# Another Firearms Training Issue?



## Bill Mattocks (May 3, 2017)

Reported road rage.  The victim of the road rage cut someone off on the highway.  That person followed him until he stopped, then punched him in the face repeatedly.  The victim apparently tried to draw his legally-concealed weapon, but shot himself in the leg by accident.

Need more details, but several things crossed my mind upon reading this.

First, road rage.  Looks like the guy who got hit was maybe a bad driver, but he didn't deserve to be beaten up.  Looks like the guy who did it got arrested, so good for that.

Second, victim drawing his firearm.  Was he justified in doing so?  Clearly he was under attack, that much seems clear.  I do not know what his ability to defend himself by means other than deadly for where, or if he would have been reasonably in fear of his life; need more data.  But I note as I have before that once a gun clears the holster, any confrontation is now a deadly force incident.  The chances are that if it progresses, someone is going to get shot.

Third, victim shoots himself in the leg.  Sounds like a lack of training to me.  Properly functioning guns do not go off by themselves.  It was either carried incorrectly or it was drawn incorrectly.  Both would indicate poor choices on the part of the victim prior to making the decision to draw the weapon.

Comments?

Man Accidentally Shoots Himself in Road Rage Fight Outside Victorville Best Buy - Victor Valley News | VVNG.com

Man Accidentally Shoots Himself in the Leg During Road Rage Incident in Victorville: Officials

_"Givens got out of his car and “confronted Chow about his driving,” officials said, and then began repeatedly punching Chow in the face.
_​_Chow has a valid permit to carry a concealed weapon, and told investigators he pulled his handgun from his waistband because he feared for his safety and that of his wife.

Chow’s gun accidentally went off while he was retrieving it and resulted in him shooting himself in the leg, sheriff’s officials said."_


----------



## Dirty Dog (May 3, 2017)

I agree with your summation. A negligent discharge is virtually always a training issue.


----------



## BuckerooBonzai (May 3, 2017)

Dirty Dog said:


> I agree with your summation. A negligent discharge is virtually always a training issue.



Agree.  In the Army we have changed the term from "Accidental Discharge" to "Negligent Discharge" to make the differentiation of how it is almost always a "negligent" reason and not an accident.  

In one unit I was in, if you had an ND, you were kicked out of the unit and never allowed to return to it.


----------



## Bill Mattocks (May 3, 2017)

BuckerooBonzai said:


> Agree.  In the Army we have changed the term from "Accidental Discharge" to "Negligent Discharge" to make the differentiation of how it is almost always a "negligent" reason and not an accident.
> 
> In one unit I was in, if you had an ND, you were kicked out of the unit and never allowed to return to it.



In the Marine Corps as an MP back in the 1980s, we also called it a 'negligent discharge' and anyone who went 'bang' in the clearing barrel would be facing Article 15 Non-Judicial Punishment at the minimum.


----------



## Bill Mattocks (May 3, 2017)

Dirty Dog said:


> I agree with your summation. A negligent discharge is virtually always a training issue.



What is your opinion on whether or not he should have drawn at all?  Was this a legitimate case of being in reasonable fear of one's life that justifies the use of deadly force?  One presumes that if the victim had drawn without shooting himself, the next thing that would have happened would have been the guy punching him got shot, or a struggle for the gun.

I don't have an agenda here; I'm unclear on this myself; borderline event.  I'm interested in what others think.


----------



## CB Jones (May 3, 2017)

From a justification standpoint, you are justified if you perceive you were endanger of losing your life or of great bodily injury (perception must be reasonable)

Great bodily injury in some states is define by broken bones and/or unconsciousness.

So it's is possible to rise to the level of lethal force with someone punching you repeatedly in the head.


----------



## Bill Mattocks (May 3, 2017)

CB Jones said:


> From a justification standpoint, you are justified if you perceive you were endanger of losing your life or of great bodily injury (perception must be reasonable)
> 
> Great bodily injury in some states is define by broken bones and/or unconsciousness.
> 
> So it's is possible to rise to the level of lethal force with someone punching you repeatedly in the head.



I agree, but I am still in the 'if' phase of whether or not it rose to that level even with the face-punching.  Hard to say, eh?

It is interesting in that it parallels the arguments made in a major court case a few years back where an unofficial Neighborhood Watch person got into a physical altercation with someone which ended up (according to the person who lived) with him being punched in the face repeatedly, until he drew his legal concealed firearm and killed the person allegedly hitting him.  I'm sure you recall that case, most US citizens do.

This is far less in the public eye, but at the moment the gun cleared the holster, it seems circumstances were similar if not identical.  Stripping away all the stuff that happened leading up to the altercation and just focusing on the moment itself.  Man is hitting me in the face.  I am afraid of dying.  I draw my gun to shoot him.


