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.
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