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Self-Defense and the Law Seminars

Sergeant Alastair McNiven is an Easton purple belt, and a night patrol sergeant in the Boulder Police Department. In his time on the police force, he’s witnessed numerous altercations, and has some tips for people who don’t want to get in trouble with the law. He recently held seminars at both the Boulder and Denver locations to discuss how to be smart in a self-defense situation. Between the two seminars, we raised nearly $400, which Alastair matched with $400 of his own, and the Easton academies also matched, for a total of $1150 that will be donated to Children’s Hospital Colorado.

Here are Alastair’s cliff notes:

Before a fight.

 

1. Use common sense!

Are you placing yourself in situations (in places or with people) where there is an increased likelihood of an altercation? Alcohol and drugs can significantly affect impulse control and decision-making: this applies to you, your potential assailant(s), and any witnesses upon whose testimony you might want to rely.

2. Use your words!

If it’s possible, use your verbal skills to de-escalate the situation. This should be a legitimate attempt. Do you know how to talk your way out of a fight?

3. Use your feet!

Can you disengage and leave? Maybe run? Factors could include your relative fitness/injury level (do you have a cast on your foot?), terrain, whether you have an escape route, whether you have a child or an elderly person with you, etc.

4. Use video/audio to your advantage!

Any audio and/or video documentation of your interaction with an aggressor should demonstrate your good-faith attempts to disengage (your posture and your words are important, and should be compatible with someone trying to talk their way out of a fight, rather than provoking one.) Can you call 911? These calls are recorded. Are there surveillance cameras nearby? Can you maneuver to be in front of an ATM, for example? Is there an opportunity to turn on your smart- phone to record audio/video of your interaction before things deteriorate further?

5. Get “on the record” with potential witnesses!

Can you approach someone to request that they call 911 because you are concerned that you are about to be assaulted? Bartenders, bouncers, and by-standers are options, and can provide credible support to your account after an altercation. Advising them that you’d like the police to respond because you don’t want to be assaulted is a good thing.

6. Don’t reveal that you are a martial artist!

There is no need to tip off your potential assailant, as the element of surprise can be valuable. Also, your assailant might view this as a challenge. Instead, consider saying, “I really don’t want to fight. But if you assault me, I will defend myself.”

7. Don’t “push back!”

Your actions and statements should reflect your attempts to leave and/or de-escalate the situation. If you respond to someone who pushes you by pushing them back, even if you say, “I don’t want to fight!” your actions may indicate your willingness to engage in “mutual combat.” This undermines your claim of self defense.

During the fight.

 

1. Continue to use your words, if possible!

Witnesses who can testify to your shouting, “I don’t want to fight…I just want to leave…stop trying to hurt me! Stop fighting me!” during a lull in the action would be more useful than ones who hear you say, “I’m gonna kick your ass, Sea-bass!” or, “You better tap, buddy!” The same goes for video and audio recordings.

2. Be reasonable!

Given the circumstances of the altercation, did you use a reasonable level of force to defend yourself? A mother protecting herself and her toddler from two male attackers in a parking lot is likely to be given far more leeway in the amount of injury that she could “reasonably” inflict compared to an adult male who gets in a pushing match with an elderly male over a parking space. Another related issue is using only the amount of force necessary to defend yourself or another: Did you continue to damage your assailant when he/she was no longer a threat? Could you run after the person is down? If you do, make sure to call 911 as soon as you’re safe; get your version of events on record.

3. Know the Law! Particularly as it applies to chokes!

If you decide to use a choke-hold on someone, and your actions are not viewed as self-defense, you might be charged with Second Degree Assault, which is a felony. Even though a variety of these choking techniques are used in training every day of the week without negative consequence, the Courts are pretty clear on how they view them during altercations. Likewise, an elbow strike that cracks the orbit of your assailant’s eye would also be considered a Second Degree Assault. This is why it’s so important to say and do the right things before and during an altercation, so that your claim of self-defense is credible.

4. Can you restrain your attacker?

While it is probably harder to immobilize someone than it is to take them out of the fight by injuring them, an attempt to do so initially would likely be viewed positively by law enforcement.

5. Should you run prior to the police arriving?

After an altercation, and if it’s safe to do so, you really should consider staying to provide your version of events to the responding officers, rather than leaving. The arrival of cops on scene does provoke the urge to flee in some people, even if they are not guilty of anything; however, be aware that staying will help your credibility. If the officers have to track you down, they may assume you have something to hide. On a related note, slinking back to the scene after your adrenaline wears off and after you have changed clothes just doesn’t look good! This can also impact your credibility.

After (the cops arrive on scene).

Remember, in most circumstances, the officers who respond to an incident were not on scene when it happened, so they will have to rely on their investigation. It may come down to a “he said/he said”, and should you choose to speak with the officers, your goal should be to maximize your chances of going home without further involvement in the Criminal Justice system (cheaper, less hassle!)

1. Why talk to the cops?

The responding officers have to make a decision on scene, and they can make a better decision if they have the full picture of what happened. Providing your version of events might make the difference between being charged (either arrested or issued with a summons) or going home, should your actions be interpreted as self-defense by the officer.

