legality of lethal response to mace

[Kleanbore]

It looks to me like this is what started the incident.

Could be, but the shooter's actions before that may have been the real start.

Unfortunately, the victim cannot express his opinion.

 

[SharpDog]

Could be, but the shooter's actions before that may have been the real start.

Unfortunately, the victim cannot express his opinion.

Three quarters of a second from slap to shot. Subtract from that the shooters reaction and draw time.

 

[sisyphus]

if you can't justify that the situation had created a genuine fear for your life or the life of a third party, the gun stays holstered

 

[roscoe]

Three quarters of a second from slap to shot. Subtract from that the shooters reaction and draw time.

Where do you get that number? There was enough time for him to back away to around 8-10 feet and spray the pepper mace, and for that mace to cross the distance between them.

 

[Kleanbore]

if you can't justify that the situation had created a genuine fear for your life or the life of a third party, the gun stays holstered

Look: if you have a gun and someone is trying to disable you, you can certainly explain the immediate need for deadly force.

Whether such use would be lawful is another matter.

 

[SharpDog]

Where do you get that number? There was enough time for him to back away to around 8-10 feet and spray the pepper mace, and for that mace to cross the distance between them.

From the frame counter and the speed a Nikon D5 takes continuous shots. Please go back and read my post above. There is a link to a Nikon D5 performance test.

 

[sisyphus]

Look: if you have a gun and someone is trying to disable you, you can certainly explain the immediate need for deadly force.

pepper spray is not deadly force. The prosecutor spends 15 minutes drilling the use of force continuum into the jury and another 15 minutes giving the condensed version of that state's concealed carry laws. Good luck with your explaining.

 

[Kleanbore]

Three quarters of a second from slap to shot. Subtract from that the shooters reaction and draw time

The quesion was about what may have happened before the apparent slap.

Was the shooter advancing upon the vicim? Was the "slap" a defensive move?

 

[Kleanbore]

pepper spray is not deadly force.

Under most circumstances it is not, because it does not meet the definition by itself.

But under some circumstances it is legally so treated. See Post # 9.

That's not conjecture. It is legal precedent.

 

[SharpDog]

The quesion was about what may have happened before the apparent slap.

Was the shooter advancing upon the vicim? Was the "slap" a defensive move?

We would need the audio. My perception is that the man with the spray used the slap as a distraction like a boxer would use a jab to deliver the spray as the main move. The shooter reacted to the slap and drew and fired as he was sprayed. The timeline does not allow him to be reacting to the spray.

I'm not saying anything about the legalities of any of that. Just what I can see from the pictures. If we had some audio and some more background then we might come to a conclusion (as others have said above).

 

[wiscoaster]

Did you comprehend Post #9?

I comprehend it; I don't agree with it. "Unlawful attack by pepper spray"? Any attack that produces physical injury is unlawful. Not all unlawful attacks justify lethal force.

The point, legally speaking, has to do with the ability of the person who has sprayed someone who has gun to then take it and use it--as discussed in Post # 9.
Do you understand that?

Please support your thesis of "ability to take the gun" as a legally justifiable basis for lethal force. Simple ability to do something is not enough. There has to be demonstration of intent, means and imminency.

 

[roscoe]

From the frame counter and the speed a Nikon D5 takes continuous shots. Please go back and read my post above. There is a link to a Nikon D5 performance test.

Do you know how many frames were fired, at what rate, and if the photographer kept her finger on the shutter release the whole time? I question your calculations.

 

[SharpDog]

Do you know how many frames were fired, at what rate, and if the photographer kept her finger on the shutter release the whole time? I question your calculations.

The initial frame of the slap was Frame #: 2633, Capture time: 3:36:52 PM, The frame of the shot was , Frame #: 2641, Capture time: 3:36:53 PM. The camera captures at least 12.1. frames / sec. so if we divide 8 frames by 12.1 frames / sec we end up with just under 2/3 of a sec.

All of the links you need for the data are in the posts linked above. The rest is just arithmetic.


From what I can tell the camera has a 'burst mode' where it takes 100 photos as fast as it can (her in a little over 8 secs). which results in 12,1 fps or 14.1 fps depending on recording mode. It might get slower after halfway through. see 8:00 into this video but that's after 100 frames recorded:







As far as whether that camera button could be modulated to affect the capture speed, you would need a professional photographer with Nikon D5 experience to tell you that,. However, I don't see a motive there for the photographer to do that at that moment since he didn't know how it would effect any evidence.

 

[roscoe]

The initial frame of the slap was Frame #: 2633, Capture time: 3:36:52 PM, The frame of the shot was , Frame #: 2641, Capture time: 3:36:53 PM. The camera captures at least 12.1. frames / sec. so if we divide 8 frames by 12.1 frames / sec we end up with just under 2/3 of a sec.

