Criminal armed with a taser

[Come and take it.]

If a criminal armed with pepper spray or a taser is going to attack me, would I be authorized to use deadly force?

On the justification that once attacked my physical ability to defend myself against being killed would be greatly hindered

or

In a scenario in which my kids were with me and the fear that once disabled the criminal would be free to harm my children.

This is hypothetical of course and the reason I am asking this is not to argue the point but simply to know what to do in the event that something like this took place and under the knowledge that they WERE going to use the device and not just THREATENED to use the device.

If I am not authorized to use deadly force, than what options would I have?

 

[Spats McGee]

It depends on your state law. As you list your location as Kentucky, we'll start there:
Use of physical force for self-protection: http://www.lrc.ky.gov/KRS/503-00/050.PDF

503.050
Use of physical force in self-protection -- Admissibility of evidence of prior
acts of domestic violence and abuse.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to
protect himself against the use or imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.
(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
(4) A person does not have a duty to retreat prior to the use of deadly physical force

503.070: Protection of another. http://www.lrc.ky.gov/KRS/503-00/070.PDF

503.070 Protection of another.
(1) The use of physical force by a defendant upon another person is justifiable when:
(a) The defendant believes that such force is necessary to protect a third person against the use or imminent use of unlawful physical force by the other person; and
(b) Under the circumstances as the defendant believes them to be, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.
(2) The use of deadly physical force by a defendant upon another person
is justifiable when:
(a) The defendant believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping, sexual
intercourse compelled by force or threat, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055; and
(b) Under the circumstances as they actually exist, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.
(3) A person does not have a duty to retreat if the person is in a place where he or she has a right to be

Use of defensive force regarding dwelling, residence, or occupied vehicle
-- Exceptions. http://www.lrc.ky.gov/krs/503-00/055.PDF

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) of this section does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
(b) The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used;
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a peace officer, as defined in KRS 446.010, who enters or attempts to enter a dwelling,
residence, or vehicle in the perform ance of his or her official duties, and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving
the use of force.
(4) A person who unlawfully and by force enters or attempts to enter a
person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

 

[Brian Pfleuger]

Any weapon creates a disparity of force.

There are basically three elements of a lethal force scenario. Opportunity, Ability and Jeopardy.

Your would-be attacker must have all three if you are going to be justified in using deadly force against them.

Pepper spray or a taser goes to ability. They certainly give the attacker the ability to harm you and you have no idea nor cause to believe that the harm would end at the simple use of one of them and it's entirely possible that the taser in particular could be deadly in several ways, such as hitting your head when you fall or perhaps you have a heart condition.

Opportunity is essentially the question of whether or not the attacker is close enough to do what he wants to do. Being on the other side of a river might give him opportunity if he has a gun, not so much with pepper spray or a taser.

Jeopardy essentially means are you really in danger. Would a "Reasonable and prudent" person believe that they were about to be attacked by a person who meant to do them severe harm.

Finally, some jurisdictions, and indeed common sense, dictate that if there is some reasonable manner of escape for you and all other innocent parties, you must make use of that avenue.

So, complex question, there's more than "what if he has X".

 

[spacemanspiff]

If I am not authorized to use deadly force, than what options would I have?

If you are Batman, then you always have something on your utility belt to aid your in your defense. But none of us are Batman.
Some of us mentally and physically prepare multiple defense options. Some of us put if off because theres more important things we gotta get done. Some of us put all our faith and trust in the gun and believe that suriviving the hazardous situation is all that matters ('better to be tried by 12 than carried by 6').

Your question indicates that you are looking for an answer that will keep you within the confines of the law, justifiable use of force. Learning what the law says, and properly interpreting it are two different things. It is yet even different when you pull into the equation 'how does your local prosecutors interpret the law?'

I note that in the excerpts provided by Spats, Kentuckys laws are rather straight forward. Not necessarily so in the case of other states, such as mine. My states laws are peppered with phrases like 'affirmable defense'. Which means that even though you may feel you are in the right using deadly force in self defense, you could very well be arrested, charged with crimes, face a grand jury, even go to trial, but your defense (if offered by a quality attorney) could be made that you acted lawfully. Expect a prosecutor to try and prove you wrong though.

So, learn your states laws, talk to attorneys versed in the use of force.

 

[press1280]

Brandishing to deter an attack isn't (usually) considered lethal force.

 

[Glenn E. Meyer]

There are enough very negative outcomes with tasers that a good lawyer could make the case that you fear grievous bodily harm from the taser alone.

Note that if you are pepper sprayed and then tased, you could be set on fire.

From a legit source:

http://www.policeone.com/police-pro...Using-Alcohol-Based-Pepper-Spray-With-Tasers/

 

[Tom Servo]

I've also heard it argued that pepper spray and/or a taser could be used to incapacitate someone or remove their ability to defend themselves. Since I haven't done anything to merit being sprayed or tased, I would assume it as a prelude to greater violence.

Of course, it would be up to me to convince a jury of that.

 

[Koda94]

I've also heard it argued that pepper spray and/or a taser could be used to incapacitate someone or remove their ability to defend themselves. Since I haven't done anything to merit being sprayed or tased, I would assume it as a prelude to greater violence.

Of course, it would be up to me to convince a jury of that.

I don't think it would be that difficult. In Oregon using pepper spray,mace or taser to attack someone is considered using physical force (ORS 161.015(6)) and the result of which could be considered “Serious physical injury” (ORS 161.015(8)) if said device renders impairment of the function of any bodily organ (eyes, CNS)

Now I have not gone through all the statutes etc. but considering all that then my question is would tasers mace etc. be considered a large enough disparity of force to justify using deadly force in defense of even though those items are not technically designed to be lethal?

