Legal Smarts – Conflict Manager

The Need For Pre-Existing Knowledge – Marc MacYoung

Prosecutor: “So how did you know he was going to attack you?”

You: “Because he was running at me, screaming and waving a knife.”

Prosecutor: “But he might have stopped.”

You: “What?”

Prosecutor: “You don’t know if he was going to attack you. He might have been bluffing.”

You: “He was charging me.”

Prosecutor: “But he hadn’t attacked you. How do you know he meant to attack you? Is it possible he was bluffing?”

You “But he was charging.”

Prosecutor: “Answer the question. Is it possible?”

You: “Well…yes.”

Prosecutor: “So you admit you weren’t sure he was going to attack when you murdered him?”

About this time you’ll be wondering how the prosecutor’s head doesn’t explode from all that stupid. What you don’t realize is, in the minds of the jury, he just convicted you. That’s his job and he’s good at it. Once your case lands on his desk, he’s out to convict you — regardless of what happened.

Most self-defense training obsesses only with the physical. Dealing with the aftermath is gaping hole in training. While some give threat recognition a hand-wave (“of course we teach that”), pre-attack threat assessment is critical for the aftermath. Claiming self-defense is more than “I was afraid of being attacked.” You will have to explain and provide evidence about why there was a credible threat. That’s normally where the prosecutor will nail you, because most people can’t — even with self-defense training. When you hear “guilty” you realize you should have spent less time on the physical and more on learning how to recognize when you’re about to be attacked. If, for no other reason than to explain it afterwards.

This is why I tell people I don’t care what it is, but have a court recognized threat assessment ‘model.’ It could be:

AOJ (Ability/Opportunity/Jeopardy),

JAM (Jeopardy/Ability/Means),

IMOP (Intent/Means/Opportunity/preclusion)

or my Five Stages (Intent/Interview/ Positioning/Attack /Reaction).

This constitutes ‘pre-existing knowledge.’

Pre-existing knowledge can be summed up this way, “it allows you to explain how you knew someone charging you waving a knife is dangerous.” To most people that’s so obvious, it sounds stupid and useless. That is until you are being interrogated by a cop (looking to arrest someone) or have a prosecutor gunning for you. Then being able to do it isn’t just smart, it’s all kinds of useful. Starting with not being arrested at all.

Pre-existing knowledge can easily be thought of in five basic ways:

1) what you knew about such situations

2) what you call it

3) where you learned it

4) when you learned it

and

5) how it applied.

Not just “I’m a black belt.” This is, “How I know getting jumped by five guys is dangerous.” It the credibility for when you start talking about how those five guys set you up and tried to jump you. In combo, the pre-existing knowledge, the correlation of what was happening, and the supporting evidence you can bring to the table you’ll need to justify your self-defense actions.

Even if you can explain, you have to be prepared for the prosecutor’s ‘you didn’t really know’ strategy. Understand, what trips up most people is while the goal (conviction) doesn’t change, the tactics do.

First, in court, it doesn’t matter if actual danger existed. What matters is your ability to explain why you reasonably believed there was danger. (Fastest example: someone drawing a toy gun vs. a real one.) Second, what nails most people — even when danger existed — is their inability to explain the danger. Third, if they can explain, the prosecutor will go after how you knew. Fourth, if you knew, he’s going to try to undermine it. Fifth — and common through all — he’s going to go after “it could have been something else.”

He’s going to nitpick every detail to show you were in the wrong about your assessment of the situation. You have to be prepared for this, otherwise you’re going to convict yourself for defending yourself.

Unfortunately, if training on how crime and violence happen (pre-existing knowledge) is rare, then training on being able to explain how you knew it wasn’t something else is non-existent. Well, okay, I teach about Normal/Abnormal/Dangerous, but I’ve dealt with too many lawyers on too many cases that were self-defense.

It’s not enough to be able to say, “I saw him start to draw the gun” you have to be able to explain why… in a deserted parking lot … at night…two strange men approaching you … one lifting his shirt and reaching for his waist band … WASN’T him trying to show you the scar from his appendectomy surgery. Do not assume the danger will be self-evident to the jury, especially when there’s an attorney trying to trip you up. Be able to explain why such situations are dangerous.

There’s an old advertising slogan, “Don’t leave home without it.” We can change that to “Pre-existing knowledge. Don’t claim self-defense without it.”

