NON disparity of force

TonsofOregonBrass · July 10, 2009, 03:00 PM

Here is a theoretical situation that I would like to know the legal ramifications to.

There is an attacker who is determined to fight you with a NON-disparity of force. You are armed, the attacker is not. You have retreated as far as you can. If you stand up and fight there is a high chance the attacker can get your weapon.

I am sure this depends on the state, but if you were to draw your weapon, would you then be brandishing? And if after drawing the attacker is still coming at you, what legal grounds would you have to fire if any?
Would the firearm being present be a disparity of force? Would it be viewed as escalating the situation?

I have been thinking about this for a while and although I am pretty good at researching the internet and using the search function here, I have not been able to find any cases where this has happened.

I am not looking for a “this is what I would do in that situation”, that is for another section of this site. I am looking for how this would most likely play out in court. I have only been to court for traffic tickets, nothing else. And as much as I would like to believe Law and Order is how things happen, I am fairly sure it is not what would happen.

Brian Pfleuger · July 10, 2009, 03:15 PM

Like so many other questions, the answer will depend largely on the law in the jurisdiction in question.

In some places, you may draw and threaten to use a firearm even when the actual use of the gun is not yet warranted, sort of as a deterrent.

In some places, exposing the firearm at any time that you are not justified in pulling the trigger would be a crime.

Also, there is more to the concept of disparity of force than armed vs unarmed. There can be many variables such as gender, age, number of opponents, size, strength, training, etc.

Generally, in a situation in which you have retreated as far as possible and you genuinely feel (a reasonable person would genuinely feel) that the person has the intention and ability to cause you significant (death or nearly) harm then you are most likely justified in using lethal force to respond.

In such a case, you have satisfied the legal requirements:

Opportunity, ability, jeopardy and preclusion.

The person has the opportunity to hurt you, you feel that they have the ability to hurt you and that you are in jeopardy (imminent) of that hurt being severe, and you have done all that you can to avoid it.

Don P · July 10, 2009, 03:20 PM

Here in FLA they would consider it brandishing and using it to gain the upper hand ( Felony ) in the situation you have laid out. We can legally stand our ground here in FLA. but you must feel you are in grave bodily danger or iminent death to use deadly force and THIS is the ONLY reason I would present a firearm. ( use it or keep it holstered )

TonsofOregonBrass · July 10, 2009, 03:56 PM

I knew it had to many variables, and it would be pointless to limit them (IMO).

I suppose a good qualifying question would be, how legal is it to protect your firearm from falling into the hands of an assailant?

would this be a case of manslaughter, murder, or self defense? if i am attacked and they take control of my gun, if my life wasn't in imminent danger it most certainly is now.

Brian Pfleuger · July 10, 2009, 04:02 PM

Quote:

I suppose a good qualifying question would be, how legal is it to protect your firearm from falling into the hands of an assailant?

would this be a case of manslaughter, murder, or self defense? if i am attacked and they take control of my gun, if my life wasn't in imminent danger it most certainly is now.

The situation is of course evolving in real time. What could have been an imminent threat 1 second ago, may no longer be, and vise versa.

You are most likely clear to use lethal force in self defense under the scenario you outlined. If you're a 6' 4" guy and the "assailant" is a 5' 2" 15 year old girl then you have a real problem with the "ability" criteria.

If it's a match of reasonably similar people, you're backed into a corner and the person has the demeanor and obvious intention of causing you real harm then you are probably OK to use lethal force. After all, you have no way of knowing when or if the person will stop. If they go for your gun then I don't see where you have many choices left.

Part of making sure you're doing the right thing is being verbal about it. "Stop! Stop or I'll shoot! Don't attack me or I'll shoot you! I have a gun, don't come any closer!" This not only gives them plenty of warning but may also provide witnesses and/or bring help.

rampage841512 · July 10, 2009, 04:21 PM

Quote:

Like so many other questions, the answer will depend largely on the law in the jurisdiction in question.

Too true. Give us at least the state you live in and we can give you some answers.

Also, don't draw unless you are going to shoot. There is no other reason. If you pull it, you had better be ready to use.

If this were happening to me, I'd say my action would probably be to draw and shoot if I had no other choice. The situation you describe, to me, is one in which I am almost certain to face death or severe injury, therefore justifying my use of lethal force.

Of course, I like to keep some pepper spray handy when I'm out and about too. IF I was out and about I would use that first and hope it made this person think twice. If they're still after me at that point I'm probably going to shoot. And this is of course assuming I have enough time to use pepper spray first.

If I'm in my home, well, then I am in a very, very good position legally to just shoot. If possible I'd draw and make the point that I was fully justified in shooting if they kept up the attack, but only if I could give that warning in safety.

Just my thoughts. I encourage you to take a long look at your state and local laws though. They may be very different from mine and thus would change the situation in the legal sense.

