When Richard Bregenzer arrived unexpectedly at his estranged wife’s house in Philadelphia one spring evening, he was upset and clearly intoxicated. His wife’s brother, Philip Ben Samuel, who’d moved into the house for the express purpose of protecting his sister from her husband, asked Bregenzer to leave and threatened to call the police. Although Samuel was visibly armed during the encounter, at no time did he point his handgun at anyone. In response to the repeated requests to leave, Bregenzer cursed at Samuel, walked past him into the house and produced a sawed-off shotgun. He racked the weapon and pointed it directly at Samuel’s chest. Samuel fired first, and Bregenzer died.
Was it a clear-cut case of self-defense, absolving Samuel of any criminal culpability? So it might seem. Samuel was a lawful resident at the house and thus had no duty to retreat. He was confronted by an angry, intoxicated assailant who cursed at him, then readied a weapon and aimed it at a vital area. Under those circumstances, it would be hard to argue that Samuel’s fear that he was about to fall victim to an imminent, unlawful and lethal use of force was in any way unreasonable. Why then was Samuel convicted of voluntary manslaughter?
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| Any martial artist who trains for self-defense should study his state’s laws regarding the use of force, both with the empty hands and with weapons. |
Criminal laws may vary, but there are a number of general principles common to the statutes and precedents of most, if not all, states. Among them is the rule that in order to be justified in using lethal force in self-defense, a person must be free from fault, or, in the language of the law, he must not have “unclean hands.” In the case of Philip Ben Samuel, the trial court judge determined the following: “Even though the defendant may have acted to protect his sister, his behavior in arriving with a gun and displaying it was highly provocative and gave rise to the tragedy which unfolded. By his own action, the defendant effectively forfeited the defense of self-defense.”1
The laws governing the use of lethal force are of tremendous importance to martial artists. Many of the empty-hand techniques, not to mention the weapons we use in training, are quite capable of producing lethal force. After all, in most cases, this is the purpose for which they were originally intended. People trained to defend themselves in this fashion are often held to a higher standard, and in an increasingly dangerous world, they must consider that they may be called on to use their special skills. (See “A Duty to Retreat,” Black Belt, February 2004.) It would be foolish indeed to risk finding oneself in a combat situation without having even a rudimentary understanding of the rules of engagement.
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| The weapons of the martial arts are capable of producing deadly force because that’s the reason they were created in the first place. |
The touchstone with respect to the use of any kind of force in justifiable self-defense is that it must be reasonable. Even sketching the outermost contours of this one-word definition would take another article altogether. For present purposes, however, our focus is on the special rules governing the use of lethal force. Broadly speaking, under Pennsylvania law, and in many other jurisdictions as well, to be justified in using lethal force in self-defense, the actor must believe that such force is necessary to avoid being a victim of homicide or another enumerated felony, must retreat to the wall when it’s safe to do so and must not have provoked the confrontation.
Gichin Funakoshi, the father of modern karate, is credited with having said, “Karate ni sente nashi.” In karate, there is no first attack.
Adhering to this wise teaching goes a long way toward making sure that one doesn’t initiate a confrontation. We’ve all witnessed the morality plays built into martial arts movies: The hero is baited by the villain but refuses to rise to the challenge. If we’re fortunate, we’ve had instructors who teach the same principle by both word and deed. In many ways, however, this is the easy part, and it’s not always enough to fulfill the “free from fault” requirement of the law.
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| The first step in avoiding trouble with the law is to follow Gichin Funakoshi’s maxim: In karate, there is no first attack. |
The same films that champion restraint in advance of engagement often sanction a “no quarter asked or given” approach once the opponent has forced a confrontation. Such a response has a certain visceral appeal—something along the lines of “well, you asked for it,” but it’s here that the legal waters can become treacherous. Those whose defensive response is deemed excessive under the circumstances have frequently been unable to avail themselves of a self-defense argument in a court of law. Likewise, even the initial aggressor in a physical confrontation can regain the ability to argue self-defense if he tried to withdraw from the encounter only to have the initial victim continue the engagement. This little-known and even less well-understood aspect of the general law of self-defense is a critical consideration for anyone who anticipates the possibility of ever having to use his defensive skills in earnest.
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Because of the training they receive in the dojo, martial artists are often held to a higher standard when it comes to the use of force in self-defense.
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What of Philip Ben Samuel then? In reviewing his conviction, the Supreme Court of Pennsylvania eventually reversed the trial court’s decision, holding: “This court cannot agree that [Samuel’s] initial display of the gun to [Bregenzer], in a nonthreatening manner, accompanied with a request to vacate the apartment was ‘provocation’ within the meaning of the statute.”2
It should be noted, however, that it took almost five years for the judgment to be reversed, and the eventual decision was not a unanimous one. Irrespective of the outcome, this case should serve as a stark illustration of the dangers, both legal and otherwise, of failing to have an adequate appreciation of the consequences that attend the use of force. As martial arts professionals, we should take care that our empty hands also remain clean.
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While this treatment is not intended to serve as a comprehensive guide to the legalities of the use of force in any particular jurisdiction, it’s hoped that the general principles articulated herein may help steer martial artists to certain critical issues that should be understood and analyzed before the need to use force of any kind arises. This material should not be relied on as a defense to any action, either criminal or civil.
About the author: Peter Hobart is a freelance writer based in West Chester, Pennsylvania. A martial artist for 24 years, he teaches use-of-force issues to civilians and law-enforcement professionals.
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1 Commonwealth v. Samuel, 590 A.2d 1245, 1248 (Pa. 1991).
2 Samuel, at 1248.
How Your Duty to Retreat From a Threat Can Limit Your Self-Defense Rights
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