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I was reading a few things online about CCW, and came across a mention of disparity of force, (Hereafter "DoF") and how those rules vary from state to state. I vaguely remember hearing that in my Utah CWP class, but wanted to find out how important it is to Texas law.

I know section 9 of the penal code forwards and backwards, and has no direct discussion of it, it it based in case law?

Here are my questions:

1. If DoF is important to Texas law, is it necessary for every criminal offense for which deadly force is justified (robbery, aggravated robbery, murder, kidnapping...), or just some? ie. if a lone woman about my size it trying to sexually assault me versus 2 women... or does it not matter at all.

2. I believe that the purpose of DoF is for assault offenses not specifically mentioned in the PC, but that present the chance of severe bodily injury or death, even without a traditional weapon... such as a lone man about my size (or smaller) makes a fist and comes towards me with no weapon, no verbal threats, and no provocation = no go to use deadly force... but a man bigger than me, or two men do the exact same thing, and it is go time. am I right...? Someone let me know the basics, or show me a site where I can dive into the details of Texas Law on this issue.

Thanks as always yall!

-AJ

As far as I know, there are no hard and fast 'rules' or even case law on DoF.... Rather, it would come down to the jury to decide if it wasn't cut and dry.

For example, Obvious DoF:

3 Men vs 1 Man
2 Men vs 1 Woman
Evander Holyfield vs Me
Brock Lesnar vs Me
Georges St-Pierre vs Me

Not so cut and dry:

2 Men vs 1 Man
1 Man Vs 1 Woman (Although, I have been told, that the de-facto rule is this IS considered DoF)
2 or 3 Women vs 1 Man


And to answer your #1 question, No, there are certain criminal acts that do not require ANY display of DoF at all to justify lethal force.
Most of these are 'during the nighttime', and the few that are during daylight hours generally apply to Burgalry of a home, etc.

Deadly Force to Protect Property

A person is justified in using deadly force against another to protect his property to the degree he reasonably believes the force is immediately necessary to prevent the other's imminent commission of arson, burglary, robbery, theft during the nighttime or criminal mischief during the nighttime, and he reasonably believes that the property cannot be protected by any other means."

"A person is justified in using deadly force against another to pervent the other who is fleeing after committing burglary, robbery, or theft during the nighttime, from escaping with the property and he reasonable believes that the property cannot be recovered by any other means; or, the use of force other than deadly force to protect or recover the property would expose him or another to a substantial risk of death or serious bodily injury. (Nighttime is defined as the period 30 minutes after sunset until 30 minutes before sunrise.)"

So in this, "the other's imminent commission of arson, burglary, robbery" Can be during the Daytime.. only Theft or Criminal Mischief have the nighttime requirement. In addidion, you can use deadly force to stop a fleeing person TO RECOVER PROPERTY, when you believe that simply trying to use force can cause you "a substantial risk of death or serious bodily injury."

Protection of the Property of Others

"A person is justified in using force or deadly force against another to protect the property of a third person if he reasonably believes he would be justified to use similar force to protect his own property, and he reasonably believes that there existed an attempt or actual commission of the crime of theft or criminal mischief."

"Also, a person is justified in using force or deadly force if he reasonably believes that the third person has requested his protection of property; or he has a legal duty to protect the property; or the third person whose property he is protecting is his spouse, parent or child."

Joe Horn Anyone?

Reasonable Belief

"It is not necessary that there should be actual danger, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would have were the danger real, as it reasonably appeared to him from his standpoint at the time."

"In fact, Sec 9.31(a) [of the Penal Code] expressly provides that a person is justified in using deadly force against another when and to the degree he reasonably believes the force is immediately necessary."

Basically, if a reasonable person, in your position, believed that there was apparent danger that would justify deadly force, even if that danger WAS NOT REAL, then you can use deadly force.
This is the 'fake gun' clause. Basically, if someone points a gun at you, and a reasonable person would not be able to tell it was fake, and you shoot them for it, you are justified.
Or someone has a 'suicide vest' of Road flares, and says theyre gonna blow it and kill everyone... same deal.

