Why a PennLAGO needs to carry OC spray: The law of OC spray in Pennsylvania

As recent events have emphasized, and as the history of man has revealed, for the average law abiding citizen and Pennsylvania Law Abiding Gun Owner (PennLAGO), violence often comes as a surprise. As Kelly McCann teaches us, bad folk who attack based upon no provocation are infrequently alone and will always attack when the conditions are favorable to them and not to the PennLAGO.

When violence is offered to you, you need to be prepared. A gun on the shelf at home does you no good if you are dragged out of your car by an angry mob. Just ask this guy:

But a gun on the hip deployed out of the holster is not always the lawful answer for all situations, is it?

If you carry a gun, good! Keep it up! My family and I thank you for helping to make us all safe. I personally subscribe to the ABC philosophy. ABC=Always Be Carrying. I even home carry. Bad guys don’t make appointments, do they?

But when you stop to think about violence, there really are all sorts of forms and manifestations of violence. From the relatively minor such as a verbal attack to the extreme armed encounter. You need to be prepared for everything along that spectrum, not just the extreme. As a law abiding citizen and PennLAGO, you are likely living a good and moral life, you do not do drugs, you do not live in a high crime area or visit one after dark, and you do not engage in high risk behavior such as drug dealing or buying. As such, it is much more likely that the form of violence that you will statistically most likely face is in that less extreme side, namely the unarmed encounter and/or verbal assault. Are you best prepared for that lower end of the spectrum? Most PennLAGOs haven’t considered that and it is the most frequent form of violence that we will likely encounter. That is crazy.

As Dave Spaulding teaches us Preparedness + Willingness = Prevail. We need to be totally prepared for the full spectrum of violence. We must be willing to appropriately and legally to answer that form of offering of violence. We must have a mindset of not simply surviving, but prevailing. Surviving means just that. If you are paralyzed from the neck down from a violent attack, you have technically survived but who wants that?

“Tactical knowledge and technical proficiency are important attributes but they pale in comparison to your will to win. Under duress, when technique goes out the window and there’s no time for finesse, only an unwavering will to win will see you through. In the words of preeminent self-help author Napoleon Hill ‘No man is whipped until he quits in his own mind.’”

-Rich Nance

So let’s talk about that mindset and trying to be prepared for a lower order on the kinetic scale violent attack. Here is some food for thought through some scenarios. Now the key to these scenarios is to imagine them (as you should be doing to prepare yourself) under the facts that I present. Do not add facts. Operate under the constraints of the facts presented.

Scenario:

Imagine you are at the grocery store parking lot in Pennsylvania. You are a PennLAGO with a LTCF and you have a lawful firearm concealed on you. You are totally calm and chill. You are in Condition Yellow. You perceive no threats. It is a normal day. You go to park your car in a spot where there is a car parked in front of you and on either side of you. You park in headfirst (which you know you really shouldn’t do because in parking headfirst you make it more difficult to egress, but you do anyway). Like you should, you pause after parking and do a quick 360-degree check before getting out. You see and perceive no threats. You exit. You lock your car doors. You take 12 or so steps away towards the grocery store. All is good and right with the world. All of the sudden to your right about 100 yards away, you hear a man yelling. You turn your head to look. He is pointing at you and yelling at the top of his lungs. You pause and do a quick check in your 360 and you see no one else so he is definitely pointing and yelling at you. You have no idea why. You don’t recognize the guy or his issue. But now you can make out that he is yelling at you saying “I’m going to kick your ass. I’m going to shove this fist down your throat” as he points his left hand to his right clinched fist. You clearly see that he has no blunt force objects in his hands, no edged weapon and no firearm.

What is your proper legal response?

A. Draw your firearm and point it at him ready to discharge with finger on the trigger.

B. Draw your firearm and point it at him, but give verbal commands to stop.

C.Draw your firearm and point it at him, but have your finger indexed along the top of the trigger guard.

D. Draw your firearm and keep it in low ready in a manner that he can definitely see it.

E. Draw your firearm and keep it in a retention position (like position sul) so you are ready to deploy it.

F. Retreat to your car to safety.

Make your choice out of the options above. There is no option G. Pick one before you read on. I’ll wait.

Let’s talk about each one of these. Let’s start in reverse order.

