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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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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.
 
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I understand nobody is a lawyer here. But I realized today that I have no idea if someone pulls pepper spray or bear spray on me, would this be a justifiable self-defense scenario? Deadly or grievous bodily harm and all that?

On the surface I would say no. If I know it is pepper spray and they point it at me, no. If they point it at me and spray me, I still kinda lean no I could not use deadly force in self-defense.

I know you can't "what if" yourself into scenarios you have to go by each moment... but I'll ask anyway.... you get pepper sprayed, you're disabled, you can't see, you've been assaulted by the person with the pepper spray. At this point you can no longer see if they have another weapon (gun / knife) or know if they intend further grievous bodily harm? Still no? Since you can't see any longer, you'd have to wait until being shot at or stabbed before it would be justified?

Are there any court decisions, or laws in various states that say pepper / bear spray is or is not deadly force or grievous bodily harm and whether self-defense if justified?

Seems like kinda a gray area I'd like to know more about. Also realized that I'm surprised that in my CC courses that this has never come up as a scenario discussed.

Depends on the totality of circumstances.

There's not a black letter rule here.
 

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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.
An interesting reversal of that was used in the grand jury in St. Louis County looking into Michael Brown's shooting by Ferguson officer Darren Wilson that led to the Ferguson riots. The prosecutor Robert McCulloch was a Democrat but perhaps one of the last of the breed of "conservative Democrats." His Dad had been a cop who was killed in the line of duty.

McCulloch made a deal out of giving the grand jury everything, every scrap of evidence, considered relevant or not, including testimony from Wilson, which was highly unusual. However, McCulloch made no recommendation to the jury one way or another, also unusual. So the grand jury was forced to look at all the mounds of conflicting witness statements and conflicting forensic evidence, etc.

When the grand jury decided they did not have probable cause to indict, McCulloch was criticized for inundating the jury with too much information. But a retired federal judge wrote an article that said it was a very fair grand jury proceeding and the critics were just trying to manufacture a weakness. Also the feds had investigated for civil rights violation and came up empty.

When a new, more liberal, black prosecutor took over after the next election, lefties were pestering him to do a new grand jury. Even he didn't want to touch it. It had been a brilliant strategy on McCulloch's part. A criminal justice prof at Harvard wrote, "It was the most unusual marshaling of a grand jury's resources I've seen in my 25 years as a lawyer and scholar."
 

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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
 

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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.
^^^

Or whatever jurisdiction you are in at the time. Remember, the local DA, as has been pointed out above will make that determination pro forma before going to a grand jury or an indictment. If that happens it’s with a judge and jury.

According to Michigan's Self-Defense Act, section 780.972, the use of deadly force is justified when a person believes there is an imminent threat of death, great bodily harm, or sexual assault.

This is a widely used concept. Sexual assault was added more recently as women were occasionally not meeting the other two standards. I know, right?

In any case, my take: anything that puts me in potential danger of any of the above, even if it isn’t deadly force per se, will be met with an escalation. Got a good defense attorney on speed dial. Odds are I’ll not have to make that call.

But if I ever do, .45 acp gold dots will be involved.
 

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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.
What an idiot, this guy is giving lessons to grown adults on how to be a "Real" man?? And I thought the questions and comments from the students in my LTC class were bad. Why carry then?? If you ever have to use your firearm even in a Justified shooting your running the risk of financially running your family and putting your family's livelihood at risk.
 

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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.
 

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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
 

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I understand nobody is a lawyer here. But I realized today that I have no idea if someone pulls pepper spray or bear spray on me, would this be a justifiable self-defense scenario? Deadly or grievous bodily harm and all that?

On the surface I would say no. If I know it is pepper spray and they point it at me, no. If they point it at me and spray me, I still kinda lean no I could not use deadly force in self-defense.

I know you can't "what if" yourself into scenarios you have to go by each moment... but I'll ask anyway.... you get pepper sprayed, you're disabled, you can't see, you've been assaulted by the person with the pepper spray. At this point you can no longer see if they have another weapon (gun / knife) or know if they intend further grievous bodily harm? Still no? Since you can't see any longer, you'd have to wait until being shot at or stabbed before it would be justified?

Are there any court decisions, or laws in various states that say pepper / bear spray is or is not deadly force or grievous bodily harm and whether self-defense if justified?

Seems like kinda a gray area I'd like to know more about. Also realized that I'm surprised that in my CC courses that this has never come up as a scenario discussed.
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.
 

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


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.
 

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What an idiot, this guy is giving lessons to grown adults on how to be a "Real" man?? And I thought the questions and comments from the students in my LTC class were bad. Why carry then?? If you ever have to use your firearm even in a Justified shooting your running the risk of financially running your family and putting your family's livelihood at risk.
You might reread the post and I can provide additional context to help with the meaning. He was stating what isn’t obvious for some. Don’t escalate, don’t look for fights, walk away and avoid if possible. He never said don’t defend your life. His advice is sound.
 
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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?
 

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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.
 

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What an idiot, this guy is giving lessons to grown adults on how to be a "Real" man?? And I thought the questions and comments from the students in my LTC class were bad. Why carry then?? If you ever have to use your firearm even in a Justified shooting your running the risk of financially running your family and putting your family's livelihood at risk.
Your comment is spot on. If ALL you're worried about is the portion of your post I have underlined, then you have no business ever carrying a gun. Go get some schooling and become a social worker.
 
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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.
 
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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?
 

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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.
 
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