Disparity Of Force


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ManBearPig
December 18, 2008, 03:58 PM
A few days ago someone in a thread, can't remember which, said something to the effect of "you can't kill an unarmed attacker with a weapon". I knew that was wrong, but I couldn't think of the term. Today I did.

The term is "Desparity Of Force". You CAN use a weapon to kill an unarmed attacker, if the odds are against you. If you are outnumbered, it's Desparity Of Force. If your attacker is much bigger than you, it's Desparity Of Force. If your attacker is trained, and you are not, it's Desparity Of Force.

Remember when those 8 teenage girls tricked another teenage girl into a home, where they beat the ever loving crap out of her? That's eight against one; which is Desparity Of Force. Even though they were not armed, she would have been well within her rights to make it to the kitchen, grab a butcher knife, and start stabbing until they ran off; and if someone would have died, no charges would have been filed. That's Desparity Of Force.

To answer that person, I forgot who it was and what thread it was, yes you CAN use a weapon to kill an unarmed attacker.

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Jorg Nysgerrig
December 18, 2008, 04:03 PM
The word is disparity.

Ayoob has written on this: http://findarticles.com/p/articles/mi_m0BTT/is_154_25/ai_77824400

GregGry
December 18, 2008, 04:09 PM
no charges would have been filed

Charges can always be filled, even if there is no evidence to support the charge. Of course it would get throw out, but that doesn't mean charges can't be filed.

Disparity of force in law enforcement is called officer subject factors. Physical size difference, training differences (Aka the person your going up against is a known heavyweight boxer), number of attackers, etc are all factors.

hankdatank1362
December 18, 2008, 04:21 PM
As has been said, it's "disparity", as in an unequal pairing.

But you're absolutely correct. And too many people don't know it.


It's why an armed woman or smaller male can shoot a violent, attacking unarmed attacker that's bigger or more skilled than they are.

I'm 6'4", 250, so I don't see myself being able to use this defense successfully, unless I'm outnumbered, even though I truly can't fight that well.

expvideo
December 18, 2008, 04:31 PM
Correct. Basically, you have to think about it the same way that the jury will:

Would a reasonable person have feared for their life if put in the same situation.

Titan6
December 18, 2008, 04:31 PM
I don't know where you are so you really need to look at your state laws. They vary widely on this matter.

mbt2001
December 18, 2008, 04:43 PM
I'm 6'4", 250, so I don't see myself being able to use this defense successfully, unless I'm outnumbered, even though I truly can't fight that well.

Not exactly true, PCP is the great equalizer in a physical confrontation, the largest, strongeset, fastest most adept and deadly fighter specifically gentically created to be a killing machine might meet his match in a 5'0 100 lbs PCP raging psycho. Same is true to a lesser degree of meth, crack and other drugs.

GregGry
December 18, 2008, 04:52 PM
I have fought people who were on drugs that impaired their sensation of pain. I have never had a toxicology report come back as PCP, however I have seen videos and talked with officers that have had first hand experience with people on pcp. The problem is that they can't really feel pain, and being that PCP is a dissociative anesthetic (Basically it separates mind from body) and the users can't really react/control themselves when ordered to do so. In 90% of the videos I have seen the PCP user is primarily concerned with getting away from threats more so then entering them. Of course since the pain threshold is higher, about the only thing that’s effective is the taser since that can get them to lock up.

hankdatank1362
December 18, 2008, 05:09 PM
Good point, MBT.

Bubba613
December 18, 2008, 05:30 PM
I dont get the concept. I am 6 ft tall and 210 lbs. If another guy comes rushing up to me cursing and threatening and he's 5'8" and 165 lbs does that mean I can't defend myself with deadly force? Is there some kind of contest you have to go through first to see whether he really is stronger or more fit?

GregGry
December 18, 2008, 05:31 PM
If all that happens is a person much smaller then you gets in your dace shouting and swearing, no you can't use deadly force.

This is ment for when your outnumbered, out skilled, or out sized.

Bubba613
December 18, 2008, 05:33 PM
really? Does he offer a guarantee that all he's going to do is curse or threaten? Do they wear buttons or how do you identify them and distinguish them from people who are going to beat you up?

mbt2001
December 18, 2008, 05:57 PM
Actually if you are 6'0 200 lbs and out of the blue some 5'4 134lbs nut job comes running after you trying to kill you, you can defend yourself.

I think that the idea of Desparity Of Force is an old time notion. These days I don't think it holds AS true as it used to.

Mostly because of the drug factor or the perp factor.

IMO

CoRoMo
December 18, 2008, 06:10 PM
This topic always seems to limit the good guy a little too much IMO, and it has been discussed to death. Like Bubba pointed out, it could be difficult to know whether an attacker is more skilled until the fight is fought. I don't want to get physical when I'm carrying, period. The risk of my gun being used against me is too great to simply give the guy a fist fight because he's my size and unarmed.
I've read too many of the "one punch killed this guy" news articles.
I'd prefer to defend myself with deadly force if need be. I would like to decide the if need be part, even if the jury gets to take several weeks to decide how I should have reacted in those few seconds.

I know that we're not talking a true legal line per se, in that, I'm one inch shorter than this guy so... doubletap! It always depends on
A. your own personal threshold to act with deadly force, and
B. how eager the local DA is to indict someone who defended themselves against an unarmed attacker.

Bubba613
December 18, 2008, 06:44 PM
Also, what is "unarmed"? Just because someone doesn't appear to have a weapon doesn't make it so. I'd hate to get shanked by an "unarmed man."

DoubleTapDrew
December 18, 2008, 07:14 PM
Not exactly true, PCP is the great equalizer in a physical confrontation, the largest, strongeset, fastest most adept and deadly fighter specifically gentically created to be a killing machine might meet his match in a 5'0 100 lbs PCP raging psycho.
True. In my CHL class (while specifically talking about disparity of force) the Sargeant that was instructing mentioned cases he's been on where it took 4 or 5 230lb musclebound LEOs to wrestle down a single 140lb guy on PCP.

Cyborg
December 18, 2008, 07:35 PM
I'm 6'4", 250, so I don't see myself being able to use this defense successfully, unless I'm outnumbered, even though I truly can't fight that well.
I am (OK USED to be) 6'4" and weigh around 300lbs but have a pacemaker, am on blood thinners and am diabetic. If I were, say, in my 60s or 70s and my attacker was in his 20s or 30s and in demonstrably better condition and overall health, would that count as disparity? I don't know about in other states, but in Texas the severity of an assault on a senior (over 64) or physically/intellectually handicapped is greater than on a regular citizen.


CHAPTER 22. ASSAULTIVE OFFENSES
Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor

c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is:
(1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04;
A class B misdemeanor carrys a possible punishment of (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.
A class A misdemeanor carrys a possible punishment of 1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or
(3) both such fine and confinement.

Sec. 22.04. INJURY TO A CHILD, ELDERLY INDIVIDUAL, OR DISABLED INDIVIDUAL. (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
(e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or (2) is a felony of the first degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is a felony of the second degree.
(f) An offense under Subsection (a)(3) or (a-1)(3) or (4) is a felony of the third degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is a state jail felony.
(g) An offense under Subsection (a) is a state jail felony when the person acts with criminal negligence. An offense under Subsection (a-1) is a state jail felony when the person, with criminal negligence and by omission, causes a condition described by Subsection (a-1)(1), (2), (3), or (4).

1st degree felony carries a punishment of not less than 5 nor more than 99 years or life in prison or $10,000 fine or both
2nd Degree felony is 2-20 years or $10,000 or both
3rd degree felony is 2-10 years or $10,000 or both
State Jail felony is up to 2 years on prison, $10,000 or both

I will qualify as a senior in 7 years.

Cyborg

GregGry
December 18, 2008, 08:11 PM
really? Does he offer a guarantee that all he's going to do is curse or threaten? Do they wear buttons or how do you identify them and distinguish them from people who are going to beat you up?

There are no guarantees in life unfortunately. Under most states written law you have the right to use deadly force against force that is likely to cause great bodily harm (Great bodily harm is defined exactly in the law books)or death. This disparity of force could be used as a defense to using deadly force if you can prove that the force you were up against (Say 4 people vs you) could have caused great bodily harm or killed you. Does that make it simpler? Its easier for 4 guys with their fists to cause you great bodily harm/death then 1 person. In a situation where 1 person with their fists up wouldn't normally be able to cause you great bodily harm/death, every extra person increases the odds of you being hurt bad. Its possible to prove that 1 persons fists could have caused you great bodily harm/death, however its going to be hard if both you and the attacker are the same size/appox fitness level. Now if your down on the ground and can't get up, and your being hit/kicked, its a different story.

The reality is that every use of force case is different, but similar. You are forced to make decisions, and in most cases a judge or jury is going to check your decisions at a later date. As long as your within the relm of reasonbleness you will be ok. By that I mean if you shot someone that did nothing other then yell in your face, you should be convicted of murder. Now if you pulled the trigger after someone chased you and had you pinned in an alley while approaching with a knife, its more reasonable. However change that situation where the person was chasing after you because you just sexually assaulted someone, and it becomes questionable.


