Lethal Force Vs Pepper Spray: Is There Ever A Justification?

[Graybeard]

https://gundigest.com/handguns/personal-defense/lethal-force-vs-pepper-spray-is-there-ever-a-justification

By Marty Hayes - July 28, 2021

Is lethal force versus pepper spray ever warranted? It depends on more than if you face someone wielding the less-than-lethal option.

On October 11, 2020, 30-year-old Matthew Dolloff, a Navy veteran who was ostensibly working as a private security guard for a Denver news channel, shot and killed 49-year-old Lee Keltner, who was discharging a riot control canister toward him when Dolloff fired one shot, striking Keltner in the head, killing him. Dolloff was arrested at the scene and later charged with murder.

So, when is it justifiable to use deadly force against someone threatening or attacking with pepper spray?



Pepper spray at the ready. Does this require a lethal response? It depends. Photo: Wikipedia

Pepper spray is seen as a non-lethal use of force option, as it has developed from police use of force tool in the early ’90s to the role it has now, both on police belts and in armed citizens’ pockets and cars. It’s a meaningful option for most everyone who is faced with a possible criminal attack, but the criminal attack doesn’t rise to the level of using deadly force.

Pepper spray, when applied correctly to the face, will cause the eyes to shut and become inflamed, affect the mucus membranes that it comes in contact with and, if inhaled, cause shortness of breath and coughing. For most everyone, it acts within a second or two of exposure and shuts the person down long enough to either be taken into custody (if a law enforcement situation) or for the armed citizen to escape the criminal attack.

Pepper Spray Nuances

But most armed police also consider that if they’re threatened with attack by pepper spray, it’d be an option for them to use deadly force to prevent the attack. Why? Because of the fact that the law enforcement officer has a gun and would likely be disarmed and possibly killed.

The vast majority of police officers will be exposed to the effects of pepper spray in the police academy, and for us old-timers, we took a hit of pepper spray during an in-service training day. I took my first hit of pepper spray in a pepper spray instructor course, taught by the late-great police trainer, Ed Nowicki. I’ve taken several additional exposures in subsequent instructor certification courses and have been contaminated numerous times while teaching pepper spray classes. I know what it does to me, as do most law enforcement officers.

Do you know what it does to you? If a person uses deadly force to stop someone from attacking with pepper spray, they had better know exactly how their body responds to the spray, and whether or not they could mount a successful defense of a gun grab attempt. They’ll have to articulate the circumstances surrounding the use of deadly force, whether or not that was a police officer or a private citizen.

All use of force when defending life needs to be commensurate with the amount of force being used in the attack. Just facing a person threatening to spray you doesn’t warrant shooting them, but instead, there must be articulated facts to go along with the pepper spray that’d lead a reasonable person to agree it was necessary to kill the attacker.

Was the pepper spray attacker threatening to disarm and kill the defender? Did the attacker even know the defender had a gun? Was he warned not to use pepper spray, as the defender would be forced to shoot and kill if he was sprayed with pepper spray? Was there a size disparity sufficient to render a physical defense against a gun grab unlikely to be successful, given the defender would be affected by the spray? Was there more than one attacker preparing to attack the defender?

Then, does the defender know enough about pepper spray to understand the delivery system being used against him? Was the defender being threatened with a puny stream type of spray, as commonly found on key rings after being touted as an effective self-defense spray? Or, was he being threatened with a riot control fogger delivery system that’s likely to contaminate everything and everybody within a 30-foot circle?

After all that, was there any tactical moves the defender could’ve made to avoid being sprayed, such as turning around and running away?

These questions and concerns should be addressed in a competent pepper spray training course. If you carry pepper spray as a self-defense tool, you should have the training. And if you carry a gun along with spray, or even if you carry a gun without carrying pepper spray, training to understand the effects of pepper spray against you would be a very nice thing to have if you need to justify shooting someone who was threatening to spray you, disarm you and kill you.

Editor's Note: This article originally appeared in the February 2021 issue of Gun Digest the Magazine.

[BUGEYE]

When I started carrying a gun I became the most polite person you can imagine.
On that note, if someone comes at me with pepper spray, I must assume that he means to kill me in some way or do bodily harm.
So, I would shoot him.

[mcbammer]

   Thats a good question .  I  never been sprayed .  But I would classify it as bodily harm , I guess it be left up to  the  12 people on the jury .

[Dee]

I HATE PEPPER SPRAY!!
IVE
I've told officers that if they used pepper spray during an arrest I would back off. I hate that stuff.
In my SWAT days we deployed both CN, and CS gases that made aerosols seem like eye drops. I hated training with that crap, and I hated working in a gas mask. But it had its purposes.
Somebody pulls pepper spray on me, I'll shoot him if I'm able. You can't see, and if you take deep breaths you'll think your suffocating.
They have you at their mercy in the spary is good quality.

