Pepper spray, also known as OC spray, is a compound that produces tears and pain in the eyes. It is used both by police and by individuals for the purpose of self defense. Pepper spray is typically sold in canisters which are small enough to be concealed in a pocket or purse. The product is usually formulated using a mix of active ingredients such as capsaicin, which is derived from plants such as chilis and peppers. Similar self defense sprays are tear gas (also known as CS or CN sprays) or Mace.
Pepper spray is used as a temporary self-defense measure, as it can incapacitate an attacker due to the chemical reaction it causes. Being sprayed with pepper spray usually results in:
- A burning sensation on the skin, which can last from 45 minutes to an hour;
- Temporary blindness, usually lasting anywhere from 15-30 minutes; and
- Upper body spasms, which can result in uncontrollable coughing and difficulty breathing or speaking for about 3 to 15 minutes
While pepper spray is generally not considered deadly, there have been documented cases of deaths occurring, usually as result of a reaction to the pepper spray.
Pepper spray is widely used for purposes such as:
- Policing and police activities;
- Riot control;
- Crowd control; and/or
- Self-defense purposes (including defense against pet attacks and wild animals).
It is illegal to use pepper spray in the commision of a crime. In most states, pepper spray is legal to carry and use for the purpose of self defense. However, in some states, the use of pepper spray is regulated:
- Massachusetts: A firearm identification card is required to lawfully purchase, possess, and use pepper spray meant for humans. Pepper spray meant for animals can be bought over the internet and shipped in the mail.
- New York: Pepper spray must be purchased from licensed firearms dealer or pharmacist. The buyer must be 18 years or older and must sign a form to swear to their age. It is illegal to ship pepper spray in New York State.
- Wisconsin: Sprays must be made of pepper only, and tear gas, UV dyes, or combination sprays are prohibited. OC spray can be no stronger than a 10% solution. The canister can be between 15-60 grams only and must have safety feature.
- Washington, D.C.: Possession of any kind of pepper spray must be registered with the DC Metropolitan Police
- Michigan: OC Pepper spray can be no stronger than a 2% concentrate. CS is the only tear gas accepted and can be no larger than approximately 1.2 ounces per can. UV dyes are not legally permitted.
- California: It is illegal to purchase, possess, or use any pepper spray that contains more than 2.5 ounces net weight of aerosol spray,
- Texas: It is legal to carry a “small chemical dispenser” of pepper spray, but illegal to carry or own larger quantities.
It is also important to check local laws, as they may address pepper spray possession and usage. It is illegal to bring pepper spray on an airplane in carry on luggage. Furthermore, in Canada, pepper spray is a prohibited weapon. If you are traveling or moving to Canada, do not carry pepper spray with you.
The main concern when using pepper spray for self-defense is whether or not using it would be considered excessive force. Generally speaking, when engaging in self-defense, the person must use only an amount of force that is equal to the force being used against them. Thus, the use of pepper spray is usually allowed as a form of self-defense in situations where:
- The attacker is threatening serious harm or injury;
- The attacker has a weapon;
- The attacker is much larger in size, or has specific training that makes them more dangerous;
- The attacker is also using pepper spray; and
- There are multiple attackers.
As in any self-defense case, the person claiming self-defense cannot be the initiator of the attack or aggression. That is, they cannot be the one who started the fight, altercation, or attack, if they want to claim self-defense in court. The state restrictions listed above must also be met as well.
In cases where a person uses pepper spray on someone who is not clearly about to attack them or is not showing any signs of aggression or assault may face difficulties when claiming the use of pepper spray for self-defense.
If you have been arrested for unlawful use or possession of pepper spray, you should contact a local criminal defense attorney immediately. An attorney can help you understand the laws of your jurisdiction, and can explain to you any defenses that may be available to you.