Judge Steve Teske: In Defense of Self-Defense – Are Schools Safer with Zero Tolerance?

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Be stirring as the time; be fire with fire;
Threaten the threatener and outface the brow
Of bragging horror

~William Shakespeare, King John, 1595

The school bus was approaching the next stop.  The bus was crowded. It was standing room only, and the next stop was mine.  I was making my way through the silos of flesh when, just ahead of me on the right, I saw a blonde haired boy violently pulling on a girl’s hair sitting directly in front of him.  She turned around and told him to stop.  He slapped her. It was hard enough to swing her head to one side.  She got up and ran off the bus - it was her stop, too.

As I passed the boy, I grabbed his hair and pulled his head back, slamming it as hard as I could against the metal bar frame of the back of the seat.

“Thud.”  There was a hush throughout the bus. I pushed his head forward again slamming the side of his head on the metal fame of the seat in front of him.

“Crack”  It was a loud breaking sound.

“Oh my God,” I thought to myself! I was expecting another “Thud” and instead heard a frightening sound.

“Did I crack his skull?” I thought to myself.

It is amazing how many feelings, thoughts, and emotions race through the mind in just a single second in time.  How unfortunate that it takes most of us a lifetime to value a single second more than a single hour, a day, month, or even a year.

I even prayed in that single second that he was not seriously injured, as I pulled his head back by the hair to inspect the source of the God-forsaken and skin-crawling cracking sound.

Something fell to the floor. It was his hearing aid.  He was deaf and mute. He was also a bully!

I felt one of those emotional, but silent, sighs of relief running through the recesses of my mind.

Suddenly, with the fear that I had killed him gone, my adrenalin returned and I leaned down and, mustering the meanest and most threatening voice, I whispered in his ear.

“You touch her one more time - I will kill you!”

I slowly continued my way through the sea of flesh, now parting out of shock or fear, I am not sure which, to make an easy path to the front of the bus.

The bus driver heard the noise.  Just as I made my right turn to exit the bus, he asked me about the noise and if everything was OK? Standing room only - he couldn’t see the commotion.

“Yes,” I said.  “That deaf kid dropped his hearing aid and someone accidently stepped on it,” I told the driver. “He’s OK. I picked up the hearing aid and gave it to him.”

“OK. See you tomorrow,” he said with a smile.

I stepped off the bus and walked to the front door of my house. The girl was standing at the door.  She was crying.  Through her tears and erratic breathing she said, “He slapped me - it hurts!”  She was holding the side of her face in pain.

“I know.  I took care of it,” and I walked into the house.

He never picked on her again. The girl was my sister.

That was 1972 and I was 12 years old.  My sister was 10.

I didn’t get in trouble.  I figured the kid never told on me.  Probably told his parents what I told the bus driver about the broken hearing aid.  But I have since wondered in those many moments of solitude and reflection throughout my life what would have happened if he had told on me.  One thing is for certain at the time - I really didn’t care!  I was 12, and he bullied my sister.  She had done nothing.  She never looked at him. She never spoke to him. She was sweet, innocent, and the perfect victim for a bully. I would do it again. She was my sister.

I have also wondered in those same moments of silence why he picked on my sister.  This kid was known to hang out with a group of boys that bullied other students.  Maybe it started when I encountered this “gang” of bullies at my bus stop on the first day of school.  I had moved to New York earlier that summer and befriended a kid who lived behind me.  This “gang” walked from their stop to ours and circled my friend and the leader told my friend they were going to “kick his ass.”

There was this pregnant pause and then I did the unthinkable.  I stepped inside the circle, looked around, and uttered a cliché right out of some movie.

“You will have to go through me.”

I looked around to find my friend to see his expression of appreciation and relief, but he wasn’t there. He ran, and I saw him turning the corner of my house toward his home.

I was alone. The adrenalin that got me into this mess was replaced with fear.  How could my friend abandon me when I made his plight my own? What was I thinking? Here I am standing in front of my house with four boys around me.  Do I run, do I fight, or do I scream for my mom? Again, I couldn’t help having so many thoughts in a split second.  And the most pronounced thought of them all-“why can’t my Mom look out the damn window?”  The bullies begin to close the circle around me and my head is screaming inside, “I want my Mommy!”

Just as they were about to jump me I heard a voice - a commanding maternal voice. It wasn’t my Mom, but it was my friend’s Mom.

“You boys walk away right now or I’ll call the police,” she shouted in that horrific way only a protective mother does when her children are threatened.  And there was my friend peeking around his mother’s short frame.  He came back for me with reinforcements!

