[That's both an RD reference and a self depreciating comment]
I can cover this in more detail later but a key thing to understand is that 'reasonable' force is not synonymous with 'minimum' force.
Again it's all about justification.
Here you were presented with a situation where you had only two options: release an attacker or use lethal force.
You took the risk to release him. However, as a matter of law, you could have justified the use of lethal force in that situation.
The attacker had demonstrated that he was willing to use potentially lethal force (i.e. the knife). Now it's irrelevant whether the attacker (a) knew that knives can be lethal* or (b) he might not have actually carried out the implicit threat to stab you.
[* It's quite common, especially where youths are involved for the attackers to claim they did not realise that a particular weapon could cause a fatal injury. We get quite a few cases over here where kids stab each other in the leg (to prove a point) and then are surprised with the resulting femoral arterial spurt. But remember it's the threat as YOU perceive it that counts. Now most people on this board probably know how dangerous knives are (I recommend 'victims' quote the statistic that you have a 70% chance of surviving a single knife wound as opposed to a 90% chance of surviving a single bullet wound. If you add the statistic that the average (as opposed to median) number of knife wounds in a stabbing is 9 then you go a long way to justifying your belief that this was a life or death encounter.]
In your case, although the attacker was temporarily disarmed he was (presumably) still non compliant. So on releasing him you were effectively giving him a chance to grab the knife and start again. The law doesn't require you to do that.
As *your* only options were the neck crank or the putting yourself in mortal danger again then the neck crank would be reasonable force.
Now it may be that someone else may have had more options; either because they had the attacker in a different hold or they knew more techniques. This is where the bit about justifying the response becomes important. An ill-informed prosecutor or jury member may think that there are non-lethal options. You need to explain that *in your particular circumstances* there were in fact no other options.
A key point to get across is the difference between incapacitation and killing.
Now it may well be that the incapacitation proves fatal, but it's the intent that matters.
You can inflict an untreatable ultimately fatal stab wound but the recipient may still be able to fight on for the 30 seconds or longer that it takes to bleed out. Whereas some form of neck/throat injury may be instantly fatal or quite survivable but the key thing is that it instantly incapacitates. You need to explain that that was your goal. Something along the lines of "Hey, I'd have been happy for him to make a full recovery so long as he wasn't able to carry on attacking me".
The trick is to show that your aim was survival rather than retaliation or punishment.
Ironically it's easier to justify lethal force with less trained individuals on the grounds that it takes less skill to use strikes to incapacitate than holds to restrain.
I admire your restraint and morals, however you did take an unnecessary risk (as far as the law is concerned).
For our colonial cousins facing knife threats there's a really nice Oliver Wendel Holmes quote:
"No man is totally rational in the face of an upturned knife"
So US law pretty much gives you carte blanche when faced with a knife threat; and it's the same in the UK *if you know how to deal with the legal system*.
A key point I stress in lectures is that
"It's not what you do that gets you into bother, it's what you say afterwards."
If you know the ropes you can pretty much justify anything. For UK viewers I tend to use Kenneth Noye as an example. That doesn't go down too well with police audiences but they do get the point.
I realized in retrospect that I probably would've been legally justified in breaking the guy's neck, but at the time, that didn't occur to me. It didn't even occur to me that I was in a fight; it just seemed like a very stern conversation, that involved a bit of a grappling. It was only after the fact that I realized "holy ****, did I just fight a guy with a knife?"
Also in retrospect, I'm glad I didn't hurt the guy. The situation was well in hand; I was substantially larger and stronger than he was, and beyond substantially more sober. He was alone, where I had about twenty friends with me (one of whom took the knife when he was disarmed). I was, I **** you not, wearing a shirt of chainmail throughout the encounter (I have very eccentric fashion sense). I threatened to choke him unconscious at the beginning of the encounter, and most of the fight seemed to leave him at that time. (I initially had him in a modified rear naked choke, and later switched to the full nelson when I realized he might have a second knife on him).
Had I been alone, unarmored, and my opponent more fearsome, I might've felt it was necessary to injure my foe in the same circumstance. As it was, though, it did not strike me as such.
Also, I feel that this is anecdote also makes an excellent counter to the "jiujitsu is useless against knives" rhetoric. I am living proof that, even in knife fights, BJJ wins again.
Wiccaman, I've been told that a decent defense here in the UK is to claim: "I saw red, I was in fear for my life and I just reacted". What's your take on that?
Holmes asserted that this is not the right standard for judging a person being threatened by a knife-wielding enemy because:
I'm not a lawyer, but I'd be cautious about saying or even hinting that this gives anyone "carte blanche" to respond with lethal force to a knife threat.Quote:
Mr. Justice Oliver Wendell Holmes, Brown v. United States - 256 U.S. 335 (1921)
"Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him."
I suspect that how free a hand one is allowed in self-defense cases varies considerably by jurisdiction and circumstance in the USA, not to mention a range of difficult-to-predict factors (attitudes of one's judge, jury make-up, etc.) in addition to the various social, political, and economic factors that often affect prosecutions, sentencing, and so on.
We do have a recognized right to self-defense, which is a very good thing, but think about decisions you've seen American juries make and tell me how confident you are that you would get a correct one even if you do stick to the letter of the law.
Not that I can talk, I often wear body armour (having replaced the plates with weights) in a forlorn attempt at conditioning. It’s worked to the extent that I can now ignore lower back pain.
But on a serious note you’ve once again raised a very important point with your reference to the fact that it wasn’t until after the encounter that you were able to consider matters rationally (i.e. that you’d just faced a live knife threat).
