sometimes for the legal analysis you got
to call in the pros and ask them for
some help
welcome to today's bonus active
self-protection lesson i'm still your
host
john korea today i have a bonus lesson
for you i have invited
a board-certified attorney one of the
best in america to give us some more
legal analysis of one of our videos here
on the channel now we normally post this
kind of stuff on the active cell
protection extra channel
but it's so important i wanted to bring
it here to you as well
hope you enjoy the analysis and it helps
you in your understanding of legal use
of force so go read the news story
linked in the description you'll see at
the bottom of the screen there this
martial arts instructor is showing this
guy
her instagram page with the discussion
of all of her classes
and he snags her phone stupid idea
because she's a martial arts instructor
so she grabs him up in a headlock
gets her phone back from the guy he gets
out of the headlock
and one of her students comes to help as
well now you see the guy fishing in his
pocket he says he has a gun according to
the news story
and she said that she knew it was a
bluff she said he didn't she didn't
think that he did have a gun
and she told him he'd be a fool to pull
it because of all the security camera
neighbors and all that
so dude goes to get his bike they're
gonna go and and chase him a little bit
here and be like hey man you know
get the heck out of here or whatever
then another student comes out and now a
neighbor with a baseball bat is going to
show up and drive that guy off
as far as i understand police are still
looking for this guy we actually have a
second angle here
from another uh you know from another
surveillance camera
she gets a hold of this dude and now
she's got him with the right arm
switches over to the left and gets the
phone out and drops it
then he's able to break contact there
and now it's two on one
and i think it's pretty interesting that
he's learned pretty quick here that now
i don't want to engage here i don't want
to get in a fight
because that chick has showed that she's
got what it takes so he is again
going to go around here while the
outrage builds
and grab his bike and now the neighbors
are going to come out and the other
students as well and
he is going to run off and nobody else
was harmed she got her phone back
and that is where this one ends today's
video is brought to us by
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so mark you watched this one and he said
okay wait a minute now obviously again
go watch the video i think that
it speaks in some ways for itself but
there's always limits here
and man any time that i talk about the
use of force to defend property and
particularly deadly force to defend
property i get people from texas that
say buttma texas
we're not going to talk about texas law
here you got to understand texas penal
code 942 and 943
a little beyond the scope today but talk
to me about
using force in defense of property
well i think the first lesson from this
video is uh
if you plan to steal a cell phone from
somebody
don't choose a martial arts instructor i
mean talk about victim selection fell
they're standing right outside of
martial arts school right
bad choice choice of victims but anyways
look she
she was great right i think um you know
you when you narrated the video and you
talked about she got the phone back and
then there's still the support
bad idea get the phone back move on end
of incident
because the guy could have had a gun
right that he had a gun it turned out he
didn't have a gun
she thought he didn't have a gun but she
could have been wrong right and she
could have
sort of provoked this guy to pulling out
a gun and she i mean do you really want
to bet your life on that
take the phone i mean there's a i think
there's a good argument to say maybe let
the guy take the phone and move on
call call your phone provider have them
block the thing get a new phone on
insurance and
move on with your life but she she opted
to
avail herself of her legal right to use
reasonable ordinary physical force to
recover property
what's interesting about this in my
opinion is
sometimes the law is not very clear
between whether you are simply using
force to protect
property or whether you are using force
to protect yourself
because you know imagine i i often use
the example of
uh somebody stealing a tv from your
house okay well if somebody's stealing a
tv from your house no you don't get to
shoot them
uh because you want to protect your tv
this is using
deadly physical force to protect
property and maybe other than
texas although i gotta say i'm a tad bit
skeptical of
how much deadly force you could use to
protect property there but
but in fairness i haven't reviewed that
statute but
generally speaking no you don't get to
use deadly physical force
but if you did there might be an
argument that well
while this guy was stealing the tv he
turned and started approaching me and
i thought he was gonna hit me over the
head with that television set
well now uh you're at risk of a serious
physical injury or maybe death depending
on how big a screen
to be a big tv could be a big tv so
there are arguments this is one of the
reasons that i tell people
it's best to just not say anything right
because after you do
exercise uh some force to maybe start
collect your property the police are
going to come and ask you what happened
