A few weeks ago, most of us in the “gun world” followed the trial of Kyle Rittenhouse, who shot three men who attacked him during the Kenosha, Wisconsin riots. The prosecutor in that case told the Court, and the world, that it was never self-defense to shoot an unarmed man. A week or so ago, watching the jury selection in the trial of Curtis Reeves in Florida on Court TV, I heard one of the “talking heads” say the same thing. Reeves was the shooter in the erroneously-titled Popcorn Murder case. I say erroneous because he didn’t shoot his opponent in that movie theater because the man threw popcorn at him, but because it’s already clear that the much larger, younger man was coming aggressively at Reeves when the 71-year-old handicapped man fired the single, fatal shot from his little .380 pistol.

The use of deadly force is only justified when in immediate, otherwise unavoidable danger of death or great bodily harm. That situation requires three elements, most commonly known as Ability, Opportunity, and Jeopardy.  Jeopardy means that the person’s words and/or actions indicate to a reasonable, prudent person an INTENT to kill or severely injure you. Opportunity means that the assailant can carry out such a threat immediately. Ability denotes the means to do so.  Usually, that ability or means element takes the form of a deadly weapon: gun, knife, improvised club.

But, Ability can also take the form of DISPARITY OF FORCE, which means that in a physical fight initiated by the other guy, the likelihood of you being crippled or killed is so great that this advantage on the opponent’s part becomes the equivalent of a deadly weapon, and if the other elements are present warrants you shooting him to defend yourself.

Disparity of force elements can include force of numbers, you alone against multiple attackers. Or significantly greater size, strength, or skill in unarmed combat that favor your attacker. Another element is the able-bodied attacking the handicapped. (In the early stages of the Reeves trial, it appears that the judge is inclined to keep out evidence that the elderly defendant was physically handicapped.)

It will be interesting to see how the Reeves trial plays out. I suspect if the elderly defendant’s limited physical ability to defend himself without a gun is kept from the jury, there will be solid grounds to appeal a conviction.  As someone who works in this field, I am appalled at how many attorneys have graduated law school without understanding Disparity of Force.

Time – and evidence – will tell. I only hope the triers of the facts get to see all the evidence, and get to hear genuine use of force experts explain what the salient factors in this case really are.

Thanks to gun owners’ civil rights advocate Oleg Volk for inspiring the picture we use here, which so clearly illustrates Disparity of Force.

32 COMMENTS

  1. If the judge does not allow evidence to Reeves physical condition, it appears that, yet again, you have a judge attempting to pre-determine the verdict in a trial based on their political views. It seems reasonable to exclude evidence about the assailant that the accused could not have known beforehand but not what Reeves knew about his own condition that may have influenced his actions.

    • Depending on the nature of Mr. Reeves’ physical handicap, I’m not sure how the judge can fully exclude evidence of it.

      Is he wheelchair-bound, or does he require a walker for mobility? That will be immediately apparent when he enters the courtroom, and the only way to fully exclude it would be to bar the defendant from his own trial. (In retrospect, in the age of trial-by-video-call, that’s not outside the realm of possibility.)

      As an aside — and understanding that the assailant is not on trial here — if Mr. Reeves needs a wheelchair or walker, it’s certain his assailant saw that in the theater and factored that into his decision to threaten and then attack. Could the handicap then be “slipped in” by the defense in describing the events leading up to the shooting? Or is this an “error” that could be brought up on appeal if the trial goes poorly?

      • And more importantly, the press is despicable for crafting a fake narrative, designed to poison the public about what really happened. They make it sound that Reeves shot the guy because he threw a popcorn kernel at Reeves. From Mas’s description, this was a far greater physical assault by a buff guy on a handicapped, elderly, frail guy.

        I wonder if the deceased has hired Crump and Julison to craft their magic PR lies in the court of public opinion?

  2. Age-old advice is: Don’t bring a knife to a gun fight!

    The younger, stronger belligerent finds himself engaged in a dispute with another. Either:
    1. Other is nearly as young, strong and belligerent; or,
    2. Obviously old, frail and more/less belligerent.

