My journey in martial arts began with learning Taekwondo under Jon and Penny Wilson and earning a blackbelt in 1989. Decades later, I began learning 7 Star Praying Mantis Kung Fu under Sifu James Mclin of Legendary Kung Fu and Tai Chi, L.L.C.   While learning a martial art is intended as a positive benefit, that knowledge could be negatively construed against the martial artist when it comes to self-defense or defense of others.  

I am a practicing attorney with an emphasis on criminal defense. I am also a law professor at Southern University Law Center. As a trial lawyer and an aspiring martial artist, I am endeavoring to merge my unique knowledge, experience, and perspective to assist my fellow martial artists so they can continue to defend themselves within the justice system.  A lack of knowledge may mean we may become a victim of “the system.” I prepared this Article as a primer to introduce the martial arts practitioner to the issues involved and to provide basic information to assist the martial artist.  I must caution all readers: this Article is for general knowledge and not to be a substitute for advice of an attorney.  Every State has its own law, and experienced attorneys know how to navigate the seas of legal discourse.  

Anyone with working knowledge of any martial art (e.g Kung Fu, Karate, Jiu-jitsu, boxing, hand-to-hand combat, military training, etc.) is subject to a negative perception in a situation of self-defense or defense of others.  The negative perception is caused by the manner in which the police, judges, or prosecutors measure the martial artist’s response to a potentially life-threatening encounter.  When a martial artist is a would-be victim of an attack, the authorities may be of the opinion he should have applied “just enough” skill to fend off the assailant. Should his actions in the context of self-defense exceed this notion of “just enough” to repel the aggression, the authorities will likely suggest he took matters too far or was showing off or “hot dogging.” It is safe to assume the knowledge of martial arts will be used against the martial artists in the criminal justice system, and this begins with the initial encounter with law enforcement.

The belief of police and courts using knowledge of martial arts against the martial artist is not simply an opinion. For example, in December of 2001, Bryan Richards was armed with a handgun and entered the martial arts facility of Rafiel Torre,¹ a mixed martial arts fighter.   Richards believed Torre had an affair with Richards’ wife. Before Richards attempted to pull the trigger, Torre disarmed him, applied a rear naked chokehold, and subdued Richards, who died. Torre was arrested, prosecuted for, and convicted of murder.  In doing so, the jury rejected Torre’s claim of self-defense because he held Richards in the rear naked chokehold for too long.

Putting aside the oddities of the result in the case of Rafiel Torre, it is not an outlier. Courts appear to hold martial artists to a higher standard by assuming a martial artist can determine the precise and appropriate force needed to stop an aggressor, but not to kill.  What is ridiculous about this so called “higher standard,” is it assumes the martial artist has been trained in all manner of situations, under real threats, and is able to simply repel the aggression with just enough force. Martial arts training is supervised in a controlled environment. While such training is useful, it does not account for a confrontation with an unpredictable person, who is an important variable. In example, should an aggressor be intoxicated or under the influence of certain substances, he will not be subdued in the same manner as a person who is not.  Furthermore, when an aggressor presents a lethal threat, such as with a weapon, the martial artist instinctively knows he must “defang the snake,”² meaning remove the aggressor’s ability to use the weapon or disable his limbs or eyes to prevent further attacks. However, the confrontation is certainly not over just because the aggressor is dispossessed of his weapon or disabled. The removal of a weapon or an injured limb does not remove the aggressor’s will to inflict injury. Further action is probably necessary to incapacitate the aggressor, so he does not regain his weapon or ability and do harm. 

This notion is not foreign in the criminal justice system.  Frequently, police officers utilize lethal force when a suspect reveals a dangerous weapon.  In these situations, there are not many (if any) adverse rulings against the police officer because he has extensive training in hand-to-hand combat or the availability of non-lethal weapons, such as pepper spray/chemical agent, baton or taser.  In fact, there are numerous instances where a police officer simply thought the suspect had a weapon when it was a candy bar, sandwich, bible, cellphone, umbrella and even a tattoo.   But, while the prosecutors and judges give these officers a pass for such grave errors in judgment, a martial artist was sent to prison for killing a man who attempted to kill him.  

The criminal justice system seemingly holds martial artists to a “higher standard” by assuming they have specialized training.  There is no real-life training to prepare a martial artist to render “just enough” force to incapacitate. The lack of experience in recognizing the milepost of “impending death” may explain why Torre did not release the rear naked choke in time to preserve Richards’ life. I am certainly not advocating that martial artists begin experimenting with such a dangerous form of training. Even if I did, how could that be accomplished without causing serious injury? It would be impossible to practice such a controlled and measured defense tactic while accurately imitating your real-life reaction, mimicking your adrenaline surges, and replicating the true flight or fight response. It would be nearly impossible to practice a simulation of an unpredictable attack in a controlled environment.  Simply showing up for such a simulation would invalidate any realistic expectation of a true real-life attack of an unproved nature.   

