Ability means that the attacker possessed a weapon capable of causing death or
grievous bodily harm. The object in question could be a makeshift weapon, like a
beer bottle, a baseball bat, pool cue or even folding chair, if used to inflict a blow.
Generally speaking, charges brought against someone for defending themselves or
another innocent person rarely center on whether or not the attacker possessed the
ability to cause death or serious injury, with a couple of glaring exceptions.
The first exception is when the attacker you shoot does not have a weapon or an
object capable of being used to inflict serious bodily injury, but you thought he did.
For example, in my home state of Washington a few years ago, a police friend of
mine shot and killed an assailant who was armed with a couple of spoons. That’s
right: spoons. The prosecutor did not press charges against my friend because
under the circumstances of the shooting he reasonably believed the spoons were
a knife. The critical issue is the reasonable perception that the attacker possesses
a weapon.
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A related exception is found in the furtive movement shooting, in which an
individual is shot when he reaches for something that the defender honestly and
reasonably believes is a weapon. Under most circumstances, if the perception is
found to be a reasonable one, the defender’s response will be ruled justifiable.
The second exception, and the one that lands people in jail time and time again,
crops up when the defender uses deadly force against an unarmed attacker, or even
to fend off multiple unarmed attackers. This happens with surprising frequency,
and more often than not, the defender ends up paying a high price legally. The
issue involved is called “disparity of force,” and it is a critical one.
When a legitimate self-defense shooting ends up in court, many times the civil
litigation or criminal prosecution hinges on the question of disparity of force.
After all, if a prosecutor knows the attacker had a deadly weapon and was in fact
attacking, he is likely not going to prosecute the self-defense shooter. But what
happens when the defender is being stomped to death, choked to death, or otherwise
believes a deadly force attack is imminent or underway? And, what if that
defender shoots one or more of his assailants, but they claim that they were only
beating him up, not trying to severely injure or kill him?
Continued here