    In any such situation, is the younger, stronger belligerent at liberty to PRESUME that NO DISPARITY of Force exists? Is he FREE to see himself on the level playing field of a boxing match where he can behave in a belligerent manner expecting his counterpart to respond according the the Marquis of Queensbury rules?

    Or, in so PRESUMING, does he voluntarily accept the risk that he has brought a knife to a gun fight?

    Society would be best off if everyone behaved in a gracious and civilized manner. But that’s not going to happen. There will be fights. The courts must sort-out “fault” after-the-fact. There may be fault on both sides; but, when one belligerent is in the dock to account for killing the other, the jury must decide whether to hold the defendant accountable; or, judge the deceased as the one at fault.

    Will society be more civilized if the rules-of-the-game are that the weaker must always defer to the stronger? That the less threatening must retreat in the face of the more intimidating?

    Yes, Reeves could have chosen to be meek. To have left the dispute to those in authority. He could have retreated in the face of obvious overwhelming threat. And then, society would be better off with the younger man still alive? Or, not? Young, strong and belligerent men have a right to assume that they are at liberty to behave as they feel righteous; those they intimidate are foreclosed from bringing a gun to a knife-fight.

    This seems to describe the dilemma. At what point is the belligerent who recognizes that he enjoys the disparity of force obliged to deem himself to be the one MORE responsible for keeping the dispute within civilized bounds?

    Or, is the weaker always to be deemed to be at the mercy of the stronger; or of the judicial system who will act in the stead of the stronger?

    • I think the proper answer here is to NEVER get into it with anyone. If some clown is talking loudly, using his cell phone, or even jostling you in a movie theater, get up and move, leave or wait for another showing. Just a look can cause someone to snap, and suddenly you’re looking at a self defense situation that just handed you a bill for 6-7 figures, and major, life-changing disruptions to your daily existence. I personally would rather the hassle of having to leave the theater than to have to deal with this mess.

      Recently, I was in a Walmart, and a belligerent, young man just cut into my line, have me a smirk, and asked what I was going to do about it? I said nothing, didn’t make a face, and walked to another line. He went his way, and I went mine with no hassle whatsoever.

      I don’t interact with idiots.

      • Amen, Chris…this is the same thing as getting home by 10 pm or taking the long way around if you sense something’s not right on the way ahead!!!

  3. The real lesson of the Curtis Reeves case is to keep your options open.

    As Mas has noted, some people carry a firearm as if it was a magic talisman. As if it will ward off evil. My impression is that Curtis Reeves carried his .380 pistol in that fashion.

    The problem is that, if you only have a lethal force option, then lethal force is what you have to use. Even if, as in this case, it is a questionable option. As the old says goes: “If all you have is a hammer, then everything looks like a nail”.

    Suppose that Curtis Reeves had a non-lethal option, such as pepper spray or a taser, to deploy during this incident? He could have tried the non-lethal option first. If that failed and the attack continued, it would have been much harder to question his use of his firearm to resolve the situation.

    From what I understand, Curtis Reeves is a retired cop and was more than 70 years old at the time of the incident. What did he expect to do if confronted by an unarmed attacker? Shoot first and ask questions later? He is no longer a cop and no longer has the protection of a badge.

    We have all seen the Hollywood movie where the old Master is hobbling along on his walking cane and is set upon by a pack of young thugs. We all enjoy it when the old Master suddenly uses his cane, and his awesome kung fu skills, to deck the whole lot of them. Well, sorry folks, but that is just Hollywood Horse Hockey! In real life, the old Master would be slammed down to the ground and have kicks rained down upon his head and groin!

    Look at my own case. I am in my 60’s. I am overweight and with a weak left leg from where I broke it in 2015. I have had no martial arts training at all. On top of that, my previous eye surgeries have left my eyes vulnerable to damage. Punches to the face that might result in only a broken nose or a black eye, in a normal man, might well leave me blind. Therefore, it would be foolish for me to try to go “mano a mano” with a young thug even if he was, physically, smaller than me.

    Yet, pulling out my pistol and “blowing him away” may not be the right answer either. It might solve Problem #1 but, as Curtis Reeves is finding out, it could leave me in a tight spot regarding Problem #2.

