What constitutes use of pepper spray by a defendant during the commission of a felony?

7. We previously held that the use of pepper spray by a defendant during the commission of a felony may constitute use of a dangerous weapon, defined as "capable of inflicting death or serious bodily injury" for sentencing purposes. United States v. Neill, 166 F.3d 943, 949 (9th Cir. 1999) (citing U.S.S.G. S 1B1.1, cmt. n.1(d),(j)). Admittedly, police use of pepper spray as a tactical tool to effect arrest is distinguishable from its use by a felon during the commission of a robbery. Nevertheless, the evidence in this case reveals that the police sprayed OC directly into some of the protesters' faces from only inches away in much the same manner as the defendant in Neill. And yet, Humboldt County's deputy in charge of chemical agent training testified that spraying OC into a person's face from less than 3 feet is not safe.

7. We previously held that the use of pepper spray by a defendant during the commission of a felony may constitute use of a dangerous weapon, defined as "capable of inflicting death or serious bodily injury" for sentencing purposes. United States v. Neill, 166 F.3d 943, 949 (9th Cir. 1999) (citing U.S.S.G. S 1B1.1, cmt. n.1(d),(j)). Admittedly, police use of pepper spray as a tactical tool to effect arrest is distinguishable from its use by a felon during the commission of a robbery. Nevertheless, the evidence in this case reveals that the police sprayed OC directly into some of the protesters' faces from only inches away in much the same manner as the defendant in Neill. And yet, Humboldt County's deputy in charge of chemical agent training testified that spraying OC into a person's face from less than 3 feet is not safe.