California Penal Code § 22810 PC makes it a crime to buy, possess, or use tear gas other than for lawful self-defense. The state can charge this as a misdemeanor with up to one year in jail or a felony with up to three years in prison.
In this article, we will quote the language of the code section. Then, we will break it down and explain it further. The code section reads as follows:
22810. Notwithstanding any other provision of law, 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, subject to the following requirements:
(a) No person convicted of a felony or any crime involving an assault under the laws of the United States, the State of California, or any other state, government, or country, or convicted of misuse of tear gas under subdivision (g), shall purchase, possess, or use tear gas or any tear gas weapon.
(b) No person addicted to any narcotic drug shall purchase, possess, or use tear gas or any tear gas weapon.
(c) No person shall sell or furnish any tear gas or tear gas weapon to a minor.
(d) No minor shall purchase, possess, or use tear gas or any tear gas weapon.
(e) (1) No person shall purchase, possess, or use any tear gas weapon that expels a projectile, or that expels the tear gas by any method other than an aerosol spray, or that contains more than 2.5 ounces net weight of aerosol spray.
Our California criminal defense attorneys will address the following:
- 1. When is it a crime to buy, use, or possess tear gas?
- 2. How can I fight the charges?
- 3. What are the consequences of a 22810 PC conviction?
- 4. Are there similar offenses?
- Additional reading
Penal Code 22810 PC is the California law that prohibits using tear gas other than in legitimate self-defense.
1. When is it a crime to buy, use, or possess tear gas?
A prosecutor must prove the following to convict you under this statute:
- you bought, possessed, or used tear gas or a tear gas weapon, and
- you did so for a purpose other than self-defense.1
These laws also make it illegal to use or possess tear gas if you:
- were previously convicted of a felony or crime involving assault,
- are a narcotic addict, and
- are a minor (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 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 I fight the charges?
Over the years, we have relied on a host of different strategies to defend against PC 22810 charges. Our most successful defense strategies have been to show that:
- you acted purely in self-defense.
- you did not buy, possess, or use “tear gas.”
- you were arrested after an unlawful search and seizure.
2.1. Self-defense
This statute acts as a defense if you use tear gas in defense of yourself or others. Therefore, we amass any available surveillance footage and eyewitness accounts to show that you:
- believed that you were in “imminent danger,”
- believed that force was necessary to stop the danger, and
- used an appropriate level of force in defense.
Whenever we have shown prosecutors that our clients acted reasonably under the circumstances, the state usually dismissed the charge without a trial.
2.2. No tear gas
Penal Code 22810 only prohibits the unlawful use/possession of tear gas. This means it is always a defense to show that, while you may have used or possessed a substance, that substance was not tear gas.
In these cases, we try to find any sales receipts to show that the item in question was not tear gas. Alternatively, we can call upon an expert witness to testify that the item you possessed does not qualify as tear gas, and that the police were mistaken.
2.3. Unlawful search and seizure
One of the most common defenses our lawyers at Shouse Law Group rely on is that the police obtained their evidence through an illegal search. Many of our attorneys are former law enforcement officers and prosecutors, so we know what to look for when reviewing their actions in your case.
If we can show that the police found your tear gas without a valid search warrant – or without a valid excuse for acting without a search warrant – we may be able to get all evidence of the tear gas suppressed. Once that happens, the D.A. may be forced to drop your whole case for lack of proof.
The penalties depend on whether 22810 PC is charged as a felony or not.
3. What are the consequences of 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:
- custody in state prison for up to three years, or
- felony (or formal) probation.6
4. Are there similar offenses?
There are four crimes related to possessing/using tear gas. These are:
- unauthorized possession of weapons in public buildings – PC 171b,
- assault with caustic chemicals – PC 244,
- weapons at California Public Transit Facilities – PC 171.7, and
- defacing a tear gas weapon – PC 22910.
Unauthorized possession of weapons in public buildings – PC 171b
Penal Code 171b PC is the California statute that makes it a crime to:
- bring or possess certain “weapons,” and
- do so into public buildings or meetings open to the public.
“Weapons” under this statute include any unauthorized tear gas weapon.
Assault with caustic chemicals – PC 244
Penal Code 244 PC is California’s law on “assault with caustic chemicals.” It makes it a crime to:
- throw or place caustic or flammable substances on someone, and
- 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.
Weapons at California Public Transit Facilities – PC 171.7
Penal Code 171.7 PC is the California statute that makes it a crime to:
- knowingly possess certain weapons, and
- 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.
Defacing a tear gas weapon – PC 22910
Penal Code 22910 PC is the California statute that makes it a crime to change, alter, or remove the name of the manufacturer, the serial number, or any identification mark on a tear gas weapon.
California law treats this offense as more serious than the unlawful use of tear gas. Defacing a tear gas weapon is always charged as a felony and the crime is punishable by up to three years in state prison.
Additional reading
For more in-depth information, refer to these scholarly articles:
- Medical Problems and Criteria Regarding the Use of Tear Gas by Police – The American Journal of Forensic Medicine and Pathology.
- Resistant Matters: Tents, Tear Gas and the “Other Media” of Occupy – Communication and Critical/Cultural Studies.
- Reevaluating tear gas toxicity and safety – Inhalation Toxicology.
- Tear Gas—Harassing Agent or Toxic Chemical Weapon? – JAMA.
- Medical Hazards of the Tear Gas CS A Case of Persistent, Multisystem, Hypersensitivity Reaction and Review of the Literature – Medicine.
Legal References:
- California Penal Code 22810 PC. See also People v. Garrett (Cal. App. 6th Dist., 2016) 248 Cal. App. 4th 8; People v. Challe (Cal. App. 3d Dist., 2022) C095700.
- See same.
- See same.
- People v. Gilhousen, 2019 Cal. App. Unpub. Lexis 5028.
- California Penal Code 22810(g)(1) PC.
- See same. See also Penal Code 1170h PC.