and if you open
your mouth and say well i shot the guy
because he was stealing my tv
that's a different statement then i shot
the guy because he was going to hit me
over the head with the tv that he just
stole
those are two different things and once
you make that statement
you've locked yourself into a legal
theory so i think
especially at the time you're making the
statement it's never a good time
to make a statement right after this
happens so i guess what i'm getting at
here
it's just like the prohibition on using
physical force against somebody who's
just using words right if i say
you know john you're a dirty rotten sob
blah blah blah
well you don't get to punch me in the
face but if i say john you're a dirty
rotten sob
blah blah blah and i'm walking towards
you as i'm saying it and i've got my
fist yes well now we got a little bit
more and so those
those important factual distinctions may
not be something that
the average person is thinking to say to
the police especially at the time that
the police are there and
the trauma of the event and all this
other stuff not to mention
the police officer you may put that in
and the police officer may
omit that either intentionally bad cop
or negligently bad cop but with good
intentions just negligent cops so
why risk any of that i use examples like
this to tell people
you got a fifth amendment right to
remain silent it was very hard fought
it's not going to be used against you if
you do remain silent right if you get to
trial
uh the prosecutor doesn't get to stand
in front of the jury and say look ladies
and gentlemen
if the defendant really was a not guilty
why didn't he just tell the cop at the
scene what happened
none of that's coming in in fact you're
going to get the opposite of that at
your trial very likely
the judge is going to instruct the jury
in some form that look
that the defendant didn't testify at
this trial is not
something you can consider you can't use
it against the defendant they got a
right to remain silent so
always good to keep your mouth shut but
again when it comes to
and we've talked about this in other
videos for me i'm not going to get into
a fight over property
your property's probably insured right
if you've got a homeowner if you own a
home and you probably have a homeowner's
policy
because you have a mortgage on your home
but your property is probably insured
your car is insured i'm not going to get
into a big fight i'm not risking
what's most precious to me which is my
life
and my health and my health and the
lives and health of people around me who
might be there at the scene
i'm not going to get into that big fight
and i get that some people are like you
know john that represents my time you
know that's my property i paid time for
that
blah blah i i might argue that maybe uh
the concept of
trading time for money might be a flawed
concept that you might want to think
about
that maybe trading your expertise
instead rather than your time is a
better way to look at things and you can
always make more money
right i can't make more me uh i well
maybe i could if i eat too much but
that's a separate topic
but the point there is is that you know
if i said hey you know what um
you're either gonna give me 300 bucks
today or you and i are getting in a fist
fight
um and i've already got the 300 bucks if
you want this 300 bucks you and i are
going to get in a fist fight i might go
i'm not really excited about getting a
fistfight for 300 bucks today
now it's wrong and absolutely you know
i'm gonna i'm gonna
go and outsource that violence officer
yep
that's my 300 bucks i want my 300 bucks
back and that's okay
maybe you'd decide in that moment though
you know is it okay with somebody
somebody grabs your cell phone to grab
it back and go hey man that's mine get
off my stuff
that seems pretty low in terms of a
transaction cost but to then approach
this guy who's saying he's got a gun i'm
not going there
i'm going to be done now i also say um i
think that as the value of the property
increases the value of the time that
you've put to accumulate that
property increases so if somebody is
going to steal the equivalent of your
life savings or something
i i actually i think maybe the law could
be modified here it might be reasonable
to say
and again this is not the law in most
places maybe it is in texas i don't know
but
certainly not in arizona the law in most
places is
you don't get no matter what the
property is worth you don't get to use
deadly physical force
i i guess i could go along with a
community that says look if the property
is over this amount
maybe a hundred thousand dollars or
something substantial
hey maybe the answer here is people
shouldn't be stealing other people's
property there are consequences for that
so
it goes back to the days of the horse
thief you know in these old west kind of
laws which texas is unique but
i would make the counter argument that
the law about a horse thief was more
about somebody being stuck out in the
wilderness without a horse than it was
the horse itself
so uh that that's that's kind of a a
standing thing
now here's the other part of that though
mark is that he made the intimation he
said in the middle of that hey i have a
gun
yeah okay so then the question then
becomes wait a minute so before this we
had
um a a theft of property and then she
resisted that with ordinary physical
force which is entirely appropriate
