Tuesday, October 12, 2010

Neck Holds - Lethal Weapons

Donald T. Reay, M.D., and John W. Eisele, M.D., published an article entitled 'Death from law enforcement neck holds' in The American Journal of Forensic Medicine and Pathology in September 1982 (3:3). In their conclusion they state:
Because of the structures involved, neck holds must be considered potentially lethal under any circumstance and used only when there is no other alternative. Use of neck holds must be viewed in the same way as firearms; the potential for a fatal outcome is present each time a neck hold is applied and each time a firearm is drawn from its holster. The neck hold differs in that its fatal consequence can be totally unpredictable. ... its use should be restricted to those situations where the officer or another person's life is in immediate danger. ... It must be viewed as a potentially fatal tactic and reserved to situations which merit its risk.(emphasis added)
The neck holds to which Reay and Eisele (R&E) refer are taught as shime-waza, strangulation techniques, or choking techniques within the martial arts. R&E's conclusions have some interesting/serious implications for the use and instruction of these techniques.

R&E suggest neck holds are lethal weapons and should only be used when a person's life is in immediate danger. In this way they should be viewed in the same way as firearms. There is a flip side to this argument. Based on this argument, you should be entitled to consider the application of a neck hold on yourself by another person as the use of lethal force against yourself. In most jurisdictions you're legally entitled to use lethal force to defend yourself against lethal force, so, you'd be entitled to use lethal force when someone applies a neck hold to yourself.

R&E suggest the potential for a fatal outcome is present each time a neck hold is applied. This is what makes neck holds a lethal weapon. Over the past few years 'one-punch deaths' have received a good deal of publicity in Australia and have been the source of legislation concerning these deaths. One-punch deaths refer to deaths following one punch. To be sure, the death is most often associated with the head impacting a hard surface from falling after the punch. Using the same logic as with neck holds, you could argue that punches are lethal weapons as the potential for a fatal outcome is present each time a punch is used. If this is the case then, using the flip side logic, you would be entitled to consider a punch lethal force and apply lethal force in defence.

Particularly with a punch, this is not legally the case. It is medically the case that you run the risk of dying after being struck with one punch as the number of fatalities attest. What do you instruct your students? Do you inform them of the potentially fatal risks associated with someone punching them? Doesn't this then set the scene for the student to increase their use of force when confronted with a punch? A use of force which is possibly not sanctioned by law. On the flip side it does encourage the student to consider their use of force and the potential outcomes associated with it. Does this have the potential of inhibiting their defensive response?

Vincent J. M. DiMaio and Dominick J. DiMaio, in Forensic Pathology wrote when discussing neck holds: 'In weighing how much force is acceptable in a situation, one must realise that any action involving force always has the potential of producing severe injury and death' (emphasis added). I couldn't agree more, however, the flip side poses certain problems. If any action involving force always has the potential of producing severe injury and death, doesn't this influence my response to force applied to me? Doesn't this influence how much force I might consider acceptable in a situation given the risk of severe injury and death? Do I inform my students that any action involving force always has the potential of producing severe injury and death which then may influence their use of force which may not be in agreement with the law? Might this information have the effect of making the student hyper-vigilant (for want of a better term).

In August 2005, the Crime and Misconduct Commission (Queensland) (CMC) published their findings concerning the injuries sustained by Samuel Hogan during his arrest. The police officers used a neck hold during the arrest and the commission considered the contribution, if any, the use of this technique had on the brain damage sustained by Hogan. The coroner's report appended to the CMC report had this to say on the classification of neck holds:
It is intriguing and possibly worrying that neck restraints are completely undifferentiated from use of firearms. Both are lumped together as lethal of force options. Although there is a possibility of a fatal outcome from neck restrains, the number of investigations such as this one is testament to the relative infrequency of fatal outcomes. The same cannot be said of delivering a large calibre hollow point projectile into any body cavity at short range. From the medical probability of an undesirable outcome there is merit in differentiating neck restraints from use of firearms. ... It seems to me there is scope for a further category that separates 'high probability' lethal force from 'slight possibility' lethal force.
How does this reclassification or introduction of a new level of force assist in determining, and instructing, the appropriate level of force to be applied in response to force being applied to oneself. Does the slight possibility of death when a neck hold is applied to you preclude you from using a knife or gun, both of which might be classified as high probability lethal force, to defend yourself?