Option F is not a great answer tactically, but legally it is the best out of all of the others. Tactically, option F is not best because your car is not a safe space. Yes, it is an intermediate barrier to unarmed conflict, but it is not a safe space. Windows can be broken. You can be dragged out. It isn’t cover. Heck with all of the windows, it isn’t even concealment. Because in the facts of the scenario, you are several feet away, the doors are locked, and you went against what you know is best by parking head first, it is true that with this guy being 100 yards away there just isn’t enough time to escape to complete safety. By the time you get in, open the doors, close the doors, put the key in the ignition (if you have to do this and it isn’t a push button start), put the car into reverse, do the three point turn to properly orient your car to egress, he has likely closed that gap and he is upon you if he is so motivated.

If you chose Option A, then you better have your bail bondsman on speed dial. In these facts (remember resist the urge to add additional facts that I haven’t given), he is 100 yards away. He has displayed no weapons. You have no articulable notion that he has any weapons. He is not an imminent threat to you in terms of giving you a reasonable fear of death, serious bodily injury, kidnapping or sexual assault, at least at this point. At this point, with this distance and with no weapons displayed that can reach you, self-defense is not authorized. As he has no weapons displayed or prepared to use that can reach you, you cannot point a gun at him to “scare him off” under this scenario. They are just words at this point. His offering of violence from this distance and under these facts is not enough. What he is doing is illegal. It is called a terrorist threat, but at this point in the scenario, you do not get to respond with lethal deadly force. Because he has no weapons displayed, Stand Your Ground law protections also is not available to you. Because you are away from your car, you do not get the protections of the Castle Doctrine (the presumption of reasonableness). What you have done is a Simple Assault under Pennsylvania law.

Option B is also wrong for all of the same reasons as Option A. Even if you ad some sort of verbal negating language like “If you come any closer, I’ll shoot” as a verbal warning and a conditional response that lets him know that you do not, at the present, plan to use lethal force, but only if he chooses to disobey your command will you. It is still, under these facts as presented, a clear case of Simple Assault.

Option C is also wrong for all of the same reasons as Option A. Even if he had some sort of zoom vision at 100 yards and saw that your finger was indexed, it is still a Simple Assault and an unauthorized illegal use of deadly force.

Option D and E are closer calls than options A, B and C, but are also arguably wrong under these facts. Unlike many states (such as Texas) Pennsylvania does not have a “brandishing law.” Our law on self-defense is really totally fact dependent. There is a very good argument that under these facts if you chose to respond with Options D or E, then it could be a Simple Assault because again of the distance and no weapons displayed or references. Yes, you want to be prepared, but the clincher is the fact that he is that far away and no weapons.

So none of the above under these facts is a tactically perfect or legally perfect. Wouldn’t it be great if there was an Option G? I agree. This is why everyone should consider an effective less than lethal response, namely OC spray. If you carry concealed OC spray, it can be gripped in your hand and no one will be the wiser. If you unjustifiably point it at someone, then yes, you are still subject to simple assault. At 100 yards it will not be noticeable. In Pennsylvania, there are no laws to prevent anyone of any age from owning or possessing OC spray. There are only a few areas (such as schools and courthouses) where you cannot legally possess it. Most, importantly, it gives you a very effective standoff method and a middle ground to answer that offer of violence where self-defense is authorized in the form of non-deadly force (i.e., fists) and when lethal self-defense is not authorized. Plus, it is a standoff weapon. Why invite the bad guy into your immediate space when you don’t have to? In order to deploy a fist or a palm strike or even a kick that means that you are within distance for the bad guy to do likewise. Why do that? Isn’t it best to stop him or her in her tracks or cause them to pause before you get into that immediate range? If your only response to a situation is fist versus unauthorized and illegal deadly force, then you have missed a large part of that spectrum of violence and assumed an unacceptable risk that you will be contacted and hurt, haven’t you?

Let’s go back to our scenario. You cannot retreat to your car as you cannot in the time afforded get to escape to complete safety as we discussed above. Suppose he starts running towards you. Again, you see no weapons and only threats of kicking your ass and shoving his fist down your throat (a form of simple assault) is present. Even under this scenario, where he is charging and although there is imminent danger and a threat of violence, there is no reasonable and articulable threat of one of the major four that authorizes lethal use of force (i.e., death, serious bodily injury, kidnapping, and/or sexual assault).

