Pepper Spray + Gun = Problem?

[BillCA]

Wow...so pepper spray is the ONLY non-lethal option?

Not unless you want to be deliberately obtuse.
A number of folks carry a folding knife for close quarters fights, however that can still be charged as ADW depending on how it's used.

Considering most states frown upon civilians walking about with batons, saps, blackjacks and in some states, even tasers and stunguns, that doesn't leave a large number of non-lethal weapons available.

Could a DA or a civil jury question why the nonlethal option wasn't utilized. It seems illogical, but so does the warning not to use reloaded ammo.

They can always question why you didn't try "A" before "B" or why you didn't retreat instead of stand your ground. The real basis for filing charges is if the victim of the assault or attack had a reasonable belief he was going to receive great bodily harm or at risk of death.

 

[Bella]

Logic?

I recently completed a CCW class. Great instructor with a lot of war stories. He was telling us about a recent case here. Some guy shot and killed an attacker in a parking ot. He used a handgun in 10mm. The DA decided to prosecute, her reasoning was that the size of his handgun caliber indicated he was out looking to kill someone. If he had used a 9mm, she wouldn't have pursued the case. The jury sided with the shooter.

I could see how having pepper spray and using a gun could get you into trouble. Does it make sense? Is it logical? No more then using a big gun versus a little gun.

 

[Frank Ettin]

Could a DA or a civil jury question why the nonlethal option wasn't utilized. It seems illogical, but so does the warning not to use reloaded ammo.

They can always question why you didn't try "A" before "B" or why you didn't retreat instead of stand your ground. The real basis for filing charges is if the victim of the assault or attack had a reasonable belief he was going to receive great bodily harm or at risk of death.

And this goes back to the point I was making before. If you don't try the pepper spray first, and instead go directly to the gun, you will need to be able to articulate why you reasonably concluded that pepper spray under the circumstances would not have effectively stopped the threat.

 

[Glenn E. Meyer]

Bella, do you have a real reference for that story. It almost sounds like a version of the Fish case.

Sometimes, instructors 'refine' war stories for the class' amusement.

Or would you share the instructor, so I could check it out. PM me if you want.

As far as the issue, we know that DAs can bring up such issues and some jurors are affected.

You need to be able to justify your actions and have an attorney knowledgeable about such issues.

 

[maestro pistolero]

I could see how having pepper spray and using a gun could get you into trouble. Does it make sense? Is it logical? No more then using a big gun versus a little gun.

I'm just curious, Bella, how do you see that argument being constructed?

If you don't try the pepper spray first, and instead go directly to the gun, you will need to be able to articulate why you reasonably concluded that pepper spray under the circumstances would not have effectively stopped the threat.

Of course, you always need to be able to articulate why a reasonable person would do what you did. And that's just as true whether you have pepper spray or chicken wings in your pocket.

 

[Musketeer]

You will ALWAYS have to justify your decision, lethal or non-lethal force should the police become involved. In most jurisdictions you will have to articulate why you were unable to flee if you were outside the home without placing yourself at greater risk.

Remember, if you attack someone with a knife the DA will charge you with assault with a DEADLY WEAPON.

The DA could try to make up any reason to try to convict you. The best way to avoid being charged with an unwarranted homicide is to not be involved in a homicide. If my OC can stop a situation before it escalates to lethal force or give me a more defensible option in court than engaging in a steel cage match with a nut twice mu size where the jury will be told he was unarmed then great.

 

[Aguila Blanca]

Examples:
a) Some guy gets in your face, screaming and pushing you against your car, claiming you "took" his parking space (or some equally trival upset). He refuses to back off and keeps shoving you against the car, jabbing his finger into your chest, shouting how he's gonna kick your fanny into next Tuesday.
Lethal Force: NO - Not warranted.
Pepper Spray: YES - appropriate for misdemeanor assaults/battery.
Even without the physical contact, his threatening statements and close proximity are sufficient threats that a reasonable person would likely believe an assault was soon to occur.

I disagree.

I'm a senior citizen with a bad back and high blood pressure. He's in his 20s or 30s, outweighs me by 30 pounds, and appears to be in pretty "solid" condition. In a situation like that, I would most definitely fear for my life, or at least that I was about to get a severe beating. And if I have that fear, I am entitled to use lethal force to defend myself. And I would very much consider the use of lethal force "warranted." Legally, ethically, and morally.

 

[Elvishead]

Aguila Blanca

I disagree.

I'm a senior citizen with a back back and high blood pressure. He's in his 20s or 30s, outweighs me by 30 pounds, and appears to be in pretty "solid" condition. In a situation like that, I would most definitely fear for my life, or at least that I was about to get a severe beating. And if I have that fear, I am entitled to use lethal force to defend myself. And I would very much consider the use of lethal force "warranted." Legally, ethically, and morally.

I'm not sure were you live, but good luck telling that to the judge.

 

[Al Norris]

Elvis, look up disparity of force.

The situation that Aguila states, is a text book example.

 

[BillCA]

Agulia -- Thanks for pointing out the disparity of force issue. I should have added a footnote about it.

I'm not sure were you live, but good luck telling that to the judge.

Agulia is spot-on.

In legal circles, disparity of force plays a significant role in justifiable homicide and cases of self-defense. Any time the aggressor can bring to bear an amount of force likely to rapidly overwhelm and/or cause death or great bodily harm, the victim is entitled to use lethal-force.

Examples include...
- An elderly victim versus a much younger attacker
- A child vs. an adult
- A small statured person vs. a much taller person. (e.g. female vs. male)
- A disabled person vs. a one with no disabilities
- A person who is temporarily ill/disabled vs. a fit person

But it's not limited to those cases. For instance, let's take a 5'10", 185 lb male of 62 years. We can recognize that at 62 years, even if he is in "good shape for his age" his older bones are probably easier to break than those of a 22 year old. Plus a lifetime of various foods, diets, etc. puts him at higher risk of heart-attack or a stroke in a physical encounter. A single blow to the face is very likely to result in shattered facial bones. But if this 62 year-old's physical condition is average-to-poor, he may not be able to engage in any physical altercation beyond several seconds.

Reverse that -- a fit, able-bodied girl, 9-14 years old vs. a 32 year old adult male. The male has height, weight and size (reach, length-of-stride) advantages. The young girl is not sufficiently strong enough to land physical blows that will dissuade his attack on her.

In these cases, courts have held that the weaker victim has the right to resort to lethal-force for self-defense when there exists a reasonable fear of great bodily injury or death by virtue of the size and overwhelming power of the aggressor.

Agulia can be 6'9" tall, but if he's a senior citizen in frail health (i.e. a bad back that can be seriously injured and high blood pressure) then engaging in a physical confrontation at all might risk great bodily injury. This entitles him to use lethal force even against a smaller, but much more able opponent.

Disparity of force also applies to multiple attackers vs. a single defender. If Elvishead is a 29 year old physically-fit male standing 5'11" at 180 lbs, is confronted by 3 or more physically aggressive males of various sizes, lethal force may be a suitable option. Especially when all three are actively participating in harrassment, physical contact or the threat of a physical beating. Even if the "leader" (aggressor) makes the threat that his buddies are there to back him up, lethal force may be justifiable.