Imagine that you are married to someone who has been struggling with alcohol addiction. Your spouse has been sober for an encouraging length of time. Then one day you get a call. Your spouse has had a slip and been arrested for DWI.
The police have seized your $40,000 car – the one he or she was driving at the time – for administrative forfeiture. That doesn’t feel right, does it? Could it be the last straw that stresses and breaks a struggling relationship, leading to another failed marriage?
Effective August 1, 2017 in Minnesota, as an innocent owner you will now be able to challenge the forfeiture of your vehicle to the government in court and assert the “innocent owner defense” even where your spouse was the DWI driver of that vehicle – thanks to the Minnesota legislature and Governor this year.
The new law, which amends Minnesota Statutes Section 169A.63, subdivision 7, effectively overrules a 2009 Minnesota Supreme Court case, Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431 (Minn. 2009). In that case the court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), did not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle. (We discussed the Bill before it became law here: The Moral Peril of Minnesota Asset Forfeiture Laws.)
Though spouses may be the most often affected, as co-owners of a vehicle with a DWI offender, the law in this area goes beyond spouses and applies to “family or household members” of the offender who are co-owners. The definition of “family or household member” is broad, and includes a parent, stepparent, or guardian; persons related by blood, marriage, or adoption as brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; and persons residing together or persons who regularly associate and communicate with one another outside of a workplace setting.
Who is an “owner?” The innocent owner defense statute defines “owner” as “a person legally entitled to possession, use, and control of a motor vehicle, including a lessee of a motor vehicle if the lease agreement has a term of 180 days or more. There is a rebuttable presumption that a person registered as the owner of a motor vehicle according to the records of the Department of Public Safety is the legal owner.” Note that the car title is prima facie evidence of ownership. In other words, it creates a rebuttable presumption. Ownership can be proven by other evidence as well.
What is the innocent owner defense? As of August 1, 2017, Minnesota Statutes 2016, section 169A.63, subdivision 7 “Limitations on vehicle forfeiture.” will read:
“(d) A motor vehicle is not subject to forfeiture under this section if any of its owners who petition the court can demonstrate by clear and convincing evidence that the petitioning owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the petitioning owner took reasonable steps to prevent use of the vehicle by the offender. If the offender is a family or household member of any of the owners who petition the court and has three or more prior impaired driving convictions, the petitioning owner is presumed to know of any vehicle use by the offender that is contrary to law. “Vehicle use contrary to law” includes, but is not limited to, violations of the following statutes:
(1) section 171.24 (violations; driving without valid license);
(2) section 169.791 (criminal penalty for failure to produce proof of insurance);
(3) section 171.09 (driving restrictions; authority, violations);
(4) section 169A.20 (driving while impaired);
(5) section 169A.33 (underage drinking and driving); and
(6) section 169A.35 (open bottle law).”
The burden of proof is on the owner petitioning to get their car back, to prove by “clear and convincing evidence” either that he or she “did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law” or that he or she “took reasonable steps to prevent use of the vehicle by the offender.” The term “constructive knowledge” is not commonly used outside a legal context.
“Constructive” here means, essentially, circumstantial evidence proving “knowledge.” It may refer to the list that follows, for “family or household members” who are “presumed to know of any vehicle use by the offender that is contrary to law.” Though that last phrase may be ambiguous, it seems to refer to past (as opposed to future) “vehicle use by the offender that is contrary to law.”
This presumption is rebuttable, however, and so does not seem to change the burden of proof, already upon the owner asserting the innocent owner defense. In other words, the burden is on the owner asserting lack of knowledge that he or she did not know.
Limited to first-timers, this law applies to a person “who has not been previously convicted of a violation of this chapter …” And the law applies to all “controlled substances” other than heroin.
Before this 2016 law, even these amounts of marijuana wax were charged as felonies. A felony drug conviction can trigger lost jobs, lost of civil rights, immigration consequences. The law steps in the right direction.
The statutory language:
Minn. Stat. §152.025, Subd. 4 (a)(1) “the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”
one-quarter gram of hash relative to the size of a lighter
Does this mean defense lawyers will no longer need to litigate trace amount issues and cases?
Also, this new law does not apply to heroin or federal cases.
What about marijuana, including derivatives such as marijuana wax, dabs?
