Guy pepper sprays you . . . what's his next course of action?

 

THIS !!

I would say 'YES', someone hitting you with pepper spray or a similar substance IS a threat of serious bodily harm and as OldVet say, what's going to follow?

 

Tough question, I do not know. For me to shoot or not shoot would depend on the assailant and the environment I am in.
If I feel my life is in danger or a family member I will not hesitate

 

@Jerome10 you don't mention what state you live in. THAT would be a BIG factor also. Good you understand that a question like this can't be specifically be answered here, but we probably don't live in your state, SO, any answer will have to be that much more generic. As @KILTED COWBOY mentioned, mitigating factors and "all that stuff". Me, I'd take it as ABH, IF someone just "up & sprayed me". Charges on that CAN very, depending.

 

Being sprayed in the eyes nose or mouth can cause serious injury or death. Whether lethal response can be justified will be determined in court. I don't think any lawyer can guarantee the outcome. Like OldVet said, spraying someone with anything could be a prelude to a more serious assault - just like throwing sand in someone's face could be a prelude to a more serious assault. Take the safe course and wear a gas mask at all times.

 

There's a whole lot of "what ifs" in a situation such as that. Is it a mob, an individual, location, too numerous to list. At any rate it is going to be iffy without a definitive threat to life.

 

If I were on a jury where a defendant had filled a BG full of lead who had pepper-sprayed him, and the defendant claiming he feared a full-out physical assault on his very life was coming next, I would be very inclined to believe him, me being a most reasonable person!

 

Recently, a police officer shor a perp who tried using a taser on another officer...and it was considered a justified shoot. I would think the same reasoning would apply in this scenario.

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I immediately considered that case too. But electronic disruption divices can only be carried with a concealed pistol license in MI. So that puts it on another level.

OP- I would say.. .probably no. Mostly. But sometimes, maybe.

 

If you get pepper sprayed ... and you’re armed... and footsteps are getting closer.... wouldn’t you assume they mean you harm? Now, if that laughing is coming from your idiot friend, that’s another story.

Ok, it’s a tough question. On its face, being sprayed doesn’t rise to merit a lethal response. But, there could be contributing factors - being cornered in an alley, alone and out numbered, for example.

 

I am 67, with respiratory issues. Pepper spray could be life threatening to me by itself. Poison.org says, "People with lung conditions, such as asthma (which I have) or COPD, can have more severe breathing effects when pepper spray is inhaled." A 1995 study by the National Institute of Justice looked at 63 people who died in custody in N. Carolina after exposure to pepper spray, found two of the deaths were directly related to the pepper spray and in both of those cases, the people who died had asthma. That is not a lot, but the asthma connection is there.

The next problem, as others have mentioned, is that if someone attacks you with pepper spray and you have done nothing to provoke that, there is a legitimate fear of what may happen next, once you are incapacitated. If someone tries another incapacitation method, like grabbing you and trying to tie you up, there is no question that even though that would not be life threatening in an of itself, it would justify lethal force. I think pepper spray would be no different.

 

Whether you use lethal force is an issue spedific to your state and you should have a pdf copy of your state laws. If you can't figure it out from that, go pay a criminal defense attorney to advise you.

The key to any answer is: What is the law in YOUR state, not ours.

 

Your specific suggestion relative to state law assumes that the OP is assaulted in his home state. What is more important is knowing statutory law and case law in the locale in which the assault occurs.

Your advice to consult an attorney is the only valid advice the OP should take from this thread.

 

I'm not sure that some of the most important information related to owning and carrying a gun can be gleaned from a careful reading of the laws of the state you happen to be in. Since he didn't say where he was, and made no mention of travelling, one can assume that the best place to start with such knowledge is the place he happens to be standing.

Attorneys are hardly the only people who understand the law. It isn't rocket science. It's just a way people who probably couldn't handle any other profession can make money.

 

Its all about context. I can certainly imagine a circumstance where I would feel that my life is in immediate danger from an attacker using OC spray. Especially if I perceive someone to be using OC in furtherance of a forcible felony. At the same time, I generally consider that level of danger resulting from the use of OC to be at the extreme far end of likely possibilities. I accept that a person armed with OC can be a deadly threat but just about anyone ( armed or not) can be. In my book, the threat of OC or even the use of OC is not an automatic or singular qualifier for life threatening jeopardy.

 

No. It is the first or second rung on the escalation ladder.

The way it was described to me by an attorney you should be icy cold in fear before considering firing on someone. Being assaulted in and of itself doesn’t meet the standard. There are many factors that come into play and the grand jury will have the final say on charges if a DA chooses to pursue charges. Conditions will vary by state of course.

My CCW instructor from years ago put it this way. Be a real man. A real man doesn’t go looking for a fight. A real man will back down and walk away whenever possible. A real man won’t financially ruin his family with legal expenses. A real man won’t put his family’s livelihood at risk. A real man won’t put his wife and family in position to have to visit in prison. A real man will swallow his pride an put his family first. Be a real man.

 

The way it was described to me by an attorney you should be icy cold in fear before considering firing on someone. Being assaulted in and of itself doesn’t meet the standard. There are many factors that come into play and the grand jury will have the final say on charges if a DA chooses to pursue charges. Conditions will vary by state of course.

In most instances, the DA will have the final say, not a grand jury.

