Penal Code 22810 PC – Unlawful Use of Tear Gas

Penal Code 22810 PC is the California statute that makes it a crime for a person to buy, possess, or use tear gas for any purpose other than self-defense. A violation of this law is charged as a felony. The offense is punishable by up to three years in jail or prison.

22810 PC reads that “notwithstanding any other provision of law, any person may purchase, possess, or use tear gas or any tear gas weapon…if the tear gas or tear gas weapon is used solely for self-defense purposes.”

Note that the statute then goes on to state that it is illegal, even for self-defense, for the following persons to buy, possess, or use tear gas:

  • anyone previously convicted of a felony or crime involving assault,
  • anyone addicted to any narcotic drug, and
  • anyone under the age of 18.

Examples of crimes under this statute:

  • buying tear gas is legal if the purchase is for self-defense.
  • using tear gas to commit another offense is illegal.
  • possessing tear gas is illegal if done by a narcotic addict.

Defenses

A defendant can dispute a charge under this law with a legal defense. Common defenses include:

  • the defendant acted purely in self-defense,
  • the accused did not buy, possess, or use “tear gas,” and/or
  • the defendant was arrested after an unlawful search and seizure.

Penalties

A violation of this statute is a wobbler. A prosecutor can charge a wobbler as either a misdemeanor or a felony.

A misdemeanor conviction is punishable by custody in county jail for up to one year.

A felony conviction is punishable by imprisonment in state prison for up to three years.

Our California criminal defense attorneys will highlight the following in this article:

masked person throwing tear gas as an example of a crime under Penal Code 22810 PC
Penal Code 22810 PC is the California statute on unlawful use of tear gas.

1. When is it a crime to buy, use, or possess tear gas?

A prosecutor must prove the following to convict a person under this statute:

  1. the defendant bought, possessed, or used tear gas or a tear gas weapon, and
  2. the defendant did so for a purpose other than self-defense.1

These laws also make it illegal for the following people to use or possess tear gas:

  • anyone previously convicted of a felony or crime involving assault,
  • a narcotic addict, and
  • a minor, or anyone under the age of 18.2

This prohibition stands even if the gas is used for self-defense.

Note also that these laws make it a crime for a person to sell or give tear gas to a minor.3

A tear gas weapon is any cartridge or bomb, that upon explosion, releases tear gas.4

2. How can a person contest the charges?

Defense attorneys use different strategies to defend against PC 22810 charges. These include showing that:

  1. the defendant acted in purely self-defense.
  2. the accused did not buy, possess, or use “tear gas.”
  3. the defendant was arrested after an unlawful search and seizure.

2.1. Self-defense

This statute acts as a defense if a person uses tear gas in defense of himself/herself or others.

The defense will work provided that the accused:

  • believed that he/she was in “imminent danger,”
  • believed that force was necessary to stop the danger, and
  • used an appropriate level of force in defense.

2.2. No tear gas

Penal Code 22810 only prohibits the unlawful use/possession of tear gas. This means it is always a defense for a defendant to show that, while he may have used or possessed a substance, that substance was not tear gas.

2.3. Unlawful search and seizure

Authorities cannot conduct a search or take property without a valid search warrant. If no warrant, then they must have a legal excuse for not having one.

Evidence of tear gas obtained via an unlawful search/seizure can get excluded from a criminal case.

This means that any charges in the case could get reduced or even dismissed.

tear gas canister smoking
The penalties depend on whether 22810 PC is charged as a felony or a misdemeanor.

3. What are the consequences for a 22810 PC conviction?

A violation of 22810 PC is a wobbler. A wobbler is an offense that the prosecutor can charge as either:

  • a misdemeanor, or
  • a felony.

Misdemeanor charges are punishable by:

  • custody in the county jail for up to one year, and/or
  • a maximum fine of $1,000.5

In lieu of the above a judge may award misdemeanor (or summary) probation.

Felony charges are punishable by:

4. Are there similar offenses?

There are three crimes related to possessing/using tear gas. These are:

  1. unauthorized possession of weapons in public buildings – PC 171b,
  2. assault with caustic chemicals – PC 244, and
  3. weapons at California Public Transit Facilities – PC 171.7.

4.1. Unauthorized possession of weapons in public buildings – PC 171b

Penal Code 171b PC is the California statute that makes it a crime for a person to:

  1. bring or possess certain “weapons,” and
  2. do so into public buildings or meetings open to the public.

“Weapons” under this statute includes any unauthorized tear gas weapon.

4.2. Assault with caustic chemicals – PC 244

Penal Code 244 PC is California's law on "assault with caustic chemicals." It makes it a crime for a person to:

  1. throw or place caustic or flammable substances on someone, and
  2. do so with the intent to injure or disfigure that person.

As used in this section, a “flammable substance” means:

  • gasoline,
  • petroleum products, or
  • flammable liquids with a flashpoint of 150 degrees Fahrenheit or less.

4.3. Weapons at California Public Transit Facilities – PC 171.7

Penal Code 171.7 PC is the California statute that makes it a crime for a person to:

  1. knowingly possess certain weapons, and
  2. do so within any “sterile area” of a public transit facility (PTF).

Some of these weapons include:

  • firearms,
  • imitation firearms, and
  • unauthorized tear gas weapons.

A “sterile area” means any part of a PTF that is controlled in a manner consistent with the facility's security plan.

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Legal References:

  1. California Penal Code 22810 PC.

  2. See same.

  3. See same.

  4. People v. Gilhousen, 2019 Cal. App. Unpub. Lexis 5028.

  5. California Penal Code 22810g1 PC.

  6. See same. See also Penal Code 1170h PC.

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