I had not seen Branca's first LoSD Blof post on the Denver incident. posted on 12August, until this morning. He addressed some of the key issues.
First, on this one,
pepper spray is not deadly force.
Branca emphasizes that believing that that statement is always true represents a legal misconception. It is true
when the product is used in the manner intended--lawfully and defensively.
When pepper spray is used offensively or unlawfully, it is not at all uncommon for its use to be deemed to constitute the use of deadly force, both in the establishment of charges against the user, and in the justification of force employed defensively against the user.
One key reason for that is the one I have outlined above. There are others. The discussion is rather lengthy.
In sum, whether the OC use constituted the use of deadly force in this case depends on what happened when-- on who, if either, of the participants was innocent--and other things
On the question of innocence, Branca addreses this question:
Notice that the mace is already on Dolloff when the round is fired. Since mace travels much more slowly than a bullet, it had to have been sprayed prior to the shot by at least a few seconds.
Whether the victim started spraying before the shot was fired or afterward, is not determinative. Branca explains that the initial aggressor is not the person who fired the first shot, landed the first blow, etc. Aggression start with the
threat.