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Old August 26, 2010, 11:36 PM   #1
roy reali
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Pepper Spray + Gun = Problem?

Since I have moved into this area I open carry whenever I take my dogs for a walk. It is legal and because of the lack of people, well-tolerated. The reason I carry is that there are quite a few stray/feral dogs roaming around. I also occasionaly run into a loose dog that doesn't wild. It looks like it got loose. That made me add a weapon.

A few weeks ago I purchased a cannister of pepper spray to carry on my walks. I figured if that save the hide of me or my dogs then fine. I don't really want to kill a dog unless I absolutely have to. I also figure that the pepper spray might also fend off a nasty encounter of the human kind.

Now that I carry a gun and pepper spray, I wonder if certain legalities change?

If I was to be assaulted and used my gun, would having pepper spray screw up my legal defense? I wonder if the criminal system would question why I used lethal force when I had a nonlethal option? If a gun was aimed at me and I shot, I guess I should be fine. But what about a knife? What about a baseball bat? Should I keep the pepper spray or ditch it?
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Old August 27, 2010, 12:11 AM   #2
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If you are attacked with any 'deadly weapon' , knife ,baseball bat etc you have the right to use lethal force .Use your gun without hesitation !! Don't be 'nice ' and try the spray.
I have no idea how spray works on dogs.
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Old August 27, 2010, 12:19 AM   #3
roy reali
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re:Mete

Thanks, I guess you are right. But I wonder if the legal consequences change due to pepper spray?

I carry the pepper spray to use on dogs that are not apparently feral. If I see a large, but healthy, well-groomed canine appraoching us, I'll try to fend it off without shooting it if I can.

Trust me, feral dogs are usally easy to spot. I have had encounters with them away from the city. Luckliy I had a rifle and a shot fired into the ground near them causes them to scatter.
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Old August 27, 2010, 03:26 AM   #4
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When confronted with this kind of question, I always have to refer to 'ask your local, county and state law enforcement.'
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Old August 27, 2010, 08:29 AM   #5
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I spend a lot of time in the North Georgia Mountains. Although I keep a gun in my vehicle, I never carry, unless I happen to be at a gas station or WalMart late at night. It's very rural there and violent crime is almost non-existent.

I do, however, encounter wondering dogs frequently. Only a few strays, but folks let their dogs roam around - mostly sticking to their land, but sometimes wondering off. So far, I've been able to make nice with the pups, but some do get a bit aggressive. I really don't want to carry a gun just to protect myself from the dogs, but I am seriously considering some kind of pepper spray.

I've heard that once a dog gets sprayed with pepper spray, it make them meaner - i.e. next time I happen to be walking by that dog's "territory", he will be more likely to attack - does anyone know if this is true or not?
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Old August 27, 2010, 09:17 AM   #6
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Pepper spray for dogs is not a bad idea. I don't like the idea of carrying it with a firearm for people. Pepper spray used on an assailant is very likely to effect you as well as him. If you hesitated to use your weapon you may have now placed yourself at a disadvantage and now you may be forced to cope with the pepper sprays effects on top of that. If you have impaired yourself with the spray then draw and fire your weapon you may be in hot water if you miss and hit something other than your attacker. In a deadly force situation you may shoot your attacker, then a prosecutor finds out you were also carrying pepper spray and will make the argument to a jury that you had the means to stop him (the spray) but maliciously chose to shoot him instead. As a civilian you are not required to use a ladder of force or escalating force like cops. You carry a gun to defend yourself or your family, thats it. I would carry the OC at the park or when you are around dogs but I would stick to the real weapon for daily carry.
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Old August 27, 2010, 09:21 AM   #7
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Quote:
Now that I carry a gun and pepper spray, I wonder if certain legalities change?

If I was to be assaulted and used my gun, would having pepper spray screw up my legal defense? I wonder if the criminal system would question why I used lethal force when I had a nonlethal option? If a gun was aimed at me and I shot, I guess I should be fine. But what about a knife? What about a baseball bat? Should I keep the pepper spray or ditch it?
You'll get conflicting opinions here. Some will say that having the pepper spray can be harmful because the DA can question why it was not used. Others will tell you that without the spray it'll be more clear-cut case.

I disagree with both concepts. If assaulted in a manner that you believe is going to cause you great bodily injury or death, then lethal-force is almost always justifiable. There is no need to take a slow walk up the escalation of force ladder.

