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Disparity of force, the unarmed opponent and fear

Discussion in 'Carry Issues' started by Sam Spade, May 5, 2012.

  1. Sam Spade

    Sam Spade Lifetime Member

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    A recurring theme on the board is shooting in response to an unarmed attack. Though I don't know every poster's background, some of the undercurrents concern me. So, this post on the basics involved. The material in it is drawn primarily from Ayoob's course on the judicious use of deadly force (by permission) and my work in LE covering use of force.

    First, the justification for the use of deadly force. It has to be based on a reasonable fear for your life. That means that you have to be able to articulate that your opponent has the means, the opportunity and the intent to kill you or do great bodily injury. (Some refer to ability, opportunity and jeopardy. I think the way I was originally taught is clearer.)

    Opportunity is the delivery system--can he make good on his desire. Talking about unarmed assailants, that means that they have to be close, and not on the other side of a locked door or 8' chain link fence. Close doesn't mean touching, but in practical terms, it likely will. You should consider the practicality of your method of carry and your ability to present and employ the firearm at those tight distances. It's highly likely that you're going to have to fight your way to the gun.

    Intent talks to the actual plan of the opponent. You don't have to be a mind-reader, but you do have to be able to articulate what made you believe that a potentially lethal assault was about to be delivered. Documentable knowledge about pre-assault clues is a plus here.

    Means refers to the method of delivering lethal or near-lethal force. I saved this for last, because it's where the issue arises when talking about an unarmed adversary. The totality of the circumstances matter, but you need to describe some disparity of force between you and the other guy. When we're talking average guy against average guy, you're going to have a very hard time explaining that he was a lethal threat. Why? The DoJ figures have some 2.4 million simple assaults occuring every year. http://bjs.ojp.usdoj.gov/content/pub/pdf/cv10.pdf That's obviously a lot. But when we look to homicides, there were only 745 as a result of beatings in 2010. http://www.fbi.gov/about-us/cjis/uc.../crime-in-the-u.s.-2010/tables/10shrtbl08.xls It's on you to explain how that 0.31% ratio rises to a reasonable fear in your case.

    So you need a disparity in force that you're using the gun to equalize. That can be petite woman vs. monster man, it can be arthritic gandparent vs young banger, it can be a significant disparity of numbers. Or it can be a disparity as a result of situation--you're down and can't get up, you're hit and feel yourself blacking out. Ayoob, who should know, says that there isn't any large body of research on what match-ups are "fair" and which support the use of deadly force. My own student shot in a 3:1 situation after taking blows to the head and was prosecuted vigorously (2 trials, both that ended in hung juries. No conviction, but more than one juror wanted to send him to prison.)

    This all comes back to the reasonable fear that I referenced above. Not all fear is reasonable. Reasonable fear can be articulated through means, opportunity and intent as described. Terror, or naked fear, or unreasonble fear doesn't make the grade. If you're relying on stories of one-punch deaths to justify your actions, you've got to overcome that 745:2,400,000 ratio, and you have to deal with the mind of every juror that's been in schoolyard fight or seen a boxing match. Naked fear is that "well, it could happen" thing; you have to avoid it. Reasonable fear is "it's happening now, and I know why".

    Anyway, I hope this sparks research and consideration. Please let me know if I've been unclear on anything.
     
    happyguy likes this.
  2. jdavionic

    jdavionic NRA Member

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    I think you need to clarify on the justification. The specifics vary...for example, some states cite '...you believe your life was in danger or you were in danger of great bodily harm.' When discussing beatings (or more specifically, mob beatings), you may want to clarify this area.
     

    Last edited: May 5, 2012

  3. Ljunatic

    Ljunatic On The Fringe

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    Aren't you interchanging "Intent" with ability....not the same thing in my opinion.

    [ame]http://youtu.be/EsQeTKnD_f0[/ame]
     
    Last edited: May 5, 2012
  4. Sam Spade

    Sam Spade Lifetime Member

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    I don't believe so; I agree they're not the same. Ability/means is the tool which causes death or great bodily harm. Jeopardy/Intent is the desire, expressed or reasonably inferred, to inflict death or great bodily harm.
     
  5. Ljunatic

    Ljunatic On The Fringe

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    Do you really think one can accurately assess the intent of an attacker while engaged in the process of defending themselves?

    I think most take too long to process even the fact that they are being attacked with deadly force until it is too late.
     
  6. Sam Spade

    Sam Spade Lifetime Member

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    Absolutely. The key is from the volumes of court cases in LE use of force: you don't have to be right, you just have to be reasonable. Let's step away from unarmed stuff for a second just to illustrate: some dude points a gun at you in a dark alley. You follow up with the "indicated response" and his corpse is found clutching a non-firing replica. Clearly, he was incapable of having any true intent to kill you and you were factually in no danger whatsoever. Doesn't matter: you were wrong but reasonable. The same principle with different details applies to the unarmed attack that you're defending against. Study, training and life experience gives you the data base to draw on.

    Taking too long to realize you're about to be under attack to begin with is a function primarily of awareness and alertness. I agree that most people aren't very alert, and most middle class suburbanites aren't aware of what they sees tually means.
     
