The thought leaders in the realm of self-defense have become more fervent in the advocation of carrying less-lethal defensive weaponry even if, perhaps especially if, you carry a gun. Years ago, tools such as OC Spray (pepper spray) were considered a poor alternative to a real weapon. Concealed carriers often thought that pepper spray was made only for those who wished to have a magic talisman of a weapon with them but did not want to commit to carrying a lethal tool. Times have changed. At this point, carrying a less-lethal defensive weapon along with your lethal tool is the consensus among those who know because most violent encounters that occur are less lethal in nature and do not justify the use of a lethal defensive tool but call for the use of a less-lethal weapon. OC Spray, or any other defined less-lethal weapon is intended for defense against simple assault as appose to lethal assault.
However, what happens if you encounter a criminal actor who is using only a less-lethal weapon but for nefarious reasons? This is certainly something worth considering as we witness more and more criminals putting less-lethal tools, particularly pepper spray, to use to commit crimes. Such tools are legally defined as less-lethal in nature, so if a criminal uses such a tool, it would seem logical that only a less-lethal response would be appropriate. However, even though spray is deemed less-lethal, it can very easily factor into a deadly assault if used in a criminal capacity. Knowing the legal principles involved before facing such a rather less-common occurrence is warranted. Let’s discuss:
Less-Lethal Use of Force
When used in self-defense, less-lethal tools have a specific mission that is defined within the law. Lethal tools, such as guns or blades, are justified in use only against immediate, deadly threats to yourself or another innocent party. The fact remains that the majority of assaults that occur annually are “simple assaults” rather than “deadly assaults.” Simple assaults often involve lower levels of physical violence, such as pushing, grabbing, or perhaps punching, but rarely do such events warrant a lethal response in the eyes of the law. Less-lethal tools such as OC Spray are designed specifically for thwarting such assaults.
Even though the legal threshold for using less-lethal tools is lower than using lethal weapons, there is still a threshold. The use of less-lethal force must be justified, and you need to be able to articulate why it was necessary. For example, spraying an individual with pepper spray just because they insult you in a parking lot is going to be charged as an assault, not deemed self-defense. So, to be used within the boundaries of the law, self-defense must be justified. Otherwise, using such a tool is an assault. So, how is the use of less-lethal tools for nefarious reasons viewed under the law?
Criminal Use of Less-Lethal Tools
To utilize a less-lethal tool on an individual with no justification for self-defense is an assault. Therefore, if in criminal hands and being used for nefarious reasons, the use of a less-lethal tool is assaultive in nature. In and of itself, the assault with a less-lethal tool would justify only a less-lethal response, similar to what would be justified against a hands-only attack. However, when a less-lethal tool is used by a violent criminal, the intention of the assault usually goes far beyond just spraying a victim with pepper spray. There is typically a reason that the less-lethal tool is being used, and that is usually to facilitate a crime of some sort, be it a robbery or a violent assault.
Therefore, reacting to a criminal assault with a less-lethal tool becomes a far more complicated affair than reacting to a deadly threat, which would warrant a lethal response, or a more common less-lethal threat, which would justify only a less-lethal response. Although the tool being used in a criminal assault may be less-lethal in nature, it does not mean the assault itself is less-lethal in nature.
Criminals use tools such as pepper spray to overpower victims so that they can rob or assault them in this way. Because of this, the totality of the circumstances would need to be considered so that your actions can be explained afterward. The truth is a lethal response might be justified against a criminal utilizing OC Spray if the tool is being used to incapacitate you so that the criminal can go on to victimize you. A lethal response to an assault with a less-lethal tool may be justified, but the reason would need to be sound and clearly articulated.
Consider the circumstances carefully; if you get into a heated exchange with another driver in a road rage incident, and the other driver sprays pepper spray at you from within their vehicle, then begins to drive off, would a lethal response be justified? Hardly. However, what if an irate road rager spays you, then begins to pummel you with blows and kick you while you are on the ground? This now turns into an issue of disparity of force as the OC spray will severely compromise your ability to defend yourself against an assault that has, arguably, turned deadly.
An example that is even more straightforward would be the use of spray against a citizen during a robbery attempt. If the criminal sprays you in an attempt to rob you, it is likely clear that a deadly assault is to follow once you are compromised by the spray. In such a capacity, the spray is being used to render the victim helpless in the face of criminal assault, and this may justify a deadly force response.
As you can see, this is a potentially grey and convoluted legal area, and each circumstance would need to be interpreted. However, less-lethal weapons in the hands of criminals may, indeed, warrant lethal response even though we typically make a clear distinction between lethal and less-lethal toolsets. As always, a robust understanding of use-of-force and self-defense law is in order, and the armed citizen should think about this scenario beforehand.