How to argue in court using a knife for selfdense

[larry]

To mr.janich,I have some questions to ask you.How do you argue in court when using a knife for selfdefense? Does the person that is attacking you has to be armed?When you make contact with the blade of your folding knife what are the targets that you must go after that you can explain in a courtroom?What do you say to the police when they arrive at the scene of the crime?

[Rex G]

"Officer, that man tried to kill/rob/rape me. There is his weapon. I am very traumatized right now, and need medical attention. I will make a statement with the assistance of an attorney." If there are witesses or other evidence, also point them out to police. Act like a victim, and do not be a smart-mouth. Do not make a detailed statement without an attorney present, and do not sign anything unless it has been reviewed by an attorney. Do NOT make a detailed statement without an ATTORNEY present, and do NOT sign anything unless it has been reviewed by an ATTORNEY. A police detective likes to clear a case quickly, and a signed confession on the same night as the incident is a nice way to wrap things up. A detective will sweet-talk someone into saying something that is not intended. Once a person has requested an attorney, the questioning should STOP, except for things such as name, address, emergency contact information. If a detective is persistent, tell him you have a friend who is a police officer, who also will not make a detailed statement without an attorney present in such a situation.

[Michael Janich]

Dear Larry:

Thanks for the questions. I'll do my best to reply in a way that will apply to everyone, since laws vary considerably from place to place.

First of all, I must make it clear that I am not an attorney and therefore cannot and will not pretend to provide official legal advice. Everything I say here is designed as food for thought for you to pursue with your own attorney in your own jurisdiction.

As previously noted, knife laws vary greatly from place to place. What might be legal to carry in one place may not be legal somewhere else. Similarly, self-defense laws vary from place to place. Some places require you to attempt escape before you defend yourself. If you live in a place with a lot of violent crime, many of the legal precedents regarding the use of weapons may be biased against you using a weapon, even for lawful and otherwise justifiable self-defense.

With all that said, the basic guidelines for using a knife or any other lethal weapon in self-defense are:

1) You must be in real fear that an attacker or attackers will cause death or grievous bodily injury to you or some other innocent party.
2) You must be able to establish your belief that the attacker has both the ability and the opportunity to deliver that feared level of force.

The circumstances for establishing these conditions are very fluid and can only be interpreted on a case-by-case basis. For example, if an unarmed man the same size and weight as you threatens to kill you, but does not brandish a weapon, you probably would not be justified in drawing a knife. If however, he was much larger and stronger than you, the circumstances would be different. If he had some type of specialized fighting skill and you knew it, the circumstances would be different. If three of his friends were standing behind him ready to back him up, the circumstances would be different. You get the idea.

Some laws prohibit the carry of knives as weapons, but allow the carry of knives for utility purposes. If you satisfy all the requirements that would justify the use of a lethal weapon in self-defense and draw a Delica or Endura, you'd probably be OK. If you draw a knife that might be considered primarily as a weapon or is over the legal blade length, things might be a lot different.

One of the things that I have tried to do with the MBC program is to clearly establish it as a humane, ethical, and responsible self-defense method that is still extremely effective. All MBC techniques are designed to STOP an attack by taking away the physical structure that allows an attacker to be dangerous to us. We do not go after lethal targets because we don't have to and don't want to. The philosophy and approach of MBC are public knowledge in order to document them and our intent clearly and openly (for more information on the MBC philosophy and approach, check my web site www.martialbladecraft.com). This way, if you ever use MBC skills to defend yourself, you can use this documentation to justify and explain your actions.

With regard to your question about what to say to a law enforcement officer after defending yourself, your best bet would be to explain that you have just been attacked, are very emotionally upset, and therefore are not capable of making a statement at that time. Since you will almost certainly be arrested as well (even if it's clear that you defended yourself, if you used a weapon, you'll be arrested), you will be read your rights and have the opportunity to speak with your attorney. If you're really serious about self-defense, find an attorney before you get attacked -- preferably one that specializes in defending law enforcement officers in cases regarding the use of force and one who will actually defend you rather than merely plea bargaining on your behalf. Once you find someone like this, ask him all these same questions again and pay him to research the case law in your area to find out the answers as they apply to the statutes and prevailing circumstances in your jurisdiction.

Mas Ayoob's LFI 1 class, although geared primarily toward firearms use, is also an excellent way of learning about the laws that govern the use of force and how they are usually interpreted. I recommend it highly.

I hope this helps.

Stay safe,

[larry]

Thanks to micheal janich & rex g for the advice on legal terms of usig bladed weapons for self defense.

[Qship]

Rex:

You sound like someone who has taken Mas Ayoob's Judicious Use of Lethal Force course, which is a very sound investment. ________________________________

Larry:

Mr. Janich understands lethal force very well, and discusses it in his videos. A basic idea of MBC is using the minimum force necessary. The answers to your targeting questions are in his videos, and in his seminars.

