ARTICLE- Self Defense Law and the Martial Artist

by Peter Hobart, Esq.

Introduction
Anthony Ervin was a career criminal. He was arrested eight times on assorted
robbery, weapons, and assault charges between 198 and 199!. "n "ctober 8,
199!, he accosted #ourtney $eswic%, a blind man who must have seemed li%e an
easy target. A&ter Ervin's demands &or money were repeatedly re&used, he attac%ed
$eswic%. $eswic%, a long time practitioner o& martial arts, threw his assailant over his
shoulder, onto the pavement. (he &all bro%e Ervin's nec%, and he subsequently died.
Having survived this terri&ying ordeal, $eswic% still &aced the possibility o& criminal
and civil charges. )n this case, however, the police and estate o& the deceased
decided not to &ile charges against $eswic%, since he clearly acted in sel&*de&ense.
$ut this outcome is hardly the rule in the +nited ,tates. )n &act, a recent law review
article indicates that a disturbing trend toward targeting martial arts practitioners is
emerging in the &ield o& tort law.
-ith this in mind, it seems that the modern martial artist must have at least a
rudimentary understanding o& the applicable law i& he ever hopes, or &ears, that his
training may be called upon outside the d./..
)n an e&&ort to provide some practical answers, this article will address the national
ma/ority position, and any substantial minority positions regarding criminal and civil
liability with respect to the use o& &orce in de&ense o& sel&, de&ense o& others, and
de&ense o& property. Pennsylvania law, where relevant, will also be e0amined. (he
ma/ority position re&lects the practice o& most states, and is increasingly consistent
with the 1odel Penal #ode 21P#3. Pennsylvania law regarding these issues is largely
based on the 1P#.
(he author regrets the ubiquity o& the terms 4reasonable4 and 4generally4 in this
article 5 that these terms are essential merely re&lects the comple0ity, and o&ten the
vagueness, o& the law.
#ase law varies widely among /urisdictions, and is constantly modi&ying and
reinterpreting the rules o& law. )n an e&&ort to provide some concrete conclusions, a
lsit o& relatively unquali&ied guidelines is provided at the end.
CRIMINAL LIABILITY
Self-defense, non-lethal force:
#riminal liability is distinguished &rom civil liability in that it is the state which brings
charges against the de&endant, as opposed to the victim or his estate. (he general
criminal law allows for the use of necessary and roortionate! non-deadly
force in self-defense anyti"e the #icti" reasona$ly $elie#es that unlawful
force is a$out to $e used on hi". Pennsylvania law is generally consistent with
this position. (he critical language under this standard is 6reasonable belie&',
6unlaw&ul', 6about to' and 6necessary and proportionate'.
)n order to establish a reasonable belie&, the court will use both a sub/ective and an
ob/ective standard. (he sub/ective standard determines whether this de&endant did
in &act believe that an attac% was imminent 2whether reasonably or unreasonably3.
)n arriving at this conclusion, the de&endant's state o& mind is relevant. (hus, a
paranoid de&endant might introduce evidence o& his condition to show that his belie&,
however unreasonable, was at least genuine.
(he reasonableness o& the de&endant's actions is /udged by an ob/ective rather than
a sub/ective standard. (he reasonable person standard is one o& the most di&&icult
aspects o& the law to understand. )n an e&&ort to do /ustice to both sides, the law
requires the trier*o&*&act 2usually the /ury3 to consider whether an ordinary person in
the de&endant's position would believe that &orce was about to be used against him.
(he de&endant's 2and the assailant's3 physical characteristics and past history will be
ta%en into account, but mental condition is o& no concern. (hus, comparative si7e,
weight, strength, handicap or pre*e0isting in/ury may support a reasonableness
&inding, but unusual sensitivity or &ear will not.
