Sixth Circuit Judge Jeffrey Sutton has an interesting riff about pepper spray in United States v. Mosely.
Mosely was convicted in federal district court court of being a felon in possession of a firearm. The prosecutor wanted to bump up Mosely’s sentence because he had a prior Michigan conviction for shooting pepper spray at somebody for no good reason.
It’s a crime of violence, the prosecutor argued, that justifies a stiffer sentence under the federal sentencing guidelines. You bet, ruled U.S. District Court Judge Robert Holmes Bell.
Nothing could be more obvious, Sutton agreed:
Why would something that operates effectively as a self-defense shield by “caus[ing] extreme pain and prolonged impairment of bodily organs” … not amount to a crime of violence when used as a sword in the exact same way?
Known as oleoresin capsicum or OC, the active ingredient of pepper spray is an “oily extract” from pepper plants found primarily in Africa, India, Japan and Mexico. … When distilled to create a heavy dose of capsaicin, pepper spray incapacitates its victims. …
The clinical explanation for this effect adds little to the discussion. Pepper spray, one medical journal tells us, “alters the neurophysiology of sensory neurons in the airway mucosa by inducing the release of tachykinins or neuropeptides like substance P and neurokinin A.
“These induce neurogenic inflammation in airway blood vessels, epithelium, glands, and smooth muscle, leading to vasodilation, increased vascular permeability, neutrophil chemotaxis, mucus secretion, and bronchoconstriction.”
Sutton recognized that most of us are not doctors, so here’s his plain-English version:
[P]epper spray may range from 400 to 1,000 times hotter than a jalapeno. People measure the “hotness” of peppers in Scoville units. …
A jalapeno comes in at around 5,000 Scoville units, and a habanero can reach up to 200,000. … According to the Guinness Book of World Records, the world’s hottest pepper is the “Naga Viper,” grown in the United Kingdom, which reached 1,382,118 Scoville units. “Hottest Chili,” Guinness World Records. …
The capsaicin found in pepper spray routinely reaches 2 million Scoville units, and at least one commercially available brand boasts a 5.3 million Scoville unit resin. … Even when diluted, these resins can lead to “[s]erious adverse health effects, even death.”
It’s definitely something you don’t want to put on your tacos to give ’em a little extra kick.
The Michigan Lawyer 