----------



## hoshin1600 (May 3, 2017)

Dirty Dog said:


> I agree with your summation. A negligent discharge is virtually always a training issue.


i might agree with the description, but that doesnt tell us what he did wrong.  "you done messed up, son"   dosent help fix the problem.  we do not know the circumstances in which he tried to draw.  in many instances there is a tussle over control for the weapon.  the description says "while trying to draw"   so we can assume this may not be the case but if the defendant was being hit and taking damage at the time of draw, would it be reasonable to re think the "needs training answer"...i would think that might be a little harder to make a clear cut conclusion.
i know that you need distance to draw and you dont draw while someone has the "drop" on you. but if i was with my wife and i was taking damage to the point where i felt i might be rendered unconscious or die......?


----------



## Bill Mattocks (May 3, 2017)

hoshin1600 said:


> i might agree with the description, but that doesnt tell us what he did wrong.  "you done messed up, son"   dosent help fix the problem.  we do not know the circumstances in which he tried to draw.  in many instances there is a tussle over control for the weapon.  the description says "while trying to draw"   so we can assume this may not be the case but if the defendant was being hit and taking damage at the time of draw, would it be reasonable to re think the "needs training answer"...i would think that might be a little harder to make a clear cut conclusion.
> i know that you need distance to draw and you dont draw while someone has the "drop" on you. but if i was with my wife and i was taking damage to the point where i felt i might be rendered unconscious or die......?



You make a good point. I had not considered that.


----------



## hoshin1600 (May 3, 2017)

Bill Mattocks said:


> I agree, but I am still in the 'if' phase of whether or not it rose to that level even with the face-punching. Hard to say, eh?


is there a disparity of force?  was the assailant 250 pounds and the victim 130?


----------



## Bill Mattocks (May 3, 2017)

hoshin1600 said:


> is there a disparity of force?  was the assailant 250 pounds and the victim 130?



Typically has nothing to do with anything.  There is no 'disparity of force' codicil found in any self-defense statutes I am aware of. The key phrase is usually the 'reasonable and prudent person' test.  Would a reasonable and prudent person (a hypothetical person, but still a legal definition) be in fear of his or her life or grave bodily injury from the attack?  If no, then deadly force not authorized, if yes, then it is.   The amount each one weighs has no legal place in self-defense law that I am aware of, but I am not a lawyer.


----------



## hoshin1600 (May 3, 2017)

Bill Mattocks said:


> Typically has nothing to do with anything.  There is no 'disparity of force' codicil found in any self-defense statutes I am aware of. The key phrase is usually the 'reasonable and prudent person' test.  Would a reasonable and prudent person (a hypothetical person, but still a legal definition) be in fear of his or her life or grave bodily injury from the attack?  If no, then deadly force not authorized, if yes, then it is.   The amount each one weighs has no legal place in self-defense law that I am aware of, but I am not a lawyer.


i think you are incorrect,  i believe there is a factor of "disparity of force"...like a woman Vs a man , mulitiple attackers,  or involved weapons.


----------



## Bill Mattocks (May 3, 2017)

Interesting tidbit; one of the comments claims to be from a person who witnessed the attack:

Man Accidentally Shoots Himself in Road Rage Fight Outside Victorville Best Buy - Victor Valley News | VVNG.com

_"Offra Kaim
So I actually saw this happen..... a man was punching an old guy while he was sitting in his vehicle. He tried to get away and drive off but the other guy was hanging on to the car still hitting him, that's when the old guy pulled his weapon and accidentally shot himself. He shouldnt have had his finger on the trigger. In his defense I may have pulled a gun if someone was hitting me like that."_​
If the above is correct, the victim tried to drive away to end the assault and the guy hitting him hung onto the car and kept punching him.  Consider also the disparity in ages; the victim was about my age, the aggressor much younger and presumably in better physical condition.

I also find it funny some of the comments - people are so, well, stupid. "Why didn't someone call the police?"  Really?  Do you think you dial 911 while you're being punched in the face and poof the cops just magically appear instantly?  Wow...


----------



## Bill Mattocks (May 3, 2017)

hoshin1600 said:


> i think you are incorrect,  i believe there is a factor of "disparity of force"...like a woman Vs a man , mulitiple attackers,  or involved weapons.



Show me the cite and I will correct my statement.


----------



## hoshin1600 (May 3, 2017)

http://www.mass.gov/courts/docs/cou...inal/6000-9999/9260-defenses-self-defense.pdf

note section* 3 excessive force...
You may also consider any evidence about the relative size or strength of the persons involved, where the incident took place, (and what kind of weapons, if any, were*


----------



## Tez3 (May 3, 2017)

BuckerooBonzai said:


> Agree.  In the Army we have changed the term from "Accidental Discharge" to "Negligent Discharge" to make the differentiation of how it is almost always a "negligent" reason and not an accident.
> 
> In one unit I was in, if you had an ND, you were kicked out of the unit and never allowed to return to it.



