Answer: yes, you can go to jail for pepper spraying someone, but you won’t always go to jail for pepper spraying someone.
In the article that follows, we’ll explain.
Can You Go To Jail For Pepper Spraying Someone? (Explained)
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Introduction To Fighting Crimes
The criminal implications for using pepper spray are actually quite broad.
First and foremost, some locations do not allow the possession (and consequently the use) of pepper spray.
Some states also make the use of pepper spray against specific individuals (such as police officers or emergency responders) a very serious crime.
Absent specific laws about the possession or use of pepper spray, the criminality of pepper spray use depends heavily upon the circumstances of the use of the weapon, and the outcome of the incident.
Most states have established misdemeanor and felony offenses to penalize the various outcomes of a fight (pepper spray or no), though some states may make the lesser fights a civil infraction (like a ticket).
For misdemeanor and felony offenses, jail is a possible punishment, though the maximum jail sentence varies with the seriousness of the offense (and the state).
For civil infractions, jail is not a potential penalty.
In a fight, the parties touch each other, hurt each other, touch other people, hurt other people, cause a public disturbance, and cause damage to property they do not own.
The same is true when pepper spray is being used, as one individual causes a harmful or offensive touching, causes pain, causes a public disturbance, and may even result in damage to property.
Potential charges when pepper spray is deployed include:
- Physical Harassment: offensive physical touching that doesn’t involve injury
- Assault: physical touching that involves pain or injury, and the seriousness of the assault charge increases depending on the amount of pain or injury caused
- Reckless Endangering: putting other people in harms way due to behavior
- Criminal Mischief: for causing property damage, and gets more serious the more damage is caused
- Disorderly Conduct: for all the disruption, shouting, noise, and hullabaloo
There may also be pepper spray specific charges in specific states.
All of these charges are at least the level of a misdemeanor, and thus have jail as a potential outcome.
Public intoxication is another potential offense if the fight involved alcohol.
If the fight involved any sort of racial targeting, various ‘hate crimes’ could also be charged.
What If Self-Defense Was Involved?
Self-defense is not a get out of jail free card, and it won’t stop a prosecutor from filing criminal charges against an individual.
Instead, the doctrine of ‘self-defense’ is an affirmative defense, meaning that defendant asserts it during the trial, and presents evidence that he did in fact, act in self-defense.
While the exact language in each state differs, in general, a citizen is allowed to respond with force if he reasonably believes he is in imminent danger of serious physical injury. The amount of force he is entitled to use needs to be commiserate with the force being applied or threatened.
For example, if Citizen A is pushing Citizen B around and talking trash to him, the doctrine of self-defense may not prevent Citizen B from being prosecuted if Citizen B pulls out a gun and shoots Citizen A.
In the situation of pepper spray, the amount or threat of physical force would have to be commiserate with the use of pepper spray in response.
If the threat of force or the force itself did not rise to the level of utilizing pepper spray in response, the doctrine of self-defense may not succeed.
If an individual was charged with crimes relating to the use of pepper spray and he believed that he was acting in self-defense, the defendant should seek the assistance of an experience criminal defense attorney, as proving this affirmative defense can be challenging and technical.
Will You Go To Jail For Using Pepper Spray?
While jail is a possibility in any fighting case, whether the parties (one or both) actually go to jail is much more nuanced.
First of all, the prosecutor has to make charging decisions.
The circumstances of the case, as well as whether some of all of the witnesses were intoxicated at the time of the incident, will influence the prosecutor’s decision to move forward.
He has to believe he can prove the charged offenses beyond a reasonable doubt. And if he can’t do it with the evidence he has, then he won’t move forward.
But let’s say one or both of the fighters get charged with crimes.
Offenders do not go to jail automatically for breaking the law every single time.
Instead, during sentencing process, many factors are considered, such as:
- how bad the fight was
- how badly anyone was hurt
- how much property was damaged
- whether self-defense was involved
- whether the offender is prepared to pay for damages
- whether this is a first offense
- the most recent previous criminal conviction, and how many previous convictions there are
- whether the offender is remorseful
- whether jail will cause the offender to lose his job or place in school
- whether the offender is prepared to enter substance abuse treatment
The judge will make the decision as to whether jail is appropriate in the circumstances, or whether the offender would be better suited to performing community service or other service under the eye of the jail, such as trash clean up/road crew.
The parties (prosecutor and defense) may even negotiate a sentence that seems appropriate and jointly recommend it to the court for consideration.
Thus, jail is definitely a possibility when a fight occurs, but it is hard to say whether jail will result without knowing the global set of circumstances for those involved.
What If Individuals Are Just Goofing Around With The Pepper Spray?
Using pepper spray with permission happens now and again, usually for the benefit of a social media audience.
All you have to do is check out Tik Tok for videos showing off the pain faces and coughing.
Some states provide specific exceptions for consent written into their laws about assault/battery (meaning that if the parties both agree to the harmful physical contact, there’s no crime).
However, these laws do not shield individuals who cause harm resulting in extremely serious physical injury or even death.
Many states (like Oregon) have a statute in place that criminalizes reckless discharge of pepper spray.
Other states may not have an exception for content to what is essentially an assault (intentionally causing someone else to suffer pain or injury).
This means that one of those Tik Tok videos could be utilized as evidence of a crime.
Pepper spray is considered a non-lethal weapon, but can cause serious physical pain, coughing, panic, or even loss of consciousness.
The shock could also cause the recipient to fall in a manner where he is unable to protect his head and limbs, which could also result in serious injury or death.
In rare circumstances, individuals with compromised respiratory systems (asthma, COPD) have even died as a result of exposure to pepper spray.
For these reasons, the cavalier use of pepper spray could result in criminal charges.
For so many reasons, it is a bad idea to goof around with pepper spray.
If you have been charged with crimes from using pepper spray, or you are worried that you will be, conferring with an attorney early on is recommended.
Even if you don’t think you’ll need a lawyer or be able to afford a retained lawyer in your case, early consultation with an experienced criminal defense lawyer in your state could prevent you from making your case worse and give you guidance about what to do next.
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