Generally, lethal force is not justified against a non-lethal force. It’s the old adage “Arms may repeal arms. Force may repel force.” But like many replies you’ll hear from a lawyer, “it depends.” Pepper spray is billed as less-than-lethal, but that doesn’t mean it cannot be used in conjunction with lethal force. Importantly for concealed carriers, it’s potential for incapacitating someone raises concerns of what facts demonstrate the pepper spray will be immediately followed with some form of deadly force.
There can certainly be instances where another person pre-emptively hits you with a dose of pepper spray due to misreading your actions as threatening. Remember, your actions don’t even need to be lethally threatening in order for pepper spray to be used against you. It is afterall considered “less than lethal.” If your attacker’s actions demonstrate that the pepper spray was defensive force without further follow-up attacks, it would be difficult to justify using deadly force against him or her.
I suspect for most law-abiding concealed carriers who genuinely try to avoid trouble, pepper spray used against them could just as easily be an offensive tool for robbery, sexual assault, kidnapping or similar attacks which may justify deadly force in response depending on the other articulable circumstances. The pepper spray then became a tool to further a lethal attack, despite pepper spray generally being considered a less-than-lethal weapon. Of course, like we say repeatedly here at Just Defense™, it is about articulation.
The Pennsylvania Supreme Court has actually dealt with this issue in Commonwealth v. Fowlin, 710 A.2d 1130 (Pa. 1998). A brief review of the facts:
Fowlin was present in a nightclub in Easton, Pennsylvania. He was armed with a handgun. Three men, two of whom were also armed with handguns, accosted Fowlin in the club, and one of the three sprayed pepper gas in his eyes. At approximately the same time, a second man drew a handgun. Fearing that he was about to be killed, Fowlin drew his own handgun and fired repeatedly in the direction of the attackers. Although he was nearly blinded by the pepper spray, he killed the assailant who had drawn the gun and wounded one of the others. He also wounded a bystander.
The DA initially charged Fowlin. Though not stated, it’s safe to assume it was murder and attempted murder against the two attackers, along with reckless endangerment and aggravated assault for injuring a bystander. Yet, the DA withdrew the charges against Fowlin for shooting his attackers based on Justification, but refused to withdraw the charges for injuring the bystander. The court’s holding had to do with a separate issue of a validly made justification claim being a truly “complete defense,” even when innocent bystanders are hit. As it related to the pepper spray, the Pennsylvania Supreme Court did make this interesting observation in support of the self-defense claim:
Fowlin was accosted by three men who assaulted him with pepper spray and simultaneously drew a handgun. Fowlin assumed, with reason, that they intended to kill or seriously injure him. He acted instinctively and within our law in defending himself.
The Supreme Court could fortunately see the pretty clear additional facts that supported Fowlin’s fear that this was more than just a pepper spray attack, but instead a offensive, not defensive, attack meant to incapacitate so the attackers could enact additional lethal force without resistance on Fowlin’s part. The three additional articulable facts demonstrating Fowlin was in immediate lethal danger were the force of numbers against him, the fact that two attackers were armed with lethal weapons (guns), and one drew a handgun at about the same time Fowlin was pepper sprayed.
The important thing to take from this case is that use of pepper spray does not add an additional element to a self-defense claim. But there does need to be something else articulable to demonstrate your fear of immediate deadly force. Otherwise, you may find your Justification defense lacking. Like in Fowlin, if you have articulable facts to indicate that a “less than lethal weapon” is meant to incapacitate you so an attacker can immediately inflict additional serious bodily injury or try to kill you (or in Pennsylvania, try to kidnap or sexually assault you by force or threat), there would be a basis to use deadly force even though the attack started with a non-lethal weapon But you must be careful in using a deadly response against (initially) non-deadly force. Understanding both verbal and non-verbal pre-attack cues, disparities of force, and other signs of danger are critical if you decide to respond to pepper spray with deadly force. The Fowlin case is a good example of this.