Self Defense? (person exposing themselves to another)

[dravnx]

There have been reports of a person exposing himself along a popular hiking trail. A few posters have mentioned they carry pepper spray and one poster mentioned they always hike with their German Shepherd. Would someone exposing themselves be considered assault and would it be OK to pepper spray or have you dog attack them? IMHO, unless you are physically threatened, you cannot use violence.

 

[295566]

You're correct. Exposing themselves does not meet the requirements of assault.

CHAPTER 9. Assault and Battery [240 - 248] ( Chapter 9 enacted 1872. )

240.
An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

 

[bojangle]

It depends.

The situation you described would be misdemeanor indecent exposure. If the man stood there, some distance away, and did not make any advances toward the victim, they'd probably be committing a crime if they pepper sprayed him or released a dog on him. However, it could change in a split second. If he blocked their path, advanced towards the person, or attempted to grab them while exposing themselves, that could be interpreted as a felony assault with intent to commit rape. So in circumstances such as those, the use of pepper spray or a dog just might be justified self defense.

220(a) (1) PC Except as provided in subdivision (b), any person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for two, four, or six years.

Just keep in mind that self defense is a legal defense in court for committing what is otherwise a violent crime. One can act in self defense and still be arrested for a crime. If the officer investigating the case is relatively certain the acts were self defense, the officer probably won't make an arrest. But if there are conflicting statements or other factors, an arrest could be made. In that case, it would be up to the defendant to prove that their actions were justified self defense in court.

 

[Shaggy]

Following up on what bojangle said, I’ll take it a step further.

If dude whips it out and was within ~15ft, I’d recommend giving him a clear command to “Get back!” and display your pepper spray. Give him a few seconds to process and respond/retreat. If he did anything else but what you tell him, I’d be 100% OK with you pepper spraying him and then running to safety.

Two key points: Give him the command first and give him an opportunity to flee. If pepper spray is used, as soon as you are clear, you run to safety also.

It’s difficult to articulate that you feared for your safety and used a level of force when you pepper sprayed and then kicked someone’s ass. Pepper spray to create time and distance to flee to safety.

Then call the police to report the incident. Be honest about what went down and don’t lie or try to conceal any details.

Use of a dog as an application of force is a much more significant level or force and more factors need to be considered before deploying one, such as:

Level of training of the dog?
Level of training of the owner/handler?
Will the dog acquire the correct target?
Will the dog actually bite?
Will the dog bite no-go zones on the bad guy? (Face, neck, groin, etc...)
Will the dog release when told?
Will the dog recall if it gets loose?

Unless your dog is a highly trained sporting dog (Schutzhund, KNPV, FRS, etc...) I think there is too much liability for Joe Citizen to be releasing his attack dog in public. There is more to using a dog as a force tool than just owning a German Shepherd.

 

[budgie45]

Is it illegal to pepper spray someone

 

[Shaggy]

Is it illegal to pepper spray someone

Maybe

§ 22810. Notwithstanding any other provision of law, any person may purchase, possess, or use tear gas or any tear gas weapon for the projection or release of tear gas if the tear gas or tear gas weapon is used solely for self-defense purposes, subject to the following requirements:

(a) No person convicted of a felony or any crime involving an assault under the laws of the United States, the State of California, or any other state, government, or country, or convicted of misuse of tear gas under subdivision (g), shall purchase, possess, or use tear gas or any tear gas weapon.

(b) No person addicted to any narcotic drug shall purchase, possess, or use tear gas or any tear gas weapon.

(c) No person shall sell or furnish any tear gas or tear gas weapon to a minor.

(d) No minor shall purchase, possess, or use tear gas or any tear gas weapon.

(e) (1) No person shall purchase, possess, or use any tear gas weapon that expels a projectile, or that expels the tear gas by any method other than an aerosol spray, or that contains more than 2.5 ounces net weight of aerosol spray.
(2) Every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that states: "WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous -- use with care."
(3) After January 1, 1984, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that discloses the date on which the useful life of the tear gas weapon expires.
(4) Every tear gas container and tear gas weapon that may be lawfully purchased pursuant to this section shall be accompanied at the time of purchase by printed instructions for use.

(f) Effective March 1, 1994, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall be accompanied by an insert including directions for use, first aid information, safety and storage information, and explanation of the legal ramifications of improper use of the tear gas container or tear gas product.

