• Ability to Cause Great Bodily Harm or Death

    In order to use deadly force against another, the attacker must truly have the ability to kill or cause great bodily harm. This “ability” may come in the form of having a dangerous or deadly weapon or a disparity of force exists between the victim and the attacker.

    First, what is a "dangerous weapon"? Well, according to Minnesota statute 609.02 subd. 6 it means this:
    "Dangerous weapon" means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm. As used in this subdivision, "flammable liquid" means any liquid having a flash point below 100 degrees Fahrenheit and having a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees Fahrenheit but does not include intoxicating liquor as defined in section 340A.101. As used in this subdivision, "combustible liquid" is a liquid having a flash point at or above 100 degrees Fahrenheit.
    The obvious “dangerous weapon” includes guns and knives. However, any every-day common household object can in fact become a “dangerous weapon” under statute depending on how the object is used. For example, is a camera tripod a “dangerous weapon”? Well no, of course not. Not if it is sitting on the shelf at Wal-Mart or if the tripod is being used to take photographs. But what if a stranger were to approach you and proceeded to crush in your skull with the tripod?. Under the law, the tripod becomes “clubbed” and therefore, based on how the tripod was used, is labeled as a “dangerous weapon”. Baseball bats, golf clubs, hammers, laptops, grandmas Waterford vase and your tire iron (to name a few) can all be turned into dangerous weapons based on their use at the time of an attack. Dangerous weapons are believed to give an attacker the “ability” to cause death or great bodily harm.

    When a “dangerous weapon” is not present, the attackers “ability” can come from what is referred to as a disparity of force. Essentially, the attackers own strength, size, force in numbers or the victims own condition can create a life threatening situation if attacked by an unarmed attacker or attackers.

    Elements that create a disparity of force include, but are not limited to:

    A great deal of common sense must be used when assessing a threat. For example, if a 5 year old boy runs at you with a kitchen knife, you may in fact suffer some cuts and scrapes but it will most likely be difficult convincing a jury that the 5 year old had the strength to wield a knife in a manner that truly represented a valid threat of death or great bodily harm.

    In a one-on-one altercation between two males, the attacker being unarmed, there is going to need to be a significant size and strength difference before the victim would be justified in reaching for a weapon. An example might be an 80 year old violently attacked by a 25 year old or possibly a 5’ 4” 125lb male attacked by a 6’ 7” 300lb male.

    There is a cultural predisposition that males are generally larger and stronger than females and therefore disparity of force will most often exist. It is important to note that a female can use deadly force to defend against rape.

    Generally speaking, when attacked by two or more assailants, disparity of force clearly exists. With two against one, it most likely will come down to a judgment call as to whether or not the two attackers represent enough of an overwhelming force to justify the use of deadly force for self-defense. It is important to note that should you disable one of two attackers or two of three attackers, your use of deadly force must generally stop because now disparity of force (force in numbers) no longer exists.

    If you are attacked by someone with superior fighting skills, disparity of force can exist. The challenge is you must know your attacker possesses these skills at the time of the attack. Fighting skills in the destructive arts typically include a black belt in a martial art, professionally trained boxer or specialized training in the military where the individual is taught to kill fighting hand-to-hand.

    In some cases if the victim has a medical condition or is taking certain types of medication such as blood thinners, disparity of force may exist even between two males evenly matched in size and strength. Conceivably, someone on blood thinners would be at risk of death even if only moderately / mildly attacked (high potential for hemorrhaging).

    Lastly, if you find yourself in an altercation fighting hand-to-hand where size and skill are all equally matched, should you (the victim) become disabled during the attack, disparity of force may now exist and justify the use of deadly force. An example would be to receive a kick to the knee, falling to the ground and be unable to get up. Being unable to roll with the attackers crushing kicks and punches, these crushing blows with the shod foot or fist could in fact be life threatening.

    The element of “ability” in the AOJ-P analysis is easily identified when a weapon such as a gun, knife or club exist. Ability becomes more difficult to identify in cases where disparity of force is claimed unless the disparity of force is clearly obvious (multiple attackers).