Disparity of force definition and question

This is a discussion on Disparity of force definition and question within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; My understanding of "disparity of force" is one individual being unable to provide the same amount of force as the opponent due to physical capability. ...

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Thread: Disparity of force definition and question

  1. #1
    Member Array sandman1212's Avatar
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    Disparity of force definition and question

    My understanding of "disparity of force" is one individual being unable to provide the same amount of force as the opponent due to physical capability. An example would be a 5'2" 105LBS woman against a 6'3" 230LBS Male.

    Would the following fit in the same Category and elevate the use of force to the use of deadly force for a fist fight?:
    A person with a disease called Hemophilia, a disorder where Blood does not clot due to vital missing components that the body does not produce like a regular person and they continue to bleed until they receive a very expensive medicine (called Factor replacement therapy) or they bleed out (either internally or externally).
    If they were in a fist fight or car accident the injuries they receive very possibly are life threatening especially a head injury. This would cause swelling on the brain and cause death, depending on severity of injury within 1/2 hour or sooner.

    I believe it would...but would it make a good defense?

    Thoughts???
    KAHR CW45, RIA 1911 Officer, S&W Sigma 9MM, Savage 1907 .32cal(BUG)

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    VIP Member Array Guantes's Avatar
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    It sounds reasonable. Just like justification for the use of force, depending on a number of factors, it may wind up being decided in court.

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    I would say that hemophilia would be a mitigating factor in attempting to articulate there was a disparity of force present when lethal force was used to repel an attack by an otherwise unarmed individual.

    However, there is no law about disparity of force. It is merely an argument which is used as to justify ones actions for using lethal force against a person who is usually unarmed. Where ordinarily and if things were on an even playing field, lethal force would not otherwise be justified.

    So the bottom line is going to be whatever a jury decides based on their understanding of what hemophilia is as well as the totality of the events which took place. And, how well you and your defense team can present a case in which disparity of force should be considered in this case of homicide. A jury may decide that yes, there was a disparity of force present, but it didn't rise to the level, or you didn't do enough to extricate yourself from the situation as to excuse the homicide you committed.

    For example, you're not going to be able to go around instigating situations and starting fights or escalating the situation and then expect to be excused when you kill someone because you happen to be a hemophiliac. If you're the aggressor and started the situation, or were committing a felony, good luck trying to get a jury to buy your excuse.

    Of course expert medical testimony from a physician regarding the risks hemophiliac faces when being attacked or physically assaulted may be key to the defense. It is also my understanding there are more severe cases or levels of hemophilia in some people than others. One could expect a prosecutor is going to bring in expert witnesses of their own to dispute what your physician may state. You start comparing Factor VII and Factor IX deficiencies and the treatment thereof, and juries start to get confused and then it's anyone's bet as to which way the jury is going to decide.
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    Check out: Defending the Self-Defense Case

    http://www.nacdl.org/public.nsf/698c...c?OpenDocument

    "Disparity of force" is but one element in the question "Would a Reasonable Person Believe the Client Was In Imminent Danger?"
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    Member Array sandman1212's Avatar
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    Quote Originally Posted by Bark'n View Post
    I would say that hemophilia would be a mitigating factor in attempting to articulate there was a disparity of force present when lethal force was used to repel an attack by an otherwise unarmed individual.

    However, there is no law about disparity of force. It is merely an argument which is used as to justify ones actions for using lethal force against a person who is usually unarmed. Where ordinarily and if things were on an even playing field, lethal force would not otherwise be justified.

    So the bottom line is going to be whatever a jury decides based on their understanding of what hemophilia is as well as the totality of the events which took place. And, how well you and your defense team can present a case in which disparity of force should be considered in this case of homicide. A jury may decide that yes, there was a disparity of force present, but it didn't rise to the level, or you didn't do enough to extricate yourself from the situation as to excuse the homicide you committed.

    For example, you're not going to be able to go around instigating situations and starting fights or escalating the situation and then expect to be excused when you kill someone because you happen to be a hemophiliac. If you're the aggressor and started the situation, or were committing a felony, good luck trying to get a jury to buy your excuse.

    Of course expert medical testimony from a physician regarding the risks hemophiliac faces when being attacked or physically assaulted. It is also my understanding there are more severe cases or levels of hemophilia in some people than others. One could expect a prosecutor is going to bring in expert witnesses of their own to dispute what your physician may state. You start comparing Factor VII and Factor IX deficiencies and the treatment thereof, and juries start to get confused and then it's anyone's bet as to which way the jury is going to decide.
    Bark'n- It seems you have a good understanding of the disease. My 5YO is factor IX deficient down to 2%, basically middle of the road. If he turns out in the future to be like his older brothers and sisters, he will be a firearms enthusiast as well. I would not be surprised if he eventually conceal carries himself.
    I raise all my kids that fighting is not an answer, But do not fail to defend yourself should the need arise. Well for him it would be a different situation knowing that a physical confrontation could be deadly.
    KAHR CW45, RIA 1911 Officer, S&W Sigma 9MM, Savage 1907 .32cal(BUG)

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    Senior Member Array JohnK87's Avatar
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    In any self defense shooting, you are admitting to the assault/homicide and self defense is your reasoning. You have to be able to articulate why you HAD to take that action in a way that a juror would agree it was a reasonable action. Hemophilia would help in that regard, but in and of itself may not be enough.
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    Disparity of force alone is not going to save a person when there has been a shooting. It is only one factor that will be looked at by the DA and eventually a jury if charges are filed.
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    As the old saying goes, better tried by 12 than carried by 6. If I were a hemophiliac, I think I would rather meet with a jury than an undertaker. I'm sure a jury would be sympathetic to anyone suffering from a disease that were life threatening if that person were the victim of even simple assault. If a doctor were able to add their testimony, so much the better.
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    Distinguished Member Array Black Knight's Avatar
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    I am not a lawyer so take my opinion with grain of salt, but I would classify it in the same manner as someone with a cardiac condition or a pacemaker. They can't fight a prolonged fight either and would be in serious medical distress if they tried. In many states the laws are written so that a defending person needs to be in fear of imminent serious bodily injury or death. Either of these situations would fill that requirement in my opinion.

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