Our Right to Self Defense Questioned

While I don’t have all the facts that the jury was presented, and I readily agree that the death of a 24-year-old young man is a tragedy, I also am disturbed by comments made during closing arguments by the prosecuting attorney, who replayed a video that showed Thompson choking/controlling Hernandez.

The events leading to that encounter include but are not limited to these:

• Thompson and his wife were at a Denny’s restaurant
• Hernandez was also there – outside, intoxicated at some level, and urinating in the bushes / grass / side of the building.
• Thompson’s wife (a former Harris County Sheriff’s deputy) was also present and active with Thompson in approaching Hernandez.
• Thompson and his wife approached Hernandez and in some fashion told him that urinating in public was not advisable.
• During the exchange of words, Hernandez struck Thompson in the face.
• A fight ensued, and Thompson was able to control the violent Hernandez with a chokehold.

These facts, as I see it, are not as critical as the facts presented below:

• During the fight, when Thompson had Hernandez controlled through a choke, Hernandez “tapped out.” Which, in the world of self-defense, means absolutely nothing.

The truth is, you’d be a fool to release someone (from a control position) that has shown a willing propensity to be violent to you and/or your wife, because that person “taps out.” Tapping out is a cultural phenomenon in the sporting world; it means nothing when someone is trying to violently attack you and/or loved ones.

Isn’t tapping out in a self-defense situation akin to the attacker asking the person defending himself to trust the attacker? Has the attacker shown that is trustworthy? Certainly not in this case.

Should Thompson have let Hernandez free when Hernandez tapped?

What guarantee did Terry Thompson have that if he let go of Hernandez that the violence would stop – as opposed to escalate?

What assurances did Thompson have that Hernandez wouldn’t go after his wife?

Did Hernandez have a concealed weapon or one stashed in a vehicle or elsewhere nearby that he wanted to access and use?

Would Hernandez go to his vehicle only to use it as a weapon against Thompson and his wife?

Is it reasonable to believe that a violent, intoxicated, 24 year-old-man that has made the decision to expose himself and urinate outside a Denny’s restaurant within view of others (with a bathroom readily available inside the Denny’s) is going to – after tapping out – immediately change the character, tone and tenor of his behavior?

Or, is it abundantly clear that the choices the violent man has made are powerful indicators about his likely future behavior should he have the opportunity to again engage in violence?

The truth is evident. The variables and the secondary danger are so prolific in this situation – to the extent that it makes absolutely no sense to release a violent attacker from any control position. To ask Thompson to acknowledge and accept tapping out in this situation is to ask him to put himself and his wife back into a high risk situation – not to mention the safety of the other people who were present at Denny’s at the time.

Isn’t it reasonable to believe that a violent attacker who “taps out” is not, in fact, surrendering, but instead lying about his intentions in order to re-engage, prolong or increase the danger to those he’s attacked? Of course it is.

Therefore, is the most reasonable action – in a situation where a person is acting lawfully and is then physically and violently attacked – to launch a defense and in the course of that defense to remain in control of the fight if that becomes a possibility? Of course it is.

Finally, are these conclusions ones that must be arrived at through deep thought and contemplation? No. These conclusions become apparent in the process of defending life and quality of life. This decision lives in the fight or flight response and the base understanding that danger is present and active.

A violent encounter is tense, uncertain, rapidly evolving, and debilitating (both mentally and physically). The flight or flight reflex dumps a chemical concoction into the system, fine motor skills are unavailable, and the average IQ can fall up to 50 points. It is unreasonable to ask someone being attacked to make complex decisions that require complex thought. For instance, weighing the many variables required to decide when and how to release someone from a control position – as opposed to controlling the situation while waiting for law enforcement to arrive.

In fact, it’s entirely possible that someone defending his life might not feel the tapping of the violent attacker – not that this matters (as I’ve outlined above).

It’s also possible that the defender has no idea what a “tap” means in the world of mixed martial arts – not that this matters (a violent encounter is not a sport where fighters tap out and should never be seen as such).

Here’s my substantial concern. In closing arguments, the prosecuting attorney showed the video of Thompson’s choke/control hold. At some point, Hernandez taps out – after punching Thompson in the face and continuing the fight.

When Hernandez taps, the prosecuting attorney says to the jury, “At the moment 24-year-old John Hernandez gives up…at the moment 24-year-old John Hernandez taps out and you (Thompson) continue, it’s certainly not self defense and it’s murder.”

Folks, those words couldn’t be more misleading, false or dangerous to those forced into self-defense situations.

Clearly, the prosecuting attorney doesn’t understand the essence of danger and the specific need to avoid secondary and/or on-going danger in a self-defense situation.

If the jury heard the prosecutor’s assertion and gave it any weight at all in the decision process, there’s a very real problem here.

If the prosecuting attorney’s core argument and summation of the case is reflected in his comments about self-defense versus murder, Thompson should be freed, because his argument is flawed and false.

Had Hernandez surrendered by physically withdrawing from the fight, and essentially creating an increasingly safe space for Thompson to accept (as opposed to attempt to continue the fight), Thompson likely would have gone too far in pursing Hernandez (although a reasonable argument can be made to the contrary).

Instead, the circumstances of the fight took the men to the ground where a choke/control hold was utilized by Thompson to attempt to stop the ongoing danger.

In his scenario, Hernandez’s “tapping out” did not allow Thompsons a safe and reasonable means of extricating himself from danger, due to the proximity and exposure the scenario presented. It’s that simple.

If this is our new self-defense standard, we are all in significant jeopardy.

Our collective right to self-defense cannot be infringed.

If Thompson’s verdict and 25 year prison sentence stands, does our right to self-defense effectively end when a violent attacker says he “gives up?”

Do we have a legal duty, as the prosecutor said Thompson did, to retreat once a violent attacker signals that he’s giving up – even if that means to comply increases the danger to the party employing self-defense?

What words and/or hand gestures are now acceptable as signaling the end of a violent encounter that require me and all other residents of Harris County to retreat from our right to self defense (and hope the violence stops at great personal risk to each of us)? This slope is a very slippery one.

Finally, what informal or formal precedent does this decision set legally or otherwise?

Wouldn’t you, if you were a violent criminal, use the tap out tactic during a violent encounter you have initiated to move from disadvantage and regain an advantage, as you seek to complete your objective – violently if needed?

Doesn’t the claim made by the prosecutor surrounding self-defense turned murder fail to produce even rudimentary logic or an understanding of danger – given the nature self defense and the realities of the grappling?

If Terry Thompson’s conviction is predicated upon the prosecutor’s assertion that the right to self-defense ends when a violent attacker taps out, shouldn’t Thompson be freed?

If this is our new self-defense standard, we should all be afraid – very afraid.