Also, what is "unarmed"? Just because someone doesn't appear to have a weapon doesn't make it so. I'd hate to get shanked by an "unarmed man."

Would you shoot a person in any situation, under the idea "Well they might have been armed"? The idea of the law is to be able to bring people to justice that use their weapons without any reason to. Good examples are gang members that shoot other gang mambers in turf/drug/power wars. The fact is the law doesn't want people to shoot others as a first response to everything.

Bubba613
December 18, 2008, 08:36 PM
Its easier for 4 guys with their fists to cause you great bodily harm/death then 1 person. In a situation where 1 person with their fists up wouldn't normally be able to cause you great bodily harm/death, every extra person increases the odds of you being hurt bad. Its possible to prove that 1 persons fists could have caused you great bodily harm/death, however its going to be hard if both you and the attacker are the same size/appox fitness level. Now if your down on the ground and can't get up, and your being hit/kicked, its a different story.
Did you actually think that one through? You're going to let some guy pummel you to the ground and only then think about drawing your weapon?
Hello?
No, I don't think so. Do what you want. I'm drawing and firing if the situation arises.
Would you shoot a person in any situation, under the idea "Well they might have been armed"?
What in anything I have written in my lifetime makes you think I would shoot a person in "any situation"?

kludge
December 18, 2008, 08:50 PM
I'm 6'4", 250, so I don't see myself being able to use this defense successfully, unless I'm outnumbered, even though I truly can't fight that well.


Pretty much describes me too.

You could also describe me as fat, slow, out of shape...

... and the only thing standing between the BG and my wife and 5 small children, who are all slower than me...

I don't have a chance against a young attacker with fists and feet.

Dr. Fresh
December 18, 2008, 11:53 PM
I don't know where you come from, but around here 1 guy with fists can do "great bodily harm" regardless of his size.

Polish_Pounder
December 19, 2008, 12:19 AM
A few of my friends were out camping on a public beach about a year and a half ago and they got jumped. There were 4 guys and 2 gals 24-27 years old, and 2 unknowns 17-21 years old walked over to their camp fire. They asked what they needed, and one responded by decking one of the guys from behind (target was sitting, assailant standing). As my 2 good friends were getting up to go defend the other guy, the fourth guy ran and the 2 gals started shouting. My friend told the second guy to control his friend, who looked glassy eyed and drunk. He got kicked from an unseen third person and delivered a few punches before getting knocked out. My other friend didn't even get a punch in before he was knocked out. Both woke up in the hospital, where the gals explained that the third guy came out of nowhere and kicked them. They were then beaten and kicked while they lay unconscious and the gals were hitting the attackers. Both of my friends ended up having to have multiple surgeries to fix the broken bones in their faces and noses, not to mention closed-head injuries.

What would you do? It appeared to be a 6 on 2 situation, and before anyone could respond it was a beat-down that could have killed them. My point is, I always assume that I am facing a skilled, determined attacker unless he shows me otherwise. I am 6'1", 160 lbs soaking wet. I used to kickbox and have mean upper cut that has knocked more than a few people out. If you saw me on the street, you would immediately classify my as a bean pole who probably has never thrown a punch, but looks can be deceiving.

-Polish

Frank Ettin
December 19, 2008, 12:27 AM
Remember that the bottom line is that if you use deadly force, you may need to convince a jury that a reasonable, prudent person in like circumstances and knowing what you know would have concluded that the use of lethal force was necessary to prevent otherwise unavoidable death or grave bodily harm of an innocent. And you may need to be able to articulate why you decided that you needed to use lethal force.

That doesn't mean that you won't be able to convince a jury that you needed to use lethal force against an unarmed person. But the reality is that it's an easier sell if

[1] you're 5'5", 135 lb., 72 years old with a heart condition, and if your assailant is 6'3", 210 in his mid-twenties; than if

[2] you're 6'3", 210 lb, in your 20s, and your assailant is 5'5", 135 lb., in his 50s.

That doesn't mean that you may not be able to do it, but you're going to need a very good story. A jury is going to start out with a much more negative view of a big, strong young man using a gun against a little, older man, than a small, old, sick man against a big, strong, young man.

hankdatank1362
December 19, 2008, 12:37 AM
In addition to being 6'4" and 250, I'm also 24 years old. I look like a rugby player. (And was, for about 6 weeks my freshman year at USC.)

I'm strong, and I can take a hit, but I've just never had much hand-to-hand experience. I've been whipped a couple times sparring, if I can't land a good hit.

That, and I'm scared to death of being cut by some crackhead's rusty shank.

I'm currently looking into some 1 on 1 instruction by an ex LEO/judo instructer who goes to my church. So, soon, I'll have another tool in the box.

But, if I am reasonably afraid at any time for my life, I'm clearing kydex.

And I think I could articulate my rationale to any LEO/jury very well, which may be the deciding factor if the S ever hits the F for any of us.

Sinixstar
December 19, 2008, 01:41 AM
really? Does he offer a guarantee that all he's going to do is curse or threaten? Do they wear buttons or how do you identify them and distinguish them from people who are going to beat you up?


There's never any guarantee, no matter how big or small the person is.

I think the bigger question that needs to be asked - is are you really going to unload on somebody just for getting in your face and yelling? Does getting in one's face and yelling constitute a life-threatening situation?

GregGry
December 19, 2008, 03:41 AM
Did you actually think that one through? You're going to let some guy pummel you to the ground and only then think about drawing your weapon?
Hello?
No, I don't think so. Do what you want. I'm drawing and firing if the situation arises.

I never said that anyone should let another person pummel them to the ground. I said that if you are already on the ground and someone is punching/kicking you, its easy to justify using a firearm. You being on the ground while being kicked is a disparity of force in a way. You standing while a guy thats smaller then you is threating you with their fists does not directly warrant the use of deadly force.

My state defines great bodily harm as the following:
Great bodily harm" means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

It is going to be a hard sell to a jury if you claim that a few punches from a smiliar or smaller sized person would create a substantial risk of death or etc. Now your average male adult vs a 100 pound woman, thats a completely different story.


What in anything I have written in my lifetime makes you think I would shoot a person in "any situation"?

I don't know what anyone will do when it comes to self defense. I was just trying to figure out if in the case of a person your size or smaller having their dukes up, if you thought that would warrant you shooting them. You might feel like you were afraid for your life, but others will likely not find that reasonable. I know people that ar afraid for their life anytime a group of people are around them, but that doesn't mean they can pull a gun and shoot in "self defense". You have to keep what you find a life threating/potential great bodily harm situation in check.

Bubba613
December 19, 2008, 08:25 AM
It is going to be a hard sell to a jury if you claim that a few punches from a smiliar or smaller sized person would create a substantial risk of death or etc. Now your average male adult vs a 100 pound woman, thats a completely different story.
A few punches from anyone can cause all those things. I'll leave it to someone with ER experience to confirm this.
But still, based on what you say, if someone is punching you while you're standing up you better not draw. If he has you on the ground you're good to go.
You're certainly free to let someone beat you up or engage in a street fight. Personally I'd consider that life/limb threatening and am going to draw.

cassandrasdaddy
December 19, 2008, 09:21 AM
its unfair the way it works for you bigger guys. i have a friend who is a big feller and since he was a kid he had it pounded into hi that he couldn't/shouldn't fight cause he might hurt someone. as a result he can't fight. and as a big guy hes a target for guys with "short guy syndrome"
as a short guy i got away with murder

mbt2001
December 19, 2008, 11:40 AM
short guy syndrome

No one ever talks about "big guy syndrome" or "ugly girl syndrome" or "pretty girl syndrome". I frankly resent it.

I am not a big guy, the reason I can fight is because I had to because all the "big guys" that were not suffering from any syndrome were picking on me. I moved schools a lot and had to do it all over again...

So much for short guy syndrome eh? Ever think that it develops because of all the idiots out there bullying people?

CoRoMo
December 19, 2008, 12:35 PM
if someone is punching you while you're standing up you better not draw.

Would you suggest getting into a physical altercation while carrying a firearm? That could cost you your life at the point of your own gun. I think the DA would accuse you of furthering the altercation to a more severe point, just so that you could use deadly force. Like I posted earlier, I've read way too many 'one punch killed this guy' news articles. My personal defense is based upon that knowledge.

scottgun
December 19, 2008, 01:23 PM
Would you suggest getting into a physical altercation while carrying a firearm? That could cost you your life at the point of your own gun. I think the DA would accuse you of furthering the altercation to a more severe point, just so that you could use deadly force. Like I posted earlier, I've read way too many 'one punch killed this guy' news articles. My personal defense is based upon that knowledge

I wouldn't fist fight while carrying a gun. The way that I look at this situation is that I won't engage someone who is looking for a fist fight. If you are a mutual combatant then you are raising the bar so to speak by going from fists to a gun. I would first try avoidance to de-escalate the situation, appologize and otherwise try to remove myself. Then by not being a willing participant in a fist fight, the other person is the attacker. The attacker, if successful, could be reaching for a weapon, my weapon. So at that point if a person can't keep their hands off of me, I would be in fear for my life and need to act appropriately.

