Less than lethal options

[Tweed Ring]

I remember McDonald jumping up and down like a rabbit...

[djthomas]

A ball point pen is not a deadly weapon unless it meets both of the following:
1. Is any instrument, device, or thing capable of inflicting death AND
2. It is designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.

Just about any common object will meet (1). The real jury question is (2). Unless you have specially adapted your pen for use as a weapon, or you possessed/carried it or otherwise used it as a weapon then it's not a deadly weapon because it was not designed to be one.

Actually, *any* object which has been used as a weapon meets that definition once it has been used as a weapon. You concede that (1) is met by virtually any common object. But (2) is met simply by the *use* of an object as a weapon (see the bolder section of your post). In fact, if you carry said ball point pen as a weapon, you're meeting the requirements of both (1) and (2). Even without use or adaptation.

Not quite. Point two is in the present tense, not the past. If I used a pen as a weapon three days ago it's not necessarily a weapon today unless the prosecution can prove that I was carrying it as one or actually used it as one at the time in question. My point about one's history (e.g. Youtube videos) is that the actions "possessed or carried" is going to be subjective because it comes down to intent. That's for the jury to decide. If the actor has a history of carrying something as a deadly weapon the jury can take that into consideration.

There was an incident recently involving a kid with some airsoft or pellet guns on school grounds. Part of his problem stems from the fact that he's produced all sorts of videos on the Internet showing them off and talking about how he carries them for "protection" while doing all sorts of tactical stuff with them. If allowed into evidence those videos could be very helpful to the prosecutor trying to prove mens rea. On the other hand if the kid was attacked by a dog last week and stabbed it with the pen in his pocket I don't think he'd be facing criminal charges whenever he set foot on school grounds with a pen in his possession.

Likewise if I carried a flashlight in my pocket I wouldn't go about telling people that it's my backup head smasher. I'd pleasantly explain that one never knows when they'll drop their keys in a dark parking lot or have something roll under their desk.

[Tweed Ring]

Monadnock Expandable Autolock Jr. Baton. Bought another one this afternoon, on line, for my friend. It's actually a pointer...just like the 3 foot Monadnock Riot Baton with the rib-spreader ball bearings on each end...that's a pointer, too. Just a larger pointer, for larger topics...

[Rhino]

So for instance if there is a history of you on Youtube showing folks how they can wield a Marriott hotel pen to puncture jugulars.....

You know, these days it wouldn't exactly surprise me to see something like that on YouTube.

[BriKuz]

So, if a state law regulated edged weapons simply by saying anyone with demonstrated proficiency (i know, i know!) or over the age of 13 may bear any edged or other arm under a length of 10m in all areas of the state with the exception of (insert firearms prohibited areas). A person with a Licence to Carry a Concealed Handgun under (insert CHL ref) may ALSO carry any other arm discreetly.

There! Now it is regulated on a state level!

[djthomas]

So, if a state law regulated edged weapons simply by saying anyone with demonstrated proficiency (i know, i know!) or over the age of 13 may bear any edged or other arm under a length of 10m in all areas of the state with the exception of (insert firearms prohibited areas). A person with a Licence to Carry a Concealed Handgun under (insert CHL ref) may ALSO carry any other arm discreetly.

There! Now it is regulated on a state level!

Potentially yes. The court fight will be over whether it has been comprehensively regulated. Mere state regulation alone isn't sufficient to overcome home rule.

[gilly32]

Can a person with a non-expungeable felony on their record carry any non-firearm options for self defense?

Baton? Taser? BB Gun?

[djthomas]

Can a person with a non-expungeable felony on their record carry any non-firearm options for self defense?

As long as the weapon in question is not a firearm as defined by law they may carry any weapon that a non-felon can carry. A felon doesn't have any more right to carry a non-firearm weapon than a non-felon.

With that said carrying non-firearm deadly weapons concealed in Ohio is prohibited by state law and possession/carry may be completely prohibited by local law. However a felon may have a stronger showing in the affirmative defense department than a similarly situated non-felon.

Let's say that two pizza delivery guys are arrested for carrying the same tactical 4.5 inch assisted opening knife at 2AM in a bad part of town. One is a felon and the other is not. Let's assume that the felony was 20 years ago and totally non-violent, say bank fraud (in other words, it's irrelevant to the situation at hand). Both are entitled to raise an affirmative defense concerning the carrying of a non-handgun weapon. I could see a judge saying "yes, a prudent person in your situation should be armed." The non-felon's affirmative defense might fail if the judge feels that a prudent person in his position would obtain a CHL and legally carry a handgun. On the other hand the felon doesn't have that option so he may be more likely to succeed in asserting an affirmative defense.

[Brian D.]

Let's say that two pizza delivery guys are arrested for carrying the same tactical 4.5 inch assisted opening knife at 2AM in a bad part of town. One is a felon and the other is not. Let's assume that the felony was 20 years ago and totally non-violent, say bank fraud (in other words, it's irrelevant to the situation at hand). Both are entitled to raise an affirmative defense concerning the carrying of a non-handgun weapon. I could see a judge saying "yes, a prudent person in your situation should be armed." The non-felon's affirmative defense might fail if the judge feels that a prudent person in his position would obtain a CHL and legally carry a handgun. On the other hand the felon doesn't have that option so he may be more likely to succeed in asserting an affirmative defense.