A Gaping Wound in Self Protection Training for the Care Industry – Peter Jones

Let’s start by stating some facts on self protection law

Boxers, Karate practitioners, Taekwondo people etc must register their hands and feet with the Police as weapons
Martial artists are not allowed use their skills in self defence

Facts.

Now given that you’re reading Conflict Manager you may well be a serious martial artists well versed in self protection law. My guess is you won’t tolerate bullshit so you will have read the above with your mouth agape, wondering how someone could make these statements. Please allow me to explain.

I should start by explaining my background. I’ve been training in martial arts for over twenty-seven years and have amassed a variety of grades in different arts including some dan grades. These days my emphasis is very much on pragmatic self protection and as a result I’ve developed a very fine bullshit filter. I’m also a specialist nurse in the NHS working in emergency care.

These two disciplines of emergency nursing and martial arts compliment and influence each other, but that’s an article for another day. I also do a little agency work on the side. All of my nursing roles require annual mandatory training and this includes conflict management. For my main job I get an hour every other year. But this particular agency insisted on my doing a full day and had no interest in my credentials or experience. So I did it. Just to “tick the box.”

My suspicion is that they put the training out to tender and gave the contract to the cheapest company.

The day started well. The lady presenting was confidant, articulate, practiced and prepared. We covered the usual things; causes of aggression, types of language, a model for de-escalation and so on.

After lunch we covered law as it relates to self protection. Now, I knew going in that she needed to be careful, on my iPhone is the Kindle app, containing the latest Star Wars novel and the books of Mr Mark Dawes and Mr Leigh Simms. The latter two lack the entertainment value of x-wings engaging TIE fighters or indeed the deep discussions on ethics, actions and The Force, but they are the foremost authorities on self protection and the law and their books are very accessible. I keep them to hand for quick reference for when I’m teaching this material.

Our presenting lady started well in the right place, 1967 Criminal Law Act and all that. She got a little confused over the implications of imbibing alcohol and self protection but we can write that off as irrelevant to nurses on duty (we hope.), but then without warning or relation to anything previous she dropped the bombshell: anyone that does martial arts, Karate, boxing or whatever has to register their hands and feet with the police as weapons. Furthermore, us martial artists can’t use our skills in self protection.

Those that know me know that at times I’m as subtle as being whacked around the head by a lemon, where said lemon has been wrapped around a brick. I lost it.

I would like to think that normally I am an articulate, and I would hope erudite, person I think I simply declared “that’s utter tosh!”

But she persisted. We were clearly disrupting the class at this point so I gave her my business card and invited her to e-mail me the reference to these supposed “laws” and said she was welcome to peruse my iPhone Kindle library.

I wish I could say that I was exaggerating all of this using artistic licence in my writing for effect. But in the immortal words of Han Solo “it’s is true, all of it.” I worry about how many people she’s fed this misinformation too. I genuinely worry that someone might have some workable skills developed over a number of years in the dojo and now have the fear to use them when it matters due to the supposed consequences.

And then we did the practical session. Oh hell! I suspect you wouldn’t believe me if I did explain what she taught us, and again I didn’t hold back my opinions on it. She maintains that the techniques were endorsed by her son who is in the SAS or Royal Marines or Spetsnaz or something. I maintain that they were based around concepts that all sensible instructors dropped years ago. They were devoid of principles. Several times I asked about context. Was our attacker a 19 year-old six-foot-three unit with their brain addled by M-Cat? Or were they a frail 85 year old lady with a screaming urine infection? In my job both are possible. She wouldn’t even answer my question. (As a point of interest, one of my Aikido Sensei was a retired mental health nurse, his answer is to knock out the 85 year old and share a coffee with M-Cat boy. I think he’s joking, but I’m honestly not sure!)

So, what do we learn from this? Well primarily, if you pay with bananas then you’ll get monkeys. A well trained monkey might have been a very effective trainer but unfortunately this particular paid primate wasn’t well trained and was repeating how she’d been trained. Sadly I don’t know what we can do about it, aside from continuing to be the paragons of correct information and effective methods.

For reasons I won’t go into, I feel that there is a chronic wound in the way that (most) front-line NHS staff are training to deal with conflict. On this occasion the wound was gaping wide open.

Reinventing Violence – Iain Abernethy

This podcast discusses how martial artists often try to reinvent criminal violence into a good fit for their chosen system; instead of adjusting their system to fit the inescapable realities of criminal violence.

Problem should define the solution. The “solution” should not try to reinvent the problem!