All of the links you need for the data are in the posts linked above. The rest is just arithmetic.

As far as whether that camera button could be modulated to affect the capture speed, you would need a professional photographer with Nikin D5 experience to tell you that,. However, I don't see a motive there for the photographer to do that at that moment since he didn't know how it would effect any evidence.

Right. You are assuming a continuous finger on the shutter release. If not, it could be ~1.9 seconds. I am not sure how Mr. Mace steps back, sprays, and has the spray arrive at the shooter in .75 seconds.

But even with finger pressed, that number 12 is likely not accurate:
https://www.imaging-resource.com/PRODS/nikon-d5/nikon-d5A6.HTM

I will spare you their details, but the rate ranges down to under 6 frames/second. A lot can happen in just under 2 seconds. Plenty of time for the slap, a step back to mace, and the shot.

 

[Outlaw75]

From the frame counter and the speed a Nikon D5 takes continuous shots. Please go back and read my post above. There is a link to a Nikon D5 performance test.

Or look at the Denver Post page with the entire image sequence. It lists all the image capture times. This occurred within the space of 2 seconds by their timeline.

 

[danez71]

So, if the armed person would have been privileged to use force to defend himself in a particular circumstance, he would have been privileged to use deadly force to defend against an unlawful attack by pepper spray.

I'd like more explanation of this.

Theres been a fair amount of discussion on this forum about excessive force in response and need of belief of imminent threat of death; not just "he could of might of maybe hypothetically".

That comment seems to go against quite a bit of history on THR.

I don't think I've ever seen here that of you're justified to use force that also means that you are also justified to use deadly force.


In fact, excessive force was a big part of the Zimmerman case; was deadly force justified. The defense painted that being hit by a boy with skittles wasn't enough for Zimmerman to use deadly force. The defense argued that it because Zimmerman believed his life was in imminent danger because it more than just being hit, his head was being pounded into concrete.

 

[roscoe]

I'd like more explanation of this.

Theres been a fair amount of discussion on this forum about excessive force in response and need of belief of imminent threat of death; not just "he could of might of maybe hypothetically".

That comment seems to go against quite a bit of history on THR.

I don't think I've ever seen here that of you're justified to use force that also means that you are also justified to use deadly force.


In fact, excessive force was a big part of the Zimmerman case; was deadly force justified. The defense painted that being hit by a boy with skittles wasn't enough for Zimmerman to use deadly force. The defense argued that it because Zimmerman believed his life was in imminent danger because it more than just being hit, his head was being pounded into concrete.

The critical aspect of the Zimmerman case was that he was argued to have precipitated the conflict by following and possibly confronting Martin. Much like in the present case, it matters what happened right before the actual shooting.

 

[Carl N. Brown]

^^^ The trial testimony of Trayvon Martin's "girlfriend" Rachel Jeantel and her two interviews on the Piers Morgan show established that Zimmerman did not follow Martin and did not confront Martin.
Martin had made it to the back of the Brandy Green house where he was staying, told Rachel he had not seen the man for over a minute, was not being followed, and was about to go in the house and give Chad Green his Skittles when Rachel convinced Martin he had to go back and confront "that homo" and "whoop his a**".
So Martin went back, keeping Rachel on his phone, to hear him whoop a** on a homo. Zimmerman was following the advice of the dispatcher to wait at the "T" in the sidewalks so he could see the responding officers arrive depending on which route they took and had not moved for over a minute. Martin confronted Zimmerman and died committing an assault motivated by homophobia, arguably a hate crime, except Zimmerman was not gay and therefore could not be the victim of a hate crime.
Rachel on the Piers Morgan show said "old school" might have gone in the house, shut the door, called his dad who was on a date with Brandy Green, or even called 911, but "new school" doesn't do that: "new school" whoops a**.
Martin went looking for Zimmerman.confronted him, and assaulted him, to impress a "girlfriend" who heard Martin ask why he was following him, and the man ask what was he doing in his neighborhood, then the phone went dead and she did not check on Martin for days, until she saw in the news he had died.


Jessica McBride, "Matthew Dolloff: Security Guard Identified as Denver Shooting Suspect", Heavy.com, 12 Oct 2020
https://heavy.com/news/matthew-robert-dolloff/
Dolloff's social media, increasingly angry since 2016, paints a picture of another angry young man eager to confront and whoop a**.

