Defending Pepper Spray Use
An Interview with Attorney Penny Dean
Two winters ago, in a large northeastern city, a Network member was shoved against a wall and choked. Although licensed to carry a concealed firearm, our member had a canister of oleoresin capsaicin, pepper spray, which was used to break free of the attacker. Any use of force in self defense needs to be reported to law enforcement. Our member rightly called 9-1-1 and as a result, the man who attacked our member was taken to an emergency room complaining of burning eyes and blurred vision, while our member was arrested and taken to jail.
Our member was released later that day. The following day, our member called Network President Marty Hayes for help before an arraignment scheduled on a Monday, two days later. Reaching out to one of the very best in that region, Hayes immediately telephoned attorney Penny Dean, who, although it was the weekend, contacted our Network member to see what she could do to help. Licensed to practice law in a number of states, Attorney Dean’s law firm is located in New Hampshire, not the state in which the incident occurred, but she agreed to travel to the member’s location.
We turn now to Attorney Dean in a discussion intended to help Network members understand why vigorous legal representation–even after using pepper spray–is so very essential. At our member’s request, we must carefully shield details that might lead to identification. This is sensible, owing to concerns about reprisals, the potential of civil litigation and adverse affects on employment. Thus, Penny Dean’s efforts in this case, will tell the story.
eJournal: First, Penny, let me thank you sincerely for offering your valuable time to help Network members understand what you did in this case and telling us why expert legal representation was essential to keeping our member from being punished for steps taken to avoid being choked into unconsciousness. What happened after Marty called to ask if you could assist our member?
Dean: I called the client and we spent 11-12 hours on the phone over two days prepping for Monday’s hearing. Arraignment and bail determination or redetermination can be real death traps. The client had to send me a biographical life history, literally a résumé, and lots of other documents.
eJournal: Did our member have that kind of documentation ready for you? I ask, because I doubt I would have!
Dean: No, the member had an older résumé that we were able to polish up, but no personal family history. 99% of people don’t have those, so we got that done. Then on Monday, when I went to the arraignment, there was a huge blizzard. Mine was almost the only vehicle on the road and my travel time was literally double the normal commute.
eJournal: The statutes cited in charging our member were very broad. I’m hoping you can give us some insight into the accusations and maybe explain the rationale behind them, because I had trouble correlating the member’s actions with the charges.
Dean: Here’s what the complaint says: “Did on [date], by means of a dangerous weapon, Mace®, assault and beat [name] in violation of [specific statute number and section]” Then they give the penalty and that is very helpful: “State prison not more than ten years, or house of corrections, not more than two and a half years, or not more than a $5,000 fine or both such fine and imprisonment. District Court has final jurisdiction under [state code].” That is count one.
The member was charged with two counts. The second was “assault and battery [cites chapter, section, and subparagraph], on [date], did assault and beat [name] (arm was grabbed). Penalty, house of corrections not more than two and a half years or more than a thousand dollar fine.” That means you can get sentenced to two and a half years and you will lose your Federal gun rights for putting your hands on other people. Many people do not think a state law misdemeanor can cause you to lose your firearm rights. It can. Any crime for which you could have received more than two years’ imprisonment will cost you your firearms rights even if you never serve a day.
So our client was potentially facing a total of 12½ years. Most people would consider that a long period of time, especially as you have asked, “For pepper spraying someone?” When I tell my clients, “Know before you go,” I mean if you do not know the consequences of your actions on every stupid little thing, do not do those actions. Do not do them because the consequences can be much, much, much more severe than you ever imagined in your wildest nightmares. You must decide if you want to pay that price. That is a decision for each person to make.
eJournal: Fortunately, our member had extensive training and background and knew the local laws. While cornered and unable to escape, that knowledge no doubt led to timely use of the pepper spray before the member was choked into unconsciousness.
Dean: I teach the legal part of many firearms classes, and after I’ve scared the students until some say they just won’t carry a gun, one of my favorite instructors always asks me, “Knowing all these scary things, is it worth carrying a gun?” And I always say, “It is absolutely worth it, but you have got to think about this whenever you decide to clear leather.” Then I add, a fight avoided is a fight won. No matter how bad the other jerk is, sometimes winning is walking away and getting the heck out of there! Listen, you’ve got to ask yourself, “Is it worth it?”
eJournal: Well, like I said, our member was out of options. I’m left wondering how could the law consider defensive use of a chemical deterrent assault and battery?