This is a widespread and insidious practise in the martial arts. Traditionalists, modernists and even “reality” based systems do it; albeit in differing ways. Because actual violence is thankfully rare, this problem can go unnoticed but it has many serious problems.

This “art over reality” approach puts students in danger if they do have to face real violence. It also promotes tribalism and division within the martial arts because we spend way too much time arguing the “merits” of various pseudo-realities, and their associated pseudo-solutions, instead of addressing the reality of the common problem.

Once reality is accepted, and self-protection is realistically addressed across the board, we can get on with exploring and enjoying all the other beneficial aspects of the martial arts from the perspective of our chosen system.

Above all, we need to remember that the only place we can “reinvent reality” is in our minds. We can make up all kinds of falsehoods to justify the way we practise, but actual reality remains unchanged!

People don’t attack with formal lunging punches; criminals don’t stand idly by when their buddy is getting strangled on the ground; criminals don’t put up a guard, square off and fight so “the best man wins”; you will have to justify your actions when measured against the actual law and not how you imagined you uber-violent “military” fantasy playing out; and so on.

Pretending reality is something other than it actually is in order to promote your chosen art as perfect and beyond criticism does not actually advance or protect the reputation of your chosen system. It harms and diminishes it.

In the podcast, we look at why people try to reinvent violence, specifically how many of the most popular systems do it, and why it is vital we all stop it.

So strap yourself in for what should be the least controversial podcast ever … but the fact it’s unlikely to be received that way ironically illustrates the very issue this podcast seeks to highlight.

https://www.iainabernethy.co.uk/audio

False Choices – Leigh Simms

Why you need to know the law to teach Self-Defence.

What is Self-Defence? Interesting question and I guess there are many answers. If you pick up a self-defence book from the 1980s you are likely to find a number of martial art techniques performed in street clothes.

It is now 2015 and I like to think that we are finally past the above concept. Self-Defence is much more about the non-physical aspects of a confronation and one of the categories included in the non-physical aspect is the law.

Although sometimes coined as the “second enemy”, as it comes after the confrontation, I like to view the law as an entirely neutral entity. For those who know how to use the law, it becomes a useful tool in ones repertoire. Sadly, for those who don’t know how to use it, the law can become a weapon against you.

If you are teaching self-defence but not covering the law, then I would strongly question how you base the effectiveness of your fighting techniques. Surely, if you are teaching fighting techniques that go against the legal principles in your jurisdiction, you cannot be teaching effective self-defence!

For example, if you teach a technique that uses excessive force as a legitimate self-defence technique, then you are potentially setting your student up to be arrested and charged with a criminal offence.

Sadly, there are martial art classes that teach these kind of techniques as legitimate self-defence techniques. Let me provide an example using UK Law.

Under UK Law we have law with regard to the amount of force that can be used. In our fictisious martial art class here in England, the teacher is showing a technique where an aggressors push is deflected and the defender elbows the aggressor in the jaw, followed by a snap kick to the knee, another elbow to the jaw, and neck crank to take the aggressor down to the ground, once on the ground the defender proceeds to stomp on the aggressors head until he is unconscious. At that point the defender then proceeds to stomp on the chest of the aggressor until his ribs are broken. The defender then mounts the aggressor and snaps his neck.

Now, I know I am being over-the-top but I want to make the point that the technique in the above paragraph clearly amounts to excessive force! Therefore the defender is not acting in self-defence for most of the technique.

How can that be taught as a legitimate self-defence technique if the legal defence of self-defence would not be available to the defender?

It is my view that it cannot. Whilst my example was rather obvious, there are many martial art clubs that train there students in techniques that do not comply with the legal system of that jurisdiction.

When I question this, I often hear it said that it is better to be tried by twelve than carried by six. I should note that is usually those who are a capable martial artists but have no knowledge of the legal system that make this claim. The proponents of this view are offering a false choice as well as incorrect choices.

Firstly they are equating your two choices in a self-protection conflict as being: on trial for serious assault or failing to defend yourself therefore you’re dead!

When I have brought this up to the proponents, some of them tell me the phrase is more metaphorical and it represents how it is best to win the fight and worry about the law rather than worry about the law and thus loose the fight and suffer severe injury. Here is where I feel the false choice is given. Proponents of this view do not give the third, and in my view best, option: – it is entirely plausible and possible to defend yourself both physically and legally without worry of being carried by six or tried by twelve.

Also, whilst the physical consequences of a violent confrontation are not to be downplayed, the consequences of loosing the legal battle can sometimes be a whole lot worse.

