Monthly Archives: September 2016

Self-defense: Dominance, Escalation and Deception

Whether you think little or a lot about self-defense, you can live a better life when you consider self-defense from two perspectives: the practical and the legal.  The different schools of self-defense training agree on many things.  Similarly, the law of self-defense agrees in many ways across jurisdictions, cultures, even history.   And though practical self-defense training (how to do it) and the law of self-defense seem to be quite different perspectives, they share much in common.

Whether a legal defense of self-defense is accepted will depend partly upon what people believe the defendant’s situation was at the time – a totality of the circumstances.  Inevitably jurors, judges, all of us will compare what we believe the person being judged did, with what we imagine we would have done in those hypothetical circumstances.

“Better judged by twelve than carried by six.”

A wise aphorism in the lore of self-defense is “better judged by twelve than carried by six.”  The person required to use force in self-defense faces a two-fold threat: first surviving the physical attack; and second surviving the potential legal threat of being wrongly accused of a crime.

Dominance, Escalation and Deception

Some physical attacks are part of a robbery, a rape, a riot, or planned.  Putting those to one side for now, let’s look at the other sort – attacks that spontaneously rise from anger, conflict or a sense of having been treated disrespectfully by someone.  What are some strategies and tactics that can be used to both good practical and legal effect?

The Social Reality

Humans are social animals.  We have always lived in groups, each with our roles within the group.  Like other social animals, we have orders of social dominance, and individual competitions for dominance ranking.  These can be in part based on coercion (such as laws and law enforcement) as well as the actual use of force – lawful and unlawful.  Generally we are unaware of our social dominance orders and roles.

But when it comes to self-defense, awareness can be a powerful tool to help us avoid trouble – to avoid both physical attacks as well as legal attacks.

A person may present to you their subjective belief that you have treated them unjustly or wronged them in some way.  How can you use dominance, escalation and deception to avoid trouble?

call-of-the-wild-image-excerptWhen animals compete for social dominance, they often will display an escalation of threatening physical posturing, sometimes followed by an attack and fight.  They know what they are competing for – social dominance, a recognition by the other of their superior position.  If at some point one of the competitors backs down and shows surrender, this submission will cause the winner to cease the attack.  The dominant animal will not normally hurt the submitting one.  One great story about this in literature is Jack London’s The Call of the Wild.

Your humility may not be as deep and sincere as you might like – but you can use some tactical deception and adopt an attitude of humility.  If backing down helps avoid a conflict, you win.  You can’t stop someone from baiting you.  But you can refuse to take the bait.

Though humans can’t necessarily be trusted to stop attacking a person who is clearly not competing for dominance, it is a strategy that may work in some situations.  If the conflict is about the person’s perception of honor, justice, having been wronged – it doesn’t matter if they are justified – this may be a situation where conceding dominance, and de-escalation of conflict tactics may resolve the situation enough so that you can leave the situation, and move on.

Asserting dominance, escalation of conflict, can be just the thing

When a person or group threatens attack or attacks as part of a plan, like robbery or rape; conceding dominance and de-escalation of conflict tactics are unlikely to work.  In these situations, the aggressor is a predator with a goal, acting with rational purpose not just emotion.  Here, asserting dominance authoritatively, escalation of threat displays and the use of force may be best.  Why?  Predatory behavior seeks an easy target.  To ward off predators, be a hard target.  Show strength, confidence, and dominance.  Lead the escalation of conflict.  To the extent that the predator is primarily opportunistic, they may be deterred. Where not discouraged, the predator may be effectively disabled by force.

Evade, Escape, Engage.

Where practical, it’s best to avoid a potential physical concentration.  No one wins a fight, when everyone gets hurt.  This could mean crossing the street, walking the other way, driving away – any way out of there, away from the threat.  Sometimes it’s not a reasonable option to retreat – for example if the threat is already close and would simply attack you from behind if you turned and ran.  But in unarmed combat especially, creating some distance can increase safety.  Even when the attacker is armed, creating distance can sometimes reduce risk of harm.