My Mom opened the front door, finally!  She heard that maternal threat and knew something was wrong.  One mad Mom was bad enough, but two Moms? Without saying a word, the bullies walked down the street.  But that wasn’t the end, it was the beginning, and my sister became their target - to get to me!

In my reflection I have felt sorrow for the kid that slapped my sister.  He was, after all, deaf and mute.  I am sure he got his share of being picked on. He wanted to be accepted, even if it meant being used and abused by bullies to do their dirty deeds - to slap a girl!

It was hard that school year.  School officials intervened after a few shoving incidents between myself and the bullies. The bullying stopped and school became a better place. But I can’t help wondering what the results would be like in today’s culture of zero tolerance policies in our schools.

I look back at those fights and how the principals handled each event.  They separated us and wanted to know who started it.  They wanted to know who the primary aggressor was.  They wanted to know if someone was a bully.  I was involved in a number of fights that year, and not one time did I get disciplined.  The bully was disciplined, and he eventually stopped.

Would the result be the same today? Zero tolerance arguably is a policy that causes systemic blindness - a policy that embodies the proverbial three wise monkeys, “see no evil, hear no evil, speak no evil.” In our western culture this wise Japanese proverb, intended to mean “do no evil,” has taken on a negative connotation of ignorance, of turning one’s head to evil acts.

Zero tolerance policies as applied in most schools today punish both kids for fighting, and oftentimes there are no inquiries into whether it was mutual combat or a primary aggressor situation.  There is no tolerance for fighting, no matter the reason!  A zero tolerance attitude among school administrators runs the risk of punishing the victim as well as the bully.  It runs the risk of becoming blind to the evils of bullying.

Assuming teachers and administrators do make the inquiry, they should be careful not to take for granted confessions that the fight was mutual.  The victim will not always admit the bully wanted to pick a fight and attacked first, or that the victim fought in defense or fought to avoid the ridicule of his cruel teenage peers who would call him a coward for running away - so the victim agrees to fight to save face.  Zero tolerance is convenient and expeditious, and oftentimes short shrifts the need for inquiring minds.

Let’s stop for a moment and take a look at the risks we adults have created for our children.  Rightfully so, we have compulsory school attendance laws.  We force our children to leave the safety of their homes almost every day and enter a school building and interact with about 1,000 other kids coming from about 1,000 other homes.  These homes are not all the same. Homes have different social and religious beliefs and customs, some with both parents, some with single parents. Some kids are in foster care or with guardians, some delinquent, some on drugs, some sexually abused, and others, only God knows, with baggage they bring to school from home.  I am not saying that most kids come from problem households, but it only takes a few to cause havoc and chaos.

School buildings, simply stated, are ticking time bombs.  Adolescents of all social, economic, religious, cultural, and emotional shapes and sizes come together five days a week under one roof.  Conflict is inevitable. Fights are inevitable.  More so with teenagers because their frontal lobe - that part of the brain that translates emotion into logic - is not developed until age 25.  Kids are wired to do stupid things.  They are wired to make us mad.

Oftentimes kids upset over their differences will challenge others to a fight.  Many of these kids challenged to a fight do not want to fight, but find themselves in a position to stand and fight or face the ridicule of their peers for running away. I understand. I faced it myself.  In my day the teachers and administrators asked who started the fight. They wanted to know who the aggressor was. They were not pressured by zero tolerance policies to discipline both kids no matter who initiated it.

Zero tolerance is not only zero intelligence when it comes to understanding adolescent behavior, it ignores the law of justification, or self-defense.  As a judge, I take offense to administrative policies like zero tolerance that obliterate long established laws that give persons, including kids, the right to stand their ground and resist an assault. Courts, and I mean judges as the fact finder in juvenile proceedings, have a duty to protect a juvenile defendant’s right to assert a self-defense claim in school fight cases.

Many school administrators and, quite frankly, police arrest kids for affray unaware that justification is a defense to affray, the offense we use in Georgia for a mutual fight in a public place.  In other words, a school yard fight.  Our Official Code of Georgia defines Affray in 16-11-32 as “fighting by two or more persons in some public place to the disturbance of the public tranquility.”

On the other hand,  O.C.G.A. 16-3-21 provides that a kid involved in a school fight is justified to fight back if “he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other´s imminent use of unlawful force.” More to the point is the long standing all-American tradition that a person has no duty to retreat in defense of self or others. See O.C.G.A 16-3-23.1. I have no doubt many school fight referrals would be reduced if administrators and police questioned how the fight began, or asked who started the fight. They might also identify a bully sooner than later, or before it’s too late.