 

[Spats McGee]

I've also heard it argued that pepper spray and/or a taser could be used to incapacitate someone or remove their ability to defend themselves. Since I haven't done anything to merit being sprayed or tased, I would assume it as a prelude to greater violence.

Of course, it would be up to me to convince a jury of that.

Yes, it would. Depending on the circumstances, though, I can see that as a perfectly viable argument. If I walk out of my office late at night and find myself cornered by a guy with a taser, I'm not gonna assume he's with Welcome Wagon.

 

[Come and take it.]

Thanks for the advice. I tend to throw up what if scenarios to myself in case unusual things like this were to happen.

 

[Fishing_Cabin]

Yes there are some outcomes with both OC and TASER (one companies tradename) that did result in death.

Just speaking broadly, OC would have less of a chance of being mistaken as a deadly weapon due to shape. Its a can with a push button on top generally. Also, some TASERS (trade name again) can resemble a firearm, and thus a person could rightly not know if they are facing a lethal, or less then lethal threat until after the fact. Also keep in mind with TASERS (trade name once again) last for 5 sec for a law enforcement version, and 30 sec for a public version. There are more investigations/lawsuits due to the law enforcement version (deep pockets/more likely to be used) so take it for what its worth. The question at hand is whether use of OC or a TASER will meet the definition brought about in the laws quoted by Spats.

such force is necessary to
protect himself against the use or imminent use of unlawful physical force by the other person

Key question as being what is "unlawful physical force by another person"?

Side note, after having gone through OC and TASER classes, experiencing both, I would prefer OC (TASER cramped my back up for 2 weeks, OC is over after a couple of hours with water and soap). Yes it can incapacitate a person, or render that person at a less then ideal position to defend him/herself. Personnally speaking, I could only testify to my experience having gone through both. Without that experience, it could weaken a persons testimony, or perhaps strengthen it, due to "fear of the unknown"

 

[Spats McGee]

Yes, but FC, your quote is lacking a critical element:

The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

Your experience (having been both OC sprayed and tased) would no doubt strengthen the factual basis underpinning the belief. Is it necessary, strictly speaking? I'd have to go read Kentucky caselaw to answer that, but my gut says not.

As an aside, I think every LEO I've ever worked with has echoed this sentiment when the topic of OC v. Taser came up:

I would prefer OC

 

[teeroux]

the taser in particular could be deadly in several ways, such as hitting your head when you fall or perhaps you have a heart condition.

I was thinking more of while your flopping on the ground in pain. Stomp your brains out.

 

[ClydeFrog]

My opine...

In my opine, you(as a armed citizen or license holder) can use a firearm(deadly force) if a violent attacker uses a blunt object or EDW(electric discharge weapon) or if they start to beat/hit you.
Around 4 years ago, a uniformed armed female deputy was attacked & beaten by a larger unarmed subject who fled a Home Depot in a dispute. The thug pounded the deputy's head into the pavement then ran off.
She was in a ICU and almost died.
In a more recent event, 2 young women were attacked by a well dressed man with a baseball bat. The video is on Youtube.com .
I urge any use of force instructor or tactics trainer to review the clip & share it with their students or cadets. It shows how a sudden or violent assault can occur nearly anywhere.

 

[MLeake]

As others said, it's good to know your specific state laws.

In some states, the fact of the robbery itself offers a presumption of legitimate self-defense.

Even in those that don't, one may be able to introduce into evidence that one knows about the risks associated with tasers (cardiac rythm disruption, etc) that have resulted in deaths, or that one knows of risks involving reactions to pepper spray, or that one had reasonable fears of what could follow being disabled.

It would help if one could show training received, or materials studied on the matters under discussion.

Mas Ayoob goes over how to set up supporting evidence of such studies and knowledge in his MAG-40 class.

 

[MLeake]

ClydeFrog, baseball bats are always considered deadly weapons, AFAIK.

The theoretical less-than-lethal weapons the OP is asking about should, in theory, pose a bit more of a hurdle in establishing need for deadly force. A baseball bat at close range, being wielded with intent should be a gimme if one has a competent attorney.

 

[csmsss]

All I can say is that if someone points a taser at me, I would consider it no differently than if he or she pointed a firearm at me and react accordingly.

 

[ClydeFrog]

Post 16...

I agree 100% my point is for any armed citizen/license holder or armed professional, you need to be fully able to make use of force decisions quickly.

I've heard of a few documented events where license holders stood by and were unsure of what to do in spree shooting episodes.

Tactical Response's James Yeager(the tactics instructor who had the big scandal) has a interesting video about the topic, www.youtube.com . Yeager talks about live cowards & dead heroes. It's worth a look.

ClydeFrog

 

[csmsss]

I was thinking more of while your flopping on the ground in pain. Stomp your brains out.

Yep. I'd say any device or compound that can produce your incapacitation can and rightfully should be considered as a deadly weapon.

 

[Patriot86]

Illinois as an example has some good but somewhat longwinded laws on the matter

(720 ILCS 5/Art. 7 heading)
ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION


(720 ILCS 5/7-1) (from Ch. 38, par. 7-1)
Sec. 7-1. Use of force in defense of person.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony. (b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.

forcible felony is defined in the Criminal Code of 1961:
"treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnapping, kidnapping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement[,] and any other felony which involves the use or threat of physical force or violence against any individual."

So basically in Illinois, regardless of the weapon the bad guy has you need to show that you were stopping a forcible felony as defined above. Robbery is the easiest one but Without even looking at the motive of an attacker, It could be argued that either a Taser or any kind of pepper spray by themselves can cause great bodily harm. Then again some rogue prosecutor could also just as easily argue AGAINST that but in the end the jury probably sides with you.

We actually have some pretty "good" SD laws here in Illinois