§ 22810 PC – Unlawful Use of Tear Gas – California Law

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 either a

• misdemeanor carrying up to 1 year in jail or
• felony carrying 16 months, 2 years, or 3 years in jail.

In this article, our Los Angeles criminal defense attorneys will address the following key issues regarding California tear gas laws:

• 1. Elements of 22810 PC
• 2. Defenses
• 3. Probation
• 4. Related Crimes
• Frequently Asked Questions
• Additional Reading

1. Elements of 22810 PC

For you to be convicted of violating California Penal Code 22810 PC, a prosecutor must prove beyond a reasonable doubt the following two elements:

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

These laws also make it unlawful to use or possess tear gas if you:

• were previously convicted of a felony or crime involving assault, or
• are a narcotic addict, or
• are a minor (under the age of 18).²

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

Note that 22810 PC also makes 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. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with California weapons crimes, including unlawful tear gas possession. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting 22810 PC charges reduced or dismissed.

1) You Acted in Self-Defense

You may lawfully use tear gas in defense of yourself or others. To prove you acted in self-defense or defense of others, 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) There Was 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.

3) Police Performed an Unlawful Search and Seizure

One of the most common defenses our lawyers 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.

3. Probation

Depending on the 22810 PC case, it may be possible to avoid jail by doing misdemeanor (or summary) probation or felony (or formal) probation. Possible probation terms include:

• fines,
• restitution,
• community service,
• counseling,
• curfews,
• electronic monitoring, and/or
• drug testing.

Violating the terms of your probation could cause you to be remanded to jail to serve out the remainder of your sentence.

4. Related Crimes

Unauthorized Possession of Weapons in Public Buildings

Penal Code 171b PC makes it a California crime to bring or possess certain “weapons” into public buildings or meetings open to the public. “Weapons” under this statute include any unauthorized tear gas weapon.

Assault with Caustic Chemicals

Penal Code 244 PC makes it a California crime to throw or place caustic or flammable substances on someone 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

Penal Code 171.7 PC makes it a California crime to knowingly possess certain weapons 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

Penal Code 22910 PC makes it a California 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 punishable by up to three years behind bars.

Frequently Asked Questions

Can I carry tear gas in California if I have a felony conviction?

No. Penal Code 22810(a) imposes a lifetime ban on the possession, purchase, or use of tear gas for anyone convicted of a felony or a crime involving assault. Violating this is a distinct crime punishable by up to three years in prison.

What is the maximum size of tear gas allowed in California?

The canister must not contain more than 2.5 ounces of aerosol spray. Additionally, the device must emit the gas as a spray, not a projectile; tear gas weapons that fire a solid projectile are illegal.

Can a teenager legally carry tear gas in California?

Yes, but with strict conditions. Under PC 22815, minors who are 16 or older may possess tear gas only if they are accompanied by a parent or have valid written parental consent in their possession. It is unlawful for any child under 16 to carry it.

Is it a California crime to use tear gas in a mutual fight?

Yes. It is unlawful to use tear gas for any purpose other than self-defense. If you use it offensively, out of anger, or during a mutual brawl where you are not defending against imminent danger, you can be charged with a felony.

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.

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