Category Archives: Self-defense

Disparity of Force and Self-Defense

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

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 be required 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.

Legal self-defense, too

Sometimes it seems that no matter what choice a person makes, someone imagines they could have done better.

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

The first foundation of personal safety is situational awareness. We strive for a high level of awareness of our situation at all times. But humans have a limited ability to pay attention. 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 those tasks and say, attending to our smart phone, we degrade our awareness and safety. 

The good news?  We can avoid 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. If a physical attack suddenly presents, situational awareness can help us respond in the best possible way under the circumstances.  When it happens, we must weigh disparity of force factors instantly.

Disparity of force or threat

Disparity of Force and Self-Defense. woman defeats man

Disparity of Force and Self-Defense

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, would that disparity in size and strength justify your use of greater force than if the situation were reversed? 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 assaultinvolve 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.

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.

See our related article: Self-defense and the Other.

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.  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.

See our related article:  Self-defense: Dominance, Escalation and Deception

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.

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. But 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 it 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, in the movies when someone is shot with a gun, they drop dead immediately.  But in real life, that is rare.

An attacker with a knife twenty-one feet away who is shot by a lawful defender, can still kill the defender with the knife. See The Tueller Drill.

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

After you’ve been attacked, continue the necessary, reasonable use of force in self-defense until the threat is over. Once the attacker is disarmed, disabled or otherwise no longer a threat, the use of force is no longer necessary.  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.  It’s a good idea to get help for the injured criminal if possible, possibly via 911.  If it is clearly safe to do so, render First Aid.

We do not seek retribution

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.

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

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?

Liberty-Lawyer.com logo sm wideThomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Self-defense: Dominance, Escalation and Deception

Whether you think little or a lot about self-defense, you can live a better life when you consider self-defense from two perspectives: the practical and the legal.  The different schools of self-defense training agree on many things.  Similarly, the law of self-defense agrees in many ways across jurisdictions, cultures, even history.   And though practical self-defense training (how to do it) and the law of self-defense seem to be quite different perspectives, they share much in common.

Whether a legal defense of self-defense is accepted will depend partly upon what people believe the defendant’s situation was at the time – a totality of the circumstances.  Inevitably jurors, judges, all of us will compare what we believe the person being judged did, with what we imagine we would have done in those hypothetical circumstances.

“Better judged by twelve than carried by six.”

A wise aphorism in the lore of self-defense is “better judged by twelve than carried by six.”  The person required to use force in self-defense faces a two-fold threat: first surviving the physical attack; and second surviving the potential legal threat of being wrongly accused of a crime.

Dominance, Escalation and Deception

Some physical attacks are part of a robbery, a rape, a riot, or planned.  Putting those to one side for now, let’s look at the other sort – attacks that spontaneously rise from anger, conflict or a sense of having been treated disrespectfully by someone.  What are some strategies and tactics that can be used to both good practical and legal effect?

The Social Reality

Humans are social animals.  We have always lived in groups, each with our roles within the group.  Like other social animals, we have orders of social dominance, and individual competitions for dominance ranking.  These can be in part based on coercion (such as laws and law enforcement) as well as the actual use of force – lawful and unlawful.  Generally we are unaware of our social dominance orders and roles.

But when it comes to self-defense, awareness can be a powerful tool to help us avoid trouble – to avoid both physical attacks as well as legal attacks.

A person may present to you their subjective belief that you have treated them unjustly or wronged them in some way.  How can you use dominance, escalation and deception to avoid trouble?

call-of-the-wild-image-excerptWhen animals compete for social dominance, they often will display an escalation of threatening physical posturing, sometimes followed by an attack and fight.  They know what they are competing for – social dominance, a recognition by the other of their superior position.

If at some point one of the competitors backs down and shows surrender, this submission will cause the winner to cease the attack.  The dominant animal will not normally hurt the submitting one.  One great story about this in literature is Jack London’s The Call of the Wild.

Your humility may not be as deep and sincere as you might like – but you can use some tactical deception and adopt an attitude of humility.  If backing down helps avoid a conflict, you win.  You can’t stop someone from baiting you.  But you can refuse to take the bait.

Though humans can’t necessarily be trusted to stop attacking a person who is clearly not competing for dominance, it is a strategy that may work in some situations.  If the conflict is about the person’s perception of honor, justice, having been wronged – it doesn’t matter if they are justified – this may be a situation where conceding dominance, and de-escalation of conflict tactics may resolve the situation enough so that you can leave the situation, and move on.

Asserting dominance, escalation of conflict, can be just the thing

When a person or group threatens attack or attacks as part of a plan, like robbery or rape; conceding dominance and de-escalation of conflict tactics are unlikely to work.  In these situations, the aggressor is a predator with a goal, acting with rational purpose not just emotion.