(here is no simple &ormula &or the legal application o& &orce in sel&*de&ense under
American law. (he con&usion is due, in part, to the comple0ity o& the issue itsel&, and
in part to the variety o& state laws within the American legal system. (he
requirement that the &orce de&ended against be unlaw&ul simply e0cludes the right o&
sel& de&ense when an 6assailant', such as a police o&&icer, is legally authori7ed to use
&orce. )t must be noted however, that a ma/ority o& /urisdictions allow the use o&
&orce, including deadly &orce, in resisting an attac% by a person not %nown to be a
police o&&icer, and the use o& non*deadly &orce against a %nown police*o&&icer
attempting to ma%e a wrong&ul arrest. Pennsylvania does not allow the use o& &orce
in resisting wrong&ul arrest, but it does allow the use o& &orce i& an arresting o&&icer
unlaw&ully threatens to use deadly &orce, or does not identi&y himsel&.
6About to' re&ers to the imminence requirement &or the right to sel&*de&ense. )t is not
enough that the assailant threatens to use &orce in the &uture, or upon the happening
o& a certain event. (hus the statement 4)& you do that one more time, )'ll punch you4
is insu&&icient to trigger the right to sel&*de&ense. (he threatened use o& &orce must
be immediate.
(he &orce used in sel& de&ense must reasonably appear to be necessary to prevent
the attac%, and must be proportionate to the gravity o& the attac%. (hus, &or
e0ample, i& an assailant is about to slap the victim, responding with the use o& a &ire*
arm would be e0cessive and there&ore beyond the scope o& the right to sel&*de&ense.
(he proportionality standard under Pennsylvania law is articulated as a prohibition on
the use o& e0cessive &orce, but the &act that death results does not automatically
produce a &inding o& e0cessive &orce.
Self-defense, lethal force:
(he standard &or use o& deadly &orce is, predictably, higher. (he general criminal law
allows for the use of deadly force anyti"e a faultless #icti" reasona$ly
$elie#es that unlawful force which will cause death or %rie#ous $odily har"
is a$out to $e used on hi". Again, Pennsylvania law is generally consistent with
this standard.
(he &aultlessness requirement does not mean that the victim must be pure o& heart
and without sin. )t does mean that the right o& sel&*de&ense will not be available to
one who has substantially encouraged or provo%ed an attac%. (he general rule is that
words alone are not enough to be considered a provocation under this standard, but
there are e0ceptions. 8or e0ample, saying 6) am about to shoot you' might well
constitute su&&icient provocation.
"ne o& the circumstances which helps to determine the level o& threat encountered
by the victim is the nature o& the assailant's weapon 2i& any3. As a general rule,
anything which might be used to %ill a person, no matter how odd, is considered a
deadly weapon. (hus, a chair, a lamp or a screwdriver may all be considered deadly
weapons. )n some instances, the law will treat a trained &ighters hands as a deadly
weapon, but in order to trigger the right to sel&*de&ense using lethal &orce against
such a person, the victim must, o& course, %now o& the attac%er's special training.
+.,. courts are split with respect to an additional &actor in the law&ulness o& the use
o& deadly &orce in sel&*de&ense. A minority o& /urisdictions require a victim to retreat
to the wall if it is safe to do so! $efore usin% deadly force. 69etreat to the wall'
is generally construed to mean ta%ing any reasonable and apparent avenue o& e0it.
However, even minority /urisdictions do not require retreat under three
circumstances. (here is no duty to retreat &rom one's own home, i& one is being or
has been robbed or raped, or i& the victim is a police*o&&icer ma%ing a law&ul arrest.
)n 199! the Pennsylvania ,uperior #ourt held that 4although a person is a&&orded
discretion in determining necessity, level and manner o& &orce to de&end one's sel&,
the right to use &orce in sel& de&ense is a quali&ied, not an absolute right.4
Pennsylvania is a retreat /urisdiction.
Even an initial aggressor may be given the right to sel&*de&ense under certain
circumstances. )& the initial aggressor withdraws fro" the confrontation! and
co""unicates this withdrawal to the other party, he regains the right to sel&*
de&ense. Also, i& the #icti" of relati#ely "inor a%%ression &suddenly escalates'
the confrontation to one in#ol#in% deadly force! without ro#idin% ade(uate
sace for withdrawal, the initial aggressor may still invo%e the right to sel&*
de&ense.
