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The Use-of-Force: A Legal Issue by Jim Wagner

One size fit all, right? Wrong. We all know it doesn’t apply to most aspects of life, so why would it apply to the martial arts. With the way most martial arts instructors teach their students how to handle a fight, one would come to the natural conclusion that one size does fit all. It seems like most training sessions are geared towards the worst case scenario – the use-of-force against an opponent.
For those of you who have been following along with me as I’ve laid out what is, and is not, reality-based martial arts (a term I coined that everybody is starting to use), you may have notice that I have been touching a lot lately on legal issues. After all, once you actually use your martial arts skills in a real self-defense situation, you will be held legally accountable for your actions. It doesn’t matter if you’re a seasoned street cop or you’ve just completed your third martial arts lesson, some prosecutor or defense attorney is going to bring up the use-of-force issue. They’re going to have a field day with you if you can’t articulate the different levels of force, and what you can and can not do legally at each level.

Based on Standards:

I am a former soldier, jailer, street cop, SWAT officer, diplomatic bodyguard, and just recently - a counter terrorist with the U.S. government. In every single one of these positions that I have held, I had to follow a Use-of-Force policy. Stay within the policy, and I was protected. Go outside of it (using unreasonable force or violating someone’s Constitutional rights), and I could have found myself in jail (criminal charges) or paying out some big bucks (in a civil law suit). To date I have never stepped over that line, even though I have had to use force against suspects on occasions.
Being a civilian martial artist does not isolate you from the law. Ignorance of the laws of the land is not a legal excuse that will protect you, especially when it comes to excessive force cases. Most civilian martial artists have no idea just how much trouble they can get into legally, even when they, in good faith, were just trying to protect themselves or someone else. There are a few well meaning martial artists sitting in prison right now, because they didn’t know where to draw the line, or even where the line was when it came to the use of force. This is why I created the Use-of-Force Ladder for Martial Artists. It’s also why Black Belt magazine has made it into a full-page mini poster (for schools to hang on their walls). Although “the ladder” is similar in concept to what the military and civilian law enforcement agencies must follow, my ladder is specifically designed for civilian martial artists. In this article we will go over each component of the Use-of-Force Ladder.

The colors of conflict:  Like a real latter that you would lean up against a building, the most stable place to be is not on the ladder at all. Once you get on, there are risks – even from a foot off the ground. Likewise, in daily life you are always safest when you avoid trouble. Yet, trouble can sometimes find us out.
Before we go up, or down, the ladder you will notice that to the left of the ladder are the subject’s actions (your attacker) and a vertical arrow with a gradient of colors. The arrow corresponds with the Jim Wagner Conflict Color-Code System that I developed, inspired by my military, corrections, and law enforcement, and even my martial arts background:
1. Secure (White)
2. Caution (Yellow)
3. Danger (Orange)
4. Conflict (Red)

Secure (White) is: Staying off the ladder all together. At this level you are in a secure place: home, work, social events, etc. Conflict is not anticipated. This does not mean that you are “totally secure.” At Code White you must have emergency plans in the event that the peace is disturbed. For example, if you are at home you should have some sort of home security plan: locks, outdoor lighting, alarm system, escape routes, etc. At work you must have an escape plan should there be a workplace shooting, and so forth.                                                    

Caution (Yellow) is:  This is the level that you must always maintain when you are in public. You should always be aware of your environment: people, vehicles, behind large objects, dark areas, etc. This is not a state of paranoia, but prudent caution. That’s why the arrow extends below the ladder and into the white area. Once  there is any indication of a conflict the yellow color blends rapidly into orange. On the ladder the yellow turns darker when a subject is giving VISUAL  INDICATORS, such a hard stare (mad  dogging you), posturing, wearing gang colors, etc.

Danger (Orange) is: At this level there is a real possibility of danger since the subject is giving VERBAL INDICATORS: direct threats, suspicious words, etc. The intensity of this phase can escalate or dissipate. The potential for conflict can be rapid, steady, or gradual. Although words themselves cannot hurt you physically, words will determine your course of actions. If someone is threatening to hurt you, there must be three things present before you can take physical action: means (the wherewithal to harm you), opportunity (the immediate ability to harm you), and the intent (the thought to harm you, whether implied [such as a robber with a mask and gun] or verbalized [“I’m going to kill you!”])

Conflict (Red) is:  At this level you are in physical conflict. Does this mean you can use whatever martial arts techniques you’d like? No. There are many levels of conflict. Even in warfare there are differences: low intensity conflict (guerilla warfare, terrorism, etc.) and high intensity conflict (all out war or limited actions). Someone who pushes you because they are rude will not be treated like someone who is trying to stab you with a knife.
Notice that the arrows of the graph start at the bottom as a low risk situation then escalates to a high risk situation; from being cautious, to being engaged in physical conflict as indicated by the arrow to the right.
The higher you climb any ladder, the more unstable it can become; especially if you are climbing it by yourself. If you are alone when a subject confronts you, you are the only
one that can help yourself. Yet, if you have other people with you (strength in numbers) they can help support the ladder the higher you go in some situations. Once you go beyond the ladder you will experience death or injury, just as you would if stepped off a real ladder from the top (thus, the top of the arrow is black indicating death or serious injury). In other words, you must always maintain control, no matter what level you are at.
There is good reason why the two arrows in the graph point both upward, and downward. That’s because a conflict situation may start at any level, at any time. You may find yourself in Code Red without going through all of the previous steps. For example: if you’re standing in a bank then suddenly bank robbers barge in blasting away with guns – your there in Red instantly.
In some situations you may climb the ladder progressively, and in other situations what my have started off high, gives opportunities to deescalate.
                                                                                                                             

