We’ve All Seen it Before...
“What are you looking at, bro?” The Instigator postures up, inflates his chest and holds his arms further away from his body in an attempt to make himself look bigger and more intimidating. His piercing stare is meant to induce fear into his Opponent.
“Huh? Nothing. What’s your problem?” The recipient of this attention is initially taken off guard but is unwilling to concede or lose face to the Instigator in front of the others in the room.
“You’re my problem, bro. Checking out my girl and staring at me like you’re a tough guy.” The Instigator uses accusations to justify his need to initiate a conflict with his Opponent.
“You better get out of my face.” The Opponent is making a stand and showing that he is willing to throw down by making a threat of his own.
“Or what?” The Instigator tries to elicit an ultimatum from the Opponent so he can force him into a position to either put up or shut up. To either fight or lose face.
“Or I’m gonna kick your ass”, says the Opponent, as he shoves the Instigator away with a two handed chest push. Physical contact has been initiated. The ritual has moved into the next phase.
The two men exchange shoves, pokes and maybe even light grabs while they continue to exchange words. Things could end right here, however, the ritual moves on to the next phase when the Instigator pushes the Opponent’s face away with his hand. Interpreting this as an attack, the Opponent retaliates with a Haymaker punch that knocks the Instigator down to the ground. The Opponent pounces on top of the Instigator and they begin to grapple. The Instigator has a little bit of grappling ability, and when combined with some luck he’s able to get to the top position and starts to rain punches down on his Opponent… just as the police arrive.
When the men speak to the officers they both claim that they were defending themselves from the other’s attack and initiation of the fight. So, naturally, both men are then very confused as they are both handcuffed and taken off to jail.
The Dunning-Kruger Effect
I have found that most adults I talk to don’t know or understand the self-defense laws of the State they live in. Which, is very bad to say the least. These are the laws that a judge and jury will use to decide your fate should you ever have to defend yourself or a loved one from another person or group of people.
Many people will contemplate that statement and will see how it could apply to others, but not to them. These people are certain that they know the self-defense laws of their State and how they will be interpreted by a jury… even though they’ve never actually read those laws or any jury instructions pertaining to those laws. Nevertheless, they feel as if they innately know the legalities of these matters and choose to rely on their common sense alone to navigate that legal landscape.
This erroneous assessment of one’s self is one half of something known as the Dunning-Kruger Effect (1). The Dunning-Kruger Effect is a cognitive bias wherein people of low ability suffer from illusory superiority, mistakenly assessing their cognitive ability as greater than it is.
The cognitive bias of illusory superiority derives from the metacognitive inability of low-ability persons to recognize their own ineptitude; without the self-awareness of metacognition, low-ability people cannot objectively evaluate their actual competence or incompetence (2).
Conversely, the other half of the Dunning-Kruger Effect is that highly competent individuals may erroneously presume that tasks easy for them to perform are also easy for other people to perform, or that other people will have a similar understanding of subjects that they themselves are well-versed in (3).
As described by social psychologists David Dunning and Justin Kruger, the cognitive bias of illusory superiority results from an internal illusion in people of low ability and from an external misperception in people of high ability; that is, "the miscalibration of the incompetent stems from an error about the self, whereas the miscalibration of the highly competent stems from an error about others.
The Dunning-Kruger effect can be an issue in many other areas where people may think that they know far more than they actually do. In regards to the legalities of self-defense, however, I feel as if the stakes are far too high to be ignorant of the laws that could possibly affect you, your family and your personal freedom should you ever be in a self-defense or use of force situation.
Admitting Your Guilt
From a legal standpoint, to claim that you used force in self-defense is to admit your guilt in having caused harm or death to the other party. What you are telling the court is, “Yes. I did this. But, I did so in self-defense and here is my legal argument as to how I was legally justified in doing what I did.” Your lawyer will present your case and the jury will make their judgement as to whether or not your were in fact legally justified to act in the way that you did.
Remember, whether or not you did it is not what is being argued or decided. You are admitting to the court that you are the person who used force against the other person. You’re guilty of that. However, if your lawyer can effectively argue to the jury that you were legally justified to use the force that you did, and the jury agrees with them, the charges against you will be dropped.