Here, asserting dominance authoritatively, escalation of threat displays and the use of force may be best.  Why?  Predatory behavior seeks an easy target.  To ward off predators, be a hard target.  Show strength, confidence, and dominance.  Lead the escalation of conflict.  To the extent that the predator is primarily opportunistic, they may be deterred. Where not discouraged, the predator may be effectively disabled by force.

Evade, Escape, Engage.

Where practical, it’s best to avoid a potential physical concentration.  No one wins a fight, when everyone gets hurt.  This could mean crossing the street, walking the other way, driving away – any way out of there, away from the threat.

Sometimes it’s not a reasonable option to retreat – for example if the threat is already close and would simply attack you from behind if you turned and ran.  But in unarmed combat especially, creating some distance can increase safety.  Even when the attacker is armed, creating distance can sometimes reduce risk of harm.

In many traditional martial arts disciplines, for example Wing Tzun, a general rule is that we do not initiate an attack.  This idea, dating back hundreds – perhaps thousands of years, is not based on any legal considerations.  It’s a fighting tactic to either avoid a fight by not initiating; or forcing the opponent to physically commit to an action that can then be exploited with various combative counter-techniques.  This practice of not initiating a fight will also be helpful in the event of legal trouble, and the assertion of a legal defense of self-defense.

Before and once an attack is underway, we assess the threat and seek to bring a proportionate, reasonable response.  We don’t want to respond disproportinately, but the perfect is the enemy of the good.

See our related article: Disparity of Force and Self-Defense.

Too little force to mount an effective defense could result in serious injury or death for ourselves or loved ones.  Too much could lead to legal trouble.  Those who judge us from outside the situation have the stress-free benefit of hindsight.  The arm-chair quarterbacks often think they could’ve done better, even though they weren’t there.

Stop the Threat

Once force is used, when should it stop?  Self-defense systems generally teach that you should use necessary force until the threat is no longer a threat.  Contrary to the impression created in many films and television shows, the lawful self-defender does not seek to hurt or to kill, but rather to disable the attacker or attackers – to stop the threat.

If an attacker is hurt or killed that is an unintended consequence of the focused goal of self-defense – to simply stop the threat.  Once the attacker is disabled from continuing the attack, the use of force against them should also stop.

After the use of force in defense of self or another

Once you have confirmed that the threat has been stopped or disabled, if it is safe to do so (being aware of third parties and weapons), it’s a good idea to render First Aid or whatever assistance can be rendered to the now disabled attacker, and contact the police if possible.

We’ll look at how to handle police contacts in the future (what to do, what to say and when).  But what you do, and knowing what to do, before police contact stemming from the use of force in self-defense is far more important.  Prepare yourself by learning and training in self-defense – not only for your sake but for the sake of your family, co-workers, and those around you.

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Self-defense and The Other

Self-defense is a legal defense to certain criminal charges in Minnesota.  A defendant can plead self-defense when facing charges of: assault, murder, and disorderly conduct, among others.

It is not a bright-line sort of law.  If there were, the law would be easier to apply but justice and fairness would be sacrificed.  Instead, the law asks the finder-of-fact (the jury in the case of a jury trial) to look at the totality of circumstances to determine whether the accused person acted in self-defense.

A totality-of-the-circumstances test is more difficult to apply than a bright-line test, but can be more fair, more just.  But when a person judges another and their past choices under that test; that person must use their discretion.  And in doing they so will apply their own life experiences, biases, and point of view.

Who is The Other?

gran-torino-posterIn the popular Clint Eastwood film Gran Torino, character Walt Kowalski leads a lonely existence.   But he takes great pride in his lawn.  Gangbangers arrive to kidnap the young man next door, character Thao Vang Lor.  During a scuffle on his lawn, Walt appears with a rifle to defend the kid and his Hmong family.  He warns the gang members: “Get off my lawn!”

His use of racial slurs reveals his view of the kid he is defending and his family as The Other.

But by the end of the film, protagonist Walt Kowalski fully connects with young Thao.   Thao is then like a son to him.  And he feels part of Thao’s family and Hmong culture.  Thao is no longer The Other, nor is his family or the Hmong culture.  Walt identifies with them completely.  This is one of the story arcs of the film, the movement from The Other to One of Us.

What difference does it make?

Will we view another as The Other, or as One of Us?  When it comes to self-defense, that makes a big difference.

If another person is One of Us, then we are naturally empathetic.  We see each situation through their eyes, from their point-of-view.  But, if someone is The Other, they are not like us.  And we are naturally suspicious of their motives and behavior.