(g) (1) Except as provided in paragraph (2), any person who uses tear gas or any tear gas weapon except in self-defense is guilty of a public offense and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years or in a county jail not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment.
(2) If the use is against a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, engaged in the performance of official duties and the person committing the offense knows or reasonably should know that the victim is a peace officer, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years or by a fine of one thousand dollars ($1,000), or by both the fine and imprisonment.

 

[budgie45]

Interesting

Maybe

 

[Shaggy]

Interesting

It’s really no different than punching or shooting another person in that respect. If it’s an offensive act, it’s probably illegal. If it’s a justifiably reasonable application of force and in defense of yourself or another, then you’re probably going to be ok.

If someone is punching you, can you punch back to defend yourself? Probably.
If someone is punching you, can you pepper spray them to defend yourself? Probably.
If someone is hitting you with a baseball bat, can you shoot them to defend yourself? Probably.

(Not talking about laws regarding carrying weapons in public, etc... Just the use of force in defense of you or someone else)

 

[dravnx]

Thanks for the informative discourse. You guys stay safe.

 

[scootergmc]

Interesting

It can also simply be prosecuted as a misdemeanor battery as well (242 PC), if the elements are met, which is stupid easy.

In OP's hypothetical, you'd be hard pressed to find a DA who's willing to prosecute a case in which someone pepper sprayed a dude exposing himself, assuming it's legit exposure and not just someone taking a piss break. No jury would ever convict.

However, knowingly letting a dog loose on someone whereby serious or great bodily injury could be inflicted is another story. That sets yourself up for all sorts of problems.

Regardless, civil liability may be the real issue in cases like this.


Edit: I'd spray the dude starting from crotch to face.

 

[NorCalBusa]

"16 months"? Begs the question, how did they come up with that?

 

[bojangle]

"16 months"? Begs the question, how did they come up with that?

1170(h) PC was put in place as a result of AB 109. It is a felony section that is no longer eligible for state prison time. Prior to 2011, all felonies had a sentence of state prison time over a year, whereas misdemeanors were up to a year in country jail.

My best guess is that the legislature wanted to create a wobbler
(felony) with the option of as minimal state prison time as possible. 16 months is over a year, so it would seem to qualify. But I'm just making an edumacated guess.

 

[DucatiHoney]

Following up on what bojangle said, I’ll take it a step further.

If dude whips it out and was within ~15ft, I’d recommend giving him a clear command to “Get back!” and display your pepper spray. Give him a few seconds to process and respond/retreat. If he did anything else but what you tell him, I’d be 100% OK with you pepper spraying him and then running to safety.

Two key points: Give him the command first and give him an opportunity to flee. If pepper spray is used, as soon as you are clear, you run to safety also.

It’s difficult to articulate that you feared for your safety and used a level of force when you pepper sprayed and then kicked someone’s ass. Pepper spray to create time and distance to flee to safety.

Then call the police to report the incident. Be honest about what went down and don’t lie or try to conceal any details.

Use of a dog as an application of force is a much more significant level or force and more factors need to be considered before deploying one, such as:

Level of training of the dog?
Level of training of the owner/handler?
Will the dog acquire the correct target?
Will the dog actually bite?
Will the dog bite no-go zones on the bad guy? (Face, neck, groin, etc...)
Will the dog release when told?
Will the dog recall if it gets loose?

Unless your dog is a highly trained sporting dog (Schutzhund, KNPV, FRS, etc...) I think there is too much liability for Joe Citizen to be releasing his attack dog in public. There is more to using a dog as a force tool than just owning a German Shepherd.

I find this conversation interesting, as it assumes a man is exposing himself to another man, probably of the same size and abilities. I gotta say, as a 115 lb woman, ain't no way I'm gonna let some freak get as close as 15', particularly if I'm on my own. At 150' I'd be uncomfortable and wary--at 15' I'd be ready to kill and feel totally justified in doing so. Not that that would be my first choice of course, but I would absolutely feel as if I had very few options left.

 

[scootergmc]

"16 months"? Begs the question, how did they come up with that?