Conversely, it is unlikely martial artists are trained in the art of murder.  In fact, Grandmaster Raymond K. Fogg, has a wise saying that embodies the essence of martial arts, and it is: 

Move rather than block 

Block rather than strike 

Strike rather than break 

Break rather than maim 

Maim rather than kill 

For all life is precious  

And cannot be replaced. 

Such wisdom is in line with self-defense training. Martial arts are centered around self-defense. Self-defense is not about learning and practicing how to subdue an opponent in an overly aggressive manner.  But it appears the uninitiated are laboring under the illusion that martial arts means something entirely different, such as wide practice of assassination techniques.  

It is perplexing a police officer, prosecutor, or judge would simply leap to such an assumption that martial artist’s is a highly trained assassin.  Rather, he has extensive experience in practicing techniques to defend himself.  In doing so, when a strike or kick causes the aggressor seriously injury or death, it is ridiculous to assume he knew the technique would lead to such injury or death.  Such an assumption is a form of prejudice against martial artists or an exhibit of ignorance about martial arts.  For this reason, it is recommended a martial artist on trial calls an expert witness to explain the working knowledge and limitations of martial arts to a judge or jury.  Otherwise, the accused martial artist may fall victim of such prejudice.  

The first step in the legal analysis of self -defense begins with a determination of a reasonable belief.  At some point, a judge or jury determines if the martial artist had a reasonable belief regarding an immediate danger of losing life or enduring grave physical harm.  What is reasonable to one person may not be reasonable to another.  The legal concept of “reasonableness of belief,” must be reduced to the lowest common denominator that a jury or judge can understand and accept. This typically presents a question of would an average person, under the same or similar circumstances, have feared for his/her safety (the threat) and what was necessary to prevent the harm (the action of self-defense). Sifu Taran Champagne of Austin, Texas, cautions the concept of reasonable varies from person to person, and community to community and, as such, careful attention is necessary to determine how the action of self-defense may be perceived in a particular community, which can be determined with focus groups, asking people in the community or during the jury selection process, called voir dire.

For the legal justification of self-defense to excuse a homicide or physical harm, the martial artist must prove a reasonable belief that his action was to prevent loss of life or great bodily harm.  To be clear, this must be an objective standard, meaning society can see the evidence of the threat and support that conclusion.  If the martial artist has a subjective belief (e.g., he believes it without evidence), that belief will not excuse his conduct.  The martial artist must justify his actions based on facts that plainly appear from evidence, not suspicions or beliefs.

In a self-defense situation resulting in homicide, the stakes are much higher. Homicide cases are always frowned upon and treated very seriously. To justify taking the life of another, there must be a clear and reasonable belief the martial artist’s life was in danger.  Additionally, the actions of the martial artist must be deemed necessary to save himself from the danger. Should the martial artist fail to support his reasonable belief in impending serious and potentially life-threatening danger, he will suffer the consequences of a conviction. 

However, if a police officer wants an arrest or the prosecutor lacks the courage necessary to dismiss the case against the martial artist, he may simply conclude your perception, choices and actions were “not reasonable.” And, just like that, the martial artist’s fate will be in the hands of a judge or jury.  When that happens, everything the martial artists did in response to an aggressive threat will be scrutinized.  His choices and actions must pass through the filter of reasonableness (e.g., was your belief of an aggression and his threats reasonable, was your assessment of danger reasonable, and was your degree of force reasonable). 

Determining who is an “aggressor” is essential to any self-defense analysis. This is not always straightforward. It is not easy to define an “aggressor” in every situation.  Another complicating factor is the aggressor, who got what he deserved, will almost always tell another story to the police.  He will become a victim and turn the tables on the martial artist by claiming he was the aggressor. This is the point the martial artist will become involved in the justice system.

Webster’s Dictionary defines “aggressor” as “one that commits or practices aggression,” and aggression is described as a forceful action, making attacks, hostile, injurious, or destructive behavior.   Black’s Law Dictionary defines “aggressor” as “[a] person or country that initiates conflict with another person or country; an assailant.” A trash talking loudmouth may be insulting, but those words do not exhibit forceful action. Under the law, insulting words, alone, would not be considered an act of aggression. Should the martial artist employ a physical response to such a person, the response could not be an act of self-defense.  

