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Disparity of Force and Self-Defense


    The use of force in self-defense is a defense to many criminal charges, from felony to misdemeanor level. But when it comes to self-defense law, courts look to the totality of circumstances.   There is no bright line test.  But one important factor is disparity of force.

    Yes, disparity of force means what it sounds like.  It means that you can lawfully use force in self-defense reasonably proportionate to the threat of force you face.

    The stress of the moment; and disparity of force

    As a defender from criminal violence, you’ll be aware of the situation and make your best assessment in the moment. As you do, you will consciously or unconsciously note factors that will guide your mental attitude and response actions.

    If you do use force in self-defense, you may later need to justify your use of force, legally. A jury, judge, police officer, media, and the community will all consider the factors you face.  You should consider these factors at the moment of threat to your personal safety.

    But the people judging you will not experience the stress of being under attack, or the time pressure.  They will have the benefit of hindsight – access to information you did not yet have at the time.

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    Sometimes it seems that no matter what choice a person makes, someone imagines they could have done better. And whatever evidence a prosecutor chooses to present to a jury, it must work to overcome hindsight bias.

    That gap between the ideal and the real may seem inevitable, but how can we reduce it?

    Physical self-defense training is vital.  But it’s also important to consider these issues deeply.  That way, when they come up we’ll be ready to make the right choices.

    Disparity of force changes everything.  What are the factors that help make up the totality of circumstances for lawful use of force in self-defense?

    Situational awareness, of disparity of force

    The first foundation of personal safety is situational awareness. After all, if we misperceive our environment, we could either over-react or under-react. Either could result in disaster.

    So we strive for a high level of awareness of our situation at all times. But all humans have a limited ability to pay attention. And when we divide our attention across multiple objects, we degrade our awareness.

    We should heighten our situational awareness depending upon time, place and immediate circumstances. For example, relaxing within the safety of our home, we may have no problem multitasking. But while driving our car, or walking – we may divide our attention.  We might do two things at once.  If we divide our attention between tasks by say, attending to our smart phone; we degrade our awareness and safety. 

    The good news?  Training helps. Practice helps. But we can also avoid or reduce dividing our attention.

    Stay frosty

    Alcohol and other intoxicants also degrade our awareness. When police stop a driver on suspicion of DWI, they will generally ask the driver to perform roadside field exercises. These are divided attention tests.

    Alcohol can impair a person’s ability to divide her attention and perform two tasks at the same time. We can avoid the alcohol or impairment by alcohol to maintain our ability for situational awareness.

    When it comes to criminal violence, we need to be aware of other humans. We need to be aware of proximity, threat potential, and potential responses to any threat presented (plan B).

    We can adjust to threats before the risk of violence grows.  For example if we are situationally aware and spidey-sense a possible threat, we can cross the street or move away.

    Sometimes situational awareness will not help us avoid trouble. But if a physical attack suddenly presents, situational awareness can help us respond in the best possible way under the circumstances.  And when it happens, we must weigh disparity of force factors instantly.

    Disparity of Force & Self-Defense

    Disparity of force or threat

    The core of self-defense law is the use of reasonable force under the circumstances.  That’s why the question of proportionality is key.

    If you face a threat of attack, or an attack, the law expects you to act reasonably.

    It expects you to use force reasonably proportionate to the threat or force used upon you.

    Several common factors increase the threat to you.  These include the size of the attacker, number of attackers, and weapons.

    Size and strength disparity

    If you are a 100 pound, 65-year-old woman facing a 200 pound, 20-year-old man threatening rape or robbery; that is a disparity in size and strength. Would that disparity justify your use of greater force, vs. the reverse situation? We know, it would.

    Relative size and strength is a disparity of force factor.

    Single attacker vs. multiple attackers

    It is more difficult for one person to defend against multiple attackers than a single assailant. As a result, a person defending against multiple attackers must use more aggressive and more lethal force.

    Against a single unarmed attacker, forcing them to initiate not only has a tactical advantage but also a legal one. But against multiple attackers, it may be necessary for the self-defender to strike first, perhaps against the apparent leader.

    Multiple attackers are a disparity of force factor.

    Sobriety vs. intoxication

    Alcohol (and other drugs) is a wild card. It can cut in multiple directions. We should consider it, since most assaults and crimes against persons involve alcohol.

    Assuming a two person conflict, either or both may have been drinking. Generally voluntary intoxication is not a defense to criminal liability.  But it can have a big effect on both intent and physical ability. And even those can vary with the person’s level of intoxication.

    Intoxication could make the aggressor a greater threat than if sober. If so, the use of greater or more lethal force could be justified.

    Intoxication is a disparity of force fact.

    The use of force continuum

    The force continuum is the range of levels of force. Implicit within the term, use of force continuum, is proportionality.

    Depending upon the circumstances, calling 911 and the presence of a police officer; or a verbal warning and display of a weapon, might be on the lower end of the force continuum.

    We calibrate our response to the disparity of force the attacker presents. So our response is dispassionate, and proportionate.

    Perspective matters

    The community would like us to use the lowest level of force possible to avoid or resolve a physical conflict. Yet we view self-defense from the perspective of the defender, what they knew then, and the pressures of the situation.

    In a criminal case, we judge whether an act was criminal from the point-of-view of the defendant. 

    Even so, the defendant’s acts must have been reasonable under the circumstances at the time.  Therefore, we must view all events from the perspective of a reasonable person in the defendant’s shoes.  And if you’re a self-defender, you are that potential defendant.

