Self-Defense and the Law
A Roundtable Interview
(Photo via Shutterstock)
Steven Graff Levine has specialized in California state criminal law for more than 23 years. He was a Los Angeles County district attorney for 13 years, a staff lawyer for the California Supreme Court for three years, and now has an ongoing criminal law defense practice to help those in need of legal assistance in all types of criminal matters. Steve is a 2010 graduate of the prestigious Gerry Spence Trial Lawyers College and was named a 2012 California Super Lawyer . He has been involved in prosecution, defense, and appeal in thousands of cases and has conducted more than 125 jury trials, including more than 20 murder trials.
Rory Miller served in corrections for seventeen years, as an officer and sergeant working maximum security, booking, and mental health; leading a tactical team; and teaching courses ranging from Defensive Tactics and Use of Force to First Aid and Crisis Communications with the Mentally Ill. For fourteen months he was an advisor to the Iraqi Corrections System, working in Baghdad and Kurdish Sulaymaniyah. He has a BS degree in psychology, served in the National Guard as a combat medic (91A/B), and earned college varsities in judo and fencing and a mokuroku in jujutsu. He is the author of Meditations on Violence, Facing Violence, Scaling Force, and several other books.
Matt Thornton has trained in the martial arts for more than thirty years and was among the first Americans to receive a black belt in the art of Brazilian Jiu-Jitsu. He has been a mixed martial arts (MMA) coach to some of the world’s top athletes, including multiple-time UFC champion Randy Couture, Dan Henderson, Forrest Griffin, and others. Matt is the founder of SBGi, a martial arts academy with thirty-plus affiliate schools in more than eleven countries. His writing has appeared in Black Belt Magazine, Inside Kung Fu, Martial Arts Legends, Fighters, Martial Arts Illustrated, and other journals.
Sam Harris: First, I’d like to thank you for taking the time to speak with me, Steve. We are having this conversation just a few days after the verdict was read in the now infamous Zimmerman trial, which makes the topic of self-defense law of greater interest than it might usually be. I don’t want to go into the specifics of that case, but I think it is a useful frame for our discussion. It seems to me that what happened between Trayvon Martin and George Zimmerman could be viewed as an instance of self-defense gone awry. Given how the situation unfolded, I suspect that each might have perceived the other as the aggressor from the moment they began exchanging words. The principles of self-defense can be very confusing—practically, ethically, and legally. Obviously, the presence of a gun raises the stakes considerably.
I should also alert our readers to the unconventional way I’ve conducted this interview: Once we have an initial transcript of our conversation, I will send it to a few self-defense experts and martial artists for comment. I will then come back to you to answer any outstanding questions. You practice law in California, and I understand that laws vary from state to state, but I want us to arrive at general principles wherever possible. My goal is to produce a document that will help people avoid unnecessary violence and stay out of prison.
Why You Want to Stay Out of Court
As far as I know, the legal foundation for a claim of self-defense rests on the following proposition: I have a right to use force against a person who appears to have the means, opportunity, and intent to harm me (or someone else). And this right ends the moment the threat subsides—for instance, once my assailant no longer has the means to attack me. Is that the right starting point?
Steven Levine: Yes, that’s fine. The claim to self-defense rests on your state of mind. In California, you have to be acting out of fear of the other party—and not for any other reason. And even if you seem to be operating within this standard, that doesn’t mean you are going to be in the clear if your case goes to court.
Sam Harris: One sometimes hears horror stories about people who engaged in seemingly necessary acts of self-defense and yet were zealously prosecuted and landed in prison. What is the worst that can happen?
Steven Levine: The worst that can happen is that you go to prison for the rest of your life, especially if you kill somebody. In California, even if you have a valid self-defense claim, the DA’s office will typically still file charges on you. I recently had a client, a 50-year-old nurse, who was in her own home when her ex-boyfriend (for 26 years) came over. He’d moved out 7 months earlier. There was a small history of domestic violence. But in fact, he had recently assaulted their 22-year-old daughter by head-butting her. While they were discussing things downstairs in the living room, he picked up a sledgehammer. She grew worried, told him to leave, and retreated upstairs. He put down the hammer but followed her upstairs and told her he did not have to leave. Once upstairs, he was yelling at her. Finally, she grabbed her gun. She’s a cancer survivor. She’s had a double mastectomy. She’s half his size, and she told him to leave. He went for the gun, and she shot him. The bullet went through his rib cage and he died. She tried to save him by doing CPR.
The jury convicted her of murder despite the fact that she said that she was scared for her life. Again, the general principle is correct as far as the law is concerned: You can defend yourself as long as you’re scared of great bodily injury—and that’s not such a high standard. Great bodily injury could be pretty much anything. I was just at a preliminary hearing the other day where the complaining witness had been hit and received two bruises under the eye. This qualified as great bodily injury. But you have to realize there are standards that apply to the cops and to prosecutors, and there are standards that apply to ordinary defendants.