    For that reason, I always carry a can of pepper spray on my weak side. I can deploy the pepper spray with my weak hand while still reserving the ability to deploy my firearm, if necessary, with my strong hand.

    If Curtis Reeve had deployed a non-lethal defense option (first) before going to his firearm, he would likely not be sitting in a court room today facing a murder charge and the prospect, if convicted, of dying in prison.

    That is the true lesson of this case. Don’t limit yourself to lethal force self-defense options only. They are usually not the best option or, at least, not the best first choice. If you are young and tough and have had some training, maybe going “mano a mano” is an option. Otherwise, there are a number of non-lethal options available to supplement your carry firearm. Pick one, learn how to use it, and carry it too!

    • Great advice TN_MAN. I carry a small container of OC spray also, just in case I have to use my pistol to defend myself. In police jargon, this is “Escalation of Force”, where the lowest level is voice command and the highest is deadly force. If there is a shooting the police will arrive and they will see that I have a less lethal alternative to my handgun. If that option is not used, I can claim there was no time to deploy it or that the circumstances require deadly force. Either way, the defender will appear less bloodthirsty in the eyes of the law. Later in court, if it comes to that, the defender will look better as it is less believable when the prosecutor tries to paint his ‘victim’ as a vigilante or executioner out to viciously murder the attacker.

      I carry the smallest keychain type OC spray as it’s light and convenient. If given a chance where the attacker is not armed, I will use it first as it’s best to avoid shooting someone due to the legal hassle and expense of defending oneself in court where anything can happen, especially considering the current political situation and the race of the attacker.

      • I also used to carry one of those small, handy cans of OC/Pepper spray. However, I was not happy with its locking method. To use it, you rotated the cap about 90 degrees and then it became free to push down the button on top. This would then deploy the spray.

        I found that, when carried in my pocket, the cap could self-rotate and unlock. I was afraid that it might self-unlock and then I might inadvertently apply pressure and deploy the spray while it was still in my pocket. Naturally, that would have been highly undesirable.

        So, I moved to a larger can (3 oz total weight with 1.5 oz of spray inside). This larger can has a much more positive deployment mechanism which would be hard to activate accidentally. This larger can also gives me a lot more shots of spray if I need them. Also, it has greater range than the small pocket model.

        The downside is that this can is too large for pocket carry. I purchased a Bianchi belt holster that fits it perfectly. So, as I noted in my earlier post, I carry the pepper spray in a holster on my weak side. The firearm is carried on my strong side. Thus, I have both lethal force and non-lethal force options available when I am out and about in the World.

        I pray that I never need either of them.

      • I used to carry the Cold Steel Inferno brand which has the rotating switch and could be accidentally activated. I now carry the same sized canister of Sabre type OC which has a spring loaded hinged cover over the trigger button which is much more suitable for pocket carry. The Cold Steel unit has an integral molded clip which is handy in certain circumstances, but it’s not very secure. I used to clip it on my belt pack when bicycling.

        I have an old 1.3 oz. canister of Colt Steel Inferno which has more range than their keychain unit and it has the hinged cover. It’s a bit large for pants pockets, but works fine in a jacket pocket during the colder months. The longer effective range is good as an attacker may be some dirty, smelly type and it’s preferable to discourage them from as far away as possible.

        From a psychological standpoint, one of the ASP type metal expandable batons may be another option. They are available in several lengths and in both steel and aluminum. Deploying one, especially the 26″ steel model, is liked activating a Light Saber and should discourage most bad guys/gals unless they’re intoxicated, on drugs, or mentally unbalanced. These batons are bulkier and heavier than a small canister of chemical spray and in many areas, require a concealed weapons permit to carry one. In California, it’s a felony to have one of these outside your home.