As a grown man, I do not expect anyone to ever lay their hands on me. It would be a little different if I was still in college drinking beers with the rugby team or in high school out on the playground at recess. In which case playful fighting is normal, and although not always welcome, using a weapon to stop a friendly (or not so friendly) fight would never be good.

mljdeckard
December 19, 2008, 01:41 PM
I'm with fiddletown and scottgun.

You need to be able to convince a jury if your actions were justified.

And I'm not planning on getting in any other kind of struggle while I'm armed either. If say, I take a sucker punch in the face, but there is no indication at all the force will escalate, I walk away. I will keep backing up and talking. I decided when I got my permit 13 years ago, a black eye, or a busted tooth isn't worth killing someone over. If you DON'T KNOW that the action is going to stop there, that's when the rules change.

GregGry
December 19, 2008, 04:16 PM
A few punches from anyone can cause all those things. I'll leave it to someone with ER experience to confirm this.
But still, based on what you say, if someone is punching you while you're standing up you better not draw. If he has you on the ground you're good to go.
You're certainly free to let someone beat you up or engage in a street fight. Personally I'd consider that life/limb threatening and am going to draw.


Sure a few slaps on the face could cause that too. What is the probability of having someone thats a lot smaller then you being able to kill/cause you serious harm, with a few punches? Its going to be pretty slim. Sure it could happen, but anything could happen. I am not saying it would be wrong to draw a weapon when faced with a person that has their dukes up, however you better not pull the trigger without thinking.

There is a probability of any person that swears at you for doing something they didn't like, has a weapon. Does that probability allow you to shoot them? There is a small probability that a smaller person then you could seriously hurt you from some punches, does that allow you to shoot them before them even get close to throw a punch? You were jumped by someone, you knock them on the ground and they aren't moving much, are you allowed to shoot them so you don't try to attack you again?

When playing the game of "I used force to prevent them from being able to potentially use force against me", your on a slippery slope. When your the first to go to deadly force, its going to look bad in your situation if the other person just had their fists up. Fists although can cause death or great bodily harm (In some select situations) they are not considered deadly force on any level of force pyrimid. Just like a baton isn't considered deadly force despite the face a hit to the head could very well kill someone.

CoRoMo
December 19, 2008, 05:29 PM
The OP is about an attacker rather than a confrontation. Only criminals draw a weapon to stop a confrontation. But if you are being physically attacked, I'd agree that it is wise to flee if at all possible, but there is a line that we all have, at which we would feel as though we have no other choice to stop the attacker, than to use our weapon.
I've heard/read that you should only draw your gun when you are going to shoot your gun, but I disagree with that. There is a difference between 'using' your weapon and shooting it. When you read enough of the real life stories here on THR you realize that many attackers/intruders stop or flee when a weapon is drawn and that is sometimes enough 'use' to stop the attack. The 'use' of your weapon, whether that means drawing it or firing it, should always be the absolute last resort.

Bubba613
December 20, 2008, 08:09 PM
Sure a few slaps on the face could cause that too. What is the probability of having someone thats a lot smaller then you being able to kill/cause you serious harm, with a few punches? Its going to be pretty slim
You're kidding me, right? Someone willing to throw a few punches is willing to kick your ribs in once you go down.
Why do you even a carry a gun? According to your procedures, the only time you will pull it is if someone else has already pulled his. And you can't outdraw a trigger pull.

GregGry
December 20, 2008, 08:56 PM
You're kidding me, right? Someone willing to throw a few punches is willing to kick your ribs in once you go down.
Why do you even a carry a gun? According to your procedures, the only time you will pull it is if someone else has already pulled his. And you can't outdraw a trigger pull.



You must be reading something I am not writting. Your also making assumtions of what will happen during self defense situations. If you are on the stand and you said you pulled the trigger on someone that had their fists up, that has yet to hit you, and that you didn't see a knife/gun/crowbar/bat/etc then your going to be hung out to dry. What you consider reasonable and what a jury considers reasonable are two different things. After all you have to base your decision to pull the trigger on what has happed/the facts so far, not on things that haven't happend.

Never anywhere did I say you can't pull the trigger until someone else has already pulled the trigger. I have constantly said what the requirements are to pull the trigger AND be able to have legal grounds to stand on. Disparity of force is a significant concept that will protect people when they are out numbered/outsized/etc. However it is a concept that jurys are going to have a very hard time buying coming from a man who shot someone that is weaker/smaller then they are as a first method of defense. It doesn't matter if you think its reasonble to shoot a unarmed (Not having a bat/knife/crowbar/gun/etc) person without trying any other method first, because jurys will likely find what you did unreasonble.

Again I will post a question for you. Your walking to your car, and a 5 foot tall 100 pound when soaking wet drunk man aproaches you. He has his dukes up (you can see he has nothing in his hands), and says he is going to kick your butt. Would you shoot him when he came close?

If you said yes your in some serious trouble. If you think a average 100 pound 5' tall man could seriously injur you if you fight back at all, then you must be a hell of a weak person, and jurys are going to not understand why you pulled the trigger when you could have considerably over powered the person. If your defense is that he could have pulled some death punch and killed you instantly, you are going to be seen as even more unreasonble. Even more so if you can't prove that you knew he had any martial arts training.

You do realize that even if the guy had a gun on him, that the evidence wont be able to be brought into court since it had no bearing on why you pulled the trigger (AKA you didn't absolutely know he had a gun since you didn't see it). If you try to state that had you not pulled the trigger when you did that this 100 pound man could have killed you with just their fists, even with you fighting back, your going ot look silly. This is disparity of force working against you, since your physical size is force that the smaller man doesn't have.

mgkdrgn
December 20, 2008, 09:22 PM
No, no guarantee at all. If someone comes at me, threatening, cursing, etc, I will perceive them as a threat and draw. IF there is sufficient time, I will draw to the ready. If they press on once they see I am armed I must then assume:
1) they are armed
or
2) they are "skilled"
or
3) they don't care (ie, on drugs, delusional, etc)

BANG! (repeat as needed)

really? Does he offer a guarantee that all he's going to do is curse or threaten? Do they wear buttons or how do you identify them and distinguish them from people who are going to beat you up?

Bubba613
December 20, 2008, 10:01 PM
No, no guarantee at all. If someone comes at me, threatening, cursing, etc, I will perceive them as a threat and draw. IF there is sufficient time, I will draw to the ready. If they press on once they see I am armed I must then assume:
1) they are armed
or
2) they are "skilled"
or
3) they don't care (ie, on drugs, delusional, etc)

BANG! (repeat as needed)
Thank you. Exactly right.

GregGry
December 20, 2008, 10:03 PM
If they press on once they see I am armed I must then assume:
1) they are armed
or
2) they are "skilled"
or
3) they don't care (ie, on drugs, delusional, etc)

The problem with this is that jurys don't really make decisions based on assumptions. If the facts are that the person has their fists up while yelling, and you shot them, there is a problem. You decided to pull the trigger on a man who had their fists up (empty of weapons since you didn't mention it). If the man is smaller/weaker/etc the you the jury is going to see your size as a force on your side, which is going to bring doubt on your choice to use deadly force if you really weren't under much danger yourself.

If they have 100 guns on them it doesn't matter, unless you saw one of them. You can't pull the trigger on the possiblity they are armed, you have to know that they are. That would be the same if you pulled the trigger on anyone under the suspicion they are armed. Any weapons that are on the person can't prove you were justified to shoot unless they factored into your decision, and they aren't admissable in court unless you saw them.

Skill is something that is going to be hard to prove in court. If you pulled the trigger on a person that had their fists up and that was it, that really doesn't prove that they are "skilled". Not to mention that doesn't really prove that you were at risk of death or great bodily harm at the moment you pulled the trigger.

The state of mind of a person is something you really don't know for sure. It could be alcohol, drugs, depression, brain dysfunction, who knows. The state of their mental capacity doesn't prove that you could have been at risk of death or great bodily harm, their actions show that.


What you need to be thinking is Weapon/intent/delivery system. Do they have a weapon that can cause me great bodily harm/death at this moment, do the have the intent to use it against me (Are they comming toward you or suggesting that thy will) do they have a delivery system (Do they have a gun, or do they have a knife and are they close to you). Always remember that given your attacker is unarmed, your physical size and training will play a role in the legality of using deadly force. The reverse is not true however, a drunk man that couldn't connect a punch might be a judo master. What black belts/training/etc a attacker has doesn't matter unless you can see signs of it and thats part of why you based your decision on pulling the trigger. If you see them blade their body and get into a fighting stance, or if the person is known to you as a heavyweight boxer are all things that can show a person (AT THE TIME BEFORE YOU PULL THE TRIGGER) had a advantage over you. Again a attackers 10 black belts wont be a defense for you in court (and likely wont be able to be admitted into evidence) if you never said they got into a martial arts style position/did martial arts moves prior to you pulling the trigger. This is why it is absolutely dangerous to base your pulling of the trigger on possibilites. You must base pulling the trigger on the facts you have, which means if you don't see anything that suggests they have more capability then a set of fists, you better think hard on pulling the trigger. Just because they don't listen to you when you say "don't come here I have a gun" doesn't prove that they could have caused you death or great bodily harm.