Sam Harris: What a crazy story about your client…. The lesson seems to be that, however the law reads, if you are involved in an incident of that kind, you will find yourself at the mercy of a jury, and the jury’s judgment regarding what constitutes reasonable fear is the only thing that will matter in the end. Needless to say, a jury may be composed of people who don’t know anything about how violence unfolds in the real world.
Steven Levine: And before that, you will be at the mercy of the police and the prosecuting agency, who will decide whether or not to charge you.
Rory Miller: Steven, could you say something about the difference between case law and jury instructions? I’ve found some states, notably California and Massachusetts, where there seems to be very little in statutes and you have to go to jury instructions.
Steven Levine: The right to self-defense is a common law right, which means it is not a creature of statute, so there are no “laws” on the books per se; instead, there is a body of case law that has been distilled into jury instructions, and the jury gets the instructions and has to decide whether you are guilty based on the language of the jury instructions.
Sam Harris: What sentence did your client receive for killing her ex-boyfriend?
Steven Levine: She’s getting 40 years to life. In California, the gun enhancement in a murder case is 25 to life.
Sam Harris: Unbelievable. So defending yourself with a gun is fundamentally different from defending yourself with a knife or a screwdriver or some other weapon?
Steven Levine: Well, it’s not supposed to be. If you feel that you’re being threatened with great bodily injury or death, theoretically you can kill the attacker; that’s all the law requires in California. If you feel you are in a situation of that kind, the jury instructions and the case law say that you’re allowed to pull out a gun or a knife and do what you need to do. But it really depends on how much the jury likes you, who you killed, what the circumstances were that led up to it, and so forth. There are just a million fact-based questions that I can’t answer for you in advance.
Sam Harris: However, assuming a person’s claim to self-defense unravels, for whatever reason, the difference between having used a gun and any other weapon is a minimum extension of 25 years?
Steven Levine: In California, as in most states, there is the underlying crime and then there are enhancements to the crime. If you kill somebody with a knife, it’s a one-year enhancement. If you kill somebody with a gun, it’s an extra 25-years-to-life. So the difference is huge.
Sam Harris: That’s fairly astounding—and it’s honestly something I was unaware of until the Zimmerman trial.
Steven Levine: However, no one gets a permit in California to carry a gun on the streets—except for law enforcement and some DAs. So the average citizen has no business carrying a firearm on him, period. If you’re out in public—or even in another person’s home—and you’re involved in an incident while carrying a gun, you’re in trouble.
Sam Harris: From the point of view of the law, is there a difference between producing a lethal weapon and brandishing it? In other words, is there a way of drawing a knife or a gun and being prepared to use it, but not being guilty of the crime of brandishing?
Steven Levine: It’s not brandishing if you have a valid claim to self-defense—which, once again, depends on what the underlying cause of your fear is. If you think some guy twice your size is about to attack you, and you pull out a gun and say, “Step back. You go your way and I’ll go mine,” that’s not necessarily brandishing.
But you could have a situation like the one we just discussed, where, instead of backing away, your assailant attempts to take the gun from you. Then you will have no choice but to shoot, and your decision to pull out the gun in the first place is going to be scrutinized. If that decision was not fear-based, or does not fall under the rubric of self-defense, you’re going to be liable—whether it’s for brandishing, or assault with great bodily injury, or homicide.
Sam Harris: But is merely producing a weapon, or otherwise showing that you are armed, an act of brandishing? Or do you have to hold it in a threatening way?
Steven Levine: You don’t have to be waving it around. If you have a knife in your waistband and you lift up your shirt and say, “Look, I have a knife”—that’s brandishing. The other person simply has to know that you have a knife because you showed it to him. But who cares? Brandishing is a misdemeanor. The real issue is using force on another person. And I’m telling you, most people do not succeed with self-defense claims in California.
Sam Harris: I suspect that most martial artists and gun owners will find that a pretty startling statement.
Steven Levine: The way to prevail with a claim of self-defense is to have it accepted prior to filing, because once the DA’s office is invested in your case, they’re just not going to let it go. It’s at the pre-filing stage where you need for them to say, “I’m not filing this; that was just self-defense.” If they think it’s something more, then you’re going into the system.
Matt Thornton: The fact that most self-defense claims don’t succeed doesn’t strike me as that surprising when you consider that most victims know their assailants—and much of this violence occurs in the home. I suspect both variables affect the legal outcome.
Rory Miller: In my experience, most of the people who claimed self-defense had been involved in a mutual fight and were rationalizing it as self-defense. One exception was a man who had shot two notorious dealers who broke into his home. When I got the story from him, he left out the part where he had robbed these guys at gunpoint a few hours earlier. Steve, I know it is difficult to differentiate between bogus claims, gray areas, and legitimate cases—especially without access to court evidence—but do you have a ballpark estimate of the percentage of truly legitimate cases of self-defense that result in conviction?