On another note, Linda has COPD. Somebody threatens us with pepper spray, they'd better get busy, because as fast as I can put a hole in'em I'm gonna. Big hole. 

[O-mega]

I can pretty much tolerate most sprays, they suck, but I can continue mission right through it.  But, if someone sprays and closes in on me, while I am armed, I will engage as if they are  trying to kill me.  I am in not in the same shape that I was when I was younger, and the older I get, the more likely that I will not be taking the chance that I can maintain control of my weapon in a struggle.

[teamnelson]

"What it does to you" in your 20's, fit, during a controlled training event may not be indicative of "what it does to you" in an uncontrolled environment, at a later age, with potential contributing health issues. Last time I volunteered for the training was in my mid-40s, and in reflection, that was unnecessary and simply my pride wanting to show the kids the old guy could still hack it. I paid for it for days.

From that more recent experience, if I am already sprayed, I would have a hard time being certain of my target unless I was pressing the barrel against them John Wick style. My impulse might be to shoot before they discharged, still brandishing while articulating a threat, but I don't see that going over well in court ... especially if there are social factors. In Dan's case, if someone brought the nozzle to bear on Linda, no kidding take the shot before they discharge, as the COPD diagnosis will bear up in court.

The case the article is referencing has social factors ... that would derail the point of the thread.

[Dee]

Assault is assault in Texas. At any age things like pepper are a threat. We'll just have to settle it in court.

[teamnelson]

Assault is assault in Texas. At any age things like pepper are a threat. We'll just have to settle it in court.

In Texas, when does the assault start? Brandishing, articulating a threat? Or once they've discharged the spray?

Where I am presently stationed the fact a gun was used would trump all other factors; the only legal recourse is to run away, even in your own home, or allow yourself to be harmed or killed, and trust the courts to prosecute after you're dead. Add any social factors, and they'd build a monument to the person who sprayed you.

[Dee]

The way I understand it, and the way I've heard it explained, is if you  believe your in imminent danger. We are not required to retreat in Texas, we have "stand your ground ".

I personally  believe a defense for deadly  force against pepper spray, wouldn't be that hard to make. It is a physical attack by its obvious nature.

[teamnelson]

God Bless Texas!

Once upon a time, letting the courts sort it out seemed wise - not anymore.

[Dee]

I agree, but threatening with pepper spray should not be hard to prove intent. Medical issues such as COPD, and age could prove fatal for many.
If some jackass points a can of it at you, you have to wonder what's next after he incapacitated you.
I know I would.

[JustaShooter]

The way I understand it, and the way I've heard it explained, is if you  believe your in imminent danger. We are not required to retreat in Texas, we have "stand your ground ".

I personally  believe a defense for deadly  force against pepper spray, wouldn't be that hard to make. It is a physical attack by its obvious nature.

In Texas, as in most other states, you must not just believe you are in imminent danger of a physical attack, you must reasonably believe you are in imminent danger of death or severe bodily harm.  I suspect using deadly force against a person threatening to use pepper spray would be more difficult to prove a reasonable fear of imminent threat to your life or severe bodily harm in court than you seem to think.

[Dee]

The way I understand it, and the way I've heard it explained, is if you  believe your in imminent danger. We are not required to retreat in Texas, we have "stand your ground ".

I personally  believe a defense for deadly  force against pepper spray, wouldn't be that hard to make. It is a physical attack by its obvious nature.

In Texas, as in most other states, you must not just believe you are in imminent danger of a physical attack, you must reasonably believe you are in imminent danger of death or severe bodily harm.  I suspect using deadly force against a person threatening to use pepper spray would be more difficult to prove a reasonable fear of imminent threat to your life or severe bodily harm in court than you seem to think.

Are  you basing your opinion based on your knowledge of the Texas Penal Code regarding Texas' stance on the use of pepper spray?

[BUGEYE]

Pepper spray, in most cases, will completely disable a person and put you at the mercy of the bad guy.  especially us old decrepit codgers.
Shoot him, then shoot him again.   (double tap)

[Dee]

Well Bugeye, some folks think they know the law in other states, but thinking, and knowing are most times two different things.
In Texas, pepper spray of the law enforcement grade is illegal for private citizens to  own. One CAN buy , and legally possess over the counter small canisters of pepper spray, but to use it had better be justified.
To do so illegally is a Class A Misdemeanor punishable by up to $4,000.00, and 2 years in jail.
In Texas, to use pepper spray is considered "force", i.e. assault if used illegally. Intent is there, by the mere threat, use, or attempted use.
Section 46:01 (14) of the Texas Penal Code identifies small containers of pepper spray as "a chemical weapon".
Larger containers are a felony just to possess.

