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Old April 27, 2013, 04:49 PM   #1
Koda94
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disparity of force in retreat

If an unarmed person is attacking you and you make every attempt at retreating and removing yourself from the situation and the attacker pursues you do you have the right to use deadly force if you cannot retreat any further to safety? Does disparity of force still apply after exhausting efforts to get away?
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Old April 27, 2013, 05:23 PM   #2
wally626
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Not up on Oregon self defense law, but with very few exceptions to use deadly force legally you need to fear death or great bodily harm to yourself or others before using deadly force. Disparity of force can certainly come into that reasoning.
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Old April 27, 2013, 05:31 PM   #3
Koda94
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good point, so if there is no disparity of force then one could not justify deadly force in defense even after retreating.
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Old April 27, 2013, 10:49 PM   #4
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Maybe. If you are a 93-pound woman, and the unarmed attacker is a 250-pound male, you certainly have a reason to be in fear of grievious harm or death. I would think the same disparity in age or ability would also apply, such as 65-year old vs. a 23-year old, or a victim in a wheelchair.
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Old April 27, 2013, 11:07 PM   #5
Aguila Blanca
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Quote:
Originally Posted by Koda94
good point, so if there is no disparity of force then one could not justify deadly force in defense even after retreating.
I don't believe he said that, and I don't believe that's the case. A smaller person can score a lucky hit and kill a larger person. Disparity of force is one factor that may be part of justifying a fear of incurring death or serious bodily injury, but it's not the only factor.

The fact is, if I have attempted to retreat and disengage, and the assailant pursues me and will not ALLOW me to disengage, that IMHO is enough right there to generate a fear of death or serious bodily injury.

Remember, in those states whose laws still include a duty to retreat, most of them add "in complete safety." If the assailant is pursuing me while I am attempting to retreat, I am not exactly retreating "in complete safety," am I? If I cannot retreat "in complete safety," then those states authorize me to use force (up to and including lethal force) to defend myself.
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Old April 27, 2013, 11:19 PM   #6
Tom Servo
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Re: disparity of force in retreat

Quote:
Originally Posted by Koda94 View Post
Does disparity of force still apply after exhausting efforts to get away?
Much of the time, it does. Many states have a "reasonable man" standard, under which the jury must find that a reasonable person would have felt they were in immediate jeopardy of life or serious injury.

It's difficult to apply a universal standard to dynamic and unpredictable situations, though.
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Old April 27, 2013, 11:27 PM   #7
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Would probably depend on your state laws and the situation. Someone mentioned 95lb female vs 250lb guy. One could make an argument that hands, feet, and teeth can be very effective weapons, remember the man in florida that got his face eaten off and his eyes gouged out by the unarmed naked man in miami?

In my opinion it would justify brandishing the firearm and commanding them to stop. Give them very clear warning that they will be shot if they do not lay down on the ground, if they persist and you still fear for your safety its time to start shooting.

A lawyer would be a better source of advice, but if you made an active effort to get away and tell them what is about to happen if they do not stop, I would hope that the law is on your side and not the attacker.
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Old April 28, 2013, 01:02 AM   #8
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In WA state Law: RCW 9A.16.110...one way of looking at it. Especaially look at the questions at the end.



RCW 9A.16.110

Defending against violent crime — Reimbursement.




(1) No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.

(2) When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. This reimbursement is not an independent cause of action. To award these reasonable costs the trier of fact must find that the defendant's claim of self-defense was sustained by a preponderance of the evidence. If the trier of fact makes a determination of self-defense, the judge shall determine the amount of the award.

(3) Notwithstanding a finding that a defendant's actions were justified by self-defense, if the trier of fact also determines that the defendant was engaged in criminal conduct substantially related to the events giving rise to the charges filed against the defendant the judge may deny or reduce the amount of the award. In determining the amount of the award, the judge shall also consider the seriousness of the initial criminal conduct.

Nothing in this section precludes the legislature from using the sundry claims process to grant an award where none was granted under this section or to grant a higher award than one granted under this section.

(4) Whenever the issue of self-defense under this section is decided by a judge, the judge shall consider the same questions as must be answered in the special verdict under subsection (4) [(5)] of this section.

(5) Whenever the issue of self-defense under this section has been submitted to a jury, and the jury has found the defendant not guilty, the court shall instruct the jury to return a special verdict in substantially the following form:








answer yes or no




1.

Was the finding of not guilty based upon self-defense?

. . . . .




2.

If your answer to question 1 is no, do not answer the remaining question.






3.

If your answer to question 1 is yes, was the defendant:






a.

Protecting himself or herself?

. . . . .




b.

Protecting his or her family?

. . . . .




c.

Protecting his or her property?

. . . . .




d.

Coming to the aid of another who was in imminent danger of a heinous crime?

. . . . .




e.

Coming to the aid of another who was the victim of a heinous crime?

. . . . .




f.

Engaged in criminal conduct substantially related to the events giving rise to the crime with which the defendant is charged?

