Category Archives: minnesota defense attorney

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.

How to Know > Do You Need a Criminal Defense Lawyer?

Do I need a Minnesota Criminal Lawyer?
Do I need a Minnesota Criminal Lawyer?

Do You Need a Lawyer?

When it comes to criminal law, most people have been fortunate never to have ask themselves that question.  We do not expect the unexpected.  How do you know when, “I need a lawyer!”

Value of Keeping Your Public Criminal Records Clean

With no public criminal record, your potential future employers won’t be scared off by a criminal conviction.  You could be disqualified from certain occupational licenses  in the event you were convicted of a crime.   Certain convictions can also result in: loss of civil rights, such as voting and firearms rights; removal and deportation from the U.S.; denial of naturalization; loss of student financial aid; offender registration, and other negative consequences.

For many, the largest, quantifiable impact will be to future income stream.   How can a criminal conviction affect your future income?  If you assume a person is age 30 and will work until 70, that is 40 years. Multiply 40 years times a conservative $10,000 estimated reduction in annual income as the result of a conviction.  That would amount to $400,000.  At eight percent interest per year, that would be over one million dollars in lost income by age 70. I have had clients suffer a $45,000 per year reduction in income while an expungement proceeding was pending in court, so the real number could be in the millions, depending upon career path.

Is Jail or Prison Time Probable if Convicted? 

If you are charged with a serious criminal offense, there may be a threat of jail or even prison time.  Even for minor crimes, jail can be a real threat, when a person has prior convictions.  The maximum possible incarceration term specified in the criminal statute charged is rarely executed.  In felony cases, the Minnesota or Federal Sentencing Guidelines will provide a “presumptive sentence” after based upon the severity level of the offense of conviction and criminal history score.  Though there can be upward or downward departures from the presumptive sentence, it is useful to look at the presumptive sentence. There are also “mandatory minimum” sentencing statutes in Minnesota and United States Statutes which can be cruel, severe, and lengthier than the presumptive guidelines sentence.  It is vital to consult a criminal defense lawyer to discuss these factors. In non-felony, misdemeanor cases, up to one year in jail can be possible in Minnesota cases.

If It Is Important to You, Then It’s Worth Getting the Best Lawyer You Can to Help

For many reasons, it is valuable to prevent a criminal charge, to prevent a criminal conviction, and to prevent a criminal sentence in Minnesota.  The rule is simple.  If it is important, then it is important to have a good lawyer’s help in protecting it.  You and your family are worth a lot.  A good criminal lawyer can help protect your future, and your future income earning potential.  Protect your good name while you can – before it’s too late, before a guilty plea.  (Keep in mind that in order to qualify for a Minnesota expungement someday under Minnesota’s expungement statute, you’ll need to avoid being convicted and avoid a guilty pleayou must plan ahead in order to do so!)

This article was written by Minneapolis Criminal Lawyer  Thomas Gallagher.  Gallagher answers questions about Minnesota law court cases and issues every day, free, over the phone.  He also provides free half-hour office consultations by appointment.  You can give Gallagher a call with your question or to make an appointment at 612-333-1500.

Avoiding Traffic Stops – New Minnesota Laws 2009

Another year, another truckload of new laws – the usual, right?  How does that affect you?  For the most part, hopefully it doesn’t.

But when you consider the fact that most criminal law problems – large and small – start as vehicle traffic stops; it pays to be aware of new laws allowing police to stop you.  Some of these went into effect June, July and some August 1, 2009.  All represent an expansion of government power and a reduction of your liberty and freedom.

 Do you remember several years ago when advocates of another law to mandate seat-belt use upon penalty of a petty misdemeanor fine, reassured us “don’t worry, we will never ask for a primary seat belt law;”  How long is “never,” again?  Not that long, it seems.

It starts with a traffic stop...

