The Martialist: The Magazine For Those Who Fight Unfairly

The Before and After Rule

By Tony Manifold

WARNING!Mr. Manifold's opinion, while well-reasoned, is his opinion. This article cannot be construed as legal advice, as Tony is not a lawyer. Do your homework and check with your attorney. The Martialist does not advocate a specific course of action and does not in any way encourage you to use force. If your actions are not justifiable you will pay the legal and social penalties for them.

The Before and After Rule is something I came up with to describe my thoughts on protecting yourself legally in a self-defense situation. It should be noted that this isn’t legal advice, but my thoughts on when you should concern yourself with legalities. The Before and After Rule simply states, “Protect yourself legally before the altercation turns violent and after you are safe from immediate harm.”

The rule implies that one should not concern one's self with legal concerns during the actual physical portion of the altercation. The reasons for this are many, but the main one is that the other guy probably isn’t handicapping himself with legal restraints. To combat this you have to sink to his level. No, scratch that, you have to sink deeper. Also, if you do not allow yourself the freedom to attack targets of opportunity because you are worried about legal or moral ramifications, you will hesitate and lose any advantage you may have gained.

So how does one protect oneself legally? Well, as I said before, I am not a lawyer and the intricacies of case law and statute law are way beyond anything I could present here. I suggest you contact a lawyer specializing in this and read the many excellent books out there. For Canadians, check out Ted Truscott’s Canadian Self Defence and the Law. For Americans, Massad Ayoob’s In The Gravest Extreme is very highly regarded. What I will deal with here are some examples and suggestions that will help explain the principle.

BEFORE

The simplest way to spare yourself any legal problems that result from a physical altercation is to avoid the altercation. This means that awareness, avoidance, and verbal de-escalation skills are the keys. By being aware of potential problems and moving to avoid them, you save yourself a ton of problems. Likewise, if you can talk a person down, you’re set. No one ever went to jail for calming someone down.

If you cannot avoid the situation and you feel that your efforts at verbal de-escalation are failing, you need to accept the fact that violence is coming and set yourself up for success. One thing you can do is make it very clear to everyone around that you are not looking for trouble. Say, in a very loud and clear voice, things to the effect of, “Hey, I don’t want any trouble,” “Listen, I don’t want to fight you,” or “Hey! Back off and leave me alone.” This lets all the witnesses know that you are not looking for a fight. In their eyes you look like the victim, which you are.

When you are ready for the situation to get violent (just because it is inevitable does not mean you can’t control exactly when it happens), loudly yell something like “No!” or “Back Off!” If the witnesses did not hear your earlier statements they will probably hear this one. When the police ask them what happened they can say, “I heard him scream 'No!' and then I saw them fighting.” It helps paint a clearer view of your victim status. As soon as you yell "No!" and attack him, legal considerations go down the tubes for awhile. Do what you have to do to survive. Then start thinking about legal consequences again.

AFTER

The first part of protecting yourself legally in the "after" stage is to realize when you no longer need to continue attacking the guy. Not only is this smart legally, it is smart tactically. Why stick around if you don’t have to? You never know when his friend is going to walk around the corner. From the legal point of view, how is it going to look if a police officer arrives on the scene and you are laying the boots to some guy’s teeth? This is harder then it sounds, but you must have iron control of you emotions. Personally, I would err on the side of personal safety rather than legal safety, but this is the point where you begin to think about legal considerations again.

After you have removed yourself from the immediate area to a safe place, you can start thinking legal self-defense. If the police are there, don’t run from them. It only makes you look guilty. Trust me: police officers do not enjoy chasing people. Cranky police officers make your life difficult. Gather up witnesses if possible.

When talking to the officer, remain calm and stay polite. If you are foaming at the mouth, do you think he is going to believe you when you said you only hit your attacker because you were afraid? Articulate some of the things that made you believe the assailant was about to attack you. Stress the fact that you made every effort to avoid violence. If you are lucky, the officer won’t arrest you. Try and stress that you were forced to act. For example, don’t say, “Well, he was trying to intimidate me, so I hit him.” Instead, try something like, “Well, like I said, he had me cornered and I tried to talk him down. After a minute or two of this it became apparent that he was about to attack me, so I was forced to defend myself."

Remember, when a reasonable person would perceive a credible threat, striking preemptively is self-defense. You did not want to fight; he left you no choice. Make that apparent to the officer. If at any point you believe the officer is trying to get you to confess or if you even suspect that he thinks you are to blame, SHUT UP! Stop talking and get a lawyer. They are trained as to what you should and should not say. I am a firm believer that good communication with the officer on the scene is never a bad thing, but when in doubt, seek professional advice. Your lawyer will know what the best strategy is and with his help your odds of success increase dramatically.

Editor's note: Opinions vary on whether remaining completely silent when questioned by police is more legally advantageous in the aftermath of self-defense. No one can make that choice but you.

PERSONAL RESPONSIBILITY

This strategy is inherently based on the notion of personal responsibility. If you adopt this strategy, you are deciding to trade legal safety for physical safety, if only for a short while. This strategy carries with it the risk that a jury will not see things your way. That is a decision you must make. Also, adopting this strategy means you must make sacrifices in other areas of your life.

I came up with this strategy in part because I believe that the only sure way of surviving an extremely dangerous situation (and it really isn’t a sure way, just the closest I have) is to fight so viciously, so dirty, and so far down in the gutter that I destroy the attacker. Needless to say, that style of fighting does not leave a lot of room for legal concerns. One of the reasons I feel justified in making that level of response is that I know that any situation I am in that turns violent is going to be really bad. Self preservation, for me, is not something that starts when some guy decides to shove me. It is a constant exercise in vigilance and self control. I don’t get in fights anymore. I talk down most things that even come close. I don’t open my mouth when some guy driving beside me hurls profanity at me. When someone bumps into me, I apologize. Sure, it was his fault, but is it really worth the potential problems? Saying, “I’m sorry,” costs me nothing but could gain me a lot.

It is the same attitude one must adopt if you arm yourself in any way. Massad Ayoob wrote, in The Truth About Self Protection:

If you make the decision to carry a gun, there are a few things you'll have to learn to live with. One is that you are no longer free to shout angrily or make obscene gestures when, for instance, a motorist cuts you off in traffic. As an Armed Man, the court will hold you to what is called a higher standard of care, that is, a greater responsibility not to do anything that could be interpreted as escalation of a potential conflict. That is one reason why philosopher/science fiction novelist Robert Heinlein once noted wryly, 'An armed society is a polite society.'

While I am not always armed and never carry a gun due to legal restraints in Canada, I feel that if you train for self preservation you must be trained (and willing) to cause bodily harm.

Any human being willing to cause bodily harm must be willing to follow the advice above.