The Five Elements of Self-Defense
In order to demonstrate to a jury that your use of force against another person was legally justifiable your lawyer (you) must be able to argue you in your favor that your actions met the following five elements of legal use of force:
Innocence: You must be able to show that you were the innocent party and that you were not the aggressor or initiator of the assault. Many people are uncertain of what actually constitutes an assault. The vast majority of people are under the false assumption that the aggressor/initiator of the assault is whoever threw the first punch or made the first contact. Therefore, they believe (to their detriment) that in order to be able to claim Innocence, that they must be struck first or be the person who received the contact first in order to then defend themselves. This is a dangerous and at times deadly misconception.
To be clear, there is no jurisdiction in the United States that requires a person to first be struck, injured or even touched by another party before they are allowed to legally and reasonably defend themselves. It is possible and very common to be assaulted long before the assailant ever makes physical contact with you. Understanding what constitutes assault and being able to articulate why you did what you did can allow you to preemptively defend yourself with reasonable force.
Imminence: The threat that you used force to defend yourself against must have been imminent. As in, there would be no delay between a person’s threat to use force and their application of that force.
An example of Imminence would be if a person was standing in front of you with a gun and said, “I’m going to kill you with this gun.” Because of their proximity to you and that they seem to have everything they need to do the job already in their hands, the Imminence is very high. However, if they said, “I’ll be right back. I’m going to go out to my car and get my gun, then I’m coming back here to kill you. Wait right here.” We would have to think that the Imminence is low. The attack is not immediately pending. It is in fact several minutes away depending on where they parked. In the meantime you could lock the doors after they leave, or remove yourself from the area. In most cases like this there would be a lot of things you could do in the delay between their threat and their returning with a gun. Shooting them in the back while they’re leaving to go get their gun is probably a very bad choice in this particular example.
Reasonableness: This is the criteria of whether or not it is believed by the jury that you had “a reasonable belief” that you were about to be either seriously hurt or killed by the assailant. Typically, to determine Reasonableness a three pronged test is used: Ability, Opportunity and Jeopardy.
Did the assailant have the Ability to do physical harm to you? Yes, they are a human adult with all their limbs and had the ability to harm me. Or, no… it was a 90 year old invalid grandmother in a wheelchair with the brakes locked on. She did not have the ability to do me harm.
Did the assailant have the Opportunity to do you harm? This can overlap with Imminence in that it can become an issue of proximity. If you’re on the porch of your house and you spot a person with a knife is running towards you from a block away, the smart thing to do would be to go inside and lock the doors. Yes, the person clearly has the ability to hurt you. They are an able bodied person carrying a knife. But, because of the proximity issue they lack the Opportunity to actually harm you at this time.
Are you in Jeopardy from the person with the Ability and Opportunity to harm you? If you walk around larger sized towns and cities you walk by people everyday who have the Ability and Opportunity to harm you. They are able bodied, they are carrying guns and often knives as well, and they are at times in very close proximity to you. They’re called police officers, and unless you present yourself as a threat that is trying to seriously harm or kill them, you aren’t in any Jeopardy. Even though the officer has a gun, they aren’t just going to shoot you because you happen to be near them, even though they possess the capability to do so. Jeopardy can also be viewed as the Intent of the person. Does the officer have the Intent to harm you? No. Then you aren’t in Jeopardy.
Avoidance: This may not be a requirement in all States or in all situations as some States have Castle Doctrine and/or Stand Your Ground Laws which can remove this element as a requirement in some specific situations. However, it is very important and should be discussed because even if you don’t HAVE to demonstrate Avoidance, if you can demonstrate that you tried to avoid the situation it could only serve to help your defense.
Avoidance can be lumped into the concept known as Preclusion. Preclusion as defined in self-defense law means, “What else did you try to do besides use the level of force that you did?” Were there any safer options available to you? Could you have retreated? Could you have used a lower level of force? Could you have safely barricaded yourself and waited for the police to arrive?
What’s being determined here is whether or not there were safer and possibly better options available to you that you either did or did not exercise.
Herein lies the concept of “Had To” vs “Wanted To” that I originally learned from Chris Fry of MDTS Training (4). Chris wants his students to always be aware of this concept when training or acting in self-defense. Did you punch the guy who was pushing you around in the parking lot because you had to, or because you wanted to? Can you articulate your reasons?
Proportionality: Was the level of force that you used proportional to the level of force being used against you? Or, was is it excessive? After using a jab right cross combo and stopping the threat by knocking them out, did you escape to safety (and call the police), or did you stomp on their face and groin, ala Master Ken style?
A reasonable level of force is one that is appropriate for being capable of stopping the threat and nothing more. In most cases it is not a proportional amount of force to shoot someone for slapping you. You are using a lethal level of force to stop a very non-lethal level of force.
