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  • I have a question.

    More of a hypothetical.

    A civilian, who is carrying concealed, and for whatever reason is forced to use his/her weapon. The shoot ends with the bad guy dead, and is ruled justified by law enforcement.

    It then comes to light that the civilian had OC spray on their person, but it wasn't used.

    Could this pose a problem, either civilly or criminally? Could the question later be asked why the CCWer didn't just use the pepper spray, a less lethal alternative, to subdue the threat?

    (That question is completely stupid if deadly force was justified and articulated, I know)

    If someone is carrying concealed, should that firearm be the only level of force they have available?
    Last edited by Till; 05-24-2011, 09:20 PM.

  • #2
    .


    The answer is: It depends on where it happened and the laws there.




    I would never carry OC unless I couldn't carry a gun. And if I could carry both, I wouldn't, I'd only carry the gun. You don't want both for the exact reason you said, they could say, "Why didn't you just use the OC?"


    .

    Comment


    • #3
      I'm not a lawyer, but it could actually prove beneficial. The reason I say that is in the past (can't find the case law) officers have been jacked because they were off-duty and were involved in a use of their weapon. The defense argued that since they weren't carrying handcuffs they had no intention of taking prisoners and therefore murdered and/or planned to shoot whoever they confronted.

      Having a less lethal option on you may help show that you utilized your firearm only as a last resort and/or when faced with a lethal force encounter, and they you were prepared with a lower level of force to address non-life threatening situations.

      Comment


      • #4
        I say anything could be argued in court so pay for a good lawyer.
        Budda sat in front of a wall and when he stood up he was enlightened. I sat in front of a wall and when I stood up the wall was enlightened.


        We forge our skills in the fire of our will.

        Comment


        • #5
          You use deadly force against a deadly threat. I don't think that any state requires that someone use pain compliance to counter deadly force.
          Government is not the solution to our problem; government is the problem. - Ronald Reagan

          I don't think It'll happen in the US because we don't trust our government. We are a country of skeptics, raised by skeptics, founded by skeptics. - Amaroq

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          • #6
            Law enforcement doesn't rule whether deadly force is justified; that's for the AG. Around here, your action would be presented to the Grand Jury, you would be "No True Bill'ed" (because EVERYBODY in my county has been a victim of something) and the criminal aspect of your case would be over. However, it would most certainly be an issue in the wrongful death suit to follow (also a sure thing around here). How that would play out is a crap shoot at any given time.

            Comment


            • #7
              Originally posted by Chopshopcop View Post
              However, it would most certainly be an issue in the wrongful death suit to follow (also a sure thing around here).
              Yet another thing I love about my state; if the shooting is ruled justified, you're shielded from civil suits related to it.
              Lt. Col. Grace - "Lt. Murphey, why are you all dressed up to mack on the ladies?"
              Me - "Sir, you just answered your own question."

              Comment


              • #8
                What use of force is reasonable and necessary in a situation depends in part on what the threat is.

                Comment


                • #9
                  Originally posted by Lawdawg45
                  Till,

                  The Force Continuum is for law enforcement, not civilians. Graduated force is something determined and taught by each local department, and the only thing a civilian needs to meet for deadly force is a substantial threat to their safety. Your hypothetical person is silly for carrying both.

                  LD45
                  (emphasis added)

                  The standard for deadly force is considerably more stringent than that.

                  Comment


                  • #10
                    Also, I agree with HDEP; the only time I'd carry OC would be if, for some reason, I couldn't carry a firearm. If I have the option to carry both, I'm only carrying the latter.
                    Lt. Col. Grace - "Lt. Murphey, why are you all dressed up to mack on the ladies?"
                    Me - "Sir, you just answered your own question."

                    Comment


                    • #11
                      Originally posted by Lawdawg45
                      In some areas yes, in others no. It varies just as the Continuum does by department. One simple statement is usually the key......"I feared for my life".