In many traditional martial arts disciplines, for example Wing Tzun, a general rule is that we do not initiate an attack.  This idea, dating back hundreds – perhaps thousands of years, is not based on any legal considerations.  It’s a fighting tactic to either avoid a fight by not initiating; or forcing the opponent to physically commit to an action that can then be exploited with various combative counter-techniques.  This practice of not initiating a fight will also be helpful in the event of legal trouble, and the assertion of a legal defense of self-defense.

Before and once an attack is underway, we assess the threat and seek to bring a proportionate, reasonable response.  We don’t want to respond disproportionately, but the perfect is the enemy of the good.  Too little force to mount an effective defense could result in serious injury or death for ourselves or loved ones.  Too much could lead to legal trouble.  Those who judge us from outside the situation have the stress-free benefit of hindsight.  The arm-chair quarterbacks often think they could’ve done better, even though they weren’t there.

Stop the Threat

Once force is used, when should it stop?  Self-defense systems generally teach that you should use necessary force until the threat is no longer a threat.  Contrary to the impression in many films and television shows, the self-defender does not seek to hurt or to kill, but rather to disable the attacker or attackers – to stop the threat.  If an attacker is hurt or killed that is a consequence of the goal of self-defense – to simply stop the threat.  Once the attacker is disabled from continuing the attack, the use of force against them should stop.

After the use of force in defense of self or another

Once you have confirmed that the threat has been stopped or disabled, if it is safe to do so (being aware of third parties and weapons), it’s a good idea to render First Aid or whatever assistance can be rendered to the now disabled attacker, and contact the police if possible.  We’ll look at how to handle police contacts in the future (what to do, what to say and when).  But what you do, and knowing what to do, before police contact stemming from the use of force in self-defense is far more important.  Prepare yourself by learning and training in self-defense – not only for your sake but for the sake of your family, co-workers, and those around you.

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Self-defense and The Other

Self-defense is a legal defense to certain criminal charges in Minnesota.  The types of crimes alleged where a defense of self-defense might be asserted include: assault, murder, disorderly conduct and others.

It is not a bright-line sort of law.  If there were, the law would be easier to apply but justice and fairness would be sacrificed.  Instead, the law asks the finder-of-fact (the jury in the case of a jury trial) to look at the totality of circumstances to determine whether the accused person acted in self-defense.  A totality-of-the-circumstances test is more difficult to apply than a bright-line test, but can be more fair, more just.  Inevitably however, when a person judges another and their past choices under a totality-of-the-circumstances test (as with self-defense), that person must use their discretion; and in doing so will apply their own life experiences, biases, and point of view.

Who is The Other?

gran-torino-poster     Early in the popular Clint Eastwood film Gran Torino, the character Walt Kowalski leads a lonely existence but takes great pride in his lawn.  When gangbangers arrive to kidnap the young man next door, character Thao Vang Lor, causing a scuffle on his lawn, Walt appears with a rifle to defend the kid and his Hmong family, warning the gang members: “get off my lawn!”  Putting aside the application of self-defense law in this scenario, it is clear – in part by his use of racial slurs – that he views the kid he is defending and the kid’s family next door as The Other.

But by the end of the film, protagonist Walt Kowalski is fully connected with young Thao, who is like a son to him, and Thao’s family and Hmong culture.  Thao is no longer The Other, nor is his family or the Hmong culture.  Walt identifies with them completely.  This is one of the story arcs of the film, the movement from The Other to One of Us.

What difference does it make?

Whether we view another as The Other, or as One of Us, makes all the difference.  If another person is One of Us, then we are naturally empathetic.  We see each situation through their eyes, from their point-of-view.  But if someone is The Other, that means they are not like us, and we are naturally suspicious of their motives and behavior.

This may be hard-wired into our nature as humans.  Throughout human existence, until relatively recently, humans lived in small groups of ten to fifty people.  Each member of the group needed to help and be helped by other group members to survive.  But a person from outside the group was best viewed suspiciously, as a threat, at least until some reason came to light to assure otherwise.

You start out as The Other.

