The LAW of Self Defense

kennedylaw1“Yeah, if any dude gets in my face in this bar, I am going to mess them up, I got my rights and I know the law, if some dude starts something, I can finish it”.

The ability to handle yourself in a self defense situation is certainly one of the goals of traditional Chinese martial arts. Admittedly it is not the only goal, but it certainly is the motivation for many a young person to start their training. And one important aspect of self defense is the law surrounding it. In a sense an article on the law of self defense maybe a bit different than most of the articles here on Kai Men. But it is a topic I feel seriously about and it is a topic that there is tons of bad advice about. It is also a topic that draws all kinds of what can best be described as juvenile nonsense along the lines of “better judged by 12 than carried out by 6” or “I don’t care about the law, I am just going to waste the dude”.

Self defense discussions if they progress beyond the juvenile usually focus on what “the rule” is. When I was teaching California criminal law back in Taiwan, my Taiwanese prosecutor students would often ask me what the rule was for self defense in California.

And the first thing I told them is:
The first rule is there is no rule.
And that is true, at least in California and I suspect it is also true for the other 49 states. All the various rules you hear maybe true from a law book perspective but they do not reflect the reality of the situation. There are a lot of variables that make talk of a rule or even rules meaningless.

How it is going to unfold is this; you get into some kind of physical altercation. Cops show up. Now the first variable is how the cops see the incident. And understand that they are not going to necessarily take your word for what happened. They do not know you from a hole in the ground and just because you and your mother know you would never lie that does not mean the cop taking the report is going to just accept your version of events.

And the other guy is going to have a different version, usually along the lines of you started the sh*t. And the other people present may not give your version with you acting in legit self defense and the other guy being the aggressor. The witness will often be quite equivocal about who started it. Plus if your martial arts training stood you in good stead, you are the winner of the fight or at least the less messed up party and that can end up making you look like the aggressor. So in any event the cop is going to listen to what everyone has to say and then write up their report based on that plus what their “street cop sense” tells them happened.

Then we get to variable number two; how does the prosecutor who makes the charging decisions view what is laid out in the cop’s incident report. Depending on the case load the same case could end up being charged as attempted murder, felony assault, some misdemeanor or not charged at all. Depends on how busy the prosecutor is and how bad the other guy was hurt and whether the bar owner, the other guy or somebody else is pushing for charges. I know all this well, as I was the charging deputy for my courthouse.

Then variable number three; how does the jury see it, how good is your defense attorney, how good is the prosecutor, how good a witness is the other guy (who maybe now is starring as “the victim” with you playing the role of “criminal defendant”).

And guess what, let us assume you get past all this. Your legal adventure is only half over. Now the other guy sues you in civil court and you are facing a whole new set of unknowns.

So simple pat answers about the legal aspects of self defense are misleading. Actually worrying about the legal aspects is pointless because if it is a serious street encounter or even if you are mildly drunk in a bar you are not going to stop and ponder the law. If you had that level of awareness and clarity you probably would not be in the situation you found yourself in. Remember your number one self defense tool is not a physical technique but instead are the mental techniques of awareness and avoidance.

Brian Kennedy is a California attorney who has taught criminal law for Soo Chow University School of Law and the Taiwanese Ministry of Justice. He is a former Deputy District Attorney and Deputy Public Defender. He co-authored “Chinese Martial Arts Training Manuals”.

3 Responses to “The LAW of Self Defense”

  1. Jonty Kershaw says:

    My number one rule for self-defense is “Never go anywhere they serve alcohol.”

  2. Brian Kennedy says:

    That is an outstanding rule. I am glad you enjoyed the article. Happy Holidays to you and your family.

  3. patrick hodges says:

    As usual, very good advice. Also, it is different when “uncle Bob” gets a little tipsy at a family gathering or when you are a school teacher trying to break up a fight dealing with elem. school children. You can’t just wade in using your Wing Chun chain punches in all cases. Ah, and when you deal with women, that’s another story, cause among the Irish and here in Hawaii, the woman is “always right.” =)

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