[Ranger99]

At one time I participated in roundy round
racing with several friends, and there were
lots of times when the only action
wasn't only on the track.
Many a fist stopped a jaw from
  attacking,  and quite a few wrenches
were used for other than the intended
purpose. On more than one occasion
I happened to be too close to the
festivities, and the local shuruffs
that were security calmed the
gamers by expending one of the
XXL canisters of whatever spray
in the general direction of the party.
The only thing I can possibly compare
it to is to stand perfectly still with
your arms at your side and let
somebody throw a gallon of boiling
water in your face

One of the country neighbor prison
guards got a face full of the industrial
grade stuff while wrestling with an
inmate during a big fight and they
pulled his mask off. He was extremely
ill for a long time

[JustaShooter]

The way I understand it, and the way I've heard it explained, is if you  believe your in imminent danger. We are not required to retreat in Texas, we have "stand your ground ".

I personally  believe a defense for deadly  force against pepper spray, wouldn't be that hard to make. It is a physical attack by its obvious nature.

In Texas, as in most other states, you must not just believe you are in imminent danger of a physical attack, you must reasonably believe you are in imminent danger of death or severe bodily harm.  I suspect using deadly force against a person threatening to use pepper spray would be more difficult to prove a reasonable fear of imminent threat to your life or severe bodily harm in court than you seem to think.

Are  you basing your opinion based on your knowledge of the Texas Penal Code regarding Texas' stance on the use of pepper spray?

Being a part-time resident of Texas I have made it a point to know as much about Teas laws as I can.  So, based on that research, it is my understanding that in Texas the use of pepper spray is considered "force" and constitutes an assault. However, it is also my understanding that in Texas you cannot legally meet just any threat or even use of force with deadly force. As I understand it, to use deadly force in response to a threat of force, you must be in reasonable fear for your life or severe bodily harm.

Unless I've misunderstood you, based on your previous comment you seem to believe the threat of use of pepper spray (presumably, the commercially available type) raises to a level that it is reasonable to believe that it is a danger to your life or severe bodily harm and can therefore be met with deadly force.  If that's the case, can you cite a source that substantiates that position?

[Dee]

The way I understand it, and the way I've heard it explained, is if you  believe your in imminent danger. We are not required to retreat in Texas, we have "stand your ground ".

I personally  believe a defense for deadly  force against pepper spray, wouldn't be that hard to make. It is a physical attack by its obvious nature.

In Texas, as in most other states, you must not just believe you are in imminent danger of a physical attack, you must reasonably believe you are in imminent danger of death or severe bodily harm.  I suspect using deadly force against a person threatening to use pepper spray would be more difficult to prove a reasonable fear of imminent threat to your life or severe bodily harm in court than you seem to think.

Are  you basing your opinion based on your knowledge of the Texas Penal Code regarding Texas' stance on the use of pepper spray?

Being a part-time resident of Texas I have made it a point to know as much about Teas laws as I can.  So, based on that research, it is my understanding that in Texas the use of pepper spray is considered "force" and constitutes an assault. However, it is also my understanding that in Texas you cannot legally meet just any threat or even use of force with deadly force. As I understand it, to use deadly force in response to a threat of force, you must be in reasonable fear for your life or severe bodily harm.

Unless I've misunderstood you, based on your previous comment you seem to believe the threat of use of pepper spray (presumably, the commercially available type) raises to a level that it is reasonable to believe that it is a danger to your life or severe bodily harm and can therefore be met with deadly force.  If that's the case, can you cite a source that substantiates that position?

Being a life long resident of Texas, and a now retired Texas police officer, I was required to be familiar with Texas law, can you cite me a source referencing the Texas Penal Code where pepper spray is not considered a "chemical weapon" and when used illegally is not considered assault with intent? And intent is not necessarily ended after the pepper spray is deployed.
So, could you also cite from the Texas Penal Code where an assault has to be endured to completion before the victim can determine whether he can use deadly force to protect himself?

[Lloyd Smale]

never experienced pepper spray but have been exposed to tear gas a few times in training and honestly i dont think you could shoot someone once it gets in your eyes and lungs. I know im only talkng in my area but ive never heard of pepper spray being used as an offensive weapon anywhere near here other then by law enforcement. As to if it would be legal to use deadly force if your sprayed. Id be much more apt to talk to a real lawyer then to take advice on lethal force off an internet forum. I think the judge would chuckle if you told him they said it was ok on the internet.