Steven Levine: I really cannot tell you that, because if the case is filed, the DA has decided that it is not a valid self-defense claim. If the DA—the gatekeeper, so to speak—believes it is a righteous case, it won’t be filed. And if the case is filed, the case may settle pursuant to a plea bargain. But I have seen scores of appellate cases where self-defense claims were rejected by juries and the appellate courts. I just don’t know how to get you an accurate number.
Matt Thornton: Given that knowing your assailant can make it harder to claim self-defense, do you have any advice for how people should deal with the problem of domestic abuse? And can you think of any change to the law or the legal system that would have made your client’s claim to self-defense legally unimpeachable?
Steven Levine: Again, my case should have been a solid self-defense case, but the jury did not accept the fact the gun should have come out in the first place. I am still stunned by it all. I had a Lancaster jury, an Asian client, and a white male victim. In a different part of town, a different judge, I believe a not guilty verdict would have been the result.
Regarding domestic violence cases, where you have hitting, or an injury, or a recent beating, or the attacker has a reputation for violence, the case may not get filed; but the California Department of Corrections is filled with women from abusive relationships who killed their husbands or boyfriends, and who were convicted of murder.
Rory Miller: Speaking more generally, can you say something about the costs—in time, money, reputation—associated with even a successful self-defense trial?
Steven Levine: Is the person dead? Is he injured? How badly? All these are factors in terms of time and costs. A murder charge may take two years to reach the trial stage; serious felonies less; but every person I know who is involved in the system thinks about it every day, and worries. I just had a case where a bouncer was being a jerk to my client, a professional athlete, and would not let him into an after party, despite the fact that he had the proper wristband. The bouncer yanked on the wristband and chest-bumped him. My client took a swing and hit the bouncer in the nose, fracturing it—a lucky punch. My guy is 5′ 7″ and 160; the bouncer was 6′ 2″ and 225. He and two other guys beat the crap out of my client and choked him out; I even had pictures. So listen, if my guy hit him in the cheek, it would have been filed as a misdemeanor, with a five-day jail offer; instead, it was filed as a felony strike case, and the original offer was two years in state prison. My guy had NO record and was shitting a brick for almost a year. I took the case over from another lawyer, and eventually got the offer down to a year, which was still ridiculous, and eventually I was able to get him a misdemeanor with no jail time but lots of community service and restitution. So here is a situation where my guy was NOT the initial aggressor, but his punch was deemed inappropriate by the DA’s Office, and because the guy had a broken nose, despite the fact that afterwards three guys beat my client, they initially wanted state prison! This is what I deal with all the time.
Matt Thornton: Sam noted that for a self-defense claim to be valid, the other person must have the means, opportunity, and intent (I’ve also seen this covered under the rubric of “jeopardy”) to harm you. But there is a fourth requirement that one often encounters: preclusion. This is the idea that force has to be the only available option (i.e., all peaceful means of escaping danger were “precluded”). My guess is that many self-defense cases fail because the victims are unable to show preclusion. I also suspect that the proliferation of “stand your ground” laws affects this fourth criterion. Can you say something about this and about whether you think such laws are a good idea?
Steven Levine: Well, like Florida, a person being threatened in California has no duty to retreat and can stand and fight. I was amused when I read so much criticism of the Florida Stand Your Ground Law when we have that here, albeit not in a statute, but as part of the common law. Just don’t be the initial aggressor here, because then stand your ground is not available.
Sam Harris: Okay, I think we should consider a few scenarios: Let’s say that I’m out in public and a stranger approaches me aggressively. For whatever reason, he seems about to attack me. Let’s also assume that I can’t retreat—perhaps I’m in a confined space or I’m with my child. Do I have to wait for him to throw the first punch before defending myself?
Steven Levine: It depends on what he is doing.
Sam Harris: Let’s say he is issuing verbal threats and moving toward me as though he intends to grab or strike me.
Steven Levine: If he says “I’m going to kick your ass” and advances towards you, I would think that under those circumstances you could certainly defend yourself. The generic answer is: There must be something that would lead a reasonable person to believe that this guy was going to attack you.
Sam Harris: But the other person’s fist does not need to be en route to my face before I can act, correct?
Steven Levine: That’s correct. However, if the guy comes at you with his fists, and you come back at him with a knife, you’re going to have some problems if he hasn’t already hit you.
Sam Harris: Let’s stay with fists for the moment. For whatever reason, I believe that this person is about to inflict great bodily injury on me. You are saying that the law allows me to truly preempt his attack? I don’t have to wait to actually be attacked and then play catch-up?
Steven Levine: I’m a little concerned about signing on the dotted line there, because it actually depends on what your first punch does. Let’s say you break the guy’s nose and it turns out that he, while being unnecessarily aggressive, was angry for a legitimate reason. Whatever his story is, you’re going to be looking at a felony charge of assault by means of force likely to produce great bodily injury, with a great bodily injury allegation.
But, if you are confronted by some stranger who is literally running toward you saying “I’m going to kick your ass,” I don’t think anybody would begrudge you throwing the first punch. Again, these are gut calls. The DAs make filing decisions based on how a situation feels in their gut. The DA needs to feel that your initial decision to use force was justified.
