What is Disparity of Force?

The well recognized concept known as disparity of force is not one that most lawyers learn in law school. Most of us learn a great deal about how to exclude evidence when police conduct an in-Constitutional search, fail to read a suspect’s Miranda rights, and similar aspects of criminal procedure.

Use of Force. Use of force, on the other hand, is not even a major topic within the criminal law curriculum or on most bar exams. In all states, the laws require that there must be an imminent threat of death or serious physical harm before using deadly force. There is normally a duty to avoid using deadly force unless there are no reasonable alternatives based on all the facts known to the individual confronting a threat.

Duty to Retreat. A minority of jurisdictions require retreat when possible to do so. Such jurisdictions, often located in Southern U.S. (where armed dueling was a problem long after it became antiquated in the North), are now seeing legislative efforts to abolish the Duty to Retreat because of the legal disadvantages that result for armed citizens who deploy deadly force in self-defense.

AOJ-Ability, Opportunity, Jeopardy. The determination of whether an aggressor is presenting deadly force is based on whether a reasonable armed citizen, knowing what the defendant knew at the time of the shooting, discerns that the aggressor possesses the Opportunity and Ability along with the aggressor(s) making verbal or physical threats—i.e., Jeopardy—to inflict death or serious physical harm.

So if a person behaving aggressively is close enough to kill you and has a weapon there are probably enough facts indicating to a reasonable person that lethal force is justified to stop the perceived threat. The response should be proportionate to the threat, however.

Unarmed Aggressor. But what if the aggressor is unarmed and claims that he just wants to talk? It is advisable to state loudly, “Stop! Don’t come closer, I have a gun and I will shoot you!” Depending on all the circumstances, you might even draw and display your weapon at low ready. If the aggressor keeps moving towards you, it is reasonable to believe the aggressor is going to try and take away your gun. Thus, a deadly threat is materializing along with the ability and opportunity for the aggressor to inflict death or serious physical harm.

Disparity of Force. Disparity becomes relevant when a threat materializes from an unarmed aggressor or aggressors with the ability and opportunity to cause death or serious injury based on multiple aggressors, special skills (like martial arts expertise), or where the potential victim is weakened due to a medical condition or some other disability. The fact that women lack the upper body strength of a man is still recognized by most prosecutors and judges.

The mere fact that someone is bigger than you does not constitute disparity of force. If two or more attackers are indicating they are about to do serious harm, a defender may not have time to warn the aggressors. Depending on how close they are to you, announcing that you have a gun may put you at a serious disadvantage. Maybe one of your opponents has a concealed weapon or an accomplice that you have not yet identified.

Speculation is not normally permitted in court cases. The point here is that you are not expected to defend against a group of people indicating that they intend to seriously injure or kill.

Multiple Aggressors. In the Chabuk case, for example, there were four members of a group arguably acting in concert. Two were aggressive and relatively close to Mr. Chabuk when he shot the most aggressive of the two. Kamuran might have been justified in shooting the other potential assailant who was closing the distance even after Chabuk shot the primary aggressor the first and second time.

Multiple assailants. There is no requirement that the defendant’s fear be caused by only the person slain. His self-defense is lawful if based on reasonable fear of imminent harm from either the person slain, or others whom the defendant also reasonably feared. 

See State v. Harris, 122 Wn.App. 547, 90 P.3d 1133 (2004).

See also State v. Irons, 101 Wn.App. 544, 550, 4 P.3d 174 (2000).

You must not do anything to provoke a confrontation. Nevertheless, someone with a pacemaker, a plate in their head or other condition that makes a physical altercation dangerous to his life can confront disparity of force with deadly force. Whether one-on-one or faced with multiple attackers, each case has unique facts that will often be ambiguous and subject to interpretation to a certain extent.

The other two members of the group following Kamuran Chabuk were further away and did not seem to be acting very aggressively. Given the fact that they stayed at a distance and had not indicated any particular threat, there would not seem to be a justification to shoot the other two notwithstanding the fact that they were tagging along with the two imminent aggressors and might have prevented the Defendant Chabuk, from running away.

We expect to discuss some actual case law precedents in future updates. We also plan to publish an article about how the news media deals with cases like the Chabuk case. There were many articles that gave the prosecutorial side of the story with virtually nothing to indicate that disparity of force might be an issue in the case.

There were also articles in 2015 about how the judge in the first trial took the verdict away from the jury and ordered a new trial. A casual reader might almost conclude that the trial judge was soft on violent crime! The reporter quoted the prosecutor’s comments and an appeal was anticipated and forthcoming. When a Whatcom County, Washington Judge acquitted Chabuk, there weren’t any news articles—that we have located—announcing Kamuran was found not guilty.

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