Law of Self Defense: How Martial Arts Can Get You 25 Years
Just because you’re not using a “deadly weapon” doesn’t mean you’re not using deadly force
This “Case of the Week” involves a conviction and sentencing out of Texas this past week, in which Terry Thompson was sentenced to 25 years in prison as a result of his use of a BJJ-style choke hold that caused the death John Hernandez in May 2017, as reported this week by KTRK (ABC) Television News. I also previously covered this case right here at Legal Insurrection: “Law of Self Defense: Murder re-trial for man who confronted public urination.”
Misconception: “Defensive Martial Arts Does Not Constitute Deadly Force”
I’ve observed that there’s a common misconception in much of the martial arts community that so long as they limit their use of defensive force to their martial arts or BJJ (Brazilian Ju-Jitsu) skills—as opposed to using an inherently deadly weapon such as a gun or a knife in self-defense—they’re not vulnerable to a deadly force criminal charge as a result of their use-of-force.
This is simply not the way use-of-force law works.
What Matters: What the Force Can Do or Actually Does
Use-of-force law doesn’t really care much about the specific means used to inflict force upon another person—what it cares about is whether the means used, whatever it might be, is likely or capable or actually does inflict deadly force.
Further, “deadly force” encompasses more than merely force that can inflict death. It also includes force that can inflict “mere” serious bodily injury. Serious bodily injury generally means some maiming or disabling injury, such as a loss of a bodily function or scarring.
Many Common Martial Arts Techniques Can Inflict “Deadly Force”
Anybody with even modest experience in martial arts will be familiar with joint locks. These are methods of applying pressure on a joint in a direction in which the joint is not intended to work. For example, applying pressure to the back of someone’s elbow, such that the arm is forced rigid and the elbow cannot be flexed.
If modest pressure is used for a joint lock the joint is merely immobilized. If somewhat greater pressure is used the recipient may experience pain, which might be useful for purposes of compelling compliance. Neither of these is likely to qualify as deadly force, and as mere non-deadly force they would be appropriate uses-of-force against most any degree of unlawful force used or threatened against the defender.
If the pressure on that elbow is increased sufficiently, however, the integrity of the elbow can be catastrophically compromised, and the elbow effectively destroyed—think of the arm bending “the wrong way.” This level of damage would almost certainly qualify as serious bodily injury, and thus would fall into the deadly force bucket.
Deadly Defensive Force Lawful Only to Stop a Deadly Force Threat
Deadly force, of course, may be used only to prevent a deadly force threat against the defender or some other innocent person (barring exceptions such as in relation to highly-defensible property, which are beyond the scope of this COTW).
This is a much greater threshold of harm required before deadly defensive force is lawful than is required before non-deadly defensive force is lawful. If deadly defensive force is used against a merely non-deadly threat, that use of deadly defensive force violates the self-defense element of proportionality, and cannot be justified as a lawful use-of-force.
Getting Into a Fight Over Public Urination … At Denny’s
In the case of Terry Thompson, he and his wife—at the time a Harris County Sherriff’s Deputy—were eating at a Denny’s when they observed a drunken John Hernandez urinating in plain view in the restaurant’s parking lot.
Thompson chose to engage with Hernandez, a physical confrontation resulted, and Thompson ended up “mounted” on Hernandez back as Hernandez lay on the asphalt in the parking lot, while applying a “choke hold” to Hernandez’ neck. This positioning also obviously placed Thompson’s weight atop Hernandez, compressing Hernandez’ chest and compromising his ability to breath.
BJJ-style Choke Hold May be Lawful … Or May Not
Choke holds are used routinely and lawfully in martial arts such as BJJ or MMA (Mixed Martial Arts) as a means to compel an opponent to “tap out” and concede defeat, or failing that to actually induce unconsciousness.
It seems likely that Thompson’s intent was to compel Hernandez’ compliance as a means to end the physical confrontation and perhaps to hold Hernandez until law enforcement arrived.
Nevertheless, the choke hold and compromise of Hernandez’ ability to breath were perceived by onlookers as threatening Hernandez with serious bodily injury, and Hernandez himself was pleading in distress. Ultimately Hernandez would die as a result of the force Thompson applied to him.
Convicted of Murder, Sentenced to 25 Years
Thompson was tried for murder. His first trial that ended in a hung jury. At his second trial, concluded just over a week ago, Thompson was convicted on the murder charge. A few days later, just in the past week, he was sentenced to 25 years in prison.
Thompson’s wife, since resigned from here Deputy Sheriff position, is also charged with murder, and her trial is scheduled to take place next year. If convicted of murder or even some lesser but still serious felony charge it would not be unlikely that she would also receive a lengthy prison sentence.
It is noteworthy that the Thompson’s have two small children.
Bottom line, just because you’re limiting yourself to “unarmed” martial arts type techniques doesn’t mean that those techniques can’t constitute deadly force, or even kill someone, and therefore require that you have been facing a deadly force threat before they would be legally justified.