Sam Harris: Does anything change about a person’s claim to self-defense if he has a 20-year background in the martial arts?
Steven Levine: If someone is highly trained in a martial art, he will probably have a much better sense of when to fight and know how to defend himself quickly. To the extent that you, as a martial artist, can convince the responding officer that you were in real peril, I don’t think anybody is going to begrudge you having that background and defending yourself. But what exactly did you do? That’s still the question. Did you resort to deadly force immediately? Did you break the guy’s arm in three places? If your assailant just walks away with a bruise on his cheek, no one is going to care that you hit him. While throwing a punch is generally considered a misdemeanor, it is a result-oriented crime, meaning that the same act can be a misdemeanor or, like my client above, a state prison felony case. A battery shouldn’t necessarily be result-oriented, but it is. Generally speaking, everything depends on the result of whatever actions you took to defend yourself.
Rory Miller: Steve, you already pointed out that “great bodily harm” can be defined very differently (two bruises under the eye versus Georgia Code § 12-5-53, where serious bodily injury means “bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty”). How much does intent play into it? I’ve seen policies that define deadly force as “that force in which death or great bodily harm is likely/intended/foreseeable/etc.” How little or profoundly does the wording of local statute change self-defense law?
Steven Levine: GBI in California is particularly broad: For example, a cut lip can be GBI, a broken bone of any kind, a bruise under the eye, and DAs have no qualms about alleging what to common sense seems like a minor injury as GBI. But the basic fact is that if you cause serious injury to your assailant in the course of defending yourself—if you stab or shoot him, for instance—your actions are going to be heavily scrutinized, and the DAs will err on the side of caution. This means that they will at least file the case, and you are going to find yourself hiring a lawyer. Then you will have to worry whether you have a good lawyer or a bad lawyer—but you’ll need a lawyer who you trust to get you through this.
Sam Harris: A few more scenarios: Let’s say my assailant is twice my size or looks especially scary—he looks like a professional MMA fighter or a gang member. Would that perception bolster any claim of self-defense?
Steven Levine: Maybe. But if you’re going to argue that some minority kid looks like a gang member—when nearly every such kid dresses in a manner that could be described as “looking like a gang member”—and you’re white, you’ll be viewed as a racist.
Sam Harris: This raises the question of “profiling” that is obviously on everyone’s mind after the Zimmerman trial. Of course, there are heinous instances of profiling—especially when cops do it and wind up harassing whole communities unnecessarily. But for the purposes of personal self-defense, “profiling” seems like a pejorative term for using whatever statistical information or intuitions are available to you in a very brief span of time to judge how likely a person is to pose a threat. If a woman wants to avoid getting sexually assaulted or raped, she had better profile men, at a minimum—and she should be more concerned about a 25-year-old loitering outside her building than about a 90-year-old with a walker. Similarly, if one sees a bunch of white guys with shaved heads and swastikas tattooed on their necks assembling in the parking lot of a black church, or a synagogue, they are an obvious security concern—especially if you happen to be black or Jewish. Scenarios of this kind are endless—and people encounter them in some form all the time.
Not long ago, I attended the first parent-teacher night at my daughter’s school. In a room filled mostly with strangers, I immediately noticed a man standing at the back. One look at him and I knew he was a problem. I could tell at a glance and to a moral certainty that he was neither a parent nor a teacher. Of course, several other parents noticed him as well. Within about 30 seconds he had three fathers standing near him asking him what he was up to. The anomalies that put you on your guard about another person can be subtle—and many danger signals can’t be reduced to overt behavior. In fact, all this person was doing was standing by himself drinking a cup of coffee. But he didn’t look right on so many levels—from the way he was dressed, to his body language, to the look in his eyes. Did I “profile” him? Of course I did. He fit the profile of a dangerous lunatic who has wandered in from the street.
Steven Levine: We can call it “profiling,” or we can call it “using your common sense.” However, as you point out, the term “profiling” has a dirty connotation in this country because the government has done it in a wide range of contexts—not always ethically. Our courts have said that the police need some reasonable suspicion before they can pull people over and start searching them. But if you think a guy looks like a gang member, it might very well be true. And I hope for your sake, if you attack him, that it is. Again, the claim of self-defense rests on the fact that you were in fear at the time and can point to facts about the other person that made this fear seem justified.
Rory Miller: The burden is also on you to articulate this well. You can have the best judgment in the world, but if you explain it badly you will turn a good decision into a disaster. “I had a bad feeling so I shot him” isn’t going to fly. You have to be able (probably with the help of an attorney) to explain exactly where that bad feeling came from, and do it in such a way that a DA or jury understands and agrees.
Matt Thornton: One point I’d like to make in this context is that the best defense against violence is always your own mind. People tend to overlook this because it sounds like an empty platitude, but it’s true. Some people acquire the maturity and understanding to avoid violence early on, but these days—and this is obviously a good thing—most of us go our whole lives without encountering violence, so we need to be taught what to look for. We also need to be willing to see it, and we need to know how to manage our distance from it.