Dean: Anything can be assault and battery. I am not exaggerating. Let’s say I have a really hot cup of coffee as was the situation with the infamous McDonald’s spilled hot coffee verdict. The secret to better coffee is brewing it hotter, so if I get the hottest, best coffee and someone does something and I throw hot coffee in their face, I had better be ready to justify that, because I am going to be charged with assault with a dangerous weapon because it is essentially boiling water. In NH, for example, anything in the manner that it is used or intended to be used, can be considered a deadly weapon. It depends on how you use that item.
eJournal: I’ve learned to adjust my terminology about intermediate physical force options, including pepper spray. Because we’ve been told that pepper spray won’t cause long-term harm, many have given it to family members who were underage or headed for college where guns are prohibited. We need to give instruction, not only in the most effective ways to deploy it, but also in when it is appropriate. How does justification change if facing angry or aggressive speech compared to being flanked by two guys who won’t let a college coed leave? There’s quite a difference in the danger level.
Dean: You know Gavin de Becker’s book, The Gift of Fear? Reading it makes me think that people need to be more and more careful about defining what is a real threat. I think people need to be better at that. It comes down to reading people.
In our society, there are a million people who have allergies and carry inhalers, so we have to be realistic in using pepper spray. Although it is justified and you may save your life, you have to think it could be the same as a firearm, because what if that person has a reaction, or can’t breathe because of that pepper spray? I think you have to ask yourself, “Does this rise to the level that I am justified in defending myself with pepper spray?” In our case, our member was being choked and feared passing out. That’s justified.
eJournal: Did our member’s attacker demand that police arrest our member?
Dean: Yes, implicitly.
eJournal: You know, I’d wondered if the arrest was just the local default response to use of force–with no consideration for who attacked whom? In the Northeast, where you’ve practiced law for 20 years, is that normal?
Dean: Yes, that is SOP–standard operating procedure–sadly.
eJournal: You commented that the State changed prosecuting attorneys mid-case. Did you try to bring the new prosecutor up to speed, or did you just sit back and silently thank them for what they were NOT doing?
Dean: There are two answers to that question. I did thank them for what they were NOT doing, silently, just not orally in public! I was very grateful for that. But I had to do the same things over and over because I would make a request to the prosecutor and initially give them the courtesy and the respect that they are going to be honorable and follow up. But that person would leave and when we were next in court, I’d say to the new prosecutor, “Hey, we are missing XYZ, ABC,” and they would say, “Oh, I don’t see any notes on that.”
Usually when I request information when we’re starting on a case, the prosecutor says, “Oh, yes, we have that information. I just saw it come in. I’ll get it for you.” In this case, what I would get was, “I have no clue whether that information is available or not. I just started this case and I haven’t read the case file.”
Sometimes they would act like it was not important, like, “This is the first time you’ve asked me for that,” and I would have to say, “Well, yes, this is the first time I have asked YOU, but it is not the first time I have asked your office for that information.” So then I’d put it in writing, and I’d say, “On June 4th, I asked your predecessor for X and it didn’t happen. This is really impeding my case preparation. I need that information so I can make determinations and advise my client.”
eJournal: That’s frustrating, but fortunately you understood that this was serious and you didn’t just wait for the State to hand over their version of what happened. You hired a private investigator quite early in the timeline. Why did you feel that was important?
Dean: Oh, yes. If I had been called right after it happened, the PI, photographer and I would have been on the road right then, even if it was 2 a.m. we would get out of our warm beds and go to work.
The PI should be hired yesterday and is worth his/her weight in gold. Witnesses can disappear, the physical scene can change and evidence can be missed. You do not know what will be important, because cases take many twists and turns. Besides, it never hurts for the police department to know that this case will not be a slam-dunk, and the defendant knows his rights, has competent counsel and will be asserting his/her innocence every step of the way. You can never get there too quickly!
You can never have too many photos. You could catch the license plate of a car whose driver is hiding because they don’t want to get involved. In short, hundreds of photos should be taken from every angle and every inch. That is the job of the PI and/or photographer. Typically, you have to walk the area to see what can be seen from which vantage point, but remember there will be more ear witnesses than eyewitnesses. Talk to anyone you see in the area, both visitors and residents.
In the big scheme of things, our case had a relatively small and uncomplicated scene. Nonetheless, the second time I was there for court, I went to the scene and I spent two or three hours there. I needed to look over everything; I needed to check what you could hear. I had the client in this case stand in a particular area where the event had happened and yell the same things yelled during the incident in the same tone of voice, as best as we could recreate (understanding what happens under fight or flight). I would go to different areas and listen and see what I could hear, if anything.