If the DA wants to make an issue out of it, your stance, through your attorney, is that you are a responsible citizen and carry the pepper spray for non life-threatening situations - stray dogs, bullies or threatening people, etc. This gives you the ability to exit a situation without using lethal-force. But when attacked by someone with a weapon, you can select the tool appropriate for the situation.

My basic rule of thumb is that pepper spray is used to ward off the bullies, blowhards and groups of young toughs who are trying to pick a fight or set-up a situation where they can start something. But if the aggressor has a weapon in his hand -- knife, club, tire-iron, baseball bat or gun -- he'll be staring at the muzzle of my carry gun.
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Old August 27, 2010, 10:44 AM   #8
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Hmmmm.... this thread looks more like a "legal" topic than a "tactics" one, so I guess we'd better shuffle it down that direction.

Hold on, everyone -- away we go!

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Old August 27, 2010, 11:44 AM   #9
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I carry both. More options that way. Large caliber
handgun and bear spray. Works very well on large,
attacking dogs. Carrying both is not unusual up here.
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Old August 27, 2010, 12:13 PM   #10
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I heard from a pepper spray salesman the stuff usually works on most dogs. I heard from a law enforcement officer many years ago tear gas usually works on most people.

"Usually" and "most" don't make the grade with me. I don't mean to denigrate people who carry sprays. I mean only I have more faith in calibers that end with the word "magnum."
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Old August 27, 2010, 12:23 PM   #11
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Always have something in addition to your firearm. How can you match your level of force to the threat if all you have in your toolbox is a gun? You are WAY more likely to encounter a situation where pepper spray is called for than one where you'll need your gun.

The failure rate of pepper spray is greatly exaggerated. At a minimum, it will likely buy you time to escape, which is the best possible outcome. If it fails, and if you can't avoid a shoot, you will look all the better in court for having tried a non-lethal alternative.

When it works (it will) everybody gets to go home, no lawyers, no jail, have a nice day.
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Old August 27, 2010, 01:39 PM   #12
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The thing is that if you have pepper spray with you and use your gun instead, you will need to be able to articulate why a reasonable and prudent person in like circumstances and knowing what you know would have concluded that lethal force was necessary and that the pepper spray would have been inadequate. How would you do that?

If I were in that position, I'd be able to refer back to my documented training and my understanding, from that training, that pepper spray may not act quickly and that a determined adversary, especially with a lethal weapon, would be able to fight through the effects and thus remain a lethal threat. I would also probably need to show that under the circumstances, if I tried pepper spray and it didn't work, I would not have had time to resort to lethal force. And I would hope to have one or more expert witnesses to back that up.

That said, I agree with maestro pistolero. It is a good idea to have some non-lethal option available. As BillCA points out, there are situations in which something like pepper spray is both adequate and more appropriate.
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Old August 27, 2010, 01:58 PM   #13
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Legal/tactical ? If you don't survive the tactical part you won't need the legal part !!
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Old August 27, 2010, 05:59 PM   #14
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There's only one reason a CCW'r would have pepper spray, and it isn't to spray an assailant AFTER he's been shot. No downside to having it, IMO. If the threat is too great, and you can't use it, it still shows that you were conscious of the fact that a gun isn't always called for in any defensive situation.
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Old August 27, 2010, 09:09 PM   #15
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Quote:
The thing is that if you have pepper spray with you and use your gun instead, you will need to be able to articulate why a reasonable and prudent person in like circumstances and knowing what you know would have concluded that lethal force was necessary and that the pepper spray would have been inadequate. How would you do that?
The same way you justify using lethal force on any aggressor. You perceived the threat, he had the means and opportunity to carry out the threat and was in fact attemptin gto carry out that threat, the completion of which you believed would cause you death or great bodily injury (i.e. broken bones, deep cuts, physical disability).