Small Amount Currently Plant-form Only
Minnesota law defines possession of a “small amount” of plant-form marijuana as a petty misdemeanor (not a crime, violation-fine only). Minnesota Statutes §152.01, Subd. 16 defines Small amount: “‘Small amount’ as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.”
So, 0.24 grams or less of plant-form marijuana could be charged a petty misdemeanor violation, not a gross misdemeanor.
When could quantity be charged in dosage units, rather than weight?
We can be divide these into two categories: prescription drugs and underground-economy drugs. Most people possess prescription drugs in pill form. A “dosage unit” could be one pill, or more than one, depending upon the recommendation of the drug maker, pharmacist, or prescribing physician.
For underground economy drugs, “one dosage unit” could be more than one pill, or more than one square of blotter paper with LSD on it. For example, see State v. Palmer, 507 NW 2d 865 (Minn.App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit”).
A grey area: What about edibles like THC gummies? Is one a “dosage unit?” What about a marijuana wax cartridge?
Medical marijuana produced by a legal-maker should be treated like prescription drugs.
Pre-trial Diversion & Statutory Stay of Adjudication
What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18?
They are still available for those charged with Minnesota Fifth Degree “Controlled Substance” Crime, Gross Misdemeanor, since the charge is a Fifth Degree charge against a person without prior drug convictions.
We, the People, should have our rights respected by government to marijuana and marijuana wax, equal to our rights to beer, wine and liquor.
Short of legalization, however, we should at least delete the “resinous form” exception to the definition of a “small amount of marijuana.” If Minnesota did so, at least People with a small amount of marijuana wax (42.5 grams or less) would not be treated like criminals.
Do you remember the story about Jesus as defense lawyer for the woman accused of adultery?
What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament?
We can learn about what criminal defense lawyers do. And we can learn about the laws of evidence.
We can learn about a jury’s right and power to sentence. And we can learn about connecting persuasively with people. The story of Jesus as defense lawyer is short and entertaining but filled with wisdom.
First, the story from John Chapter 8:
But Jesus went to the Mount of Olives. At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.
Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.
Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”
Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”
“No one, Lord,” she answered.
“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”
John 8:1-11 HCSB
What do criminal defense lawyers do?
In this story of Jesus as defense lawyer, he shows us what criminal defense lawyers do.
Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600
We defend the human being accused of a crime, to be punished if convicted under the laws.
In this case the crime was adultery. And if convicted under the laws, the punishment could be death – death by a group of people throwing stones at you until eventually dead, a death by torture.
Jesus as defense lawyer
The accused person could testify. Through much of our legal history the accused was incompetent to testify due to a presumption that they would lie to save themselves. But even with that right,the accused having an advocate speak for her gives her a better chance of being heard, fairly.
Jesus accepts, advocates for an unpopular person
Here, Jesus speaks for her, and advocates for her life. He accepts the challenge. Jesus as defense lawyer, advocates for a socially condemned person.
This is the most important thing a criminal defense lawyer does. It is our sacred duty, our sacred honor.
The advocate for the accused seeks the outcome desired by the accused. Anything else would make us not an advocate: unethical or a failed advocate.
Our tool for achieving that outcome the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.
The laws of evidence
We can tracetoday’s laws of evidence back to the time and place of Jesus, and earlier. Jesus as defense lawyer, knew the laws well.
The laws of Moses required two or more witnesses to the crime before someone could be sentenced to death – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.
One accusing witness was not enough to trigger the death penalty. Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This made a death penalty illegal under the law.
Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die.”)
Where is the man? How do we know the man is not any one of the men in the de facto jury? The prosecutors do not have the man who they claim committed adultery with the woman.
Could this be the meaning of Jesus’ argument?: “The one without sin among you should be the first to throw a stone at her.” Was that was a challenge to the prosecutors to produce the guilty man, if they could?
Many presume the woman’s guilt in the story. But read carefully. It tells what the prosecutors said: “they said to Him, ‘this woman was caught in the act of committing adultery.‘” That statement is an accusation, just a charge, an unproven claim. Jesus as defense lawyer, points that out.
The prosecutors fail to produce evidence to prove claim
Presumption of innocence – not enough evidence
After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?” With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed.
Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman. The presumption of innocence remains unless overcome by evidence of guilt. An accusation alone is nothing. Jesus as defense lawyer makes this clear.
