Thursday, May 30, 2024

Ayoob: "The Misunderstood Concept Of Disparity Of Force"

 An article from Massad Ayoob at Backwoods Home Magazine. He explains:

In the laws of deadly force there is something called Disparity of Force. It means that while one’s attacker may be ostensibly unarmed, his ability to kill or cripple an innocent victim with pounding fists, stomping feet, and strangling hands is so great that it becomes the equivalent of a per se lethal weapon, and warrants the innocent victim to respond with a weapon such as a firearm in lawful self-defense.

And unfortunately, according to Ayoob, it appears that many criminal defense attorney's do not understand the principle, as Ayoob delves into the low acquittal rates for women who used a firearm to defend themselves against an abusive husband or boyfriend. (Of course, since women are just as likely as men to have initiated the violence, perhaps many of the cases didn't actually present valid instances of self-defense; or perhaps they failed in establishing other elements of self-defense; or maybe Hollywood movies showing emaciated 90-lb. women effortlessly beating up muscular 200-lb. men has influenced the attitudes of jurors on whether a woman needs to resort to lethal force to protect herself).  

    Where this principle comes into play is the "proportionality" element of a self-defense claim. As one source relates: "The level of force used in self-defense should be proportionate to the threat faced. The individual should not use excessive force that goes beyond what is necessary to repel the threat." Another law firm explains:

For the principle of proportionality in a self-defense claim to be the person making the claim must have acted in a way that is deemed proportional to the threat let. A threat of non-deadly violence should not be met with a self-defense of deadly violence. For instance, it would not be acceptable to shoot or stab a potential attacker who clearly only intended to slap or push the person making the self-defense claim. That would not be viewed as a proportional reaction. However, shoving or slapping the aggressor away would be seen as proportional and a claim of self-defense could perhaps be used to avoid an assault charge.

An example that most should be familiar with is that of being punched in the nose would not (normally) allow you to respond by shooting the aggressor. But, as Steve Moses writing for CCW Safe warns:

When it comes to proportionality, concealed carriers in a fearful state of mind frequently end up in trouble with the law because of a combination of stress and inadequate training results in poor decision making. In addition, not possessing multiple defensive tools may encourage them to resort to the only tool available to them at the time, which often happens to be a firearm.

Which is why you often see recommendations from self-defense instructors to carry pepper spray in addition to a firearm.

    What Ayoob concentrates on in his article are circumstances where physical disparities in size between an attacker and victim may give rise to situations where even if the attacker is ostensibly "unarmed" it would be permissible for the victim to employ a firearm or otherwise use lethal force in self-defense. Ayoob is discussing the difference in size and strength between a woman and a (presumably) much larger and stronger man as an example, but it could show up in other situations, such as a younger, stronger person attacking a frail, elderly person; a number of people ganging up on a single person; a trained boxer or similar beating up someone that is untrained or unexperienced; or someone attempting to curb-stomp the victim. 

    Because self-defense laws can vary by jurisdiction, you should probably consult a lawyer or expert in your area if you want to know more. And, as always, I'm not your attorney and this post is not legal advice.

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