  4. The defendant in this case surely was well aware of his pysical limitations. Perhaps his assaiant was not. BUT i falls to the defender in such attacks to weigh what HE knows whether his attacker holds the same information or not. the lw favours the wareness and perceptions of the one being attacked. It does appear on the face of the evidence I’ve seen (far from complete) that the one being attacked in this case certainly was under the strong impression that his own life was in danger at the hands of a larger yonger more agine and much stronger ttacker who had means, opportunity, and aparenly intent.
    I also find it amusing that one round from that mouse gun was well enogh placed by the one holding the weapon that his assailant died from the encounter. I carry a Kahr .380 when I’m out and bout on y road bike, and have at times wondered whether I should not move to something larger or with more “authority”. I take comfort in the well known words of our Fearless Leader here “any gun will do if YOU will do”. This gent surely DID “do”. And the gun did as well. AND he lived to stand trial for his decisioin to make use of Mister Mousey.

    • I have a Kahr P380 which I bought used as it’s a neat little pistol, but I don’t carry it. Nowadays, the smallest 9X19 pistols are just slightly bigger and heavier than the .380 ACP models, but much more powerful. I have several, the smallest being a Kimber Solo (mine functions perfectly, unlike those bad ones I’ve read about). My favorite is the Springfield Armory Hellcat, which edges out my SIG 365 as it feels better in my hands. The pistol I carry when bicycling is a Glock 27 which is a bit larger than the little 9mm guns, but in a more serious caliber. I still carry my .45 ACP caliber 1911 pistol with extra magazines in a saddle mounted bag if I have time to get it out.

  5. I recall you saying in class words to the effect that because there isn’t much money in use of force law, the typical presentation is under an hour. I’ve seen a few examples where it must have been well under an hour, they missed that class or have extremely poor retention.

    Unfortunately, that’s not the only area of the law some attorney’s are lacking.

  6. Mr. Ayoob:

    In our carry permit classes (in MN, so the exact laws may not apply in other states) we were taught the “4 easily popped balloons of self-defense”. In short-hand these are:
    1). Immediate danger of death/grievous bodily injury
    2). Reluctant participant
    3). No lesser force would stop the attack
    4). No practical retreat
    All of these are of course then subjected to the fictional “reasonable person” standard. The further sub-set you noted for the “immediate danger” consisting of ability, opportunity and intent clarify exactly what the attacker is doing.

    But our instructors also pointed out that a “hidden defect” can also play a role in the whole “Disparity of Force”. If a person has a blood-clotting problem, whether due to disease, drugs, or other medical reasons, even minor cuts can be life-threatening. In my instance, I have a plate and four bolts in my neck holding things together, which means that a blow to my head could well sever my spinal cord. It is not obvious, heck, it isn’t even visible. But it means that any CQB is out the window. If someone much larger and more able than I am is credibly threatening to “knock my block off” and advancing on me with the clear intent of doing so, it is not my responsibility to warn him of my physical deficiency before defending myself with potentially lethal force. That’s his problem. As long as all of the “balloons” remain un-popped I will assume that I have a firm case for self-defense.

    I have not studied any aspect of this particular case, so I have no idea if he was truly a “reluctant participant” and did not aggravate the situation, nor if any “practical retreat” was available, so those are questions that will remain for the jury to answer.

    I would appreciate hearing your assessment of the “hidden defect”.

  7. While the various less lethal types of defensive force might solve a given problem, there are still issues with them, especially if you lack a partner capable of taking action. They’re not always effective and you might not have time to effectively deploy the gun after their failure. This is particularly a potential issue if you’re among the less able.

    Best to pay attention and leave before things get interesting, but that can be problematical too.

    If Mr. Reeves takes the stand, the age differential should come out on direct. If the defense can’t boot strap medical conditions from his age, the prosecutor just might open the door to it during his cross examination.

  8. In the current environment, if a case involves an out of context YouTube video that’s gone viral, a prosecuting attorney who has received campaign contributions from George Soros or if Benjamin Crump shows up, all bets are off.

    To the best of my memory, Mas has a definition of a jury which is something like a 12 headed creature with 12 independent BS detectors of which at least one is operating at all times.

    In the Derek Chauvin case, I believe the best response the jury foreman could have given would have been ‘without consideration of any testimony, evidence presented or the facts of the case, out of concern for the safety of ourselves and our families, we the jury find the defendant guilty on all counts’.