Imagine this scenario:  You have just left a bar downtown at closing time.  A few dozen people are standing around in the warm summer night chatting in small groups, before leaving for their next destination.  You are facing east, and notice three young men walking down the street towards the crowd that fills most of the sidewalk.  Suddenly you see one of the young men pull back his arm, form a fist, and strike a heavy blow into the side of the head of a man ten feet in front of you.  The man doesn’t see it coming, and is knocked to the ground.  Your jaw slackens in shock.  The man who was hit is on the ground, shaking it off, trying to comprehend what just happened.  The lone attacker squares off and goes after the man again, as he regains his feet.

The victim of the attack tries to defend himself, blocking and striking back with fists.   Then, you see other people in the crowd turning to look to see what the fuss is about.  They back away, to form a circle around the pair.  You overhear several people in different groups say: “why are those two guys fighting?” and “What the hell is wrong with them!”

Now, instead of being the bystander-witness, imagine you are the person who was attacked.  But 95% of the witnesses in the crowd did not see how it began or why.  They turned and noticed after that, to see “two guys fighting” – The Other.

Point-of-View matters.

Minnesota’s general self-defense statute is Section 609.06.  It includes the language “reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist: (3) when used by any person in resisting or aiding another to resist an offense against the person… .”

Two phrases in the quoted language are especially important: “reasonable force” and “circumstances exist or the actor reasonably believes them to exist.”

Whenever we see the word “reasonable” in the law, we have a totality-of-circumstances test, not a bright-line test.  All real crimes require proof of the element of criminal intent of the actor (the accused person).  This requires the fact-finder (the jury in the case of a jury trial) to evaluate the evidence from the point-of-view of the accused, not the point-of-view of anyone else, even a person claiming to be a victim of crime.  The statute emphasizes this point by saying the fact-finder must consider the circumstances that the actor (accused person) reasonably believed to exist at the time.  The law is curative – meaning that the law tries to fix a recognized bias endemic to our culture.  If that bias did not exist, we would not need legal language attempting to remedy it.

From this we can see some of the basic types of factors that are included in the totality-of-circumstances for self-defense:

  1. Was the force used reasonable?
  2. Was the force used reasonable under either the circumstances that actually existed, or the circumstances that the actor (defendant) reasonably believed existed?
  3. Was the force used proportionate to the circumstances, whether actual or reasonably believed to exist?

The reality is that when people in our culture see two people fighting they’ll generally view them both as The Other, with suspicion.  Similarly, when people hear about or think about people fighting they will tend to presume that the people are both guilty of something wrong.  This – despite their personal experience that many altercations involve an aggressor attacking or creating a fight with an unwilling, eventual participant, forced to defend herself.

This cultural bias has manifested itself in the form of the current Duty to Retreat in Minnesota.  In certain cases, the prosecuting attorney can try to reverse the burden of proof by forcing the accused person to show evidence that she met “the duty to retreat” prior to being entitled to a legal defense of self-defense.  The Duty to Retreat jury instruction gives the prosecuting lawyer a second bite at the apple of “was the force used reasonable?”  After all, what juror would find the use of force in self-defense reasonable, if the accused could have easily retreated before the altercation?  But the main point here is that the Minnesota duty to retreat is a manifestation of the cultural bias of viewing the abstract self-defender as one of “The Other,” with initial suspicion.

Implications for the future, and for the past

Every person should think about how they will defend against a future attack upon their person or upon another in their company, should it occur.  Ideally that will include self-defense training, whether it is one class or life-long learning and training practice.  As part of that preparation, we can consider: what can I do to better be perceived as a good guy (one of us) rather than The Other (a suspicious outsider)?  Our appearance can play a part in this, as can our words and conduct.

For those of us lawyers or defendants in criminal cases where in the past the defendant acted in self-defense, we can recognize one of the core issues will be “good guy vs. The Other.”  Here, not only the self-defender’s appearance, words and conduct will matter, but also the point-of view adopted by the fact-finder (jury) will be a key.  The law requires the fact-finder to look at what happened at the time, without the benefit of hindsight, from the point-of-view of the defendant.  But the defense lawyer, the judge and the other jurors will need to help the jurors overcome our initial cultural bias against The Other.  The defense lawyer will help the jurors get to know the person who is wrongly accused, is a good guy, acted in self-defense reasonably.

Thomas Gallagher is a Minneapolis criminal lawyer.  His practice includes cases where the accused person acted in self-defense.