From the victim’s perspective, an attack may seem to have occurred suddenly, but we know that in most cases it was anything but sudden. If people were more open to their own instincts—what you referred to as “profiling” in the example you gave of the man at your daughter’s school—many crimes could be avoided altogether.
Sam Harris: I completely agree that avoidance is almost the whole story when it comes to self-defense. I also agree that it is very easy to lose sight of this truth, because people don’t really train for avoidance or de-escalation. Rory talks about this a lot in his work. And there is a very unhappy valley between knowing nothing about self-defense and knowing a lot, where the average martial artist is probably more likely to get into a violent altercation than he otherwise would have been. His ego has become bound up in being someone who can handle violence and who doesn’t have to take shit from anyone, and his training has probably given him some unrealistic ideas about his own competence. However, granting that a person can be anywhere from really foolish to impeccable on this front, there is still a subset of cases where violence is simply unavoidable. Hence the importance of this conversation.
Steve, how do things change if a person is attempting to rob me? I haven’t been assaulted—but the other person is implicitly threatening me with the prospect of violence by saying that if I comply with his instructions, I won’t get hurt.
Steven Levine: If you’re being robbed, you can just kill the other person.
Sam Harris: Are you kidding?
Steven Levine: If you’re being robbed, you can take out your gun and shoot the person dead, and no one will prosecute you.
Sam Harris: There’s no requirement to drop your wallet and run, in the hopes of avoiding violence?
Steven Levine: None at all.
Sam Harris: Huh…
Steven Levine: The difference is, it’s clear: You are the victim of a crime. And people know that robberies often result in death.
Sam Harris: But are you assuming that the other person is armed?
Steven Levine: I don’t care if he’s just got his finger under his shirt.
Sam Harris: That is just… bizarre…. Let’s assume I can safely retreat, but I happen to be worried about other people in the area. Can I defend these people as I would myself?
Steven Levine: The defense of others is basically just an extension of your own right to self-defense, meaning that these people had better be in imminent danger of harm.
Sam Harris: So, I’m in a liquor store, and a man walks in and pulls out a gun and tells everyone to get down on the floor. As it happens, I’m standing near the door and can just run away. But I also have a gun—let’s leave aside the fact that we’re in California, and I shouldn’t have a gun on me in the first place. Can I legally shoot this person in the back of the head?
Steven Levine: Yes. Once somebody is engaged in felonious conduct, you can do whatever you do to stop him.
Sam Harris: I just find this astonishing—given the legal ambiguities that loom everywhere else. Threats of violence, or even an actual assault, seem open to endless caviling, but someone saying “Give me your wallet” magically clarifies everything and opens the door to lethal force.
Steven Levine: No one likes a robber, period. A tougher question is, let’s say you’re walking down the street and you come upon a fight: One guy is pummeling another guy to the point where people are shouting, “Stop, stop, you’re going to kill him.” You might decide to take out your gun and shoot him just to save the other person’s life. But I’m not sure it’s going to go well for you in court.
Sam Harris: What is the difference in that case? Is it that I don’t know how the fight started? Perhaps the person being beaten was the initial aggressor, or had already used a weapon.
Steven Levine: Right—you don’t know anything. That’s the problem. It’s better to try and break it up, as opposed to killing somebody. Again, most scenarios of this kind don’t have easy answers. But robbery is clear-cut.
Sam Harris: What if I am confronted by multiple attackers? Is the case for lethal force equally clear-cut?
Steven Levine: Well, it’s a good fact in your favor. But I’d still need to know more about what they were doing. If they’re robbing you, again, it’s clear.
Sam Harris: What if they’re physically attacking me?
Steven Levine: If you’re actually in a fight, and you’re scared, and you think you’re about to suffer great bodily injury, then you have the right to defend yourself with deadly force. But the major criteria are: Did they start the fight? Is the fight actually happening? I mean, we have all seen the movies where the bad guys pick on the person who they think is the easy mark, and to the audience’s delight, he kicks all their asses. Well, in real life, if you are being attacked, you can kick ass, but if you pull out a gun and start shooting, you will have problems explaining the reasonableness of your conduct. If you pull out a knife and stab three guys to death, that also presents problems.
A Sidebar on Weapons
Sam Harris: I’m interested in how the presence of a weapon changes things—legally, but also psychologically and tactically. It seems to me that one can argue both sides of this question. There’s no doubt that carrying a weapon can make a person less competent at avoiding violence. This seems to have been the case with George Zimmerman—he probably wouldn’t have gotten out of his car if he hadn’t had a gun on his belt. And, of course, a weapon can also make it more likely that a person will be involved in a lethal use of force should violence occur. A fistfight in the presence of a gun is a disaster, for obvious reasons. But carrying a weapon can also make a person better at avoiding violence, because the likely consequences of engaging in it are just so bad—physically, ethically, and, as we’ve begun to learn, legally. If I am armed with a knife or a gun, I simply have too much to lose by getting into a physical conflict that was otherwise avoidable. And if a violent encounter is unavoidable, I could argue that I want to be the one who is armed.