One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.
A jury’s right and power to sentence
Was the woman put on trial in the proper manner under the laws at the time? The contrary appears more likely (not unlike the Trial of Jesus, later).
And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.
Whether a proper, lawful trial or not – the accusers urged a death sentence to be carried out by the crowd, right there on the spot.
Jesus as defense lawyer, invoked not only the law and its requirements. He also made a direct appeal to the right, and the power of the de facto jury to refuse to convict her.
Jury lenity and jury nullification
Today we have many terms for this including jury lenity and jury nullification.
Jury lenity is the jury’s right to be more lenient than the law requires.
Jury nullification is the power of the jury to deliver a not-guilty verdict even when it believes the accused guilty of violating the letter of the law.
The modern practice of removing sentencing power from the jury destroys the true jury trial, as this story about Jesus as defense lawyer shows.
Law or equity?
As often is the case, it is difficult to know whether the de facto jury walked away after the argument of Jesus in deference to the laws of evidence or out of compassion. But when Jesus said: “The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?
His later statement to her: “Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was too weak; or both he, the jury, and the accusers had compassion. If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.
Criminal defense lawyers can relate to this experience of Jesus as defense lawyer. We often don’t know. It is enough that proof beyond a reasonable doubt was lacking. But we want our clients to avoid future accusations regardless.
Prosecutors attempt to set up Jesus for prosecution
They’ll stone you when you’re trying to be so good
The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion. Clearly the ethos of Jesus was also on trial.
“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus. After all, Jesus had returned there again to teach his gathered students, writing on the ground.
The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery, demanding her death, “to trap Him, in order that they might have evidence to accuse Him.”
The prosecutors used the poor woman as a pawn in a game designed to destroy the ethos; the credibility of Jesus to his students. The prosecutors would smear Jesus by association with an accused criminal. By baiting him to defend her, they hoped to make him complicit in her alleged crime. Criminal lawyers today understand this tactic used against Jesus as defense lawyer.
Connecting persuasively with people
The description of his behavior shows Jesus’ confidence. He is a teacher. The prosecutors interrupt as he is writing on the ground while instructing his students. They address him with respect. (Ethos goes both directions.) Jesus listens with respect.
He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing.
We see social mirroring. We see the invocation of shared values and laws. He is connecting. Jesus makes good use of his ethos to persuade.
Using logical argument
“Logos” is an appeal to logic – a way of persuading an audience by reason.
Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”), the lack of confrontation of witnesses — all contrary to law.
These are appeals to logic. Jesus shows that the prosecutors charge is not proven under the law by their evidence — or lack of evidence.
Why should we care?
“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response. “The one without sin among you should be the first to throw a stone at her.”
Jesus challenges each listener to publicly declare that he or she is without sin. He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person.
I see you
This challenge pierces right to the heart of any human being.
It requires us to shift focus away from the accused woman, and to look inside, to search within ourselves instead.
Jesus correctly asks the jury to question whether the issue is really about them, not the lady accused.
She is not “the other:” they are like her – connected by something in common.
Jesus invites them to be greater than the low identity that the prosecutors invited them to assume. Liberty and love go hand in hand.
The lessons of this story of Jesus as defense lawyer are memorable. We can all learn from it, regardless of religious belief. Criminal defense lawyer can learn much from it, too.
When it comes to self-defense law, courts look to the totality of circumstances. There is no bright line test. But one important factor is disparity of force.
Yes, disparity of force means what it sounds like. It means that you can lawfully use force in self-defense reasonably proportionate to the threat of force you face.
The stress of the moment
As a defender from criminal violence, you’ll be aware of the situation and make your best assessment in the moment. As you do, you will consciously or unconsciously note factors that will guide your mental attitude and response actions.
If you do use force in self- defense, you may later be required to justify your use of force, legally. A jury, judge, police officer, media, and the community will all consider the factors you face. You should consider these factors at the moment of threat to your personal safety.
But the people judging you will not experience the stress of being under attack, or the time pressure. They will have the benefit of hindsight – access to information you did not yet have at the time.
Legal self-defense, too
Sometimes it seems that no matter what choice a person makes, someone imagines they could have done better.
That gap between the ideal and the real may seem inevitable, but how can we reduce it?