It's ND in the British Forces as well, chargable offence.


----------



## CB Jones (May 3, 2017)

hoshin1600 said:


> i know that you need distance to draw and you dont draw while someone has the "drop" on you. but if i was with my wife and i was taking damage to the point where i felt i might be rendered unconscious or die......?



I see this posted from time to time....is this being taught?

I disagree with this completely.

When your life is on the line....you draw and defend yourself.


----------



## Dirty Dog (May 3, 2017)

Bill Mattocks said:


> What is your opinion on whether or not he should have drawn at all?  Was this a legitimate case of being in reasonable fear of one's life that justifies the use of deadly force?  One presumes that if the victim had drawn without shooting himself, the next thing that would have happened would have been the guy punching him got shot, or a struggle for the gun.
> 
> I don't have an agenda here; I'm unclear on this myself; borderline event.  I'm interested in what others think.



I don't have an opinion. We don't know nearly enough detail, and the laws vary from locale to locale.


----------



## Bill Mattocks (May 3, 2017)

hoshin1600 said:


> http://www.mass.gov/courts/docs/cou...inal/6000-9999/9260-defenses-self-defense.pdf
> 
> note section* 3 excessive force...
> You may also consider any evidence about the relative size or strength of the persons involved, where the incident took place, (and what kind of weapons, if any, were*



That is what appears to be a jury instruction.  It is not the law on use of deadly force in MA.

What you are describing is actually the instructions given by a judge to a jury when they consider what the 'reasonable person' requirement means in real life.  It says clearly that a jury may consider such things as your 'disparity of force'.  In no way does it state that a little guy can't put a big guy in legitimate fear of his life.  It says a jury can consider if that was the case.

I'm a big guy.  If a little guy knocks me down or I slip and fall and he climbs on me and starts wailing away at my noggin, he might manage to knock me out.  There's no way to know with just the information I've given.  "Disparity of force" according to you would mean because he is little and I am big, I would *never* be justified in defending myself with deadly force, no matter what he did to me.  The law says 'reasonable person' because all such cases are different.  Maybe the guy is a matchstick and is slapping me while calling me names.  Maybe he's a MT fighter and he's tearing the life out of me.  You tell me how weight decides the whole story here.


----------



## Tez3 (May 3, 2017)

Dirty Dog said:


> I don't have an opinion. We don't know nearly enough detail, and the laws vary from locale to locale.



Do you have the same thing as us where the details aren't all reported in the media because the upcoming court case makes  details and evidence sub judice? We usually don't get all the information until it comes out at the trial.


----------



## CB Jones (May 3, 2017)

Tez3 said:


> Do you have the same thing as us where the details aren't all reported in the media because the upcoming court case makes  details and evidence sub judice? We usually don't get all the information until it comes out at the trial.



It's not uncommon for investigators and prosecutors to withhold info from press.


----------



## Paul_D (May 3, 2017)

Bill Mattocks said:


> The key phrase is usually the 'reasonable and prudent person' test.  Would a reasonable and prudent person (a hypothetical person, but still a legal definition) be in fear of his or her life or grave bodily injury from the attack?



That's quite interesting.  Surely the fact that he got out of the car puts you in grave danger (after all he isnt getting out to offer you a jelly baby) and there is no way to know until the assault has started how severe the attacker intends to make it.  

He could plan on just breaking your nose then getting back in his car and driving away, or he could intend to beat you senseless and stomp on your head.  How much leeway does US law give?  Like I say, you can't really wait until the beating starts before you get a good gauge of how bad he intends it to be.

I don't think it's written in UK law, but I remember seeing something somewhere that said it was accepted that whoever exited their vehicle first in a road rage incident is responsible for whatever happens, the idea being if they had stayed in the vehicle nothing would have happened.  Don't quote me on that though


----------



## CB Jones (May 3, 2017)

Paul_D said:


> He could plan on just breaking your nose then getting back in his car and driving away,



A broken nose does constitute great bodily damage....maybe.  Does cartilage count as bone in the eyes of the law?


----------



## Paul_D (May 3, 2017)

CB Jones said:


> A broken nose does constitute great bodily damage....maybe.  Does cartilage count as bone in the eyes of the law?


Don't know much about US law I'm afraid.