We chose to do this at that particular time because it was the same day of the week and the same time of day that the event had happened. That matters! That matters a lot! The client believed that it was as close as we could replicate to a similar level of foot traffic, so there was the same level of background noise. We spent quite a bit of time making sure the same doors were open or closed, because it is the little things that really can matter.
We determined the acoustics and physical space made it unlikely there were any more witnesses, however, you have to be careful. If a witness hears only a select portion, they could be a bad surprise witness against you. If anything is taken out of context, what was said can appear different than it was. For example, I didn’t want the prosecution to come up later and say, “We have Sally Lou and she is an ear witness who heard A, B and C.” Statistically speaking there will be more ear witnesses than eyewitnesses. I wanted to see what ear witnesses potentially were available. Were we missing any? We had to know this so the PI could track down everybody he could.
eJournal: Without divulging private details, how did your investigator’s discoveries guide your interaction with the courts on behalf of our member?
Dean: In addition to evidence that the alleged “victim” had assaulted my client, we found out details about whom the alleged “victim” hung out with, employment history, and many details about the man who was with him who had several felony convictions. All this allowed me to approach the prosecutor to ask for a hearing to see if the alleged “victim” would assert his Fifth Amendment rights against self-incrimination regarding the injuries he had inflicted upon my client. It also allowed me to present the bad facts about the witnesses the state would have to rely on, and how the jury would view the word of convicted criminals against my client’s pristine record.
eJournal: While you and the PI were digging up the underlying facts, what was happening in the courts by way of hearings, court filings and requests that you were making?
Dean: I was attending lots of hearings, and filing requests including one for clarification of bail conditions, filing what is called Notice of Affirmative Defenses of Self Defense, and making a lot of requests for discovery and a request for a view. This was only the beginning, had we gone to trial many more would have been filed.
eJournal: Yes, I noticed that you filed a motion requesting a “view.” Tell us, if you would please, why that was important.
Dean: In the interest of protecting identities, let me speak generically about a view. I have viewed a lot of scenes where crimes happened. Even if you give me the best photographs and the best aerial view—hundreds, even thousands of photographs—in order for me to see everything and make sure I don’t miss anything and make sure I understand how everything worked, I have to physically walk through the scene myself. The jury needs to do the same.
Here is my thought process: We are always going to tell the truth, although the prosecution may sometimes lie, they play games with the truth, they play fast and loose. They really mess with you if they want a conviction badly enough. So, I want the jury to be able to see everything, so they can think, “Wait a minute! We walked through that scene, what the prosecution is saying is not possible there.”
I cannot imagine not having a view. I have never had a case that I did not request a view, although I have been denied a view. They might say, “Because it is not relevant. The jurors can figure it all out from photos.” I think that is a cop out and I make a big stink about that! I say, “If we lose, this is grounds for appeal!” Trust me, I am on my feet, throwing fits.
eJournal: Who, besides the jury, goes along on a view? Are judges, attorneys for both sides, and security taken along, too? What if the incident in question took place in a sketchy part of town? At night?
Dean: Yes, you need absolute security: security for the court, security for the jurors, and we are not just talking about one or two bailiffs, we are talking about some staff because you are taking jurors to who knows where.
eJournal: Does your client go out to the scene with that group?
Dean: I always have my clients go with the group because the client has the right to be present at all proceedings. The client stays beside you, looks nice, and doesn’t say a word. I tell them I want no smiles on their face, no expressions, no talking and their cell phone will be off. You behave very properly because every nano-second the jury is observing you and judging you.
I instruct my clients, that they are to be human and they are to do the courteous thing. Sometimes clients who would normally open the door for an old lady or help a disabled person are so paralyzed by this process that they do nothing. All those things sound simple, but if they happen, I believe, they can make a difference in how your client is judged.
eJournal: Does the court place restrictions on what the jurors are allowed to view at a scene? The logistics seem challenging, because in the case we are discussing, you would have taken a large group into a fairly small, constricted area.
Dean: Or, sometimes you are taking them into a private home. I have a private investigator go through the scene in advance, making sure that nothing has changed and that there are no snafus. We don’t want ten empty beer bottles all of a sudden appearing at the scene. Once a juror sees that, they now have an impression of our client that I don’t want. You cannot unring a bell.
Each judge has a different set of rules about how things should be conducted at the scene. For example, I’ve never seen testimony allowed at the scene. Never. The lawyers are allowed to point things out to the jurors. I don’t say, “There are ten windows,” I have to say, “Please note how many windows there are in this room.” “Please note where this couch is positioned,” things like that will allow me to fill in testimony later, but testimony is not allowed at the scene during the view.