    I still have faith in the legal system but it does get tested.

    • Cold Pizza,

      Seeing how Americans don’t like jury duty, and some juries are really dumb (overly persuadable), I wonder if we should omit all juries and have all trials heard by three or more competent judges. If I am not mistaken, in ancient Israel, the village elders would hear cases.

      I suppose we have juries of our peers because judges used to be beholden to kings. Frankly, I have more faith in judges than I do in “the people” (the mob). Of course, any system involving humans can and will be corrupted. Any system depends on having people of integrity, otherwise it won’t work. I would continue our appellate process, as that would be a check on the judges.

      If anyone disagrees with me, please comment, because I am no legal expert.

      • Judges are supposed to prevent that sort of misconduct by lawyers and jury members. They don’t, so I don’t think giving them exclusive power fixes things and may make it worse.

      • I have said the same thing before. As more and more of our jury pools become indoctrinated by a left leaning press, the greater the chance that defendants will be acquitted using the “disparity of force” defence.

        Also I think that “disparity of force” defense is something that Soros installed DAs wish to do away with. They think that a person should be required to “take a beating” rather than allow one to use deadly force in such a situation.

        The Rittenhouse verdict should have taken a jury no more than 3 or 4 hours of deliberation to reach a not guilty verdict.

      • Going to court as a defendant nowadays is like attending a crap shoot or visiting Las Vegas. Whether the verdict is rendered by a jury or judge, you can only hope you’re lucky. Having a good lawyer helps, but there’s no way of predicting what will happen. Just be very careful what you do and how you do it nowadays, and stay far, far away from any questionable looking characters.

  9. IF I may- heard of this travesty years ago, when it happen ( or, when it was perpetrated ). So Mr. Reeves is in the theater, the soon to be deceased is, too. Reeves complains to the soon to be deceased about his using his phone to text before the Feature Film is being shown. Reeves apparently does not like the response he gets. He leaves to find the Manager, who apparently also comes up with something that Reeves does not like OR maybe he did not find the manager. Maybe he just got his gun from his car ( many theaters do not allow guns to be brought in, though they do little to stop this) or maybe he already had it with him- we cannot know. FACT IS, HE LEFT, EVERYONE WAS SAFE AND ALIVE, then he went back to the same place to CONTINUE THE CONFLICT HE STARTED, knowing he was armed, and we are to believe this was straight up self defense? The way things should go is that he , despite his physical shortcomings, KNEW the other man was not likely to be armed, as he was. NOW where is the disparity of force? He was not a victim of attack, he was a murdering ambusher who was going to show this guy what-for. REMEMBER, He LEFT, everyone was safe, then came back, confronted this man AGAIN, and then killed him. No fancy tap dance, this is what he did. You cannot pick a fight and then claim self defense.

    • “You cannot pick a fight and then claim self defense.”

      You make a good point. The weakest link, in Curtis Reeves’ self-defense claim (IMHO), is his lack of innocence.

      The medical evidence established that Chad Oulson stood 6’4″ tall and weighed over 200 lbs. His age, at the time, was given as 43 years old. Meanwhile, Curtis Reeves was 71 at the time of the incident. I don’t know how frail he was but Curtis Reeves walked into the theater on his own two feet according to video footage. He was not in a wheelchair or a walker. Still, the age and condition disparity were stark enough.

      The medical evidence also places Oulson’s wrist from 4″ to 15″ from the firearm muzzle at the moment of discharge. So, clearly, Oulson was within easy punching or grabbing distance of Reeves. The wound to the hand of Oulson’s wife indicates that she had extended her hand and was probably trying to restrain her husband at the moment of discharge.

      So, it seems to me that the conditions of the AOJ triangle are met. The real weak area is that Curtis Reeves may have started the conflict and he certainly “kept the ball rolling” in escalating it. This damages his claim of innocence and, if innocence falls, then his claim of self-defense will also fall.

      The Prosecutor seems, as usual, to be over-charging with the count of 2nd Degree Murder. However, I expect that manslaughter is also on-the-table as a “lesser included offense”.