[BUGEYE]

Well Bugeye, some folks think they know the law in other states, but thinking, and knowing are most times two different things.
In Texas, pepper spray of the law enforcement grade is illegal for private citizens to  own. One CAN buy , and legally possess over the counter small canisters of pepper spray, but to use it had better be justified.
To do so illegally is a Class A Misdemeanor punishable by up to $4,000.00, and 2 years in jail.
In Texas, to use pepper spray is considered "force", i.e. assault if used illegally. Intent is there, by the mere threat, use, or attempted use.
Section 46:01 (14) of the Texas Penal Code identifies small containers of pepper spray as "a chemical weapon".
Larger containers are a felony just to possess.

I'll have to fall back on the old "I'd rather be judged by 12 than carried by 6" adage.
When you are so decrepit (like me) that a 10 year old little girl can whip you, you do what you have to, to preserve your hide.

[JustaShooter]

Oh, that's right, Dee is a cop, and like many cops I've known he talks out his backside. I would have told him "go ahead and do that and let me know how it turns out" but being a cop, he would likely get away with it unlike normal citizens since they are held to a different standard. 

My advice to anyone else reading this thread, don't *ever* take advice about the law from a cop. Ever. And, no matter what garbage he's spewing, you'd better understand what Texas law actually considers justification for use of deadly force *for a normal citizen* before you go shooting someone for threatening to pepper spray you. Dear God have mercy.

[Dee]

Oh, that's right, Dee is a cop, and like many cops I've known he talks out his backside. I would have told him "go ahead and do that and let me know how it turns out" but being a cop, he would likely get away with it unlike normal citizens since they are held to a different standard. 

My advice to anyone else reading this thread, don't *ever* take advice about the law from a cop. Ever. And, no matter what garbage he's spewing, you'd better understand what Texas law actually considers justification for use of deadly force *for a normal citizen* before you go shooting someone for threatening to pepper spray you. Dear God have mercy.

Very informative, and constructive. 

[Dee]

Folks, deadly force is an individual decision, made at the real time of an event by the intended victim.
I have said in past interviews, conversations with other officers, and civilians what I would have done in given situations, and many times over the years here on GBO.

"I never judge a man for a fight I wasn't in".

"Proving INTENT" is always the paramount issue in ANY TYPE OF FORCE, and many people don't comprehend exactly what that is.
A myriad or factors are taken into consideration, that can range from sexual orientation, physical stature of the aggressor vs the intended victim, to the age and health of the intended victim.

If I am standing at the fuel island putting gas in my truck, or sitting in traffic. I am not the antagonist. I am not the aggressor. If someone approaches me and threatens me "for whatever reason" with pepper spray, I would say this IS NOT NORMAL BEHAVIOR, and this person intends to incapacitate me with this pepper spray. What will he do to me or mine  after he has incapacitated me? I'm now blinded, and at his mercy after his unprovoked initial assault with the pepper spray. Thus "intent".

I would suggest one researches his, or her state laws regarding self defense. I provided the information in the Texas Penal Code for Texas' view of an unprovoked assault using pepper spray.
 

[BUGEYE]

Folks, deadly force is an individual decision, made at the real time of an event by the intended victim.
I have said in past interviews, conversations with other officers, and civilians what I would have done in given situations, and many times over the years here on GBO.

"I never judge a man for a fight I wasn't in".

"Proving INTENT" is always the paramount issue in ANY TYPE OF FORCE, and many people don't comprehend exactly what that is.
A myriad or factors are taken into consideration, that can range from sexual orientation, physical stature of the aggressor vs the intended victim, to the age and health of the intended victim.

If I am standing at the fuel island putting gas in my truck, or sitting in traffic. I am not the antagonist. I am not the aggressor. If someone approaches me and threatens me "for whatever reason" with pepper spray, I would say this IS NOT NORMAL BEHAVIOR, and this person intends to incapacitate me with this pepper spray. What will he do to me or mine  after he has incapacitated me? I'm now blinded, and at his mercy after his unprovoked initial assault with the pepper spray. Thus "intent".

I would suggest one researches his, or her state laws regarding self defense. I provided the information in the Texas Penal Code for Texas' view of an unprovoked assault using pepper spray.
 

Good post, with some good points.
When I'm out and about, I mind my own business.
So, if I'm minding my own business and a thug comes toward me aiming pepper spray, I will pull my gun and aim at him.
I would warn him and then if he's close enough to hit my eyes, I'll shoot.
I have fallen twice in the last couple of years and each time caused bodily harm.  Also when I'm down, I can't get up by myself.
My gun is all I have to make me equal to most other folks.

[Mule 11]

God made man. Samuel Colt made them equal

[BUGEYE]

God made man. Samuel Colt made them equal