Views are critically important and you have to make all of these arrangements in the beginning. The lawyer has to get the jury to the scene, and the client has to pay, so you have to budget for that. In my experience, most courts have an approved bus service that you are allowed to use for juries, which means you have to call them in advance and make sure they have got a bus ready for as many people as you are going to take to the scene. You have to plan months in advance. Everything has to be in place.
I have developed a checklist over the years, because I determined very quickly that I am human and I can make a mistake and that mistake could affect my client. My checklist is eight pages long. When I get a new case, I print the checklist and I put it in the front of the file folder on the left side of the pleading file and I go through and either I put a line through an item if it is not relevant, or a check that I’ve done it. On that checklist, a view is just SOP–I think it is malpractice not to ask for one. It is so critically important.
eJournal: Added to your request for a view are requests for the documents, reports, videos and communications recordings from various authorities. The numbers are mind-boggling.
Dean: I asked for information from every government agency I thought might have any records about this incident–dispatch, sheriff and 9-1-1 communications because you can never assume you know what one agency may not have or what another may have! You cannot overlook any options because your client’s freedom and very life depends on you turning over every stone.
eJournal: What detail were you seeking?
Dean: I’m looking for things that don’t make sense to me. If I am reading everything and I go, “Yeah, yeah, yeah,” well, OK. But if I’m reading something and I go, “Huh?” then maybe there is something I need to look into more closely. In our case, the authorities originally wouldn’t give me not only the client’s second 9-1-1 call, they also would not give me the alleged victim’s 9-1-1 call. That made me ask, “What the heck?!”
According to the phone bill, our client had made two 9-1-1 calls. The first call was 21 minutes before the second. To make it as easy for the police as I could, I asked, “I believe there are two 9-1-1 calls made from this number which is my client’s number, made at this time and lasting this long.” The client had cell phone records, so I knew the times and I knew exactly how long the calls lasted.
They came back and gave me the first 9-1-1 call and then eventually the second one. Do you know why they didn’t want to give us the second call? Because it tells that they didn’t respond for all that time. Our client would not have been calling 9-1-1 if police had already been there!
eJournal: Why do you give retrieving 9-1-1 records such immediate priority?
Dean: Even though the prosecution has the duty to preserve all exculpatory evidence, they do not always do so. Judges often put the burden on the defendant, and they’ve asked me, “Attorney Dean, did you request those 9-1-1 call recordings?” I say, “In fact, Your Honor, I did that the day I was retained.” Most judges who are being fair will say, “You tried, didn’t you?” and I say, “I sure did,” even though they are supposed to preserve it. That’s why if the prosecutor starts messing with things, most judges will go, “Wait a minute!”
Here is what I did in our case: I sent a fax and wrote a letter to all three places that might or might not have these communications; I also sent an emergency communication to preserve to the trial court. Every department has different 9-1-1 preservation systems and this varies state by state, too.
I have a case in a different state where the client called 9-1-1 and when I asked for the call recording, I was told that it went to a very small department that is closed on weekends. So I said, “Well, the client called 9-1-1 and it was answered.” That department told me that on the weekend the county would have answered the call. I was glad they told me, because I was able to quickly ask the county for the 9-1-1 recordings and they agreed to send them to me.
Had I not asked, those recordings would have been lost, because call records are only preserved for between ten and thirty days. If you take the average client who gets arrested and arraigned, they may not have their next court date for up to 45 days. They may think, “Oh, I’ll get a lawyer before that court date,” but even if the lawyer takes action the very day you hire them, some of those recordings may already be gone.
eJournal: The Network pays an attorney to get to work ASAP as a key element in our membership benefits. We worry that people wait to hire an attorney because they don’t have the money. Legal issues rarely go away on their own, and if ignored grow more serious—like losing the records of the true victim’s call for police help.
Now, there is a very long list of additional steps you took to protect our member’s rights after the defensive pepper spray use. Out of respect for our readers’ time, I’d like to take a break here, and come back with the second half of this story next month.
I really appreciate not only all the time you put in defending our member, but just as much, I am grateful for the time you’re taking to explain the reasons you implement certain protections on behalf of clients. I’d like to make sure we hold reader attention through the second half of those steps.
Attorney Penny Dean is a well-known name in Northeast U.S. gun rights litigation, and has been a Network affiliated attorney since 2008. She practices law in NH, ME and MA and is admitted to all federal and state courts in those states as well as the First Circuit Court of Appeals, the United States Supreme Court and the D.C. Circuit. In addition to her busy law practice, Penny is a frequent media consultant on gun rights and firearms issues, and is well known by students of firearms courses at which she teaches the legal segments of the instruction. Enjoy her blog posts at http://www.pennydean.org.
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