Think about it for a moment, imagine you defending yourself but your lack of knowledge of the legal concept means you did not act in self-defence or were unable to articulate that you acted in self-defence and this ends up with you being convicted of an assault against a person.

This could result in prison time, loss of your job (including the difficulty of finding a new job once released), not to mention the financial, family and relationship issues that are likely to occur.

In todays information age, I see no excuse for martial art instructors who claim to teach “self-defence” not to actually teach the legal aspect. There is so much information at our fingertips and just as we wish to provide the right physical training to our students; we also need to be provide the right legal knowledge to our students so that they have the ability to avoid the consequences of the law.

Once a clear understanding of the law is combined with effective fighting techniques, we can produce students who have the ability to defend themselves physically and legally.

The Law of Self-Defense: The Indispensable Guide for the Armed Citizen by Andrew F. Branca – Reviewed by Rory Miller

Recognizing that Conflict Manager has an eclectic readership from many countries and with many interests, a book on the legalities of self-defense focused on firearms and specific to United States law may have limited appeal. That said, most of the board members of CRGI know each other through the personal protection community and self defense is a subject that has touched all of our lives. Also, The Law of Self Defense is a good and important book.

That’s the most salient thing. If you have anything to do with self-defense, either as a student or an instructor, the legalities are important. I’d go so far as to say it is negligent to teach self-defense in any form without a solid grounding in force law.

Let’s dispense with something right away. The old saw, “I’d rather be tried by twelve than carried by six.” For those unfamiliar it means, “I’d rather go on trial than be killed.” In logic, this is what’s called a “False sort.” How about surviving AND not going to prison? Embrace the power of and. There are also a few who will argue that thinking of legalities in a deadly force situation will paralyze you. I disagree. Every thinking person knows that there will likely be legal consequences after a violent encounter. It is my experience that, when a problem is known to exist, ignorance creates a deadlier freeze than knowledge.

The Law of Self-Defense takes an intimidating subject, one that has a long history, with sources written in obscure legal language, and nuanced over many jurisdictions and makes it accessible. Practical. It was actually kind of fun to read. And I never got the feeling it was dumbed down.

The chapters take important concepts like, “What is innocence?” and breaks the concept down into common sense language. And gives actual incidents. And quotes relevant case law. At the end of almost every chapter, there are tables that give the exact wording for the specific aspects of law discussed in the chapter for all fifty states. Well written and concise overviews combined with stories and combined with technical details makes a powerful and simultaneously easy to grasp tome that should be on the required reading list for self-defense instructors, students and anyone who carries a weapon.

Branca gives the legal details of a perfect world, but also gives the gritty details of how the cases sometimes go. It’s not always pretty, and that should keep you cautious. Caution is usually a good thing.

Read the book. For an understanding of the legal principles, for an understanding of the legal process (from arrest to booking to trial and the civil side as well) and for the keys to planning a legal strategy well in advance, read the book. If you intend to teach self-defense and want to answer your student’s questions, I don’t know of anything better available.

Editors note. This review pertains to the second edition published in 2013. The third edition is now available.

TIPS ON HOW TO DEAL WITH BEING ARRESTED – Karen Moxon Smith

Editors note; Karen is Garry’s wife and an experienced criminal lawyer and senior partner at Norrie, Waite and Slater solicitors in Sheffield, UK. Whilst these tips are from her experience in the UK the advice is pretty good for most juridstictions.

This is intended to be a practical and realistic approach, it does not constitute legal advice. These tips are a guide for those unused to dealing with law enforcement but who, having defended themselves successfully, find themselves facing arrest by the police whilst they determine what actually happened.

If you are approached by the police, situations can quickly get out of hand which will rarely be to your advantage. For instance, if you start shouting others can get involved and then the police have to take action to take charge of the situation. The easiest option might be to remove you! Sometimes the police just want to move people along. Sometimes they genuinely want to ask what is happening.