The defense bar must be diligent to assert justification as a defense when appropriate. Courts must be careful not to abandon the self defense doctrine, especially in school fight cases.  Teenage assault cases with the same facts as an adult case may have a different result due solely to the nature of adolescent cognition.

For example, take the case of In re V.H. (2009 Cal. App. Unpub. LEXIS 8898) in which the juvenile defendant, age 11, defended against the attack of a school bully, age 13, using a mirror to strike her assailant, causing several stitches.  Although the juvenile court found she acted in self-defense, she was adjudicated delinquent and placed on probation (yes, at age 11) because the use of a mirror that could break and cause seriously bodily injury, and it did, was deemed excessive force.  The appellate court reversed, citing it was not unreasonable force given the assailant was a bully, two years older, and the defendant was 11 years old, scared, and merely wanted to escape the grip of her terrifying assailant.

When I think of self defense, believe it or not, I think of my favorite John Wayne film, “True Grit.”  In the beginning of the movie a girl, whose father was murdered, comes to Fort Smith, Arkansas to avenge her father’s death.  She sees the handiwork of Judge Isaac Parker, “The Hanging Judge.”  Four men give their last statements before the hangman pulls the lever. She soon meets the man who will help her hunt down her father’s killer, Rooster Cogburn. He is testifying in Judge Parker’s court. While Rooster is fictitious, Judge Parker is for real.

In real life Judge Parker was the judge for the Western District of Arkansas. He sentenced 88 men to be “hanged by the neck until dead.”  He was dubbed the “Hanging Judge.”  Defendants in Judge Parker’s court could not appeal to a Circuit Court of Appeals. By a fluke in the law, he was his own appellate court. Any appeal was to the United States Supreme Court by writ of error.

“True Grit” comes to mind because Judge Parker showed a disdain for the self-defense doctrine, presumably because he presided over the worst of the worst territories in the United States when it came to outlaws.  Outlaws would come from all over to hide out in the Indian Territory because extradition was nearly impossible.  This territory was known as “Robber’s Roost.”

Judge Parker viewed self defense as a tool used by criminals to fool the jury.  Consequently, he gave jury instructions hell-bent on destroying the self-defense doctrine.  Ironically, however, the victims, for the most part, were not criminals.  They were defending against the assaults of aggressive and bad people.  When we take away a kid’s right to stand and defend against an assault, we reward the bully and punish the victim.

It was Judge Parker’s hostility to self-defense that reinforced this doctrine.  The Supreme Court of the 1890’s reversed many of his sentences for failure to properly instruct the jury on self-defense.  These rulings by the Supreme Court serve as a reminder to jurists in the 21st century that self-defense is a fundamental human right against those who mean us harm.  It is a fundamental right and protection for kids from the bully!

It was Judge Parker who instructed juries that a person has a duty to retreat. In response, the Supreme Court, in an opinion written by Justice Harlan (the lone dissenter in Plessey v. Ferguson), rejected Judge Parker’s assertion proclaiming that “the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.” Beard v. United States, 158 US 550 (1895).

I know my parents and my grandparents possessed this “American mind.” I was 8 years old living in Albuquerque NM when I confronted my first bully.  He lived in my neighborhood and was two grades ahead of me.  He was big.  He was mean. He would grab my bike and shake the handle bars causing me to fall and skin my hands, arms, and knees.  He would punch me in the arm and slap the back of my head.  He was relentless.  He was a stalker.

My Mom found me crying on one occasion after being bullied. Mom was relentless too. I couldn’t lie to her. She had a sixth sense. At the time I believed that the omniscient God my Mom incessantly preached at me was telling her my activities. So I boo-hoed my story to her. Her mother, my grandmother, was part of this talk, and she made it quite clear: “Stand your ground Steve!”

My mother agreed, but tempered it with comments including “never look for a fight,” “always find peaceful solutions,” and “never start a fight.” My mother was equally emphatic that if threatened, defend yourself and fight to win. My father got into it and bought me some boxing gloves and taught me how to fight if ever assaulted.  He knocked me on my butt a few times. He made me get up, and keep fighting.  Never give up!

It didn’t take long after all this moral, emotional, and physical training for my nemesis to find me in the street. He pushed my shoulder.  I looked up at him, and then looked around him as if someone was behind him. He looked around, and in that moment I balled up my fist, reared back, mustered as much strength as I could, and punched him in the stomach -and then I ran like the wind.  I ran into my sanctuary, my home, and into my grandmother who saw the whole thing. She was proud of me. She taught me how to fight bullies bigger than me. “Close the gap,” she would say. “Sneak the punch,” she shouted with a swing of her balled up fist.

