Some of the starry-eyed idealists among the gun prohibitionists ask wistfully, “Imagine a world where no one could have a gun.” We don’t need to imagine it. Neanderthals versus Cro-Magnons. The Dark Ages. Worlds where the strong brutalized and tyrannized the weak, and whomever assembled the largest gang savagely extorted or exterminated those they outnumbered. It is not for nothing that the force multiplier known as the firearm came to be called an Equalizer.
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.
I’ve lost count of how many attorneys I’ve met who got through three years of law school and passed a bar exam without learning of disparity of force.
Award-winning journalist Elizabeth Flock has run into the same thing. I recently read her 2023 book “The Furies: Women, Vengeance, and Justice.” Like many before her, she is appalled at how many battered women have been pilloried in court because they used a gun to save themselves from a much bigger and stronger “unarmed man” who had violated them or even tried to kill them.
Flock writes, “Caroline Light, who authored the book Stand Your Ground, said that in the courtroom drama, female defendants in self-defense cases are often viewed in one of two frames. ‘A woman capable of violence needs to be pathologized: Is she angry or is she crazy?’ she told me.”
Adds Flock, “In her seminal 1989 book, Justifiable Homicide, womens‘ rights advocate Cynthia Gillespie argued that, as a result of its origins, self-defense law evolved based on masculine assumptions – that the fight is between people of ‘roughly equal size, strength and fighting ability’ and that it’s ‘never acceptable to kill an unarmed adversary.’ Both assumptions have made it difficult for women to win self-defense cases because women and men are often different sizes and strengths, and women are more likely to defend themselves with guns or knives while men more often use hands and fists…Gillespie also wrote that, of the two hundred cases she reviewed of women who killed men in self-defense, the outcomes were ‘depressingly similar’: the women were arrested, charged with murder, pled guilty to murder or manslaughter, and went to prison.”
And I winced when I read the following: “According to Karla Fischer, the domestic violence expert, most women who kill their abusers take plea deals in the end (as do the majority of criminal defendants). Fischer estimated that 80 percent of the women’s cases she handled ended in pleas. Overall, about half of the women whose cases she appeared for were ultimately convicted of a lesser offense, while the other half received higher charges than they’d initially faced. Fischer said that in all her years appearing as an expert, she had only seen one woman acquitted at trial.”
My God. If my math is correct, that’s a pathetic 0.50% acquittal rate. In the five expert witness cases I’ve taken for battered women who killed or severely wounded violent men in self-defense, we had an 80% acquittal rate,and the one who was convicted wasn’t even a disparity of force case. (He had knives, she had a gun, but she changed her story on the witness stand and the jurors told her attorney “We just didn’t believe your client.”) Why did we win Not Guilty verdicts for all four of those women? Because we explained disparity of force to the jury!
Anyone else waiting for a high profile case of an armed woman killing an unarmed “trans woman” in self defense?
One of the drawbacks to the nerf world of today is that a tiny-and decreasing-number of folks have had any experience in actual physical confrontation/fighting. Nor is there a firm grasp of the vast disparity between an experienced/trained combatant and Jane/Joe Average. And, of course, male/female. Hey, Ziva David kicks male butt, why not Jane Average? That capability disparity can be very frightening if it’s truly understood. When weapons depended upon physical strength, the training began at very early ages and age takes it’s toll. I wonder how many Roman Legionaries made it to retirement?
I’ve had my own occasions of dismay at the products of various law schools. As you’ve often noted, use of force law gets a nodding mention. Not to imply they say nodding about it, but it’s a (barely) passing mention. Every few years here in Virginia, the appellate courts have to remind attorney’s (possibly a few judges?) that there hasn’t been a duty to retreat in the home since 1922.
” ‘Unarmed’ does not always mean ‘not dangerous’.” – MP
IOW, There’s no such thing as an unarmed football player.
In Florida, the Standard Jury Instructions frame disparity of force with this; something else or a supplemental instruction is unlikely to be given:
[Physical abilities. Read in all cases.]
“In considering the issue of [self-defense] [defense of another], you may take into account the relative physical abilities and capacities of (defendant) and (victim).”
Defense counsel should request something more, and this as well:
“(Defendant) had no duty to issue a verbal warning or threaten deadly force by the display of a weapon or otherwise before using deadly force.”
Mobley v. State, 132 So.3d 1160 (Fla. 3d DCA 2014), supports the giving of the above.
Can a punch reasonably be considered likely to impart great bodily harm? Yes, but context matters. I have written on this for Florida lawyers and judges. See https://www.8jcba.org/resources/Documents/Apr%202024%20Newsletter.pdf at p. 4.
Folks, Steve Harris is deeply knowledgeable about this sort of thing, and I appreciate his comment above.
Well now. My interest in the subject and insistence on verity in it by LEOs, lawyers and judges was inspired 30+ years ago by you. Together with the motto of a school in Jamaica: Age Quod Agis.