Even if you believe you are in the right, listen and cooperate. Give your details, be aware of your demeanour. You can be arrested for not giving your details.  
The officer may have to quickly assess the situation. Don’t make yourself a nuisance. The loudest person always stands out. It is so easy to find yourself in the back of a van.   
This is not the time to tell the officer what your rights are and how s/he should do their job. Whatever your views about the police, they are under resourced and do a dangerous job. Nobody likes a smart Arse ! I have represented more than one law student who has tried to explain his or her rights. It’s not like the text books. I am afraid a later complaint for a minor breach of the Police and Criminal Evidence Act (PACE) is unlikely to get off the ground.  
Be aware there might be CCTV. I have seen grown men cry when the CCTV shows them repeatedly kicking someone in the head when they honestly thought they had only acted lawfully. I have seen CCTV showing the accused cross the street and follow someone 100 yards when they truly believed the person approached them.  
The police also sometimes forget CCTV catches their actions. That might be useful for a later day but will not help you at the moment of arrest. Unsurprisingly CCTV sometimes either goes missing or wasn’t working when the accused needs it.  
If you are to be arrested then do not resist. The officer will not change his/her mind just because you protest. You will be cuffed and remember they will decide how tight the cuffs go on. The police have set phrases that turn up in statements explaining why they had to take you to the floor, put their knee in your back and use leg restraints. ‘Reccognised Home Office Approved Methods’ turns up a lot in statements. It’s when your face is in the grit and a Bobby is on your back that you might feel the need to kick out and then you end up with an assault PC charge.  
When you arrive at the police station you will be presented to the Custody Sergeant. The officers will tell him/her why they want you detained. It is the custody sergeants decision but s/he is more than likely to agree to the detention. The custody sergeant might listen to you at this point. You will be asked if you want a solicitor, say yes it is FREE AND INDEPENDENT. If you have medical problems make sure they are noted.  
Prepare yourself for a wait of some hours. You should receive a phone call from the solicitor who will also be present when you are interviewed.  
You are NOT ENTITLED TO MAKE A PHONE CALL . Don’t believe everything you see on TV. I have had many an accused greet me with this complaint. Most custody sergeants will let you make a call at their convenience, and at their discretion. Do NOT piss the custody sergeant off. Do Not piss the detention staff off. You have absolutely NOTHING to gain by doing so. You are going nowhere until the Custody Sergeant says so.  
You are entitled to have someone notified of your arrest  
Sleep! Delays occur, the police are under resourced. Your detention will be reviewed regularly. It can be quite a few hours before anyone is available to interview you. The solicitor will arrive when notified that the police are ready to interview. Solicitors are not paid enough to pop down and have a chat. You should not be kept waiting for a solicitor. Be suspicious if you are told that the solicitor will be hours or it is suggested that you will be quicker without a solicitor.  
When the police are ready to interview then the solicitor will attend. You will have a private conversation with the solicitor who will advise you about the evidence the police have and advise you of your options in interview. It is likely that the police officers interviewing have only a handover package from the arresting officers and are not over familiar with the case. The solicitor will stay with you for the interview.
Following the interview the officers report back to the Custody Sergeant. There might be obvious work that needs doing such as getting a statement, viewing CCTV or even searching your property. You are likely to be put back in your cell until this is done or you might be bailed to come back on a different date.  
There can be lots of different outcomes. Often you will be released but warned that you will be reported on summons. This means you might receive a Requisition to attend court. The Requisition will be sent to the address the police have. If you move and miss the letter of Requisition then the court will issue a warrant for your arrest if you fail to attend court. You might only know about this say at the airport when they scan your passport! I have had clients taken OFF the aircraft whilst sat with their families on the way to the Canaries. I have had a client met at East Midlands airport by armed police!  
If the police think their investigation is as complete as it can be the papers will be referred to the Crown Prosecution Service (CPS) They will decide if you are to be charged with an offence. They try and make that decision in 3 hours ( often whilst you are sat in the cell). If there is a charge you are formally charged and either given a court date or kept for the next available court. Don’t get charged mid Saturday morning otherwise you are there until Monday!  
Unless you are a flight risk, at risk of committing further offences or interfering with witnesses, you ought to be bailed to a court date. Sometimes with conditions. Breach the condition, or if an officer thinks you have breached it or even going to breach it then you are arrested and kept for the next available court. It is only then that there is an argument about whether or not you have breached. There is not an enquiry in the police station. So if you are given a condition to keep away from your girlfriend/boyfriend all s/he has to do is pick up the phone and say you called!   
There are other disposals, fixed penalty tickets, cautions a general ticking off and even No Further Action or Insufficient Evidence to Prosecute. All can have future consequences so make sure you have a solicitor from the start so you make informed decisions. Having a solicitor does not make you look guilty. The police have solicitors when they are in trouble. It doesn’t matter if you do not think you have done anything wrong, you might not have. If there is a chance you have, a solicitor will hopefully not let you make the situation worse than it is.