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If someone shoots me with pepper spray, is that not aggravated assault?

nyj wrote:If someone shoots me with pepper spray, is that not aggravated assault?

I don't think so. What part are you referring to?

§ 22.02. AGGRAVATED ASSAULT. (a) A person commits an
offense if the person commits assault as defined in § 22.01 and
the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if:
(1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;
or
(2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed:
(A) by a public servant acting under color of the servant's office or employment;
(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of
official power or performance of an official duty as a public servant;
(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or
(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer.
(c) The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer.
(d) In this section, "security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

Two things jump out here that really bug me. The first being that when we copy and paste statutes, all the spacing just disappears and it becomes even more difficult to read properly. The second the, if I read that correctly, is that it is aggravated assault if someone sprays GigAg04 when he's on duty and in uniform, but not for me. The same crime is treated two different ways based on one's occupation. This goes along with my opinions on hate crimes. The same crime is treated differently based on who is committing the crime and who they commit it upon.

C-dub wrote:Two things jump out here that really bug me. The first being that when we copy and paste statutes, all the spacing just disappears and it becomes even more difficult to read properly. The second the, if I read that correctly, is that it is aggravated assault if someone sprays GigAg04 when he's on duty and in uniform, but not for me. The same crime is treated two different ways based on one's occupation. This goes along with my opinions on hate crimes. The same crime is treated differently based on who is committing the crime and who they commit it upon.

Could you expand on that part of the quote highlighted in red?

Charles L. Cotton wrote:In my CHL classes and in my seminar on Texas self-defense and deadly force laws, we discuss a concept I call "society's box of expectations." The concept deals with the public's perception of what is acceptable in self-defense scenarios. When our actions are outside this box of expectations, .

So, is this also known as the "Did he need shootin'" rule?

C-dub wrote:Two things jump out here that really bug me. The first being that when we copy and paste statutes, all the spacing just disappears and it becomes even more difficult to read properly. The second the, if I read that correctly, is that it is aggravated assault if someone sprays GigAg04 when he's on duty and in uniform, but not for me. The same crime is treated two different ways based on one's occupation. his goes along with my opinions on hate crimes. The same crime is treated differently based on who is committing the crime and who they commit it upon.

You should have seen the cut and paste before I cleaned it up!

I understand your position on "hate crimes" and I agree. I don't think that having additional statutes to protect LEOs while they are on-duty to be in the same category as race or "sexual orientation".

When I used to teach in a police academy we simplified this question. If the suspect is using his hands you use your baton. If there is anything in his hands you use your gun. (this was long before we had tasers)

The test for the use of force or deadly force is simple, Are you in fear of your life? Just remember that you will make that decision in nano seconds, the police, the district attorney, a judge and jury will take years to second guess your decision.

WildBill wrote:

nyj wrote:If someone shoots me with pepper spray, is that not aggravated assault?

I don't think so. What part are you referring to?

Fine! How about plain ol'e assault then?

nyj wrote:If someone shoots me with pepper spray, is that not aggravated assault?

If you have asthma or copd pepper spray might kill you

A person is guilty of aggravated assault if he or she attempts to cause serious bodily injury to another or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon. In all jurisdictions statutes punish such aggravated assaults as assault with intent to murder (or rob or kill or rape) and assault with a dangerous (or deadly) weapon more severely than "simple" assaults.

Please note the difference between the generic definition of aggravated assault and the Texas legal definition. Our law says:

Sec. 22.02. AGGRAVATED ASSAULT.
(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.

In Texas, you must cause serious bodily injury or you must use (including showing) a deadly weapon. An attempt is a different, lower grade of offense. Also, recklessness is enough for any part of the offense since no culpable mental state is explicitly stated.

I am not sure that the chance of pepper spray causing serious bodily injury is high enough to make its mere use aggravated assault. If the serious injury does occur, then it certainly is aggravated though.


Steve Rothstein


PS. In answer to another post, I agree that it would certainly help if we could get the spacing to work when quoting laws.

Again, if someone is using a pepper spray on me or anyone of my family member (Deadly, due medically documented Asthma), unprovoked, a guy who came from nowhere, never I saw said actor, never met him. I assume that I am being robbed, or imminently being in the process of being kidnapped, disarmed and shot with my own gun. I am shooting, Period.

Note: It is another story for another day, do not let any person give you a drink and you do not trust said person. At restaurants we do it almost daily and we have not single iota to trust the waitress .

dac1842 wrote:When I used to teach in a police academy we simplified this question. If the suspect is using his hands you use your baton. If there is anything in his hands you use your gun. (this was long before we had tasers)

Are you from Chicago?

They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. *That's* the *Chicago* way!

I look at it this way. I have never been pepper sprayed so I don't know what is being sprayed. It could be acid or any other harmful substance that I'm being hit with. With that I'm in fear of my life because it may incapacitate me or cause permanent harm. Don't ask me to analyze the spray in that situation. I just need to get the threat/pain stopped.

sjfcontrol wrote:

dac1842 wrote:When I used to teach in a police academy we simplified this question. If the suspect is using his hands you use your baton. If there is anything in his hands you use your gun. (this was long before we had tasers)

Are you from Chicago?

They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. *That's* the *Chicago* way!

Kilvinski's law states, "Treat everyone the same, white, black, brown. Be civil to everyone, courteous to nobody. We're supposed to use equal force, you know. Rule 2 of Kilvinski's law. If a dude uses his fists, you use your stick. If he uses a knife, you use your gun. Cancel his ticket right then and there. If everything else fails use a brick, anything you can get your hands on." - The New Centurions (1972 Film)

A good movie based on a great book written by Joseph Wambaugh, an ex-LAPD officer.

[youtube]http://youtube.com/watch?v=bOfJ13oHLig[/youtube]

nyj wrote:Fine! How about plain ol'e assault then?

If I pinch you because you're not wearing green on St Pat's day, that could be simple assault if it offends you. TPC 22.01(a)(c)