Tim’s excellent post on the “dangers of fists” has attracted attention from lots of corners of the internet, and it’s become apparent that quite a few people are really unclear on how the concept of disparity of force works. It’s not a complicated subject when you get down to brass tacks, but because a lethal force event is so subjective, people get all kinds of issues tangled up in disparity of force.
In the picture at right, taken at an InSights Training Center Defensive Folding Knife class, you have a classic disparity of force situation. Despite both people being roughly the same size, the person applying the choke has a tremendous force advantage over the person being choked. Generally speaking, the person being choked would be justified using deadly force to escape this attack. As Tim mentioned in his post, being flat on your back and receiving punches is also frequently regarded as a disparity of force as well, regardless of the relative capabilities of the two combatants. Other fairly clear cut examples of disparity of force would be a 6’3 man attacking a 5’3 woman, or a 33 year old man attacking a 7 year old kid.
Disparity of force can also occur if an attacker is armed with a contact weapon, gains a position of advantage such as a choke or mount (as mentioned), or has the element of surprise. However, contrary to the post-Zimmerman verdict belief, you cannot just drill someone who is “unarmed” and then claim disparity of force/self-defense. That’s just not how it works. Proving that you were at a force disadvantage is a quite important part of a self-defense claim. It also has nothing to do with “Stand your Ground” laws, because (at least where I’ve lived) if someone has attacked me, knocked me to the ground, and is attempting to smash my face into paste, I’m pretty much free to do whatever I want to them.
So let’s play this hypothetical situation out with a number of different options. We’ll start with you (the victim) has been attacked, knocked down, and your attacker has now mounted you and is punching you in the head.
Option 1: Hand to hand
In this option, you’re a trained fighter. You successfully defend yourself from the mount position, and in so doing strike your attacker with an elbow directly above his temple. He goes into a coma, and later dies. Are you criminally responsible for his death?
Option 2: Less-than-lethal
While being attacked, you’re able to retrieve your pepper spray and blast your attacker. He suffers a severe reaction to the pepper spray, and dies. Are you criminally responsible for his death?
Option 3: Edged weapons
You’re armed with a folding knife, and using the “strike/cut/escape” strategy, you deploy your knife onto your attacker’s thigh, as it’s the closest bit of meat to your blade. You escape, and run away to seek emergency medical assistance. Your attacker bleeds to death due to the deep wound you inflicted. Are you criminally responsible for his death?
In the example above, remember that you’re the victim of a sneak attack. You were minding your own business when you were attacked, so we can leave any sort of prior motive on your part out of the equation. I also specifically didn’t talk about guns, because the immediacy of shooting someone has a strong possibility of their death. But punching, pepper spraying, and knifing people have lower fatalities than shooting, but are all quite capable of causing death.
Let me know your thoughts in the comments.
A choke is per se lethal force. Disparity of force applies when one side in an altercation appears to have a significant advantage in terms of what would otherwise be seen as NON-LETHAL force. So Mike Tyson throwing a punch is different than you throwing a punch. Me and twelve of my buddies ready to throw down is different than just you by yourself. Etc. The concept came about because courts at common law decided that if the only way you could defend yourself against a substantially stronger (or more numerous) enemy was to resort to lethal force, that should be allowed. Think of it as the world’s first anti-bullying law. It prevents the biggest, toughest guy from beating everyone else up. It prevents roving bands of unarmed people from beating the crap out of lone wanderers. And so forth…
Thanks for the clarification. The way I’d had it explained had lumped any sort of position of disadvantage into “disparity of force”; that obviously isn’t the case.
Actually, none of the three are equivalent to the self-defense arguments used in the Zimmerman case you used for the genesis of this article, because it’s not reasonable you could foresee the death of your attacker in any of the three cases presented.
In case one, you’re defensive and striking your attacker and happen to hit him in the temple. To be honest, it was a lucky shot (unlucky, from the aggressor’s standpoint), because you’d have taken the cheek or jaw as a decent spot to hit, too.
In case two, the likelihood you’ll encounter someone who would have that severe of a reaction to the OC you employed is pretty low. You were trying to get the aggressor off of you and decided to go less-than-lethal, but the other guy had a bad day.
In case three, you struck a target of opportunity and the guy bled out. You have no clue (and the scenario doesn’t say specifically) why the guy bled out. Did you happen to hit a major blood vessel? Did the wound put him into (near) instant shock which went untreated? Did he not seek medical care because he was afraid of being arrested and bled out? Bad things happen.
In any of the three cases, if the defender continued to strike (or spray or stab) the aggressor after they had stopped their attack, then the defender would be unable to claim self defense FROM THAT POINT ONWARD and would be subject to penalties as decided by law.
Let me preface my response by saying I strongly believe that any of the three options would be legally permissible for several reasons – surprise attack, being mounted, and blows to the head. Sadly, what should be “common sense” will actually depend on the jurisdiction you live in. I’d much rather bring my defense to the above in Texas rather than New York or California! You’ve covered the important topic – to justify deadly force you must prove to a “reasonable person” in your shoes that your action (causing death) was necessary and justified.
Option #2 – using pepper spray is rock solid because a “reasonable person” would say the force was less lethal and the resultant death could not have been foreseen because nobody would expect it.
Option #1 – being a trained fighter may actually get your case before a Grand Jury. The argument being that your superior fight training should have given you the means to get out of your situation and overcome with less lethal means (disparity of force?). Beating his ass is fine because of the nature of the attack, but causing death … maybe not (I don’t agree with that – he got what was coming). Think street thug jumping Chuck Norris. People are going to ask – ‘Chuck, why didn’t you just kick his ass instead of killing him’.
Option #3 – using the knife. This is the most dicey (pun intended). Here the argument could likely center around your injuries. Again, will someone look at this and say ‘yeah you took some blows, but then you stabbed the guy to death’. Location of stab wound will become much less significant, because death did result.
To end where I started – I think there is a strong argument of justified resistance in all 3, but depending on where you live, you might find some unwanted heat from #1 and #3. Great topic for discussion though!
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