What really sums up disparity of force in the simplest concept I can think of is this: Think of mike tyson shooting and claiming self defense when a man who came up to him with his fists up saying he was going to kick mikes butt. That, although on the very end of the disparity of force, is a good example. For larger guys like myself (6'5" 290 and a lot of muscle) disparity of force is not on my side as much as a guy half my size. That doesn't mean I can't pull the trigger in any situation. I more then most have to be more conscience of disparity of force.

EDIT:

I would like to include this tidbit. A person with their fists up and saying I am going to kick your butt is considered unarmed. However if a man approaches you with their hand in their pocket (and you can see a buldge of some sort) and they say I am going to shoot/stab you, or even wreck your day, it is reasonable to think they are armed. The honest truth is a knife or gun is byfarm more capable of causing death or great bodily harm then a fist. There are millions of fist fights every year with very few ending in death, which is why it is generally deemed that using deadly force against fists is considered illegal unless you consider the disparity of force.

bigwinchesterfan
December 20, 2008, 10:12 PM
Well... Bruce Lee was very small and skinny... How would you know the attackant is skilled in man-to-man fighting?

I´ve studied martial arts for a while, and I can tell you that bending the knees a little and hands down but elbows bent as well is all the guard position you need when about to get into combat: won´t let your enemy realize you know what you´re doing, but will keep your limbs in an anatomic position to "blast" out a defense/attack if needed.

Never underestimate anybody.

AKGuy
December 20, 2008, 10:14 PM
Well, I know that I never said that ya can't kill an unarmed attacker with a gun/whatever...

...but if the attacker is unarmed and you know/believe the attacker to be unarmed, then your burden of proof for convincing a judge/jury that you had no escape and/or no other recourse 'cept to kill just skyrocketed...

What I said, what I believe, and what I advocate adherence to is folks making sure in advance of the "god forbid" situation ever rearing its ugly head that they know exactly how/when/why YOU personally would take someone's life AND understand how your own rules mesh (or not, as the case may be for some overzealous folks) with whatever law(s) are going to be the terms under which your action(s) will be scrutinized and judged...and except for true disparities of force, "unarmed-ness" really does exponentially raise the stakes, burden of proof, etc for the person asserting self-defense...

Again, I have no specific reason to believe that the OP is referring to anything that I have said personally, but given the vagaries of the concepts at hand compared to the seriousness of the potential outcomes it's important to adhere to some pretty restrictive self-imposed parameters for use of force if you are going to avoid becoming a victim for a second time in connection with whatever incident trips off the whole thing...

GregGry
December 20, 2008, 10:20 PM
((((Thank you. Exactly right.)))


If thats your line of thinking then your really going to have to get sharp on disparity of force. You saying a person was skilled and could have caused you great bodily harm when all they had were their fists up is going to be a very hard buy to a jury. Unless they are considerably bigger then you, you see them blade their body/do other sorts of body adjustment that would suggest a high level of training, or if you know the person to be a highly skilled martial arts master. Based just on being met by a smaller or smiliar sized person with just their fists isn't enough for you to be able to legaly pull the trigger. What guns they have in their back pocket, the 30 knifes in their socks, and the fact they told someone else they were going to kill someone doesn't matter unless you knew of that prior to pulling the trigger.

If your on the stand and you justify what you did by saying "They could have had a gun", "all they did is put their fists up", "their mental state wasn't good" etc your good as convicted. To win your case you have to have proof, not your assumptions. If you made an assumption that they had a gun based on the fact they had their hand in their pocket and you saw a buldge there is a hell of a lot better then saying "since they still came at me after I told them I had a gun, they must have been armed". So they had their fists up, how does that prove that you are risking death or great bodily harm, especially if they are smaller then you? You really need to think of these things if you expect to remain a free man after pulling the trigger.

GregGry
December 20, 2008, 10:25 PM
Well... Bruce Lee was very small and skinny... How would you know the attackant is skilled in man-to-man fighting?

He would likely get into a offensive/defensive martial arts position, and he would make moves/kick like you would expect someone with martial arts training would. Or if such a person was smart they wouldn't let on until it was to late. You can't base your pulling the trigger on the chance the person is that .05% of the population that is able to kill you with their bare hands before you even know whats going on, since you will wrongfully use deadly force. Besides that .05% you wont have to worry about because if they want you dead you wont even remotely be able to pull a gun out before its over.

Bubba613
December 20, 2008, 10:48 PM
So they had their fists up, how does that prove that you are risking death or great bodily harm, especially if they are smaller then you? You really need to think of these things if you expect to remain a free man after pulling the trigger.
Thanks.
I'd really rather not be lying in a hospital or morgue thinking what great advice I got from a guy on THR.
You ought to review the laws in your state and ask an attorney for advice.

GregGry
December 20, 2008, 11:50 PM
Thanks.
I'd really rather not be lying in a hospital or morgue thinking what great advice I got from a guy on THR.
You ought to review the laws in your state and ask an attorney for advice.

My advice is the legal end of using self defense, and is going to be accurate in every state I know of, unless a state law is more restrictive then what I have stated. Such int he case if a state does not permit the use of deadly force against anyone who is unarmed regardless of the circumstances (AKA completely rejects disparity of force). Or in the case of states where you can legally shoot someone that is on your property regardless of being threatened.

It seems I have established that you would shoot someone provided they threatened you in any manner from a gun, or just their fists. If you indeed shoot somoene that is unarmed, then you are really going to have a uphill battle since you aren't going to be able to give a reason what you did what you did other then "they might have been armed", "they could have caused me great bodily harm or death". How exactly would a smaller person cause you great bodily harm or death with their fists? Prior to pulling the trigger you better be able to say that they where blading their body, moving like a martial arts master, or you knew they were a trained fighter.

If you can't establish a reason to pull the trigger on a unarmed man other then you were afraid for your life (And no evidence that a reasonble person would believe such as them blading their body, being much bigger then you, there being 4 vs you, AKA you can't establish any disparity of force) then you should be found guilty. It seems to me you base your entire pontential case on why you used deadly force on the fact someone COULD use deadly force against you, and not that you see the signs (aka facts) that WARRANT the use of deadly force. If you honestly think that then you might as well pull the trigger the second someone says a bad word to you.

The problem with what I just said is that facts on the street don't matter, anyone can pull the trigger. In the court facts are all a jury has to decide your fate with. When your facts show that there was no disparity of force when you pulled the trigger, then you will be found guilty.

Rodentman
December 21, 2008, 12:06 AM
I am a BK amputee and have a noticeable limp. Maybe that makes me a target, maybe not. But, since I cannot run, I think I'd have disparity of force in my favor.

Art Eatman
December 21, 2008, 12:25 AM
Looks to me like the OP spoke of being attacked, and with options as to fairly obvious disparity of force.

That sez that "confrontation" is off topic, since that's not involved.

My views on the subject are pretty much colored by Texas law and observations of court decisions. By and large, if you're contemplating any sort of gratuitous assault on somebody down here, the odds are, you better hadn't oughta.

divemedic
December 21, 2008, 07:15 AM
The law in every state in which I am aware states that deadly force is that amount of force which would cause death or serious bodily harm. Serious bodily harm includes broken long bones, concussion, broken facial bones, etc. So, if a person is confronting you with deadly force, you may respond in kind.

You will have problems if you shoot someone half your size, unless you are disabled or the person you shoot is an MMA master.

The law in every state of which I am aware allows (at the very least) the use of deadly force to protect oneself if the person employing the force reasonably believes that the force is being used to defend himself or herself from another's use of imminent deadly force.

You do not have to wait for the other to actually attack, but you do have to wait for the exchange of words to progress to the point where an attack is imminent. Where that point lies is the reason why attorneys who specialize in this field of law make their living. There are MOUNTAINS of case law covering this topic.

mgkdrgn
December 21, 2008, 09:45 AM
and he would make moves/kick like you would expect someone with martial arts training would.

And by the time you saw him do that (assuming you saw it at all) you would be on the ground unconscious.

Like I said before, if I draw to the ready, and they continue to advance, BANG!

I'll take judged by 12 over carried by 6 any day of the week (esp in South Carolina)

Kleanbore
December 21, 2008, 01:59 PM
From mgkdragon: If someone comes at me, threatening, cursing, etc, I will perceive them as a threat and draw.

As Art Eatman pointed out, the OP mentioned an actual attack. However, the above statement makes it clear that our members should understand that in most places, producing a weapon absent actual justification to use it is unlawful.

So--what constitutes justification to use a weapon?

The following is worth bookmarking, printing, reading, re-reading, and keeping handy.

http://www.useofforce.us/

The following is intended for attorneys and is a little less readable by the lay person, but I think it is also very valuable:

http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Click=


Here is a relevant excerpt (emphasis added)

“It is well settled that, if a man is attacked, he has the right to defend himself. If the attack is of such character that, and made under such circumstances, as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will effectively prevent the harm, he has the right to kill the assailant.”
– Com. v. Barnacle, 134 Mass. 215, 215 (1883).