Make Sure the Stakes are Worth the Risks
It’s also worth remembering—yet again—that the moment you get engaged in a confrontation, you’ve just incurred two risks you weren’t incurring a moment before: A greater than zero risk of death in the fight, and a greater than zero risk of going to jail for much of the rest of your life. Through diligent training and practice we can push those risks as close to zero as possible—but we can never make then zero. Ever.
Make sure the stakes you’re gearing up to fight for are worth the unavoidable risks you’ll be incurring.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Comments
it’s unclear in the poast: why was his wife charged? was she involved in the stupidity? for failure to restrain her idiot husband? something else?
details, por favor.
Maybe she took the photo?
The prosecutor should be run out of town on a rail and that jury is a disgrace.
I would love to see the transcript of this trial. During the first trial I do not remember anyone testifying that Thompson intentionally killed Hernandez. As I said after the first trial, Thompson was acting in clear self defense when he initially struggled with Hernandez, as Hernandez had launched a criminal attack upon him. Also, the testimony, in the original trial was that Hernandez continued to struggle against Thompson, up until his death. Now, here is the interesting thing about this case. A rear choke hold, if properly applied, does not restrict the breathing to any great extent. It puts pressure upon the carotid arteries which cuts off blood supply to the brain and causes unconsciousness in 10-15 seconds. If the choke hold is applied in such a way as to restrict breathing, then the larynx is usually crushed or extensively damaged. And, there was no testimony that such damage occurred. The asphyxiation was probably due to compression of the chest, from Thompson sitting on Hernandez’s back. As it is unlikely that Thompson would use this method to kill Hernandez, a correctly positioned choke hold would have accomplished this in 30 seconds or less, it is much more likely that Thompson was not applying sufficient pressure to Hernandez’s neck to cause his breathing difficulty and, therefor, it is entire reasonable to assume that Thompson did not know that Hernandez was slowly asphyxiating from Thompson’s weight on his back. He may well have thought that Hernandez was still attempting to fight, not having difficulty breathing. So, at worst, Hernandez’s death would be due to negligence or accident and was in no way a first degree homicide.
What this illustrates is that it is entire possible to secure a conviction for an outlandish charge if you can try the defendant enough times.
The Notice of Appeal was filed on November 7, 2018, and it was accepted and put onto the docket on November 15th, so we’ll see if the 14TH Court of appeals of Texas has anything to say about the Conviction being unreasonable by the Jury.
The transmittal of the Transcript of the Trial proceedings is due January 7, 2019 to the Court of Appeals.
Thompson should have minded his own damned business.
I’d bet he wishes he had minded his own business. Every minute of every day. Would still like to know how his wife was involved though.
Yep, “defense of another” is just a good way to get screwed. I know it sounds harsh but unless it is one of my loved ones my involvement will consist of calling 911 unless I am threatened.
Yeah, who needs restrooms when the whole public outdoors is available. We can get the testimony of San Francisco about just how well that has worked for them.
As a self-defense case, this seems pretty marginal. Perhaps if Hernandez had started urinating on Thompson’s feet, a confrontation would have been inevitable. Otherwise, not so much.
When I’ve witnessed similar behavior, it’s been obvious that (i) the offending party was so drunk he could barely stand, (ii) there wasn’t a whole hell of a lot I could do about somebody in that condition, so (iii) it would be utterly pointless—and probably dangerous to one or both of us—to try. These were clearly jobs for law enforcement, not me. This chain of logic is perhaps why I’m not posting this from prison.
So, what you are suggesting is that it is permissible for one person to physically attack another simply because the second person spoke to the first? It has long been a position of the Progressive/liberal community that a person who launches an unprovoked, violent physical attack is the victim, not the aggressor. It is the victim of the attack who is at fault because he spoke to the attacker, looked at him, was in the wrong place, or simple because. Self defense is no longer allowed, as it undermines the notion that all individuals must be victims until the state declares otherwise.
In this case, Hernandez may have been intoxicated. That was his faulty. Hernandez was urinating in public view outside a family restaurant. That was his fault. Thompson asked or told Hernandez to cease his illegal activity. A wholly reasonable and legal thing to do. Hernandez responded with a wholly unwarranted, violent, physical attack upon Thompson. This was all on Hernandez. Thompson then used a less lethal means of defense to prevent Hernandez from continuing his attack, This is both reasonable and lawful. Hernandez does not respond by submitting and stopping his struggles to break free, and potentially, continuing his attack upon Thompson. Hernandez continues to struggle and attempt to break free. This is on Hernandez.
Hernandez’s death was either accidental or negligent, if Thompson knew or should have known by reason by reason of education or training, that placing all of his weight on Hernandez’s back would cause compression asphyxia which would likely kill Hernandez.
It is a very sad state of affairs when society deems it inappropriate to defend oneself from unwarranted physical attack, simply because one speaks to another person.
So, what you are suggesting is that it is permissible for one person to physically attack another simply because the second person spoke to the first?
Don’t be childish. I wrote nothing of the sort.
Then, exactly WHAT were you advocating?