A grand jury is a tool of the prosecutor. The grand jury only sees and hears evidence selected for their review by the prosecutor. The only lawyers in the grand jury chambers are the prosecutor and his/her associates. If the prosecutor wants an indictment, he/she will almost always get one. Often, however, the prosecutor takes a case to a grand jury to intentionally obtain a no-bill in order to publicly wash his/her hands of a controversial case while blaming it on the grand jury's learned decision not to indict.

Growing up in Chicago it was well known that a Cook County DA could indict a ham sandwich if he wished to do so.

 

New guy here. I think the best answer at least for your justification would be: Were you in fear for your life. Lot of what ifs but like the old saying goes better being tried by a jury of twelve then carried by a group of six.


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The fallacy in the reasonable man concept is it is the jury who is the "reasonable man," not the defendant. It matters little if the defendant believes he was in fear for his life, the jury must believe the defendant was in fear for his life.

 

It is a definite maybe.

 

Depends on the totality of circumstances.

There's not a black letter rule here.

 

Context should be considered as well. Examples: Did your neighbor spray you on your property? Were you sprayed at a protest at the state capitol after showing up to monitor/observe while carrying a sidearm?

 

Not a lawyer but my understanding is that the bottom line with prosecutors is that they won't pursue a case if they believe that you could reasonably convince a jury that you feared the spay enough to justify deadly force.

There are too many unknowns in this hypothetical to discuss an outcome. For example, open carry would change things as you could reasonably fear someone taking your lethal weapon by using their less lethal and them escalating to deadly force. Or you believe it's something other than pepper spray like acid.


Trevor

 

Btw, the statute applies to other persons, not just you, such as a loved one, a neighbor or a stranger,

 

It would depend on the circumstances. If only one attacker and I cannot avoid the assault I might close with the attacker and disable him from fighting. If multiple assailants (or probable assailants) I will probably put my efforts into escape. If pursued by a group and I can't escape then I would probably escalate the force.

Keep in mind all of this could escalate very rapidly.

 

With the political and justice climate these day's if you are white and the sprayer is a person of color just say thank you, cry a little and go about your business. If you in anyway step it up to a lethal response scenario your history. JMO

 

From my LE training and legal update training from one of the most experienced prosecutors anywhere the answer is.......................it all depends. On its face you would think not but if you've ever been sprayed then know how bad it can incapacitate you, We all got sprayed and we eventually added officer safety drills in this training. Recruits were sprayed and had to use a padded baton to fend off attackers. Some were okay and some were pretty bad. But in the end even the biggest strongest recruits were limited in what they could do, Watching this and participating in the training I most certainly would not hesitate to use deadly force in the event someone pulls out OC spray to use on me. It is not called liquid hell without reason. And this prosecutor made it very clear. If you feel your life is in danger then by all means take any measures necessary to defend yourself.

 

Coincidentally, Buckeye Firearms Association just posted an article about defending oneself from a pepper spray attack.

Pepper Sprayed for not Wearing a Mask | Buckeye Firearms Association

People are losing their s#$t. It’s almost like the world has been turned completely upside down in a very short period of time. In my police job, the calls about erratic behavior, mental illness, and alcohol/drug abuse have increased significantly in the last couple months. There are a lot of...

www.buckeyefirearms.org

These altercations are becoming more and more frequent. Do you have a plan in the event that an irrational person threatens you with pepper spray? You probably should.

Some of you might say “I’d just shoot him.” Not so fast. In general, using deadly force requires that a reasonable person be in fear of serious injury or death. It’s going to be tough to show that pepper spray was a lethal weapon used against you when almost every police department in the country places the use of pepper spray at the LOWEST level on the use of force continuum.

 

I'm allergic to peanuts. Throw some peanuts at me at your own demise. Don't care about the defense argument.
Pepper spray? One should not even hesitate to end the confrontation.

Like avoiding the peanut butter section in the supermarket, I don't put myself into situations that are a high probability of walking into pepper spray. Although, sometimes it just finds you.

Don't let the type of weapon used to decide on whether you defend yourself or your family.

Gun, pepper spray, lighter fluid, bricks, pitbulls, fists, flying ninja midgets, peanuts... story line ends poorly for the aggressive assaulting trespassing perp.

 

The problem with a threat of being pepper sprayed is that, as with any threat, you have to weigh the other two criteria. Have they also been met? Do you hold a reasonable fear, based upon objective facts, that what follows being pepper sprayed is going to result in serious bodily harm or worse? If these criteria are present and clearly obvious, then you have a decision to take. Do you use your weapon or take your chances?

The same thing can be said of someone who is threatening to throw some liquid on you. Is it simply water or perhaps some sort of acid? Is the water scalding hot or of ambient temperature? These sorts of threats really need to be weighed against the AOJ criteria, just like any other threat but with the added weight of what that liquid might really be and how debilitated and helpless you may be when hit with things like this.

 

I sent query on this to my SD legal protection plan. I framed my query for my situation, an older person with respiratory issues. It does seem that would make a difference. A younger, more healthy person might not have as much of a case for disparity of force. That seems to be the key to all this. The reply was as follows:

"(We) would look at the disparity of force. Courts will also look at disparity of force. I do believe that that would be considered as an imminent threat of great bodily harm. I agree that the pepper spray could be a grave threat, due to your respiratory issues. I agree that you don't know what they are going to do to you. If the pepper spray got into your throat, it could very well cause lethal results, according to how bad your respiratory issues are. You could also look at any respiratory medications or treatments that could back this up."

I do have ample documentation for treatments and medications for respiratory issues, so it is a clear case for me.