Penal Code 22810 PC - Unlawful Use of Tear Gas in California
Self-defense spray canisters are in everyday use nowadays—and these canisters usually contain pepper spray, tear gas, or some combination of the two.
It is not illegal in the State of California to possess tear gas—provided that it is clearly labeled with state-mandated information and warnings and is only used in self-defense.
However, if someone uses tear gas as a weapon for any reason other than self-defense, they can be charged with a crime under Penal Code 22810 PC. If you are convicted of the unlawful use of tear gas, depending on the circumstances, you could have a felony on your record and be sentenced to up to three years in prison.
Simply put, PC 22810 makes it a crime for someone to buy, possess, or use tear gas for any purpose other than self-defense. Prosecutors can charge this crime as a misdemeanor or a felony, called a “wobbler.”
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.”
Further, subsection (b) says nobody addicted to any narcotic drug can purchase, possess, or use tear gas or any tear gas weapon. Subsection (c) prohibits selling or giving tear gas to a minor.
Subsection (e)(1) prohibits purchasing or using any tear gas weapon that expels it by any method other than an aerosol spray. Let's review this state-level law in more detail below.
Overview of Penal Code 22810 PC
The wording of PC 22810 begins by making clear that "any person may purchase, possess, or use tear gas or any tear gas weapon for the projection or release of tear gas if the tear gas or tear gas weapon is used solely for self-defense purposes..."
Under the law, "self-defense" refers to a situation in which a person:
- Believes they are in immediate or imminent danger;
- Believes force is the only way to avert the danger; and
- Uses only a level of force deemed appropriate to avert the danger.
PC 22810 then lists the exceptions—meaning, who may NOT possess or use tear gas, namely:
- Anyone convicted of a felony;
- Anyone who is addicted to narcotics;
- Anyone previously convicted of unlawful use of tear gas under PC 22810;
- Anyone who is under the age of 18.
The law also stipulates that anyone legally possessing tear gas must furnish it to minors and that the tear gas weapon itself cannot release a projectile.
By process of elimination, possessing or using tear gas that does not meet the criteria of self-defense—or is owned/used by someone prohibited from having it—is considered a crime under California law.
What Are Some Examples?
EXAMPLE 1: Gina is accosted in a dark parking lot by a man who refuses to identify himself and acts aggressively. Fearful for her safety, she pulls a canister of tear gas from her purse and sprays it at the man.
Gina is not guilty under PC 22810 because her actions easily fall into the category of self-defense.
EXAMPLE 2: Andrea is arguing with her boyfriend, Paul. Voices get loud, but Paul makes no threat or action suggesting force. Yet, in anger, Andrea pulls out her tear gas and sprays Paul with it. Andrea may be charged with unlawful use of tear gas because her actions cannot be construed as self-defense.
EXAMPLE 3: At age 17, Susan purchases a canister of tear gas online. Even if she bought the tear gas for self-defense purposes, she is guilty under PC 22810 because she is not yet 18 years old and therefore prohibited from possessing it.
EXAMPLE 4: Angered that a group of teens in his neighborhood continue to cross his backyard on their way home from school despite his warnings not to do so, Jerry buys a tear gas bomb on the black market and throws it at the kids as they cross his yard.
Jerry can be charged with unlawful use of tear gas because even though the teens were technically trespassing, they posed no immediate threat to Jerry's safety.
What are the Related Crimes?
- Penal Code 244 PC – assault with caustic chemicals,
- Penal Code 22910 – defacing a tear gas weapon,
- 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 29800 – felon with a firearm.
What Are the Penalties for PC 22810?
A violation of PC 22810 is a "wobbler" offense, meaning it can be charged as either a misdemeanor or a felony. Typically, the crime's severity and prior convictions will dictate whether it is charged as one or the other.
- Misdemeanor conviction: If convicted of a misdemeanor violation, you face up to one year in county jail and fines up to $1,000;
- Felony conviction: If you're charged with and convicted of a felony, the sentence could be 16 months, two years, or three years in prison.
What Are the Defenses for PC 22810?
Since it's legal to own and use tear gas for self-defense purposes, the most common way a defense attorney will combat these charges will be to assert that you used the tear gas in self-defense.
For prosecutors to procure a conviction, they must demonstrate that you acted outside of self-defense, which can be challenging. Other common legal defenses are discussed below.
Perhaps we can argue that the substance or weapon you used did not contain tear gas. If you used a canister with a substance other than tear gas, you can't be convicted under PC 22810.
Perhaps we can argue that there was an Illegal search and seizure. If the police found your tear gas in an illegal search and seizure, such as with no warrant or probable cause, it is inadmissible in court, and the charges may be dropped.
Perhaps we can negotiate with the prosecutor for reduced charges or drop the case. Maybe during prefiling, we could persuade the prosecuting agency not to file formal criminal charges in the first place, called a “DA reject.”
You can contact our California criminal defense attorneys for an initial case review by phone or using the contact form. Eisner Gorin LLP is located in Los Angeles, CA.