However, within the element of Proportionality is the concept of Disparity of Force. Disparity of Force is most obvious whenever a victim uses a firearm against an unarmed attacker. This may be legally justified due to special circumstances with the victim. For example, let’s say a large adult male - a professional football player, who weighs 280 lbs, was about to slap our 90 year old invalid grandmother in a wheelchair from earlier. But, before he could do it she shot him with her pistol that she always carried with her and he died as a result. It could be argued that the level of force she use was proportional because if a person in her state received a slap from a man that sized it would likely cause her serious bodily harm or death.
Another example might be if multiple assailants were unarmed but attacking just one individual. The level of force being used against that one person can not be matched proportionally by that one person alone, and a group of people can do far more serious damage to a person than just one person can. Therefore, the person may be legally justified to use a weapon to defend themselves from that group of unarmed people.
The Monkey Dance & Social Violence
If we return to the initial scenario at the start of this article and apply what we now know about the legalities of self-defense we can see how both men involved are wrong in their assessment of the situation and their mutual claims to self-defense. Both of their claims will most likely fail to meet the elements of Imminence, Reasonableness, and Avoidance/Preclusion. The Initiator will also not be able to meet the criteria of Innocence while his Opponent will have a tough time arguing Proportionality (remember how he pounced and continued to beat the Initiator as police were arriving?).
These men were not involved in a self-defense situation, they were caught up in a ritualized form of social violence that males of many species find themselves caught up in. Male primates, and humans in particular, have evolved over the course of millenia to engage in this ritual and find it incredibly difficult to avoid. It is the way that males will establishing a pecking order/social hierarchy when in groups. In some cases it is non-physical but with implied physicality or other form of dominance - such as the hierarchy that can exist in the boardroom. At other times it is very physical and violent. I prefer to use Rory Miller’s term for this form of social violence amongst males and call it the “Monkey Dance” (5).
The Monkey Dance as used in the example is ritualized, follows a particular type of choreography and is by nature meant to be non-lethal. Perhaps I’ll write more about the specifics of why this is the case in a future article. But, for now consider this example from nature. Adult male Grizzly Bears are one of the most fierce and deadly animals in North America. A swipe of their paw can easily decapitate an adult human. Needless to say they are very capable of killing other animals and even each other. However, when the males battle for mates and territory the results of their fights are rarely lethal. Why is that? It’s because the dangers posed to both combatants are far too great in a lethal encounter. It does the species little to no good to have regular lethal combat amongst its members. Even the winner of such an engagement may very well die from their injuries before they are able to successfully reap the rewards of breeding with the local females. In short, it’s not a very good survival strategy for the species, the herd, the tribe or the group to solve these sorts of issues lethally.
The downside to the Monkey Dance is two-fold. First, most males are unaware that they’ve been drawn into this ritualized battle. From an evolutionary perspective, males who are susceptible to getting involved in the Monkey Dance have been preferentially selected to procreate and pass along their genes. However, as the saying goes, “Forgive them, for they know not what they do.” Most males who get sucked into doing the dance don’t realize it and interpret the signals as a legitimate threat to themselves that must be physically defended. However, by instinctively following the choreography of the ritual we can see that they are operating within the confines of the evolution of the ritual and are agreeing to play by its rules. What I mean by that is they are generally not exceeding the level of force necessary to simply win the contest. Also, because the Monkey Dance is often done in front of an audience, if a combatant does exceed the level of force the group deems acceptable, the group usually intervenes and stops the ritual. We usually see this when a combatant gets knocked out or when a fight goes to the ground.
The second problem with the Monkey Dance is that it’s illegal in most Western cultures. In the United States it’s usually seen as assault by both parties upon one another. That’s why in the example I used both men were taken to jail.
Using “Mutual Combat” as a Legal Defense
If you’re going to attempt to claim “Mutual Combat” as a legal defense, good luck with that. While it has been successfully used, even recently, it can be a slippery slope. One well known instance of this being used was in 2012 when MMA fighter Phoenix Jones was involved in a fight in Seattle. The fight was caught on video and showed the police just standing by not breaking the fight up. Later, the police defended their choice to not intervene by proclaiming the fight to be Mutual Combat (6).
I don’t think this particular instance should be misconstrued to be a legal defense of Jones’, but rather an example that demonstrates the nature of the law and the legal obligations of the police in the performance of their duties. Many people are under the false assumption that the police are the personal bodyguards of the citizens of their jurisdiction. This is another dangerously false assumption.