The aggressor must exist in a vacuum. If the martial artist provoked the conduct from which he acted upon in the name of self-defense, it will not work.  To be clear, if the martial artist was responsible for provoking the initial attack against himself, self-defense will not excuse the conduct of the martial artist. The first aggressor cannot claim self-defense.

The next step in the self-defense analysis is to determine if there was a true threat. A threat can be words and it could be actions or both.   The methods in which the threat is communicated is important.  Some States may not accept words alone as a basis for self-defense.

Words alone are generally insufficient to support a claim of a threat to a person’s life or he was in immediate danger. In elementary school, we all heard, “sticks and stones may break my bones, but words will never harm me.” That saying still rings true today.  However, if a person threatens, “I’m going to kill you” or similar threats of physical harm and it appears the person intends on carrying out the threat, the notion of self-defense becomes real.  This requires an overt act that produces objective evidence that the aggressor can and will act on his threat. Threats, past or present, accompanying actions that demonstrate a desire to make good on it may induce a well-founded belief the aggressor will carry out his threat.

A physical threat occurs when the aggressor is demonstrating force or a menacing act where the aggressor is about to carry out a threat or which places his victim to have reasonable apprehension of danger.  The aggressor’s actions must reveal evidence to cause his victim to believe he will suffer loss of life or great bodily harm.

There must be physical conduct of aggression that would produce bodily harm or death.  A chest bump might not rise to this level of aggression.  However, if the chest bump is accompanied with threats of harm, then such a combination may trigger the legal justification of self-defense.

It is not legally necessary for the martial artist receive physical aggression before he acts.  It is not required the “aggressor swings first.” However, since our martial arts teach defense and not aggression, it is not necessarily in our nature to strike first.  If the martial artist strikes first, he better have a solid explanation as why it was necessary. Otherwise, the police, prosecutors, judges, and jurors may assume the one who threw the first strike is the aggressor.

If the martial artist is pursued by an assailant, who is advancing in an aggressive way, the martial artist should scream or yell that he wishes to be left alone and for someone to call the police because he is in fear for his life. Hopefully this will get the attention of any bystanders/witnesses, who will call the police and see the martial artist as the victim of aggression.  He should ask onlookers to record a video of the aggressor or record him on his smartphone.  If there are no others around, the martial artist can direct his smartphone to call the police or 911.  He should tell the authorities he is in fear for his life and identify or describe the aggressor. Hopefully this will cause the aggressor to come to his senses.   If he does not stop his aggression, the right conditions may have been created where the aggressor’s actions will firm up the self-defense claim.  

If the aggressor is knocked unconscious or otherwise disabled, if the martial artist leaves him unattended and his condition takes a turn for the worse, the issue moves from self-defense to something much worse.  This is an impossible situation.  Consider calling 911 from the aggressor’s cellphone to report his condition and location.  Leave the cellphone on the body of the person so the 911 center can locate a cellphone.  The martial artist could remain in the distant vicinity to make sure emergency services arrive to tend to the aggressor. 

A good rule of thumb is the martial artist must have “clean hands,” which suggests the martial artist did not contribute to the aggressor’s actions. It can also mean the martial artist did not pursue or re-kindle the conflict after the aggressor sought to retreat or withdraw from the conflict. If the martial artist escalates the fight (i.e., the aggressor does a chest bump, and the martial artist pulls out a weapon and inflicts serious bodily harm), self-defense cannot be justified.  Another way to look at this is to determine if people could perceive the martial artist as the aggressor. The instant the martial artist’s hands become dirty, and he is no longer blame free, the notion of self-defense fails.

A martial artist must be mindful not taking his response too far.  If the aggressor shoves a martial artist, who then breaks the aggressor’s jaw, ribs, and nose, then a judge or jury may conclude the force used was excessive or unreasonable. Again, reasonableness is the standard and if his reaction unquestionably exceeds what a reasonable and prudent person would believe is necessary to prevent the aggressor from further attacks, the martial artist’s hands may no longer be considered clean.

Generally, self-defense is defined as a person protecting himself by responding to force or violence with force or violence. The key to self-defense is responding to force or violence.  There is no preventative self-defense. If a martial artist finds himself in such a position, he must have a well-reasoned and clear explanation of why his response was necessary. 

When there is a police investigation into a fight, it will focus on the martial artist and his actions. The concept of self-defense is rarely (if ever) the issue. Rather, the facts, evidence and opinions of the police will drive the case and establish whether there was an initial aggressor and someone simply defending himself.  Self-defense is a defense under the law (not to an arrest).  The police determine the facts and will only excuse actions if they are clearly convinced of a showing of self-defense.  Some police officers do not get bogged down with legal issues like self-defense. These types of police officers arrest everyone involved and expect the courts to sort out the legal defenses.  When this occurs, the police are simply avoiding the hard work of an actual investigation and passing the buck to the courts. To err on the side of caution, the martial artist should expect to independently prove up a self-defense and not presume the police will do it. 