Third parties:
(he right to de&ense o& others turns largely on the reasona$leness of the $elief
that the #icti" deser#ed assistance. A minority o& /urisdictions require that the
rescuer be a member o& the victim's &amily, or the victim's superior or employee.
,imilarly, a minority o& /urisdictions require that the rescuer's belie& be correct,
reasoning that the rescuer 6merely steps into the victim's shoes', while the ma/ority
requires only that it be reasonable. Pennsylvania law imposes no such restrictions. )t
does, however, require the additional showing that the rescuer believed that his
intervention was necessary, and that the rescuer retreats i& the victim would be
required to do so.
)& in the course o& intentionally de&ending himsel& or another, a de&endant rec%lessly
or negligently in/ures or %ills a third person, sel&*de&ense will not bar liability, but it
will reduce the gravity o& the charge &rom an intentional crime to a rec%less or
negligent crime.
Defense of Property:
)n Pennsylvania, and a ma/ority o& /urisdictions, a victim has the ri%ht to use non-
deadly force in defense of his dwellin% when! and to the e)tent that he
reasona$ly $elie#es that such conduct is necessary to re#ent or ter"inate
another's unlawful entry or attac* uon his dwellin%+ Deadly force is
authori,ed when #iolent entry is "ade or atte"ted and the #icti"
reasona$ly $elie#es that it is necessary to re#ent an attac* on his erson.
)t is also authori7ed when the victim reasonably believes that such &orce is necessary
to prevent entry into the dwelling by one who intends to commit a &elony therein.
(he rationale &or allowing sel&*de&ense in these scenarios is based upon the right o&
inhabitants to be secure in their homes, rather than the right to de&end property, as
can be demonstrated by the law regarding de&ense o& uninhabited property.
Non-deadly force "ay $e used "erely to defend one's roerty fro"
i""inent! unlawful interference. 8orce may not be used i& some other,
reasonable means would have the same e&&ect.. (he only e0ception to the immediacy
requirement is that &orce may be used to regain wrong&ully ta%en property a&ter the
ta%ing 2i.e. no longer a prevention o& immediate inter&erence3 i& the victim uses such
&orce in 6immediate pursuit'. (he legal rationale &or this e0ception is, o& course, that
the inter&erence continues as long as the aggressor retains control o& the property.
Deadly force "ay ne#er $e used in defense of uninha$ited roerty. (he
popular misconception with respect to this law emanates &rom con&usion over
situations where the right to de&end property and the right to de&end persons therein
overlap. Pennsylvania allows the use of reasona$le! non-lethal force in the
rotection of roerty and notes that such a de&ense o& property will not be
regarded as 6provo%ing' an attac% on the de&ender's person. Pennsylvania allows the
use o& &orce necessary to e/ect a trespasser, short o& in&licting serious bodily in/ury. )&
the de&endant reasonably believes that the trespasser intended to commit a &elony,
then serious bodily in/ury is /usti&ied. -hen two persons claim ownership over a
piece o& personal property, Pennsylvania law provides that &orce may not be used to
prevent one &rom ta%ing it.
Use of force to prevent crime:
A citi,en has a ri#ile%e to use non-deadly force which reasona$ly aears
necessary to re#ent a felony! riot or other serious $reach of the eace, and
some states 2such as #ali&ornia3 have e0tended this privilege to the prevention o&
any crime. Deadly force "ay $e used only to re#ent the co""ission of a
dan%erous felony! in#ol#in% a ris* of hu"an life. A citi7en has the same right as
a police*o&&icer to use non*deadly &orce to e&&ectuate an arrest i& he reasonably
believes that the alleged criminal has in &act committed the crime. A private citi7en
may also use deadly &orce to e&&ect an arrest, provided the alleged criminal is
actually guilty. Here, a reasonable belie& is not enough.