----------



## hoshin1600 (May 3, 2017)

Bill Mattocks said:


> That is what appears to be a jury instruction.  It is not the law on use of deadly force in MA.
> 
> What you are describing is actually the instructions given by a judge to a jury when they consider what the 'reasonable person' requirement means in real life.  It says clearly that a jury may consider such things as your 'disparity of force'.  In no way does it state that a little guy can't put a big guy in legitimate fear of his life.  It says a jury can consider if that was the case.
> 
> I'm a big guy.  If a little guy knocks me down or I slip and fall and he climbs on me and starts wailing away at my noggin, he might manage to knock me out.  There's no way to know with just the information I've given.  "Disparity of force" according to you would mean because he is little and I am big, I would *never* be justified in defending myself with deadly force, no matter what he did to me.  The law says 'reasonable person' because all such cases are different.  Maybe the guy is a matchstick and is slapping me while calling me names.  Maybe he's a MT fighter and he's tearing the life out of me.  You tell me how weight decides the whole story here.



yes this is the jury instructions.  but law is not only Statutory it is also case law.  since i am not a lawyer and dont have access to dozens of files we can assume that the jury instructions are the guidelines for case law.  it would be fair to assume that case law would follow the guidelines.  
i am not implying that a larger person would never be justified in self defense, that is not what i said nor what i implied.  what i said was that a disparity of force is a factor.   you will notice that the concept is cited under the "excessive force" description.   we are discussing a case where it could be said that the defendant used excessive force to deal with the assailant.  that is what you asked, 


Bill Mattocks said:


> Was he justified in doing so?


i proposed that if there was a disparity of force ,,,the jury would take into consideration these factors in determining if in fact _he was justified in his actions_.    

it should be remembered that statutory law is what will get you arrested,, it is case law that will determine your fate.


----------



## Buka (May 3, 2017)

I find it troubling how much road rage is on the rise.


----------



## Brian R. VanCise (May 3, 2017)

Buka said:


> I find it troubling how much road rage is on the rise.



Yeah Buka, have to be careful out there.


----------



## drop bear (May 3, 2017)

CB Jones said:


> A broken nose does constitute great bodily damage....maybe.  Does cartilage count as bone in the eyes of the law?



In Australia we have a GBH.  I have never known a nose to qualify. Teeth can.


----------



## Brian R. VanCise (May 3, 2017)

I am with DD on this one as I need more facts to form a more accurate opinion.


----------



## Buka (May 3, 2017)

Brian R. VanCise said:


> Yeah Buka, have to be careful out there.



Do you think it's a reflection on society in general? Or just more people on the road? Never saw much, if any, of it years ago.


----------



## Brian R. VanCise (May 3, 2017)

More a reflection on the times.  It has always been there but I believe it is on the rise.


----------



## Bill Mattocks (May 3, 2017)

Recent news articles:

PD: Man shot multiple times during apparet road rage shooting

FHP: I-95 shootings in Palm Beach County rare and rarely random

19-year-old arrested following road rage incident in St. Johns County   | Depend On WOKV - Jacksonville's News, Weather, and Traffic | www.wokv.com

No arrest in 15-year-old's slaying in San Francisco Sunset District; family offers forgiveness

Policeman kills driver in Antipolo road rage - The Manila Times Online

Car Crash Leads to Shooting in Bainbridge Sunday Night

Greeley police release new photo of suspect vehicle in road rage crash

Got them here:

road rage - Google Search


----------



## jks9199 (May 3, 2017)

Bill Mattocks said:


> Typically has nothing to do with anything.  There is no 'disparity of force' codicil found in any self-defense statutes I am aware of. The key phrase is usually the 'reasonable and prudent person' test.  Would a reasonable and prudent person (a hypothetical person, but still a legal definition) be in fear of his or her life or grave bodily injury from the attack?  If no, then deadly force not authorized, if yes, then it is.   The amount each one weighs has no legal place in self-defense law that I am aware of, but I am not a lawyer.


Disparity of force is one of the factors that goes into the assessment of reasonableness.  The greater the difference in physical ability due to size, health, injuries received in the attack, gender/age, etc., the more force would be reasonable for the person on the small/weak/hurt side of the equation.  Extreme example for consideration -- a 91 year old Iwo Jima Marine veteran is going to be more justified in using greater force than a 19 year old Marine who just got back from Afghanistan.  Sure both are "Marines" and combat vets, but I think the 19 year old is probably going to be a lot more physically capable, no?  Take two 19 year old Marines, one who lost a leg on deployment, and the other who came back fine -- again, the guy with one leg is probably going to be able to articulate a greater level of force in the same attack.

Self defense is often still not a statutory issue; it's a justification for having committed what would otherwise be a criminal act.  The person claiming self defense is saying that they did indeed batter or even kill their victim -- but the victim had it coming because if the defendant didn't do something about it, they would have been hurt/injured/badly injured/killed (depending on how much force was used).


