There is a downside to carrying pepper spray, however.barstoolguru wrote:This is a good reason to carry pepper spray it might have saved this guy a lot of (lawyer) pain. Sounds like the guy doing the slapping was looking for a fight and got more them he bargained for. was he justified is going to be the question and I think this will be a GJ no bill for the simple reason that the man did it to two different people and followed both of them into the parking lot after he seen they were an easy mark. Could his motive have been robbery after the assault?
If you have no alternative but to use deadly force, then it is harder to question whether deadly force was "immediately necessary" -- as required by statute.
However, if you have less-than-lethal alternatives available to you, then you open yourself up to getting questioned about why didn't you just spray him instead of shooting him. Was deadly force really "immediately necessary"? Even when deadly force would otherwise be completely warranted, there is now room for second guessing and scrutiny about whether you should have chosen the less than lethal route.
Let's review the relevant portions of the statute:
For example, someone comes up to you and says, "Give me all your money!" Under §9.32(a)(2)(B), the robbery means you are justified in using deadly force if it is "immediately necessary" as specified in §9.32(a)(2). Furthermore, §9.32(b) says your belief that deadly force was immediately necessary is presumed reasonable when it is a robbery.PC §9.32. DEADLY FORCE IN DEFENSE OF PERSON.
(a) A person is justified in using deadly force against another:
. . .
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
...
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery,
or aggravated robbery.
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
....(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B); (i.e., robbery)
However, "presumed reasonable" is a rebuttable presumption. If the D.A. decides to show that your belief that deadly force was required was unreasonable because you had other viable alternatives such as pepper spray, you could find yourself at trial.
I've actually had an attorney say to me in social conversation -- not as paid legal advice -- that I'd be better off if deadly force was my only available option.