In the vast majority of states, the basic elements of self-defense by means of deadly force (firearms and other weapons) include:
The client had reasonable grounds to believe he or she was in imminent danger of death or serious bodily harm. Heated words, vague threats, and the possibility of future harm are not enough. The harm must be serious and imminent.
The client actually believed that he or she, or a third person, was in such imminent danger. Establishing this subjective belief often requires the client to testify.
The danger was such that the client could only save himself or herself by the use of deadly force. Some states do not require the defendant to retreat, even if he or she can do so safely.1 Most states do not require the defendant to retreat if he is in his own home defending against someone who is unlawfully present. Law enforcement officers are not required to retreat.
The client had to use no more force than was necessary in all the circumstances of the case.
The standards for the use of non-deadly force (bare hands and feet) and force used in the defense of property are usually similar.
At a minimum, the defense must include some evidence, generally viewed in the light most favorable to the defense, on each of these factors in order to receive an appropriate jury instruction.

I hope this proves helpful.

GregGry
December 21, 2008, 03:52 PM
And by the time you saw him do that (assuming you saw it at all) you would be on the ground unconscious.

Like I said before, if I draw to the ready, and they continue to advance, BANG!

I'll take judged by 12 over carried by 6 any day of the week (esp in South Carolina)


Let me ask you this, why would you pull the trigger when someone is approaching you absent of any weapons in the hands, and statments that suggest they are armed? If your only reason for pulling the trigger on them is because you had your gun drawn and they didn't listen to what you said, your going to be found guilty. The police can't shoot people for not listening, and neither can you. You have the burden of proving what you did was reasonable, remember that. Absent of disparity of force factors, you wont have anything to use in your defense if you shot a unarmed man that has his dukes up.

It seems a lot of people on here don't realize that just the facts of what happened up to you pulling the trigger matter in court. If you claim the person could have killed you/caused great bodily harm (And if actions that could have caused that didn't happen its nothing more then speculation, and isn't a defense) you better be able to articulate why you thought that. The fact you pulled the trigger proves you thought you were in some sort of danger, but it doesn't prove to a jury that what you did was reasonable.

To try to clarify this:

Statements in court:

You: I was afraid he was armed, and I was afraid for my life, so I pulled the trigger.

Lawyer: You said that you saw his hands in the air, and that they were empty of weapons.

You: yes they were empty but he could have killed me with his fists.

Lawyer: Do you expect the jury to believe that you were at risk of death, horrible disfigurement, etc by the man you shot, who was half your size, and not a trained fighter?

You: there was no way I knew he wasn't a trained fighter

Lawyer: Sir, are you telling the jury that you shot the man whos half your sized because of the possibility of death or great bodily harm, but you can't give any reason as to how that could have happened?

You: No, 1 person with his fists can kill you, he could have had a knife as well.

Lawyer, did you see a knife?

you: no but he could have had one

Lawyer: So you base your defense on what weapons the man could have had, that you obviously didn't see.

You: I was afraid for my life so I pulled the trigger

Lawyer: Sir, it seems apparent to me that you shot my client without establishing that you were in danger of being killed or suffer great bodily harm. You pulled the trigger based on what you thought could happen, and not what actually happened prior to you shooting my client. The law requires you to base your decision to use deadly force on the facts prior to pulling the trigger. You failed to do that, and as a result you unlawfully shot and killed my client. I don't see how anyone would find your actions reasonable.

mgkdrgn
December 21, 2008, 04:18 PM
So, what you are telling me is that legally, I have to allow myself to be attacked and beaten/kicked/stomped to a bloody pulp?

Sorry, not going down that road.

BANG!

I'm still here, and that's the whole point.

I'm over 50, overweight, high bp, never played at sports much, never in the military, no fighting skills and don't plan on getting any. If I get in a hand to hand fight, I'm going to loose, badly. If someone continues to advance on me AFTER I've drawn and warned, I will conclude they -do- intend to do me grievous bodily harm and will act to stop/prevent that attack.

And by the time you saw him do that (assuming you saw it at all) you would be on the ground unconscious.

Like I said before, if I draw to the ready, and they continue to advance, BANG!

I'll take judged by 12 over carried by 6 any day of the week (esp in South Carolina)


Let me ask you this, why would you pull the trigger when someone is approaching you absent of any weapons in the hands, and statments that suggest they are armed? If your only reason for pulling the trigger on them is because you had your gun drawn and they didn't listen to what you said, your going to be found guilty. The police can't shoot people for not listening, and neither can you. You have the burden of proving what you did was reasonable, remember that. Absent of disparity of force factors, you wont have anything to use in your defense if you shot a unarmed man that has his dukes up.

It seems a lot of people on here don't realize that just the facts of what happened up to you pulling the trigger matter in court. If you claim the person could have killed you/caused great bodily harm (And if actions that could have caused that didn't happen its nothing more then speculation, and isn't a defense) you better be able to articulate why you thought that. The fact you pulled the trigger proves you thought you were in some sort of danger, but it doesn't prove to a jury that what you did was reasonable.

To try to clarify this:

Statements in court:

You: I was afraid he was armed, and I was afraid for my life, so I pulled the trigger.

Lawyer: You said that you saw his hands in the air, and that they were empty of weapons.

You: yes they were empty but he could have killed me with his fists.

Lawyer: Do you expect the jury to believe that you were at risk of death, horrible disfigurement, etc by the man you shot, who was half your size, and not a trained fighter?

You: there was no way I knew he wasn't a trained fighter

Lawyer: Sir, are you telling the jury that you shot the man whos half your sized because of the possibility of death or great bodily harm, but you can't give any reason as to how that could have happened?

You: No, 1 person with his fists can kill you, he could have had a knife as well.

Lawyer, did you see a knife?

you: no but he could have had one

Lawyer: So you base your defense on what weapons the man could have had, that you obviously didn't see.

You: I was afraid for my life so I pulled the trigger

Lawyer: Sir, it seems apparent to me that you shot my client without establishing that you were in danger of being killed or suffer great bodily harm. You pulled the trigger based on what you thought could happen, and not what actually happened prior to you shooting my client. The law requires you to base your decision to use deadly force on the facts prior to pulling the trigger. You failed to do that, and as a result you unlawfully shot and killed my client. I don't see how anyone would find your actions reasonable.

Frank Ettin
December 21, 2008, 04:47 PM
...It seems a lot of people on here don't realize that just the facts of what happened up to you pulling the trigger matter in court. If you claim the person could have killed you/caused great bodily harm (And if actions that could have caused that didn't happen its nothing more then speculation, and isn't a defense) you better be able to articulate why you thought that. The fact you pulled the trigger proves you thought you were in some sort of danger, but it doesn't prove to a jury that what you did was reasonable....
An excellent summary.

GregGry
December 21, 2008, 04:57 PM
If someone continues to advance on me AFTER I've drawn and warned, I will conclude they -do- intend to do me grievous bodily harm and will act to stop/prevent that attack.

You must realized that although you might think a attackers failure to obey orders means that they will cause you great bodily harm/death, a jury will likely not. In that situation your basing your opinion on pulling the trigger on the fact they didn't listen to you. One of two things has to happen, either A) you have to prove that they were directly doing something that could cause you death or great bodily harm (AKA they have a gun or knife or B) you have to prove that what you saw was enough evidence that a reasonable person would consider the persons actions capable of causing you death or great bodily harm. You very well might be justfied in using deadly force when being confronted with a person with their fists up. However you have to articulate why you based you decision on using deadly force in a way that someone will be able to understand it other then the fact you were afraid for you life.

With that said you would be able to claim disparity of force for thses reasons: Age, weight, health conditions, lack of training, etc. It would be far far easier for someone to hurt you then me with their fists.

Bubba613
December 21, 2008, 05:00 PM
You: I was afraid for my life so I pulled the trigger

Lawyer: Sir, it seems apparent to me that you shot my client without establishing that you were in danger of being killed or suffer great bodily harm. You pulled the trigger based on what you thought could happen, and not what actually happened prior to you shooting my client. The law requires you to base your decision to use deadly force on the facts prior to pulling the trigger. You failed to do that, and as a result you unlawfully shot and killed my client. I don't see how anyone would find your actions reasonable.

You: Eff you, butthead. When someone threatens to kill me and makes menacing moves within 20 feet to do so I can only assume he means to do just what he said he was going to do. You want to sit on your candy ass and ask stupid questions go right ahead. I'm outta here.

Judge: Excellent point. Case dismissed. Mr. Attorney, report to jail for 30 days for contempt for wasting the court's time on this trash.

I can also write creatively!:)

Frank Ettin
December 21, 2008, 05:14 PM
I can also write creatively
Except that what GregGry wrote is a lot like the way a cross examination goes -- unlike your improbable story.

Nooblet
December 21, 2008, 05:24 PM
Better judged by twelve than carried by six.

Bubba613
December 21, 2008, 05:27 PM
Except that what GregGry wrote is a lot like the way a cross examination goes -- unlike your improbable story.