TonsofOregonBrass · July 10, 2009, 04:23 PM

Thank you Peetzakilla, your opinion is appreciated.

rampage841512 · July 10, 2009, 04:26 PM

Well, I guess I could look at your user name to figure out where you are, huh?

There are a few members from Oregon around here, hopefully they will stop by and give an opinion.

Doc Intrepid · July 10, 2009, 04:49 PM

If you are thinking this far ahead of the curve, there are many who advocate carrying something useful in between no response and lethal response.

Examples include personal sirens, (more often) OC pepper sprays or, slightly further along the continuum of force, ASP expanding batons.

There are pros and cons to each, obviously.

Otherwise, you're correct in assuming there are many plausible situations where risk may be perceived, but things haven't developed to the point of gravest extreme - that point where you might be justified in producing a weapon (within the laws of whatever jurisdiction you may find yourself.)

Legal ramifications for use of non-lethal force are often (but not always) more forgiving than for firearms.

FWIW.

Brian Pfleuger · July 10, 2009, 04:55 PM

Indeed.

Some level of less than lethal force would be prudent, if available and time permitting.

TonsofOregonBrass · July 10, 2009, 05:14 PM

I was trying to avoid all out what if scenarios. this is something i personally do not fear or plan for. however the legal system intrigues me. the double standards that get applied sometimes amaze me. I do not carry non-lethal. when working i just carry a small pocket pistol and a couple magazines.

I don't see this ever happening to me, or really anyone i know. but knowing the legal ramifications of your actions before hand can help you make a judgment call later. If you have thought the situation out before then you are more likely to make a better decision under stress.

Brian Pfleuger · July 10, 2009, 05:41 PM

Quote:

I don't see this ever happening to me, or really anyone i know. but knowing the legal ramifications of your actions before hand can help you make a judgment call later. If you have thought the situation out before then you are more likely to make a better decision under stress.

Very true and an excellent idea.

The "what if" scenario problem is the reason why I tend not to go into theories that are not presented in the OP. I assumed that if you were interested in pepper spray then you would have asked... but since someone else brought it up....

mskdgunman · July 10, 2009, 06:15 PM

I agree with the poster who stated not to draw it unless you're going to shoot it. Once the gun is in your hands, you have a limited number of choices. You can shoot it, put it up or be stuck with it in your hands during a hand to hand confrontation in which deadly force may or may not be warranted. In the latter case, you now have one hand (which you may need) occupied with a weapon that you can't use and can't afford to let fall into the hand of your attacker.

Sometimes, even for a civilian, a lower level of defensive equipment is a good idea (pepper spray or an ASP) for situations where where you are in a situation which, while threatening, does not call for the application of deadly force. This would be in addition to the handgun of course. Thats why they give us all that **** on our belts...to give us options.

July 10, 2009, 03:00 PM	#1
TonsofOregonBrass Member Join Date: March 10, 2009 Posts: 39	NON disparity of force Here is a theoretical situation that I would like to know the legal ramifications to. There is an attacker who is determined to fight you with a NON-disparity of force. You are armed, the attacker is not. You have retreated as far as you can. If you stand up and fight there is a high chance the attacker can get your weapon. I am sure this depends on the state, but if you were to draw your weapon, would you then be brandishing? And if after drawing the attacker is still coming at you, what legal grounds would you have to fire if any? Would the firearm being present be a disparity of force? Would it be viewed as escalating the situation? I have been thinking about this for a while and although I am pretty good at researching the internet and using the search function here, I have not been able to find any cases where this has happened. I am not looking for a “this is what I would do in that situation”, that is for another section of this site. I am looking for how this would most likely play out in court. I have only been to court for traffic tickets, nothing else. And as much as I would like to believe Law and Order is how things happen, I am fairly sure it is not what would happen.

July 10, 2009, 03:15 PM	#2
Brian Pfleuger Moderator Emeritus Join Date: June 25, 2008 Location: Austin, CO Posts: 19,578	Like so many other questions, the answer will depend largely on the law in the jurisdiction in question. In some places, you may draw and threaten to use a firearm even when the actual use of the gun is not yet warranted, sort of as a deterrent. In some places, exposing the firearm at any time that you are not justified in pulling the trigger would be a crime. Also, there is more to the concept of disparity of force than armed vs unarmed. There can be many variables such as gender, age, number of opponents, size, strength, training, etc. Generally, in a situation in which you have retreated as far as possible and you genuinely feel (a reasonable person would genuinely feel) that the person has the intention and ability to cause you significant (death or nearly) harm then you are most likely justified in using lethal force to respond. In such a case, you have satisfied the legal requirements: Opportunity, ability, jeopardy and preclusion. The person has the opportunity to hurt you, you feel that they have the ability to hurt you and that you are in jeopardy (imminent) of that hurt being severe, and you have done all that you can to avoid it. __________________ Nobody plans to screw up their lives... ...they just don't plan not to. -Andy Stanley Last edited by Brian Pfleuger; July 10, 2009 at 03:39 PM.

