I think that would be easily rebutted.The Annoyed Man wrote:But.....and some may think this controversial.....I will say this: unless I had the "asthma defense," it might be pretty difficult for me to convince a grand jury that I was in fear for my life because of being sprayed. Not impossible, just difficult. The reason I say that is because pepper spray and teargas and things like that are marketed to the public as "less-than-lethal;" police forces are trained to use these products as a "less-than-lethal" alternative to shooting a suspect, and a prosecutor might try to convince the grand jury that this is common knowledge stuff, and that consequently responding with a firearm is not a justified use of deadly force, and ask the GJ to send the case to trial.
Tear gas is not regarded as lethal. However, it is regarded as incapacitating a person. If an armed person gets incapacitated, they are now at risk of getting shot with their own weapon, so getting maced is -- by definition -- an armed encounter as I am the armed person. If a police officer is OC sprayed by a BG, I guarantee you they will consider that justification to use deadly force. Look how many police officers have been shot with their own weapon over the years. It is a realistic concern.