Imagine being cornered, outmatched and facing an immediate threat. In such situations, understanding the concept of disparity of force can make the difference between lawful self-defense and potential criminal charges. This principle acknowledges that the dynamics of a confrontation, including differences in size, strength or numbers, can justify the use of deadly force in self-defense when no other options are viable.
What Is Disparity of Force?
Disparity of force refers to situations where an imbalance in physical ability, numbers or other factors places one individual at a severe disadvantage in a confrontation. Deadly force cannot be used unless the victim is in fear of deadly force. This usually requires the presence of a weapon. However, sometimes a significant disparity in the strength or fighting ability between the parties is accepted as a substitute weapon.
Determining Disparity of Force
Factors establishing a disparity of force include:
- Age Differences: Age often correlates with diminished strength and slower reflexes. Courts have recognized the significance of age disparity, but age alone may not always suffice to justify deadly force unless combined with other factors like frailty or immobility.
- Overwhelming Size or Strength: Larger and stronger attackers present an inherent threat. Wrestling and boxing categorize athletes by weight class to prevent undue advantage, highlighting the importance of size and strength in confrontations.
- Force of Numbers: Being outnumbered is a clear example of disparity of force. Courts have recognized that multiple assailants inherently present a more significant threat, justifying the use of force to neutralize the group threat.
- Specialized Skills in Combat: Attackers with advanced training in martial arts or other combat disciplines can elevate the threat level, even without a weapon. Courts, however, do not automatically equate a trained individual’s actions with deadly force unless specific circumstances warrant it.
Examples of Disparity
Courts often analyze disparity of force through real-world cases, considering whether the victim had a reasonable belief that deadly force was necessary. Certain groups, such as women, the elderly or individuals with physical disabilities, are often more likely to successfully claim disparity of force. This acknowledgment stems from biological and situational vulnerabilities that make them more susceptible to harm in confrontations.
Strength and Size
Disparity in size has been part of every disparity of force case since David and Goliath. The Missouri Supreme Court ruled that size alone could constitute physical force. The case involved a 6-foot, 220-pound pervert forcing a 16-year-old girl to submit to molestation.[1]
Strength is often paired with size … but not always. A court ruled that mere fear of simple assault and battery is not sufficient to respond with hazardous force. Mere large size is not sufficient.[2] The court does not specify what additional factors must be present. It is not necessary that the assailant be a weightlifter, only that the victim be substantially weaker.
Group Attacks
In group attacks, a disparity of force is normally a given, a point relentlessly made by zombie movies. Group attacks in prisons and jails are often charged as felonies, the group substituting for a weapon normally required in felonies. In some cases, the court has mentioned the shoes or other innocuous objects used by the participants as substitute weapons. But, like a stampede, it is the mob mass which kills.
When the citizen has disabled or killed his attackers until only one remains, it might be argued that disparity of force no longer exists. However, given the speed at which such events occur, and the difficulty in determining if attackers are truly disabled makes such a requirement impractical and unjust. The short range of self-defense incidents creates the danger of the citizen grappling with the surviving attacker for the gun, an event which never ends well.
The best disparity of force case is one where multiple factors are in play. Sixty-five-year-old Michael Monahan shot and killed 49-year-old Raymond Mohlman and Mathew Vitum when the two younger men attacked him in a dispute over the sale of a boat. Prosecutors initially sought the death penalty because the two men had been unarmed. A Palm Beach County judge disagreed. In a ruling invoking Florida’s “Stand Your Ground” law the judge pointed out that Mohlman had been a professional wrestler. Both men were younger and stronger. They outnumbered him. Mr. Mohlman’s blood alcohol level was .23, almost three times the legal limit. Mr. Vitum had a blood-alcohol level of .11 combined with cocaine, oxycodone, and marijuana.
The net effect was a pair of assailants with decreased inhibitions for extremes of assault; would not feel the bones in their fists break and would continue when the sober man would retire. The assault took place on a boat where slips have often led to cracked skulls and drowned sailors.[3] The charges were dismissed.
Legal Principles Supporting Disparity of Force
The use of deadly force in self-defense requires satisfying specific legal criteria. These include:
- Ability: The assailant must have the means to inflict harm. For example, a significantly stronger or armed individual has the ability to cause serious injury or death.
- Opportunity: The assailant must have the immediate potential to cause harm. Proximity and the absence of barriers often determine this element.
- Imminence: The threat must be immediate, leaving no option for retreat or de-escalation.
Self-Defense and Disparity of Force
Understanding disparity of force is critical for anyone preparing to defend himself or herself. Training and situational awareness are key components of ensuring that any defensive action aligns with legal standards.
- Avoid confrontation when possible
Courts heavily favor individuals who make every effort to de-escalate or retreat from confrontations. - Know your state’s laws
Self-defense laws vary by jurisdiction. Understanding the legal framework where you live ensures your actions align with the law. - Document the incident
If forced to use self-defense, provide a clear and accurate account of the events to law enforcement, emphasizing the factors that demonstrated disparity of force.
Disparity of force is a critical concept in self-defense law, emphasizing the importance of context in life-threatening situations. By understanding the factors that establish this principle and adhering to legal standards, individuals can confidently defend themselves while remaining within the bounds of the law. Remember, self-defense is not just about surviving the moment — it’s also about justifying your actions afterward.
[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. ]
[1] State v Vandevere, 175 S.W.3d 107 (Mo. 2005).
[2] State v Jackson, 522 S.W.2d 317 (Mo. App. St. Louis Dist. 1975) at 320
[3] http://www.sun-sentinel.com/news/local/palmbeach/pb-boat-mur. 9/13/11.