Chief Justice Rehnquist, despite his intellect and highly credentialed legal career admired the “Hanging Judge,” and from time to time quoted Judge Parker’s infamous statement, “I never hanged a man. It is the law.”  The Supreme Court of the 1890’s wasn’t fooled by Parker’s “Hanging Judge” reputation.  They didn’t agree with his antics.  They thought what Judge Parker did was not the law - that he violated the fundamental right to self-defense. By the time Judge Parker retired, the Supreme Court reviewed 44 of Parker’s death sentences and reversed 31 of them.  Many of the defendants had invoked their right to self-defense.

Similarly, zero tolerance policies are contrary to our fundamental right to self-defense.  Judge Parker sought to hang defendants despite their lack of intent to murder.  Many of these defendants were attacked with intent to murder, but instead killed their assailants.  These defendants, with the aid of Judge Parker, found themselves on the road to the gallows. Like the victims of Judge Parker, many kids are assaulted in schools every day and punished for fighting back, or in fear of being punished do not fight back and are beaten.

A colleague of mine shared his son’s story of fighting back a bully’s assault and getting suspended for fighting.  The principal acknowledged his son was defending himself, but asked him to understand the principal’s situation given the zero tolerance policies. My friend was incensed and removed his son from that school and placed him in another nearby school.  The next year the two schools merged and his son was confronted in the boy’s room by the same bully who attacked him the year before.  This time his son didn’t fight back.  He didn’t want to be suspended. He had to go to the hospital.

Zero tolerance policies have made schools less safe.  They have encouraged a lazy approach among school administrators involving bullies and school fights in general.  These policies have fostered a false sense of increased safety in our schools.

When you go to Ft. Smith today you can visit Judge Parker’s courtroom.  It has been restored and is a National Historic Site.  Paradoxically, Judge Parker’s legacy is not found in his courtroom.  It is in the many Supreme Court decisions that defended a person’s fundamental right to self-defense.  It is in the Supreme Court’s forthright decisions to intervene and save the lives of men, many who were minorities and poor, from the gallows. Had the Supreme Court not intervened, the government would have been the murderer and not the punisher (Kopel, 2000).

I think we can take a lesson from the strength of the Supreme Court to intervene in the infringements of Judge Parker.  Judge Parker believed he was tough on criminals by doing away with the self-defense doctrine.  Instead, he punished the victims of murderers and thieves, and made matters worse.

Today, the harmful philosophy of Judge Parker is reincarnated in our zero tolerance policies in schools. Kids standing their ground with legal authority are suspended, expelled, and arrested.  They are viewed in many instances in the same light as the instigator, the aggressor, the bully. It is an infringement on the right to self-defense.  It is time that courts refuse to certify petitions on such offenses, or the defense bar require a trial where there is a question of self-defense. Make the bully appear in court. Make school officials appear as well to justify why school fights require court action.

The defense bar has a duty to assert this fundamental right of their juvenile clients to be protected from bullies, and judges have a duty to protect that assertion. Likewise, prosecutors have a duty to bring the most appropriate delinquent act. If the evidence does not support a mutual fight - that one assaulted the other and a fight ensued merely because the other was standing his ground in defense  -both cannot be charged with affray. See In the Interest of S.W. 269 Ga. App. 108 (2004).  It is an assault or battery of some type only against one, not both.  Our Georgia courts have made it clear that there must be an intent before the act occurs, and “One may become involved in an affray; and may ‘fight together’ with another in a public place without ever intending to be involved therein . . . and the automatic reflexes of any individual would cause him to push back the thing that is about to destroy him. A drowning man will grasp at a straw, without any thought whatever of what he is doing; he is just doing what comes naturally.” Johnson v. State, 135 Ga. App. 360 (1975).

I was assaulted a lot that year my sister was slapped.  I stood my ground and fought “fire with fire” and “threatened the threatener.” It looked like I was consenting to a fight.  I wasn’t consenting.  It was not mutual.  It was a necessity. No teacher, police officer, or some “hanging judge” was going to stop me from protecting myself and my little sister.  That is my fundamental right!

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The Hon. Steven Teske has been a judge at the Clayton County Juvenile Court for more than 10 years. He represents Georgia on the Federal Advisory Committee on Juvenile Justice. Judge Teske also chairs the Board of the Governor’s Office for Children and Families, and serves on the Judicial Advisory Council to the Board of the State Department of Juvenile Justice.  He's a leader in the Annie E. Casey Foundation Detention Reform Initiative and a nationally recognized speaker on juvenile justice issues.

One thought on “Judge Steve Teske: In Defense of Self-Defense – Are Schools Safer with Zero Tolerance?

  1. I enjoyed your article. It was very informative and a helpful reminder of good, basic law.