      I have no idea as to how this jury will jump. We have seen juries do the right thing (Rittenhouse Case) and we have seen juries buffaloed into throwing the book (Chauvin Case) due to media and political pressure plus threats of violence and rioting.

      My own view is that, if the jury upholds Reeves self-defense claim, then he is a lucky man and he should pay his defense attorney a bonus. If the jury returns a guilty conviction on the murder charge, then the Prosecutor will have succeeded with his over-charging strategy.

      If the jury returns a manslaughter conviction, I would understand it.

      • I don’t believe that a person making a legitimate request or complaining of another’s improper behavior, provided there are no words or actions of threat, should ever be considered the first aggressor and thus lose his claim of innocence.

        If a rude individual cuts in front of me at a grocery store line, am I prohibited from saying anything or complaining to him or her. If I state a non-threatenng complaint and they decide to punch or slap me, or worse, am I prohibited from defending myself because a prosecutor or jury may consider me the original offender.

      • William: “I don’t believe that a person making a legitimate request or complaining of another’s improper behavior, provided there are no words or actions of threat, should ever be considered the first aggressor and thus lose his claim of innocence.”

        As I recall Oulson was texting or talking to his babysitter before the movie started, not what I would consider improper behavior.

        “If a rude individual cuts in front of me at a grocery store line, am I prohibited from saying anything or complaining to him or her?”

        You have every right to do so. However, it reminds me somewhat of a rhyme I learned in my first driving class. “He was right, dead right, as he sped along. But he’s just as dead as if he’d been wrong.”
        I have a feeling Captain Reeves wishes he could go back the eight years his life has been on hold and handle the situation differently.

      • LA, I realize that it doesn’t carry the weight of law, but winesses have testified that the theater management had already made some sort of announcement in the nature of “put your phones away”, so in my opinion the behavior was both rude and against theater policy. At this point, phone use should be done in the lobby area.

        I seem to recollect that in defense’s opening argument there was a stipulation agreed to, a representation that Mr. Oulsen may have in fact been using his phone to surf Facebook and/or sports websites. I have no idea if that part of defense’s opening is in fact accurate, or even if my recollection of it is accurate, time will tell if this turns out to be true. I do not know if the deceased was texting babysitter or sufing the web at this time, probably an insignificant tangent anyway.

        The point of my grocery store line example wasn’t whether it is physically risky, many of our daily decisions carry at least some risk, but whether that risk should carryover into a courtroom. Making a civil verbal request does not equate to initiating first violence and should not remove one’s mantle of innocence.

  10. With reference to the concerns about the .380 caliber “Mousegun”, shot placement is king in determining effectiveness with any firearm, IMHO. The medical testimony in this case was interesting. You can watch it here:

    https://www.youtube.com/watch?v=KGvvajkwfP4

    To summarize, only a single shot was fired, and it struck three (3) intermediate objects before inflicting the fatal chest wound. First, it struck Mr. Oulson’s wrist and inflicted a grazing wound. The testimony places Mr. Oulson’s wrist at anywhere from 4 inches to 15 inches away from the muzzle at the time. The bullet then struck the ring finger and grazed the pinky finger of hand of Mr. Oulson’s wife. After striking these intermediate objects, the bullet began to tumble. It then struck Mr. Oulson’s clothing (shirt, etc.) and then, finally, entered his chest. Because it was tumbling, it created an unusual entrance wound.

    The bullet penetrated his skin, grazed a rib, penetrated the heart, travelled across the body midline and (the bullet core) ended up in the right lung. The bullet jacket was shed and was found embedded inside the heart.

    A tumbling bullet, that punched a hole clean through the heart, is what caused this death.

    So, while bullet performance was not ideal (tumbling bullet, core-jacket separation, etc.). the shot placement did damage critical tissue.

    “Any gun will do if you will do” rolls off the tongue! However, it does not define what is necessary to meet its “will do” standard. Clearly, shot placement is part of the equation.

  11. Roger Willco,

    Judges are elected or appointed. Juries are selected. Big difference and I’ll prefer to take my chances with a jury of My Peers. However, a divorce/family court is a court of Equity. No jury. Don’t get me started. Good times…good times. 🙁

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