we're okay
now he makes the verbal assessment
sticks his hand in his pocket and says i
have a gun
is it reasonable at that point from the
law's eyes if i said
i believe you and that put me in fear of
great bodily harm and so i shot that guy
i think the issue you're going to have
there and it may be justified because
you're starting to get into gray areas
yeah
uh i think the issue that i would
immediately come have come to mind would
be imminency
okay normally we like to sort of see the
gun or something just
just that the hand is in the pocket with
the threat uh
you know maybe a prosecutor would let
that slide if you shoot the person it
turns out there's no gun the argument
from the defense attorney is
you've already got a guy who's an
aggressor he's already stole property
now he's making a threat to have a gun
he's got his hand in his pocket
he could he could literally shoot with
his hand in his pocket so
there could be an argument that it's
imminent although i worry a little bit
because
if the gun wasn't coming out if the gun
comes out and there's a threat
all bets are off all bets are off you're
in good shape at that point but
we sort of hold officers to this
standard right we've got cases where
officers have shot people and generally
speaking
if they shoot them without seeing the
gun there's going to we're going to feel
as
civil rights attorneys more scrutiny
here this is a problem right if the
officer shot the citizen and you didn't
see a gun
i'm going to have more problems with
that if the gun's coming out in the
officer shoots or the knives coming out
in the officer shoots
that's probably not a case i'm going to
take but this is probably a great reason
to practice not just a draw of your
firearm and a shot
but a draw and a command you know if he
says hey i have a gun
show me your hands let me see your hands
right now
and then again if that hand comes out
with a gun in it now then then much more
reasonable at that moment
even though the laws are written uh in
many places where
use of deadly force is treated the same
way as a threat of deadly physical force
in other words you could be prosecuted
for threatening deadly physical force
maybe to protect property
although there are some exceptions to
that in our statutes here but out there
again arizona is very
uh pro self-defense as well and we
should talk about the the burden of
proof here
um yeah i think look let me sum it up by
saying this
reasonable minds can disagree on what
level of force is appropriate for any
given
specific transaction i think that the
smart
person says if i can avoid getting into
that split
second decision where consequences are
really big on either side
really big on either side if i can avoid
that it's what you
harp on over and over and over again
and yeah we like this video we like how
it turned out
but it turned out good and it didn't
have to turn out good she should have
taken the phone in my opinion and
sort of moved off and then the guy comes
out with the baseball bat yeah guy comes
out later with the bat and i'm like
i gotta put the bat away bro i gotta say
i i'm not bothered by the bat in his
hand
no you like it i'm not bothered by the
badness and he's holding it because he's
not using it just because he's got the
bat in his hand i'm okay
and also i remember that in that video
you talked a little bit about the bat
and its deadly physical force and it
certainly could be
however i wouldn't be i would with a
very straight face
argue that that bat could be used as
ordinary physical force as well right it
can be used
to poke someone to hit them in the leg
or something like
that i think why we talk to the attorney
and not just the self-defense yeah we
don't like to make it
so simple like just because you have
this in your hand automatically
that's deadly physical force i think the
question is
not just the instrument you're using but
how was the
instrument used yeah it was the manner
in which it was used because
i could see that particular first of all
it's it's a baseball bat kids use them
all the time we don't think of them as
weapons
it's the same instrument can be used as
a weapon it could be used as a
deadly physical force weapon hitting
someone over the head i could also see
how it could be used as an ordinary
physical force weapon
but daddy had it to me just says he's
prepared
and i i kind of like this guy coming out
with that although
i'll also note um he took a chance he
made a moral decision he did i'm gonna
go help her
and if this guy had had a gun bringing a
baseball bat
ain't gonna help you we know that too so
anytime you're going to get involved as
you say
this is why we preach caution right
because you don't know how it's going to
go
and if the guy actually had a gun and
shot and had killed everybody there this
would have been a different kind of
video
and uh we would be talking about the the
real risks of getting
pushing too far in these situations all
right what matt
what mark said about the baseball bat
makes sense to me so what i said about
him not wanting to bring that baseball
bat i repent of that was
probably cool for him to do that uh i
think this is it's great to get another
perspective
man so be cautious be smart act on that
must principle not on that can principle
and i think you'll be safe mark thanks
for the insight man thanks for having me
brother
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you