It starts with a traffic stop…

Police now can stop you for merely not wearing a Seat-belt in Minnesota.A “primary violation” seat belt law gives police the legal right to stop a vehicle if someone in the vehicle appears to not wear a seat belt.  The previous version of the seat belt law did not allow traffic stops solely for the appearance of not wearing a seat belt.  This year’s law does.  The law eliminates personal choice, and personal responsibility.  It hands over more responsibility and more power to the government, taking it away form the individual.  It reduces the need for people to educate themselves, be responsible for themselves, and develop a personal moral code.  It reduces your freedom.  As usual, they claim sacrificing your freedom is worth it – for your own good.

The new “primary” seat belt violation law increases the potential for stops and arrests resulting from racial profiling.  Racial profiling is a real problem – difficult to solve.  Though police generally don’t view themselves as racist (few people do), they are no different from the rest of us, and are no more perfect in relation to racial stereotyping and its effects.  We know that when it comes to race, there is a disparate impact upon people identifiable as part of a racial minority group that can only be explained by race.  Creating more opportunities for police to stop people for petty, technical violations inevitably leads a worsening of the racial profiling problem.

Social control by force – by law enforcement – is corrosive to our culture and our youth.  Why learn responsibility as an individual if the government allows you little of it, and controls ever smaller aspects of your life – year after year, law after law?  This seat belt law gives law enforcement yet another reason to pull someone over, and to find another, bigger reason to interfere with your life.

Expansion of Child Seat law.

Under the new law, children in a motor vehicle must now be in a child passenger restraint system until their eighth birthday or they reach 4 feet 9 inches tall.  Of course, this is yet another reason for police to stop you if it appears you might be in violation of this.

Global Positioning Systems on Windshield .

Global Positioning Systems (GPS) can now lawfully be mounted or located near the bottommost part of a vehicle’s windshield.  Previously, anything mounted on the front or rear windshield put the driver at risk of a traffic stop by police.  The “obstructed windshield” statute, used by police ot justify such traffic stops, does have some language about obstruction to the drivers view – yet, it gave police the legal excuse to stop someone if there was anything on the windshield, or between the windshield and the driver.  These have included RADAR detectors (otherwise legal), notepads stuck to the windshield, air fresheners or other items hanging from the rearview mirror, and the like – in addition to GPS units mounted to the windshield.  At least now there is an exception for GPS units mounted to the lowest portion of the windshield.  Presumably in that location, the driver’s view will not be impeded.

What about a RADAR detector?  Prudence might argue for a newer RADAR detector with a GPS unit incorporated in the same unit.  That – or don’t mount it to the windshield.  (See, Speeding Laws in Minnesota for a discussion of MN speed law.)

Tips for Avoiding Traffic Stops.

Other than changing your race, age, car, etc., how can you minimize your risk of a traffic stop?  Of course, obeying the traffic laws seems obvious.  But what about all of the technicalities the police can use to either ruin your day, or ruin your life?  Here’s a list of a few:

  1. Avoid placing any decals of any kind on your front or rear windshield, even where instructed to do so by a government agency.  Instead, place them on a side window, where necessary.
  2. Make sure there are no cracks in your windshields.  In winter, make sure they are free of ice and snow.
  3. Avoid hanging items from your rear view mirror, like air fresheners.  Place them below the windshield level.  Avoid hanging anything from sun visors.
  4. Make sure all of your lights, brake lights, turn and lane change indicator lights, as well as license plate illumination light – are all working.
  5. Make sure your vehicle is displaying proper license plate or other registration evidence.
  6. Make sure your vehicle’s suspension, alignment and steering are good enough that your vehicle does not weave.
  7. Avoid tinted glass police may view as illegal.  (And work on changing this law.)

Given the plethora of overreaching laws already in existence, it has never been more important to prevent police from violating your privacy and liberty interests.  Traffic stops are the narrow end of the wedge the government can drive into you and your life, to hurt or destroy you.  Every police contact creates a risk of a life-altering criminal charge – innocent or not.  Every smart citizen should strive to avoid these police contacts in the first place.

FFI: Author, Thomas Gallagher, Minneapolis Criminal Lawyer.