Yesterday, a protestor as part of a larger and contentious gathering sprayed a security guard in the face with a can of mace. The guard shot the assailant and killed him.
Is lethal force justified in such circumstances? I get that a jury would apply a Reasonable Man standard. I’m just curious if there are similar cases or law on the matter.
In a perfect vacuum, IF mace/pepper spray is generally known to be non-lethal force (which I believe it is).
Then responding to the application of non-lethal force with deadly force may be difficult to justify.
First welcome to the family.
I’m not a lawyer and every one on here will tell you. I don’t play one on tv either. There is a lot to this I’m sure we have not heard or seen yet and unfortunately most news is full of crap. It all depends of what and why the protester did it for and so forth. Yes it’s not lethal force to use spray that’s a fact. So just not sure why it came to the point of him being shot from all I have read and seen.
At what point in time was it decided there was mace in the can…not acid ??
Probably more important than if it was believed to be acid, or if the recipient had a deadly pepper allergy will be…
Was the person spraying the pepper a non-violent protestor seeking racial equality and unity through the peaceful demolition of the American system OR was he one of those violent right wing racist???
The DA will certainly need to know in order to make a decision on this case.
Welcome to the community @Robert555…
I haven’t seen/read the story yet, but I’m sure a lot of it will come down to what the security guard articulates about what was going on at the incident (in addition to what other witnesses report).
In general though pepper spray is applied as a distance tool (because the one utilizing it doesn’t want to be impacted by it as well)…so that being the case and assuming no follow-up attack/threat coming at a defender then I would say no it isn’t justified (and another good example of why you should train with and carry less than lethal options on you as well).
I don’t have any law cases at hand, but generally speaking pepper spray/mace/taser is not considered lethal force.
HOWEVER…
If pepper spray/mace/taser is part of a larger effort, specifically in offensive use rather than defensive use, then it can be considered lethal force.
If you use pepper spray/mace/taser to incapacitate someone who has a firearm, you have not only rendered them unable to defend themselves, but you now also have access to their firearm.
And if you take their firearm then:
There are a bajillion cases where people take a firearm from a police officer and then shoot them with their own firearm.
So taken under the totality of circumstances (which may or may NOT apply to this specific case), you have a very likely scenario of attempting to take someone’s firearm with the intent to use it immediately on that person (very likely) or at some later point.
Other examples would be if you are strong-arm robbed (no weapons) and you worry if they pat you down they will find your firearm and take it from you.
Equal force to equal threat. Mace and pepper spray don’t constitute “grave” bodily harm or imminent death.
As a law enforcement officer, I was required to get sprayed with pepper spray and be tased in order to be certified to carry both a taser and pepper spray. The reason for this is so you will know what effect these tools are likely to have on a suspect as well as what you should expect if they are used against you.
Based on my training and experience, I can clearly articulate that both pepper spray and a taser is likely to incapacitate me to some degree, preventing me from being able to adequately defend myself and significantly increasing the ability of an assailant to injure, kill or disarm me.
Are pepper or tasers lethal? The answer that is generally no, however they can, in very rare instances be lethal. Regardless of them being “less than lethal” force, in my opinion, they create a significant risk of serious physical injury or death. If someone attacks me with pepper, a taser or similar weapons, they face a significant risk of facing a deadly force response.
I understand what you are saying, and in Denver where the police even refused to protect Michelle Malkin’s pro-police gathering, the police are absent. The assailant could have done anything after disabling the guard- I see it as justified- but I’m not the judge. And the police were NOT there to protect anybody. I hope the guy gets a good attorney and beats this bogus arrest. This is another incident that could have been avoided if the Denver police were more active in the performance of their duties.
10/12: Well now that more info has come to light- I may be wrong about the shooter…
The assailant could have done anything after the victim was incapacitated.
On the other hand, a knife is a lesser force and can inflict bodily harm. Mace is a lesser force and bodily harm can be afflicted upon you with mace applied. Aggression has been used by the applying mace and with multiple people around others could have been involved with the idea of disarming said guard. With fear of attack and bodily harm and the possibility of loss of life the security officer responded to the actions of the assailant.
I played a lawyer in High school and was on the debate team.
Depends on whether, under a reasonable man standard, can he explain that he was in fear of Grave Bodily Harm or death.
I think his attorneys could be able to argue that. Especially as we have seen so graphically, this summer, when individuals have become incapacitated at these rallies they have been kicked, hit, or stomped to the ground. Hit with skateboards and bike locks. Then had the boots really put to them.
Edit.
The fact that it was a Trump supporter shot by a leftist security guard hired by the Denver Post, does not change my opinion.
It is a prime example of how badly things are going to get out of hand and very soon.
I’m not a lawyer, nor a LEO so this is just my opinion.
What constitutes deadly force seems to me to be very situational. Are bare fists deadly? They sure can be. Get hit just right, land just wrong and it could easily be lights out forever. But are you justified in pulling your sidearm if someone is threating to punch you? I would tend to thing that unless there are major extenuation circumstances you are probably not.
Add a weapon of any kind to the mix, and things change completely. What if your assailant has a knife? To me, that is an immediate deadly threat, but what about the size of the knife? I have a very nice little pocket knife, with a 1.2" blade. Is that a deadly threat? Used on me, not unless you get my throat, as I’m um, very well padded, let’s just say. Would I be justified in drawing my gun? I’m not sure. What about a 3 or 4 inch blade? Now you’re getting into a real serious threat, and I would think a gun would likely be warranted for defense.
How about a baseball bat? A hammer? OC spray? A chain? Then consider the other person. Are they actually planning to attack you or do they just have a weapon in their hand?
I just don’t see a “one size fits all” answer here. The ‘articulatable threat’ and ‘reasonable person’ part is critical, and situational awareness must work both ways. Not every person with a weapon is a threat, just as me carrying a firearm is not a threat simply because I’m carrying a gun. As armed citizens, the onus is really on us. Once the gun is drawn, once the trigger is pulled, it’s too late to change your mind. Yes, defend yourself, but eyes open, brain fully engaged is the way to go. Jumping at shadows or a mindset of “I’m carrying so I can be a hero” seems like a quick road to tragedy. I see a lot of that mindset on the internet; I’m glad I don’t see it in these forums.
I am 63, with arthritis in my hands and knees. What is apparently deadly force to me today is quite a bit different than what it would have been when I was 25.
For the sake of discussion: Am I at risk then to use peper spray as a non-lethal option, when it is possible that an accepted response to my use of non-lethal force could be the application of deadly force against myself in return?
Should I thow the pepper gel out and grab an extra magazine instead (stated rhetorically) ??.
Assuming you are NOT the initial aggressor (aka you didnt start it).
The fault is usually with the person who escalated the situation.
If someone does something to you, lets say a punch, that does not meet your criteria for a lethal threat. And you then pepper spray that person. You have met non-lethal force with non-lethal force. You are fine.
If that person then escalates and pulls out a knife in this confrontation, that is their bad. You now have a new situation with which you are confronted by a lethal threat and are allowed to respond in kind.
100% agree. Pepper spray is intended to incapacitate and for those of us who have had the experience of what it feels like understand that.
If someone is initiating an attack on me and uses pepper spray as an element of that attack, why should I believe that the aggressor who initiated the attack will stop or limit their assault to just that? I am likely to consider using my firearm to defend against further attack.
The problem with discussions like this is too many people think that self defense is a simple “check the box” list of yes/no. Self defense situations are more nuanced and reliant on a combination of factors; the totality of the situation, evidence present, perception the police have, perception the prosecutors have, and ultimately what can be proved in court.
