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"Ability" means that the opponent possesses the power to kill or cripple.

"Ability" Means That the Opponent Possesses the Power to Kill or Cripple.

Part I discussed the problems for the dealer if he or his employees give bad advice to a customer on lethal force decision making. Part II explained the levels of lethal force as treated by law, and Part III focused on the situation that makes homicide justifiable. That is, "Immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent." Three criteria must exist to create that situation: Ability, Opportunity, and Jeopardy.

Let us this time around discuss Ability. For our purposes here, Ability Means That the Opponent Possesses the Power to Kill or Cripple.

The classic form of ability, of course, is a weapon. A gun gives the aggressor the power to not only kill and cripple, but do so by remote control.

Then there is the contact weapon, which the assailant must touch you with physically. This is the knife, the club, the garotte. Note that these need not be a finely-honed tanto, a carefully crafted nunchaku, or a James Bond signature model strangling device. The broken bottle, the clubbed lamp, or the nylon stocking twisted into a ligature are in fact an edged weapon, a bludgeon, and a lethal noose. The bottle, lamp, and hosiery, not weapons in and of themselves, legally become so when turned against another human being with harmful intent.

It is a common misconception, however, that only weapons like these create the ability factor in the hands of the attacker. The fact is that the law recognizes situations in which it is absolutely justifiable to shoot an ostensibly unarmed man. These are called "disparity of force" situations.

Absent what might be called a mechanical weapon in the hands of the aggressor, the use of a gun in self defense can still be justifiable if the aggressor is so much more powerful than the defender that the ongoing savage attack is likely to result in death or grave bodily harm to the innocent victim.

Disparity of force can take any of the following forms:

- Male against female. The courts understand that men have considerably more weight than women on the average, and generally also far greater upper body strength. The courts also recognize the factor of "cultural predispositioning," i.e., the fact that men in this society are encouraged to be aggressive, while women are encouraged to be weak and passive. The psychologists call this "learned helplessness," and it puts a woman on a much better footing than a man when she shoots a male mugger or rapist, even if the attacker did not have a per se weapon. In the eyes of the collective body of caselaw, the attacker's male aggression combined with his size and strength advantage to become the weapon that warranted the female victim's use of the gun in response.

This is important know, since a large percentage of your clients will be female, and in any given year, a majority of reported rapists will not have displayed a per se weapon.

- Overwhelming size advantage is another disparity of force situation. Your writer weighs about 160 pounds. Attacked without weapons by a 220 pound man, I would find it hard to justify shooting him unless I had already been severely injured, and it was obvious that I could not fight him off with lesser means and would be killed or crippled if the assault continued. If I were attacked by King Kong Bundy, a professional wrestler who purportedly weighs five hundred pounds, and didn't recognize him as a trained fighter, then there would be no doubt: the "three times plus" weight factor alone would create enough disparity of force for me to reach for the gun.

- Advanced level of skill in unarmed combat, when possessed by the aggressor, is another example of disparity of force. Let's say King Kong Bundy becomes the Weight Loss Clinic Poster Boy and diets down to, oh, two hundred pounds. He then attacks me on the street, without provocation and without a per se weapon.

He remains a professional fighter. Like the pro or Golden Gloves boxer, like the black belt, like the ex-Ranger trained in bare handed killing techniques, he possesses such a degree of destructive ability with his fists and his feet, that his training and skill become the deadly weapon that warrant the citizen's response with a loaded gun.

There is a catch here, however. That skill must have been known to the defender before the shot was fired. If it wasn't, it won't be allowed for the court defense. The same is true if the opponent was a career criminal: "Prior bad acts" by the criminal your client shot can be introduced in defense of the shooting decision only if known beforehand by the client.

- Force of numbers constitute disparity of force, when coupled with close proximity and an obviously ferocious attack. Two on one can be tricky to defend, but three or more is generally not a problem. However, we now have the knotty problem of the "Warren Rule" that, while a member of a mob shares responsibility for the mob's intent and the reasonable fear it creates in the mind of the defender, and therefore shares the general jeopardy that accrues to the entire mob from the armed defender's lawful response, once all the other perpetrators have fallen, the last survivor is a lone unarmed man and no longer a member of a mob. He thus, technically, should not be shot.

Is that a razor-thin judgment to make in the heat of a savage assault by a gang? Sure it is, and we can invoke Mr. Justice Holmes' classic comment, "Detached reflection is not demanded in the presence of an upraised knife." But the law is the law.

- Young aggressors against elderly victims, the able-bodied attacking the handicapped, or the attacker gratuitously stomping an already badly hurt and otherwise helpless victim, are other forms of disparity of force.

This, then, is the multi-faceted situation with the Ability Factor. Next issue, we'll delve into the Opportunity Factor.
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Title Annotation:Explaining the Deadly Force Decision: "The Ability Factor", part 3
Author:Ayoob, Massad
Publication:Shooting Industry
Article Type:column
Date:Sep 1, 1991
Previous Article:Maryland dealer organization gives tips.
Next Article:Blue Trail Range and Gun Shop.

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