The principles that determine Disparity of force may be the most often misunderstood element of lethal force law. Here, with eight actual case examples, we explain how it works.
Understanding the Principles of Disparity of Force
Case One: Kyle Rittenhouse
During the Murder trial of Kyle Rittenhouse in Kenosha, Wisconsin, a moment of dialogue between the judge and the prosecutor was recorded outside the hearing of the jury. In an exasperated tone of voice, prosecutor Thomas Binger blurted that it couldn’t be self-defense to shoot an unarmed man. The jury, you may remember, acquitted young Rittenhouse of all charges.
Perhaps I shouldn’t pick on Binger. Over decades dealing with attorneys, I’ve met many who completed three years of law school and passed the bar exam without being aware that the concept of “disparity of force” even existed.
So, let’s define our terms and put things in context.
Defining Terms
Deadly force (or lethal force, the terms are interchangeable) is that degree of force which a reasonable and prudent person would assume was likely to kill or cause great bodily harm. It is justified only in a situation of immediate danger of death or great bodily harm to oneself or some other innocent person one has a right to protect.
Three criteria must be simultaneously present to create that situation. They are most commonly known as Ability, Opportunity, and Jeopardy, or AOJ for short.
Ability means the opponent has the power to kill or cause severe injury.
Opportunity means the opponent can immediately apply that power, in terms of distance and obstacles.
Opportunity is the element of manifest intent. In other words, the opponent is manifesting by his words and/or actions an intent to kill or severely injure the innocent party in question.
Our topic for the moment, Disparity of Force, applies to the Ability factor. Ability is most obviously present when the opponent is armed with a deadly weapon: gun, knife, club, whatever.
Disparity of force means that the opponent is ostensibly unarmed, but the totality of the circumstances is such that if his assault continues, his physical advantage over you is so great that you, the innocent party, are likely to be killed or very badly injured.
Disparity of force can take many forms. Let’s examine those.
Disparity of Force Elements
Case Two: Force of Numbers
One very common element of disparity of force is the force of numbers.A two-to-one advantage is difficult to surmount, three-to-one all the more so, etc.
In case two, I interviewed a state trooper who was arresting two brothers when they violently attacked him, took him down, and continued the assault. In desperation, he drew his duty handgun and fired twice, killing both.
A wise prosecutor briefed the Grand Jury on disparity of force, and the Grand Jury returned a verdict of No True Bill. This effectively determined that the trooper had committed no crime.
That trooper went on to become a hero in a later incident where he shot and killed a multiple murderer. The trooper did so as he lay paralyzed on the floor from one of the gunman’s rifle bullets.
Case Three: Much Stronger and Larger Opponent
Another element is a much stronger and larger opponent. Thirteen years ago, I was an expert witness for the defense in case three.In this case, the petite spouse was beaten and kicked by her vastly larger and stronger estranged husband.
When it looked as if she was about to be stomped to death, she drew the concealed Colt .38 Special her father had given her and killed the attacker with a single shot to the chest. A jury fully apprised of disparity of force found her Not Guilty of Manslaughter in record time.
Case Four: Male Attacking a Female
This leads us to another common element: male-on-female attacks. Now, this is situational: if the female is mixed martial arts champion Rhonda Rousey and the male is Woody Allen, disparity of force would favor the woman over the male. However, that sort of situation is extremely uncommon.
Law professor Elizabeth Bochnak studied countless cases of women killing men in self-defense. She found many wrongful convictions when disparity of force was not explained to the jury.
For case four, she quotes from the Washington State Supreme Court’s decision in State v. Wanrow:
“The impression created – that a 5’5” woman with a cast on her leg and using a crutch must, under the law, somehow repel an assault by a 6’2” intoxicated man without employing weapons in her defense, unless the jury finds her determination of the degree of danger to be objectively reasonable – constitutes a separate and distinct misstatement of the law and, in the context of this case, violates the respondent’s right to equal protection under the law.”
Case Five: A Well-Trained Attacker
An attacker known or obviously recognizable as having high skill in unarmed combat, when that is not true of the lawful defender, is another element of disparity of force.
In case five in Florida in early 2025, an MMA fighter violated a restraining order and broke into a home. He was attacking the family when a family member shot him to death. The police treated it from the beginning as clear-cut self-defense.
Case Six: Position of Disadvantage
Position of disadvantage is one of the least recognized elements of disparity of force. It means that even if you’re as strong as your unarmed attacker or even stronger, he has you in a position where you can’t fight back and are likely to be beaten to death if the assault continues.
Consider case six, the fatal shooting of Trayvon Martin by George Zimmerman. The evidence showed the jury beyond a reasonable doubt that Zimmerman was down on his back with Martin in an MMA mount and pounding his head into the concrete. At this time, Zimmerman drew his pistol and fired a single, fatal shot. He was, of course, acquitted of all charges at his Murder trial.
Cases Seven and Eight: An Adult Violently Attacking a Child
We’re not talking about a six-foot-three, seventeen-year-old who is legally a juvenile being the victim. Instead, we are basically talking about a helpless little kid.
Case seven went down in Texas a few years ago. A father discovered his little girl being raped by a grown man in an outbuilding on his ranch. He beat the attacker to death. The Grand Jury ruled that he had committed no crime in doing so.
In May of 2025, case eight evolved in Indianapolis when a woman walked into her hotel room and found a convicted child molester raping her 12-year-old daughter. She promptly drew her own handgun and shot him. At this writing, he is in critical condition with an arrest warrant on him. The shooting is being treated as justified.
The Scope of the Problem
TV and movies have created a myth that it’s never justifiable to shoot an unarmed man. This is patently untrue. The disparity of force principle has been understood in American jurisprudence since at least the 19th Century.
It is clearly recognized by the United States Department of Justice and the Federal Bureau of Investigation. The two organizations annually publish the methods of homicide in a given year.
What are called “personal weapons” – the pounding fist, the strangling hand, the stomping foot – kill more murder victims every year than all rifles (including the dreaded AR-15 and its mechanical cousins) or shotguns.
Some years, these “unarmed” murderers kill more victims than are slain with rifles and shotguns combined. In 2023, the latest year for which we have figures, 659 murder victims died at the hands of “unarmed” criminals. Only 511 were killed with rifles and only 166 with shotguns.
It is imperative to be able to recognize an “unarmed” deadly threat in time to stop it. It is equally important to be able to explain to those who judge you afterward why you acted as you did to stop that threat.
