Disparity Of Force

[GregGry]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

((((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]

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]

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]

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]

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]

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]

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]

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]

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.