. . . . .
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Old April 28, 2013, 01:03 AM   #9
Koda94
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Quote:
Originally Posted by Aguila Blanca
The fact is, if I have attempted to retreat and disengage, and the assailant pursues me and will not ALLOW me to disengage, that IMHO is enough right there to generate a fear of death or serious bodily injury.
I agree, that is actually why I posted the question. But that may or may not mean a jury will agree.
Also, not only can a smaller person score a lucky hit but also have some other advantage at the moment perhaps if you injured yourself attempting to retreat or they already scored a major hit in the initial ambush and you could only run so far.

What constitutes a disparity of force may be difficult to judge in some cases as well as proving what a reasonable person would do. Its just that when I decide to carry I put in my mindset that under all circumstances its my duty to do everything possible never to draw the weapon, then I end up thinking of questions like this.

on a related topic i could use some help finding the ORS regarding any duty to retreat if there is one. What interesting is I find that use of 'physical' force is justifiable if you are retreating.... but you were the initial aggressor and decided to abort (paraphrased, as I interpreted it see ORS 161.215(2)). Now this does not apply to my question but might relate except that I would never be the aggressor and it does not say 'deadly' force....
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Old April 28, 2013, 01:12 AM   #10
Koda94
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Quote:
Originally Posted by hermannr
In WA state Law: RCW 9A.16.110...one way of looking at it.
Interesting, thanks for posting that actually I'm not from Washington but live near the border... as if one does not have enough statutes to sift through.
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Old April 28, 2013, 01:33 AM   #11
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I looked in the OR code (ORS 166) and the ORS key, and could not find an equivalent to WA 9A.16.110. The key points to ORS 166.209...unfortunately ORS 166.209 no longer exists???

I lived in OR many years ago, and it was my understanding OR and WA do not have a specific "stand you ground" law, but court cases have made it effectively "stand your ground" and there is no legal requirement to retreat from any place you are legally present if attacked...you do know that more people are murdered by hands and feet than rifles every year???? Just because someone is only armed with their hands and feet does not mean you are not in danger.

Does that mean you can just shoot any aggressor? No, but it does mean you do not have to flee.
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Old April 28, 2013, 07:41 AM   #12
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Quote:
Originally Posted by Koda94
disparity of force in retreat
If an unarmed person is attacking you and you make every attempt at retreating and removing yourself from the situation and the attacker pursues you do you have the right to use deadly force if you cannot retreat any further to safety? Does disparity of force still apply after exhausting efforts to get away?
Disparity of force is a separate question from retreat. However, if I retreat from an attacker, and that attacker (whether unarmed or not) pursues me until I cannot retreat any further, I think it fair to assume that said attacker intends to do me harm.

Although I can't help but think of the paperboy from the movie Better off Dead: "I want my two dollars!" In that case, the paperboy may intend to do me bodily harm, but a jury would certainly question whether he was capable of it.
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Old April 28, 2013, 08:19 AM   #13
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It comes down to articulating why you were in fear of death or great bodily harm. Even if it's a ground fighting situation and you are carrying what's going to happen when your firearm is discovered by the guy you are fighting. How many people use retention holsters?
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Old April 28, 2013, 09:35 AM   #14
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The Model Penal Code developed in the 1970's, under duty to retreat, has two exceptions:
+When retreat would expose the attacked person to the lielihood of more harm
+When retreat would unreasonably take a person's freedom away, such as forcing one out of one's home.

I'll add a third one that is in CA law and other states, that can be called the "last aggressor" rule...if you start a fight, say, and then make it clear you are exiting, have no further aggression in mind, and the other party pursues you to reengage, that party has started a new fight and is the aggressor. Depending on circumstances, you can use lethal force if necessary in self-defense. One version of the Martin-Zimmermann situation is exactly this.

http://www.volokh.com/2012/04/03/the...y-and-liberty/

Good summary at the above cite.
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Old April 28, 2013, 10:31 AM   #15
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I live in a stand-your-ground state (also shall-issue and castle-doctrine), and I'm grateful for that. I'm also seventy-five, with COPD, worn-out knees, and other problems. Can't run, and can't fight worth a damn. I'll make every effort to avoid trouble and won't be the aggressor. But if saving my life or someone else's, or preventing serious bodily injury to me or another blameless individual, becomes the issue in my mind, "disparity of force" will not be a factor in what I decide to do. It'll be save my butt first and worry about detailed justification later.
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Old April 28, 2013, 10:43 AM   #16
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To put it simply, The question or whether one is is the process of retreating is unrelated to the disparity of force. Either there is a clear and present danger to life and limb, or there isn't.
If 1, there IS a disparity of force, and 2, there is a clear and present threat to life or limb, then self-defense with a weapon is justified.

And just to expand, if there is a threat and NO disparity of force, self defense is STILL justified, but one may only use such force as is necessary to stop the threat.

Example: You're a healthy adult male, a scrawny thirteen year old is taking swings at you, you can resist, block, punch back, kick, but you CAN'T beat him to within an inch of his life once the threat is over.
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Old April 28, 2013, 10:44 AM   #17
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shouldazagged, I am not a great runner, but I am a decent fighter. The problem is, my martial arts experience tells me it doesn't take long to really do a number on a person.

