Before diving into this topic I want to clear up a long standing myth, that I still run into when teaching today. There a historical myth that a person that has earned a black belt, is required to register their hands and feet with the authorities, or law enforcement. THIS 100% FALSE! I have had a few people over the years, even tell me that they had earned a black belt, and they have registered their hands and feet with the police. (The people telling me this did not know who I was, and what I do for work.) So, if someone makes this claim, they probably do not really have a black belt, or they are ignorantly bragging.
Now, onto the topic at hand, pun intended. I frequently get asked in trainings, if trained skills, or greater physical skills, through training, and knowledge, can this have a negative impact, should one find themselves in legal trouble, after defending themselves. The short answer is yes, it is possible, however, it is not that simple, and it certainly does not imply, that one should not get training, and develop protection skills; this is actually a complicated question. One of the master keys of understanding the laws related to self-defense, is understanding that through the legal process, and in a courtroom many, many, things are possible, and one can never be certain, what a jury or judge will decide; thus the conversation should be based on what is probable, based on what we know with current case law, and local jurisdiction climates.
When reading this you, have to understand that this conversation is in the context of you defending yourself, and then being criminally charged, and you are now a defendant, and your assailant, has become the victim, via the legal systems mechanisms …. Yes, it does happen. Last year alone I was retained on over 18 cases, where people were arrested, and charged, for defending themselves; charges ranged from unlawful use of a weapon, up to murder. One must realize that the legal process in reality, is not what you see in movies, cable shows, or in movies; much of the outcome relies on what is allowed, or disallowed, into evidence, jury instructions that are chosen and used, and the caliber of the judge, attorneys, jurors selected, and the applicable case law to your case.
This will be part one, of part two article, on this topic. Part one, will lay the foundation for the part two discussion. Note: in general, a person who possesses greater physical training, in proper theory, should be the last one, to ever use their skills in an aggressive, unprovoked manner; such instances are usually rare, because most trained people are taught to be disciplined through training. Additionally, one should note, that whether or not, you are the one who actually started the physical incident, you may still be accused of criminal, or even civil, charges or liability.
There are five specific, main considerations found in case law, that are typically used to determine, if the hands and feet, were used as aggravated, or assault weapons, but before using those, it should be investigated that if the defendant (you, who just protected yourself, but are being charged, under a criminal code), first, has any training in self-defense, fighting, defensive tactics, martial-arts etc., and two, if so, what level of training do they have? Now, here are the five considerations:
- The manner and style of the attack (your defensive actions)
- Were there repeated blows? If so, to what area(s)? Different? Same?
- Were any of the blows done to any vitals areas of the victim? (your assailant)
- What type of injuries were received by the victim? (your assailant)
- What level of force was used by the defendant? (you)
We will see how these considerations playout in relationship to actual cases moving forward. Keep in mind that in general, outside of the above five specific considerations, self-defense should be evaluated on the TOTALITY of the circumstances, or situation. This means considerations, like, but not limited to: Any prior knowledge, contact, or relationship between the parties, Options or lack of options, Any prior experience of violence or trauma, Gender, size, and strength, Ages, Any physical or medical concerns for either party, Location, Any weapons or lack thereof, Any disparities or lack thereof, Who was the aggressor, etc.
Although often used interchangeably, in many jurisdictions, assault and battery are distinct crimes. In such jurisdictions, assault (also called attempted battery) is a threat or physical act that creates a reasonable apprehension of imminent harmful or offensive contact, whereas battery is a physical act that results in that harmful or offensive contact. Assault is a lesser included offense of battery, meaning that assault merges into battery and that a defendant may be punished for one but not both crimes. Illustrative case law: See, e.g. Claggett v. State, 670 A.2d 1002 (Md. Ct. Spec. App. 1996).
For the purposes of this document we will stick with the general terms “assault and battery” these are two fold; the civil offense and criminal offense; we are going to deal with the criminal offense. While usually mentioned in the same breath, you should understand that assault and battery are separate offenses, you should also understand that these terms may be defined slightly different from State to State. However for the purposes here, we simply put that, assault is acting in a way as to put another an imminent apprehension of physical harm and battery is causing, through, hitting, kicking, gouging, or otherwise, harmful physical contact to another person; battery requires physical contact between the parties. Also, for discussion we are going to be talking about just empty hand defensive actions; where just the body is used.