Unfortunately you're probably right, esp in CA.
But GreGry seems to maintain that you have to let someone assault and batter you first before you can take any action. I don't think that's the case. It certainly wasn't taught that way in our state handgun carry course.

mljdeckard
December 21, 2008, 05:32 PM
You can be in a situation in the heat of the moment where you really think the only option is to kill someone. Maybe you're right, maybe you're not. Maybe after the adrenaline subsides, there were other options that became apparent. You can HOPE that the DA and the jury see it the same way you did, but when you say, you would rather be judged than killed, you may well get your wish. All of these maybes and hopefullys are grey areas which may go in your favor or be used against you.

Everyone who carries should condition themselves to legal realities as well as situational awareness. You can't take it for granted that everyone involved will automatically assume you did the right thing for the right reason. Just like you need to live your life in a way that reduces the likelihood you will ever have to pull in the first place, by avoiding bad places and situations, if you have bad people, relationships, history, grudges, ec in your life, it's going to increase the likelihood that the DA isn't going to believe the first version of the story and dig for more.

Kleanbore
December 21, 2008, 05:44 PM
From Bubba613: GregGry seems to maintain that you have to let someone assault and batter you first before you can take any action. I don't think that's the case.

Nor do I.

It certainly wasn't taught that way in our state handgun carry course.

Nor in mine.

From mljdeckard:
Everyone who carries should condition themselves to legal realities as well as situational awareness. You can't take it for granted that everyone involved will automatically assume you did the right thing for the right reason. Just like you need to live your life in a way that reduces the likelihood you will ever have to pull in the first place, by avoiding bad places and situations, if you have bad people, relationships, history, grudges, ec in your life, it's going to increase the likelihood that the DA isn't going to believe the first version of the story and dig for more.

You can say that again!

The legal portion of my CCW training was invaluable, but to me it was not sufficient to reduce my level of apprehension to a level of comfort. So, I've kept digging. The two links a provided with my previous post are not exactly Dick and Jane level but I believe they are well worth the effort to read them.

One other thing, and I think this came from Fiddletown in another string: it is very important to train and practice, to get the time required for the draw down and to be able to get shots on the target consistently and quickly. That will enable you to put in practice what you know you need to do with less likelihood of drawing too soon, drawing too late, or hitting a bystander.

cassandrasdaddy
December 21, 2008, 06:14 PM
harold fish

AKGuy
December 21, 2008, 06:30 PM
All I've got to say is...glib sayings about judged by twelve, carried by six, and all that kind of stuff will do absolutely NOTHING to make one's prison shower rape 10 years after everyone but your family has forgotten all about you and your self righteousness any more pleasant or palatable...shooting an unarmed person is a darned hard row to hoe, so be careful!

GregGry
December 21, 2008, 06:48 PM
When someone threatens to kill me and makes menacing moves within 20 feet to do so I can only assume he means to do just what he said he was going to do. You want to sit on your candy ass and ask stupid questions go right ahead. I'm outta here.

Anyone can threaten to kill you but if they don't have the potential means to do so you can't legally shoot them. Menacing moves could mean anything. You have to paint a picture of what exactly they did that made you shoot them. If you have no disparity of force on your side your done for in the court system.

Honestly bubba, you need to answer this question. A 100 pound man says he is going to kick your butt. He starts toward you flaling his arms like a windmill AKA catfight style. Would you shoot him assuming that you can see his hands the entire time, and you see no weapons at all? If you would then you obviously don't believe is disparity of force, which is a problem because jurys will. It is unreasonble to think that a 100 pound person is capable of causing death or great bodily harm to a person twice their size with a even remote probability. I can have my 100 pound friends punch me for 5 minutes stright and I will not be seriously hurt, with me just covering my face.



But GreGry seems to maintain that you have to let someone assault and batter you first before you can take any action. I don't think that's the case. It certainly wasn't taught that way in our state handgun carry course. When have I ever said that? I said that you have to have make a decision based on facts before you pull the trigger, not possbilities. Do you understand how important that is and what the difference is between thinking your life is in danger and actually having your life in danger? Did your state carry class not mention disparity of force at all, and how if the person your up against has little to no ability based on the facts you have to cause you death or great bodily harm, that you can't pull the trigger and be justified? You can believe your life was in danger but if the facts say otherwise you will be convicted. Didn't they mention that you have to use the FACTS present prior to pulling the trigger, not assumptions/beliefs such as they must be armed, (If you have no positive identification of a weapon then you can shoot based on the idea they might be armed)?

What I am asking you to do is use common sense. I am asking you to base your decision to shoot on what the facts tell you up until you pull the trigger. You have to not only be in fear of someone causing you great bodily harm or death, but the facts have to point that the person can reasonably cause great bodily harm or death with a high probability. You seem to want to ingnore the concept of a person actually being able to cause you great bodily harm or death with a high probability. That is 100 times more crucial when your attacker is unarmed.

Bubba613
December 21, 2008, 07:01 PM
Based on your reasoning you would have to wait until someone actually produced a gun, pointed it at you, and pulled the trigger before you could respond. After all, you don't know what he's going to do.
Further, half the cops who followed some guy down a dark alley would be sitting in jail if what you said was true. After all, they couldn't really see the guy had a weapon pointed at them.

In your scenario, yup I sure would. If I were on the jury I would vote to acquit anyone in that situation as well. Kick a guy in the head enough times you can sure inflict death or serious bodily harm.

GregGry
December 21, 2008, 07:10 PM
Also, I am not going to argue that a person that says I am going to kick your butt isn't serious about a statment like that. I am not going to argue that a person that says that after a period of time might be able to beat you to a bloody pulp. I am trying to get across that you can't just shoot such a person and be justified unless you can prove their actions (AKA the facts) ACTUALLY put you at risk of great bodily harm or death (Great bodily harm is more then just a broken nose by the way). Legally it is assumed that deadly force will only be used to combat deadly force. Fists can be deadly force based on the rules of disparity of force, however your fitness/medical conditions/training/etc wil raise or lower the chances of someone to be able to actualy cause you death or great bodily harm with your fists.

If you chose to reject disparity of force or you don't believe in it, you just lost the only thing that is going to save you if you defend yourself against a unarmed person. Disparity of force is 90% for protecting people that defend themselves and 10% a check and balance system. That 10% is critical if you wrongfully judge someones ability to cause you death or great bodily harm, because it will convict you.

cassandrasdaddy
December 21, 2008, 07:12 PM
http://www.haroldfishdefense.org/

GregGry
December 21, 2008, 07:22 PM
Based on your reasoning you would have to wait until someone actually produced a gun, pointed it at you, and pulled the trigger before you could respond. After all, you don't know what he's going to do.
Further, half the cops who followed some guy down a dark alley would be sitting in jail if what you said was true. After all, they couldn't really see the guy had a weapon pointed at them.

In your scenario, yup I sure would. If I were on the jury I would vote to acquit anyone in that situation as well. Kick a guy in the head enough times you can sure inflict death or serious bodily harm.

Which is more reasonable, believing a man who has his hand in his pocket (and you can see a buldge) that says I am going to kill you, or a man with his fists up that says he is going to kick your butt? Obviously the first one would warrant deadly force way before the person with his fists up.

My situation that you refuse to answer is disparity of force in a more extreme case, however it is a possibility. You seem unable to grasp the concept that physical size of a person is tied with the force they can generate. What I want to know is how exactly are you going to convince a jury that a unarmed 100 pound man that was fighting catfight style, ever put you are a significant risk of bodily harm or death? Not based on the fact you are afraid they could, but based on facts. How many experts do you think will testify that a 100 pound man could have caused you death with just their fists?

Bubba613
December 21, 2008, 07:25 PM
For the right price, all of them.

I think this discussion has reached a point of diminishing returns. Since you are in WI CCW is a non issue. If they ever pass it, don't carry a weapon as some unarmed guy is going to sucker punch you to the ground, grab your weapon and shoot your butt with it while you're still wondering whether he really means to do you harm.
Me, I'll shoot the guy first when I can articulate a reasonable fear.
Good luck out there.

cassandrasdaddy
December 21, 2008, 07:30 PM
say hi to harold for us

mljdeckard
December 21, 2008, 07:35 PM
The Harold Fish case was so flawed that the circumstances of the shooting were almost irrelevant. It's a case of a prosecutor doing wrong things for the wrong reason, and a judge letting him get away with it. These things are beyond a defendant's control. The law has been changed, and he will likely win that appeal. If I walk around applying the Harold Fish case to everything I do in life, I would never leave the house.

cassandrasdaddy
December 21, 2008, 07:40 PM
you forgot the jury and overturned or not fish's legal bills are a half mill

mljdeckard
December 21, 2008, 07:47 PM
But I'm still not living my life around it.

cassandrasdaddy
December 21, 2008, 07:52 PM
he is whats he been away for? 5 years so far? wonder if he'd rather have sidestepped the guy at least once. maybe he'll do a book when he gets out

bdickens
December 21, 2008, 09:48 PM
One thing I know for sure is that I'm not going to hire Mr. Fish's incompetent boob of a lawyer!

cassandrasdaddy
December 21, 2008, 10:09 PM
fish picked him

cassandrasdaddy
December 21, 2008, 10:13 PM
One thing I know for sure is that I'm not going to hire Mr. Fish's incompetent boob of a lawyer!


in what way was he/she incompetent?

