In a legal context, self-defense is a broad term that is used to describe a person’s use of force including deadly force to protect themselves from an active threat or attack. Self-defense can also describe the use of force necessary to protect a person’s property from an ongoing robbery or burglary. Defense of others also falls under self-defense principles, when the person who is using such force is doing so in order to protect or aid a third party from an active attack.

In order for the defense to become applicable in criminal law, the defendant must be charged with a crime of assault, battery, or murder. They may then raise self-defense as a justification for their actions. Self-defense can also apply in civil lawsuits when a defendant is being sued for assault, battery, or wrongful death.

Each state recognizes some form of self-defense and defense of others, but these laws vary from state to state. Variations occur in terms of the location of the crime, such as the defendant’s home versus the street, as well as whether the defendant must take certain precautions before using force in order to defend themselves.

A legal self-defense applies when the following factors are met:

  • The defendant was physically attacked, or witnessed a third-party being attacked, when they used force. Words are not considered to be enough to respond with physical force;
  • The defendant did not start the physical altercation, meaning that if you start the fight, it is highly unlikely you can use self-defense;
  • The defendant had a true and reasonable belief that self-defense was necessary in order to stop or prevent the attack from continuing; and
  • The defendant did not use excessive force, meaning the force that was used was proportionate to the attack and sufficient to stop it or avoid further injury. This will be further discussed later on.

Some states require the defendant to retreat or run away from the attacker before using deadly force in order to stop the attack. In states that require a duty to retreat, some do not require such a duty if the attack occurs inside the defendant’s home by an outside assailant. However, a duty to retreat only applies if a safe escape exists to the defendant, and that they knew or should have known of its existence at the time of the attack.

Standing one’s ground is the opposite of the duty to retreat. In some states, a defendant does not need to retreat before using force, including deadly force. Rather, they may stand their ground and defend themselves with the same force applied by their attacker. In these states, the defendant may even stand their ground in a public place.

What Is Pepper Spray?

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 civilians for the purpose of self defense. Pepper spray is generally sold in canisters which are small enough to be concealed in a pocket, and is formulated using a mix of active ingredients such as capsaicin which is derived from plants such as chilis and peppers. Similar self defense sprays would be tear gas, which is also known as CS or CN sprays, or Mace.

Pepper spray is used as a temporary self-defense measure because it can incapacitate an attacker due to the chemical reaction it causes. Being sprayed with pepper spray generally results in:

  • A burning sensation on the skin, which can last from 45 minutes to one hour;
  • Temporary blindness, generally lasting between 15 and 30 minutes; and
  • Upper body spasms, which can result in uncontrollable coughing and difficulty breathing or speaking for between 3 and 15 minutes.

While pepper spray is generally not considered to be deadly, there have been documented cases of deaths occurring, generally as a 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 both pet attacks and wild animals.

Is Pepper Spray Legal?

In terms of whether pepper spray is legal, it is illegal to use pepper spray in the commission 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 that is meant for animals can be bought over the internet and shipped in the mail;
  • New York: Pepper spray must be purchased from licensed firearms dealers or pharmacists. The buyer must be 18 years or older, and they 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. Tear gas, UV dyes, or combination sprays are prohibited. OC spray can be no stronger than a 10% solution. Additionally, the canister can only be between 15-60 grams, and must have safety features;
  • 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 that is 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; and
  • Texas: It is legal to carry a “small chemical dispenser” of pepper spray, but it is illegal to carry or own larger quantities.

Local laws may further address pepper spray possession and usage. It is important to note that it is illegal to bring pepper spray on an airplane in carry-on luggage. In Canada, pepper spray is a prohibited weapon; as such, if you are traveling or moving to Canada, do not carry pepper spray with you.

When Can Pepper Spray Be Used For Self Defense?

Whether pepper spray can be used for self-defense largely depends on whether 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 that is being used against them.

The use of pepper spray is generally allowed as a form of self-defense when:

  • 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/or
  • There are multiple attackers.

As with any self-defense case, the person claiming self-defense cannot be the initiator of the attack or aggression. To reiterate, they cannot be the one who started the fight, altercation, or attack if they want to claim self-defense in court. Additionally, the state restrictions that are listed above must be met as well.

In cases in which 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.

The following are some examples of circumstances that may prevent a defendant from using a legal self-defense:

  • Escalating the fight or using a weapon against an unarmed attacker may be considered excessive depending on the size and use of force by the attacker. An example of this would be if an unarmed burglar enters your home and you pull a gun on them. They begin to run away when you shoot them in the back. This action is not likely to be considered legal self-defense;
  • Failing to retreat when legally required to do so;
  • Starting the fight; and
  • Using force after the attack has ended. An example of this would be if you are assaulted and afterwards the attacker flees. If you chase them down and attack them, it is not considered to be self-defense.

Do I Need A Lawyer For Unlawful Use Or Possession Of Pepper Spray?

If you have been arrested for unlawful use or possession of pepper spray, you should contact a local criminal defense attorney immediately. Your lawyer can help you understand your state’s specific self-defense laws, as well as what your legal rights and options are under those laws. Additionally, an attorney will also be able to represent you in court, as needed.