Criminal assault and battery is where we ask the question if whether or not, someone’s hands and feet, can be considered deadly, or dangerous weapons. As mentioned earlier there is no simple answer, nor is there one answer. I have found that courts are split on the subject. Defendants have been charged with aggravated assault, which is an offense with greater consequences than simple assault, for injuries caused by just their hands or feet, even without any special training. When, what is usually the norm, aggravated assault usually refers to assaults with inanimate objects such as pipes, knives, screwdrivers, hammers, rocks, tire irons, brass knuckles, etc. So let’s start out by just looking at hands and feet without training.
Courts across the country have disagreed on whether an assault with bare hands and feet can be considered aggravated assault. Some courts rejected labeling bare hands is dangerous or deadly weapons. The New York Court of Appeals, for example reversed a first-degree manslaughter conviction, stating “when the legislature talks of a dangerous weapon it means something quite different from the bare fist of an ordinary man”. (It is key to note here the wording “an ordinary man”).
Looking to a different court in a similar case, State v. Calvin, the Louisiana Supreme Court stated that bare hands are capable of producing death or great bodily harm, but still held that there must be proof of the use of some inanimate object before a defendant can be held guilty of “assault with a dangerous weapon”. Many other courts have ruled that just the use of bare hands or feet, does not constitute aggravated assault. Other courts, however, have been less definite, and have held that hands and feet, may under certain circumstances, be considered “dangerous weapons”; with consideration, most likely it would be the manner in which the hands and feet are used, in an altercation in question, which would be the determining factor.
Without considering the added factor in the type of footwear, or something in or on the hands, there are several cases that have held that an assault with just hands and feet, are not assault with a deadly weapon. The Arkansas Supreme Court in 1924, in Wilson v. State, decided that a defendant who had beaten and kicked in the face and side, should not be convicted of assault with a deadly weapon, and they modified the charge to simple assault and battery, because the defendant used only hands and feet therefore “no deadly weapon was used”.
The Arkansas Supreme Court argued that the capacity to kill is not the same thing as assault with a deadly weapon, even though the defendant has unusual ability or training in using his hands and feet. Arkansas Supreme court asserted that “a powerful man such as Dempsey or Firpo both, might kill one by striking with the fist, or kicking with the foot, but a great bodily injury by these means, would not be in assault with a deadly weapon, instrument, or other thing, in the sense of the aggravated assault statute.”
In example: If one hits someone in the face or head, and causes a bleeding injury, then they might pay the penalty for simple battery, but the person that causes the same injury, only with a solid inanimate object this time; they might be charged with aggravated battery. Note: Some jurisdictions use assault in place of battery.
Legal arguments have been made that rather than, restricting the definition of “deadly/dangerous” weapon to just animate objects, that the court should be looking at HOW, the object was used, and take into account the potential danger of the method used. What this argument is trying to establishing is that the “deadly/dangerous weapon test” should include not just guns, or knives, but also, teeth, fist, feet, elbows, knees, one’s head, basically, any other animate or inanimate object. This is where we start to see the above five considerations, previously mentioned, come in as factors in decision making process.
Some courts have considered the surrounding circumstances, and manner, in which the object/instrument, was used in the applicable case. Individuals have been prosecuted, where the defendant’s hands and\or feet were accused of committing the criminal act. These are instances where hands and feet were used to inflict death, or injury, and the courts held the defendants, criminally liable, under aggravated assault, or homicide statutes.
One such case is Commonwealth v. Buzrd, decided by the Pennsylvania Supreme Court in 1950. This was a case where defendant was convicted of second-degree murder, after an altercation where the defendant, and the victim had argued over a $31 lumber bill. This argument then led to a fight, and the defendant killed the victim, by straddling him, and beating him with several blows to the head, with his fists. The defendant was taller than the victim by a full 6 inches, and outweighed him, by more than 40 pounds.
The court found “Fists, though not ordinarily a deadly weapon, may become deadly by repeated and continue blows applied to vital and delicate parts of the body of the defenseless, unresisting victim”. So what we see in his Pennsylvania Supreme Court case is that they isolated two elements which could turn fists into deadly weapons: “repeated and continued blows” and that “these blows were directed to provided toll and delicate parts of the body”. One should also note that a third, lesser element is found in their statement “defenseless, unresisting victim”.
