Disparity of Force - A question for OSA Legal Eagles

[Werewolf]

IANAL so my research may be flawed. I did an extensive search on the internet re: disparity of force as a recognized legal principle in Oklahoma and cannot find any references to it. As I stated in another thread, in 2003 Doug Friesen taught in a CCW class that DOF was not a recognized legal principle in OK.

All the references I found relating to disparity of force eventually end up back to Ayoob. The one OK reference that I did find was on a Stillwater Concealed Carry Org site which flat stated that disparity of force was justification in OK but didn't reference any statute or case law to back that claim up - instead only referencing the writings of Ayoob.

A question for our licensed attornies on OSA: Is disparity of force a legal principle recognized in OK? Is it indirectly recognized or directly? Is it statutorily recognized or does case law make DOF a justification for using lethal force?

In other words if a 25 year old unarmed NFL Defensive lineman attacks a 70 year old guy that's out of shape, overweight, old and slow would disparity of force justify the old guy shooting the young guy to stop the attack?

 

[yukonjack]

I think SOM rules more then DOF.

 

[ripnbst]

I think SOM rules more then DOF.

SOM??? State of mind? Size of man?

Disparity of force to me means you must already be under attack in order to use that as your defense. They must be using force in order for their to be any disparity.

Difference in size or physical condition is not justification for defense IMO. It does once the altercation has started as that is where the DOF will come from but that alone is not enough. IANAL.

Standing there threatening you with a knife and that they are bigger I think is less important than the fact that they are threatening you with a knife. "I shot him because he was bigger than me" is not what I would be saying. I would be saying "He was threatening me and had a knife"

 

[henschman]

In Oklahoma, as in most other states, it all comes down to whether you were reasonably in fear of death or grave bodily harm. Disparity of force is not mentioned by name anywhere in the Oklahoma Statutes, or any Oklahoma case law I am aware of, but it is certainly an argument you can make to a jury as to why you were reasonably afraid of death/GBH. You could bring in an expert witness like Ayoob to testify as to the dangers of disparity of force, and why it might cause a reasonable man to have that type of fear.

 

[twoguns?]

SOM??? State of mind? Size of man?

Disparity of force to me means you must already be under attack in order to use that as your defense. They must be using force in order for their to be any disparity.

Difference in size or physical condition is not justification for defense IMO. It does once the altercation has started as that is where the DOF will come from but that alone is not enough. IANAL.

Standing there threatening you with a knife and that they are bigger I think is less important than the fact that they are threatening you with a knife. "I shot him because he was bigger than me" is not what I would be saying. I would be saying "He was threatening me and had a knife"

Did you stay at a holiday inn.... ??
.You should have been saying...I was in fear for my life ,so i stopped the threat, now i must rest,

.if said lineman was attacking ..Me..see above

.OH i didnt stay at the inn ,or go to college

 

[vvvvvvv]

Disparity of force is not mentioned by name anywhere in the Oklahoma Statutes, or any Oklahoma case law I am aware of, but it is certainly an argument you can make to a jury as to why you were reasonably afraid of death/GBH.

In Perry v. State (1951 OK CR 115, 94 Okl.Cr. 347, 235 P.2d 963), Perry was convicted of manslaughter for shooting an unarmed man. Perry asserted that he was acting in self-defense because he believed that McFerran was carrying a gun when McFerran advanced toward Perry after cursing Perry and speaking to Perry in an aggressive tone. McFerran had previously made threats (up to and including death) against Perry. Perry also tried to initially defuse the situation. Jury instructions "gave great weight to the threats, both communicated and uncommunicated" by McFerran against Perry. The jury was believed to have opted for the minimum sentence of four years in light of the previous threats.

There is very little dispute as to the facts immediately surrounding the homicide. About 4:30 p.m. on June 21st Perry was standing at the north entrance of the apartment house where he resided, which was also the home of the mother-in-law of the deceased and the sister-in-law of the deceased who was the owner of the building. The wife of the deceased testified that she and McFerran went by each day to see her mother before they drove to their home in Nicoma Park and that they stopped at the apartment house as was customary with them and that they were accompanied by their two small grand-children. When the deceased drove up in front of the apartment house and stopped, Perry started walking from the north entrance of the apartment house over to the porch leading to the south entrance. He was seen by the deceased who said, "Hey Perry I want to speak to you". The defendant said that the deceased was very angry and acted in a threatening manner. The defendant related that he said, "McFerran I don't want to talk to you", and that the deceased then cursed defendant and said, "I am going to talk to you"; that he kept advancing towards him and defendant thought McFerran had a gun and so defendant shot him. Only one shot was fired and it entered the chest of the deceased, killing him almost instantly. The deceased was unarmed.

On a tangent... something I've learned through this latest bit of research - the nature of the weapon used for self defense directly affects whether or not you have a right to self defense under Oklahoma's Stand Your Ground law. Dawkins v. State (2011 OK CR 1, 252 P.3d 214).

I could see that being applied to having medication in your possession without a valid (including expired) prescription if the state really wanted to stretch...

 

[Belthos]

In Perry v. State (1951 OK CR 115, 94 Okl.Cr. 347, 235 P.2d 963), Perry was convicted of manslaughter for shooting an unarmed man. Perry asserted that he was acting in self-defense because he believed that McFerran was carrying a gun when McFerran advanced toward Perry after cursing Perry and speaking to Perry in an aggressive tone. McFerran had previously made threats (up to and including death) against Perry. Perry also tried to initially defuse the situation. Jury instructions "gave great weight to the threats, both communicated and uncommunicated" by McFerran against Perry. The jury was believed to have opted for the minimum sentence of four years in light of the previous threats.





On a tangent... something I've learned through this latest bit of research - the nature of the weapon used for self defense directly affects whether or not you have a right to self defense under Oklahoma's Stand Your Ground law. Dawkins v. State (2011 OK CR 1, 252 P.3d 214).

I could see that being applied to having medication in your possession without a valid (including expired) prescription if the state really wanted to stretch...

Would this apply to using a concealed firearm to defend yourself in a business that displayed a no firearms sticker?
I'm curious since I'm not sure you are trespassing unless they tell you to leave.

 

[Kaw77]

stunning I posed the same question a couple days ago 1 1 word response

 

[twoguns?]

stunning I posed the same question a couple days ago 1 1 word response

Yours was pretty cut and dried situation...this OP presented some scenarios/conflicts to deal with....or you made someone mad....

 

[vvvvvvv]

stunning I posed the same question a couple days ago 1 1 word response

Sometimes it's all about luck of when people get on.

I've been avoiding the 2A/Legal section since the Zimmerman thing.