I think of it as a situational deal. If I have my family I cannot fight someone and make sure his/her buddies are not going to enter the situation so that I would have been allowed to use deadly force if I had known. I do not know unless we are out in the open where there is no place for concealment. It has to do with the situation but I think if there is any doubt most reasonable people would not try to convict someone who is defending themselves or other innocents. This seems to be especially true since Stand Your Ground was made law. I see no guaranteed protection from prosecution. I simply go on the idea that I will use what force I think is necessary in any given instance no matter what the law seems to allow because not to might get myself or another innocent killed.

It is better to be judged by 12 than carried by 6. Easy to say but may be very hard to live with.
IANAL and that is just my opinion.

"Disparity of force" is not found in Chapter 9 of the Texas penal code. It is a defense from prosecution for the use of deadly force, generally against an unarmed person. Disparity of force exists when the physical power of an attacker, (either by their size, numbers, or gender) could not be overcome by anything other than your use of deadly force.

Charles could explain this so much better than me, and perhaps he will here later. In the meantime, you could check out Massad Ayoob's explanation here: http://findarticles.com/p/articles/mi_m ... _12462185/" onclick="window.open(this.href);return false;

wow Linda... you're good!

That is the exact article that I was reading that started my questioning as to the specifics of Texas Law!

I got the answer that I wanted.. basically there does not have to be disparity of force for the specific crimes listed in section 9.

Thanks yall!

-AJ

Why don't two attackers (vs. one person they're attacking that is....) qualify as disparity of force?

Why must it be three?

Wouldn't disparity of force come into play if the attacker is a big guy vs a small guy or young, fit guy vs an elderly guy, a strong man vs. a frail woman, and so on?

Abraham, in my book it would for sure.

AJSully421 wrote:I was reading a few things online about CCW, and came across a mention of disparity of force, (Hereafter "DoF") and how those rules vary from state to state. I vaguely remember hearing that in my Utah CWP class, but wanted to find out how important it is to Texas law.

I know section 9 of the penal code forwards and backwards, and has no direct discussion of it, it it based in case law?

Here are my questions:

1. If DoF is important to Texas law, is it necessary for every criminal offense for which deadly force is justified (robbery, aggravated robbery, murder, kidnapping...), or just some? ie. if a lone woman about my size it trying to sexually assault me versus 2 women... or does it not matter at all.

2. I believe that the purpose of DoF is for assault offenses not specifically mentioned in the PC, but that present the chance of severe bodily injury or death, even without a traditional weapon... such as a lone man about my size (or smaller) makes a fist and comes towards me with no weapon, no verbal threats, and no provocation = no go to use deadly force... but a man bigger than me, or two men do the exact same thing, and it is go time. am I right...? Someone let me know the basics, or show me a site where I can dive into the details of Texas Law on this issue.

Thanks as always yall!

-AJ

Here's what I use as a "cheat sheet" to the law:

Use deadly force only when there is no other reasonable way to protect an innocent person (you or someone else) from imminent death or serious physical injury.

I am not aware of any place in the US where following this guideline would not fall squarely within lawful use of force. It served me well during over 20 years of police work, and hasn't failed me in civilian life either.

Yes, I know that it does not cover all the various circumstances where you can lawfully use deadly force in different states (e.g., to recover property in Texas), but it is easy to remember, even under stress, covers all the circumstances where I would want to use deadly force if I had the time to sit down and think hard about it, and it's very unlikely to get me into trouble with either the law or my conscience.

Disparity of force is one of many elements that can be factors in determining whether someone "reasonably believed deadly force was immediately necessary." (This presumes the presumption adopted as part of the "Castle Doctrine" doesn't come into play.) It should also be one of the items on your mental checklist of threat indicators.

Chas.