Pennsylvania phrases this provision di&&erently. A private citi7en is /usti&ied in using
the sa"e a"ount of force as if he were directed to re#ent the cri"e $y a
eace officer, e0cept that lethal &orce may not be used unless the de&endant
reasonably believes that it is necessary to prevent death or serious bodily in/ury to
him*sel& or another. At the direction o& a peace o&&icer, a private citi7en need not
retreat &rom ma%ing a law&ul arrest, and may use any &orce he believes necessary to
de&end him*sel& or another &rom bodily harm while ma%ing the arrest.
CI-IL LIABILITY
)n a civil case, it is the victim 2or his estate3 bringing the action. -hile there are
many similarities to a criminal charge, it is important to understand that the civil
plainti&& must only prove his case 6by a preponderance o& the evidence'. (his is a
much lighter burden than the criminal standard o& 6beyond a reasonable doubt'. (he
principal tort actions which a victim who de&ends himsel& might &ace, include battery,
assault and wrong&ul death.
Battery and assault:
)n virtually every /urisdiction 2including Pennsylvania3, to ma%e out a case &or
battery, the plainti&& must show that the aggressor made har"ful or offensi#e
contact with the laintiff's erson, that the aggressor intended to bring about
such contact, and that the aggressor's actions in &act caused the contact. -hile
harm&ul contact is easily determined &rom the speci&ics o& the situation, o&&ensive
contact is /udged by the ob/ective, 6reasonable person standard'. As a prominent
Philadelphia law pro&essor e0plains, 4tapping a person on the shoulder is not
reasonably 6o&&ensive' whereas, tapping someone 6considerably lower' would be.4
6Plainti&&'s person' means in general anything connected to the plainti&&'s body. (his
would include a hat, a cup in plainti&&'s hand, and on a recent bar e0am, even the car
in which the plainti&& was sitting: (hus, snatching a boo% &rom a person might well
constitute a battery.
(he causation requirement can also be deceptive. ;ot only would a thrown pro/ectile
which stri%es the plainti&& constitute a battery, but duc%ing to avoid such a pro/ectile,
and hitting one's head would also be actionable. 1oreover, no actual damage need
occur to bring an action &or battery. (he o&&ensiveness o& a non*harm&ul contact will
support an award o& nominal damages.
Assault, brie&ly, is the creation of a reasona$le arehension of an i""inent
$attery, in the victim. ,imple &ear is not enough. (he aggressor must have a
present apparent ability to bring about such contact. )n other words, the victim must
actually e0pect to be struc% or touched. #onversely, the &act that the victim was not
in the least bit a&raid does not bar recovery. (hus, a pro&essional bo0er may
success&ully sue a wea%ling &or assault, even though there was no actual danger o&
being hurt.
-ords are generally not enough to support an action &or assault, but words coupled
with some act may be. 8or e0ample, sha%ing one's &ist and threatening with words
might well constitute assault. ,imilarly, a conditional threat such as 6your money or
your li&e' is also su&&icient to support a charge o& assault. <i%e battery, no actual
damage need result.
Wrongful death and survivor acts:
Although traditionally any tort action abated at the death o& the victim or the
perpetrator, most states have now enacted 6survival acts' &or wrong&ul death 2it is
&rom this old common law rule that the concept o& escaping liability by %illing, rather
than in/uring a victim, derived3. ;ow the estate o& the deceased may bring an action
against the %iller &or all damages which occurred between the commission o& the tort,
and death 2e.g. pain and su&&ering3.
8urther, every state has now enacted a statute providing &or a civil remedy &or
wrong&ul death. Here, the a designated representative sues &or the pecuniary in/ury
to the ne0t o& %in 2lost wages, lost companionship3. -hile the wrong&ul death action
is quite complicated, the critical aspect &or present purposes is that the same
de&enses against the plainti&& apply as i& the victim himsel& were suing.
