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PostPosted: Tue Sep 30, 2003 7:03 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
When we study martial arts, we depend on the proper execution of a movement strike or any physical activity within the parameters taught. When we do this, our actions must be free of thought like typing while carrying on a conversation. In doing forms, if you lose track or are thinking of the next step, you will look bad.

The same is true of learning your legal rights of self-defense, some of which can be accomplished while practing your martial arts.


Learning self defense while practicing your martial arts.

RSBD (reality based self-defense) can be practiced just as one would practice the physical attributes of self-defense, and if planned carefully, creating scenarios while training with a partner or partners in performing sets.

When you read articles or try to study the law of self-defense, the method varies depending upon the requirements necessary to protect yourself. In a reality based situation you will not have the time or opportunity to assess all the elements necessary for a perfect legal self defense.

You already have the ability to do this if you can do only one martial arts form and practice it.

When practicing your forms in a martial arts studio you have the advantage of your teacher evaluating your form or other martial arts movements and correcting you. The end result must be the ability to perform without having to think what you are doing now, and more especially, not thinking about your next move.

Many sports and hobbies depend upon the same type of ability.

You can incorporate basic rules of self defense in your martial arts training by creating realistic movements and behavior. Sensei George Mattson has been transcending the step by step performances of Kata, Bankai and even into sparring plus Kumite.

Last Saturday, Sensei Mattson, began teaching about the transition of performing a two person set performed without the usual break down of each movement in the set, which is .normally taught on the white belt level.

For our Uechi practitioners, the set was Kyu Kumite, and for others who are not familiar with this, it is a two person set which attackers and defenders who swap positions on the second set. Thus, the persons performing are given a set of movements which they must use in offensive and defensive mode.

The value of this type of training has great value in learning distancing, defending kicks and punches and timing. The weakness is that in the real world of fighting, one does not stop and wait for next step. If you did that in a reality based situation you would be toast.

Sensei Mattson has been teaching the transition from stopping and repositioning of the performers for some time, both in the HUT in Newton, Massachusetts, and in his teaching seminars through out the world as part of his agenda in the teaching of current Uchi-Ryu.

Getting back to the Saturday class at the HUT, and in the advanced class, Kyu Kumite sets were practiced with increased speed and realistic techniques were incorporated until the drills looked like a vicious street fight, all without anyone getting hurt.

And then, an evolution took place. The performers were asked to create realism based upon an aggressor and a defender.

It was suggested that the aggressor make threats to the defender, with the defender loudly stating that he/she did not want to fight.

Questions reigned from the performers as to what they could do to constitute some assurance of legal right of self-defense.

When would afford one the right to commence a pre-emptive attack?

If the aggressor moved in toward the defender, making or not making utterances how would you establish your right?

Well, if the aggressor moved in, and past your safety, zone you could make your strike in order to protect yourself.

When ever you can act out scenes in your class under different circumstances and discuss the same, you begin to learn legal defense moves like you would your kata.

How can I get away with striking first and not being charged with being the aggressor.

A lot depends on what witnesses may observe. In our scenario, the defender keeps verbal contact by loudly saying that he did not want to fight, but the aggressor menaces and keeps coming.

The avid discussion went to the point of disrupting the momentum of the class.

It was at this point that I realized practicing different types of situations was ideal for incorporating the rules of self defense and still learning and having fun.

I would strongly recommend your attendance at the HUT on Saturday mornings or at any workout or seminar in which sensei Mattson is participating. You can then take with you what you have learned and incorporate it.

I have often posted requirements of conduct in order to create a self defense plea.

Rules do vary in jurisdictions, but the more I have fond differences, the more I find a commonality in the application of the law.

Here are some of the precepts of the law; see if you can create different situations in the dojo and apply them yourself.

A reasonable persons can defend themselves by the use of reasonable and not excessive force.

You will find reasonableness quoted in many laws and statutes; however what constitutes reasonable conduct, without more, is a subjective test which alone can be quite different amongst many of us.

What the law attempts to do is to apply objective tests based on a standard, the latter being subject to testing factors having elements to define them.

In our foregoing example we know that the defender pleaded with the aggressor to stop, and that he did not want to fight.

You might ask whether or not you may be obligated to retreat, which is law in many jurisdictions. This law may be one of the tests applied to create the standard; In our case the menacing offender was close by and threatening. Under these circumstances, it was reasonable for the defender not to turn his back to the aggressor, leaving the defender in harm’s way.

The defender had enough presence of mind to shout and make known his intention not to fight.

This was an important element in making available an equasion of the standard, namely intent, which can be backed up by witnesses.

If the situation warrants a conclusion that no excessive force was used, either in the pre-emptive strike, or in the alternative blocking the aggressors first action and defeating the aggressor, another element of the standard is furnished.

What is reasonable force to subdue depends upon what happened during the fight.
What did the defender do? It is obvious the law would not sanction kicking the ribs of a prone aggressor. Just think about it a minute. You can use common sense on this and you can reason the parameters without being a lawyer.

Let us say in our aforesaid scenario, the aggressor went down from a punch and luckily did not strike his head. Defender put an arm-bar on him and walked him out the door. You are now entitled to plea self-defense. Almost all of you would know what is excessive force and reasonable conduct. It only gets muddled when we don’t have a reference or standard.

