CCW Weekend: What You Should Know About Disparity Of Force
By Sam Hoober, Alien Gear Holsters
An aspect of legal self-defense and therefore something for the concealed carrier to be concerned about is disparity of force. This concept has a number of ramifications of which you should be aware. After all, all the fun hardware stuff – such as pistols, gun holsters and so on – is actually a small part of defending yourself.
You will be called upon to justify your actions after the fact. This may be in a statement to police, to a prosecuting attorney, to a grand jury or in a criminal and/or civil trial – or in all of the above. Assault, after all, is a crime. Shooting or killing someone is a crime. The only instance in which it’s not a crime is if you act under the conditions that the law (written laws and case law) set out for doing so legally. Knowing how to shoot is as important as knowing when to shoot.
Disparity of force has to do with the relative amount of force that is employed by one or more persons in an altercation. One of the more specific aspects is whether an armed person can shoot an unarmed person or someone that could reasonably be assumed to be unarmed.
After all, a simple shove is less than a gunshot. A punch or kick is less than a blow from a baseball bat or a knife wound. For a defensive action to be justified, it has to be a reasonable amount of force. In other words, you can’t shoot someone for lightly pushing you. But what if they were to punch you? A blow with a fist can be deadly, make no mistake. History is littered with examples of boxers killed in the ring and people die all the time from a blow with a fist. What’s rather common in fistfights is for one person to be knocked out and suffer a fatal brain injury when they hit the pavement.
The day of this writing, the New York Daily News reported the death of an elderly woman in The Bronx from just such an injury. Her assailant was angered at the price of beer in a bodega in October 2016, walked out and cold-cocked the first person he saw, 69-year-old Eve Gentillon. Gentillon fell to the pavement and suffered head trauma, and had been fighting for life in the hospital since the incident. The perpetrator is likely to face murder charges.
For legal self-defense, force must be applied in equal proportion to the force in opposition. In other words, if two people of equal size, strength, age, health and so on engage in a fistfight, one of them doesn’t necessarily have legal justification to pull a gun to win the engagement. However, if one is 5’4″ and weighs 130 pounds soaking wet, and the other is 6’3″ and weighs in at 250 trim pounds, that’s a serious disparity.
What about multiple assailants? Serious or even fatal injury can occur in a fistfight involving two people, let alone if two or three people gang up on one person. Once a person is beaten to the ground and the kicks start coming it doesn’t take much for a a debilitating or deadly brain injury. In this instance, it wouldn’t take much to argue that three people posed you a lethal threat, as did two – but one might not. If facing three unarmed assailants, this may dictate that you can only shoot two, and deal with the third via nonlethal means. They aren’t armed, and since the group is no longer a threat (only one person remains) the disparity is on the side of the armed person.
This is all well and good to talk about, but the outcome of a defensive shooting on paper and the outcome in real life are two entirely different things. On paper, a small person shooting someone that clearly outmatches them in a physical altercation should be relatively easy to justify.
In real life, that may not be the case. A case that Massad Ayoob recounted here on the Daily Caller in 2013 involved a man in West Virginia of average stature who was attacked by a man who was nearly a foot taller and significantly outweighed him, most of it muscle. The larger man, of notoriously intemperate disposition, began beating the smaller man in front of his house. The smaller of the two pulled out his handgun – for which he had a permit – and emptied his magazine into his attacker, who staggered into the adjacent yard, collapsed and expired.
Authorities were called and within 12 minutes of police arriving on site, the shooter was placed under arrest. The shooting occurred in Nov. 2010, and the matter wasn’t resolved until a jury rendered an acquittal in Feb. 2013.
The disparity of force clearly existed, but proving it legally? That’s a whole other ballgame.
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Sam Hoober is Contributing Editor for AlienGearHolsters.com, a subsidiary of Hayden, ID, based Tedder Industries, where he writes about gun accessories, gun safety, open and concealed carry tips. Click here to visit aliengearholsters.com.