----------



## jks9199 (May 3, 2017)

Bill Mattocks said:


> That is what appears to be a jury instruction.  It is not the law on use of deadly force in MA.
> 
> What you are describing is actually the instructions given by a judge to a jury when they consider what the 'reasonable person' requirement means in real life.  It says clearly that a jury may consider such things as your 'disparity of force'.  In no way does it state that a little guy can't put a big guy in legitimate fear of his life.  It says a jury can consider if that was the case.
> 
> I'm a big guy.  If a little guy knocks me down or I slip and fall and he climbs on me and starts wailing away at my noggin, he might manage to knock me out.  There's no way to know with just the information I've given.  "Disparity of force" according to you would mean because he is little and I am big, I would *never* be justified in defending myself with deadly force, no matter what he did to me.  The law says 'reasonable person' because all such cases are different.  Maybe the guy is a matchstick and is slapping me while calling me names.  Maybe he's a MT fighter and he's tearing the life out of me.  You tell me how weight decides the whole story here.


Again -- self defense is an affirmative defense to the crime of assault & battery at some level.  A person is generally justified in using that force reasonably necessary to safely resolve the situation.  It's not a stair step, ladder, or precise equation.  It's about articulation.  Many factors go into deciding if a "reasonable person in like circumstances" would have found that level of force reasonable and appropriate.  Those factors can include relative size, health, physical condition, injuries, the level of force being presented, and more.  The better the defendant can explain what made them feel that level of force was needed and appropriate, the more likely they are to prevail in their claim.


----------



## jks9199 (May 3, 2017)

Paul_D said:


> That's quite interesting.  Surely the fact that he got out of the car puts you in grave danger (after all he isnt getting out to offer you a jelly baby) and there is no way to know until the assault has started how severe the attacker intends to make it.
> 
> He could plan on just breaking your nose then getting back in his car and driving away, or he could intend to beat you senseless and stomp on your head.  How much leeway does US law give?  Like I say, you can't really wait until the beating starts before you get a good gauge of how bad he intends it to be.
> 
> I don't think it's written in UK law, but I remember seeing something somewhere that said it was accepted that whoever exited their vehicle first in a road rage incident is responsible for whatever happens, the idea being if they had stayed in the vehicle nothing would have happened.  Don't quote me on that though


How well can you explain why you had to do what you did.  That's what it boils down to. 

Moving to a road rage incident like this, you have to be able to paint the picture that you feared some significant, life altering injury or death from the guy's attack, that he had the ability, means, and intent to do you harm, and that lesser force was precluded by the circumstances.  Obviously, a guy coming out, fist clenched, yelling and screaming after driving aggressively to get to you... that certainly paints a picture that he intended to do you harm.  It would take quite a bit to overcome that presumption, in a case like that -- but it may not justify lethal force.  An average unarmed couch potato who does "kara-TEY" twice a week for an hour isn't likely to pose much of a physical threat to Dwayne "The Rock" Johnson, right?  But The Rock jumps out, pissed off, and charges most of us?  Yeah, we can probably support that we were pretty damn scared that he'd hurt us badly if he laid hands on us, right?


----------



## jks9199 (May 3, 2017)

Buka said:


> I find it troubling how much road rage is on the rise.


Road rage is a symptom.  We've got a scary high level of general rage, hostility, and division in the US that I personally have never seen before.  Add to that more and more people who can't work out problems between themselves, and who feel entitled constantly, who can't freaking TALK to each other because they're so used to the internet and social media instead of actual interaction...  Yeah, it's a fun mess, huh!


----------



## Bill Mattocks (May 3, 2017)

With regard to self-defense and use of deadly force laws in the various states of the US, most boil down to the same basic elements.  They're pretty simple.

1) You have the right to defend yourself against unlawful assault by another person.
2) You may have the right to use deadly force to defend yourself (in some states, also your property, home, or others) if a reasonable and prudent person would believe that they were in imminent danger of losing their life or suffering grave bodily injury.

Now, as I've said, I'm not a lawyer.  This is not legal advice.  But my *opinion* is that although the above is pretty simple, it's when we get down into the weeds that people seem to lose the thread.

There are no hard and fast rules about what a reasonable and prudent person would believe for a written-out list of various things which might happen to you.  _"Well, you see, if he's a big guy and he has tattoos and has been known to fight with others and his brother's name is Larry and it's the 3rd Tuesday in the month, then yes, you may draw your legal and licensed concealed sidearm and make his head look like a canoe."
_
What happens is the police investigate and take statements from witnesses, gather evidence, and it gets turned over to detectives and/or prosecuting attorneys.  The DA may decide that the incident is a clear-cut case of self-defense and choose not to pursue it.  Or the DA may convene a Grand Jury and put the question to them whether or not to indict.  And in either case, if the DA prosecutes, then the question of 'reasonableness' becomes a question for the judge or a jury depending on the type of trial.  The defense will attempt to prove that the shooting was 'reasonable' and the prosecution will attempt to prove it was not.  The prosecution has to prove their case, the defense does not have to prove innocence; they only have to be able to cast 'reasonable doubt' (there's that word again, different context) on whether or not the shooter is guilty.

