opinions on this situation

So a friend of mine, a female, was walking her dog at a popular wilderness recreation area. Her dog was not on a leash and is not required by law to be on a leash.

As she was walking the dog went a little in front of her and some man got mad that the dog was getting close to him. The dog is a golden retriever and is the nicest thing on the planet.

The man then starts yelling at my friend to get the dog away from him. As she gets closer the man pepper sprays the dog.

My friend starts to yell at the man and while attempting to get her dog to put it on a leash and get out of the area, the man pepper sprays her.

Now, here is my question......

My friend was carry a loaded concealed handgun. She and her dog have been pepper sprayed and she is alone in a wilderness area with a hostile and aggressive man.

Did she have a legal justification to use deadly force with her handgun ?

Depends on the state, but I would bet you 99.99% of the time, NO.

In favor of force- Shes a female, alone, in the woods against a guy who just incapacitated her.

Against her- her dog caused the incident (even if really nice), she had opportunity to leave the area and avoid the use of force (as she did).

States vary on the Stand Your Ground issues. In MA, we don't have it. So you have to make all possible attempts to flee before you use it. So she would have had to leave the area, if he gave chase then ok. Also, you have to show the threat or fear of death or serious bodily injury. I'm not a lawyer, but spraying someone is a passive defense measure. Especially since he sprayed the dog first. If he stabbed the dog or showed some kind of other physical attack (offense) then maybe she'd have a better shot.

As the facts stand, without knowing the state statute...... no shoot.

Depends entirely on the state. How a jury responds is an additional practical concern. In Colorado she would be unjustified unless she thought he was going to kill her (and could argue that lethal force was the only working option, but in practice that would be pretty easy if the first condition was satisfied).

How close, and how much time between demanding she get the dog away from him before pepperspraying the dog?

As for the pepperspraying of her - unless she is actually attacking him, it's a no-go behavior.

The problem your friend seems to have is a lack of responses other than her handgun. As a friend says, "I lurvs my taser." Some folks use canes/walking sticks when out hiking for reasons other than helping them walk.

The problem is that you even ask "Did she have a legal justification to use deadly force with her handgun?" I'm pretty sure you know the general qualifications for use of lethal force, but I'll repeat them anyhow: imminent threat of death or serious bodily injury. Serious bodily injury includes the loss of use of ceretain body functions as well as loss of limb/loss of use of limb. But there is no consensus that the temporary loss of vision and temporary difficulty of breathing constitutes serious bodily injury. You might ask her if she wants to be the test case in her jurisdiction.

Your friend may be naive, but you appear to be provocative in asking the question posted.

stay safe.

Your question was does she have legal justification?

Based on the classic forumula for justified lethal force, while knowing nothing about your state's law, I would say no.

A quick analysis.

Immediate threat of grave bodily injury or death? No.

Also, lets look at AOJ/I.

A (Ability): Present. Mr. Pepperspray has incapacitated her first line of defense--the dog. He's also greatly diminished her capacity to defend herself by pepperspraying her. And, disparity of force in the form of adult male on female.

O (Opportunity): Present. If he is close enough in space and time to pepperspray her, then he is close enough in space and time to cause grave bodily injury or death.

J/I (Jeopardy/Intent): Absent. "Hostile" and "aggressive" are insufficient descriptors. Mr. Pepperspray did not do or say anything to make a reasonable person conclude there was a right-now threat of grave bodily injury or death.

So, while Ability and Opportunity are definitely present, two out of three is insufficient. All three elements must be present. The missing element is an overt act from Mr. Pepperspray.

So, no. Not lethal force not legally justified.

However, were I on the jury, I might aquit. If Mr. Pepperspray sprayed and walked away, and she back-shot him, I'd probably convict. But, if he hung around for some gratuitous additional sprays, or advanced on her between sprays, I'd aquit. A lone woman, being sprayed, in the wilderness when she was not the aggressor? I don't think I could fault her for taking the possibility for further attack out of Mr. Pepperspray's hands. Clearly he's got some sort of nasty streak going on. I don't think I could fault her for not waiting around to find out whether he intends to do more while she's half-blinded and in pain from pepper spray.

http://law.justia.com/codes/idaho/2005/18ftoc/180400009.html

You may use deadly force in Idaho to prevent a felony. Question is the intent of the person.

