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The highly publicized – and highly politicized – trial of Kyle Rittenhouse in Wisconsin began November 1. The motions in limine determining allowable evidence before a jury took place a few days before Halloween. That seemed appropriate at one “trick or treat” moment.

Kyle Rittenhouse Trial & Self-Defense Law

In a discussion about determination of initial aggressor, the prosecutor told the judge – in a condescending tone of voice, as if schooling a child – “You’ve got an armed person shooting an unarmed person, Your Honor.” 

That was the trick. The treat came when the judge shot that argument down. Call it Case One. You can find an excellent analysis of this, complete with video of the back-and-forth in court, at Attorney Andrew Branca’s excellent Law of Self Defense blog.

That prosecutor wasn’t the only attorney who apparently got through three years of law school without grasping the concept of disparity of force.

Deploying Deadly Force

Deploying deadly force with a firearm legally occurs only against a person wielding the power to kill, or to cause great bodily harm, essentially meaning crippling injury. A criminally hostile attacker, armed with a lethal weapon such as a gun, knife, bludgeon, etc., obviously constitutes that threat.

The deadly force of a firearm can only be deployed legally against a person who himself has the power to kill, or to cause great bodily harm, which essentially means crippling injury. This most obviously would be a criminally hostile attacker who is armed with a lethal weapon: gun, knife, bludgeon, etc. However, that power to kill can also take the form of disparity of force which favors the assailant(s). According to the FBI’s Uniform Crime Report, more homicide victims died from bare hands and stomping feet (662) than those killed by all rifles, including dreaded “assault rifles.”

Disparity of Force

Disparity of force means the opponent fails to wield a weapon per se. His physical advantage over the defender stands so great, the attacker, if allowed to continue, likely causes death or grave bodily harm. This advantage on the part of the opponent, viewed legally, comprises the equivalent of a lethal weapon. It warrants the innocent defender’s recourse to a lethal weapon, such as a defensive firearm, to protect themselves.

Attorney John Colley, left, prepares author for testimony in Case 5.
Attorney John Colley (left) and the author prepare for testimony during Tennessee v. Shawn Armstrong.

Disparity of force can take many forms. Force of numbers in a gang assault. Significantly greater physical size and strength. Force of numbers. Known or obviously recognizable high skill in unarmed combat. Usually (but not always) female attacked by male. An able-bodied person attacking a handicapped person, even if the handicap has taken place in the course of this particular incident. Position of disadvantage, which means that a person of equal size or strength is, say, bashing your head against a brick wall and you can’t otherwise break free.

Case Examples

In Case Two, Arizona v. Larry Hickey, two women larger than himself, one a martial artist, were assaulting the defendant’s petite wife when he stepped between them and came under attack. Bruise and cut evidence showed he was merely blocking their blows and not striking them when a third party, a muscular male of 26, entered the fray and sucker-punched Hickey in the head. Feeling himself about to lose consciousness and fearing the trio would find his legally carried pistol and shoot his wife with it, he drew his Glock 19 and shot two of the attackers, ending the assault. Authorities charged him with felony aggravated assault. I testified as an expert witness, explaining disparity of force. The trial ended with a hung jury, a majority of whom had voted to acquit, and the prosecution dropped the case.

Why a hung jury? We were told later that the one attorney on the jury had convinced a couple of the jurors that there was no such thing as disparity of force! Yet the multiple elements of disparity of force in this case had been pointed out to the jury, on the record. Such is the power of public misperception.

Case Three, the notorious shooting death of Trayvon Martin at the hands of George Zimmerman, involved position of disadvantage as disparity of force. The evidence confirmed the defendant’s account, pinned down on his back under a martial arts “mount.” He suffered his head smashed into the underlying concrete. He then fired a single shot from his Kel-Tec PF-9, saving his life. That’s why Florida v. George Zimmerman ended in acquittal.

Multiple Elements Simultaneously Present

As we can see, there may be multiple disparity of force elements in play at once. I’ve found this to be particularly true when women use deadly weapons in self-defense. In Case Four, Florida v. Mary Hopkin, a battered woman shot and killed the abusive common-law husband who a few days before had strangled her unconscious and left her for dead, and now had come back to her home, broken down her door, and come at her. He was 45 years old, and she, 63. The man weighed around 240 pounds, and she was slender; he proved able-bodied and she was arthritic.

The brilliant defense lawyer Mark Seiden still had to defend her at trial against charges of criminal homicide that, with a conviction, would have seen her die in prison. We both felt gratified with the jury’s swift acquittal. Some jurors even hugged her afterward on the courthouse steps, telling her they thought the charges against her an outrage.

As I did in the Hopkin case, I testified as an expert witness for the defense in Case Five, Tennessee v. Shawn Armstrong. The petite Ms. Armstrong had been beaten and stomped to the ground by her much larger husband, who had extensive hand-to-hand combat training. He began to walk away, then turned and came at her again, and only then did she draw her Colt .38 revolver and fire from the ground the shot that killed him. She was defended by the most able attorney John Colley, and acquitted of all charges even faster than the Case Four jury. Male versus female, greater size and strength, ability to kill without a weapon per se, and position of disadvantage as well, all combined to convince the jury that she was right to “shoot an ‘unarmed man.’”

Final Thoughts

My space here is limited, and I know that your research time is limited as well. Still, I urge you to look into this more. Read the classic text Warren on Homicide, which first appeared in 1938 and can be found at well-stocked county and state legal libraries. Read my book Deadly Force, available on amazon.com. Each will give you a better understanding of disparity of force than what many attorneys currently practicing in the criminal justice system seem to possess. Now, more than ever, the Kyle Rittenhouse trial puts deadly force, self-defense and the law on center stage.

Massad Ayoob's "Deadly Force."

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