Self-defense in tort law:
-hile the principles o& sel&*de&ense at tort law are similar to those at criminal law,
the mode o& analysis, and areas o& emphasis di&&er. )n general, sel&*de&ense is valid
when a erson has reasona$le %rounds to $elie#e that he is a$out to $e
attac*ed+ +nder these circumstances, he may only use such force as is
reasona$ly necessary to rotect a%ainst the otential in.ury. ,ince only
reasonable ground are required, a genuine mista%e with respect to the attac% will still
support the right to sel&*de&ense. "nce the attac% or tort has ended, so does the
right to sel&*de&ense. 9etaliation is never permitted.
As at criminal law, there is generally no duty to retreat, and deadly &orce may be
used to prevent death or serious bodily harm. Even in the minority /urisdictions
which require retreat 2li%e Pennsylvania3, there is an e0ception to the requirement i&
the victim is in his home. Although the attac%er has no right to sel& de&ense, i& the
attac% is non*deadly, and the victim responds with deadly &orce, the aggressor may
de&end himsel& with deadly &orce.
Third parties:
+nder tort principles, a victim who accidentally in/ures a third*party in the course o&
de&ending himsel& is also protected &rom suit by that third party. A ma/ority o&
/urisdictions also allow the de&ense o& victims only i& the victims themselves have a
right to sel&*de&ense. (hus, i& the rescuer ma%es a mista%e regarding the victim's
right to sel&*de&ense, he too will be liable. However, there is a strong modern trend
toward protecting rescuers &rom suit i& their wrong&ul assistance o& a victim is based
on a reasonable mista%e 2Pennsylvania tort law allows &or a reasonable mista%e3. (he
rescuer may use as much &orce as the victim could have used in sel&*de&ense.
Defense of property:
)n the de&ense o& property, a request to desist prior to the use o& &orce is required,
unless it would be &utile or dangerous. (here is almost never a right to sel& de&ense
when the 6intruder' in &act has a right to be on the property. (hus, it is unwise to
attac% a supposed intruder without ascertaining his identity &irst: A signi&icant
e0ception occurs when the 6intruder' contributes to the ambiguity regarding his
identity or purpose.
As at criminal law, there is a right to use &orce in the recovery o& stolen property, as
long as the victim is in 6hot pursuit' o& the ta%er. Also as under the criminal standard,
deadly &orce may never be used simply to de&end property. 8inally, the right to
trespass &or necessity supersedes the right to sel&*de&ense. (hus, a home*owner is
not privileged to use &orce to turn away those who need re&uge &rom an emergency.
Prevention of crime:
,ince the right to use &orce is limited to the prevention o& the commission o& a tort in
civil actions, one who subdues an attac%er and then continues to use &orce to hold
him until the police arrive, must be aware that he has moved over &rom a tort
privilege, to the privilege o& arrest under criminal law.
artial arts teachers! lia"ility:
+nder the (heory o& Agency, the principal is liable &or unlaw&ul acts which he causes
to be done through an agent. (here are three possible ways in which a martial arts
instructor might be held liable as the principal &or the unlaw&ul acts o& his students,
as agents. 8irst, i& the instructor appears to rati&y or approve o& unlaw&ul conduct, he
may be held liable &or the commission o& such acts. (hus, a do/o which encourages
the use o& e0cessive &orce, or lethal &orce in inappropriate situations may be seen to
rati&y and approve o& unlaw&ul conduct. ,imilarly, an instructor who continues to
teach a student who has abused his %nowledge may be held responsible, i& not liable,
&or subsequent torts.
,econd, an instructor may be held liable &or having entrusted a student with 6an
e0tremely dangerous instrumentality'. 4=->hen an instrumentality passes &rom the
control o& a person, his responsibility &or in/uries in&licted by it ceases. However,
when an in/ury is caused by an e0ceptionally dangerous instrumentality, or one which
may be dangerous i& improperly used, a &ormer owner or possessor may ... be
charged with responsibility &or =its> use....4 (he implications &or instructors who teach
potentially lethal techniques is clear.
