He did not feel his retina detach as a much younger, much stronger and much angrier fist slammed into his eye. His body told him that he was being seriously injured. He was trapped in the driver’s seat of his pickup; held in another fist by his shirt, a safely seat-belted target. His vehicle was blocked by other cars. His only escape was the .40 Glock on the seat of his pickup. A round just under the big man’s heart sent him stumbling back to die. The police arrived to arrest the victor. A grand jury found no justification for criminal charges and the man was released.1
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.
Disparity in size has been part of every disparity of force case since David and Goliath. Wrestling and boxing have weight classes in order to prevent the larger contenders having undue advantage.
Determining Disparity of Force
The factors establishing a disparity of force include:
- Overwhelming size
- Overwhelming strength
- Force of numbers
- Advanced skill in unarmed combat
Many commentators add males against females as a category. Size, strength and aggression are typically male attributes, but not exclusively. There are women who can beat down the average man.2 It is accepted that women are more successful with this defense than are men.
Even if all the factors are present, it is necessary to follow the rule to make all efforts to avoid the use of deadly force. One court refused to find it necessary for the guest of honor to shoot the deceased, finding that he could have run out of the house he was visiting. The defendant was 75 years old, the deceased, 48, 4 inches taller and 40 pounds heavier.3 Normally, someone on an appellate court panel would be familiar with the effects of age and arthritis.
The disparity of age alone may not suffice as a substitute weapon. Age does bring with it weakness of muscle, slowed reflexes and some loss of the aggression which once lent authority to our fists.4 On the other hand, there are some mean old men. In 2009, a policewoman stopped an 89-year-old man for erratic driving including hit and run. He admitted that his driver’s license was revoked.
As she tried to confirm his identity, he rammed her patrol car and tried to get his car in gear to flee. She got him out of the car but was unable to control him. A young man came to her aid, and it took their combined efforts to handcuff the old man. The officer, but not the young man, was charged with Third-Degree Assault. The old man was not charged.5 In another case, it was all that four police officers could do to handcuff a 72-year-old man. They were trying not to hurt him and he was doing his level best to hurt them.6
Disparity in Strength and Size
Disparity in size has been part of every disparity of force case since David and Goliath. Wrestling and boxing have weight classes in order to prevent the larger contenders having undue advantage. It usually indicates strength, reach and leverage but not always.
The Missouri Supreme Court ruled that size alone could constitute physical force. The case involved a six-foot, 220 pound pervert forcing a 16-year-old girl to submit to molestation.7
There are schools for violence. They range from respectable martial arts studios and boxing gyms to street corners and penitentiaries. Some learn in the service of their country.
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.8 The court does not specify what additional factors must be present. Given the circumstances of the case, some indication that the deceased would use deadly force, and perhaps a lack of other means to resolve the battle must exist.
It is not necessary that the assailant be a weightlifter, only that the victim be substantially weaker. The Supreme Court of Missouri has recognized that superior physical strength coupled with threats may give reasonable cause to fear great personal injury.9 The court later found that:
“Something more than fear of size, however, is required to justify the use of deadly force in self-defense. Some affirmative action, gesture or communication by the person feared indicating the immediacy of the danger, the ability to avoid it and the necessity of using deadly force must also be present.”10
The court quoted with approval that a “man, because he is the physical inferior of another … is [not] … bound to submit to a public [assault] … If nature has not provided the means for such resistance, art may; in short, a weapon may be used… “11 The defendant mentioned was elderly, feeble, nearly blind and the victim of a stroke. He was cornered in a doorway when he pulled a revolver, gave a warning and killed a larger, younger man wielding a bullwhip. A physical inferior will be required to prove that his or her physical situation prevented retreat or a non-lethal resolution. The court cannot be relied on to take judicial notice of the obvious.
Power in Numbers: Group Attacks
In group attacks, a disparity of force is normally a given, a point relentlessly made by zombie movies. Missouri’s self-defense jury instruction specifically mentions multiple assailants working in concert.12 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.
A subtraction question may arise. 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.
There are schools for violence. They range from respectable martial arts studios and boxing gyms to street corners and penitentiaries. Some learn in the service of their country. This is often exaggerated, but a Special Forces Colonel was convicted in the death of his wife. Her neck had been broken, and he knew how to do that.13
Despite the popular myth, there is no registration of boxers or martial artists as “dangerous weapons.” The Supreme Court of Minnesota found that a punch from a trained boxer was not assault with a dangerous weapon.14 Only boxers are registered under 15 U.S.C. section 6301, and then only to record them, identify them, and license them.
Given the facts of biology, women are justified in the use of hazardous force in circumstances men would not be. Persons with physical disabilities or significantly older than their attacker or who are attacked by a group may also make this argument.
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.15 The charges were dismissed.
The armed citizen may be forced to use deadly force against an unarmed attacker simply to prevent him from capturing the citizen’s weapon. Police are constantly warned that there is at least one gun in any confrontation — the officer’s. Police are warned to defend their weapons, the implication being that deadly force is a last, but definite, resort.16
Normally the citizen claiming disparity of force will have been attacked by larger or more numerous foes. Most men are bigger, stronger and more vicious than most women. Given the facts of biology, women are justified in the use of hazardous force in circumstances men would not be. Persons with physical disabilities or significantly older than their attacker or who are attacked by a group may also make this argument.
Predators seek weak targets. We may thank Colonel Colt for making us equal.
[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. ]
- Bird The Concealed Handgun Manual 6th ed Privateer Press San Antonio TX 2011 at 204-6. There will be more on this indispensable book in later issues.
- My mother insists that I am not too old to spank and I have decided not to test her on this.
- State v Isom, 660 S.W.2d 739 (Mo. App. E.D. 1983) at 742.
- Author speaks increasingly as an expert witness.
- Case is still pending.
- Author witnessed scuffle.
- State v Vandevere, 175 S.W.3d 107 (Mo. 2005).
- State v Jackson, 522 S.W.2d 317 (Mo. App. St. Louis Dist. 1975) at 320
- State v Hicks, 438 S.W.2d 215 (Mo. 1969) at 218.
- State v Chambers, 671 S.W.2d 781 (Mo. banc 1984).
- State v Bartlett, 71 S.W. 148 (Mo. 1902).
- MAICR-306.06A note 8.
- http://www.cbsnews.com/stories/2000/11/07/48hours/main247859.shtml. There was other evidence. The Colonel insists on his innocence. When I was in Special Forces we were more interested in dropping air strikes on deserving people. We all carried knives, but didn’t want to get to know the enemy that well.
- State v Basting, 572 N.W.2d 281 (Minn. 1997).
- http://www.sun-sentinel.com/news/local/palmbeach/pb-boat-mur. 9/13/11.
- Nowicki ed. TOTAL SURVIVAL, Performance Dimensions Pub. Powers Lake, WI 1993 at 312.