What is OC spray? Oleoresin capsicum (OC) comes from peppers and requires capsicum to be finely ground, from which capsaicin is then extracted using an organic solvent such as ethanol. The solvent is then evaporated, and the remaining waxlike resin is the oleoresin capsicum. If you buy the right OC spray it is totally incapacitating.

What is the good OC Spray? Maybe you are thinking “But I’ve heard that it won’t work with a determined attacker and/or people who are high and on drugs be totally unaffected by it.” I am no OC spray expert, but in the training courses that I have attended and through trial use I can say that if you buy the right OC spray, then that is a myth. When you go to purchase OC spray, the published standoff distance doesn’t really matter as in my experience all manufacturers exaggerate. Plus in the real world there is this phenomenon called wind that can really change the kinetics of this type of response. What you need to focus on are the published and independently verified Scoville heat units (SHU). This is a measure of how potent and powerful the OC spray is. If the OC spray that you are considering does not have the SHU boldly printed on it, then don’t buy it. You need something that is powerful and incapacitating, not something that is a mild irritant. If you do not buy a powerful unit, then yes, it will not stop a determined attacker and/or someone on drugs. The benchmark for powerful OC spray and the minimum acceptable level is 2 million SHU. Do not get anything less. Also, you need to consider the form of deployment. There are two basic types: stream (or directed) and fog (wider). I personally subscribe to the thoughts of Kelly McCann. He is a big believer in fog deployment. A summary of his position is that the purpose of the OC spray is to place a chemical barrier between you and the bad guy so that you can create space to escape to complete safety. If after deployment, it incapacitates the guy that is great. If you spray it and it causes the bad guy to stop his advancement because he doesn’t want to experience the horrible effects, then that is great too. If you get a reputable manufacturer such as items made by Guardian Protective Devices, you will lose little or no meaningful distance in terms of that form of deployment. While impressive that a stream may “go” further, you are not thinking real world where wind majorly impacts the stream. Wind and the fact that bad guys do not typically act alone is the reason why you want fog deployment. You also have consider features like does it have a grip on it so it can be used like a kubaton as well. Does it have gadgets, and buttons and things that inappropriately make it difficult to actually spray when you are under duress and you lose fine motor function?

So, have I made a compelling argument of why a PennLAGO needs to conceal carry OC spray in addition to a firearm? I think so.

So, now you know why you should have it, what to look for, and what to order. Is that the end of the story? Nope. One of the things that amazes me is when people spend $3000 on a handgun like a STI or Wilson Combat 1911 and carry it, but do not train or they buy that gun and keep it on the shelf unloaded and inaccessible. Firearms are not magic talisman whose very ownership will fend off evil. It is a tool. And like all tools, you must become proficient to be safe and effective. The same is true for OC spray. Suppose you buy the best OC spray based on the recommendations above, and you carry it or keep it in the glove box or on the shelf, what good does that do? You need to train with it. This means setting up a target and spraying that target while on the move. You need to understand the best way to mechanically deploy it meaning in a figure 8 or S repeated again and again while going backwards. Don’t go forwards unless you want to be incapacitated too. Remember the goal of this is to stop the bad guy to create space for you to avoid. That chemical wall is the goal. You have to train with it otherwise how do you know your OC spray’s likely deployment characterizes (e.g., how far, how wide) so you can build that chemical wall and avoid being caught in it too.

“Like any other lifestyle commitment, you must realize that your personal defenses are important. Learn the skills, and then practice them. Think about an NFL quarterback with all of the natural ability that he possesses. How often do you think he would be able to connect with a receiver if he only threw the ball two or three times a year? Not very likely is it? Yet, we go to the range, practice tow or three times a year and think we’re going to be good enough to save our own lives. You wouldn’t bet five bucks on the unpracticed quarterback, but many people bet their lives on being an unpracticed shooter every day!”

-Dave Spaulding

Getting in a fist fight might sound glorious, but in truth it is messy and it hurts no matter how one-sided you think you may be able to make it. Plus, with a guy in close proximity and if the fight goes to the ground with you carrying a handgun on your person, it is not inconceivable that what was a fist fight turns into a struggle for a gun and a gun fight. Why not build OC spray into your self-defense profile? It’s the smart thing to do.