This may be part of our genetic nature as humans.  Throughout human existence, until relatively recently, humans lived in small groups of ten to fifty people.  Each group member needed to cooperate with other group members to survive.  But we viewed a person from outside the group suspiciously, as a threat; at least until some reason came to light to assure otherwise.

You start out as The Other

Imagine this scenario:  You have just left a bar downtown at closing time.  A few dozen people are standing around in the warm summer night.  They’re chatting in small groups, before leaving for their next stop.

Facing east, you notice three young men walking down the street towards the crowd that fills most of the sidewalk.  You’ve had self-defense training.  You’re situationally aware.

You see one pull back his arm, and make a fist.  He strikes a heavy blow into the side of a man’s head ten feet from you.  The man doesn’t see it coming.  And he drops to the ground.  Your jaw slackens in shock.  The man who was hit is on the ground, shaking it off, trying to comprehend what just happened.  The lone attacker squares off and goes after the man again, as he regains his feet.

The victim of the attack tries to defend himself, blocking and striking back with fists.   Then, you see other people in the crowd turning to look to see what the fuss is about.  They back away, to form a circle around the pair.  You overhear several people in different groups say: “why are those two guys fighting?” and “What the hell is wrong with them!”

Now, instead of being the bystander, imagine you are the target of the attack.  But 95% of the witnesses in the crowd did not see how it began or why.  They turned and noticed after that, to see “two guys fighting” – The Other.

Point-of-View matters

Minnesota’s general self-defense statute is Section 609.06.  It includes the language:

“reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist: (3) when used by any person in resisting or aiding another to resist an offense against the person… .”

Notice these two phrases in the self-defense statute:

  • “reasonable force” and
  • “circumstances exist or the actor reasonably believes them to exist.
Self-defense law: Point-of-view makes all the difference

Self-defense law: Point-of-view makes all the difference

Whenever we see the word “reasonable” in the law, we have a totality-of-circumstances test, not a bright-line test.

All real crimes require proof of the element of criminal intent of the actor (the accused person).

This requires the jury to evaluate the evidence from the point-of-view of the accused.  So, the jury should not consider the point-of-view of anyone else, even a victim.

The statute emphasizes this point.   It says that the fact-finder must consider the circumstances that the defendant reasonably believed to exist at the time. 

The law is curative – meaning that the law tries to fix a recognized bias endemic to our culture.  If that bias did not exist, we would not need legal language attempting to remedy it.

From this we can see some of the basic types of factors in the totality-of-circumstances for self-defense.  Was the force used:

  1. reasonable under either the circumstances that actually existed, or,
  2. under the circumstances that the actor (defendant) reasonably believed existed?
  3. proportionate to the circumstances, whether actual or reasonably believed to exist?

Cultural bias in the post hoc observer

When people in our culture see two people fighting they’ll generally view them both as The Other, with suspicion.  Similarly, people hearing about people fighting they will tend to presume that both must be guilty of something.  This – despite their personal experience that most “fights” involve an aggressor attacking an unwilling, eventual participant, forced to defend herself.

See our related articles:

Disparity of Force and Self-Defense

Self-defense: Dominance, Escalation and Deception

The Duty to Retreat – shifting the burden of proof

This cultural bias takes form in the current Duty to Retreat in Minnesota.  In certain cases, the prosecuting attorney can try to reverse the burden of proof.   The prosecutor forces the defendant to show some evidence that she met “the duty to retreat.”

The Duty to Retreat jury instruction gives the prosecutor a second bite at the apple.

After all, what juror would find the use of force reasonable, if the defendant could have retreated before the altercation?

The Minnesota duty to retreat manifests the cultural bias of viewing the abstract self-defender as “The Other,” with initial suspicion.

Implications for the future, and for the past

Self-defense training EBMAS

Self-defense training

We should think about how we will defend against a future attack, should it occur.  Ideally that will include self-defense training, whether it is one class or life-long learning and training practice.

Consider: “How can I help others perceive me as a good guy (one of us) rather than The Other?”

Our appearance can play a part in this, as can our words and conduct.

The Other as a core issue in a self-defense case

Are you a lawyer or a defendant in a criminal case where the defendant acted in self-defense?  If so, you recognize that one of the core issues will be “good guy vs. The Other.

Here, the self-defender’s appearance, words and conduct will matter.   But the point-of view adopted by the fact-finder (jury) will also be key.

The law asks the fact-finder to look at what was happening at the time, from the point-of-view of the defendant.  Hindsight is a trap.

Moving from The Other to one of us

So, the defense lawyer, judge and other jurors need to help the jurors overcome our initial bias against The Other.  The defense lawyer helps jurors get to know that the accused is a good guy, and acted reasonably.

Liberty-Lawyer.com logo sm wideThomas Gallagher is a Minneapolis criminal lawyer.  His practice includes cases where the accused person acted in self-defense.