Illegal Use of Tear Gas - CA Penal Code 22810 PC
Self-defense spray cans are commonly used today, typically containing pepper spray, tear gas, or both. In California, possessing tear gas is legal if it is properly labeled with required warnings and is used solely for self-defense.
Using tear gas as a weapon for any purpose other than self-defense can lead to criminal charges under California Penal Code 22810 PC.
A conviction for unlawful tear gas use might result in a felony record and a potential prison sentence of up to three years, depending on the situation.
In simple terms, PC 22810 criminalizes the purchase, possession, or use of tear gas for anything other than self-defense. Prosecutors may charge this offense as either a misdemeanor or a felony, a "wobbler."
Suppose someone is approached in a dark parking lot by a man who refuses to identify himself and behaves aggressively. Feeling scared for her safety, she pulls a canister of tear gas from her purse and sprays it at the man.
In this situation, she is not guilty under PC 22810 because her actions clearly qualify as self-defense.
What Does PC 22810 Say?
Penal Code 22810 says, "notwithstanding any other provision of law, anyone may purchase, possess, or use tear gas if it is used solely for self-defense purposes, subject to the following requirements: (a) Nobody convicted of a felony or any crime involving an assault under the laws of the United States, or convicted of misuse of tear gas under subdivision (g), shall purchase, possess, or use tear gas or any tear gas weapon."
Additionally, subsection (b) states that anyone addicted to any narcotic drug cannot buy, possess, or use tear gas or tear gas weapons. Subsection (c) bans selling or giving tear gas to minors.
Subsection (e)(1) bans the purchase or use of tear gas weapons that are expelled by methods other than aerosol spray. Let's examine this state law in more detail below.
What is Self-Defense?
PC 22810 states that "any person may purchase, possess, or use tear gas or a tear gas weapon for projection or release if it is solely for self-defense purposes..."
Under the law, "self-defense" describes a situation where an individual:
- Believes they are in immediate or imminent danger.
- Believes that force is the only way to prevent the danger; and
- Uses only the amount of force considered necessary to prevent the danger.
The law also states that individuals who legally possess tear gas are forbidden from providing it to minors, and the tear gas weapon itself is prohibited from firing a projectile.
Under California law, it is a crime to possess or use tear gas that does not qualify as self-defense, or if it is owned or used by someone who is prohibited from having it.
What are the Related Crimes?
- Penal Code 171.7 PC - weapons at public transit
- Penal Code 171.5 PC - weapons at an airport
- Penal Code 171b PC - carry a weapon into a public building,
- Penal Code 417 PC - brandishing a weapon
- Penal Code 17330 PC - wallet gun
- Penal Code 22610 PC - stun guns and tasers law
- Penal Code 244 PC - assault with caustic chemicals
- Penal Code 20410 PC - Belt buckle knives
- Penal Code 21110 PC - ballistic knife law
- Penal Code 24610 PC - Undetectable firearms
What are the Penalties for Violating PC 22810?
A violation of PC 22810 is considered a "wobbler," meaning it can be classified as either a misdemeanor or a felony. Usually, the decision depends on the seriousness of the crime and the defendant's previous convictions.
- A misdemeanor conviction can result in up to one year in county jail and fines of up to $1,000.
- Felony conviction: If you are charged with and found guilty of a felony, the prison sentence could be 16 months, two years, or three years.
In either scenario, the judge has the discretion to impose summary probation for misdemeanors or formal probation for felonies, as an alternative to jail or prison.
What Possible Defenses Could be Raised?
Because owning and using tear gas for self-defense is legal, a defense attorney will likely argue that its use was justified as self-defense. To secure a conviction, prosecutors must show that you acted outside of self-defense, which can be difficult. Other typical legal defenses are outlined below.
You might argue that the substance or weapon employed did not include tear gas. If a canister containing a substance other than tear gas was used, conviction under PC 22810 is not applicable.
We could argue that there was an illegal search and seizure. If the police recovered your tear gas during such a search—such as without a warrant or probable cause—it would be inadmissible in court, potentially leading to the charges being dropped.
We might be able to negotiate with the prosecutor to reduce charges or have the case dismissed. During prefiling, we could also try to convince the prosecuting agency not to file formal criminal charges, known as a "DA reject."
For an initial case review, contact our California criminal defense attorneys by phone or through the contact form. Cron, Israels & Stark is based in Los Angeles, CA.