Disparity of Force-Furtive Movement Shootings

Reprint with permission Massad Ayoob February 6. 2017
original article backwoodshome.com/blogs/MassadAyoob/2014/11/28/
Massad Ayoob


Friday, November 28th, 2014

Massad AyoobMuch of America, including CNN’s Attorney Sunny Hostin, can’t seem to grasp how Officer Darren Wilson could have been justified in shooting an ostensibly unarmed man.  If Ms. Hostin got through law school without learning the definition of “disparity of force,” well, she wouldn’t be the first to do so.

DISPARITY OF FORCE is the legal principle which recognizes that even without a per se weapon, a violent attacker may have such a physical advantage over the intended victim that if the assault is allowed to continue, the totality of the circumstances indicate that the victim is likely to be killed or crippled. This authorizes the victim to use an actual deadly weapon in self-defense. That situation would exist if the attacker was significantly larger and/or stronger than the victim.  It would exist if the attacker had complete freedom of movement and leverage, and the victim did not, a situation known as “position of advantage.” Another element that could create disparity of force would be that the victim was already handicapped or injured, even in the course of the instant assault, impairing the victim’s ability to fight back, escape, or evade or block continuing blowsALL OF THESE WERE PRESENT WHEN THE 292-POUND MICHAEL BROWN WAS SMASHING OFFICER WILSON IN THE HEAD WHILE WILSON HAD VERY LIMITED RANGE OF MOVEMENT INSIDE THE PATROL CAR.

(There are other elements of disparity of force as well, such as male attacking female, multiple assailants attacking lone victim, and more, but none of them seem to have been in play in this encounter.)

This initial attack warranted Wilson drawing his gun and ordering Brown to get back or be shot. Then, Brown went for Wilson’s gun – as proven by bloodstain evidence and Brown’s DNA on the gun – and something else kicked in.  BROWN WAS REACHING FOR A GUN, and Wilson testified that Brown had turned the muzzle into Wilson and was trying to pull the trigger when Wilson shot him the first time.  This is no longer an unarmed man, it’s a man attempting to kill a cop with his own gun.  Thus, shooting him at that point was justified.

Brown ran. Wilson followed police protocol and pursued.  He testified that when Brown stopped and turned toward him, one of Brown’s hands went to his waistband as if to draw a gun of his own. This is apparently confirmed by Brown’s bloody handprint on that area of his own clothing.  This is what is called a FURTIVE MOVEMENT, in this case a movement consistent with going for a gun and not reasonably consistent with anything else, and at law satisfies the requirement of a reasonable belief that the opponent is armed with a deadly weapon and attempting to draw and use it.  This in and of itself, in assaultive circumstances where the opponent is close enough to kill you with such a weapon, justifies deadly force.  Simultaneously, he lunged toward Wilson according to the majority of credible eyewitness testimony, consistent with attempting to disarm him again, and was close enough to do so very quickly.  It was at this point that Wilson fired his second series of shots – and between the furtive movement and the forward attack, WAS JUSTIFIED IN DOING SO TWICE OVER.

After a short pause, witnesses for the most part agreed, Brown lunged again: another disarming attempt, which again justified shooting.  Wilson fired his third and final string of shots, Brown fell, and it was over.  Note that each time Brown stopped attacking, Wilson immediately stopped shooting.

These are facts which the grand jury must have taken into consideration.  These facts explain why the narrative of “unarmed teen shot by armed jack-booted thug” totally fails the reality test.

Feel free to share with others who, like Attorney Hostin, “just don’t get it” … or, perhaps, don’t want to.