I’m appalled at how bad attorneys seem to be in general at self defense or use of force cases. The George Flyod case could have been won merely by physically demonstrating how a healthy person could be held indefinitely with the knee on the shoulder like he was held without harm.
The ME report should have resulted in the judge granting motion for acquittal except on the most minor of a lesser included battery charge.
I read that Tox aPanel from the Henneppin COUnty Medical Examiner. It was availble on the coroner’s website. After I read that I was incrasinly apalled at the brutal treatment of all four officers involved, particularly Officer Chavin.
I fault a corrupt and politically motivated “prosecutor” and the dearth of expertise from the Defense in not making the cause of death impossible to sway any juror. 4X lethal concentration of fentanyl and 2 x lethal dose of amphetamines.. enough to put SIX men his size below the sod.
And Officer Chauvin remains in prison for doing his job exactly as trained. Minneapolis deserve the serious decline in their city. How many stood up for Officer Chauvin? As do Portland deserve their continued collapse.
@Tionico: I read the officer’s name — Derek Chauvin — and couldn’t help but imagine the prosecutors and race hucksters smiling with glee.
In particular, his last name. Anyone who takes his side is, pretty much by definition, a “Chauvinist”.
Yes, I know it’s a coincidence of the English language, but the “court of public opinion” and the PR propaganda practically write themselves.
(It kind of makes me wonder why the Right isn’t making more hay of “Diversity, Inclusion, and Equity” — or more correctly, based on policy and results, “Division, Inequity, and Exclusion” — spelling “DIE”. Sure, it’s a coincidence of the language [or is it? hmmm….], but the criticisms practically write themselves.)
The Good Lord could have testified in defense of the police actions and the “condition” of Mr. Flyod’s drug filled body and the results would be the same. The police were going down on this one and no matter of evidence nor testimony could have changed the predictable results.
my comments are often awaiting moderation, it will appear whenever this topic has died of old age.
Usually less than a day, actually…
We have an affirmative defense to these type cases here in East Texas:
“Well…the boy needed killin’.”
Folks, my friend Carl is speaking tongue in cheek…
if he wasn’t before he is now……
I hope to never need to use disparity of force as a defense, because, I hope to never have to defend myself. If I do, I’m just a couple of months short of 70 and I have to walk with a cane because of nerve damage in my leg that makes it impossible to balance on just my two feet. Unless my assailant is a senior citizen that also must use a cane, I believe that I’d be justified in drawing the Glock.
Chuck wrote:
‘Unless my assailant is a senior citizen that also must use a cane, I believe that I’d be justified in drawing the Glock.’
Great to hear! The legal weapon I’d most like to have on me here in the UK, is a cane.
It’s supremely flexible: can trip, give a harmlesss flick, simply keep the baddie at a distance. Or it can hit with devastating impact.
Hardly anyone knows how to get past it’s superior reach.
It is ALREADY in your hand!
And it’s the only weapon that actually makes you look LESS threatening.
With regard to WR Moore’s comment:
‘One of the drawbacks to the nerf world of today is that a tiny-and decreasing-number of folks have had any experience in actual physical confrontation/fighting.’
Wearing blue I soon discovered that it’s nothing like you think. Most men won’t even hit you back. A lot will simply RUN! (the sensible ones). Especially those who like to say how tough they are.
We had one of the countries best kick boxers at our club. One night another student asked if he wanted to earn a little money as they were short of a doorman that night. He went along, a fight broke out and he found himself at the other end of the street.
You don’t know if you’ll rumble till it happens for real.
So don’t rely on anyone. If you don’t get in fights; that includes yourself.
Nothing goes to plan in a fight. Later you don’t even know what happened.
I’ve seen people tell me how they’ll simply open their penknife, when it’s not a one handed opener. The demonstrate by just about managing to open it with one hand. Try that while someone is using your face as a punchbag.
The elderly are also more fragile. Bones & joints are not what they used to be once you’re over sixty. Plus, the elderly don’t have much stamina. They’re easily exhausted & weakened by physical activity. So, a healthy young man can soon defeat an elderly man in hand to hand combat. Then, what’s going to happen? Will the young man now stomp the older man to death? Will he kick him in the head? Road rage alone has created this kind of behavior–not to mention strong armed robberies, muggings, etc. Better to draw your gun early in the hope it will stop the perpetrator, even without being fired.
Mas taught this from day one and was consistent throughout the years. That’s why I retained SO much of his training because it was basic, simple and consistent. I’m SURE this is what helped me survive “the streets” for 28 years. When he was about to testify for me in a case of excessive force, the other side’s “expert” never showed, and the case was dismissed!
any money on the premise that the other guy’s attorney found out who his opposite was and simply decided to “have a bad cold” or something on That Day…..?
Discretion is often the better part of valour.
Captain Ayoob: Doubtless you have already deduced that I am, or can be, an argumentative person. But I find nothing at all to disagree with you about here, today.
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