Featured

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.

Featured

What Should You Tell the Police After a Self-Defense Shooting?

Bob Smith, our expert witness in the Chabuk trial, provided the following insight that relates to some important points we made to the judge concerning what Kamuran Chabuk could have done differently to avoid being prosecuted after shooting an unarmed aggressor where there were at least two or three potential assailants:

“Recall also that we countered the point of the prosecution in the first trial regarding Chabuk’s alleged legal obligation to announce that he was armed. There is no such legal obligation. This was one of many such points that the first judge pointed out in his decision granting a retrial.”

Continue reading “What Should You Tell the Police After a Self-Defense Shooting?”
Featured

Deadly Force

The Court of Appeals has held that “the amount of force that is necessary to prevent the infliction of great personal injury may vary with the number of persons the defendant reasonably believes are about to commence striking him with their fists.”

State v. Irons, 101 Wn. App. 544, 558, 4 P.3d 174 (2000).

On November 14, 2022, the Whatcom County Superior Court found Kamuran Chabuk not guilty of a 2nd Degree Assault charge nine years after a self-defense shooting in Bellingham. The Law Office of Mark Knapp PLLC obtained an acquittal after a bench trial before Hon. Judge David E. Freeman.

The case presented some critical factual issues including the presence of multiple aggressors, disparity in the size of the so-called victim, and the potential for a concerted attempt on the part of at least two aggressors to take away the Defendant’s gun and use it against him.

The aggressor survived the shooting. Nevertheless, the language in WPIC 16.02 provides a template for self-defense cases in which there are multiple aggressors or a group that seems to be acting in concert. The appearance of a threat by one member of the group might justify use of force against other members of the group, depending on the circumstances as they reasonably appeared to the defendant at the time.

WPIC 16.02 Justifiable Homicide—Defense of Self and Others 

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. State v. Harris, 122 Wn.App. 547, 90 P.3d 1133 (2004); State v. Irons, 101 Wn.App. 544, 550, 4 P.3d 174 (2000).

After a jury convicted Kamuran Chabuk of 2nd Degree Assault at his first trial in 2015, the judge ruled that prosecutorial misconduct required a new trial. The State appealed and, in 2019, the Washington Court of Appeals, Division One upheld Judge Ira Uhrig’s decision to take the verdict away from the jury. Whatcom County’s Chief Prosecutor for 44 years, Dave McEachran, had stated at trial that Chabuk had an absolute duty to announce that he had a gun. He also implied that Chabuk provoked the pursuit by videotaping Kiener and his friends and that Chabuk had a duty to retreat.

In the first trial in 2015, the State made a deal not to call its expert witness to testify about use of lethal force if the defense would agree not to call Bob Smith, retained by the defense to analyze issues such as disparity of force. In the 2022 trial, Smith was instrumental in explaining to the Court why Chabuk had no reasonable alternatives—based on all the circumstances known to him—despite the fact that Kiener might have been unarmed.

Continue reading “Deadly Force”
Featured

Posse Comitatus Act

Will the Marines Stand With the President in a Dangerous War Against the American People and the Second Amendment? Which branch of the military constitutes the remnant most likely to uphold the oath to the U.S. Constitution against domestic and foreign enemies?

The following is a summary of a document entitled The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, by Charles Doyle and Jennifer K. Elsea. A 2012 report prepared for the Congressional Research Service. We will identify any opinions and conclusions that do not simply summarize the history & legal precedents contained in the source document.

The U.S. Constitution provides for use of the militia to execute the Laws of the Union to suppress insurrections and invasions and to protect the states from usurpation of their “republican form of government.” Additionally, state legislatures may request federal military intervention to suppress domestic violence. Congress enacted the Insurrection Acts and other laws pursuant to its express Constitutional authority.

Insurrection Acts. The Insurrection Acts have been invoked many times in history and outlining such events clears up some of questions while also raising a number of issues. There are several federal laws that also deal with authorizing land and naval forces. The most important law for purposes of the present discussion is the 1878 Posse Comitatus Act.

Posse Comitatus Act. The Posse Comitatus Act prohibits use of the military to execute the law unless authorized by Congress within its Constitutional authority to suppress insurrection and invasions; thus, the Insurrection Acts and other laws that provide exceptions to Posse Comitatus Act. Violation of Posse Comitatus is a criminal offense.

Continue reading “Posse Comitatus Act”
Featured

Uvalde Schools Implemented Extensive Security Measures Including School Resource Officers

The school district in Uvalde, Texas, had an extensive safety plan in place when nineteen children were killed. The killer accessed an open door and killed children and teachers for about 74 minutes while police officers allegedly refused to enter the barricaded room where the slaughter was taking place. These things occurred even though Uvalde’s spending on school security and monitoring services in Uvalde more than doubled since 2017, rising from about $200,000 to about $435,000 for the current school year, according to school budget documents.