Matt Thornton: Well, I’d like to argue the first side of that dichotomy. For the last twenty-plus years I’ve worked daily with a very specific demographic: men who are able to get onto a mat and put themselves in a position where they are sometimes forced to submit physically—that is, “tap out”—to another man. These are men who are very comfortable with physical conflict. Granted, there is a level of safety that is assumed within the gym, but it cannot be denied that I am working with a very select population. Most men (for various emotional reasons) can’t and won’t do what combat athletes do every week.
Once you grant me that many of the men I deal with, especially those that have been at this awhile, will be more comfortable physically and emotionally with confrontation, it will make more of an impact when I say that even with them, the addition of a weapon, especially a firearm, would increase rather than decrease the odds that they would willingly expose themselves to situations in which violence is likely to occur. Again, from an intelligent self-defense perspective, that’s a backwards move on the board.
Rory Miller: My experience is different. I find that armed citizens and off-duty officers tend to avoid confrontation when armed because the stakes increase dramatically. A weapon doesn’t change personality. A conscientious professional becomes more conscientious when the stakes go up; an arrogant prick becomes more arrogant. But different experience comes from different demographics, and most of my career has been spent with force professionals.
Matt Thornton: We need to define the context here. Are we are talking about a SEAL team member, a local law-enforcement official, or the average citizen and their concerns for self-defense? My understanding was we were discussing the average civilian, and the data doesn’t support the notion that the introduction of weapons does not affect behavior. Again, in the case of Zimmerman, how likely was it for him to have followed Martin without a firearm? If we look at the daily gun violence in the United States, much of it is gang-related; the vast majority of it involves males between the ages of 15 and 22. Does anyone really believe that carrying handguns does not affect their behavior? To not acknowledge the role a weapon can play in an individual’s thought process is naïve at best. Even in the case of law enforcement, this phenomenon plays out. In the state of Nevada, when the Taser was first introduced, many of the departments began to have serious problems with its overuse by officers. As is usually the case, further training turned out to be the solution. In this instance it involved conflict resolution and a more appropriate scale of force. Officers were encouraged not to use the Taser unless absolutely necessary. After retraining the problem subsided, but the fact remains that the introduction of that new weapon did affect the mind-set and, as a consequence, the behavior of professional officers.
The mere presence of a weapon can also reduce a person’s self-defense options. Let’s say I’m carrying a knife. I encounter someone who is getting out of hand, and I step in to try and resolve the situation. I grab ahold of him and take control, but now he is also in reach of my weapon. The moment he goes for the blade, it escalates into a potentially lethal encounter. If he does grab it, and I am then forced to use it, I’ve been placed into a situation where I have used a deadly weapon on a person, perhaps while I was on top of them. That is never going to look good to a district attorney or a jury. If it can be shown that I initiated that contact, things get even worse for me. I limited my options, not expanded them, the moment I decided to carry that weapon.
Rory Miller: It sounds like you’re saying that the more options you have, the less options you have—and that math doesn’t work for me. It’s reminiscent of a traditional martial artist worrying that if he develops a ground game, he’ll reflexively go to the ground in any confrontation, and that would be a bad thing, so it’s better to avoid learning Brazilian Jiu-Jitsu altogether.
I’ve had to deal with situations with a firearm, Taser, OC, and an expandable baton on my belt, and often something in my hands. This didn’t limit my options—unless my brain locked in on one to the exclusion of everything else. I could still go hands-on, and I could still talk.
Weapons are the big equalizer. Japan didn’t ban muskets after the Tokugawa because they were dishonorable; they banned them because a peasant army with a few weeks’ practice with a musket could defeat a samurai army with a lifetime of sword training. And I’ve seen thirty seconds of knife instruction trump fifteen years in the martial arts. If you have strong, trained, tough martial athletes going against strong, trained, tough martial athletes, let them bang it out. But when one of those guys goes after your mother or your daughter or your friend in a wheelchair, a weapon (always assuming the will to use it) shifts the balance of power. Fantasy aside, no warrior, no matter how macho, has ever gone into battle unarmed if he had a choice.
Matt Thornton: I am certainly not suggesting one shouldn’t learn to use a weapon. To the contrary, I am saying that every weapon comes with a great responsibility, not just when it is used, but also in the ongoing training needed to remain competent in its use. For a police officer, physically engaging with hostile people isn’t optional, it’s the job. For a civilian, carrying a knife or gun dramatically increases the danger posed should he find himself in a fight—especially if he has to grapple on the ground. This is, in part, due to the fact that it will always increase, rather than decrease, the stakes (as in the example I offered above). Because of this, a weapon should make one less likely, rather than more likely, to engage in any conflict; but it takes a certain level of maturity to realize that (the lack of which was on display in the Zimmerman case). As for warriors going into battle without weapons, that language is part of the bigger problem (bravado). I left the military some time ago, and though I have taught professionally for over twenty years, I certainly don’t view my day-to-day life as a “warrior” going into “battle”—unless you count changing diapers as a battle. SEALs are warriors going into battle. I am a father and a husband who happens to make a living teaching people how to fight. Part of the great value of competitive combat sports (as opposed to fantasy-based martial arts) is that when done properly, they are a way for males to grow past a more adolescent view of both violence and manhood. I realize some self-defense experts claim that every physical conflict is a potentially lethal situation, but what I don’t think many grasp is that the addition of weapons into the situation almost guarantees that is so. Some might ask, but what if the attacker has a knife? The question assumes that a rational response to such a situation might be to pull out my own and engage in a knife fight.