This is very common and explains why a bit of background knowledge as to the psychological aspects of violence assists with the legal side.
Very few people are equipped with the psychological skills to face a REAL life or death threat from a human (the situation is somewhat different with non-human stressors but we can discuss that on another occasion).
We often talk about ‘fight or flight’ but in reality the most common reaction (in untrained ‘victims’) is to freeze. Now that was possibly a good evolutionary strategy against a sabre toothed cat (on the grounds it has a bit of a sniff and then assumes you’re not safe to eat) but it’s not so good against a determined attacker.
Interestingly this is usually only the case when it’s the victim personally at risk. If it’s a third party, especially a loved one then people are more likely to react.
When people do react however they tend to act instinctively. An untrained person may just flail (which can often be enough in itself) but a trained attacker will fall back on their training.
As the saying goes: “You don’t rise to the occasion, you fall to the level of your training”.
You may have noticed this in class. You learn a new technique to perfection but as soon as you do some real sparring where the adrenaline is flowing you realise you’re using the old technique without thinking.
When you’re facing a risk to life or limb your brain and body goes through a number of physical and psychological changes. Your bloodstream gets full of adrenaline, endorphins, cortisol and a whole host of other useful chemicals. You undergo vasal constriction (which is why a lot of people who get stabbed don’t start bleeding until after the encounter when they are ‘safe’ and the body chemistry returns to normal).
You may undergo a number of perceptual distortions (tunnel vision, tachypsychia (slow motion time), hearing loss etc.). These are all useful in a fight as your body is essentially switching off all unnecessary features and concentrating resources on keeping you alive. Even the loss of bowel/bladder control means you’re not wasting blood on digestion when it could be going to the muscles you’ll be using to fight.
Most of your processing is now being done by your amygdalae rather than your higher brain functions.
This is why it’s such a common reaction for people who survive violent encounters to use phrases like “I was on auto-pilot”, “My training just kicked in” etc.
The law recognises this and indeed showing you acted instinctively is greatly to your advantage:
"If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken..."
Now (to answer a very good question posed below) saying you “saw red” might be dangerous as there’s an association with anger which might be taken to mean you were acting out of revenge rather than self (other) preservation; but to say that you have no real recollection of what happened but just acted on instinct is very helpful.
What you must be aware of however is that the perceptual distortions can be problematic when you give your account of what happened.
If you try to speak to soon after the event it is highly likely that your recollection/perception will be highly inaccurate.
Usually after a traumatic encounter your memory will be hopelessly shot to pieces for at least a day or so. It’s often the case that some other trigger (smell, location, car backfiring etc.) will be required and then you’ll suddenly have better recollection.
From a legal perspective this is relevant in two ways:
Firstly you may want to wait for a while before giving your version of events. There is however a symptom called logorrhea that is an uncontrollable urge to speak which is common in traumatized/aroused people.
If you have given an initial report it is essential that as soon as your recollection improves you contact the authorities and insist they note your new evidence. The last thing you want is an ‘inconsistent statement’ as this is admissible as evidence that you are lying in most jurisdictions.
You should explain about the points mentioned above. It’s a very standard question in court where a person has given evidence that differs from an initial statement to be asked:
“You would agree would you not that a person’s memory of an event will be more accurate in the time closer to the event than at a much later stage?”
Judges will often support that contention when summing up.
Therefore it’s important that you make the point that, whilst generally correct for non traumatic events, the above principle does NOT apply where a person has had a true violent encounter. Ideally you want to get that across to the investigating authorities at the earliest stage possible rather than wait for a trial.
You can even use it as a reason for not making a statement: “I’m more than happy to talk to you officer but, as you will know psychological research shows that when a person is the victim of a violent attack it takes a while for their recollection to stabilise so to speak to you now would be a waste of time”.
You can use this information to rebut any suggestions of ‘recent invention’ as well if you are accused of taking time to ‘come up with a story’.
Hope this helps.
People who turn their swords into ploughshares end up ploughing for people who didn’t.
OWH, correctly, raised the point that there's a world of difference between considering a situation in the calm of a jury room or prosecutor's office than at the scene. This reasoning has been adopted in most common law countries now.
As to juries, my personal experience is with English ones (although I have been involved in a lot of research on this subject internationally). Whilst I generally have faith in the collective wisdom of "12 good men and true" that is leaving things to chance a bit; especially where the average person (i.e. likely jury member) has no real understanding of violence and may indeed find any use of violence distasteful (you may be familiar with the 'sheep, wolves, sheepdogs' analogy).
This is why I stress the desirability of dealing with the matter at the investigative stage rather than leaving it to trial. As you say there are so many variables. I will be addressing issues surrounding social, economic and political factors later. They are very important. For now let's just say if you do end up in court best wear a suit rather than your Tap-out wifebeater and camouflage pants.
What's curious is, even though I was operating largely on instinct, a lot of those classic factors did not come to play.
My heartrate did not increase, and I only felt the adrenaline dump *after* the altercation. Like I said, I didn't realize I was in a knife fight until after I had already won it. My brain registered it as a social situation rather than a combative one, with a just a little bit of jiujitsu thrown in. Kind of like playfully putting your roommate in a rear naked choke while telling him to do the dishes.
It's interesting what you say about people reacting better when someone else is threatened, because that was totally the case. It was another friend who answered the door, and who was the target of the homeless fellow's intimidations. I was just standing nearby, and when he pulled out the knife, there was this sort of "well, he shouldn't have that" and suddenly I had taken the fellow's back.