Self defense against non lethal weapons?

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Owen Sparks

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Suppose for the sake of argument that you are alone in a dark parking lot and someone approaches you with a “non-lethal” weapon like a Tazer or can of pepper spray and makes clear his intentions to use it. According to the law in some states you can only respond “in kind” with lethal force if the attacker has a deadly weapon. These things are not considered "deadly weapons" as neither can cause serious or life threatening injury. Do you draw your CCW and fire or just allow the assailant to have his way with you and hope he ends the attack out of the goodness of his heart once he has you stunned and vulnerable?
 
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I carry also at times a blinding weapon-light, and sometimes as well Pepper-Spray which I would try to use first I think.(Who knows really what they would do, so dependent on the moment these types of crises.) There may be legal OKs on not doing that and shooting first, because being attacked is a violent-felony where lethal SD-means can be used. But I'm not a lawyer, and it certainly would be legally easier to have pepper-sprayed a BG than to have killed him. A Taser? Illegal in my state and most BGs just go for guns if they're into weapons, or baseball bat or something. Since a Taser can kill you, a non-expert opinion is you'd be justified in shooting. For me, who's 63 and has had some cardiac conditions, I likely would be justified. Asking a lot to allow yourself to be fried by electricity before you can take SD-action....

Good questions for a lawyer in your area who has expertise with self-defense.
 
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.... alone in a dark parking lot and someone approaches you with a “non-lethal” weapon .... makes clear his intentions to use it....

These things are not considered "deadly weapons" as neither can cause serious or life threatening injury.

A person on offense attacking with a taser or pepper spray with clear intent to disable, would make me fear that their intent would possibly be death or grievous bodily harm once they had their victim disabled.


The test on self-defense here is, as I recall: would a reasonable person in the same situation be in fear of death or grievous bodily harm from an attacker with the ability and the opportunity to put the defender in jeopardy? It does not have to be counter taser with taser, knife with knife or gun with gun. Disabled at the mercy of an unprovoked attacker sounds like jeopardy, risk of life or limb, to me.

Best advice is to consult a local lawyer familiar with how self defense cases have been handled in your jurisdiction.
 
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At my tender age and disposition I refuse to be another statistic. I would do what I thought was necessary.
 
I doubt someone intending to attack you in the dark is going to shout, "hey, I'm going to use this... it's not going to kill you, but it's going to suck, give me your money." In the dark, when being attacked, everything is a "deadly weapon."
 
Carl nailed it. Self-defense does not have to meet like-with-like.

(If you have a citation of a law you believe does say this, please share it and let's see what we can learn from it.)

If someone has the ability and opportunity to put you in jeopardy, and has shown their intent to do so, generally that's the threshold for lawful self-defense. Doesn't really matter whether what he was threatening you with as long as it was an object capable of incapacitation, injury, or death. You would be well within the standards of a "reasonable man" to believe that you were in grave danger from this person's willful actions.

Further, in no place in the US is it not a felony assault to attack someone with a taser, pepper spray, a baton, beanbag shotgun rounds, or any other "less lethal" option -- without a justification capable of supporting an affirmative defense. Therefore, you are resisting a felonious assault.
 
The principle in self-defense is that you can use equal force. If a guy has a Taser or pepperspray, he is capable of (as has been pointed out) disabling someone at a distance.

What do you have on you that will also give you the ability to disable someone at a distance?

Also, what is the likely consequence of your being disabled? The attacker will stop and render aid? Or he will search you for valuables, find your gun, and...then what?

One of the other standards of self-defense is: "I was in fear for my life." You know there is a deadly weapon in play in this situation, even before your attacker does. What would a reasonable and prudent person, knowing what you knew, have done in your situation?

Oh, just so we're clear: being "right" doesn't mean you won't perhaps go to jail.
(If you have a citation of a law you believe does say this, please share it and let's see what we can learn from it.)
Such citations are hard to come by because the equal force doctrine is imbedded in common law, and only rarely codified into statute. However, it is still active in legal matters, even without being codified.

The good news is that the common law standard is often "equal force, or the minimum force necessary;" and here one could argue that lethal force was the minimum force required.

http://www.nacdl.org/public.nsf/0/f587d7d10c34fff2852572b90069bc3c?OpenDocument

Fulero & Wrightsman, Forensic Psychology
 
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Loosehorse nailed what I was about to regarding your own firearm. There is a reason a cop is justified in firing on a subject coming at him/her with a supposedly "less-lethal" weapon. By the way, the phrase "non-lethal" in regard to these types of weapons has all but been replaced by the phrase "less-lethal" in law enforcement circles simply because it has been recognized that these weapons are indeed capable of doing grievous bodily harm.
 