Rory Miller: But there are different types of violence, with different stakes and different patterns. One of the big disservices in the self-defense industry is the number of instructors who only have one solution (whether that is a gun or a knife or a particular style of unarmed combat), and they have to create and teach a myth that their solution handles all problems.
Matt Thornton: I certainly agree with that statement. A reasonable response to the problem of self-defense begins with maturity, focuses on awareness, and develops functional physical skills in all ranges of combat. Those functional skills can only come as a result of what I call “alive” training: The kind of training that involves resisting opponents, and coaches who have real skill in those delivery systems. This is why I always encourage people to focus on combat sports as opposed to the more fantasy-based “street” or traditional martial arts systems.
But the truth is, I don’t even like my MMA fighters exchanging punches when they fight, because it can always mean a loss by knockout. It is always a roll of the dice. Why on earth would I suggest they use a blade against a blade? If possible—meaning you’re not cornered or defending someone else who can’t flee—when faced with a blade you always run and/or put an object between you and the attacker—a car, table, your father-in-law (just kidding).
A firearm alters things even more. Rather than being the magic wand of self-defense, a gun is a massive responsibility that limits rather than expands your options as they relate to violence. That needs to be thoroughly understood by anyone who is considering carrying one.
Rory Miller: Absolutely.
Sam Harris: Steve, one final question: I know things get much clearer when we’re talking about home defense—leaving aside the case you mentioned at the beginning of the woman who shot her ex-boyfriend. If you confront a stranger in your home—a person who has no conceivable right to be there—the case for self-defense is much clearer, correct?
Steven Levine: Yes. If a stranger comes into your home, and you think he’s about to commit a felony against you, even if he is unarmed, you can shoot him.
Sam Harris: And that’s every bit as clear as it is for robbery?
Steven Levine: Yes, because it’s your home. Legally speaking, you don’t even have to warn the other person. I should say, however, that guns generally cause more problems than they’re worth. As an attorney, you don’t see that many good cases, and you see lots of bad ones. Kids get their hands on them, or criminals do. There are people who simply shouldn’t own guns. I’m speaking as a defense attorney who was a prosecutor for 13 years.
Sam Harris: No doubt. A person can talk about the Second Amendment all he wants, but keeping a gun in one’s home is a huge responsibility—which millions of people take far too lightly. And many people seem to believe that if you keep a gun for the purpose of home defense, there’s no way to store it safely and still have it available in an emergency. But the truth is that a gun stored in a combination safe or lockbox can be accessed nearly as quickly as one that is sitting unsecured in a drawer. We’re talking about a difference of less than a second. Anyone who buys a gun has a responsibility to get enough training to become truly competent with it. Otherwise, a person shouldn’t own a gun.
Well, that seems like a good place to stop, Steve. I’d like to thank you again for your time. I am also very grateful to Rory and Matt for their questions and comments. I know many readers will find this exchange illuminating. You’ve given us a lot to think about—and I suspect that most of it will be pretty sobering for anyone who trains in the martial arts or carries a weapon for the purpose of self-defense.
ADDENDUM: A Discussion of Deadly Force with Scott Reitz
Scott Reitz is a retired 30-year veteran of the Los Angeles Police Department. He was both an operator and an instructor in SWAT and the primary firearms/tactics instructor for the LAPD’s elite Metropolitan Division for more than 15 years. He has taught many thousands of police officers throughout the world and has worked with specialized military units such as SEAL Team 6, the French GIGN, the Italian Commandos, the USMC Force Recon, and others. He has also taught thousands of civilians how to defend themselves with firearms. Scott was involved in five shooting incidents during the course of his career. All were judged to be well within policy, and no lawsuits arose as a result of his actions. Scott is a deadly force/tactics expert qualified for both federal and superior court. He and his wife, Brett McQueen, operate the highly regarded International Tactical Training Seminars School in Los Angeles. They are co-authors of the best-selling book The Art of Modern Gunfighting: Volume I.
Scott is, without question, the best firearms instructor I have ever met. I highly recommend his book, as well as the courses that he and Brett teach, with the assistance of other current and former SWAT officers, at ITTS. After reading the exchange above, Scott agreed to share his own perspective.
Sam Harris: What should my readers understand about self-defense in general and the use of deadly force in particular?
