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