In another court case, Quarles v. State, the Georgia appeals court held that the jury could consider fist to be deadly weapons depending on the “manner and means of their use, the wounds inflicted etc.” This court refused to hold as a matter of law that fist are not deadly weapons.
In People v. Score, the California appeals court expanded this concept of “special use” while upholding a conviction of assault by means or force likely to produce great bodily harm. This court noted that a proper list of elements for jury consideration (very well possibly in the jury instructions) would include quote “the force of the impact, the manner in which the fist was used in the circumstances under which the force was applied.”
Apart from the footwear question and possible fact (the inanimate object/instrument, consideration), courts generally view the use of feet, similarly to the way they view the use of the hands, when prosecuting a criminal assault.
Case in point, State v. Johnson, decided by the Missouri Supreme Court in 1927, that the drunk defendant was found hitting, and “kind of stomping” on his wife as she laid in muddy water. The court stated that while the state proved the defendant’s guilt of common assault, it failed to provide proof, of the defendant’s guilt of assault with felonious intention. The court also observed “that a felonious assault could be committed by strongman viciously kicking another in the head or in some vital part of the body with feet encased in heavy shoes or boots.”
Another scenario to consider is where the defendant has used both hands and feet in “assaulting the victim”. Again, generally speaking, it is held that hands & feet, “may become deadly weapons when used in such a manner and such circumstances as are reasonably calculated to produce death.”
We will look at four cases that deal with the matter of “manner and circumstance”. First, we will look at Lyon v. Commonwealth. This is a case that the Kentucky Court of Appeals examined where a defendant had beaten, and kicked, his elderly father-in-law who weighed 135 pounds, for insulting him, and shaking a fist, in the defendants face. After examining indictments in cases similar to this case, and of this nature, the court instructed that: “If the instrument alleged to be used is less formidable and deadly than the ordinary things and which homicide is generally produced then the indictment should of aver (declare positively, added for clarity) that the said instrumentality used by the defendant, was a deadly weapon, when employed by him, and in the way and manner, set forth in the indictment.”
Fast-forward some approximately 26 years later the Kentucky Court of appeals analyzed Vogg v. Commonwealth and cited the ruling to show the judicial inconsistency in this area of law. In the Vogg case the court affirmed the defendant’s conviction for assault with a deadly weapon with intent to kill. This particular case involved a defendant who was incarcerated, and who grabbed a jailer, like he was taught in the army, where he had served as a paratrooper. The defendant then threw the jailer to the ground, then beat, and kicked him. The jailer was so badly injured, that his doctor, for two hours or more, believe that the man had died. Based on the the facts, the Kentucky Court of Appeals, ignored the Kentucky case precedent, which held that “hands and feet were to be regarded as within the term deadly weapon only one such used in a manner and in such circumstances as are reasonably calculated to produce death.”
So now we are getting into hands and feet that have special training… Clearly, from the cases we have seen here, even hands and feet, without any special training, but under certain conditions, and facts of the case, run a risk of being viewed legally, as beyond just body parts.
What does this mean? One should not defend themselves? Absolutely not! It does mean that even an untrained person needs get training on the law of self-defense, know the right lawyer to call ahead of time, be trained on how to properly respond to law enforcement questioning and investigative measures, and get at least some basic training on physical self-defense, as well as being properly trained on the effects of their training, on another person (what the results can be). Remember real self-defense does not happen in a vacuum, and more often than not, it is between people who know each other in some fashion; this makes real self-defense, often times, “messy matters” to deal with; so if you really want confidence in defending yourself, get the right tools in your tool bag, so you are greatly decreasing your chance of needing the tools, of an expert, and a lawyer.
Stay safe and watch for part two of this article, where we will discuss specifically cases of people having been trained.
No information in this article is intended to be nor should be taken as legal advice. This article is a professional opinion from a Use of Force training perspective and court certified Use of Force expert background. One should always consult a licensed attorney for legal advice. All rights reserved by 3Tier Services L.L.C. and Stephen Yerger.