My take on this sort of situation is fairly simple.... retreat, avoid, do everything possible to prevent the assault - while preparing to defend yourself. Anyone who has to ask how to defend themselves needs to re-think all they've learned to date. Once you cannot retreat any further act appropriately. Anyone that has done everything possible to retreat and avoid the attack first, then has to use deadly force to defend themselves will be in a lot better position after the fact - but there will still be consequences. There always are, one way or the other.
 
intent...or perceived intent is important here. The use of a supposed "self defense" weapons of these kinds (tazer, spray) in this situation is obviously not for self defense and therefore it would be logical to assume their intent is more than defending themselves from you and you might perceive their threat to be potentially deadly or causing bodily harm to you and or loved ones. They aren't going to spray or taze you and walk away.

As someone else pointed out too you have the right to use appropriate force. This is sometimes referred to as the ethic of least harm....using only the ammount of force necessary and available.

The other question would be range. If it were a regular hand held tazer (not the kind that fires leads) then being ready to draw (or some may choose to draw) and opening the distance would be more acceptable as they are not at range to actually use the weapon.....thus falling into legal issues about capability of actually hurting you yet.

Asssuming you are responsible , you likely also have a knife on you and ready to deploy which gives another line of defense, but poor against spray. If you "feel" like your life may be in danger and you cannot safely exit the situation without fear of bodily harm, then the firearm may be considered justifiable.

The easier scenario of course is if you aren't alone and are instead with family or child etc......then its simply point and click, BG has to be dropped asafp.
 
Law enforcement generally goes by the "plus 1 rule". What it comes down to is, if someone uses their fists or feet you may respond with non lethal force to include batons, chemical agents, tazer, etc. If someone assaults you using anything other than fists or feet you respond with a firearm. In any confrontation there will be at least one deadly weapon involved, yours. Your being disabled by a non-lethal weapon allows an attacker to then escalate to deadly force by means of your weapon and you can not allow this to occur.
 
Better citation for "equal force" and common law

From STATE v. GARTLAND, NJ Supreme Court, 1997:
Under the common law regime, even if faced with immediate danger of death or great bodily harm, an individual could use only equal force to repel the danger.   The doctrine of equal force, developed on a prototype of two males of equal size and strength, held that, if attacked without a deadly weapon, one could not respond with a deadly weapon.
 
CO law reads "imminent danger of death or serious bodily injury". Less-lethal weapons still represent a threat of serious injury, so you'd be justified in using deadly force. Pepper spray could be a grey area, but then, how are you to know it's pepper spray and not some other dangerous chemical in a can?

Ultimately, it'll be up to the investigators/grand jury/peer jury, but IMO, imminent threat by an adversary with any weapon is grounds for being shot. As Snowbandit said:

Law enforcement generally goes by the "plus 1 rule"

You're the defender, your at a disadvantage by the very nature of the situation, and it was not your intention to engage in a confrontation. The attacker made that decision and has assumed all associated risks. You did not get to decide, the risks were forced upon you. Therefore, you are justified in using a greater level of force than he in order to avoid the risk of injury you did not wish to take.
 
Any attack at night with a "Less than lethal" weapon, be it a taser or pepper spray may very likely kill you.
How many people take a fall every year and one bump to the head kills them?
If trying to retreat when blinded by pepper spray, might you walk in to traffic, fall down stairs etc?
How many people a year are killed by Tasers being used by trained LEO's?
I am no Attorney, but if I was in that situation I would certainly feel my life was in danger.
I am not sure how a competant Attorney couldn't fight that case and win, or how a Jury could convict.
 
Such citations are hard to come by because the equal force doctrine is embedded in common law, and only rarely codified into statute. However, it is still active in legal matters, even without being codified.

Yes. I am drawing a distinction here between the idea of the "force pyramid" or "force continuum" that sworn law-enforcement officers may need to follow somewhat closely as they enforce the law, and the much more truncated escalation path that a private citizen would need to follow when lawfully defending him/herself.

Sometimes we err in assuming that, since cops are equipped, trained, and required to move through a variety of steps of increasing severity as they apprehend and otherwise deal with hostile suspects in criminal atercations -- that we as armed citizens would be able, justified, or somehow required to match force-for-force when faced with a violent personal attack. (Or very strictly interpreting the "Force + 1" dictum.)

The doctrine of equal force, developed on a prototype of two males of equal size and strength, held that, if attacked without a deadly weapon, one could not respond with a deadly weapon.
Worth noting, however it would be wrong to read into this a requirement that one must submit to a beating, rather than prevent physical harm with the means at hand. Especially -- as others have noted -- in that a gun is involved even if your attacker hasn't discovered it yet.

Getting beaten to death simply because you didn't have time to locate or access the next item of the "force + 1" ladder is not a requirement of the law.

Incapacitation and death (either immediate or eventual) can occur from a punch or a kick. Grappling, trading blows, and other such physical contact can only reduce your chances of surviving the encounter.

