Physical force, deadly physical force, and knowing the difference in advance of the blow.

[Elkins45]

This thought came to me when I was responding to another thread in this forum. KY law (and I presume a lot of other states) makes a distinction between physical force and deadly physical force. Definitions below:

"Physical force" means force used upon or directed toward the body of another person and includes confinement.​

​

"Deadly physical force" means force which is used with the purpose of causing death or serious physical injury or which the defendant knows to create a substantial risk of causing death or serious physical injury.​

​

Regarding the use of force in self defense KY law says this: (emphasis added)

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.​

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.​

(4) A person does not have a duty to retreat prior to the use of deadly physical force.​

​

Here's what's rumbling around in my head: one good punch alone from a strong young person could potentially cause years of suffering, physical infirmity, or even death if it lands just right. Or it could cause a person to fall down and then become vulnerable to a kicking or stomping attack that could also prove crippling or fatal. Or to strike their head on the pavement and suffer a fatal concussion. The older I get (and the more horrifying videos I see online) the more I think there's really no such thing as a physical attack that doesn't have the potential to cause serious physical injury other than perhaps grabbing someone or maybe shoving them.

I'm not a psychic, nobody is. How am I supposed to know when someone starts throwing hands or grabbing me if they're intending to do serious physical injury? Or how do I know they won't inflict such an injury accidentally in the process of trying to rattle me or "soften me up" in order to make me an easier victim?

As someone of retirement age and with some mobility challenges, what can be reasonable expected of me by a jury of my peers in terms of my belief that I'm about to be harmed? Seems to me that as soon as some young attacker puts his hands on me that the threshold has been crossed because he could easily kill me by accident. In other words, almost all physical force could easily become deadly physical force against a weaker, older victim and the victim has no duty to "take a few punches for good measure" before fighting back with deadly force.

Is this an extreme interpretation of the idea of disparity of force or do a lot of people think like this? Do prosecutors? I just know I really hate the idea that my last thought of my final few seconds of life might be "I wouldn't be on the ground being stomped to death if I had drawn and fired."

This is posted in strategy and tactics because all of the above leads to the following question: Does your tactical thinking in terms of the use of force continuum change in light of (a) advancing age and infirmity and (b) realistic knowledge that physical force isn’t like TV and the movies where a guy gets clubbed with a baseball bat and is lucid and conscious 15 minutes later?

 

[Kleanbore]

First of all, justification is based on a defendant's reasonable belief. Others judge whether a person in similar circumstances, knowing what the defendant knew at the time, had reason to believe that he or she had faced an imminent threat of death.

Secondly, while one punch may cause death or serious bodily harm, unless the attacker has the power of George Foreman, or unless the defendant is unusually vulnerable, as might be someone taking anticoagulants, that would be unlikely. For that reason, a punch is not otherwise considered by the courts to constitute deadly force.

 

[AJC1]

This thought came to me when I was responding to another thread in this forum. KY law (and I presume a lot of other states) makes a distinction between physical force and deadly physical force. Definitions below:

"Physical force" means force used upon or directed toward the body of another person and includes confinement.​

​

"Deadly physical force" means force which is used with the purpose of causing death or serious physical injury or which the defendant knows to create a substantial risk of causing death or serious physical injury.​

​

Regarding the use of force in self defense KY law says this: (emphasis added)

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.​

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.​

(4) A person does not have a duty to retreat prior to the use of deadly physical force.​

​

Here's what's rumbling around in my head: one good punch alone from a strong young person could potentially cause years of suffering, physical infirmity, or even death if it lands just right. Or it could cause a person to fall down and then become vulnerable to a kicking or stomping attack that could also prove crippling or fatal. Or to strike their head on the pavement and suffer a fatal concussion. The older I get (and the more horrifying videos I see online) the more I think there's really no such thing as a physical attack that doesn't have the potential to cause serious physical injury other than perhaps grabbing someone or maybe shoving them.

I'm not a psychic, nobody is. How am I supposed to know when someone starts throwing hands or grabbing me if they're intending to do serious physical injury? Or how do I know they won't inflict such an injury accidentally in the process of trying to rate me or "soften me up" in order to make me an easier victim?

As someone of retirement age and with some mobility challenges, what can be reasonable expected of me by a jury of my peers in terms of my belief that I'm about to be harmed? Seems to me that as soon as some young attacker puts his hands on me that the threshold has been crossed because he could easily kill me by accident. In other words, almost all physical force could easily become deadly physical force against a weaker, older victim and the victim has no duty to "take a few punches for good measure" before fighting back with deadly force.

Is this an extreme interpretation of the idea of disparity of force or do a lot of people think like this? Do prosecutors? I just know I really hate the idea that my last thought of my final few seconds of life might be "I wouldn't be on the ground being stomped to death if I had drawn and fired."