I would suggest that you go to your dojo and attempt to create different scenes while practicing defense strategy.

It can be fun and very rewarding to do this, and if you want to run a situation by me I will be glad to answer as time permits.

Alan K

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"The Goddess of Justice is Blind"


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PostPosted: Wed Oct 01, 2003 6:18 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
This thread on setting up different scenarios while practicing in the dojo can be enhanced by making up the actions of the involved parties.

Here is a leading case where a lot of people were involved and the court gives us a check list to be able to set up the self-defense plea. When the defense is available, the prosecution has the burden of disproving.

The check list is easy to read:

The following case is very important to those of us who are interested in the law of self-defense.

I think that most MA’s are interested in the subject matter and I have therefore quoted most of the case exactly as reported (with some comments by me).

A trial judge presiding over a criminal assault and battery trial refused the defendant’s request for a jury instruction on self-defense.

The case was appealed to the Massachusetts Court of Appeals, and the case is
Commonwealth v. Safari (not published at this time) (No.99-P-1691) (July 11, 2001) Note: It has been published since I first posted this case.

The Appeals Court found in favor of the defendant who had appealed and went into great detail on the law as well as in the facts creating the case.

The law is that “ when self-defense has been sufficiently raised by the evidence, the defendant is entitled to an instruction that places on the Commonwealth the burden of disproving the factor of self-defense beyond a reasonable doubt…Self-defense can be raised either through evidence presented by the Commonwealth as part of its case-in-chief or through evidence presented by the defense…’in determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true’…Viewing the evidence in the light most favorable to the defendant…after Michael Lilly punched the defendant in the back of the head, the defendant turned around, saw a group of six to eight teenagers, and heard his wife yell, “They have a chair in their hand. Be careful.’ The defendant put up his hands trying to defend himself from the group, which included Felix Olibo and Lilly.

“Within about thirty seconds after Officer John Curley had separated Lilly and the defendant by pulling away Lilly, who was punching out defendant, Officer Curley heard more loud noise, turned, and saw the defendant and Olibo holding on to one another, pushing, shoving, and wrestling. Officer Curley then broke up the altercation, telling the defendant to go back into the restaurant, which he did. Officer Curley had to sit Olibo down on the sidewalk and restrain him to calm him down because he was out of control.

“Self-defense was the only theory upon which the defendant relied at the trial. He admitted to having an altercation with Olibo. The defendant’s testimony reflected more than a mere germ of concern for his safety and well being…He stated that he was surrounded by six to eight teenagers, including Olibo, who were throwing punches at him, and that he put his hands out to try and defend himself. The defendant’s wife saw the group of teenagers encircle the defendant and go for the chairs that were located in the restaurant’s patio.

The court goes on to state the law: “We recognize that a judge need not give a self-defense instruction unless there is some evidence that the defendant availed himself of all reasonable means of retreating from the conflict before resorting to self-defense or that no reasonable avenue of escape was available to him…However, viewing the evidence in the light most favorable to the defendant, not withstanding the arrival of Officer Curley on the scene, the jury might well have viewed the incident as but one continuing altercation. When outnumbered and surrounded by several teenagers arming themselves with chairs, the defendant might reasonably have believed that there was no avenue of escape from harm other than by self-defense. The right to defend himself from Olibo would not end with the mere presence of Officer Curley, as he was occupied with Lilly who was excited and needed to be restrained.

“Because the issue of self-defense was sufficiently raised by the evidence, the judge’s denial of defense counsel’s specific request for an instruction on self-defense was erroneous. Moreover, we cannot say with fair assurance that the error did not influence the jury, or had but slight effect. The trial judge’s refusal to give a self-defense instruction constituted prejudicial error requiring reversal. ‘Judgement Reversed Verdict set aside.”

I felt that it was necessary to report all of the case as presented in the synopsis set forth in Lawyer’s Weekly because the exact quoted wording is what we rely on in determining the law as presented and the application of the law as interpreted by the Massachusetts Court of Appeals.


This case is important for martial artists who frequently pose questions and present scenarios relating to the use of force to defend one’s self.

I suggest that reader’s who are interested in the subject read the above more than once and create your own set of fictitious facts and see if the above case helps in your possible answers.

We don’t always get cases that are so direct that they answer many questions.

As an example in summary of some of the elements for successful assertion of self-defense rights.:

1. There may be a need to retreat.

2. The evidence may be from the facts of the case that the jury can interpret.

3. The SD defense right might be ongoing despite the presence of an LEO under certain circumstances.

4. In the event of multiple attackers, the court recognizes the ongoing need to defend.

5. The evidence of the defendant in self-defense matters must be taken most favorably to the defendant charged with assault and battery as in this case.

6. The burden of proof may change to require the government to show that the self-defense issue should not apply to the defendant instead of the other way around.

7. All reasonable inferences should be considered by the jury in favor of the defendant when the evidence is read in the light most favorable to the defendant.

8. The State’s evidence might support the self –defense right to plead, as well as the evidence presented by the defendant

There are many more issues raised by this case, but IMHO this gives us a lot to play with in the law relating to self-defense in the Commonwealth of Massachusetts.

Alan K

PS The reasoning in the foregoing case may be applicable to courts in jurisdictions other than Massachusetts

_________________
"The Goddess of Justice is Blind"


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