September 2014 Network Journal
Including ... Defense and Disabilities • President’s Message • Attorney Question of the Month • Book Review • Networking Column • Editorial • About this Journal
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The Disparity of Force Defense
An Interview with Massad Ayoob
by Gila Hayes
A lot of our members, now in their golden years, express concern about justification for using deadly force in self defense in light of their various disabilities. Finding themselves no longer able to run away or to duke it out, members often ask questions about defending decisions to use a gun to prevent injury at the hands of a younger, stronger person–even if that attacker is unarmed.
In their concerns, we recognize the elements of disparity of force, as first taught to me many years ago by master instructor Massad Ayoob. Thus, it seemed only appropriate to ask him to explain applying the doctrine of disparity of force when defending self defense. Let’s switch now to the interview format to preserve the clarity of Ayoob’s instruction, which he kicked off with a textbook definition of disparity of force.
eJournal: Massad, thank you for giving us this chance to learn more about defending self defense. Could we begin with a definition of disparity of force so we are clear on our terms?
Ayoob: Disparity of force is the element that comes in when a deadly weapon is used in self defense against the ostensibly unarmed attacker. The law has long recognized that there are certain situations where the attacker may not have a per se weapon, but within the totality of the circumstances the likelihood of his violent assault resulting in death or crippling injury–that is, grave bodily harm to the defender–is such that it becomes the equivalent of a deadly weapon and it warrants the defender’s recourse to a per se deadly weapon.
There are many forms of disparity of force. It can be force of numbers, male violently attacking female in most circumstances, and able-bodied attacking the handicapped, which is one of the elements we are touching on here.
Historically, age brings a degree of decrepitude: muscle mass fades, you have things like arthritis and osteoporosis, cumulative injuries over a lifetime of hard work, and things like that.
It is not so much young attacking old. The example I give my students is a 19-year old male violently attacking a 66 or 67-year old man who has previously had quad bypass heart surgery. Most people would say, sure, that is disparity of force. OK, let’s give you some more information. The 19-year old is a 130-pound anorexic meth head and the 67-year old I’ve just described is Arnold Schwarzenegger. The general public probably will not see Schwarzenegger as having been disadvantaged, so what we are looking at is not the age, but the infirmities that historically have come with age.
The average-sized, young adult male in prime of life attacking the elderly person who has limited range of movement, less muscle mass and probably less endurance, as a general rule will be creating a disparity of force situation, but these things are always taken by the courts within the totality of the circumstances. That means we have to detail what the defender knew and what the assailant knew or should have known.
eJournal: Can you estimate how frequently the courts weigh in on disparity of force cases?
Ayoob: I cannot. There is no empirical database nationwide that is gathering these kinds of things. The ones that never get into the newspapers just never surface at all, nor do the ones where the police look at it and say this was self defense, and the prosecutor’s office rubber stamps it as such. That is as it should be, and so those simply do not make it into any tracking database.