The district adopted an array of security measures that included its own police force, threat assessment teams at each school, a threat reporting system, social media monitoring software, fences around schools and a requirement that teachers lock their classroom doors, according to the security plan posted on the district’s website. Texas police are now saying that the armed school officer who was first reported to have engaged the gunman in a firefight was not on campus when the shooting started.

Continue reading “Uvalde Schools Implemented Extensive Security Measures Including School Resource Officers”
Featured

Machine Guns & Automatic Weapons in Washington State

We sometimes get questions as to whether a machine gun qualifies for Curio/Relic status under federal regulations. Any such items must comply with the National Firearms Act of 1934 and also local state law.

The Bureau of Alcohol, Tobacco, Firearms & Explosives will not allow transfer of ANY automatic weapon into Washington state since July 1, 1994 (except departmental purchases). Thus, there are no exceptions for antiques under Washington state law per RCW 9.41.190 and the definitions under RCW 9.41.010.

Prior to legislative changes in RCW 9.41.190, it was theoretically legal to own an automatic weapon if you were in the armed forces, provided that BATFE would provide the $200.00 tax stamp.

RCW 9.41.190 stated the following:Continue reading “Machine Guns & Automatic Weapons in Washington State”

Featured

Benefits of a Washington Gun Trust or NFA Trust.

All Gun Trusts are not equal. A Gun Trust or NFA Trust should be designed for all of your firearms and will provide Asset Protection and multi generational ownership for your firearms.

No CLEO Signature Required
The ATF no longer requires that individuals obtain approval from their Chief Law Enforcement Officer (the “CLEO”) as part of the application process to obtain a Title II firearm from another individual or Class 3 dealer.Continue reading “Benefits of a Washington Gun Trust or NFA Trust.”

Featured

High-Capacity Magazines & Gun Trusts in Washington State

Can an NFA gun trust protect you and your family from potential penalties imposed if you loan a “high-capacity” magazine to a co-trustee or leave a high-capacity magazine to your beneficiaries when you die? Transfer or sale of magazines holding more than ten rounds will be a gross misdemeanor with civil penalties in Washington state after July 1, 2022. Even transfers of guns designed and manufactured with an “ammunition feeding device” holding over ten rounds that cannot be detached, such as a tube magazine or an extended magazine tube for your shotgun, will be prohibited. The only exception will be for .22 caliber rifles with tube magazines and all calibers of lever action rifles.

The civil penalties apply to online sales and do not provide an exception for sales to military and law enforcement. While sales and transfers to law enforcement agencies (but not individual officers) are exempt from criminal penalties, law enforcement agencies will probably not be able to purchase such items online if the law is strictly construed with potential triple damages against sellers for unfair or deceptive business practices under the Washington’ State Consumer Protection Act.

Continue reading “High-Capacity Magazines & Gun Trusts in Washington State”
Featured

Restoring Gun Rights & Vacating Convictions

We handle criminal cases, including felonies, and firearms law. We can also help get some convictions vacated:

INSTRUCTIONS FOR VACATING MISDEMEANOR AND GROSS MISDEMEANOR CONVICTIONS

Washington law permits vacating some misdemeanor or gross misdemeanor convictions.

When the court vacates a conviction, you are released from penalties and disabilities resulting from the offense- but not from the prohibition against possessing firearms.

Continue reading “Restoring Gun Rights & Vacating Convictions”

Featured

Expungement of Convictions, Gun Rights & Criminal Defense in Spokane, Washington

Restoration of Gun Rights.

As a Spokane Criminal Defense attorney, Mark Knapp often gets calls regarding restoration of gun rights, expungement and the right to possess firearms under Washington state law. In Washington state, expungement does not restore the right to possess firearms. A Petition to Restore the Right to Possess Firearms is the procedure that is required pursuant to RCW 9.41.040.

Washington State Firearms Attorney.

We have been focused on gun rights for the last fifteen years. With 32 years of practicing law, we know how to navigate the many pitfalls and potential problems that arise in the process of restoring gun rights. Although some situations seem simple, it is best to have an attorney handling your case that focuses on firearms issues and restoration of gun rights. Continue reading “Expungement of Convictions, Gun Rights & Criminal Defense in Spokane, Washington”

Thanksgiving & Roots of the U.S. Constitutional Order

Where are your loyalties- to the UN? To the religion of humanism? Or are you looking toward traditional values of individual freedom, U.S. sovereignty and inalienable rights that are founded on Biblical principles? The Scripture speaks of covenant responsibilities that God requires of people that would be free (like the duty to defend life, liberty and property as set forth in the U.S. Constitution)- not “rights” bestowed by the State!

Do you know that the concept of a written Constitution itself was a development that grew out of the practices of the early American religious colonies? The Pilgrim fathers (and mothers) consciously entered into covenants (compacts, mutual promises or contracts) that imitated the Old and New Covenants (i.e., Old and New Testaments). The Old Testament abounds in examples of covenants between God and man and between people within the ancient social framework of Israel. The fact remains that a people that are covenant keepers will be strong and prosperous.