The jury can consider all kinds of things, up to and including, yes, disparity of force.  But here is where people tend to get lost, IMHO.  There is no 'disparity of force' statute that I am aware of, anywhere.  It's a jury instruction.  It's an argument that will be raised by the defense or the prosecution (whichever it tends to favor in any given circumstance).  It is not a 'rule'. It is not a 'law'.  It's something to be considered during a trial and potentially during jury deliberations.

This is why people like Massad Ayoob write about such things; because they can matter to a judge or jury.  It's something that anyone who goes about armed should understand; when they are and when they are not allowed to use deadly force to defend themselves.

A jury can do all kinds of funny things.  One day, a jury can decide that a 130 pound many who was shot was reasonably killed because the 260 pound man who shot him was in fact in reasonable fear of his life, despite the disparity in size.  Another day, another jury, and they might come to the opposite conclusion.

This is what happens in courtrooms all across the US.  The law tries to remove arbitrariness from the results of criminal legal proceedings, but there is no way to do that.  Bad lawyers, bad defendants, bad juries, even bad judges can all make what seems like an open-and-shut case of self-defense into a serious crime - or vice-versa.

None of this bothers me overmuch.  What I guess gets up my sleeve is when someone reads something and decides that's 'what the law is'.  No, it is not what the law is. The law is simple.  People fitting the law to actual events in a courtroom, that's hard.  But there are no hard-and-fast rules for how that is going to end in any given case.


----------



## Buka (May 4, 2017)

jks9199 said:


> Road rage is a symptom.  We've got a scary high level of general rage, hostility, and division in the US that I personally have never seen before.  Add to that more and more people who can't work out problems between themselves, and who feel entitled constantly, who can't freaking TALK to each other because they're so used to the internet and social media instead of actual interaction...  Yeah, it's a fun mess, huh!



Never thought of it as a symptom, that makes a lot of sense. Kind of scary, too.


----------



## hoshin1600 (May 4, 2017)

Bill Mattocks said:


> With regard to self-defense and use of deadly force laws in the various states of the US, most boil down to the same basic elements.  They're pretty simple.
> 
> 1) You have the right to defend yourself against unlawful assault by another person.
> 2) You may have the right to use deadly force to defend yourself (in some states, also your property, home, or others) if a reasonable and prudent person would believe that they were in imminent danger of losing their life or suffering grave bodily injury.
> ...


 I dont want to press the issue and turn it into an argument or go off topic, so at this point we will just have to agree to disagree.


----------



## Paul_D (May 4, 2017)

jks9199 said:


> How well can you explain why you had to do what you did.  That's what it boils down to.
> 
> Moving to a road rage incident like this, you have to be able to paint the picture that you feared some significant, life altering injury or death from the guy's attack, that he had the ability, means, and intent to do you harm, and that lesser force was precluded by the circumstances.  Obviously, a guy coming out, fist clenched, yelling and screaming after driving aggressively to get to you... that certainly paints a picture that he intended to do you harm.  It would take quite a bit to overcome that presumption, in a case like that -- but it may not justify lethal force.  An average unarmed couch potato who does "kara-TEY" twice a week for an hour isn't likely to pose much of a physical threat to Dwayne "The Rock" Johnson, right?  But The Rock jumps out, pissed off, and charges most of us?  Yeah, we can probably support that we were pretty damn scared that he'd hurt us badly if he laid hands on us, right?


Sounds pretty much like the UK, but I am thinking more in terms of shooting them as that is pretty much a choice of lethal force or don't fire.


----------



## lklawson (May 5, 2017)

Bill Mattocks said:


> Show me the cite and I will correct my statement.


I'm sorry Bill but Disparity of Force is a well known, well understood, well used, well... well, it's a well worn legal concept.

Here's a few discussions from Lawyers and Expert Witnesses.

https://armedcitizensnetwork.org/images/stories/Hayes_SDLaw.pdf
https://armedcitizensnetwork.org/images/stories/Network_2014-09.pdf

There are an absolute crap-ton of other citations.

By the way, if you ever think you might have to use force in self defense, in particular if you every (even infrequently) carry a firearm for self defense, I very strongly recommend that you get some sort of "self defense insurance" product such as offerings from The Armed Citizen's Legal Defense Network, Texas Lawshield, United States Concealed Carry Association, Second Call Defense, Carry Guard, or some other similar product.

I'm aware of a great number of situations in which a legally innocent person who engaged in justified and legal self defense was put through the wringer.

Peace favor your sword,
Kirk


----------



## billsmith98 (May 5, 2017)

Was the weapon a Glock? But you are correct in that at first blush it appears to be a training issue. If you are going to carry then you should also ensure that you spend the time for ongoing regular practice and training....