16 months, 2 yrs., or 3 yrs. is the basic triad choice for felony punishment, no matter whether it's served 1170(h) PC (county jail) or state prison. AB109 did nothing to change this, other than to authorize county jail 1170(h) PC sentences for certain felony crimes. There are many other triads for felony sentences, but the most common is 16-2-3. For the real reason of the arbitrary triads, including the 16 months, you'd have to go back to Jerry Brown's original term as governor when he made the push for determinate sentencing, and read all about the legislative intent. *yawn*

 

[bojangle]

I find this conversation interesting, as it assumes a man is exposing himself to another man, probably of the same size and abilities. I gotta say, as a 115 lb woman, ain't no way I'm gonna let some freak get as close as 15', particularly if I'm on my own. At 150' I'd be uncomfortable and wary--at 15' I'd be ready to kill and feel totally justified in doing so. Not that that would be my first choice of course, but I would absolutely feel as if I had very few options left.

The range for a normal personal carry pepper spray can is only up to about 15 feet away. Any farther than that and it won't reach the target. Whenever I've used it I was closer than that. Just food for thought.

 

[Shaggy]

I find this conversation interesting, as it assumes a man is exposing himself to another man, probably of the same size and abilities. I gotta say, as a 115 lb woman, ain't no way I'm gonna let some freak get as close as 15', particularly if I'm on my own. At 150' I'd be uncomfortable and wary--at 15' I'd be ready to kill and feel totally justified in doing so. Not that that would be my first choice of course, but I would absolutely feel as if I had very few options left.

At 150 feet, I’m not even sure I could tell if a dude’s wenis is sticking out of the zipper of his pants. And I’ve got 20/20 vision....

Also, at 150 feet it’s much easier and reasonable for you to leave to a safer area than it is to hold your ground.

I think you’ll find yourself in hot water if you kill a guy for pulling his wiener out in front of you without any other overt act on his part. Now.... if it turns into an attempted rape or kidnapping, you’ll likely be justified in taking a human life. But without any attempt of a more serious violent crime, that would be ill-advised.

Also, what Bo said about effective ranges of your defensive weapons.

 

[DucatiHoney]

I've actually been attacked, and am in some ways thankful that it happened. I learned a lot and feel it's made me a smarter, more confident person. But part of what I learned is that how one thinks when they're scared is way different than how they think when they're posting here. I don't carry a gun or pepper spray on purpose most of the time for a lot of reasons, but for one, you have to have it at the ready and be prepared to use it, and you have to practice. Cuz when you're scared out of your mind because some loser has his johnson hanging out and you don't know if that's where it's going to stop or not, 15' seems a lot closer than 15'. You're shaking like f_ck. You're aim is waaaaaaay off. You're sweating profusely and shivering. You want to crap and puke all at the same time. I have taken classes and practiced getting attacked by other women in a safe and positive environment, and when you have to go to "that place" to protect yourself, even under very non-threatening circumstances, it's intense. And that's about 1000X less intense than the real thing.

I'm not jumping on anyone's case about anything that's been posted here. It's fantastic info (as usual) and great insight. However, I'm curious to see how much responsibility is put on the person being attacked, when in reality, probably very few people are equipped to think so rationally, even if it's just an innocuous "exposure" situation.

 

[Shaggy]

That’s great insight and it’s extremely valuable to know your own personal limitations and how you react under pressure. But.....

You’re jumping to conclusions with the “attack” part Heather.

The OP was asking about a guy standing in front of you with exposed genitalia. No other information was provided. I’ve been to plenty of calls with weenie waggers who never attempted any violent sexual attack and just want to stand there with their wiener out or jerk it in public. Indecent exposure happens much more frequently than sexual battery or attempted rape.

In my opinion, you’re ok to pepper spray and guy just standing there with his genitals exposed and not doing anything else to advance towards you.

 

[DucatiHoney]

I didn't jump to conclusions, but I could see how you read that into my post. What is inferred is that a person like me pretty quickly goes from "I'm looking at this guys' junkpile in the middle of the woods" to... "attack". I just assume that it's not going to end at his dropping his pants and walking away. I don't think that's necessarily an inappropriate reaction. What I'm getting from this thread is that the police and law think differently, and I wonder why that is.

I didn't think I was going to be attacked when I was, by the way. A guy in front of me stopped to tie his shoe and I walked around him. If he had been standing in the middle of the sidewalk with his pants down, I probably would have been on much higher alert. Just different perspectives...

 

[295566]

I think, from the hypothetical example you've given above, the problematic part is that you're the one escalating it past exposed willies. If he was advancing toward you, or making threatening statements, or something else, sure. But If he's just standing there jackin' it, deadly force is definitely not an appropriate reaction.