Examples:
a) Some guy gets in your face, screaming and pushing you against your car, claiming you "took" his parking space (or some equally trival upset). He refuses to back off and keeps shoving you against the car, jabbing his finger into your chest, shouting how he's gonna kick your fanny into next Tuesday.
Lethal Force: NO - Not warranted.
Pepper Spray: YES - appropriate for misdemeanor assaults/battery.
Even without the physical contact, his threatening statements and close proximity are sufficient threats that a reasonable person would likely believe an assault was soon to occur.

b) Similar scenario to the above, but this time, after pushing you once, he draws out a knife with a 4-inch or longer blade and says he's going to "slice you open".
Lethal Force: YES
Pepper Spray: Optional
If you want to Baptize him into the holy order of capsicum, go right ahead. Though the brandishing of a large knife is justification for using lethal force in close quarters.

c) Mr. Mouth steps out of his car behind yours, threatening to turn you into dog food. He rants profanely from approximately 15-20 feet from you. Finally, he says F- it and starts coming at you, uttering threats of physical harm.
Lethal Force: NO - Retreat is a better option.
Pepper Spray: Yes - Baptismum nostra Dominus sanctus Judas Priest and hose his face and chest with it. Like cold water on a dog, it should distract him long enough for you to reach some safety or put distance between you.

d) Same as (c) above, except Mr. Mouth exits his car with a tire-iron or baseball bat.
Lethal Force: YES, upon approach
Pepper Spray: NO, unless you have a good escape route.
If he appears to move towards me with a weapon, it'll be a baptism by Smith & Wesson. Otherwise, if I can keep a car length between us, he can rant all he wants.
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Old August 28, 2010, 01:14 AM   #16
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Excellent.
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Old August 28, 2010, 01:32 AM   #17
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Exactly what BillCA said.

A long time ago in a galaxy far far away, Daytona Beach to be exact, I had a job delivering pizza for a mom and pop shop. No problem with the gun being with me as the owner had a BHP under the till but I digress.

We delivered to all types of areas, including the ones the chain drivers had marked in red on their maps, I was young and stupid.

I made my runs with gun, two mags, pepper spray and a 6 cell mag-light that I carried on a belt loop (great for spotting house numbers at night and a very visible deterrent). There could easily be instances where force of a less than lethal nature was justified. The most notable was a loose frat house dog which took offense to my making a delivery run to his house. One shot on the snout after his hackles came up and he started coming up onto the landing after me and he was rolling in the dirt. The continued presence of it in my right hand as I delivered the pies and made change (one handed ) deterred the many angry frat boys from making trouble.

I have an old saying:

If your only tool is a hammer every problem is a nail.

translated to CCW:

If your only tool is a gun every encounter becomes a lethal one.
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Old August 28, 2010, 01:32 AM   #18
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Quote:
Originally Posted by BillCA
Quote:
Originally Posted by fiddletown

The thing is that if you have pepper spray with you and use your gun instead, you will need to be able to articulate why a reasonable and prudent person in like circumstances and knowing what you know would have concluded that lethal force was necessary and that the pepper spray would have been inadequate. How would you do that?
The same way you justify using lethal force on any aggressor. You perceived the threat, he had the means and opportunity to carry out the threat and was in fact attemptin gto carry out that threat, the completion of which you believed would cause you death or great bodily injury (i.e. broken bones, deep cuts, physical disability)...
But the issue goes deeper than that.

If you have the pepper spray, you will also probably have to articulate why a reasonable and prudent person in like circumstances and knowing what you know would have concluded that the non-lethal option would not have been adequate. That's why in post 12 I went into a discussion of training that would support a conclusion that pepper spray should not be relied upon to necessarily stop a lethal threat.
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Old August 28, 2010, 11:41 AM   #19
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If I were a DA prosecuting a shooting where the defendant was claiming self defense, and the defendant had ONLY lethal force at their disposal, I would go after them for it. It could help plant a seed in the mind of the jury that maybe shooting wasn't really necessary, but that a gun is all the defendant had in his possession, so that's what he used.
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Old August 28, 2010, 01:07 PM   #20
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What BillCA said.

I carry both pepper spray and a concealed handgun for self defense. IMHO having additional options is presumptively a good thing. I've also thought out how I want to react if I face a threat, and mentally run through that thought process when training. This is it:

*) Is this a credible threat to my life or that of some other innocent person that I choose to protect? (Say, my husband, a friend with me, or a child.)

-) If the answer is, "yes", can I use the handgun without putting myself or innocent third parties at more risk than if I fail to use the handgun?

*) If the answer is, "yes", use the handgun.

*) If the answer is, "no", go to the next option.

-) If the answer is, "no", is this a credible threat of more than trivial physical assault on me or some other innocent person that I choose to protect?

*) If the answer is, "yes", can I use pepper spray with reasonable assurance that it will stop the attacker, and without putting myself or innocent third parties at more risk than if I fail to use it?

- If the answer is, "yes", use the pepper spray.

- If the answer is, "no", go to the next option.