To the best of my knowledge, there has been no study to determine the relative frequencies of fatal outcomes using various force options. Is the relative infrequency of fatalities from neck holds to which the CMC coroner's report refers due to the fact of the relative infrequency of the use of neck holds? What would the outcome be if a percentage basis was used to determine the risks of fatal outcomes when applying these techniques? There are significantly more deaths associated with one-punches, so, based on the coroner's logic does this mean that punches should be classified as high possibility rather than slight possibility?

This blog is a philosophical musing only and should in no way be considered advice of any sort. It is also a call to arms that more work needs to be done, more information provided, on the actual effects of the techniques taught within the martial arts. The martial arts teach a range of techniques which have varying degrees of risks of fatality. The advice concerning the use of these techniques is often relegated to 'use it only to defend yourself.' If legal considerations are taken into account, the less than ethical advice has been provided that 'it's better be judged by 12 than carried by 6.' We need to do better than what we are doing. We need to know more, definitively, about the effects of the techniques we teach and the risks associated with them. ... And society needs to have a greater appreciation and understanding of the nature of violence and its effects on the human body. Law is shaped and people are judged based on, among other things, people's understanding of the nature of violence. An understanding which I would suggest is often woefully uninformed.


  1. John,
    By way of introduction I am a 3rd Kyu at Hymus Sensei's Indian Ocean Dojo.

    I have been following your Blog with interest for a while now and have read and enjoyed all your posts.

    As a professional myself I appreciate the scholarly approach you take to writing and look forward to reading your book in due course.

    In relation to the above post you raise two legal concepts, namely 'one punch deaths' and 'self defence/appropriate use of force'.

    I thought I would direct your readers to the legislative source of these two concepts in Western Australia, being the Criminal Code 1913(WA) in the hope of further fuelling the philosophical musing.....

    'one punch' or unlawful assault causing death is an offence under Section 281 of the Code which reads:
    (1) If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.

    (2) A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

    'reasonable force' is an element of Self Defence which if of course a 'defence' or legal justification for committing an otherwise illegal act upon another. Self Defence is available as a defence pursuant to Section 248 of the Code, specifically s248(4) reads:
    A person’s harmful act is done in self‑defence if —

    (a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

    (b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

    (c) there are reasonable grounds for those beliefs.

    The 'reasonable response' element in 248(4)(b) is objective in nature and thus the accused would have to lead evidence in order to convince the Jury, or Judge (if the matter is heard without a Jury) that the use of force was reasonable in the circumstances, there are many, many case law examples of what is or is not reasonable. I would be happy to site some for you in future if you so desired. Otherwise, I look forward to your next post.

  2. Thank you Michael. There are so many subjects associated with the martial arts which I am interested in and which hitherto have been under explored, including the legal aspects of what we do. I started to consider the duty of care aspect associated with teaching techniques which have the potential to injure or kill another person. Does an instructor owe a duty of care to a third party when teaching techniques designed to injury or kill third parties? A lawyer friend and martial arts instructor suggested (albeit of the top of his head) that the connection between instructor and third party is too remote to infer a duty ... however, I wouldn't have thought so. This is one of the things I have in the back of my mind to study at some future time. ... And there is precedent in Japanese and Chinese history that an instructor does percieve themselves as owing a duty to third parties when instructing their students.

    Hope you keep reading and keep providing feedback on my blog.

  3. "does an instructor owe a duty of care to a third party when teaching techniques designed to injury or kill third parties?"

    That is an intriguing legal question John, one which I very much doubt has been considered by a Court or Tribunal in Australia.

    My intial thoughts would be to side with your friend and suggest the nexus between Instructor and third Party would be to remote to establish a duty of care. However, with a question like this one there will always be a lawyer who would challenge this view and run the opposing arguement (for the right price of course, haha).

    Just having a quick brainstorm about it, I can see many factors are at play here, such as:

    1) testing the legal elements of 'proximity' and 'foreseeability' in establishing whether a duty of care arises;

    2) the factual circumstances surrounding the injury/fatality to the third party. Was the student implementing the technique in self defence, through some kind of negligent bravado act, or act of violence?;

    3) the outcome of any criminal sanctions in relation to the incident.