Climbing the ladder
The Jim Wagner Reality-Based Martial Arts Use-of-Force Ladder has four rungs to make use-of-force levels easy to remember. Cops often complain that their own Use-of-Force Continuum graphs, or “steps” as they are often called, are difficult to remember. You won’t have that problem. Your ladder will be easy to remember in any conflict situation.
Rung 1, starts at the base of stability and ends at Rung 4 which is an unstable, and at an unpredictable height. Remember this rule: The subject’s actions will always dictate our actions. A true martial artist stays off the ladder if he or she can help it. Yet, when you do come face to face with hostile subjects, you may be required to do something. As we all know, there are three reactions humans will take in a conflict situation: 1. Flight (get away) 2. Fight (defend yourself) 3. Submit (give into the subject’s demands or actions).

Level 1                                                                                                             

At level 1 a subject uses VISUAL INDICATORS. In other words, you will feel that there is possible danger based on things that you see: a suspicious subject approaching you, somebody who is looking around nervously, a car slowing next to you. At that moment no laws are being broken by the subject, but you know something is wrong, and you prepare yourself mentally for all possibilities. First you take on a CONFIDENT DEMEANOR (YOUR REACTION found to the right of the ladder). This means that you look confident and not afraid, and that you are aware of your environment and how to use it to your advantage. CONFIDENT DEMEANOR also means that you are prepared for an encounter through your training or open to getting away from the situation.

Level 2                                                                                                                

At level 2 things start to heat up. Now the subject is engaging you directly through VERBAL INDICATORS. This can be anything that warns you that an attack is about to happen; from the subject’s tone of voice to actual threats, or things you  overhear – such as two terrorists in an airplane whispering about taking down the flight attendant when he or she passes. If a subject is trying to start a fight with you, for example, the best thing to do is to try and calm that person down or ignore them. This is known as VERBAL DEFLECTION. By reacting in this matter you will not incite the situation further. However, in some situations you may have to use a firm, confident voice to talk some subjects down. You may have no choice but to try to intimidate them, and try to resolve the conflict that way. Words themselves will not hurt you physically, but words will be a good indicator that it may escalate to a physical confrontation.                                                                                              

Level 3                                                                                                            

At Level 3 we enter into actual physical contact with the subject. It may be a simple push, or a punch in the nose, or it could even be a sexual touch (sexual battery). It’s at this level where most martial arts systems teach the one size fits all. If someone pushes you cannot launch a side kick and blow their knee out, then come crashing down with a drop elbow into their spine. If you do, even though you have a right to defend yourself, you would most likely going to jail. This would be “unreasonable force” for the situation.
At Level 3 you can get injured: a broken nose, cuts, bruises, scrapes, soreness, etc., but they are not life threatening. If the subject throws a few swings at you because you’re throwing him out of your party, you can’t rip his head off – the law won’t allow you to do that, even if you did sustain minor injuries. Because there are not hard and fast rules on what you can and cannot do in a self-defense situation, the law will judge you by a simple rule: What would a reasonable person do in a similar situation. The cop who questions you knows what is reasonable, and the jury who listens to you will determine what is reasonable. By the way, cops are not judged by what a “reasonable person” would do, but rather, what would a “reasonable peace officer” do, because they are bound by a lot of restrictions and unique situations.

Level 4                                                                                                                

At level 4 death or serious bodily injury is likely to result, whether on the subject, you, or both. If a subject does attack you where death or serious bodily injury is likely to result (FELONY ASSAULT), then you have the right as a citizen to use DEADLY FORCE. This does not only apply to felony assaults against you, but others. If someone is trying to harm your family member in your presence, you may (but are not required to) use deadly force. However, if it goes to court, you will still be judged based on reasonable force.
Examples of felony assault include attempted murder, mayhem (putting out an eye, severing a limb, ripping off an ear, etc.), rape, caustic chemical attack, robbery, etc. In other words, and remember these words, you must have fear for your life, or the life of another.                                                                           

If you notice the gray triangles they start off with broad bases, then taper off to mere points. This represents the options you have in a conflict situation. When we start off with Level 1, there are many options: walk away, call the police, yell for help, etc. However, by the time you are engaged in a life-and-death conflict there are few options – survival is the rule. If someone is trying to stab you, you have limited options. If you don’t block the knife, you could be dead. This is why you always want to try to resolve conflict at the lowest level, and as I’ve mentioned before, don’t get on the ladder in the first place if you can help it.

Memorize it, use it on a real ladder you do not always have to go up the ladder rung by rung. If you choose to skip a rung, you can. However, by doing so, it is always more unstable. In a real conflict you may have to skip a level. For example: you have a VERBAL INDICATOR that a man has a belt bomb strapped to himself (a very real possibility in this day and age). Although one does not truly know the intention of the person (it could be a prank for all anyone knows), the “bomb” implies intent. Thus, you can go from VERBAL DEFLECTION to DEADLY FORCE, and skip REASONABLE FORCE altogether.
By memorizing the Use-of-Force Ladder that I created, you, and those you train with, will be able to stay within the law if you ever have to use your martial arts skills. If you’re a reality-based martial arts instructor you can start teaching your students the different levels of force, and how they can apply their techniques to each level. By doing this, you not only teach them that one size does not fit all, but how to survive the justice system when they use what you taught them.