                      LD45
                      That's substantially more stringent than "the only thing a civilian needs to meet for deadly force is a substantial threat to their safety".

                      And what about the part of the law that requires that you use lesser force if it will do?

                      Why, given a choice, would you deliberately carry only a lethal use of force option, and forgo an option that is often best?

                      I sprayed a guy who was about to use a beer bottle to hit someone and the spray worked fine. I'd have been hard pressed to defend shooting anyone in that situation. "Oh I left my pepper spray at home on purpose so I'd have to resort to my gun if a situation came up and well there you go."

                      Please imagine this in the interview room:

                      "I shot him in the head because he was about to cut me off in traffic again and that was a substantial threat to my safety". "Oh yeah and I feared for my life." "Besides he had it coming"

                      "Couldn't you maybe have just braked and let the asswad ride on?"

                      "Well maybe but who knows?"

                      Do you shoot every dog that barks at you?

                      Having pepper spray on you does not restrict you from applying deadly force in a real deadly force situation.

                      You make it seem as if you would choose to apply deadly force simply as a matter of preference.

                      Comment


                      • #12
                        Originally posted by Till View Post
                        More of a hypothetical.

                        A civilian, who is carrying concealed, and for whatever reason is forced to use his/her weapon. The shoot ends with the bad guy dead, and is ruled justified by law enforcement.

                        It then comes to light that the civilian had OC spray on their person, but it wasn't used.

                        Could this pose a problem, either civilly or criminally? Could the question later be asked why the CCWer didn't just use the pepper spray, a less lethal alternative, to subdue the threat?

                        (That question is completely stupid if deadly force was justified and articulated, I know)

                        If someone is carrying concealed, should that firearm be the only level of force they have available?
                        The only way to accurately answer this would be to cite case law for the particular state in which your hypothetical took place. Most decisions to prosecute and most judge's rulings are decided on the basis of previous similar cases preferably from the same state.

                        Comment


                        • #13
                          Originally posted by JonB View Post
                          The only way to accurately answer this would be to cite case law for the particular state in which your hypothetical took place. Most decisions to prosecute and most judge's rulings are decided on the basis of previous similar cases preferably from the same state.
                          Great responses, thank you. At one time, I did carry both, but now I do not, and haven't for probably about a year, because I expected some of the responses in this thread.

                          And we'll just say this took place in Virginia.

                          Comment


                          • #14
                            Can't speak for VA but here it was if it was ruled a justified shooting then end of story......

                            You don't bring OC to a gun fight so to speak.

                            Comment


                            • #15
                              Originally posted by careerchange#2 View Post
                              I'm not a lawyer, but it could actually prove beneficial. The reason I say that is in the past (can't find the case law) officers have been jacked because they were off-duty and were involved in a use of their weapon. The defense argued that since they weren't carrying handcuffs they had no intention of taking prisoners and therefore murdered and/or planned to shoot whoever they confronted.

                              Having a less lethal option on you may help show that you utilized your firearm only as a last resort and/or when faced with a lethal force encounter, and they you were prepared with a lower level of force to address non-life threatening situations.
                              I highly doubt that was a defense that was successful. Maybe in the 1960s. If one is in fear of serious bodily harm or death, lethal force is justifiable, no matter what your occupation is. Obviously it's never that clear-cut, but rather very fact based in every case that enters the courtroom. I don't care if I have a taser, pepper spray, and baton around my blue jeans, if I feel that I am going to be seriously hurt or killed at the time in question, the firearm is coming out first. It wouldn't be any different if I was on duty than off. Remember the force continuum is never automated, moving from the bottom up to the top. You can go straight to the top based on the circumstances in front of you. The courts will always (or should always) apply a reasonable person standard in these cases.
                              Last edited by SgtScott31; 05-25-2011, 02:54 PM.
                              I'm 10-8 like a shark in a sea of crime..

                              Comment

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