2. You don’t need to talk to the cops!

If you are unable to control your emotions and you are worried that you can’t provide a coherent narrative, you might want to consider not speaking without an attorney being present. You aren’t required to talk to police on scene, or at any time, and you can consult with an attorney prior to talking to police. You also have the right to have an attorney present if you are arrested (or deemed to be “in custody”) and are then questioned by police (however, see bullet point above!) Another consideration is the seriousness of injury to the other person(s); if your assailant is dead or critically injured, you might want to consider speaking to an attorney before you make a statement to the police (deadly force encounters can have significant effects on your ability to clearly articulate a chain of events, and can even affect your memory).

3. Your story should make sense.

Tell the truth: your account of the event should be consistent with the evidence that the responding officer can see or hear. For example, if you claim that the reason you punched your assailant was because he was aggressively choking you by grabbing your throat with his hands, it might look a little odd if your neck isn’t red or marked. If you are lucky, there will be video/audio footage supporting your version of events (from cell-phones, surveillance video, etc.) If not, then having sober, credible witnesses helps. Being sober yourself really helps, too!

4. Use your words (again).

You should attempt to be clear and concise when relaying the circumstances surrounding the incident. Try to keep your emotions in check; however, it’s important to express to the officer any emotions that might support your actions (for example, “I was afraid he was going to kill me…I was scared that he was going to stab me, so I…”)

5. Cops are human too!

While it is your First Amendment right to express your displeasure with any officers investigating the incident (or with Law Enforcement in general), remember that being rude, hostile, or disrespectful to them might affect how they view you, and your possible culpability in the altercation. Being polite doesn’t hurt.

6. Don’t lie.

Try not to exaggerate or “spin” the facts and DO NOT LIE! If you are caught in even a small lie, your credibility is likely gone, and the officer will not give your account of the event any weight. The officer will then be more likely to believe anyone else’s story, or if there is no-one else, to decide that other aspects of your story may be untrue as well.

7. Sometimes, the loser goes to the hospital/morgue and the winner goes to jail.

If the outcome is sufficiently serious (for example, if your attacker is dead/in critical condition/severely injured as a result of your actions, and no-one can corroborate your version of events), you may end up going to jail anyway. Even on less serious cases, an officer may just decide, “I really don’t know what happened…everyone gets a summons!” or “everyone goes to jail!”

8. “Injuries” don’t necessarily equal “victim.”

The person with the most (or the more serious injuries) is not always determined to be the victim; a thorough investigation on scene should reveal the primary aggressor, and whether or not self-defense was a factor. Just because you lost the fight doesn’t mean you didn’t “deserve” to do so! Likewise, the person who calls 911 is not always determined to be the victim, and might be the one who gets arrested: upset feelings about getting your ass kicked is no protection from the Law.

9. Request a supervisor.

If your attempts to explain yourself to the officer don’t seem to be working, it may help to have someone on scene that is more experienced, and may have a different perspective.

10. “No charges” doesn’t mean “no problems.”

Keeping yourself safe is paramount; however, remember that even if you are cleared of any criminal charges, there may be civil penalties that result from an altercation. The bottom line is that even if you are found Not Guilty of assault at trial, that doesn’t mean that someone won’t try to sue you for a variety of claims, which can range from “pain and suffering” to “loss of income” to “psychological damage.” People can file a law-suit for most anything, and you need to know that the burden of proof is far lower for Civil Court (it is a “preponderance of the evidence,” rather than “beyond a reasonable doubt” which is the standard for Criminal Court.) This means that the plaintiff only has to prove that it is more likely than not (that is, “51 percent” likely) that you were responsible for whatever ailment he is claiming, and that you were not justified in taking the action you did. This is why it is so important to establish the basis for a legitimate self-defense claim, the elements of which can be found in the “before” section; these should significantly decrease the chances of someone successfully suing you. Frankly, it’s possible for someone to file a law-suit even if you were not arrested or charged, so once again, it’s best to avoid the confrontation if you can!

11. Don’t fight with the Cops or run from them!

If you are contacted by the police, and they attempt to take you into custody on some charge (like Brawling or Second or Third Degree Assault), don’t run from them or fight them! Even if there was no basis for the charge for which you were arrested, or even if it turns out that you are not the person for whom they were looking, you don’t want the additional complication of charges for Obstructing a Peace Officer, Resisting Arrest, or Assault on a Peace Officer (and you WILL likely go to jail for these). The law clearly states that as long as the cops are acting under color of authority (and do not use excessive force), even if there is no legal basis for your arrest, these additional and separate charges will stand , assuming there is probable cause that you did  obstruct, resist, or assault the officers.

 

Finally, even if you do everything “right,” remember that, depending on the level of injury you inflict on your attacker, and the officer that responds to the call, you might still go to jail (or at least to the Police Department for an interview). And if you ARE arrested, you’ll be in the Criminal Justice system, and that can be a financial and emotional challenge, and will take up a lot of your time and energy. To avoid that, plan ahead, make good decisions, and defend yourself when it is appropriate to do so. Your actions, which may be reasonable, can still land you in trouble, of course. But that should not discourage you from defending yourself: you’ll still be alive!

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