques is clear.
Finally, an instructor may be liable for harm to the
student or other parties as a result of negligent
instruction. Anyone who holds himself out as an expert
capable of giving instruction is expected to conform to
the standards of his professional community. Thus, any
instructor who, by his own negligence, fails to provide,
teach and require adequate safe-guards and supervision,
may be liable for any resulting injury.
CONCLUSION
The law, and the facts underlying
a cause of action are rarely clear-cut. Statutes and
case law vary widely from jurisdiction to jurisdiction.
Lawyers are skilled at recasting the facts in their
client’s best interest. Juries are given broad
discretion with respect to determining guilt or
innocence, and may feel the need to compensate an
injured party regardless of fault. And even if a
defendant successfully raises one of the defenses
discussed above, litigation is costly both in terms of
time and money.
It would be
foolish to try to rely on a general understanding of the
legal principles at work in these situations, in order
to engage in behavior which falls just within the realm
of legality. Rather, the wise martial artist will
attempt to avoid any hint of liability or criminal
conduct. The following general principles may be of
value in this endeavor.
• Avoid
physical confrontation. If there is a safe avenue of
retreat, use it (regardless of jurisdiction). At a
minimum, retreat to the wall.
• If
confrontation is inevitable, give a warning when
defending property, unless doing so would be dangerous
or futile (which is often the case). This does not mean
that you should list your qualifications, as the samurai
of old were wont to do. Rather, you should simply give
the aggressor notice that you intend to use force
against him, in order to allow him to reconsider his
position.
• Ensure that you are
not seen as the aggressor. This does not require ‘taking
the first hit’, but it does require being certain that
physical contact is imminent prior to reacting (for an
in-depth examination of the danger here, see
the Goetz case).
• Be aware of
the aggravating and mitigating factors. Is there a size,
age, or ability differential? Are you or the attacker
armed or trained? All of these factors will help you
determine the appropriate level of force.
• Use only the amount of force necessary to deter the
attack. This does not require the use of ineffective
technique, but rather mature reflection prior to a
confrontation about what technique (including flight) is
appropriate in which situation. It would be wise to
introduce this as part of training.
• Once the initial threat is neutralized, stop. This
does not mean that you must give your opponent a
fighting chance. Rather, you may immobilize the attacker
while awaiting the police, but do no further damage.
• When intervening on behalf of a third party, ensure
(as much as possible) that the intervention
is justified and necessary. As a rule, interference in
domestic disputes is unwise. Reconciliations can mean
trouble for the would-be rescuer.
• Remember that, in this country, human rights are
superior to property rights. The use of force in the
protection of property is very risky.
• As an instructor, you are both morally and legally
responsible for the actions of your students, both
inside and out of the dojo.
As an instructor, you should know
the law at least to the extent of whether your state is
in the majority or the minority with respect to the
issues raised above. If you do not have a lawyer or law
student in your dojo, any law school library will have a
copy of: Your State Statutes Annotated (i.e., Texas
Statutes Annotated). Simply look in the index under the
headings listed in this paper for the applicable law.
DISCLAIMER: This analysis is
not intended as a comprehensive statement of the law, or
a legal opinion. It represents a general overview of the
law, accurate to the best of my knowledge, at the time
of publication. It is not intended for public
consumption, and should not be relied upon as a defense
to any criminal or civil charges or complaints.