I think most jurries look at the old like women in these circumstances. If your obviously outmatched it's going to be a lot easier than if you have a big physical advantage.... what you don't have on your side is knowing if the DA is going to try and make a name for themselves at your expense. They are the key holders to if a jurry is even involved.

 

[dweis]

There is no reliable answer to your question(s). I am 81, stand at 5’10 and weigh 165 pounds. So I consider it likely that any encounter I might have with an assailant would present a “Disparity of Force” situation. PA law is much like you describe KY law. So it is what you “believe that” the force used against you would result in. That is an instantaneous judgement, if assaulted. Blow do you prove what you believed? You can only state it and hope the jury buys it.

 

[Spats McGee]

This thought came to me when I was responding to another thread in this forum. KY law (and I presume a lot of other states) makes a distinction between physical force and deadly physical force. Definitions below:

"Physical force" means force used upon or directed toward the body of another person and includes confinement.​

​

"Deadly physical force" means force which is used with the purpose of causing death or serious physical injury or which the defendant knows to create a substantial risk of causing death or serious physical injury.​

​

Regarding the use of force in self defense KY law says this: (emphasis added)

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.​

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.​

(4) A person does not have a duty to retreat prior to the use of deadly physical force.​

​

Here's what's rumbling around in my head: one good punch alone from a strong young person could potentially cause years of suffering, physical infirmity, or even death if it lands just right. Or it could cause a person to fall down and then become vulnerable to a kicking or stomping attack that could also prove crippling or fatal. Or to strike their head on the pavement and suffer a fatal concussion. The older I get (and the more horrifying videos I see online) the more I think there's really no such thing as a physical attack that doesn't have the potential to cause serious physical injury other than perhaps grabbing someone or maybe shoving them.

I'm not a psychic, nobody is. How am I supposed to know when someone starts throwing hands or grabbing me if they're intending to do serious physical injury? Or how do I know they won't inflict such an injury accidentally in the process of trying to rate me or "soften me up" in order to make me an easier victim?

As someone of retirement age and with some mobility challenges, what can be reasonable expected of me by a jury of my peers in terms of my belief that I'm about to be harmed? Seems to me that as soon as some young attacker puts his hands on me that the threshold has been crossed because he could easily kill me by accident. In other words, almost all physical force could easily become deadly physical force against a weaker, older victim and the victim has no duty to "take a few punches for good measure" before fighting back with deadly force.

Is this an extreme interpretation of the idea of disparity of force or do a lot of people think like this? Do prosecutors? I just know I really hate the idea that my last thought of my final few seconds of life might be "I wouldn't be on the ground being stomped to death if I had drawn and fired."

You started with a legal-type question, so I’m going to give you a legal-type answer. I’m not licensed in your state, so I don’t have the Final Answer. That said, I will offer two things: First, your post is a pretty good statement of the kinds of things the lawyers will actually look at, when this kind of case comes up. Second, from a legal perspective, you should probably consult with an attorney in your jurisdiction. You would obviously be able to communicate your concerns, and while THR members are well-meaning, few of any of us in your jurisdiction.

 

[Elkins45]

You started with a legal-type question, so I’m going to give you a legal-type answer. I’m not licensed in your state, so I don’t have the Final Answer. That said, I will offer two things: First, your post is a pretty good statement of the kinds of things the lawyers will actually look at, when this kind of case comes up. Second, from a legal perspective, you should probably consult with an attorney in your jurisdiction. You would obviously be able to communicate your concerns, and while THR members are well-meaning, few of any of us in your jurisdiction.

I suppose I did a poor job in conveying my question because all the legal stuff was just to establish background. The underlying (and unfortunately poorly stated) question is a tactical one.

Does your tactical thinking in terms of the use of force continuum change in light of (a) advancing age and infirmity and (b) realistic knowledge that physical force isn’t like TV and the movies where a guy gets clubbed with a baseball bat and is lucid and conscious 15 minutes later?

I’m going to go back and edit the initial post to reflect this.

 

[.38 Special]

If Mike Tyson tries to strangle granny, she may well be legally justified in shooting him. If granny tries to strangle Mike Tyson, he almost certainly would not be legally justified in shooting her. Disparity of force, in other words.

Your jury may vary, of course.

 

[Jeff White]

Does your tactical thinking in terms of the use of force continuum change in light of (a) advancing age and infirmity and (b) realistic knowledge that physical force isn’t like TV and the movies where a guy gets clubbed with a baseball bat and is lucid and conscious 15 minutes later?