GregGry
December 21, 2008, 10:29 PM
For the right price, all of them.

I think this discussion has reached a point of diminishing returns. Since you are in WI CCW is a non issue. If they ever pass it, don't carry a weapon as some unarmed guy is going to sucker punch you to the ground, grab your weapon and shoot your butt with it while you're still wondering whether he really means to do you harm.
Me, I'll shoot the guy first when I can articulate a reasonable fear.
Good luck out there.

I am a LEO and I have full CCW powers in the entire state. I have 50 credits dealing just with law, use of force, rules of evidence, along with more then a few years on the force. I work with lawyers, DAs, and court systems. Not only do I have to take my saftey into consideration, but my legal standing. What is your expertise on the use of force?

I can't shoot a unarmed man unless disparity of force is on my side, and neither can you. That is if you want to stay out of jail. I fail to see how someone can't grasp the concept that just because someone that is threating you with their fists, doesn't mean you can shoot them. Are they built like mike tyson, or are then a anorexic person that couldn't give you a bruise if they tried? Assume both said they were going to kick your butt, and were dead serious. It seems it doesn't matter, you would shoot either.

Good luck being on the stand with the only defense is that you were afraid for your life. As evidence after evidence gets stacked up on why your life wasn't in danger in the least (all the time your sitting on the stand with the opinion your life was in danger). Thats the unfortunate part of self defense that most classes never teach, the double standard of reasonableness. You can think anything you want, but if others don't think what you chose to do is reasonable, then your going away. Any statements you make that ammount to "they could have been a martial arts master, they could have had 10 knives, 10 guns, had I not pulled the trigger I could have been dropped by that unarmed person" will just show to a jury that your unreasonble. After all unless you saw signs of any of that prior to pulling the trigger, it never existed as far as the court is concerned. You can't make up things to try to use as evidence of disparity of force, and everything that you didn't see or that didn't happen is as good as fairy dust in a trial.

Bubba613
December 21, 2008, 10:40 PM
I am a LEO and I have full CCW powers in the entire state.
Ah. That explains it.

cassandrasdaddy
December 21, 2008, 10:51 PM
theres some irony here vis a vis screen names but i can't high road it pity that

GregGry
December 21, 2008, 11:16 PM
Ah. That explains it.

Explains what?

If anyone doesn't believe what I have said, then I would suggest you take law classes, sit and hear actual court cases, and talk with people who have had to defend themselves.

The fact is one persons fear is not enough to stay out of prison, because in the end your going to have to convince a jury you made the right choice. Don't even think for a moment that a shoot involving a armed person shooting a unarmed person wont be brought to trial. There are way to many variables that aren't clear to write it off.

Nooblet
December 21, 2008, 11:58 PM
All I've got to say is...glib sayings about judged by twelve, carried by six, and all that kind of stuff will do absolutely NOTHING to make one's prison shower rape 10 years after everyone but your family has forgotten all about you and your self righteousness any more pleasant or palatable...shooting an unarmed person is a darned hard row to hoe, so be careful!


I meant it in a way that if you truly believe your life to be in danger, don't hesitate.

Frank Ettin
December 22, 2008, 12:47 AM
...Unfortunately you're probably right, esp in CA...
Cross examination is the pretty much the same everywhere in the U. S.

...But GreGry seems to maintain that you have to let someone assault and batter you first before you can take any action. I don't think that's the case. It certainly wasn't taught that way in our state handgun carry course.
GregGry never said that. That's not what I was taught either. And that's not the case.

But the point is that you will still have to convince a jury that a reasonable person in the same situation would fear for his life. The test is based on a reasonable person -- not your subjective, personal fear. That's a tough sell if you are bigger than the guy you shot.

There's no free pass here. It's all very situation specific, and the factors are cumulative. So if you're basing your justification on disparity of force, the older, sicker, weaker, smaller you are than your assailant, the more likely a jury will be to side with you. But the younger, stronger, bigger, healthier you are than your assailant, the less likely a jury will be to take your side. That's just reality.

So no one is saying that a little guy can't hurt you. But if you're attacked by an unarmed little guy, and you have a gun, it's probably not a bad idea to have a Plan B.

mljdeckard
December 22, 2008, 02:21 AM
Gregry is right. If you want your eyes opened, take some classes. All kinds of stuff you thought you knew is flat wrong. even if you heard it from a cop. You have to take it upon yourself to learn the law and be responsible for it. When I started studying criminal justice at a community college, my professor was a cop who became a prosecutor who became a judge who retired and worked defense law. There is good info if you bother to go get it.

divemedic
December 22, 2008, 09:35 AM
Again, I would like to point out that the law does not say that you must be in fear for your life or of receiving serious bodily harm to employ deadly force. The law says you must be in REASONABLE fear of life or serious bodily harm. That one word makes a HUGE difference.

mljdeckard
December 22, 2008, 11:48 AM
Bur 'reasonable', being a subjective term, must be estimated with a STRONG degree of caution.

Bubba613
December 22, 2008, 12:05 PM
Bur 'reasonable', being a subjective term, must be estimated with a STRONG degree of caution.
You're right. What is reasonable to one person isn't to another. There are a million factors that will go into whether a course of action was reasonable or not. I think starting with the mindset of "the second to last thing I want to do is shoot someone" (the last being to get shot yourself) is a good idea.

divemedic
December 22, 2008, 12:13 PM
"Reasonable" has actually been pretty well established, and applies to far more than just self defense and use of force.

deanf
December 22, 2008, 12:26 PM
Read Defending the Self Defense Case (http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Click=) by Lisa J. Steele.

Frank Ettin
December 22, 2008, 12:46 PM
Bur 'reasonable', being a subjective term,...
...What is reasonable to one person isn't to another....
In the law, the standard of reasonableness is not all that subjective. The legal measure of whether an action or perception is reasonable is often stated as based on "a reasonable and prudent person in like circumstances and with like knowledge" or words to that effect.

Bubba613
December 22, 2008, 02:16 PM
That's still pretty subjective.
Is it reasonable and prudent to go around with a Glock 19 with 2 extra mags, folding knife, and maybe kel tec for backup, for the average suburban Joe?
I would say no.
But there are probably plenty of people here who think that's perfectly OK. Maybe even under-armed.

Frank Ettin
December 22, 2008, 02:42 PM
...Is it reasonable and prudent to go around with a Glock 19 with 2 extra mags, folding knife, and maybe kel tec for backup, for the average suburban Joe?
I would say no....
And he very well might be on your jury.

divemedic
December 22, 2008, 05:09 PM
You guys are thinking like gunnies. Reasonable will be judged by Suzie Soccermom. The kind of people who freak out when they find out you carried a gun to Disneyworld. The kind who would freak out to know that you have a gun while in line behind her at McDonald's.

People who carry a gun on a regular basis are in a very small minority. Even if one somehow got a summons on the day of your trial, the odds of them making it through voir dire are slim indeed. I would not depend on a gunnie in my jury as my legal defense.

Kleanbore
December 22, 2008, 05:32 PM
From divemedic: People who carry a gun on a regular basis are in a very small minority. Even if one somehow got a summons on the day of your trial, the odds of them making it through voir dire are slim indeed. I would not depend on a gunnie in my jury as my legal defense.

Fiddletown has made that point before in similar discussions. People have said "any gun person on the jury would vote to acquit" and Fiddletown has pointed out that such people would be most unlikely to be seated on a jury in a case involving a shooting.

Massad Ayoob wrote of a case in which the defendant had a loaded Model 1911 with two loaded spare magazines. The armament did become an issue, but as an expert witness, Mas explained to the jury that the use of two extra magazines was required in the kind of competition shooting in which the shooter, a veteran who had carried a 1911 while in the service, routinely engaged. The defendant prevailed.

I personally would not like to have to explain why I was carrying a Glock with two extra magazines, a back-up gun, and a folding knife to a jury in an area in which the idea of concealed carry alone raises alarm in more than half of the population.

Bubba613
December 22, 2008, 06:54 PM
And he very well might be on your jury.
More likely I would be on his. And he would be sorry because if it came out that's how someone went around every day I would be immediately ill-disposed. And I'm a gun guy.
But that's a topic for another discussion.

Frank Ettin
December 22, 2008, 08:36 PM
More likely I would be on his....
I wonder how you figure that, but whatever.

GregGry
December 23, 2008, 02:11 AM
Is it reasonable and prudent to go around with a Glock 19 with 2 extra mags, folding knife, and maybe kel tec for backup, for the average suburban Joe?

It would be unlikely that the folding knife, back up gun, or anything else the person was carrying will be allowed into evidence, (therefore you should never know about it when you make your decision). The fact you had 20 other weapons on you doesn't deal with the reason you are in court in the first place.