What happens after the martial artist defends himself is critical. Just as the martial artist trains his body and expands his mind with the knowledge of martial arts, he must have a working knowledge on what to do after the fight with an aggressor. After the fight, it is not uncommon for the aggressor, who started the fight and did not achieve the desired result, will be the one to call the police. This is done to heal the wound of embarrassment.  The day after, the aggressor will magically become the victim. The police almost always take the statement at face value and do not bother with an actual investigation such as looking for witnesses or security camera footage etc.  The case will be resolved with the arrest of the martial artist, who is now the alleged aggressor.

An arrest means the police will take a suspect into police custody, photograph and fingerprint him, and hold him in a jail until someone posts a bond or bail. During the arrest, a person is required to provide identification and/or identifying information.  An arrest is an opinion by the arresting officer that he believes there is probable cause the arrested person committed a crime.  It is not proof of a crime.  This is because probable cause is a much lower standard of proof than that of beyond a reasonable doubt, which is required to support a criminal conviction.  There can be evidence supporting probable cause and that same evidence would not be strong enough to secure a conviction.

Should the police contact the martial artist to ask for a statement, do not do it.  The police are not calling because they think the martial artist is innocent. He should politely inform the police officer he does not wish to make any statements without an attorney and ask for an attorney.  The request for a lawyer must be clear by saying, “I am requesting an attorney” and do not saying anything else. When this happens, the police must stop questioning.  But sometimes the police will not respect this law and play a game. They sometimes remark, “if you did not do anything wrong, why do you need a lawyer?” Of course, this is a manipulative tactic designed to make the suspect give a statement.  Sometimes the police will say, “I have to arrest you without knowing your side of the story.”  This is another form of manipulation.  The police officer may act like he is respectful of our rights and as he brings the suspect to jail, he says, “all we have is what the victim said, and it sure looks bad for you.”  Again, this is a trick to make people speak.  Do not be fooled or pressured by these tactics. Do not talk to the police at all.

People often challenge the advice of not speaking to the police. Most people who believe they did not do anything wrong think they should not have any problems speaking to the police.  They assume the police officers will be equally upfront and honest. This is not always the case. Beyond that, if the martial artist is mistaken about an insignificant detail, the officer will report he is a liar and now his credibility is an issue. There is absolutely no advantage in giving a statement to the police officers.

An experienced attorney will be the champion. He or she will guide you through the troubled waters of the criminal justice system. However, the martial artist must help the lawyer by providing full and truthful information.  When he consults an attorney, the attorney-client privilege is triggered, and nothing said can be repeated.  This should encourage the martial artist to provide all the information without fear. Do not mislead or misdirect your lawyer. The lawyer needs to be the only person who knows about your martial arts training and experience.  Your lawyer will know how and when to use this information. 

The attorney needs help with learning about martial arts.  He may have preconceived notions about people who practice martial arts.  Also, the lawyer may need help with finding an appropriate expert witness to help the judge or jury learn about martial arts and/or self-defense. At least, the lawyer may need to hear from the instructor with the martial artist’s school to learn about how and what he was taught.  The martial artist could arrange an observation or participation in the martial arts class. If your instructor is like Mr. Miyagi from The Karate Kid (John G. Avildesen dir., 1984), it would be helpful for the jury or judge to hear about the martial art. However, if the instructor is more like Sensei John Kreese or Terry Silver of Cobra Kai, it would not be helpful with the court, but it may be to the attorney. 

It is important to have an expert witness explain the working knowledge and limitations of martial arts.  An expert witness is someone with specialized knowledge that will help the judge or jury understand the evidence or determine a fact in issue. The expert could foreclose any suggestion the martial artist took it too far in defending himself and show his actions were reasonable under the circumstances.  An expert witness’ testimony depends on the circumstances of the case at issue. Generally, experience alone is normally sufficient to qualify a witness as an expert. Expert testimony must be reliable. 

As Mr. Miyagi wisely said in The Karate Kid, “fighting always last answer to problem.”  It would be great if we lived in a world where there was no need to fight and there were no bullies. But bullies are not just in the schoolyard. They are everywhere. When these bullies try to pick a fight, it is best to avoid it.  Without an option, the martial artist should call attention to the bully so there is evidence of the true events. When a martial artist gets in such a situation, obtain help from a criminal defense attorney to fight for you.