Your tactical thinking needs to change with every change in your capabilities even if the change is temporary. No one knows your capabilities better then you do. One hard part is being honest enough with yourself to recognize when your physical capabilities have changed.

 

[CDW4ME]

KY law (and I presume a lot of other states) makes a distinction between physical force and deadly physical force. Definitions below:

As someone of retirement age and with some mobility challenges, what can be reasonable expected of me by a jury of my peers in terms of my belief that I'm about to be harmed? Seems to me that as soon as some young attacker puts his hands on me that the threshold has been crossed because he could easily kill me by accident. In other words, almost all physical force could easily become deadly physical force against a weaker, older victim and the victim has no duty to "take a few punches for good measure" before fighting back with deadly force.

Is this an extreme interpretation of the idea of disparity of force or do a lot of people think like this?

Disparity of force.
Could two men attacking one man be considered disparity of force? I think so.
Could a man attacking a woman be disparity of force? I'm 6'1 / 203# my wife is 5'8 / 150# - our ability to lift weights in gym illustrates an obvious disparity of strength.

How about one man versus another man? Using my gym example I see guys bench double (and more) the weight I am capable of doing; the difference in them versus me is comparable to me versus my wife. My wife is at a clear disadvantage if she had to defend against someone my size and I am at a clear disadvantage against much stronger men.

Real life examples:
Amateur MMA fighter kills airman with one punch outside a bar; two young men but one was skilled at fighting more than the other.
https://www.nbcnews.com/news/us-new...ter-brawl-florida-bar-officials-say-rcna79250
https://www.wfla.com/news/florida/mma-fighter-kills-florida-airman-in-bar-fight-officials/

Not a MMA fighter example? Here are three, all male victims:
https://www.cbsnews.com/news/minn-teen-gets-10-years-for-fatal-knock-out-game-punch/
https://nypost.com/2023/01/02/bouncer-dies-after-knock-out-punch-at-nyc-bar-on-christmas-eve/
https://www.syracuse.com/news/2013/...chael_daniels_death_onondaga_county_medi.html

 

[Kleanbore]

Not a MMA fighter example? Here are three, all male victims:

None of those examples inficate that a punch is likely to result in death or great bodily harm.

 

[Elkins45]

None of those examples inficate that a punch is likely to result in death or great bodily harm.

Does a defender have to play the percentages? Based on what I’ve seen reported a gunshot isn’t likely to kill you either.

Speaking tactically I’m less likely to find out how badly a punch will hurt the older I get. If I’m lucky enough to avoid or block the first one I don’t plan on giving a second chance.

 

[The Night Rider]

Does your tactical thinking in terms of the use of force continuum change in light of (a) advancing age and infirmity

Short answer, yes. I deleted the rest of that question because to me it's irrelevant. I'm old and I'm crippled and I have a VA ID card to prove it.

If I sat down on the floor it would take me a couple of minutes and some help to get back up. I can't imagine trying to get back up in a fight.

That's why I always carry OC spray with me.

 

[Kleanbore]

Does a defender have to play the percentages.

No

Based on what I’ve seen reported a gunshot isn’t likely to kill you either.No, but it will involve a substantial risk of serious bodily harm. That meats the definition of deadly force.

No, but it will create a serious risk of death or great bodily harm. that meets the definion of deadly force.

Except under some conditions previously discussed, punches do not meet that definition.

It's a good idea to have a les lethal defensive option at hand.

 

[CDW4ME]

Disparity of force.
Could two men attacking one man be considered disparity of force? I think so.
Could a man attacking a woman be disparity of force? I'm 6'1 / 203# my wife is 5'8 / 150# - our ability to lift weights in gym illustrates an obvious disparity of strength.

How about one man versus another man? Using my gym example I see guys bench double (and more) the weight I am capable of doing; the difference in them versus me is comparable to me versus my wife. My wife is at a clear disadvantage if she had to defend against someone my size and I am at a clear disadvantage against much stronger men.

Here are three, all male victims:
https://www.cbsnews.com/news/minn-teen-gets-10-years-for-fatal-knock-out-game-punch/
https://nypost.com/2023/01/02/bouncer-dies-after-knock-out-punch-at-nyc-bar-on-christmas-eve/
https://www.syracuse.com/news/2013/...chael_daniels_death_onondaga_county_medi.html

None of those examples inficate that a punch is likely to result in death or great bodily harm.

No. Nor did I say it is likely.
Those are examples where it happened.

 

[Kleanbore]

No. Nor did I say it is likely.
Those are examples where it happened.

What, then, was the point?

 

[The Night Rider]

Does your tactical thinking in terms of the use of force continuum change in light of (a) advancing age and infirmity.

Long Answer, Yes but.

My tactical thinking covers a lot of ground and my age and infirmities do play into that.