 

[Carl N. Brown]

The sequence of photos posted by Denver Post shows
_ Keltner apparently having words with a man (not Dolloff) wearing a BLM shirt, while another man (not Dolloff) tries to separate them.
_ Keltner had an American flag covid face mask and shirt with “BLM” and “f******…lives matter”
_ then Keltner and Dolloff confronting (the camera does not capture any words or threats between the two)
_ Keltner slapping Dolloff hard enough to knock his cap off and move his head 90 degrees
_ Keltner had backed away from Dollopp and drawn his bear spray before being shot

Dolloff's social media political posts are critical of Trump, Biden, pro-religious expression ("idiots ... the worst"), and All Lives Matter. His posts are supportive of Occupy Denver, BLM, and FTP (F*** The Police). His posts are increasingly bitter since 2016. Dolloff was so anti-military he had no sympathy for disabled vets. When Beto O'Rourke supported health care for US veterans, Dolloff was “HELL NO F you BETO we are already sick of paying for war f off.”

He also posted about selling produce at the Tanner Gun Show and about loving turkey hunting season - feathered turkeys.

I question how the heck did a plainly political minded person get accepted as an armed security guard (if any BG check was done by 9News or Denver Pinkerton or their unnamed security vendor who supplied Dolloff).

 

[danez71]

All fine and dandy but it doesn't address my question (of which I used the wrong term)

I meant disparity of force; not excessive force.

I'd like clarification as to why @Kleanbore comment seems to go against all of the past THR discussions about disparity of force.

See Post # 9.

That's not conjecture. It is legal precedent.

Please explain and what is the legal precedent?

As presented and compared to past THR discussions, it does seem like purely conjecture @Kleanbore to say the following unless I'm missing something

So, if the armed person would have been privileged to use force to defend himself in a particular circumstance, he would have been privileged to use deadly force to defend against an unlawful attack by pepper spray.

 

[Spats McGee]

There's a lot of banter in this thread about whether a pepper spray attack is sufficient to warrant a deadly force response. A quick Westlaw search brought up the following, the precedential value of which I cannot guarantee in all of the posters' various jurisdictions:

....In Brooks v. State, 314 Md. 585, 600, 552 A.2d 872 (1989), the Court of Appeals stated:

For an instrument to qualify as a dangerous or deadly weapon under sec. 488, the instrument must be (1) designed as “anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat.” Bennett v. State, 237 Md. 212, 214-15, 205 A.2d 393 (1964); (2) under the circumstances of the case, immediately useable to inflict serious or deadly harm (e.g., unloaded gun or starter's pistol useable as a bludgeon); or (3) actually used in a way likely to inflict that sort of harm (e.g., microphone cord used as a garrote).​

456 We hold that pepper spray may become a dangerous weapon, within the meaning of the Brooks factors, when it is used as an offensive weapon to injure and overcome the intended victim. The temporary blinding of an individual qualifies as serious harm, and one of the primary purposes of pepper spray is to provide personal protection in defending against criminal assaults. It is the use to which the object is put that determines whether a particular object is a dangerous or deadly weapon. A jump rope, for example, has a perfectly benign use and purpose, but it may be a deadly weapon if used to hang someone. Likewise, an umbrella may be a suitable weapon for poking out an eye. The trial court properly left for the jury to decide as a factual issue whether pepper spray was a dangerous or deadly weapon. . . . Handy v. State, 126 Md. App. 548, 553, 730 A.2d 710, 712 (1999), aff'd, 357 Md. 685, 745 A.2d 1107 (2000)

....Our research has uncovered no California decision holding substances such as pepper spray, tear gas and/or mace are dangerous or deadly weapons as a matter of law on the ground they are designed to incapacitate victims by affecting the person's vision and respiratory system. Nor have we found any published California decisions that found such substances were dangerous weapons as used in the particular circumstances of the case....
Some courts in other jurisdictions have found chemical substances did not qualify as dangerous weapons because of the peculiar circumstances of the case.....
In United States v. Lancaster,18 the court found the trial court did not commit clear error in finding no great bodily injury occurred from the defendant's use of mace.....
The Harris court's view of these chemicals' potential to cause harm has been echoed by the vast majority of courts that have considered the issue. Most courts have found tear gas, mace or pepper spray to be dangerous or deadly weapons capable of inflicting great bodily injury. For example, in United States v. Neill,.... The Ninth Circuit concluded the pepper spray had been used as a dangerous weapon....
In United States v. Bartolotta,.... The Eight Circuit found the defendant had used mace as a dangerous weapon in committing the crime....
In United States v. Robinson,....The Seventh Circuit found this sufficient evidence to uphold a sentence enhancement for inflicting bodily injury....
In United States v. Dukovich... The Eleventh Circuit held tear gas is a dangerous weapon as a matter of law....
In People v. Elliott, the court found the pepper spray the defendant used in committing the bank robbery constituted a dangerous weapon....
In People v. Norris,.... The court found the chemical spray constituted a dangerous weapon.
In Pitts v. State,... The court noted, “Unquestionably, mace is a substance which is designed as a defensive weapon, but may be used in such a manner as to cause great bodily harm.”
Whether appellant used the spray as a dangerous weapon capable of inflicting great bodily injury was a question for the jury to decide....
The evidence in the present case also establishes appellant intended to, and did, use the chemical spray to immobilize and temporarily disable his victims in order to escape with the loot. Evidence of these circumstances in combination supports the jury's reasonable deduction appellant used the chemical spray as a dangerous weapon in committing the robberies. Accordingly, the enhancements imposed for having used the chemical spray as a dangerous weapon in committing the robberies in counts 3, 4 and 6 need not be reversed for insufficient evidence....People v. Blake, 117 Cal. App. 4th 543, 556–59, 11 Cal. Rptr. 3d 678, 688–90 (2004), as modified (Apr. 16, 2004)

