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Ins and Outs of Self Defense — Part Two

A self-defense problem area that many people find themselves fallen into is the previous mention of disproportionality in Ins and Outs of Self Defense — Part One. This concept says you may defend yourself in a reasonable manner, but not more than is necessary to protect yourself from harm. When a fist is raised against you, you generally cannot respond with gunfire and expect to claim self-defense. If someone pinches your arm you cannot use a steel baton on them and break their jaw.

Your defense against an attack does not have to only be “equal” to the attack as this means the situation could continue indefinitely as you and the attacker go back and forth using equal force. You can use greater force, but it has to be “reasonable” greater force. That is sometimes hard to judge in the midst of an incident. A good lawyer who understands these concepts and how best to frame your case might save you from a very bad legal situation.

As with many aspects of self-defense, there is an important exception that may change the equation. This is known as the doctrine of disparity of force. If you can claim that the totality of the circumstances was such that you specifically, and not necessarily the “reasonable person,” would suffer harm you might be able to defend yourself more aggressively than normal under the law. Remember that word “might.”

The example often used is a man raising his fist to a woman to strike her. The law assumes automatically that the woman is under great potential harm and allows her to defend herself with what might be a disproportionate response if a man was under the same attack. The same would apply if a young, stronger man was attacking an older, weaker man, a large man a much smaller man, or virtually anyone attacking a handicapped person. Multiple people attacking fewer person is also considered under the same doctrine.

The courts have generally ruled that an experienced, trained fighter such as a martial arts expert attacking someone who is not trained falls under the doctrine but only if the person being attacked knew beforehand that the attacker was such an expert. If the person being attacked has a health problem such as a weakened heart he may defend himself disproportionately under the idea that almost any attack could do him immediate, serious harm or death. The attacker need not know of the weakened condition of the person he is attacking for the doctrine to apply.

Again, counting on the doctrine of disparity of force as a “magic wand” to relieve you of all responsibility of legally accounting to the courts for your actions is a dangerous road. If you were the instigator, or if the jury decides that your disparity of force was not sufficient enough of a mitigating factor you may still be held accountable to the law.

Another key consideration of self-defense is knowing when to stop – or when the action moves from you being a “defender” to you being the “attacker.” That is often a line that is hard to determine in the heat of an incident that may only last seconds. Generally speaking, when your attacker is stopped and unable to continue an assault on you it is time for you to stop defending yourself. For example, if he is laying on the ground screaming with pepper spray in his eyes you cannot kick him in the head a few times just because it makes you feel good about it. However, if he is continuing his attack even after being sprayed you can continue your defense.

In Part Three I will cover how to know if an act of self-defense is likely to stand up in the eyes of the law.

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