I was taught that the simplest definition of strategy is your overall goals and that the simplest definition of tactics was specific things you do to achieve those goals.

So one of my first tactics is to avoid places where there's a higher likelihood that I'm going to need to defend myself, especially when there's a higher likelihood that I'm going to need to defend myself. No gas stations after dark. No Stop and Robs ever.

My second tactic is to always have what John Corriea calls a "Non-lethal force multiplier" on me. I don't so much to go to the mailbox without OC spray on me. I mean, really I don't go to the mailbox without a gun on me but I can get away with having a can of OC in my hand. A gun not so much.

I pay a lot more attention to what's going on around me than I used to.

Long story short I put practically at this point 100% of my effort has gone to avoidance. I say that because it's been an awful long time since I've had to actually defend myself.

If God forbid I ever have to shoot somebody I wanted to be extremely clear that I did everything I possibly could to avoid that happening

 

[The Night Rider]

No. Nor did I say it is likely.
Those are examples where it happened.

I think this came up here before and the general consensus was try getting a jury to buy off on a one punch kill.

Imagine trying to justify your actions to somebody like Kleanbore who's probably going to think whatever you did was wrong

 

[CDW4ME]

What, then, was the point?

Three examples that a man can kill another man with a punch was the point.
Is it likely? No statistically probably not.
Can it happen? It did.
Perhaps they could be examples of how disparity of force between a man that is frail, feeble, or elderly versus a younger larger attacker could (not will) result in serious or fatal injury to the disadvantaged male.

Arguing disparity of force when it is female versus male with obvious physical advantage to the male, people can envision that.
How about some unarmed 80 year old guy that is no stronger (or less) than my wife versus a larger young strong male? Any body want to put odds that the old guy wins?
Could the young guy kill the old guy using just his hands? It is possible. One might say there is a disparity of force between the old guy and the young guy.

 

[Kleanbore]

Three examples that a man can kill another man with a punch was the point.
Is it likely? No statistically probably not.
Can it happen? It did.

You posted those in the context of the justification of defensive deadly force..

In my case, one blow may well result in death. An assailant many not know that, but that wouldn't matter.

A defendant who had used deadly force to avoid being punched would have to rely upon evidence of a significant disparity of force that provided a basis for a reasonable belief that such force had been necessary. We understand that such a defense can be an up-hill battle. Larry Hickey's trials in Arizona in 2020 illustrate the issue.

It might well come down to the effectiveness of expert witness testimony for both sides.

Attorney Andrew Branca says that the vast majority of defensive force encounters do not rise to the level that would justify deadly force. He supplments his firarm with an OC device.

So do I.

 

[wayneinFL]

The only way to prove one punch would kill somebody is if it did.

I would not want to be the one paying a lawyer to convince a jury that I reasonably believed that one punch was likely to kill me. If that didn't wipe out our life savings, the civil suit would. And I'd likely end up in prison anyway. My wife would better off if I had been knocked dead. I probably would, too.

I would avoid that situation at all costs.

 

[Elkins45]

Attorney Andrew Branca says that the vast majority of defensive force encounters do not rise to the level that would justify deadly force. He supplments his firarm with an OC device.

So do I.

So do I, but you can’t access your OC spray when you’re already unconscious. That’s my point.

 

[Old Dog]

This thread has strangely got me thinking about a sword cane...

Seriously, though, as we age and come to grips with our degraded physical capabilities, it is prudent to understand what constitutes disparity of force (and realistically, since most of us are in denial that we're no longer the bada$$es we were back in the day and in terms of our state laws). Know your state statutes' definitions of "reasonable" and "necessary" but the most important thing as we age is to maintain our situational awareness.

Here we go again, though, overthinking concepts that ultimately, if the worst happens, we won't have much control with after the fact.

We are not going to know "in advance of the first blow"-- once that first blow strikes us, we will probably have a better picture (if we are still conscious).

 

[CDW4ME]

A recent example of one guy punching another resulting in death.
https://www.foxnews.com/us/florida-golfer-arrested-punching-87-year-old-man-death-car-dispute-police
However, victim is 87 and attacker is 76 - might be hard to argue disparity of force.

 

[Kleanbore]

However, victim is 87 and attacker is 76 - might be hard to argue disparity of force.

Maybe, maybe not, but it would not be relevant.

 

[fastbolt]

A recent example of one guy punching another resulting in death.
https://www.foxnews.com/us/florida-golfer-arrested-punching-87-year-old-man-death-car-dispute-police
However, victim is 87 and attacker is 76 - might be hard to argue disparity of force.

Not sure why or how the age difference would matter, given the totality of the circumstances in that situation. Not unless there was some law which stated that victim age 80 and over was a factor.