I have practiced Martial Arts for 30+ years and I still remember my first instructor giving us warnings about this and he would make parents come in to listen to his warnings as well. I use similar rules to his. The high point of his speech, in my opinion, was; “I teach real martial combat arts, not sport martial arts. We train to hurt, disable, and if necessary kill people who attack us. But the main reason we train is so that we never have to hurt, disable, or kill.”
Courtesy, honor, respect, and humility.
We also add “Integrity” in my Dojo.
This is the kind of crap pulled by a white belt with about 20-30 classes whose destiny is the octagon that exists everywhere energy drinks and tap out shirts are sold.
The last fight I was in was not unavoidable. I look back on it now as one of those “shoulda, coulda” kinds of things. St. Paddy’s day, 2007. I was closing up the restaurant and we were sitting down to the employee meal. And the drunk I had already told couldn’t park in my lot came barging in demanding to know what I did with his car.
I had it towed is what I did. And I should have locked the door after we threw out the trash. My bad. Really, my bad. I could have avoided the whole thing if I had been Johnny On the Spot and locked the door. So I take three seconds to evaluate the situation and decide it’s all bad. I’m looking at the waitresses and I’m visualizing just how easily I can be knocked out with a chair and how he’s between them and the only exit.
So I invite him outside, and tell the ladies to lock the door and call the cops.
Now here’s where it gets interesting. Or, perhaps, relevant. I was just coming off a broken leg and couldn’t box with the guy. So I tackled him and took him down to the pavement and choked him out.
But he tapped out, which suggests some sort of martial arts training. I let him go, and he didn’t fight me any more. I dropped the charges when he, in writing, swore never to come into my place again. And he hasn’t.
You can convict anybody of anything given enough bites. We’re turning into Britain where you cannot commit the crime of self-defense.
I think that a lot of people here are making this more complex than it really is. Hernandez is dead. Thomson killed him, thus using lethal force against him (by definition). Here are the alternatives I see:
1. The killing was privileged, for example as self defense. Was Thompson privileged to use lethal force against Hernandez? I saw no evidence that Thompson could reasonably believed himself or some other person (such as his wife) was in imminent danger of death or great bodily injury. Absent that, Thompson would probably not have been privileged to use deadly force against Hernandez in self defense.
2. If the killing was not privileged, it was homicide, which typically breaks down into murder or manslaughter, and murder breaks down into first and second degree. We mostly don’t need to look at the lesser included crime, if the elements of a greater crime have been met.
2A. Was it first degree murder? I would expect not, because we have seen no evidence that Thompson intended to kill Hernandez. No evidence of premeditation, or of any other typical required aggravating element.
2B. Was it second degree murder? One type of 2nd degree murder is depraved heart/depraved mind killing. This typically requires excessively reckless or dangerous behavior resulting in a death. The classic example is shooting into a crowd – which lacks the specific intent required by first degree murder, but instead only requires the general intent of performing the reckless or dangerous action. In this case the action taken was the chokehold. This is where martial arts training comes in. Never having taken a martial arts class, I might be able to get away with claiming that I didn’t know that it was dangerous. Probably not so if Thompson had such a background. Which is why I think that 2nd Degree Murder is plausible here.
2C. Voluntary Manslaughter? Probably. The choke hold appears to have been a voluntary on the part of Thompson. But irrelevant if 2nd Degree Murder is proven.
Criminal law varies a bit, state to state, and I haven’t looked at the TX law. Also, different states have different rules for lesser included crimes. Some require charging defendants with all possible crimes. Some don’t, which means that a jury can convict for manslaughter, when the DA only charged murder.
Just a pet peeve of mine.
“If the killing was not privileged, it was homicide”
Homicide is anytime one human kills another human.
The legal question is whether or not that killing was justified/self defense or Murder/Manslaughter.
It is evident that Thompson’s actions caused the death of Hernandez. So, this is homicide. Homicide is broken down into several different categories depending upon such things as justification for the death and intent. In this case, it would be difficult to get an acquittal for justifiable homicide due to self defense, for a number of reasons. However, given the facts, it is quite conceivable that the death was accidental, with mitigating circumstances, defense from attack. Next in order of likelihood is death through negligence, again with mitigating circumstances. 1st or 2nd degree homicide would be very hard to prove.
Thompson should not have been convicted of any charge greater than manslaughter.
Sounds to me like what happened is the prosecution just did a much better job of convincing the jury. But it just goes to show even unintentional mistakes can be very costly.
I do agree that Manslaughter should have been the outcome, however I do also think I get why a jury would convict on Murder. Thompson did not have to engage Hernandez, I would not have. He should have told the manager and had them call the cops and asked to be moved to a different table, but that is just my opinion and that and 50 cents won’t get you even crappy coffee anymore.
Put simply, it is all about proportionality of responce, and proportionality of sentencing. Self defence or murder. What was a reasonable responce and what is a reasonable verdict. Yes both the defendant and the prosecution ” can be” wrong.
Do cops get 25 years?
Courtesy, honor, respect, and humility.
would add to those, discipline
this is for the beat cops to handle–this guy lacked the judgement to read the situation and overreacted–if he’d had a piece, would’ve probably shot the pisser–just a dumbass