    Hrmmmmm one to ponder for sure.........

  4. It is an interesting philosophical consideration. One with potentially 'real world' ramifications.

    I recall attending a kung-fu school for a short period of time and being advised, as a beginner, that the basic techniques of heel palm to the jaw, grab the hair and pull down, and hammer fist to the jaw, was a technique we should do if confronted alone in a car park at night. Not attacked, but simply confronted. Supposedly authoritative advice. What do I know about the nature of violence? I'm a beginner. The instructor is the voice of authority. Attack is the best form of defence. A pre-emptive strike forstalls any contemplated attack. It all sounds reasonable.

    Doesn't the instructor have a case to answer? Either to the person who was assaulted/injured, or the student who acted on the instructor's advice.

    If the law absolves the instructor from responsibility, all well and good. Go gangbusters. But there is this niggling concern that instructors do owe a duty of care to third parties in instructing their students. Maybe not at law, at this stage, but in morality or ethics? How many times have I heard, outside of the Jan de Jong Self Defence School, that 'I'd rather be tried by 12 than carried by 6' or to ensure that nobody saw you 'defend' yourself.

    I won't hide behind the layman's reference to 'the law is an ass'. The law is suppose to, at some level, represent ethics and morals. I think we need to do better than many do in respect to advising students concerning how to 'defend' themselves. We teach them some seriously dangerous techniques, as suggested by this blog in reference to neck holds and 'one-punch deaths'. We need more informed discussion, and informed advice, to educate our students.

    And we need to incorporate that into our teaching. There is a technique taught within Jan de Jong jujutsu called hatchi-mawashi, hair-chin turning. It is designed to at the least take a person to the ground, at the most snap a person's neck. It is taught within the first two kyu grades in Jan de Jong jujutsu. In fact, I have a crushed vertebrae in my neck due to the enthsuastic application of this technique on me by a fellow instructor. A little more enthusiastically and I would be writting about the benefits of jujutsu for those bound in wheel chairs, or the world would have been deprived of my research and insights forever. I must confess I would feel some sort of responsibility if any of my students ever executed that technique with that effect in anything less than a life or death struggle.

    We can do better. My work, and hopefully I can encourage you and likeminded professionals to take up the challenge, can develop a foundation on which to build an informed and authorative base which is of REAL benefit to students in the 'real world.'

  5. What an interesting article and discussion. I think in Australia it is as Michael suggested, that the threat is as perceived. That perception must be "reasonable" when tested in a court of law. So perhaps if you could convince a judge or jury that you believed you were about to be punched and that that punch would be lethal, you might be justified in using a lethal technique.

    The idea of a duty of care between martial arts instructor and students is fantastic. Can you imagine how many half-arsed instructors out there would close their doors if they knew their half-baked advice could land them in court?

  6. Hi John, I just came across your blog while surfing tonight and was reading with interest about the potential duty instructors might have towards their students. I believe instructors do have a duty to teach techniques that are responsible and legal. As a veteran police officer and also a use of force instructor I try to incorporate the legal concepts into my jiu-jitsu curriculum. I don't only teach my students to protect themselves physically but also give them the information required to protect themselves should they ever be involved in a situation that requires them to explain their actions.

    As a use of force instructor I teach police officers that their response is based on their risk assessment of the situation, their risk assessment includes the situational factors present, their personal perceptions, tactical considerations and lastly the subject's behaviour.

    As for neck restraints, which we do employ in my police agency, they are not considered "lethal". Although the use of the technique is in response to someone causing or potentially causing grievous bodily harm or death to you or someone else,they are considered physical control. If applied properly and by a trained prudent individual the potential for injury is low. Although there is always a possibility of injury. A police officer is simply attempting to control and arrest an individual. I agree that if someone is applying the technique to me I would view it as potentially lethal as I do not know what their intention is in applying it to me.

    thanks for your thoughts, I enjoyed reading your article

    Steve Hiscoe
    Can-Ryu Jiu-Jitsu
    British Columbia Canada


Your comments make my work all the more relevant as I use them to direct my research and theorising. Thank you.