Physical self-defense training is vital. But it’s also important to consider these issues deeply. That way, when they come up we’ll be ready to make the right choices.
The first foundation of personal safety is situational awareness. We strive for a high level of awareness of our situation at all times. But humans have a limited ability to pay attention. When we divide our attention across multiple objects, we degrade our awareness.
We should heighten our situational awareness depending upon time, place and immediate circumstances. For example, relaxing within the safety of our home, we may have no problem multitasking. But while driving our car, or walking – we may divide our attention. We might do two things at once. If we divideour attention between those tasks and say, attending to our smart phone, we degrade our awareness and safety.
The good news? We can avoid dividing our attention.
Alcohol and other intoxicants also degrade our awareness. When police stop a driver on suspicion of DWI, they will generally ask the driver to perform roadside field exercises. These are divided attention tests.
Alcohol can impair aperson’s ability to divide her attention and perform two tasks at the same time. We can avoid the alcohol or impairment by alcohol to maintain our ability for situational awareness.
When it comes to criminal violence, we need to be aware of other humans. We need to be aware of proximity, threat potential, and potential responses to any threat presented (plan B).
We can adjust to threats before the risk of violence grows. For example if we are situationally aware and spidey-sense a possible threat, we can cross the street or move away.
Sometimes situational awareness will not help us avoid trouble. If a physical attack suddenly presents, situational awareness can help us respond in the best possible way under the circumstances. When it happens, we must weigh disparity of force factors instantly.
Disparity of force or threat
Disparity of Force and Self-Defense
The core of self-defense law is the use of reasonable force under the circumstances. That’s why the question of proportionality is key.
If you face a threat of attack, or an attack, the law expects you to act reasonably.
It expects you to use force reasonably proportionate to the threat or force used upon you.
Several common factors increase the threat to you. These include the size of the attacker, number of attackers, and weapons.
Size and strength disparity
If you are a 100 pound, 65-year-old woman facing a 200 pound, 20-year-old man threatening rape or robbery, would that disparity in size and strength justify your use of greaterforce than if the situation were reversed? We know it would.
Relative size and strength is a disparity of force factor.
Single attacker vs. multiple attackers
It is more difficult for one person to defend against multiple attackers than a single assailant. As a result, a person defending against multiple attackers must use more aggressive and more lethal force.
Against a single unarmed attacker, forcing them to initiate not only has a tactical advantage but also a legal one. But against multiple attackers, it may be necessary for the self-defender to strike first, perhaps against the apparent leader.
Multiple attackers are a disparity of force factor.
Sobriety vs. intoxication
Alcohol (and other drugs) is a wild card. It can cut in multiple directions. We should consider it, since most assaults involve alcohol.
Assuming a two person conflict, either or both may have been drinking. Generally voluntary intoxication is not a defense to criminal liability. But it can have a big effect on both intent and physical ability. And even those can vary with the person’s level of intoxication.
Intoxication could make the aggressor a greater threat than if sober. If so, the use of greater or more lethal force could be justified.
Intoxication is a disparity of force fact.
The use of force continuum
The force continuum is the range of levels of force. Implicit within the term, use of force continuum, is proportionality.
Depending upon the circumstances, calling 911 and the presence of a police officer; or a verbal warning and display of a weapon, might be on the lower end of the force continuum.
We calibrate our response to the disparity of force the attacker presents.
The community would like us to use the lowest level of force possible to avoid or resolve a physical conflict. Yet we view self-defense from the perspective of the defender, what they knew then, and the pressures of the situation.
In a criminal case, we judge whether an act was criminal from the point-of-view of the defendant. Even so, the defendant’s acts must have been reasonable under the circumstances at the time. Therefore, we must view all eventsfrom the perspective of a reasonable person in the defendant’s shoes. If you’re a self-defender, you are that potential defendant.
Verbal and nonverbal communication
To the extent possible, it’s a good idea to communication verbally and non-verbally with the criminal assailant. Give clear verbal warnings.
Depending upon circumstances, you may be communicating de-escalation or escalation. Communicate whichever is then most likely to stop the threat or the criminal act.
Escalation, where used, should avoidfighting words or provocation. Instead, use verbal commands to stop the attack, disarm, and the like. You may also be communicating so that your intentions are clear to any witnesses or electronic observation.