Scott Reitz: That they are taken very seriously by both the investigating entities and the courts. The use of deadly force is arguably the most critical life event one may participate in. Hollywood’s version is purely entertainment. Actual deadly-force incidents are anything but entertaining.
Sam Harris: What standard is used to judge whether a use of deadly force was legitimate?
Scott Reitz: The judicial system applies the “reasonable man standard,” which is meant to be objective. In essence, it takes the facts of the case, along with any other empirical data that relate to the incident, and critically examines them—and this analysis includes the perspective of the person who applied deadly force. If a reasonable person would have judged deadly force to be warranted under the same circumstances, then the person’s actions will be deemed justified in court.
Sam Harris: So the system supports reasonable actions, by definition?
Scott Reitz: Yes. But, unfortunately, the system isn’t perfect—and what would seem to be a reasonable course of action isn’t always judged to be so. However, in most circumstances in which I have been involved, the system does absolve people who act reasonably.
Sam Harris: If a person who acts in self-defense is not charged with a crime, is that the end of it?
Scott Reitz: Not necessarily. Civil actions can be generated no matter how obtuse the rationale behind them. But the same standard of objectivity will be applied.
Sam Harris: Are you aware of cases that have gone terribly wrong?
Scott Reitz: Yes. In some cases either the attorney or the experts involved are not up to the task. At times, the defendant may misspeak with respect to his actions, resulting in an improper decision. Sometimes the courts themselves can err when issuing jury instructions, or their procedural rulings may be flawed, giving rise to an appeal.
Sam Harris: What do you advise people to do if they choose to own a firearm?
Scott Reitz: My advice is to train—and only with highly qualified instructors. Simply arming yourself without proper, realistic training is courting disaster. Deadly force is a deep subject. You must also understand the law as it relates to self-defense.
Sam Harris: What should one do if one has been involved in a lethal-force encounter?
Scott Reitz: First, secure the area and your loved ones. The police should be called, and you should follow their instructions. They have to investigate the incident. That is their primary function. I recommend that you tell them that you were in fear for your life and safety and had to defend yourself. Tell them that you will cooperate with them 100%. Then ask if you may call your attorney. In this manner you have diplomatically invoked your Miranda rights and informed them that you had to protect yourself and that you will cooperate with the investigation. You will need good legal representation, and the experts involved in your case should be of the highest caliber.
Sam Harris: To what degree are deadly-force incidents investigated?
Scott Reitz: To an extent that amazes even police officers once an investigation is under way. Each of my shootings involved hundreds of hours of investigation and mountains of paperwork and evidence. The backgrounds and personal knowledge of participants are all discoverable. Internet postings, writings, phone records, etc. can all come into play. Forensics has made galactic leaps since I started as an expert, some 24 years ago. The tools available—such as DNA, blood-spray-pattern analysis, trajectory analysis, and so forth—improve with each passing year. We can now meticulously reconstruct many incidents. To say that a shooting will be “investigated” is an understatement.
Sam Harris: Is a law-abiding citizen at any disadvantage if a case goes to trial?
Scott Reitz: Not necessarily. Most violent offenders—those whom you may have to defend yourself against—did not start out that way. They have matriculated to a level of violence through the years. They will probably have criminal records, gang affiliations, etc. Most law-abiding citizens will be viewed as precisely that—law-abiding. The District or City Attorney’s office will notice these background facts, as will experienced police investigators. I have worked with all these entities, and we all feel for victims of crime. You’re the good guys, and through proper investigation this generally comes to light. It can be frustrating when you feel that you are being treated as the offending party. But you need to be patient and heed my advice about obtaining legal representation immediately and about developing thorough knowledge of the law prior to an event.
Sam Harris: What have you experienced during deadly-force encounters?
Scott Reitz: They can happen very, very fast. Each of mine transpired in about two seconds. Training is key here. I might own a Steinway, but playing it is another matter altogether. Everything you need has to be in place beforehand. Well-trained individuals generally make good decisions and act accordingly. Untrained individuals do not. This truth seems lost on many people. I knew the law, the use-of-force continuum, and policy, which allowed me to make rapid assessments and respond appropriately.
Bad guys pick up on potential victims: They “read” people with an astounding precision. They also recognize confident and capable individuals for who they are—and this is another benefit of training. A composed person who possesses the means to protect himself poses a very real risk to a criminal, and this fact alone can prevent incidents. I experienced this firsthand over the course of thousands of arrests.
Sam Harris: Any final advice?
Scott Reitz: More often than not, the legal system protects the “good guys.” However, you must know both how and when to defend yourself, and also what degree of force is required. And you need legal representation. Deadly force is a full-spectrum event. Your knowledge prior to, actions during, and articulation after an event will determine the outcome. These events can happen anytime and anywhere. Often there is no rhyme or reason: The event simply occurs. Knowledge is power here as it is elsewhere in life. And that is why we teach. Our students have applied their training with great success on numerous occasions. It can make all the difference.
Find this article online at: http://www.samharris.org/blog/item/self-defense-and-the-law/