8inally, an instructor may be liable &or harm to the student or other parties as a
result o& negligent instruction. Anyone who holds himsel& out as an e0pert capable o&
giving instruction is e0pected to con&orm to the standards o& his pro&essional
community. (hus, any instructor who, by his own negligence, &ails to provide, teach
and require adequate sa&e*guards and supervision, may be liable &or any resulting
in/ury.
C/NCL0SI/N
(he law, and the &acts underlying a cause o& action are rarely clear*cut. ,tatutes and
case law vary widely &rom /urisdiction to /urisdiction. <awyers are s%illed at recasting
the &acts in their client's best interest. ?uries are given broad discretion with respect
to determining guilt or innocence, and may &eel the need to compensate an in/ured
party regardless o& &ault. And even i& a de&endant success&ully raises one o& the
de&enses discussed above, litigation is costly both in terms o& time and money.
)t would be &oolish to try to rely on a general understanding o& the legal principles at
wor% in these situations, in order to engage in behavior which &alls /ust within the
realm o& legality. 9ather, the wise martial artist will attempt to avoid any hint o&
liability or criminal conduct. (he &ollowing general principles may be o& value in this
endeavor.
@ Avoid physical con&rontation. )& there is a sa&e avenue o& retreat, use it 2regardless
o& /urisdiction3. At a minimum, retreat to the wall.
@ )& con&rontation is inevitable, give a warnin% when defendin% roerty, unless
doing so would be dangerous or &utile 2which is o&ten the case3. (his does not mean
that you should list your quali&ications, as the samurai o& old were wont to do.
9ather, you should simply give the aggressor notice that you intend to use &orce
against him, in order to allow him to reconsider his position.
@ Ensure that you are not seen as the aggressor. (his does not require 6ta%ing the
&irst hit', but it does require being certain that hysical contact is i""inent prior
to reacting 2&or an in*depth e0amination o& the danger here, see the Aoet7 case3.
@ $e aware o& the a%%ra#atin% and "iti%atin% factors. )s there a si7e, age, or
ability di&&erentialB Are you or the attac%er armed or trainedB All o& these &actors will
help you determine the appropriate level o& &orce.
@ +se only the a"ount of force necessary to deter the attac%. (his does not
require the use o& ine&&ective technique, but rather mature re&lection rior to a
con&rontation about what technique 2including &light3 is appropriate in which
situation. )t would be wise to introduce this as part o& training.
@ "nce the initial threat is neutrali7ed, sto. (his does not mean that you must give
your opponent a &ighting chance. 9ather, you may immobili7e the attac%er while
awaiting the police, $ut do no further da"a%e.
@ -hen intervening on behal& o& a third party, ensure 2as much as possible3 that the
intervention is .ustified and necessary. As a rule, inter&erence in domestic disputes
is unwise. 9econciliations can mean trouble &or the would*be rescuer.
@ 9emember that, in this country, hu"an ri%hts are suerior to roerty ri%hts.
(he use o& &orce in the protection o& property is very ris%y.
@ As an instructor, you are both "orally and le%ally resonsi$le for the actions
of your students, both inside and out o& the do/o.
As an instructor, you should %now the law at least to the e0tent o& whether your state
is in the ma/ority or the minority with respect to the issues raised above. )& you do
not have a lawyer or law student in your do/o, any law school library will have a copy
o&C Your State Statutes Annotated 2i.e., Texas Statutes Annotated3. ,imply loo% in
the inde0 under the headings listed in this paper &or the applicable law.

DISCLAIMER1 (his analysis is not intended as a comprehensive statement o& the
law, or a legal opinion. )t represents a general overview o& the law, accurate to the
best o& my %nowledge, at the time o& publication. )t is not intended &or public
consumption, and should not be relied upon as a de&ense to any criminal or civil
charges or complaints.
Peter Hobart is a prosecuting attorney. Currently a member of the Itten D!" #r.
Hobart has trained for many years and is a licensed instructor of Santo $iten Ichi
%y& 'en!utsu and 'empo" and holds blac'(belt ran' in ai'i!utsu. He can be reached
)ia e(mail addressed to *'ishido+ccis.com.,