  7. Ljunatic

    Ljunatic On The Fringe

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    In re-reading your Intent statement, I think it is more clear to me now that you have expanded your thoughts.

    ETA

    I think that it is much tougher to do in the instance of an unarned attacker
     
    Last edited: May 6, 2012
  8. Hour13

    Hour13 Tah-dah!

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    Sam, EXCELLENT thread, thank you for posting it.

    This needs to be a sticky!



    IMO, taking somebody else's life is a last resort, not a first response. Largely because I really have no desire to find myself on the receiving end of a pissy DA. In a situation involving an unarmed attacker, I'll do whatever I can to avoid having to shoot the bugger. GTFO of there, knock the bastard's teeth out, whatever. If I can break away enough to create a gap where I'm out of arm's reach, I'll present my weapon.

    If all else fails, or the attack is so sudden there's no chance to utilize the above actions, then I'll do what has to be done.

    By "unarmed" I mean he's got nothing but his hands. Knife, bottle, pool cue, fork, whatever... that's a different story.
     
  9. Warp

    Warp ΜΟΛΩΝ ΛΑΒΕ

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    I'm curious as to why you used simple assault and death as the two examples.

    How many that qualified as "great bodily injury", but not death? I'm sure using that would change the ratio quite a bit.
     
  10. Sam Spade

    Sam Spade Lifetime Member

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    Of course it will change it some. But aggravated assaults are harder to count. While a body is a body, agg assault includes assaults that are aggravated by the nature of the victim. Tweak my nose at work, slap a teacher, punch a youth, it's agg.

    Nonetheless, here're the feebs numbers; take them as a ceiling: http://www.fbi.gov/about-us/cjis/uc...u.s.-2010/violent-crime/aggravatedassaultmain 778,901 aggravated assaults, of which 27.4%, or 213,000 were committed with hands/feet. Compared to the 2.4 million simple assaults, that's 8.9%. And, of course, the infamous one-punch cripple is going to be a small fraction of that. I think you've still got a real uphill battle.

    Of course the totality of the circumstances means we have to consider your physical condition, etc.
     
  11. tim12232

    tim12232 Pistolero

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    This is a great thread! Lots of really valuable information being shared!
     
  12. metallitera

    metallitera

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    Without turning this into a "what-if" thread.........

    Say I branish my weapon, because bad guy has fists raised wanting to knock my teeth in..i point gun at him and say stop right there....he does not. Now this is a person continuing to make an advance on me, with a gun pointed at him. In my mind, a reasonable person would cease and decist their advance and/or tuck tail and run, therefore i will discharge my weapon if this person continues their advance if i have no means of escape.
     
  13. Ljunatic

    Ljunatic On The Fringe

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    My concerns are a bit about this mindset that someone is unarmed because they have not displayed any weapon(yet)

    Would that not be similar to the legal concealed carrier that does not present a weapon at the start of the confrontation?

    A knife or a club may not be readily apparent at 21 feet, but as the Teuller drill teaches, a knife presented within 21 feet has the distinct advantage over the reaction time of the defensive handgunner, so I would hate to see someone waste their 2 seconds debating the idea that the attacker may be unarmed and what is his real intent
     
  14. SFla27

    SFla27

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    Gentlemen,

    This is exactly the thread I was hoping to see. Thank you very much for it's creation. :)

    As someone who is new (and not in LE or similar vocation) to the real world experiences of what is deemed "great bodily harm", could this be expanded to provide examples of that this entails?

    An extended trip to the hospital? Broken bones? Facial lacerations?

    Just how severe is great bodily harm and what is considered below "great bodily harm?"

    Obviously, I am not including coma, severe head trauma, etc.. as this would fall under one of the statistically-small percentages as discussed above.

    My question arises not out of thinking about a simple altercation between two people (neighbors, friends arguing about who has the more valuable collectible baseball card, etc..) and a fight ensues. I am referring to a situation whereby an assailant or assailants effectively stalk and corner a defendant and before any physical violence is committed, that defendant is fearful for his life based on what the assailants are threatening (at least aggravated assault).

    I apologize in advance if this information is located elsewhere in the forums. I also have yet to get Mr. Ayoob's books. That shall be done shortly.

    SFla27
     
    Last edited: May 7, 2012
  15. Hour13

    Hour13 Tah-dah!

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    This would be an excellent thread for you to read through...

    http://www.glocktalk.com/forums/showthread.php?t=1419441

    And order Massad Ayoob's book, 'In the Gravest Extreme'. Be some of the best money you ever spend.
     
  16. Dexters

    Dexters

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    From a criminal point of view what needs to be emphasized is the legal hypothetical of the 'Reasonable Person' or objective standard.

    http://en.wikipedia.org/wiki/Reasonable_person

    When thinking about the situation you should not be thinking about it from your point of view - subjective, but the 'reasonable person's' or objective point of view.

    If the issue goes to court the prosecution will try to show your actions were 'unreasonable' your attorney would try to show they were.
     
    Last edited: May 7, 2012
  17. SFla27

    SFla27

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    Thank you Hour13, I will read...and re-read. And then read again.

    SFla27
     
  18. Dexters

    Dexters

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