My "force continuum" might look something like this:
1) Apologize/diffuse/de-escalate.
2) Retreat
3) Warn
4) Show (maybe, under certain circumstances/jurisdictions)
5) Shoot

"Take a punch" or "engage in fisticuffs" doesn't enter into it, unless blindsided or sucker-punched in which case, retreat is still the preferred response.

Note one other important concern: You do NOT want to be in a position where you could be claimed to be a "mutual combatant." Getting into a fistfight may ruin your affirmative defense for drawing your weapon later. Testifying in court that you attempted to leave, attempted to de-escalate, and only drew your weapon and/or fired when you had no choice left but to be assaulted or shoot is a lot better than testifying that you traded punches for a while and then drew and shot the guy when it looked like you might lose the fistfight.

(...And it's a whole lot better than saying, "Well, about the time he kicked my head into the curb for the third time, I saw a pretty white light and I just wandered on up to these here pearly gates. Now, which way do I go to pick up my halo and wings?..." :D
 
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Since I am not a mind reader I have no idea what is going through a attacker's mind. I will assume the worst and will defend myself, within the law, with deadly force if necessary.
 
Non-lethal? Or less-lethal? There is a difference. I will generally respond to less-lethal force with any REASONABLE amount of force. If I am threatened with any device that can cause incapacitation, even temporary incapacitation, I will, within REASON, respond with deadly force.

As for this equal or "like" level of force, that, to my mind, is not defense, but a mutually voluntary brawl, or affray. Texas, thankfully, allows any REASONABLE level of force. A higher level of force, within REASON, is considered a REASONABLE response to an assault in Texas.

FWIW, I wear a badge. My agency fully expects us to use a higher level of force than is being used against us, and believe me, our legal office studies things to death, and if anything, chooses to err on the liberal side of things. Notably, Texas law allows citizens to
use the same levels of force as peace officers. The word "reasonable" appears often in the Penal Code.
 
Getting beaten to death simply because you didn't have time to locate or access the next item of the "force + 1" ladder is not a requirement of the law.
True, it's not; but convincing 12 people you acted reasonably often is. If someone approaches you and says, "I'm gonna punch you right in the nose" and you shoot him dead for that, well, you've got your work cut out for you. A jury might go with the idea that had he actually punched you, then that single punch might have killed you. That may be what they consider a "reasonable fear of otherwise unavoidable attack that a reasonable and prudent person would have expected to leave you crippled or dead."

It is not at all clear to me that "I can shoot someone rather than take a punch" is solidified legal doctrine.

Please don't misunderstand; I'm not saying you should not do what you feel is necessary to survive. I just think we all should understand that a jury may see things differently. Being right is no bar to being convicted. And being alive comes first.
 
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It is not at all clear to me that "I can shoot someone rather than take a punch" is solidified legal doctrine.
No, that's true. And you are unquestionably right that this is a murky area with no bright line drawn in the best of cases. WHY did you think you were in fear for your life? Obviously the "disparity of force" argument can work for or against you.

But I'm no fighter I don't count on my ability with fists or improvised objects to prevail over someone who probably has a bit more experience with a brawl than do I.

I have to count on the hope that my attempt to leave, attempt at diffusing the situation, and verbal warning would either give me the chance to break contact, or would give me a reasonable argument to present in court.

I hope and pray that I'm never standing before a judge and jury saying, "He told me he was going to punch me in the nose, so I shot him!" :eek:

Please don't misunderstand; I'm not saying you should not do what you feel is necessary to survive. I just think we all should understand that a jury may see things differently. Being right is no bar to being convicted. And being alive comes first.
Yes. Certainly true. Hopefully situational awareness and appropriate meekness of spirit lead us all miles around the places where trouble of this sort happens and the sorts of people who seek it out.
 
So what is to stop them from kicking your brains in after they taser you to the ground, soak your face with pepper spray which BTY can be hell for asthmatics, so like it was said above "Bang repeat as needed"....
 
So lets say I have a concealed weapon and someone (not knowing yet I'm armed) is engaging my 53 year old self with his superior physical force of youth and physique... (i.e: obviously capable of beating my a** into a pulp and taking control of the gun I'm carrying). At what point am I in a "gun fight" and justified in using it on the assailant before the assailant potentially takes control of my gun and uses it on me... ???

I'm in NC for those that may know the nuances of this in this State.
 
Posted by Loosedhorse: It is not at all clear to me that "I can shoot someone rather than take a punch" is solidified legal doctrine.
It is not--generally speaking.

If one is frail or physically impaired, and/or if the attacker is larger and more fit than the defender, one can try to rely on claiming that the ability of the attacker to kill or seriously injure accrued through a disparity of force that justified the use of deadly force.

That argument can be a very tough one in which to prevail, as discussed http://www.thehighroad.org/showthread.php?p=7324139.
 
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