The Pilgrims were dissenting religious believers that were originally from England. These Separatists first attempted to create a community of believers in Nottinghamshire village of Scrooby around 1606.

Their objective was to practice their faith without being contaminated by the elitist and worldly culture that surrounded them in England. In order to avoid the reality of being imprisoned for worshipping in their homes, the Scrooby Separatists fled to Amsterdam.

The Netherlands was a Calvinistic stronghold that had struggled for years against Spanish invasions launched on behalf of the Catholic Church. Amsterdam was very tolerant toward various religious groups. In fact, Amsterdam had already become very commercialized and prostitution, alcoholism and other vices were on display as much as the religious freedom that the Pilgrims sought. The Ancient Brethren, another group of English Separatists that had immigrated to Amsterdam earlier, lost many of their children to the worldly atmosphere of Amsterdam.

The realization that Amsterdam could easily corrupt their own community, brought the Pilgrims to Leiden:

After a brief stay in Amsterdam, where they were dismayed by the discord within other immigrant English congregations, the Pilgrims were granted permission to settle in the cloth manufacturing city of Leiden. They lived there under the religious leadership of Pastor John Robinson for twelve years gathered openly as a church. However, life in a foreign country was not without problems. The only occupations open to most immigrants were poorly paid, and they found themselves growing old in poverty. The twelve-year truce between Holland and Spain was to end in 1621, threatening a resumption of hostilities. Also troublesome to the Separatists were the hardships endured by their young people, who were forced by circumstance to work at exceptionally hard jobs. Others were assimilated into the Dutch culture, leaving their parents and their community profoundly disturbed.

The impovershed community began looking to Virginia (the whole Eastern seaboard of the North American continent) as a place of refuge where they could carve out a Scriptural way of life free of the commercial culture and vice with which they struggled in Holland and England. They approached the Virginia Company that had funded Jamestown.

They informed prospective investors that they hwere industrious, frugal and “knit otogether in a sacred bond’ by their hardships in Amsterdam. Apparently the investors agreed that the Pilgrim experience inured to their “mutual good” and funds were provided for the tiny band to set sail for what became the Plymouth Colony:

A group of English investors known as the “merchant adventurers” financed the voyage and settlement. They formed a joint-stock company with the colonists in which the merchants agreed to “adventure” (risk) their money, and the settlers to invest their personal labor, for a period of seven years. During that time, all land and livestock were to be owned in partnership; afterwards the company would be dissolved and the assets divided.

The Second Amendment is a Covenant that supersedes treaties. In 2008, the U.S. Supreme Court decided the first major case involving the important issue of whether the right to keep and bear arms is an individual right. The landmark case originated in Washington, DC where, like Chicago and other cities, law abiding citizens were not allowed to defend themselves against lawless criminals! Since Heller v DC was decided, cities all over the land are changing their laws ro conform to the Second Amendment.

The Washington, DC case has provided the legal basis for a series of cases to percolate through the courts. The United Nations and domestic gun ban advocates will be seeking a worldwide treaty banning small arms (firearms are already prohibited to private citizens in all but a few nations as a result of the UN anti-gun agenda). Will the U.S. ratify the consensus of dictators all over the world by bending our Constitution to “international norms“?

The roots of our American Constitutional order are buried in ancient Israel’s covenant with Yahweh! We need to be careful today what kind of laws, covenants and treaties we make as a people.

A people that recognize their heritage in God and that are grateful for blessings every day (not just on Thanksgiving) will prosper and remain free.

Remove not the ancient landmark, which thy fathers have set.

Proverbs 22:28
(King James Version)

Arming Teachers

Retired Special Agent of the US Army Criminal Investigation Command (CID) and tactical use of force instructor, Gary Griffiths, offered the following observations related to ongoing discussions related to arming teachers and other school personnel as specially trained employees of a school district. These employees work in a capacity other than as security staff but are trained to protect themselves and others when threats arise in their working environment. Proposed legislation empowering school districts to implement the “embedded” school personnel concept utilizes the term School Marshals.  Please feel free to network with us in reaching out to elected officials, law enforcement agencies and school districts interested in advocating for School Marshal programs:

“There is simply no way to absolutely prevent school shootings from happening in this or any other free country.  Even requiring all students to enter the school campus through a metal detector, like they’re entering an airport is not 100% certain to prevent this sort of tragedy. (Google Red Lake Minnesota, 21 March 2005). The recent tragedy at Robb Elementary School in Uvalde, TX also illustrates that even excellent physical security can be instantly negated by a staff member too lazy to follow security protocol.”

Continue reading “Arming Teachers”

The Warrior Heart: A Manual For Men & Women of Valor

ActionDrillsFernan

Long before I attended law school, I began reading the Bible. The following is a short excerpt of an electronic book that we are offering to provide at no charge. Just request a copy of The Warrior Heart at the email address on our Homepage.

He trains my hands for battle; my arms can bend a bow of bronze.”

Psalms 18: 34

Continue reading “The Warrior Heart: A Manual For Men & Women of Valor”