    Verbal and nonverbal communication

    To the extent possible, it’s a good idea to communication verbally and non-verbally with the criminal assailant.  Give clear verbal warnings.

    Depending upon circumstances, you may be communicating de-escalation or escalation.  Communicate whichever is then most likely to stop the threat or the criminal act.

    Escalation, where used, should avoid fighting words or provocation.  Instead, use verbal commands to stop the attack, disarm, and the like. You may also be communicating so that your intentions are clear to any witnesses or electronic observation.

    Where possible, call 911 to request police help as well as to create an audio record of what is happening.

    Open hand: disparity of force
    Open hand: disparity of force

    Empty-hand defense

    It’s good to have options. And it’s nice to have a weapon if attacked.

    Having a weapon does not mean it must be used. 

    Empty-hand defense can also vary in level of force. For example, we might disable an unarmed attacker with a snap kick to the knee to break their leg.

    So, if we are capable of stopping the attacker effectively with a lower level of force or injury, we will.

    We will try to use the lowest level of force to effectively stop the threat from the assailant.

    Armed with weapon

    What if either you or the criminal attackers have a weapon?  A weapon is a big disparity of force factor.  And your force-multiplier can be a great equalizer.

    Usually a person with a weapon will try to conceal its presence. We use our situational awareness to detect whether they have a weapon.  The weapon could be either within reach, on their person, or in their hand.

    Since a weapon in hand is the greatest threat, we try to see whether a weapon is in their hand. A common clue is that the person conceals one or both hands behind or otherwise out of sight. If it seems possible, a verbal command may be in order: “Drop the weapon! Now!”

    If you have a weapon, depending upon circumstances, you may choose to keep it hidden. Most trainers advocate keeping a weapon out of sight until it is necessary to use it.

    Exception to the general rule:  Displaying a weapon as part of a warning to avoid injury could be reasonable, self-defense

    The circumstances make the difference.  Be aware, however, that showing a weapon can lead to a “brandishing” assault charge.

    Perceived disparity of force turns out to be wrong

    Legally, afterwards, the issue may arise of whether the defendant reasonably believed the assailant had a weapon.  This is a big problem when police don’t find a weapon later.  You subjectively perceived a disparity of force.  But it turns out you were wrong.

    To reduce this risk, try to be sure the criminal does have a weapon; verbalize the presence of a weapon; and if possible be sure police later are able to locate it.  (Point it out.)

    Lethality of weapon

    When it comes to weapons, some have lesser or greater levels of force – for example pepper spray vs. a handgun.  So, the lethality level of the weapon affects disparity of force.

    A weapon is a force-multiplier.  It can multiply the level of force that you are capable of using in self-defense.

    Proximity to the threat is another factor that relates to force-multipliers.  A knife can be a better close range weapon than a gun, for example.

    It’s nice to have choices, when it comes to lethality of weapons. Police officers generally have more equipment than other folks do. But whether we are at home, in the car, or out and about, most adults have choices available to them.

    The factors limiting choice may be, on the one hand knowledge and training, and on the other hand convenience.

    Range and distance; proximity

    Distance is important when it comes to reasonable fear of imminent bodily harm or death. Some open-hand fighting styles are long-range or short-range. A kick can reach farther than a punch. Different weapons have different effective ranges. A baton has a shorter range than an arrow.

    A closer threat creates a greater disparity of force.

    The law of self-defense has no bright line, just a totality of circumstances test.  That test means discretion.

    Life experience, personal or indirect

    Discretion is rooted in the experience of the beholder. Rather than personal training, today the average person’s “experience” is indirect.  It’s from stories they’ve read, seen or heard.   Most often it’s in entertainment media such as songs, books; especially movies and television.

    These mythological “experiences” are problematic since they tend to be wrong more often than not. For example, when someone shoots someone with a gun in the movies, they drop dead immediately.  But in real life, that is quite rare.

    So even after shooting a knife-wielding attacker twenty-one feet away; that attacker still kill the defender with that knife. See The Tueller Drill.

    “Once engaged, don’t stop until the threat stops. Once the threat stops, disengage.”

    After you’ve been attacked, continue the necessary, reasonable use of force in self-defense until the threat is over. The use of force is no longer necessary, after the attacker is disarmed, disabled or otherwise no longer a threat.  It stops.

    It may be a challenge to determine when this point has been reached, depending upon the situation.

    It’s often a good idea to leave the area as soon as it can be safely done.  For example, others attackers could be in the area, unseen.

    It’s a good idea to get help for the injured criminal if possible. A 911 call for help could work.  If it is clearly safe to do so, render First Aid.

    We do not seek retribution

    Once the threat is disabled or stopped, we stop using force.

    We do not take it upon ourselves to punish, or teach a lesson to the wrongdoer.  Nor do we stoop to revenge.  We do not express anger. In fact, anger is the enemy.

    Thomas Gallagher, Minneapolis Criminal Lawyer on Disparity of force and self-defense
    Thomas Gallagher, Defense Lawyer

    What do you think?

    Are there other factors we can weigh when considering whether a person’s use of force was in self-defense? 

    How does disparity of force influence what is reasonable self-defense?

    Thomas Gallagher is a Minneapolis Criminal Lawyer.

    His practice includes asserting the defense of self-defense and defense of others, on behalf of clients.

    Minneapolis Criminal Law Blog

    See our related article on perspective: Self-defense and the Other

    And see our related article on de-escalation vs. escalation:  Escalation, Dominance, Deception in Self-defense

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