The Supreme Court of the United States has ruled that the police are under no obligation to protect you (7). Therefore, when faced with men pummeling each other, and posing no threat to the general public, the police may feel it is far safer to let the men continue to fight rather than to try and wade into the melee and get seriously injured themselves.
The Mutual Combat defense can get pretty convoluted. In 2010, Justice Ternus of the Supreme Court of Iowa wrote in the case of “The State of Iowa vs Christopher Spates”, the following (8):
“Mutual combat is more than a reciprocal exchange of blows. It requires a mutual intention, consent, or agreement preceding the initiation of hostilities. A charge on mutual combat is warranted only when the combatants are armed with deadly weapons and mutually agree to fight. Thus, an express or tacit agreement to engage in violence, while sufficient, is not required; it is enough that there was a concurrent or mutual expectation that a street battle would ensue....
"To constitute mutual combat there must exist a mutual intent and willingness to fight and this intent may be manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat."
Christopher Spates’ defense of Mutual Combat was not accepted by the court and he was sentenced to life in prison for 1st degree murder.
Martial Arts & Self-Defense Training
Most people who are taking martial arts classes are usually not learning either sufficiently adequate self-defense techniques, and/or, self-defense techniques that are not legally justifiable (see Master Ken for more info).
Martial arts systems are merely just a collection of ideas that form a theory on how to solve a particular set of problems. In some cases the problems they are trying to solve are ones of self-defense. In others they may be based on sport. Historically, most martial systems are derived from the desire to solve the very real and necessary dilemma of defending oneself.
Moving forward along that line, if we want to be training to adequately and sufficiently defend ourselves, we should assess whether the approach to solving the self-defense problem, and the solutions derived, are based on current reality or not. Martial systems not based on current reality can still be fun to practice from a historical or sportive context, but may lack real world applicability when it matters most.
I think it is important for a person attempting to learn how to defend themselves that they learn how to do so based on the current situation and environment they are operating in, not a historical one. This is an incredibly relevant and important aspect to consider, otherwise you may wind up an expert in something that’s completely irrelevant to your needs.
The self-defense requirements of a citizen of 16th century Japan are likely to be very different from a modern day American citizen in a metropolitan city. These days in the United States the variables of a criminal assault are different than one from 500 years ago. Therefore, we must have a skill set that will perform optimally where we need it most - which is Here, Now, Today.
Aside from making sure we train techniques and tactics that fit the current reality, we must also make sure that what we are training ourselves to do is legally defensible these days. Most martial arts in practice today predate the current interpretations of self-defense laws in the United States. Following the advice on your Sensei who advises you to do 20 groin stomps after you eye jab and rip out the throat of your attacker will most likely land you in jail. One thing to consider when seeking out a self-defense instructor is their familiarity with your State’s self-defense laws.
Discussing Self-Defense Professionally
When I talk about self-defense I’m talking about the use of reasonable force to protect oneself in a legal justifiable manner. I am not talking about a match between two sporting athletes. I’m not talking about a Monkey Dance, a bar fight, a “street fight” or even a Gracie Challenge match. When discussing self-defense scenarios and situations professionally, we should both have an understanding regarding modern day self-defense situations as well as the legalities of self-defense.
If you ask me what I would do in a “street fight”, my first answer will be that I will probably not even be in that situation to begin with. I don’t “street fight” and I don’t train to. It’s a foolish situation for one to be in and a waste of time to prepare for. I do however practice and prepare for de-escalating situations where I may be the intended opponent for someone’s attempt at the Monkey Dance. That’s definitely worth preparing for and something very few martial arts instructors know how to do or are capable of teaching.
Clarifying what actually constitutes self-defense is important if we are to talk about it and better understand it. For those truly interested in self-defense there are educational and training opportunities out there. At Iowa City Brazilian Jiu-Jitsu our fundamentals classes will help students learn effective self-defense techniques that take the legalities of self-defense into consideration. We also conduct and host various self-defense seminars and courses throughout the year. Contact us for more information on what we can do for you.
This material is copyright of Jason Clarke and Iowa City Brazilian Jiu-Jitsu, LLC. No portion of this material may be reproduced, duplicated, transmitted or shared without the express permission of Jason Clarke. Contravention is an infringement of the Copyright Act and its amendments and will be subject to legal action.
Copyright © 2018 | Jason Clarke | All rights Reserved
Jason Clarke. Owner & Head Instructor of Iowa City Brazilian Jiu-Jitsu.