Where possible, call 911 to request police help as well as to create an audio record of what is happening.
It’s good to have options, and it’s nice to have a weapon if attacked. Having a weapon does not mean it must be used. Empty-hand defense can also vary in level of force. For example, we might disablean unarmed attacker with a snap kick to the knee to break their leg. But if we are capable of stopping the attacker effectively with a lower level of force or injury, we will.
We will try to use the lowest level of force to effectively stop the threat from the assailant.
Armed with weapon
What if either you or the criminal attackers have a weapon? A weapon is a big disparity of force factor. And it can be a great equalizer.
Usually a person with a weapon will try to conceal its presence. We use our situational awareness to detect whether they have a weapon. The weapon could be either within reach, on their person, or in their hand.
Since a weapon in hand is the greatest threat, we try to see whether a weapon is in their hand. A common clue is that the person conceals one or both hands behind or otherwise out of sight. If it seems possible, a verbal command may be in order: “Drop the weapon! Now!”
If you have a weapon, depending upon circumstances, you may choose to keep it hidden. Most trainers advocate keeping a weapon out of sight until it is necessary to use it.
Exception to the general rule: Displaying a weapon as part of a warning to avoid injury could be reasonable, self-defense. The circumstances make the difference. Be aware, however, that showing a weapon can lead to a “brandishing” assault charge.
Perceived disparity of force turns out to be wrong
Legally, afterwards, the issue may arise of whether the defendant reasonably believed the assailant had a weapon. This is a big problem when police don’t find a weapon later. You subjectively perceived a disparity of force. But it turns out you were wrong.
To reduce this risk, try to be sure the criminal does have a weapon; verbalize the presence of a weapon; and if possible be sure police later are able to locate it. (Point it out.)
Lethality of weapon
When it comes to weapons, some have lesser or greater levels of force – for example pepper spray vs. a handgun. So, the lethality level of the weapon affects disparity of force.
A weapon is a force-multiplier. It can multiply the level of force that you are capable of using in self-defense.
Proximity to the threat is another factor that relates to force-multipliers. A knife can be a better close range weapon than a gun, for example.
It’s nice to have choices, when it comes to lethality of weapons. Police officers generally have more equipment than other folks do. But whether we are at home, in the car, or out and about, most adults have choices available to them. The factors limitingchoice may be, on the one hand knowledge and training, and on the other hand convenience.
Range and distance; proximity
Distance is important when it comes to reasonable fear of imminent bodily harm or death. Some open-hand fighting styles are long-range or short-range. A kick can reach farther than a punch. Different weapons have different effective ranges. A baton has a shorter range than an arrow.
A closer threat creates a greater disparity of force.
The law of self-defense has no bright line, just a totality of circumstances test. That test means discretion.
Life experience, personal or indirect
Discretion is rooted in the experience of the beholder. Rather than personal training, today the average person’s “experience” is indirect. It’s from stories they’ve read, seen or heard. Most often it’s in entertainment media such as songs, books; especially movies and television.
These mythological “experiences” are problematic since they tend to be wrong more often than not. For example, in the movies when someone is shot with a gun, they drop dead immediately. But in real life, that is rare.
An attacker with a knife twenty-one feet away who isshot by a lawful defender, can still kill the defender with the knife. See The Tueller Drill.
“Once engaged, don’t stop until the threat is stopped. Once the threat is stopped, disengage.”
After you’ve been attacked, continue the necessary, reasonable use of force in self-defense until the threat is over. Once the attacker is disarmed, disabled or otherwise no longer a threat, the use of force is no longer necessary. It stops.
It may be a challenge to determine when this point has been reached, depending upon the situation. It’s often a good idea to leave the area as soon as it can be safely done. It’s a good idea to get help for the injured criminal if possible, possibly via 911. If it is clearly safe to do so, render First Aid.
We do not seek retribution
We do not take it upon ourselves to punish, or teach a lesson to the wrongdoer. Nor do we stoop to revenge. We do not express anger.
Once the threat is disabled or stopped, we stop using force.
What do you think?
Are there other factors we can weigh when considering whether a person’s use of force was in self-defense? How does disparity of force influence what is reasonable self-defense?
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?
When 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 disproportinately, 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 created in many films and television shows, the lawful 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 an unintended consequence of the focused 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 also 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.