I am in no part disagreeing with your take here. However, another part of this scenario that always bothers me is because one big reason the non-felon doesn't get a CHL is that he knows his employer would fire him for carrying on the job, where (in the delivery guy's opinion) it's the time and place he's most likely to need a gun.

Come to think of it the employer would fire the knife-toting felon employee in this hypothetical too, even if the court did clear him through the affirmative defense argument. Can't have an employee saving his own or someone other innocent person's life like that!

[djthomas]

Come to think of it the employer would fire the knife-toting felon employee in this hypothetical too, even if the court did clear him through the affirmative defense argument.

Exactly - I've never seen a company policy that prohibits guns but nothing else. Not that there aren't any out there but every one I've ever seen states that weapons are prohibited. Sometimes they'll enumerate a few examples but always use the "including, but not limited to" descriptor.

The only saving grace for the knife toter may be that you can convince HR that you possessed it as a tool needed to do your job and it just happened to be the only thing at hand when you were under assault. The affirmative defense doesn't care a wit about an employer's policy. It only cares that "the weapon was carried or kept ready at hand by the actor for defensive purposes while the actor was engaged in or was going to or from the actor's lawful business or occupation, which business or occupation was of a character or was necessarily carried on in a manner or at a time or place as to render the actor particularly susceptible to criminal attack, such as would justify a prudent person in going armed."

There are many occupations that would "justify a prudent person in going armed" notwithstanding some HR policy to the contrary.

I once had a CHLer in an accident who was carrying in a company vehicle. He was was freaking out that I'd tell his boss. I told him that my only concern was the criminal matter before me (i.e. traffic citation and subsequent report) and that his compliance or non-compliance with his boss's policies was a matter between them. Since his possession of the firearm had nothing to do with the matter at hand there was no reason for it to be included in the report and further because the uniform traffic ticket doesn't have a box indicating whether the person was armed it wasn't my concern.

He was probably the happiest guy who ever got a citation.

[Tweed Ring]

HR policies I wrote for my employer, and others, forbade the possession and/or use of any and all weapons. There was a list, but also a "not limited to" clause.

[ArmyMedic90]

One thing to be weary about when carrying less lethal options is the use of force continuum. Say you're not a LEO and you're lawfully carrying a concealed handgun, an ASP, and OC spray.

You find yourself in a situation where you shoot and kill a perp. If I was a betting man, I'd be willing to bet that the prosecution attorney will put you through the ringer as to why you didn't use your less lethal options first.

Also (as already stated), Ohio issues Concealed Handgun Licenses, not Concealed Weapon Licenses. Be careful of what you're putting in your pockets. A LEO stops you and you have a handgun and your valid permit on you? You'll probably be thanked for informing the LEO that you're lawfully armed with a handgun (or at least I would thank you). You're stopped by a LEO and you're packing an ASP or a large fixed blade knife? You might have some explaining to do.

Just my opinion though.

[DontTreadOnMe]

You find yourself in a situation where you shoot and kill a perp. If I was a betting man, I'd be willing to bet that the prosecution attorney will put you through the ringer as to why you didn't use your less lethal options first.

Practically any decision can be spun against you. "So why didn't you also carry pepper spray? You were just looking for an excuse to shoot someone!"

There's no legal requirement to use non-deadly force, if available, in response to a deadly threat. Either you were justified in using deadly force or you weren't. Having, or lacking, a non-deadly force option doesn't change that.

[Tweed Ring]

Yet, a solid, and perhaps winning argument can be made against a trained individual who fails to utilized a less than lethal option, if such option is available to the individual.

I am a senior level baton instructor trainer. Frankly, I am more competent with, and have many more hours of "clutch-time" with a baton, than with a firearm. If the Ohio law would be changed, I would tend to carry my expandable PR-24 Baton in lieu of a firearm. I like some firearms, but I revere impact weapons for their simplicity and versatility.

But, I rarely have one of my many batons available, if I am carrying my revolver. I have been taught my years of documented baton instructor training, and my training to be an expert witness on the Use of Force Continuum regarding application of blunt trauma, can be used against me... if I choose to use a firearm for self-defense, and not the device with which I am an expert.

I was so trained by Mas Ayoob, and others at that level of skill and proficiency. However, I would be willing to listen anyone providing a converse argument, providing that individual has the skill levels and hours of winning court room expert testimony as does Mr. Ayoob.

[TJW815]

To the original poster:

I have a bad knee and occasionally I need to take with me a walking stick. I suppose that could be used as a self defense tool.

In school I often carried heavy textbooks, I suppose one could bash someone's head in with one.

If you put your mind to it, you could make anything (nearly) into a tool for self defense. Got a toothbrush? Jab them in the eye or if possible behind the ear. Some people carry a roll of coins in a pocket in case of emergency (phone booths and such) those inside your fist is like punching someone with a brick. Keys in your hand with them sticking through your fingers makes for a pretty mean weapon but can really mess up your palm (a small flashlight in your key ring works similar to the roll of coins)

People that have hand to hand training have been taught to use the tools at your immediate disposal.

Sometimes though, retreat is just as respectable an option as fighting.