I am not in the lawyer business, and this is just my understanding. See a real lawyer for real advice. In particular, see a lawyer conversant with local law. Do not rely on this. If anyone has corrections, please chime in. I'm trying to learn.

Producing a weapon in a threatening way is lethal force. There is no special case for a knife. You don't have to cut to be in lethal force territory. This is pretty easy to see if you reverse roles. If someone pulls a knife on you, wouldn't you feel that was lethal force? If you had to wait for him to conclusively prove it was lethal force, you would be dead.

You can generally use lethal force to defend against lethal force. There are exceptions. For example, "Judge, there I was, minding my own business, robbing this bank, when a cop pulled a gun, so I shot him because he was going to shoot me", ain't gonna fly.

State law varies widely. Rules that apply to you often extend to protecting a family member.

In SOME jurisdictions, you must retreat until you cannot retreat any farther. You can often use lethal force to prevent crippling or permanently disfiguring injury. In SOME states you may use lethal force to prevent rape, or to prevent arson of an occupied dwelling. (Prevent means prevent. If the dude has already lit your house, you may not use lethal force). SOMETIMES you can use lethal force to prevent stranger kidnapping. If Mom has custody and Dad takes the kid, that is not stranger kidnapping. The rules for defending yourself in your home may be radically different from defending yourself on the street.

While rape may not be explicitely covered by state law, one can make the case that the threat of lethal force is always required for rape to take place, so there is justification to respond with lethal force.

For you to use lethal force, three things must ALL be present; Ability, Opportunity and Jeopardy.

For example, he has a baseball bat, so he has the Ability to kill you.

He is close enough to use the bat, so he has the Opportunity to kill you.

He is so threatening that a reasonable person would be in fear for their life, so you are in Jeopardy.

There has to be an immediate, proximate threat. If, for example, if someone says he is going to kill you the next time he sees you, shooting him now to prevent that is not self defense.

What is a sufficient threat? All of these are judgment calls. You have to make split second decisions. The jury can take as long as it wants to second guess you.

A contact weapon at contact distance may qualify.

A contact weapon across a barrier, like a bar, probably will not qualify. Ability is present but not opportunity, because he cannot reach you, particularly if you step back out of range, which anyone with an IQ greater than three will do. You don't lose fights that don't happen.

A projectile weapon at any reasonable distance may qualify.

Disparity of force, the young against the old, the strong against the weak, a man against a woman, the able against the disabled, many against one all may qualify. What you know at the time you act is critical. For example, you shoot an unarmed attacker and you find out, after the fact, he has black belts in 27 eye gouging, groin grabbing martial arts. Disparity of force defense? Nope. It doesn't matter because you did not know any of that when you shot him. It will never be mentioned in court.

You may only use equal force, the minimum force needed to stop the attack. No more. (Your friendly, neighborhood cop may be able to use necessary force, which can be greater than equal force, because he may have a duty to apprehend, and you don't. This, all by itself, is a really good reason not to get crosswise with law enforcement personnel.)

You must discontinue using force the instant the threat is over. Call the police immediately. Get medical help if your attacker is injured. The first person to call the police is generally assumed to be the victim. The DA is going to be really cross with you if you neglected to call the paramedics and your attacker bled to death. Describe yourself to the police. Do not be waving a knife around when the gentlemen in blue arrive. Knives make them awfully nervous.

Winning the fight is problem one.

Defending against criminal charges is problem two. You get to pay your legal expenses, win or lose.

Defending against the civil suit is problem three. If you win, you pay legal fees. If you lose, you pay legal fees and any judgment or settlement. Understand that the person suing you is probably getting free legal services in return for promising the lawyer somewhere between a third and a half of what ever money they extract from you.

I would not presume to speak for Mr. Janich, but if you acted correctly, if he believed you, and if he thought it appropriate, you might be able to hire him as an expert witness in your defense. If you hire any expert witness, do not do it directly. Have your lawyer do it. That way, any discussions that take place with the lawyer present are covered under attorney/client privilege.

Qship

[Michael Janich]

Dear Rex and Qship:

Thank you both very much for the excellent input -- great information based on real experience and extensive, well-reasoned research.

With guys like you around, I think I'll take some time off...

Stay safe,


mike j

[Rex G]

I am glad to be helpful. Yes, I read Massad Ayoob's stuff, and his classic book "In The Gravest Extreme" is recommended reading for anyone contemlating the use of deadly force for self-defense. Michael is quite right about finding an attorney in advance. I am lucky in that regard, as my police union provides a staff of talented attorneys for me, and I have used their services twice for the matter being discussed here.