Of course, intent is determined by actions (if you kill someone, they won't be around to testify).

I think that the guy should be arrested for assault and battery. If this is aggravated assault and battery is another question.

http://legislature.idaho.gov/idstat/Title18/T18CH9SECT18-907.htm

Provides the definition of aggravated battery ... it includes a description of chemicals in their definition.

So, I would need to know more about the substance sprayed (MSDS would be nice).

You guys all make good points and the consensus seems to be "no".

However, think about this.....if you were a woman, alone in the wilderness, and a strange man pepper sprays your dog and you for no apparent good reason, wouldn't you be in extreme fear ?

I believe that the law focuses primarily on mindset and not on actual threat.

Im not sure which state your friend is in however most leash laws require a leash or the animal under your control at all times. If someone asks you to keep your dog away from them then your obligated to do so regardless of their attitude. No matter how.friendly your friends dog is the other person does not know the dog and could easily feel threatened by a dog running at them. I feel part of this story is missing, what did your friend do to get pepper sprayed?

onus said:

You guys all make good points and the consensus seems to be "no".

However, think about this.....if you were a woman, alone in the wilderness, and a strange man pepper sprays your dog and you for no apparent good reason, wouldn't you be in extreme fear ?

I believe that the law focuses primarily on mindset and not on actual threat.

Click to expand...

An unleashed dog running at me is good reason to spray it. Owner freaking out over me spraying dog may be cause for owner to be sprayed (not likely if its a woman) while i vacate, there is always more then one version of what happened and why and typically neither is 100% truth.

S&W500 said:

Im not sure which state your friend is in however most leash laws require a leash or the animal under your control at all times. If someone asks you to keep your dog away from them then your obligated to do so regardless of their attitude. No matter how.friendly your friends dog is the other person does not know the dog and could easily feel threatened by a dog running at them. I feel part of this story is missing, what did your friend do to get pepper sprayed?

Click to expand...

Im pretty sure the area in question does not have a leash law.

S&W500 said:

An unleashed dog running at me is good reason to spray it. Owner freaking out over me spraying dog may be cause for owner to be sprayed (not likely if its a woman) while i vacate, there is always more then one version of what happened and why and typically neither is 100% truth.

Click to expand...

Someone freaking out over a dog being sprayed is not cause to spray the person.

One could view the spraying of a dog as eliminating a defense for the woman and then the woman gets sprayed?
As if the original target was the woman to begin with (ie rapist).

Another viewpoint. If I'm on a jury I could go either way ...

Not enough information, but I won't pepper spray a dog that is not leashed and I reasonably believe is a threat. I am going to shoot it. Again, "reasonably believe is a threat." Leash you ****ing dog!


Sent from my iPad using Tapatalk.

<o>

onus said:

You guys all make good points and the consensus seems to be "no".

However, think about this.....if you were a woman, alone in the wilderness, and a strange man pepper sprays your dog and you for no apparent good reason, wouldn't you be in extreme fear ?

I believe that the law focuses primarily on mindset and not on actual threat.

Click to expand...

The law uses a somewhat fuzzy concept called "a rational person". eg, "would a rational person have cause to fear for their life under these circumstances". So simply being afraid isn't enough, it has to be a fear (in effect) understandable and justifiable in the minds of others.

eye95 said:

Not enough information, but I won't pepper spray a dog that is not leashed and I reasonably believe is a threat. I am going to shoot it. Again, "reasonably believe is a threat." Leash you ****ing dog!

Click to expand...

I would have thought a tough guy like yourself could handle a dog without shooting it.

skidmark said:

--snipped--
Your friend may be naive, but you appear to be provocative in asking the question posted.

Click to expand...

This ^ ^ ^ .

Onus is a living, breathing example of a provocateur - this just fits his modus operendi.

Best response to his postings IMO is to ignore them.

onus said:

I would have thought a tough guy like yourself could handle a dog without shooting it.

Click to expand...

As usual, you thought wrong. Once again, (read carefully) if I reasonably believe a dog to be a threat, I will shoot it. An unleashed dog is far more likely to be a threat.


Sent from my iPad using Tapatalk.

<o>