Sent from my LGL56VL using Tapatalk


----------



## Bill Mattocks (May 5, 2017)

lklawson said:


> I'm sorry Bill but Disparity of Force is a well known, well understood, well used, well... well, it's a well worn legal concept.



Agreed.  It is still not encoded in law.  Show me the cite and I will retract my statement.


----------



## drop bear (May 5, 2017)

Bill Mattocks said:


> Agreed.  It is still not encoded in law.  Show me the cite and I will retract my statement.



But in practical terms that is just dumb and will leave you with your legs cut out from under you in a court case.


----------



## Brian R. VanCise (May 6, 2017)

"Disparity of force" is but one element in the question "*Would a Reasonable Person Believe They Were In Imminent Danger?"*

Here are some articles you can read on disparity of force:

Disparity of Force: Five Real-Life Self-Defense Cases

https://www.armedcitizensnetwork.org/images/stories/Network_2014-09.pdf

Disparity of Force - USCCA-Concealed Carry Self Defense Insurance & CCW Info

Disparity of force is a very well recognized, well known legal concept.


----------



## hoshin1600 (May 6, 2017)

why are we still hung up on the disparity of force issue???
can we move on? im sorry i mentioned it.


----------



## Bill Mattocks (May 6, 2017)

Brian R. VanCise said:


> "Disparity of force" is but one element in the question "*Would a Reasonable Person Believe They Were In Imminent Danger?"*
> 
> Here are some articles you can read on disparity of force:
> 
> ...



"legal concept" yes.

Not law.  Give me a cite, not a list of links to people using a term of art.


----------



## Bill Mattocks (May 6, 2017)

hoshin1600 said:


> why are we still hung up on the disparity of force issue???
> can we move on? im sorry i mentioned it.



We're 'hung up' on it because people confuse legal arguments and "concepts" as some call them, with actual law.  

Anything can be raised as a mitigating factor or a compounding factor, etc, by defense and prosecution.  We've all presumably heard of the "Twinkie" defense and the "Affluenza" defense, right?  None of those are enshrined in law.  There is no law that says "unless you are rich," or "if you have had a lot of Twinkies that day."

People make arguments, and yes, disparity of force is a *concept* that is often used in courts.  It is not the law.  That's it.


----------



## jks9199 (May 6, 2017)

Bill Mattocks said:


> "legal concept" yes.
> 
> Not law.  Give me a cite, not a list of links to people using a term of art.


Bill, 
I'm sure you know that there is the black letter law and there is the law of precedent or case lawa/common law.  They go hand in hand in most of the US; one is read through the lens of the other.  The law says "It is illegal to assault or batter someone, and anyone who does this is punished by..."  Common law tells us what actions start to add up to a battery or assault, or, in the topic at hand, what actions justify it or make it excusable.  There may not be an actual black letter law saying "X justifies Y"; that's why some of the Stand Your Ground laws got passed -- to address that concern.

We don't have a legal system that requires everything to be written out and spelled out -- and that's a semi-deliberate choice made.  We have leeway built into the system to allow judges, prosecutors, and even cops to try to make sure that there is actually some justice in the system, rather than a purely legalistic approach.

I doubt that there is a specific black letter law breakdown of the affirmative defense of self-defense, in any state.  (Maybe Louisiana; as I understand it, they're a Napoleonic Code state.)  Instead, there are volumes of case law where judges at many levels in the system have weighed in, and where juries have accepted the defense.  That's the best you're likely to get.


----------



## Bill Mattocks (May 6, 2017)

jks9199 said:


> Bill,
> I'm sure you know that there is the black letter law and there is the law of precedent or case lawa/common law.  They go hand in hand in most of the US; one is read through the lens of the other.  The law says "It is illegal to assault or batter someone, and anyone who does this is punished by..."  Common law tells us what actions start to add up to a battery or assault, or, in the topic at hand, what actions justify it or make it excusable.  There may not be an actual black letter law saying "X justifies Y"; that's why some of the Stand Your Ground laws got passed -- to address that concern.



Correct.  However, and I think this is the important part, people (by which I mean the common everyday man in the street) hear that a 130 pound young man was killed by a 260 pound older man who claims he was in reasonable fear of his life from the smaller and younger man, and they scoff, without understanding, that 'disparity of force' laws mean that the larger man could not have reasonably acted in self-defense.  They then proceed to argue as if such things are actual law instead of arguments made pro-and-con in a court of law.  Because 'disparity of force' is NOT law, there is no black or white to it;  it's all down to argument in court.  Therefore, their opinion that size maketh the reasonable man, is incorrect in the extreme.



> We don't have a legal system that requires everything to be written out and spelled out -- and that's a semi-deliberate choice made.  We have leeway built into the system to allow judges, prosecutors, and even cops to try to make sure that there is actually some justice in the system, rather than a purely legalistic approach.