So, I am skilled enough to know that a carotid choke will render a person unconscious in 7-10 seconds, and who knows what will happen after that? And I am skilled enough to know that a good takedown can dislocate a shoulder or an elbow before the guy hits the ground. (Sometimes this can even happen on the mat, and not by design - dislocated a friend's shoulder once, during a takedown; he waited too long to take a roll or break-fall.)

Which means that even though I do know what I am doing, I also fully appreciate the damage an unarmed guy can do, and would prefer not to test my skills against his in an uncontrolled environment.

If he seems to be enough of a threat that I should worry, at all, then he probably justifies at minimum a display of potential force.

Also, the "unarmed" guy may be holding a knife or gun behind his hip. That punch you think is coming could be a stab, or a gunshot.

Deputy Jared Reston, in Jacksonville, thought Joel Abner was turning to throw a punch at him, when Abner shot Reston in the jaw with a .45. The deputy had not seen the gun, prior to the shot being fired.

So, once again, I'd be wary of assuming the other guy is unarmed, or that if he is unarmed he is incapable of doing serious damage.
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Old April 28, 2013, 10:45 AM   #18
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maestro, a guy I used to work with once got shot by a 13yo. His police department was raiding a gang's house. He did not take the 13yo as a serious threat; the kid pulled a small auto and shot him in the gut. Vest stopped the bullet, but he still took some blunt force damage to his liver.
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Old April 28, 2013, 12:24 PM   #19
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While not State specific UseofForce.us is an excellent resource for understanding self defense law in general terms.
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Old April 28, 2013, 05:47 PM   #20
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An armed 13 year old presents a clear disparity of force. That's a hard lesson (assuming the 13 year old wasn't a threat, that is).

[edited for clarity]

Last edited by maestro pistolero; April 29, 2013 at 01:05 AM.
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Old April 28, 2013, 06:46 PM   #21
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Quote:
An armed 13 year old presents a clear disparity of force. That's a hard lesson, assuming the 13 year old wasn't a threat.
Certainly, in a raid on a gang hangout the officers were also armed, and probably better than the 13-year old kid. So there was indeed a clear disparity of force, even with the kid being armed ... in favor of the police officer. Which merely proves that disparity of force is not the only factor to be considered.

I'm not a police officer and I don't wear a kevlar vest. I do carry a 1911 chambered in .45 Auto. I'm over 6 feet tall and I weigh about 230 pounds. If I were held up by a 13-year old kid who had a dinky .380 Keltec or similar gun, the disparity of force would be on my side both with regard to the weapons, and to the likelihood of who might win a physical altercation.

But the fact is, one hit from that dinky .380 could seriously ruin my day. If that kid is pointing that gun at me and threatening to shoot, darned tootin' Skippy I'm in fear of death or serious bodily harm, and the fact I happen to have a bigger, badder gun doesn't offset that.
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Old April 29, 2013, 12:13 PM   #22
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I've always despised the use of "disparity of force" in the determination of whether a shooting event is legit or not. It is easy to make misjudgements, and easy to misunderstand the meaning of the term.

I prefer to think of it as two simple yes or no questions:

Question A: did the actor(s) pose a credible threat to the person doing the shooting, based on the knowledge (and/or lack of knowledge) available to the shooter at the time?

Question B: would a reasonable person have felt in fear for his/her life (or that of others) based on the actions of the other party and the circumstances at the time?

If the answer to both questions is Yes, then to me this is a very clear sign that, other things being equal, this is likely to be a good shoot. It's when either question (or, worse, both) cannot be answered with a definitive Yes that problems in justification arise.
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Old April 29, 2013, 05:02 PM   #23
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csmsss, Disparity of Force is not required, it is simply one of several factors that could prove helpful for a defense.

For instance, if another guy my size, age, and general health decides to try to use a deadly weapon on me in furtherance of a crime (say, robbery), it doesn't matter if his weapon is better than mine or inferior to mine. The elements for self-defense are met, at least here (I have no duty to retreat).

Where Disparity of Force might come into play would be in the case of an unarmed belligerent, where disparity might justify use of deadly force even though the assailant did not have a deadly weapon.
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Old April 29, 2013, 05:30 PM   #24
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Disparity or force can be a factor used to justify self defense in many situations. it is not looked at to decide who has the bigger, more powerful gun.

Two assailants may create a sufficient defense for one victim to have used deadly force. Two equally healthy young males may initially have no disparity of force between them, but DOF may develop in an altercation where one party is no longer able to defend himself, but the other party fails to cease the attack.

DOF has many shades of gray and we should all hope never to be relying on DOF as a primary defense in a criminal case.
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Old April 29, 2013, 09:00 PM   #25
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I've seen unarmed altercations where people beat on each other for what seemed like an eternity with no one getting seriously injured.

I've seen a couple where weaker smaller people sent people to the hospital in well under a minute. I'm not talking about well trained individuals either.

The reasonable person with a fear of serious bodily injury test has always seemed crazy to me. Why should I be legally required to take such risks with my life if I am attempting to retreat from an aggressor?
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