72-year-old defender facing 45-year-old attacker with a known reputation for violence
A few weeks ago I wrote a post titled “When can you legally use a gun against an unarmed person?” That post discussed the self-defense law element of proportionality, with a particular emphasis on disparity of force, to explore (as the title suggests) when a gun could be used against an unlawful attacker even if that attacker was armed with no more than their bare hands.
Out of Oregon this past Monday comes a classic real-life example of exactly this scenario, in which one man armed with a .38 pistol shot another, completely unarmed man in the chest, killing him, as reported by local KTVZ News 21. Although the matter has not yet been adjudicated, no arrests have been made and all witnesses are cooperating with the police investigation. Further, the Sheriff leading the investigation has made public statements emphasizing the disparity of force between the shooter and the victim, strongly suggesting he considers the use of the gun to be justified.
The shooting victim was 45-year-old Mark Allen Province, a man long known to police for violent behavior, including past charges of domestic assault, just four months ago, and strangulation, in 2012. It was also common knowledge that his violent tendencies were strongly increased when he was intoxicated.
Monday night came to his parents’ home drunk, kicked in their bedroom door, and assaulted them. The mother hid in their bathroom and called 911 while the father continued to fight back against his son.
At some point the father managed to retrieve a .38 revolver and fire two shots, one of which struck his son in the chest. The son would be pronounced dead at the scene.
On the issue of disparity of force, the Sheriff noted: “I think Mark Province is 6-foot, 240 pounds, while the mom and dad are 72 years old and frail.”
In addition to the disparity of size and strength resulting from their near 30-year-age difference, there was also a likely disparity in fighting skill generally, as Mark Province was a man accustomed to and comfortable with using physical violence against others, and there is no indication that the defending father had any such reputation.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.DONATE
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