*) If the answer is, "no", retreat and/or try to talk the person down.

The reason I go through the options in this order, rather than considering pepper spray and/or retreating and/or talking someone down first, is that *if* the person is genuinely threatening my life of that of an innocent person, IMHO the right thing to do is to stop the threat in the surest manner possible.

I'm not an experienced fighter *or* a psychologist with extensive experience understanding threat situations. Any attempt to use a less effective means of stopping a potentially life-threatening attack is too likely to fail. While I would consider it morally acceptable to risk my own life, the situations where I could do so without also risking the lives of other people would be few and far between in my case. I don't fool myself that I would necessarily be able to think clearly and originally while under immediate threat to my life or witnessing a threat to the life of my husband, a friend or a child. So I've thought through the options in advance, and made certain default decisions in advance.

My own life experience and every self defense expert I've ever talked with both tell me that, in emergencies, I go on autopilot. For me, preparing to defend myself consists of equipping myself with appropriate means to defend myself, and training that autopilot to use them the right way. Personally, I like having the added option of pepper spray for situations that either don't involve a potentially lethal threat or where using a gun is too likely to result in an innocent person getting killed. I want to have other effective choices if for some reason I can't use my gun.

Pepper spray can give me another effective choice in some situations. It doesn't pre-empt using my gun, however, when I'm facing a lethal threat. Only if the situation for some reason pre-empts my using the gun does the question of using the pepper spray even come up.
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Old August 28, 2010, 01:30 PM   #21
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Both bear and dog specific sprays have a large warning on them saying not to use on human beings, and doing so may be a felony. If it comes to it, it becomes the job of the prosecuting attorney to prove why you should have used a spray expressly forbidden for use on people.
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Old August 28, 2010, 09:36 PM   #22
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Here's my $.02. Worth what ya paid for it.

Use the pepper spray on dogs that are harassing you, but not attacking you.

Use the gun on dogs that are attacking you.

Fits in with what BillCA said above.
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Old August 29, 2010, 01:22 AM   #23
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But the issue goes deeper than that.

If you have the pepper spray, you will also probably have to articulate why a reasonable and prudent person in like circumstances and knowing what you know would have concluded that the non-lethal option would not have been adequate. That's why in post 12 I went into a discussion of training that would support a conclusion that pepper spray should not be relied upon to necessarily stop a lethal threat.
It's called a reasonable belief. Would a reasonable man in your shoes believed that a can of spray seasoning would be sufficient to stop someone from causing him some kind of injury?

Let's take it from your argument's side...

We'll stay with the potential assault over a trivial thing, like our parking lot space scenarios above. This so I don't get accused of stacking the deck (much).

a) Some guy gets out of his car, cursing profanely, red in the face and approaches you as you get out of your car. You're 5'8" and 170 lbs in your boxers. The irate driver is 6'3" and appears to benchpress Buicks daily. His arms are covered with tattoos where his black Harley shirt doesn't cover them. His first "shove" to you slams you painfully into the car. His second one causes that bruising sort of pain on your chest and shoulders. At this point, he's just calling you names.
Lethal Force: Probably not
Pepper Spray: Definitely

b) Same situation, however after shoving you against parked cars a few times, you've tried to back away. Now this guy throws you to the ground and when you look up he's raised his leg to drive a boot-clad foot towards your face.
Lethal Force: Triple-tap candidate
Pepper Spray: Not recommended

It doesn't have to be a man-mountain coming after you where you can claim size disparity. Here is California there can often be subtle "clues" that you're dealing with someone of dubious character. And sometimes you just can't tell until the spam in flying.

c) This time the guy coming out of his car, p---ed off in the spring-loaded position is a Hispanic male, about your own size, short hair and in a t-shirt and jeans. He makes profane threats from the rear of your car about your brains, breeding and bollocks. He starts moving forward...
Lethal Force: No
Pepper Spray: YES
His threats and profane comments are sufficient to raise concern about safety. But as long as no lethal threats are made nor weapons seen. Pepper Spray is good for stopping a fist fight type assault.

d) Same thing as the above. However, when he clenches a fist you can see letters tattooed on his fingers. You can also see a tear-drop tattoo near one eye. When he looks around you see a tattooed number, like 18, on the side of his neck. As he moves in on you he says "I'll kick your ass, b----h". He starts moving forward...
Lethal Force: Recommended
Pepper Spray: Not unless you want to fight too.