Mmmm, but to quote Charles Dickens' "Mr. Bumble," _"The law, sir, is an ***."_  It is not, to be sure, intended to be either fair or reasonable.  It is what it is and it says what it says.  The Supreme Court, when called upon to do so and it chooses to grant cert, will look to both the intent of Congress when it was passed, or to the Constitution if the question is Constitional in nature, to determine what exactly the law means.

However, minus a great deal of legal sturm und drang, if a law is passed that says jaywalking is illegal on Thursdays, then it is illegal on Thursdays and NOT on Wednesdays.  That is to say, anything which is not prohibited is permitted in our legal system.  And this is as it should be in my opinion.

Therefore, when a self-defense law says that a person may defend themselves with deadly force if a reasonable person would fear for their life or imminent great bodily harm, that is what it says.  There's nothing in it about relative sizes of the people involved, or their ability to defend themselves, etc.  All of that is for a court to decide if it gets to that point.  The defense and prosecution will argue opposite sides, the judge or jury will decide if 'reasonable' was what happened.  But again, the legal standard is 'reasonable' and not 'disparity of force'.



> I doubt that there is a specific black letter law breakdown of the affirmative defense of self-defense, in any state.  (Maybe Louisiana; as I understand it, they're a Napoleonic Code state.)  Instead, there are volumes of case law where judges at many levels in the system have weighed in, and where juries have accepted the defense.  That's the best you're likely to get.



No.  Juries are not bound by case law (precedent).  Juries receive instructions and decided the facts of the case in question unless there is a directed verdict by the judge.  Certainly the attorneys involved will cite previous cases as precedent and attempt to persuade jurors that a particular previous finding or ruling by a court establishes precedent for or against the defendant.  Juries are free to ignore that.

What *can* happen if a jury disregards a clear precedent is that the case gets overturned on appeal, where arguments of case law matter.  I'll grant you that.

I don't think anyone in this thread, including me, thinks that disparity of force would not be considered in a criminal trial of someone who invoked the right to use of deadly force in self-defense; I am sure it would be if the circumstances appear that there was one.  I am arguing - and apparently not making myself sufficiently clear - that 'disparity of force' does not exist as a self-defense statute anywhere that I am aware of.  *Therefore quoting it as if it were a point of law is incorrect.*


----------



## hoshin1600 (May 6, 2017)

Bill Mattocks said:


> that 'disparity of force' does not exist as a self-defense statute anywhere that I am aware of. *Therefore quoting it as if it were a point of law is incorrect.*



maybe we are not making ourselves clear BIll,  *Not one person here* has said that there was a statute law that included disparity of force.  you are the only one who keeps saying that.


----------



## Bill Mattocks (May 6, 2017)

hoshin1600 said:


> maybe we are not making ourselves clear BIll,  *Not one person here* has said that there was a statute law that included disparity of force.  you are the only one who keeps saying that.



I said there is no such law. You said: "i think you are incorrect, i believe there is a factor of "disparity of force"...like a woman Vs a man , mulitiple attackers, or involved weapons."

I said show me the cite. I then received a number of responses with links to jury instructions, definitions, and opinions by noted scholars. No cites.

I was responding to your assertion that I was wrong about 'disparity of force' being encoded in law. I said it's not, and it's not.


----------



## hoshin1600 (May 6, 2017)

that is a misunderstanding.
my intent was that i disagreed with what i belived your point of view was not about the statue law



Bill Mattocks said:


> The amount each one weighs has no legal place in self-defense


 as i read that i took that to mean that ones size does not matter in any way.

i though i was clear enough in consecutive posts after that one that while there is no statute law, that size is a "factor" in deciding if the persons actions were justified or as you keep saying "reasonable".
i never once said there was a statute law nor did i argue that there was.
you said what i posted was Jury instructions and i agreed that yes that was what i posted and my intent.
my intent was to show that ones size has influence in making that decision on whether deadly force was justified.




Bill Mattocks said:


> Second, victim drawing his firearm. Was he justified in doing so?


this was your original question and my post was in response to it.

i will apologize for any misunderstanding,  i never said that there was a statute law of disparity of force.  i was under the impression that we agreed on that point.
i moved on and didnt want to continue in that direction but others took up the banner and carried it forward.


----------



## hoshin1600 (May 7, 2017)

Despite the misunderstanding I appreciate the discussion. It makes me better at what I do.


----------



## FightHACKS (Jun 23, 2017)

Bill Mattocks said:


> Show me the cite and I will correct my statement.



I think you are both actually correct and saying the same thing. Though there may not be any "Disparity of Force" wording in any laws or statutes, a "disparity of force" should definitely play into whether or not one's actions are / were reasonable i.e. "standard of reasonableness".


----------