More likely I would be on his. And he would be sorry because if it came out that's how someone went around every day I would be immediately ill-disposed. And I'm a gun guy.
But that's a topic for another discussion.

I see a trend with you basing your judgements on your own opinions and fears, and not on facts. 1 gun and 46 rounds of ammo isn't that significant, most police officers are at at least at that or more. Whats the difference between 10 rounds or 46? More rounds doesn't make a self defense shoot good or bad. Many firearms come with 2 or 3 magazines, if you can carry them why wouldn't you? Most people probably wouldn't carry 3 full mags (1 in the gun 2 on them) because that is a lot of weight to be lugging around.

Is it reasonable and prudent

When there is no law regarding the quantity of ammo, caliber of your weapon, or how many weapons you carry, there is no standard of reasonableness (Regarding law) that applies. When there are restrictions they are pretty clear cut and there isn't going to be much left for the reasonable standard. However, how one uses their firearm is open to the reasonable standard, which helps keep people accountable for using deadly force against other people that posed no legit threat to their life. That is unless its legal to use deadly force against someone that (given the circumstances up until one pulled the trigger) did not put them at a substantial danger of being killed or of great bodily harm.

Kleanbore
December 23, 2008, 09:55 AM
From GrgGry: It would be unlikely that the folding knife, back up gun, or anything else the person was carrying will be allowed into evidence, (therefore you should never know about it when you make your decision). The fact you had 20 other weapons on you doesn't deal with the reason you are in court in the first place.

I cannot offer a legal opinion, but I do not think I would rely on that. If in the circumstances at hand the prosecution's case depends on establishing in the minds of the jurors that the defendant was predisposed to shoot someone at the time of the shooting, I should think the judge might well admit that information as relevant.

If the question were to simply hinge simply on whether the defendant had reason to believe that he was really in imminent danger at the time of the shooting, and/or on whether he should have retreated or had used excessive force, your point would be well taken, but absent any witnesses, or any evidence that the victim had even approached the defendant, I should think that the judge would agree that the defendant's state of mind at the time of the homicide would be very relevant indeed.

I see a trend with you basing your judgements on your own opinions and fears, and not on facts.

The judge will most certainly instruct the jury to base its decision on the evidence and the law, but in a trial in which there are few facts in evidence other than the fact of the shooting, and in which the defendant's case is dependent almost entirely upon his own testimony, the jurors' opinions and fears may be more determinative than they should be. How about the juror who was concerned about the choice of ammunition in the Fish case?

Art Eatman
December 23, 2008, 01:51 PM
A general comment, from reading through this thread: State laws vary a lot as to what's allowable as self-defense behavior and what is not. Some states have castle-doctrine attitudes and others have the duty-to-retreat attitudes built into their legal codes.

Then you have the attitudes of "sub-cultures" as to such things as "reasonable". What may be seen as reasonable in a rural area might not be seen that way in some cities. (From some jury experience of my own.)

So, keep in mind that some of the points made here could well be correct in one state but not correct in another...

Art

divemedic
December 23, 2008, 05:12 PM
I see a trend with you basing your judgements on your own opinions and fears, and not on facts.

Your fears, your state of mind, and to what extent those were reasonable are very relevant to a self defense shooting situation. Remember, in order to use force against another, you must be in reasonable fear that the same level of force will imminently and unlawfully be used against you.

cassandrasdaddy
December 23, 2008, 05:36 PM
Your fears, your state of mind, and to what extent those were reasonable are very relevant to a self defense shooting situation. Remember, in order to use force against another, you must be in reasonable fear that the same level of force will imminently and unlawfully be used against you.


and you gotta be able to sell that to a jury

mbt2001
December 23, 2008, 06:42 PM
I think that the position of the law is did the person BELIEVE that they were in danger of grievous injury / death and is that belief correspondent to what a REASONABLE MAN would believe?

Sure, there are situation where shooting an un-armed "assailant" will land you in jail. There are others where shooting an unarmed assailant will result in no charges, no arrest, no nothing.

In this day and age, PCP and other drugs exist, those assailants are EXTREMELY VOLATILE AND DANGEROUS.

Fortunately, also, the burden of PROOF OF GUILT is on the prosecution. Also another +1 for our system in general.

GregGry
December 23, 2008, 07:40 PM
(((Your fears, your state of mind, and to what extent those were reasonable are very relevant to a self defense shooting situation. Remember, in order to use force against another, you must be in reasonable fear that the same level of force will imminently and unlawfully be used against you.))))

Yes they are but if your fears aren't based on facts you are in trouble. I know people that are afraid for their life if they are surrounded by people such in a crowd. If they were to shoot on the basis of this fear is that reasonable? Your average person would say no. Being afraid for your life and actually being in a substantial danger of death or great bodily harm are two completely different things. You can't pull the trigger just based on your fears, there has to be other things you base your decision on. On the job I have fear everytime I go into a bar for a fight, a robbery in progress, etc. That fear doesn't mean I can just shoot someone.

You can pull the tigger any time you feel your life is in danger after all it doesn't take anything to pull a trigger. Unfortunately you will eventually hit a scenario where your fear for your life doesn't go along with the actual danger you were in. Thats when you are in serious trouble.

((In this day and age, PCP and other drugs exist, those assailants are EXTREMELY VOLATILE AND DANGEROUS. )) Yes they are, however its hard to know thats what they are on. Not to mention you can't pull the trigger on someone that is on drugs just because they are a potential threat.

divemedic
December 23, 2008, 09:26 PM
Which is why I said:

Remember, in order to use force against another, you must be in reasonable fear that the same level of force will imminently and unlawfully be used against you.

Biker
December 23, 2008, 09:30 PM
Seems like some folks just want to pull a trigger. Killing a man is easy, the after effects are monumental. Putting aside the legal issues, living with it can be taxing for some.

Y'all might consider that being forced to trade blows and maybe coming out with a bloody lip is preferable to taking a life.

Just a thought.

Biker

mercop
December 25, 2008, 03:31 PM
The example I always use is the one I saw in Calibre Presses Street Survival Seminar years ago. And officer was attacked by and EDP Emotionally Disturbed Person. The EDP bit a huge chunk out of the officers face and the officer shot him. Was it a good shoot, yes. What if the guy had bitten him in the side of the neck next?

Deadly force is most often defined as the use or presentation of capability of force likely to cause serious deformation, physical injury and/or death.

As with anything when it comes to the use of force the totality of circumstances is what matters.

As a police officer I saw plenty of people who had no business being on the job and at the first sign of danger would go to gun and shake it all about because they had not other skill sets. I have to believe that the same would hold true for the armed citizen. If the only SD "tool" you have is a pistol you are more likely to use it when you get scared. That is why a well rounded SD program has got to include training in open hand combatives, edged weapons and impact weapons.

Biker
December 26, 2008, 07:00 AM
mercop said:

"As a police officer I saw plenty of people who had no business being on the job and at the first sign of danger would go to gun and shake it all about because they had not other skill sets. I have to believe that the same would hold true for the armed citizen. If the only SD "tool" you have is a pistol you are more likely to use it when you get scared. That is why a well rounded SD program has got to include training in open hand combatives, edged weapons and impact weapons."



Right on the money.

Biker

divemedic
December 26, 2008, 09:05 AM
Well, I am going to the store. I guess I will go get my gun, three spare mags, BUG, ASP Baton, combat knife, and OC spray.

Seriously, I am not going shopping in a combat zone, nor am I a LEO. Maybe I could learn to avoid minor troubles, and reserve the weapons for life threatening situations. Remember folks, we are not free lance police officers.

mercop
December 26, 2008, 10:09 AM
Having your name on a police report whether it is in the victim or suspect box will likely have a deep impact on your life and your loved ones. Avoidance is key. When you cannot avoid, come violent or don't come.

px4storm
December 26, 2008, 10:27 AM
I can't quite understand why I don't see articles in the newspapers and on the news about hundreds or even thousands of shootings by CHL holders claiming self defense!

Those of us who carry for SD are not stupid, guncarrying hicks! We have read and understand the laws and are competent law abiding citizens. The last thing in the world that I would ever "want" to do is to shoot someone but if it came down to it and I felt my life or the life of a loved one was threatened then I am certainly prepared to act.

For those of you who make statements like, "you can't shoot someone because they are yelling at you," I only want to say one thing . . . "no joke!" I have just read 5 pages of posts on this thread and the condescension from some folks is amazing. If you want to let some guy beat the tar out of you before you act then so be it. I will not treat you like an idiot for that because it is a personal choice and I don't expect to be treated like that for making my lawful choice either.

If I read the paper everyday and saw multiple unjustified self defense shootings then I might agree but I just don't see it. I don't believe for a moment that there are law abiding citizens out there carrying their gun for SD that are just "itching" to shoot someone.

Because I know that many of you like to push everything to the extreme, please don't post 1 article where a SD shooting was unjustified. If you don't understand why, then you haven't read my post. Quit the condescension!

Art Eatman
December 26, 2008, 11:02 AM
Enuf. Five pages, and we're seeing the usual personal stuff creep in...

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