...In this case, the jury, being properly instructed on what constitutes a dangerous weapon, could reasonably have concluded that the pepper spray used by defendant constituted a dangerous weapon.... People v. Morgan, No. 294591, 2010 WL 4774479, at *2 (Mich. Ct. App. Nov. 23, 2010)

Mind you, most of these are from criminal cases, but they may provide some guidance. Also, bear in mind that your respective states may distinguish between a "dangerous" weapon and a "deadly" weapon.

 

[lemaymiami]

Re-read all of the posts (even the ones that were way out in left field...) and realized that I hadn't entered the key ingredient that motivated my original opinion about this incident... It's simply proximity - the actual distance between the sprayer and the shooter... Put simply, the shooter is not in any immediate danger - and he has ample room to increase that distance if the spray is annoying or debilitating... Based on that factor alone (and the fact that any prosecution will be able show the actual distance involved with photographic evidence to support their assertion....) this young man is in a world of trouble - and he's responsible for his actions.

I suspect we'll all have time to look at this from every angle and as Mr. Etttin notes "the devil is in the details" but absent some revelation that we don't have at present I doubt there will be any kind of good outcome for the man that took a life - and that's how it should go down in my opinion...

These kinds of incidents are great for the anti- Second Amendment crowd and hurt every honest armed citizen who would never consider doing something like this. and so it goes....

 

[wiscoaster]

... Put simply, the shooter is not in any immediate danger - and he has ample room to increase that distance if the spray is annoying or debilitating... Based on that factor alone (and the fact that any prosecution will be able show the actual distance involved with photographic evidence to support their assertion....) this young man is in a world of trouble - and he's responsible for his actions...

That's what I saw, as well.

That being said, you know what they say about the reliability of eyewitness accounts....

 

[Kleanbore]

Lethal force against a spray would not be seen as justifiable use, at least not in my state, because the spray alone is not capable of producing death or great bodily harm

There can be more to it than whether the spray itself would be considered likely to cause great bodily harm.

I don't think I've ever seen here that of you're justified to use force that also means that you are also justified to use deadly force.

Nor should you.

The justification to use force may not justify deadly force. However, deadly force may not be used unless the use of force is justified.

I'd like clarification as to why @Kleanbore comment seems to go against all of the past THR discussions about disparity of force.

I have not mentioned disparity of force at all.

I comprehend it [(Post #9)]; I don't agree with it. "Unlawful attack by pepper spray"? .... I'd like more explanation of this

Okay, let's ty to explain it

For an attack by OC spray to justify a deadly force response, the shooter would have to have (1) a basis for justifying the use of force in self defense in the first place, and (2) a basis to support a reasonable belief that deadly force was immediately necessary to prevent the person spraying it from temporarily disabling him and making it possible for the the person spraying it to take away his firearm.

Attorney Andrew Branca devoted an entire blog post to that earlier this year on the Law of Self Defense blog.

In Blanca's blog post on the incident yesterday, he discussed the issues of who may have been the initial aggressor, and who, if anyone, may have provoked the conflict. Those are the issues in the case.

Who acted as the initial aggressor is not clear from the photos. At appears to me that the security guard may have been. But that will depend upon evidence and testimony we do not yet have.

 

[wiscoaster]

Who acted as the initial aggressor is not clear from the photos. At appears to me that the security guard may have been. But that will depend upon evidence and testimony we do not yet have.

Ya know, I was just wondering the same myself this morning before I checked for new posts. What's missing here is what happened before the camera started rolling. That may be material to whether or not the shooter was justified in using lethal force.