Penal Code 22810 PC – Unlawful Use of Tear Gas in California

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. Prosecutors can charge this offense as a misdemeanor or felony. A conviction is punishable by up to three years in jail or prison.

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.

(2) Every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that states: “WARNING: The use of this substance or device for any purpose other than self-defense is a crime under the law. The contents are dangerous — use with care.”

(3) After January 1, 1984, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall have a label that discloses the date on which the useful life of the tear gas weapon expires.

(4) Every tear gas container and tear gas weapon that may be lawfully purchased pursuant to this section shall be accompanied at the time of purchase by printed instructions for use.

(f) Effective March 1, 1994, every tear gas container and tear gas weapon that may be lawfully purchased, possessed, and used pursuant to this section shall be accompanied by an insert including directions for use, first aid information, safety and storage information, and explanation of the legal ramifications of improper use of the tear gas container or tear gas product.

(g) (1) Except as provided in paragraph (2), any person who uses tear gas or any tear gas weapon except in self-defense is guilty of a public offense and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years or in a county jail not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment.

(2) If the use is against a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, engaged in the performance of official duties and the person committing the offense knows or reasonably should know that the victim is a peace officer, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years or by a fine of one thousand dollars ($1,000), or by both the fine and imprisonment.

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 address 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,
  3. weapons at California Public Transit Facilities – PC 171.7. and
  4. defacing a tear gas weapon – PC 22910.

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.

4.4 Defacing a tear gas weapon – PC 22910

Penal Code 22910 PC is the California statute that makes it a crime for people 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.

For additional help…

receptionist at criminal defense law firm

Contact us for additional help.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

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 22810(g)(1) PC.
  6. See same. See also Penal Code 1170h PC.

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