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Postby Alan K » Fri Jun 07, 2002 7:30 pm

Does the Martial Arts have a significant role or charge under the proposed Homeland Defense legislation, or in the mission given all citizens to defend the home front?

We can all remember the rude awakening of this country in the aftermath of 9/11.
This forum addressed one of the first major actions by Congress, namely, the USA Patriot Act.

The FBI and other law enforcement agencies needed to be able to act quickly and expeditiously in order to be able to investigate possible terrorists and terrorist activity, and this Act certainly gave them some ammunition to do this.

Many of us wonder what this will do to constitutional rights we all enjoyed living in a republic which has existed much longer than founders such as Madison and Washington envisioned, both of whom feared absolute rule or monarchy.

Putting this aside, the president asked us to participate in “homeland defense”, by being aware of our surroundings and suspicious activity, which I suppose means to be aware and observant as you would be in neighborhood “crime watch”.

Congress discovered the flaws in the present dissemination and sharing of valuable information after the lady FBI agent blew the whistle, Congress once again acted by eliminating and FBI agents requirement of obtaining certification from headquarters before applying for search warrants, and enacting other legislation enhancing the USA Patriot Act, once again the president took further action by seeking to integrate and share knowledge to defend the “homeland’

The following will give some insight concerning the proposal:

Homeland Defense Program - enhances the response capabilities of military, federal, state, and local emergency responders to terrorist incidents involving weapons of mass destruction. http://www2.sbccom.army.mil/hld/
More sites about: Soldier and Biological Chemical Command

More speculative and uncertain is the role of us as citizens, and more personally , as MA’s is our participation and conduct in the charge given us by President Bush.

One can easily create scenarios as to how, under certain conditions, we can report or thwart terrorist attacks or pending attempts at sabotage.

The problem as I see it is that the laws governing our present conduct could impede or destroy the efficacy of what is expected.

As an example, we could be on the scene of a terrorist attempting to detonate a device, there would be no time to contact a law enforcement agency, but you could stop him with your 40 caliber pistol.

You all can create better examples than the above, but there is a thorn in your foot, which takes the form of the present law concerning citizen arrest, restricting your action to a far greater degree than that of a LEO. The same can be said if you employ action in defense of others.
The use of deadly force is highly restrictive in either case and your defense of yourself, your neighbors and your homeland could result in your own imprisonment.

While the laws are changing to relax constraints on law enforcement and other agencies and to develop liaison between federal agencies and congressional committees, the action expected of the majority in numbers, that is to say to US Citizens, is not defined.

I will be happy to publish a synopsis of the laws relating to citizens’ arrests and use of force, and those actions taken to protect others.

Does anyone have any ideas on how, we as citizens and martial artists can participate and employ the charge given us by the president, and if so what would we need to enjoy useful exemptions, in order to effectively combat terrorism on the home front.

We welcome your response.

Alan K

"The Goddess of Justice is Blind"
Alan K
Posts: 493
Joined: Mon Nov 20, 2000 6:01 am
Location: Framingham, MA USA


Postby Alan K » Mon Jun 10, 2002 3:40 pm

We are urged to be an important part of "Homeland Defense", but other than being told to be aware and observant, we have not been given any specific guidelines as to what is expected of us, as of the date of this post.

Let us assume that we have common sense enough to report any clandestine, or obvious conduct to local law enforcement agencies.

What about a situation where we witness an event that appears to be terrorist act in progress, and intervention might thwart the act.

How laws will permit a citizen to prevent a crime, or to seize a criminal?

The answer is the law of citizen's arrest in your particular state or jurisdiction.

It may be codified or it may be common law.

As a guideline, here is a part of a post that I published in this forum some time after 9/11.

A general statement is that a person is justified in using reasonable force in making a lawful arrest and in attempting to prevent the commission of a crime.

A police officer or other LEO has the right to use the force reasonably necessary to overcome resistance by the person sought to be arrested. However, the use of force depends on the validity of the arrest, though reasonable belief by an officer, that an arrest is necessary should protect him. In doing this he must be given the opportunity to state his reasons and to take the steps to legalize the arrest.

Private citizens use of deadly force to arrest one who has committed a crime against property and to prevent his escape is more limited and not co-extensive with the right of a police officer under the same circumstances. In a Massachusetts case the defendant fired at and wounded two persons who had burglarized a drug store across the street from his home. He was indicted for assault and battery by means of a dangerous weapon.

The Court in that case had not formally adopted the cognate provisions of the Model Penal Code. The Court in effect, said that Massachusetts Common Law has long recognized a private citizen’s right to arrest. Nevertheless, limits must be set, as to the use of deadly force, against the dangers of uncontrolled vigilantism and anarchistic actions., and particularly against the danger of death or injury of innocent persons at the hands of untrained volunteers using firearms. The Court went on to state that there would be no wisdom in approving the unqualified right of a private citizen to use deadly force to prevent the escape of one who has committed a crime against property only.

For all practical purposes, a private citizen, not acting under authority of a police officer, has no right to use deadly force in making an arrest for a crime concerned with alone (nor in preventing the escape of one guilty of such crime).

Once the defendant has raised the issue of his right to make an arrest and prevent the escape of the victims (perpetrators of the crime) it’s the prosecutions burden to disprove the defense beyond a reasonable doubt.

In 1985, The United States Supreme Court (SCOTUS) addressed the issue of the use of deadly force in making an arrest in reviewing a Tennessee statute which authorized the use of deadly force against a suspect who flees, as in that case or forcibly resists arrest. The victim of the deadly force had burglarized a home at night and was fleeing in the back yard of the house when the police arrived. The victim (burglar) was apparently unarmed (to the police officer’s observation) and non-dangerous when he was trying to climb a fence in the back yard. After the police cried out, “police halt”, the burglar continued to try to climb over the fence. The police officer shot him in the back of the head and he died a short time thereafter. The Court held the statute to be “invalid” in so far as it purported to give (the police officer) the authority to act as he did. After pointing out that the common law rule permitted the use of whatever force was necessary to affect the arrest of a fleeing felon, it canvassed the states and admitted that the common law rule has been modified in less than half of them. However, the Court held that the seizure under the 4th Amendment in the use of deadly force is subject to the rule of reasonableness and a balancing process. The Court went on to weigh and balance the effective interest of LEO’s and effective law enforcement as presented by the Petitioners and said “Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify killing nonviolent suspects…The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that the mechanism will not be set in motion.” The Court continued and stated that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects

When we apply these laws to the now imposed duty of citizens to defend this country against terrorism, we must weigh the consequences of our acts.

We need to prevent air flight terrorism, if committed only by an unruly drunk, for the good of those in flight and those on the ground.

There is a vast difference between the case of the Hot Foot shoe bomber, which was a pure act of terrorism, and the acts of person who has imbibed too much abetted by pressurization to an altitude of 8000 feet (normal pressurization). Yet consequences of not quelling the action can be the same.

Until we see some change in the law, we must review the SCOTUS Tennessee case.

Remember, the above case dealt with non violent persons. The rules change for violent and deadly conduct where deadly force may be utilized BUT ONLY TO THE EXTENT THAT THE SAME IS REASONABLE IN THE CIRCUMSTANCES.

Alan K
Alan K
Posts: 493
Joined: Mon Nov 20, 2000 6:01 am
Location: Framingham, MA USA

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