July 10, 2009, 03:20 PM	#3
Don P Senior Member Join Date: December 17, 2005 Location: Swamp dweller Posts: 6,187	Here in FLA they would consider it brandishing and using it to gain the upper hand ( Felony ) in the situation you have laid out. We can legally stand our ground here in FLA. but you must feel you are in grave bodily danger or iminent death to use deadly force and THIS is the ONLY reason I would present a firearm. ( use it or keep it holstered ) __________________ *NRA Life Member, NRA Chief Range Safety Officer, NRA Certified Pistol Instructor,, USPSA & Steel Challange NROI Range Officer, ICORE Range Officer, ,MAG 40 Graduate* *As you are, I once was, As I am, You will be.*

July 10, 2009, 03:56 PM	#4
TonsofOregonBrass Member Join Date: March 10, 2009 Posts: 39	to many variables I knew it had to many variables, and it would be pointless to limit them (IMO). I suppose a good qualifying question would be, how legal is it to protect your firearm from falling into the hands of an assailant? would this be a case of manslaughter, murder, or self defense? if i am attacked and they take control of my gun, if my life wasn't in imminent danger it most certainly is now. __________________ Working Today to Preserve the Rights of Others to Enjoy the Same Forest We Do.. Tomorrow http://www.oregon-brass.com

July 10, 2009, 04:23 PM	#7
TonsofOregonBrass Member Join Date: March 10, 2009 Posts: 39	thank you Thank you Peetzakilla, your opinion is appreciated. __________________ Working Today to Preserve the Rights of Others to Enjoy the Same Forest We Do.. Tomorrow http://www.oregon-brass.com

July 10, 2009, 04:26 PM	#8
rampage841512 Senior Member Join Date: July 16, 2007 Location: Gardendale, Alabama Posts: 665	Well, I guess I could look at your user name to figure out where you are, huh? There are a few members from Oregon around here, hopefully they will stop by and give an opinion. __________________ "What is play to the fool and the idiot is deadly serious to the man with the gun." Walt Rauch,Combat Handguns, May '08

July 10, 2009, 04:49 PM	#9
Doc Intrepid Senior Member Join Date: May 22, 2009 Location: Washington State Posts: 1,037	If you are thinking this far ahead of the curve, there are many who advocate carrying something useful in between no response and lethal response. Examples include personal sirens, (more often) OC pepper sprays or, slightly further along the continuum of force, ASP expanding batons. There are pros and cons to each, obviously. Otherwise, you're correct in assuming there are many plausible situations where risk may be perceived, but things haven't developed to the point of gravest extreme - that point where you might be justified in producing a weapon (within the laws of whatever jurisdiction you may find yourself.) Legal ramifications for use of non-lethal force are often (but not always) more forgiving than for firearms. FWIW.

July 10, 2009, 04:55 PM	#10
Brian Pfleuger Moderator Emeritus Join Date: June 25, 2008 Location: Austin, CO Posts: 19,578	Indeed. Some level of less than lethal force would be prudent, if available and time permitting. __________________ Nobody plans to screw up their lives... ...they just don't plan not to. -Andy Stanley

July 10, 2009, 05:14 PM	#11
TonsofOregonBrass Member Join Date: March 10, 2009 Posts: 39	trying not to do what if I was trying to avoid all out what if scenarios. this is something i personally do not fear or plan for. however the legal system intrigues me. the double standards that get applied sometimes amaze me. I do not carry non-lethal. when working i just carry a small pocket pistol and a couple magazines. I don't see this ever happening to me, or really anyone i know. but knowing the legal ramifications of your actions before hand can help you make a judgment call later. If you have thought the situation out before then you are more likely to make a better decision under stress. __________________ Working Today to Preserve the Rights of Others to Enjoy the Same Forest We Do.. Tomorrow http://www.oregon-brass.com

July 10, 2009, 06:15 PM	#13
mskdgunman Senior Member Join Date: December 28, 2008 Posts: 127	I agree with the poster who stated not to draw it unless you're going to shoot it. Once the gun is in your hands, you have a limited number of choices. You can shoot it, put it up or be stuck with it in your hands during a hand to hand confrontation in which deadly force may or may not be warranted. In the latter case, you now have one hand (which you may need) occupied with a weapon that you can't use and can't afford to let fall into the hand of your attacker. Sometimes, even for a civilian, a lower level of defensive equipment is a good idea (pepper spray or an ASP) for situations where where you are in a situation which, while threatening, does not call for the application of deadly force. This would be in addition to the handgun of course. Thats why they give us all that **** on our belts...to give us options.

Thread Tools	Search this Thread
Show Printable Version Email this Page	Search this Thread: Advanced Search