This one has more elements of risk. He's unarmed. He's hostile. Yet, he also exhibits gang tattoos. Gang members often tattoo their symbols on the upper sides of their fingers to be visible on a fist. A number or some kind of tattoo visible on the side of the neck (especially aft of 3/9 o'clock) hold a high probability of a gang affiliation. Tear drop tats on the face can have several meanings, but for the citizen, they indicate gang affiliation and/or a prison experience.

Thus, from the citizen's viewpoint, he's now confronted with an irate man who appears gang-affiliated and is threatening a beating. If an average Joe hits you a few times he may be satisfied. But gang members really don't care if you live permanently disabled or disfigured or if you die. You're one of the sheep to be sheared. You're nothing to him.

You can easily argue that, as a gang member, he isn't going to just punch you once or twice and let it go at that. His attack will be vicious and he will make repeated hard blows to the face and head -- potentially life threatening ones. And because he has to maintain his "rep", he can't let an insult like pepper spray go unchallenged. He'll keep going to make contact, inflict what damage he can, the withdraw after "teaching a lesson" to you.
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Old August 29, 2010, 02:05 AM   #24
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Originally Posted by BillCA
It's called a reasonable belief. Would a reasonable man in your shoes believed that a can of spray seasoning would be sufficient to stop someone from causing him some kind of injury?...
Actually, if he were just the "man on the street" without demonstrated training, he very well might. After all, the stuff is sold in drug stores and sporting goods shops and a a bunch of other places expressly for self defense. Some of the advertising of some brands I've seen shows extravagant pictures of evil, ugly men brandishing weapons who are crumbling in the aerosol mist of this wondrous product.

I suspect that most people who are reasonable and prudent, but who also haven't been well educated about self defense, have very overly optimistic expectations regarding the effectiveness of pepper spray. And that would include most of the public, and probably most of the folks on the grand jury. And if you're unlucky enough to wind up on trial, it will include some, if not all, of the folks on your jury.

But you're not one of those people. You are a person well educated in self defense issues. You've been taught, and therefore learned, the limitations of pepper spray. You understand how to distinguish between a situation in which pepper spray will be appropriate and a situation in which a threat is likely too great for pepper spray to be relied on.

And I think you're completely misunderstood my argument. I agree that there are situations in which the use of pepper spray is appropriate. I also understand that there are situations in which pepper spray is likely to be inadequate and escalation of force will be necessary to preserve your life.

The thing is that IME many people don't realize the deficiencies of pepper spray. So if you resort to lethal force instead of relying on pepper spray, and assuming it was the proper choice, which it certainly can be, you will need to be able to articulate why you understand that pepper spray could not have been relied upon to stop the attack and how you had reason to know that. You will need to do that because your knowledge is inconsistent with the unfortunate, but IME common, misunderstanding regarding the effectiveness of pepper spray.

You and I both know that pepper spray is not going to stop that 250 pound, 20 year old, Hulk Hogan look alike on meth charging us brandishing a club. However, too many people don't know that. Too many people think that pepper spray will work. So we need to be prepared to show how it is that we know what we know.

It's much like the assailant 20 feet away with a knife. We know how fast he can get to us and kill us with that knife because we've been trained to know that. We also know how much time it's likely to take us to put our gun into play to neutralize the treat. But many people who aren't educated in self defense matters would intuitively believe that the assailant is too far away to be a threat. They'd of course be wrong, so we need to be able to educate them.
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Old August 29, 2010, 09:49 PM   #25
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As I mentioned in another thread, I used to be an armed guard. I had two weapons on my blet. One was a revolver and one was a can of Mace. Some guard also carried a baton. I went through training for gun and chemical weapon carry.

During the classes the instructors emphasized trying to escalate our response. Of course, a gun attack was to be met with a gun response. Even then, we advised not to have any rounds stamped with the word "magnum" on them. With a knife being used as a weapon, if possible, we were told to start with the nonlethal weapons and if they failed go to lethal force. These bits of advice were not only for criminal court, but for civil court as well.

Even if we killed someone and the DA ruled it as justifiable, an ambulance chaser will make it look different. The 19 year old thug that was killed will be made to look like the salt of the earth to a jury. He even helped little old ladies cross the street. If the guard being sued shows he tried nonlethal methods first, he might get to keep his bank account and house.

I don't know if I have helped. I was just trying to remind you that any defensive response might up in court, if not criminal, then civil.
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